In a recent judgment, the NSW Land and Environment Court clarified some important considerations that must be adhered to when drafting and defending conditions of consent. Here are five lessons every local council should consider.

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1. Avoid conditions that restate existing laws

A recurring problem is imposing conditions that require compliance with laws already in place, such as biosecurity regulations. The Court noted that these conditions add no value and risk being struck down.

Key Tip: Focus on conditions that add clarity, enforceability, or a unique obligation that wouldn’t otherwise apply under existing laws.

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2. Dedication and maintenance of swales and parks are non-negotiable

The Court has little sympathy for councils attempting to avoid the dedication and maintenance of public infrastructure such as bioswales and parks. The Court has rejected arguments in relation to a lack of resources to manage assets, emphasising that councils have a fundamental responsibility to manage public infrastructure. The Court has stated that shifting this burden to private community associations risks inequity and poor outcomes.

The Court has further noted that residents of new developments deserve the same level of public service and amenity as other ratepayers, emphasising the importance of equity in council decision-making.

Key Tip: if responsibility is required for maintaining public infrastructure, ensure detailed conditions outline operational and management plans to ensure long-term functionality and community benefit.

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3. Deferred commencement conditions – use sparingly

While deferred commencement conditions can be useful, the Court has warned against their overuse. For example, a condition requiring a bridge safety assessment was deemed by the Court to be better suited as a pre-construction requirement rather than a deferred commencement.

Key Tip: Reserve deferred commencement conditions for critical issues that must be resolved before consent takes effect, and use operational conditions for pre-construction checks.

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4. Management plans need clear obligations

The Court has supported the inclusion of management plans, such as Vegetation and Fauna Management Plans, but only when the obligations within those plans were clear and enforceable. For example, the inclusion of biennial monitoring requirements ensured ongoing attention to environmental impacts.

Key Tip: Draft conditions that set clear, measurable, and time-bound obligations within management plans to avoid ambiguity.

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5. Buffer zones and environmental protection need precision

The Court favours buffers that are based on expert recommendations and tailored to the site’s specific needs. Buffer widths and vegetation types should be carefully considered and included in the approved conditions.

Key Tip: when imposing conditions for environmental buffers, rely on expert advice, specify dimensions, and outline management strategies for ongoing protection.

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Conclusion

The Court has underscored the importance of drafting precise, necessary, and enforceable conditions of consent. The above considerations provide a valuable guide for councils in navigating the complex task of drafting and defending conditions. They underscore the importance of clarity, precision, and fairness in ensuring conditions are enforceable, effective, and beneficial to the community. By incorporating these insights, councils can strengthen their decision-making processes and build confidence in their approach to planning and development matters.

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You can access the judgment below which provides further information and insights into the considerations described in this article.