Posted on November 15, 2011 by
Validity of a condition development consent – underground cables
A recent decision of the NSW Court of Appeal – Botany Bay City Council v Saab Corp Pty Ltd  NSWCA 308 – held that a condition of development consent requiring a developer to place telecommunications and electricity cables underground (Cabling Condition) was valid and enforceable when assessed by reference to the ‘scope and purpose’ of the statutory power under which it was imposed, as well as its practical effect.
A development consent for the erection of residential flat buildings was granted by Council to Saab Corp Pty Ltd and Others (respondents). Council claimed that the respondents had breached the Environmental Planning and Assessment Act 1979 (EPA Act) by failing to comply with the Cabling Condition.
The Cabling Condition was imposed pursuant to a clause in the relevant Development Control Plan (DCP) which provided that “all service cables in the street adjacent to …any development site …to be placed underground.”
The Cabling Condition provided, in short, that the existing above ground electricity and telecommunications cables in adjacent streets should be placed underground at the developers’ expense. The issue was that the respondents had only placed cables underground on the side of the streets adjoining the development, and not the other side of those streets. Council asked the Court to enforce that condition.
The respondents claimed that the Cabling Condition was invalid for lack of certainty and that it was unreasonable. They argued that if interpreted literally, the Cabling Condition would require all cables in the adjoining streets to be placed underground for their entire length. This would be an enormous task and was unreasonable.
The Court of Appeal held that the Cabling Condition had to be construed and its validity assessed by reference to the scope and purpose of the statutory power under which it was imposed. Where there could be more than one interpretation of the condition, a construction which does not exceed that power is preferred (Interpretation Act 1987, s32).
The statuory authority for the imposition of the Cabling Condition was s80Aof the EPA Act. Section 80A enables the imposition of conditions relating to any matter of relevance under s79C(1) of the EPA Act, which, in this case, included the DCP provision requiring undergrounding of cables.
The Court therefore held that the DCP provision defined the outer boundaries of the statutory power for imposition of the condition.
The Court then interpreted the reference in the condition to ‘the street’ as the full width of the street, and found that properly construed the condition required undergrounding of cables on both sides of that part of the street adjacent to the development site.
The Court stated that a ‘modicum of common sense’ needed to be applied to the intepretation of the condition, and rejected the respondents’ interpretation that it would, read literally, require undergrounding of cables along the full length of the street, as absurd.
In rejecting the argument that the Cabling Condition was void for uncertainty, the Court referred to the line of authority to the effect that instruments such as consent conditions must be construed to practical effect, bearing in mind that they are not drafted with legal expertise.
The Court held that the Cabling Condition properly construed did not fall outside the power in the EPA Act pursuant to which it was imposed.
Importantly, Basten JA stated that improvement to the amenity of an area immediately adjacent to a development is a proper subject of an approval, and noted that in earlier cases conditions requiring upgrades to roads and bridges away from the development site (and not used exclusively by residents of the development site) were held to be the proper subject of an approval.
The case provides helpful reminder of the manner in which conditions of consent should be construed.
It is also supports conditions which whilst related to the relevant development, also provide broader public benefits.