Validity of conditions of consent

A condition of consent may be valid or invalid. Understanding the requirements for a valid condition of consent is important – an invalid condition can jeopardise an entire development consent.

Firstly, a consent authority must have the power to impose a particular condition of consent for it to be valid. Consent authorities are given the power to impose conditions of consent under section 80(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the “EPA Act“). This section allows the consent authority to impose conditions for, amongst other things, matters that were relevant to determining the development application, or matters relating to a development contribution.

Secondly, the condition must pass the test for validity. This is commonly referred to as the Newbury test, from a British case of the same name. The three requirements are set out as follows.

1. The condition must be for a planning purpose and not for any ulterior purpose.

A planning purpose is one that is imposed with reference to the relevant legislation and town planning instruments. It does not include reference to preconceived general notions of what constitutes planning.

In NSW, the relevant criteria is generally laid out in the EPA Act, including section 80A and section 79C.

2. The condition must reasonably and fairly relate to the development permitted.

This is a question of power of the consent authority impose the condition – the condition must relate to the development for which consent is being sought.

3. The condition must not be so unreasonable that no reasonable planning authority could have imposed it.

The test being whether the decision to impose the condition was so unreasonable that no reasonable authority could ever have come to it.

Invalid conditions

Councils, certifiers or applicants cannot simply “ignore” the operation of a condition if they think it is invalid. Conditions of consent are enforceable by law, and failure to comply with a condition of consent is considered to be a breach of the EPA Act.

If there are concerns about the validity of a condition, it is possible to informally discuss the condition with the consent authority, and then submit an application to review or modify the condition as appropriate.

The Land and Environment Court also has the power to consider conditions of consent. It is important to note that the Court will consider the development consent as a whole, and may decide that the condition and the development consent are so interrelated that if the condition fails, so too does the development consent. Bringing one condition to the Land and Environment Court could possibly risk the entire development consent being declared invalid.

If you are concerned that a condition of consent may be invalid, it may be appropriate to seek further advice before deciding on an appropriate path forward.

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.