Posted on June 27, 2025 by Frances Tse, Taylor Finnegan and Megan Hawley 3

Dedication of Land Without a Planning Agreement or s7.11 Condition

A recent decision of the Chief Justice of the Land and Environment Court has confirmed that a consent authority (which includes the Court on appeal) can grant consent to a subdivision of land where the proposed plan of subdivision indicates an intention to dedicate land for a public reserve, without the need for a planning agreement or a condition of consent imposed under s7.11 of the Environmental Planning & Assessment Act 1979 (EPA Act).

As set out in our earlier post  ‘Court Confirms Position on Dedication of Land Free of Cost‘, the decision in L & G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 149 cast some doubt on the power of a consent authority to do so.

Background

The case came before the Chief Judge by way of an appeal by the Council from a decision of a Commissioner of the Land and Environment Court in a Class 1 appeal to grant development consent to a subdivision.

The proposed plan of subdivision marked one of the nine lots as ‘public reserve’ and contained the notation: ‘It is intended to dedicate Lot 9 to the public as public reserve in accordance with s 49 of the Local Government Act 1993.’

Section 49 of the Local Government Act 1993 (LG Act) provides that ‘On the registration by the Registrar-General of a plan on which land is marked with the words “public reserve” … the land is dedicated as a public reserve and vests in the council for an estate in fee simple.‘

The Council had opposed the grant of consent to the subdivision, and did not wish to take ownership of the proposed public reserve.

One of the grounds on which Council appealed the Commissioner’s decision to grant consent was that the Commissioner made an error in finding that the Court had power, under s49 of the LG Act or otherwise, to compel the Council to accept the dedication of land as a public reserve.

The Council argued that:

• the exclusive power of a consent authority to impose a condition of consent requiring the dedication of land free of cost is pursuant to s 7.11(1) of the EPA Act, and
• the Commissioner could not exercise the power under s4.16(1) of the EPA Act to grant development consent to a plan of subdivision that marked one of the lots with the words ‘public reserve’ unless the Council consented to the vesting of the lot that would occur upon registration of the plan of subdivision.

Findings of the Court

Preston CJ found that the ground of appeal based on the Court finding that Council was compelled to accept the land was flawed because Commissioner did not make any finding as to whether the Court had the power to compel the Council to accept the dedication of the lot, nor did the Commissioner seek to exercise any power under s 49 of the LG Act or otherwise, to compel the Council to accept the dedication of lot. Rather the Commissioner simply exercised the power under s4.16(1) of the EPA Act to grant development consent to the development application for the subdivision of the land.

The Court also did not agree with the Council’s argument that the Commissioner sought to circumvent the exclusive power in s7.11(1) of the EPA Act because there was no condition that was imposed requiring the applicant to dedicate the lot to the Council free of cost.

The Court rejected the argument that the Commissioner had no power under s4.16(1) of the EPA Act to grant development to the plan of subdivision on the following basis:

• the act of dedication of land free of cost is not ‘development’ (as defined in the EPA Act) for which development consent can be granted,
• the grant of development consent for the subdivision did not itself authorise or require the dedication of the lot, and
• the act of dedication only occurs by the operation of another act and statutory provision, in this case, by way of the operation of s 49(1) of the LG Act on the registration of the subdivision plan.

Key Takeaways

Preston CJ’s reasoning would also apply to dedication of a road by notation on a plan of subdivision (see s9 of the Roads Act 1993).

This is consistent with the approach taken by Commissioners of the Court in some recent Class 1 appeals: see Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094, and Hunter Region Property Pty Limited v Lake Macquarie City Council [2023] NSWLEC 1327. See our earlier posts in respect of the Urban Apartments case here.

Consent authorities need to be aware, however, of the distinction between the circumstances in this case and the Commissioner decisions referred to above, and those in the L & G Management case.

Preston CJ noted the distinction between:

• the granting of development consent to a plan of subdivision which notes an intention to dedicate land as a road or public reserve – such as in this case, and
• the granting of development consent to development of land where there is a requirement by the consent authority to dedicate land through a condition of consent, or where the dedication of land is proposed in a development application for example for the purpose of obtaining bonus floor space – such as in the case of L & G Management.

In respect of the second scenario, this case does not change the position that a consent authority can only require the dedication of land free of cost if it is pursuant to a condition of consent under s7.11(1) of the EPA Act, which is authorised by a contributions plan, or a planning agreement under s7.4 of the EPA Act.

The judgement discussed in this article can be read here: Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41.

If you wish to discuss the issues raised in this post, please contact Megan Hawley, Frances Tse or Taylor Finnegan.