Posted on May 26, 2011 by Lindsay Taylor

The overlap between s80A(1)(f) works conditions & s94 contributions conditions

A recurring issue for consent authorities, particularly councils, is whether development consent may be granted to development subject to a condition imposed under s80A(1)(f) of the EPA Act requiring a public work to be carried out by the developer if the work benefits the wider public or is the object of funding under the Council’s section 94 contributions plan or both.

The legal issue is the permissible scope of the consent authority’s power to impose such a condition having regard to what Spigelman CJ has described as the s94 ‘zone of exclusivity’ (see Fairfield CC v NS Olivieri Pty Limited [2003] NSWCA 41 at 9).

The legal issue arises irrespective of whether a council has adopted a s94 plan that funds the work required to be carried out by the developer.

These issues have most commonly arisen in relation to conditions requiring developers to carry out road, drainage or landscaping works but are not limited to such works.

Section 80A(1)(f) authorises a condition of development consent to be imposed if ‘it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent.’

Section 94 authorises a condition to be imposed requiring the payment of a monetary contribution or the dedication of land free of cost ‘if a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area’.

The validity of conditions imposed under s80A(1)(f) and s94 rest upon compliance with the Newbury Test (see Newbury DC v Secretary of State for the Environment [1981] AC 578), which requires that a condition of development consent must 1) be for a planning purpose and not for any ulterior motive, 2) fairly and reasonably relate to the subject development, and 3) not be so unreasonable that no reasonable planning authority could have imposed it.

It is well established that s94 has an exclusive field of operation (see Fitch v Shoalhaven CC (1987) 67 LGRA 165).

This means that any development consent condition purportedly imposed under s80A(1)(f) requiring work to be carried out that primarily benefits the wider public would be unlawful (see Olivieri). This is because such a condition imposes a financial obligation on the developer that is only permissible by means of a condition imposed under s94.

However, a condition under s80A(1)(f) is not unlawful merely because the work required to be carried out is a public amenity or public service if the work has a sufficiently close connection with the subject development in the sense that the development directly requires the work or benefits from it and it is fair and reasonable in the circumstances of the case (see Olivieri).

In such circumstances, the s80A(1)(f) condition will not be invalid merely because the wider public derives a collateral benefit from the work.

Nor will it be invalid merely because a s94 contributions plan funds the work required to be carried out by the condition.

Where a s94 plan applies, however, it would be unlikely that the developer could be lawfully required to bear the full cost of carrying out the work. The Council would ordinarily be required to contribute to the cost of the work by applying its s94 funds towards the proportion of the cost of the work that represents the benefit to the wider public or by providing the developer with a commensurate s94 credit.