Posted on November 23, 2016 by Megan Hawley

What Comprises a Development Consent?

The recent decision of Pasminco Cockle Creek Smelter Pty Limited (subject to Deed of Company Arrangement) v Lake Macquarie City Council [2016] NSWLEC 143 clarifies the extent to which the terms of a construction certificate can modify a development consent and the principles of construction of development consents.

In Pasminco the Court held that properly construed, conditions of a development consent required the construction of a pipe in a main road.

The development application had been accompanied by two stormwater management reports which referred to the proposed main road pipe. Those reports were referred to expressly in the consent. A condition of the consent then stated that further stormwater plans were required to demonstrate adequate stormwater treatment, and that all  stormwater detention works were to be constructed as part of the development under the consent.

As the further reports submitted after the consent was granted demonstrated that the main road pipe was necessary to adequately treat stormwater, the Court held that the effect of the stormwater management reports and the condition, was to require construction of the main road pipe.

The Court reached this view after acknowledging that conditions are not drafted with legal expertise and must be read so as to provide a practical result. The Court also clearly considered the reports to form part of the consent.

It was also argued that the construction certificate plans did not show the main road pipe, and that therefore, based on s80(12) of the  Environmental Planning & Assessment Act 1979 (EPA Act), the pipe did not form part of the consent.

Section 80(12) of the EPA Act provides that a construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent.

The submission that the construction certificate meant the pipe was not required was squarely rejected by the Court. Robson J explained the effect of s80(12) as follows:

s 80(12) applies only insofar as there is an inconsistency between the plans and specifications that form part of a construction certificate and those in a consent. If there is such an inconsistency, the plans and specifications in the construction certificate will prevail. This does not mean that a developer is exonerated from complying with a condition simply because the construction certificate does not make reference to it. Rather, the principle involves supplementing minor changes in plans contained within a construction certificate that are generally consistent with the relevant consent.

This interpretation limits the effect of s80(12), which does not in its terms refer to inconsistencies between plans in the construction certificate and plans in the consent.

The decision does reinforce that construction certificates should not be used as an alternative method for modifying a consent. Further, when determining what is required to be done under a consent, regard must be had to the whole of the consent, not just the plans and specifications which form part of the construction certificate.