Posted on July 25, 2017 by Frances Tse

Conditions of consent requiring VPA compliance

A Commissioner of the Land and Environment Court has held that a condition of development consent that required a voluntary planning agreement (‘VPA‘) which had already been entered into to be complied with before the issuing of a strata subdivision certificate, was unnecessary.

In 2009, the  relevant council granted development consent for the construction of a five storey residential flat building (‘Building Consent‘). The Building Consent required certain stormwater drainage works to be carried out before the issue of an occupation certificate.

A VPA to which the Building Consent related was entered into on 19 March 2014 and required the developer to dedicate land and carry out the same stormwater drainage works before the issue of an occupation certificate.

In 2016, the developer of the site applied for development consent for the strata subdivision of the building. Consent was granted subject to conditions including:

• Condition 9 which required the VPA to be complied with prior to the release of the strata subdivision certificate, and
• Condition 10 which required the occupation certificate associated with the Building Consent to be issued prior to the release of the strata subdivision certificate.

The developer argued that conditions 9 and 10 should not be imposed because, amongst other things, they duplicated the existing obligations in the VPA and would result in additional and unnecessary delay to the registration of the strata plan and completion of the sale of the units.

The Council did not oppose the removal of the conditions but submitted that the conditions were appropriate in that they created a set of parallel obligations to those arising under the Building Consent and the VPA.

The Commissioner considered that conditions 9 and 10 were unnecessary because compliance with the Building Consent and VPA were already secured because:

• the VPA was registered on title,
• the VPA required the stormwater works to be completed before the issue of the occupation certificate and s109H(2) of the EPA Act operated to prevent an occupation certificate being issued until the VPA was complied with,
• the Building Consent also required the stormwater works to be completed before the issuing of the occupation certificate, and
• the sale of the strata units created by the strata subdivision could not be completed unless the occupation certificate was issued.

In those circumstances, it is not surprising that the conditions were considered unnecessary.

The case is consistent with the attitude of the Court to conditions requiring covenants on title to be registered. The Court is reluctant to impose such conditions if the outcome sought to be achieved by the condition and covenant is already achieved under the planning law, such that the condition and covenant simply impose an additional layer of protection (see our blog here in that regard).

Many councils impose conditions requiring VPAs to be complied with. If a consent is granted before a VPA is entered into, and an offer to enter into the VPA has been made by the developer, then it is appropriate to impose a condition requiring the VPA to be entered into (and such a condition is authorised by s93I(3) of the EPA Act).

However this case suggests that when the VPA is already on foot, and particularly if it is registered on title (such that it runs with the land and binds subsequent landowners) a condition requiring compliance with the VPA may not be considered appropriate or necessary by the Court.

The case is Jomasa Pty Limited v Council of the City of Ryde [2017] NSWLEC 1262 which can be found here.