Posted on August 14, 2015 by 2

Principles for the interpretation of development consents

A recent case in the Land and Environment Court considers several principles by which development consents are to be interpreted.  While the case does not make new law, it provides a helpful overview for Councils and proponents alike as to how the Courts have interpreted development consents to date.

Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 (Lake Macquarie’ concerned civil enforcement proceedings relating to the use of land at Cooranbong for rural composting.  Council alleged that the use of the land as a composting facility was unlawful as the use was not authorised by development consents granted in the 1980s and was therefore in breach of the Environmental Planning and Assessment Act 1979.

In determining whether the use was in accordance with the development consents, Biscoe J referred to the following 7 principles which have been developed in previous cases (see [39] – [48]).

Principle 1 – Construed according to its terms

• Having regard to its enduring nature and the fact that it is not personal to the applicant, a development consent is to be construed according to its terms.
• The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner.

Principle 2 – Practical results

• A development consent is to be construed to achieve practical results and not as a document drafted with legal expertise.

Principle 3 – Clarity

• Any lack of clarity or certainty in a development consent is the responsibility of the consent authority and it must take the consequences.

Principle 4 – Extrinsic material

• A development consent should generally be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it.
• Communications between the parties do not form part of the matrix relevant to construction.

Principle 5 – Incorporated documents

• The approval of a development application does not necessarily have the effect of incorporating everything stated in the application.
• Plans and other documents may be incorporated in a development consent expressly or by necessary implication.
• A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will be expressly incorporated in the consent.

Principle 6 – Plans

• Where a development consent allows for development to proceed ‘generally in accordance with’ approved plans, some latitude and deviation from the approved plans is permissible provided such deviation or latitude is of a relatively minor nature.
• The question whether development is ‘generally in accordance’ with approved plans is one of fact and degree in the context of the overall development. In Lake Macquarie, the fact that the plans were illustrative and rudimentary compared with current plans was a factor which the Court took into account.

Principle 7 – Read as a whole

• A development consent must be read as a whole and the ordinary rules of construction and principles of interpretation apply as with any other statutory instrument.
• The effect of reading a consent as a whole may be to  depart from the material and ordinary meaning of the words of one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument.

The principles set out above demonstrate the importance of clearly specifying within the notice of determination, the development for which consent is being granted and the conditions upon which the development consent is to operate.  They should be considered by a Council when preparing a development consent and an applicant when making any submission in respect of any proposed development consent so as to best ensure that the terms and conditions are unambiguous, enforceable and clearly communicate the limitations, requirements and prohibitions proposed by the development consent.