Posted on June 23, 2019 by Michael Levy

Conditions to overcome insufficient information

We recently blogged about the need for conditions of consent to be final and certain here.

However, in another recent judgment, the Land & Environment Court has discussed how to provide flexibility in a condition of consent when the information provided with the development application is insufficient.

Background

The case involved a development application for a community title residential subdivision (Development).

Throughout the course of the proceedings, the Applicant produced numerous new and amended plans and reports in support of its application. By the time the matter came before the Court for hearing there remained numerous matters of detail to be finalised.

Upstream impacts

One area of insufficient detail was the “upstream” impacts of off-site wastewater and water supply infrastructure which needed to be built in order to service the  Development. This off-site development and its impacts needed to be considered during the assessment process for the Development.

The design for those works was not able to be put before the Court (as it had not been finalised) and the Council argued that without sufficient detail regarding those matters the Court could not be satisfied that the impacts of the Development would be acceptable and would have to refuse consent to the Development.

The Applicant however submitted that despite some details remaining outstanding, the Court could be satisfied that there were established processes under Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) (now Division 5.1) which would allow for proper consideration and assessment of these “upstream” impacts. Accordingly, the Applicant argued that any consent for the Development could include such conditions as were necessary to ensure that these processes were followed prior to the Development being carried out.

Conditions of consent generally

The Court recognised that there are limits to what can be achieved by conditions of development consent and made the following observations about conditions:

  • a condition of consent cannot, in effect, be a refusal in disguise – this was said to be a reason for close scrutiny of any deferred commencement condition;
  • a condition of consent cannot defer determination of a matter to the future, such that at the time of the issuing of the consent there would be uncertainty as to the eventual outcome (Mison v Randwick Municipal Council (1991) 23 NSWLR 734) (Mison);
  • consent for development must not be uncertain but “Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the final function of supervising a later stage of the development is prohibited.” (Mason P in Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at [117] ); and
  • conditions should be clear and unambiguous.

Imposing conditions in the face of uncertainty regarding water and wastewater services

In order to deal with the uncertainty regarding the off-site water and wastewater infrastructure works, in circumstances where the Applicant had minimal control over the timing, design or impacts of those works, the Court considered that it would be appropriate to impose a form of condition, known in the UK as a Grampian condition (Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 S. C. (H. L.) 58).

Grampian conditions and s4.7(1)(f) of the Environmental Planning and Assessment Act 1979

A Grampian condition prohibits development from commencing (or only being carried out to some stated hold point) until a specified action is taken on other land.  In order to impose such a condition, generally the specified action must have reasonable prospects of occurring.

By structuring a condition in this way, some of the potential uncertainty about works which are required to be performed on land owned by third parties that is not part of the development site can be overcome in a manner that is not ultravires and unenforceable (such as by imposing obligations on third parties).

Section 4.17(1)(f) of the EPA Act relevantly provides that a condition of development consent may be imposed if:

it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15 (1) applicable to the development the subject of the consent …

[Emphasis added]

 The Court held in this case that:

  • a condition relating to work to be carried out offsite is permitted by s4.17(1)(f) of the EPA Act;
  • however, a condition in this case to authorise the construction of the water and wastewater services off-site, would be uncertain as the  works had not been designed;
  • however a condition in the nature of a Grampian condition, expressed in the negative, requiring that the Development not proceed unless the necessary water and wastewater works were authorised and carried out  would not be uncertain as there was a defined process under Part 5 of the EPA Act for the works to be approved by Sydney Water.

The Court held that such a condition should be imposed as an operational condition (rather than a deferred commencement condition) to be satisfied prior to the issue of the Construction Certificate. This would allow aspects of the Development, unconnected to those aspects requiring water and wastewater connections, to be commenced prior to provision of water and wastewater services.

The approach of the Court raises the issue of whether all of the impacts of the Development were assessed, as the impacts of the water and wastewater works were to be assessed separately under Part 5 of the EPA Act. In Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 , Biscoe J held that the impacts of a school development included the impacts of the construction of a bridge which was required by a condition of consent, but to be subject to a separate Part 5 assessment.

The Court in this case distinguished Hoxton Park on the basis that it dealt with a ‘downstream impact’ of the development in question, whereas the issue in this case was one of an upstream impact. The distinction and the reason is not entirely clear.

Lessons

Grampian conditions and deferred commencement conditions are mechanisms by which a consent authority can achieve the fine balance between finality and certainty of a consent on the one hand and flexibility and pragmatism on the other hand.

However very careful consideration needs to be given to the particular circumstances in which such conditions are to be used, and to their wording, having regard not only to the need for finality and certainty, but also the need to ensure all impacts of a development are considered before it is approved.

Should you wish to discuss this decision or conditions of consent more generally, please contact Michael Levy on 8235 9706 or Megan Hawley on 8235 9703.

The Court’s full decision (Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234) can be read here.