Posted on March 6, 2023 by Megan Hawley and Emma Wei 20

Dedication of land for roads without a VPA

We have previously blogged about the case of L & G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1084 (L & G Management). That case confirmed previous case law to the effect that it is unlawful to impose a condition of consent requiring the dedication of land, even if the land dedication was offered by the developer, unless the dedication is pursuant to a voluntary planning agreement (VPA) offered by the developer, or the condition is authorised by a contributions plan under section 7.11 of the Environmental Planning and Assessment Act 1979 (EPA Act).

In L & G Management, Duggan J said that approving a development which proposes dedication of land, even if a specific condition is not required,  is unlawful other than in the above circumstances, as the condition requiring development in accordance with the plans is effectively a condition requiring the dedication.

However in the recent case of Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094 (Urban Apartments), the Land and Environment Court accepted that consent can be granted to a development application for subdivision which proposes the dedication of roads under section 9 of the Roads Act 1993 (Roads Act) without the need for a planning agreement or section 7.11 condition.

Section 9 of the Roads Act 1993

Section 9 of the Roads Act provides that:

9 Public road created by registration of plan
(1) A person may open a public road by causing a plan of subdivision or other plan that bears a statement of intention to dedicate specified land as a public road (including a temporary public road) to be registered in the office of the Registrar-General.
(2) On registration of the plan, the land is dedicated as a public road.

Where land is dedicated as a public road, the council  for the local government area in which the road is located becomes the owner of the road (except in limited circumstances): s 145 of the Roads Act.

Facts

The case concerned a proposed development which sought to take advantage of a community infrastructure clause in the Penrith Local Environmental Plan 2010 (PLEP) under which a development can access bonus height and floor space ratio (FSR), if community infrastructure is provided.

Community infrastructure is defined in the PLEP to include public roads. The Council’s Community Infrastructure Policy contemplated VPAs for the delivery of community infrastructure, and set out Council’s preferred types of community infrastructure. Commissioner Horton of the Land & Environment Court had to consider whether the development did provide community infrastructure.

Submissions

The Council argued that the proposed development did not include community infrastructure because no dedication was offered through a VPA and the type of infrastructure proposed was not in accordance with the Council’s preferred types. The Council compared the case to L & G Management. The Council submitted that there was no power to effect land dedication under the EPA Act without a contributions plan or a VPA.

The developer argued that no VPA was required, as the community infrastructure, being a public road could be dedicated under section 9 of the Roads Act, which allows for the registration of a plan to dedicate specified land as a public road. As a result, there was no condition of consent required to effect the land dedication. The developer argued that the provision of the public road through the notation on the plan of subdivision and s 9 of the Roads Act, constituted the provision of community infrastructure for the purposes of the PLEP, which meant the bonus height and FSR were available.

Findings

The Commissioner distinguished the case from L & G Management. He said that in L & G Management, the Applicant was seeking to dedicate land to Council for the purpose of road widening at some point in the future and therefore s 9 of the Roads Act was not engaged.

The Commissioner noted that in this case, the developer was not seeking to rely on a condition requiring dedication of land. He said “[i]nstead the dedication is given effect by a mechanism to which the Court was not, in L & G Management…directed,” being s 9 of the Roads Act. No argument was put in L & G Management about the operation of s 9 of the Roads Act.

The Commissioner was satisfied that the development provided for the dedication of public roads by that mechanism, and that this constituted the provision of community infrastructure for the purposes of the clause in the PLEP.

Implications

The decision is not binding on a Judge of the Court, as it was made by a Commissioner. However, it signifies support from the Court for the argument that there is no impediment to council granting consent to a development which proposes the dedication of roads through notations on a subdivision plan, in the absence of a VPA or authorised s 7.11 condition.

Whilst not dealt with in the case, s 49 of the Local Government Act 1993 operates similarly to s 9 of the Roads Act 1993 in respect of notations on subdivision plans relating to ‘public reserves‘.

There is a good argument that the decision would mean consent can also lawfully be granted to development applications proposing the dedication of public reserves through notations on a plan of subdivision without a VPA or s 7.11 condition.

This ruling has significant implications as it could streamline the process of dedicating land for councils, reducing the burden on councils in negotiating VPAs. The resulting cost savings for councils and quicker and efficient land dedications for public purposes are clear benefits.

However, councils with local environmental plans with community infrastructure clauses drafted similarly to the clause in the PLEP, and in particular where ‘community infrastructure’ is defined to include ‘public roads‘, should be aware that the clause will be triggered, and bonus height and FSR available where the development proposes dedication of a public road through notation on a plan of subdivision. Councils cannot assume that all land dedication will require a VPA.

You can read the full judgment here.

You can read our previous blog on L & G Management here.

If you have any questions about this blog post, please contact Megan Hawley on 02 8235 9703 or Emma Wei on 02 8235 9725.