Posted on May 22, 2024 by Sue Puckeridge and Bianca Crapis

REMINDER: Deferred commencement conditions cannot overcome issues relating to the power to grant development consent

Both consent authorities and applicants frequently seek to address adverse impacts arising from a proposed development by way of deferred commencement conditions under s4.16(3) of the Environmental Planning and Assessment Act 1979 (EPA Act). While this may be a practical way to resolve concerns, careful attention needs to be given to ensure that deferred conditions of consent are not used to overcome an issue that goes to the power of the consent authority to grant consent.

The power of a consent authority to impose a deferred commencement condition is provided at s4.16(3) of the EPA Act, which provides that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition.

In PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 (PC Infrastructure), Land and Environment Court of NSW considered limitations on the use of deferred commencement conditions..

Background

PC Infrastructure involved an application for development consent for a service station. One key issue for consideration was whether the Court could impose a deferred commencement condition to satisfy the jurisdictional prerequisites of s2.119(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) dealing with access to the development.

The site in question had a frontage to the Sturt highway, a classified road.  A 15m wide right of way (ROW) existed at the rear of the Site which was reserved for cases of emergency. Access to the ROW was available from a public road connecting to the Sturt Highway. 

The Court considered the question whether consent could be granted subject to a deferred commencement condition in order to address the ability of vehicles over 12.5m to turn left into the Site.

The proposed development allowed for vehicles heading in a westerly direction along the Sturt Highway to turn right into the proposed service station, but did not permit right turns out of the site by the drivers of vehicles who may wish to continue heading in a westerly direction along the Sturt Highway. This resulted in an increased risk that vehicles would carry out unsafe manoeuvres on the classified road.

SEPP Transport and Infrastructure

Section 2.119 of SEPP Transport and Infrastructure applies to land that has a frontage to a classified road.  It requires the consent authority to form opinions as to matters identified in s2.119(2) prior to the grant of consent to a development application on such land.

Relevantly, s2.119(2)(b) provides:

(2)  The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

Was s2.119(2)(b) satisfied?

In considering s2.119(2)(b), the Court in PC Infrastructure was not satisfied that the evidence demonstrated that the design of the vehicular access would not adversely affect the safety, efficiency and ongoing operation of the Sturt Highway.  The inability of the Court to be satisfied on this section would have prevented the grant of development consent unless the issue could be addressed by the imposition of a deferred commencement condition of consent.

Could s2.119(2)(b) be addressed by a deferred commencement condition?

The applicant sought to deal with s2.119(b) of SEPP Transport and Infrastructure through the imposition of a deferred commencement condition which, in general terms proposed that unless the Council is satisfied that left-turn access is demonstrated to be consistent with AS2890.2:2018 following the provision of further information, the diesel bowsers and canopy along with the B-Double parking would be deleted and access to the Site would be restricted to light vehicles and rigid trucks no longer than 12.5m.

The Court’s attention was drawn to various authorities that support the proposition that conditions of consent may satisfy deficiencies regarding the merit considerations pursuant to s 4.15 of the EPA Act at the time of granting consent (s 4.15. 4.16 and 4.17 of the EPA Act) but they cannot be used to deal with the satisfaction of jurisdictional prerequisite.  In particular, the Court had regard to the Court’s decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 and the need to be able to evaluate and assess matters of impact that are directly related to the development.

The Court found that the proposed deferred commencement condition would result in works which would have impacts that could properly be held to be impacts of the proposed development.  Although the Court has the power to impose a deferred commencement condition pursuant to ss 4.16 and 4.17 of the EPA Act, that power only exists if the Court has the power to grant a consent. A deferred commencement condition could not be used to satisfy the jurisdictional prerequisite set out in s2.119(2).  Satisfaction on the matters set out in this section was required at the point in time when a determination to grant consent is being made.

Take away

Where a proposed development is generally acceptable and all but one issue is resolved, it can be tempting to address the outstanding issue by way of the imposition of a deferred condition of consent.  This case is a reminder that whilst deferred commencement conditions are occasionally imposed by consent authorities, they cannot validly be deployed to address matters of a jurisdictional nature which require satisfaction prior to the granting of consent. 

The Court’s decision in PC Infrastructure does not create new law, but it is a caution for consent authorities and applicants that deferred commencement conditions should not be sought to defer assessment of matters essential to the development.

The judgment in PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 can be accessed here.

If you wish to discuss anything in this article, please leave a comment below or contact Sue Puckeridge on 02 8235 9702.