Interpreting a condition of consent

A strict interpretation of development consents could lead to absurd consequences – and the Land and Environment Court knows it.

In Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd, Justice Pain outlined four principles of interpretation for conditions of consent:

(i) the aim is “to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions” of the development consent;

(ii) development consents are not legislation and understanding the meaning of conditions of consent needs to be “rationalised, in a practical and effective way”;

(iii) a development consent “is not personal to the applicant, but enures for the benefit of subsequent owners and occupiers”; and

(iv) any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject to.

If you are unsure about the meaning of a condition of consent, it may be best to speak directly to the consent authority, liaise with your accredited certifier, or seek legal advice.

If you would like legal advice, you can contact Alyce Kliese directly by clicking here.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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