The judgment of Georges River Council v Eskander [2024] NSWLEC 98 provides insight into how courts approach requirements for adequate arrangements for essential services.

The Issue

The Georges River Council appealed against a Commissioner’s decision to grant development consent for a dual occupancy proposal at 12 Ogilvy Street, Peakhurst.

The development involved a primary dwelling with vehicular access to Ogilvy Street and a secondary dwelling requiring access via David Place. This access depended on going across a narrow strip of land owned by the Council, which separated the site from David Place.

The Council argued that clause 6.9 of the Georges River Local Environmental Plan 2021 (GRLEP) prohibited granting development consent unless adequate arrangements for vehicular access had been made. The Commissioner, however, granted consent with a deferred commencement condition, requiring the applicant to secure an easement over the Council land within 24 months to address access concerns. The Council contended this approach was legally flawed.

Judicial Reasoning

The Court overturned the Commissioner’s decision, finding legal error in the application of clause 6.9.

The key reasoning included:

1. Meaning of “adequate arrangements” – clause 6.9 requires that adequate arrangements for essential services, including vehicular access, must have “been made” before consent is granted. The Court emphasised that this requires objective and tangible proof of an arrangement, not speculative or contingent processes such as an application for an easement.
2. Deferred commencement condition – The deferred commencement condition imposed by the Commissioner relied on the outcome of separate easement proceedings. The Court determined that this approach was inconsistent with clause 6.9, as the required arrangements must exist at the time of granting consent, and not be contingent on future events.
3. Legal implications of clause 6.9 – the Court affirmed that clause 6.9 acts as a legal or “jurisdictional” precondition, meaning development consent cannot be granted unless the clause’s requirements are satisfied. The Commissioner’s reliance on the deferred commencement condition to address the clause’s requirements constituted an error of law.

Essential Services Clause in Case Law

The judgment explored prior case law to interpret clause 6.9 and similar provisions in other planning instruments:

• Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399 – This judgment specified “arrangements” as requiring an understanding or willingness between parties, such as agreements or plans that create a tangible relationship.
• Crighton Properties Pty Ltd v Kiama Municipal Council [2006] NSWLEC 297 – The Court clarified that “arrangements” must include tangible evidence, such as contracts or approvals, not speculative intentions. This case supported the need for demonstrable evidence of arrangements being in place.
• Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 – The Court found that deferred commencement conditions could not remedy a lack of compliance with essential services requirements at the time of granting consent. This case reinforced the principle that consent authorities must reach satisfaction based on existing arrangements, not future contingencies.

Key Takeaways on Clause 6.9

This judgment underscores the critical role of essential services clauses in development assessments. Clear, demonstrable arrangements for services like vehicular access are required, and there are limits to deferred commencement conditions when it comes to addressing such requirements. This judgment serves as a reminder to councils, developers, and practitioners to ensure compliance with essential services provisions before seeking or granting development consent.

Some key takeaways include:

1. Objective evidence – Clause 6.9 requires that adequate arrangements for essential services are demonstrable at the time of consent.
2. Deferred commencement conditions: These conditions cannot substitute for compliance with jurisdictional preconditions.
3. Lessons from case law: The judgment aligns with broader case law emphasising the importance of tangible and pre-existing arrangements in satisfying essential services requirements.

Further reading

The judgment can be accessed below.