Posted on October 2, 2012 by Megan Hawley
Terms of s94 contributions plan incorporated into consent condition
Kempsey Shire Council v M A Roche Group Pty Ltd  NSWLEC 211 demonstrates that the Court may not only use external documents to aid in the interpretation of a development consent condition, but may also incorporate provisions of such documents into the consent conditions in certain circumstances.
Condition 20 of the relevant development consent required the payment of development contributions under s94 of the Environmental Planning & Assessment Act 1979 (EPA Act).
The condition expressly stated that the condition was imposed under the Council’s Rural Roads and Project Administrator Developer Contributions Plans.
The condition did not specify when the contributions had to be paid. However, the contributions plans referred to in the condition stated that contributions had to be paid before the relevant development was commenced. In that regard, cl. 101 of the Environmental Planning and Assessment Regulation 2000 requires a condition imposed under s94 or s94A of the EPA Act to include ‘particulars…of the contributions plan under which the condition is imposed‘.
The developer commenced development pursuant to the consent without having paid the development contributions required by condition 20.
Council argued that this constituted a breach of the condition because the terms of the contributions plans should be incorporated into the consent. It sought to enforce the condition against the developer and required payment of the contributions together with interest.
The Court referred to various authorities to the effect that conditions of consent should be construed to give them practical effect, and to avoid uncertainty.
The Court determined that it was necessary and appropriate, given the express reference to the contributions plans, to incorporate their terms into the consent. Doing so achieved the aim of giving the condition practical effect and avoiding uncertainty.
As a result, payment of the contributions was taken to be required before the commencement of the development. This had not occurred and the developer was found to have breached condition 20 and was ordered to pay the contributions and interest.
This decision reinforces the practical approach that the Court will take to construing consent conditions. It also confirms that where external documents are specifically referred to in the consent, they can be referred to when construing conditions of the consent and in appropriate circumstances their terms incorporated into the consent.
When a consent authority is drafting conditions of consent, it would be useful to specifically reference source documents relevant to the condition to ensure that the condition will be interpreted having regard to those documents. However, if doing so, care should be taken to ensure that the wording of the condition itself does not contradict the source document.