Conditions of development approval specify how a development is to be carried out, usually with the intent to protect or reduce impacts on the environment and amenity of the surrounding area and to ensure that the proposed development is adequately serviced by all necessary civic infrastructure. Conditions generally consist of an action to be carried out and the timing for that action to be undertaken. If neither reasonable nor relevant, conditions may be changed or removed.
This blog outlines the rules under the Sustainable Planning Act 2009 (SPA) for setting conditions on development approvals, so read on if you wish to better understand the logic behind and the limits to development approval conditions.
Conditions and the Viability of a Project
Development approvals and their conditions are tied to the land, regardless of any change in ownership (remain with the land, not the applicant). Development approval conditions bind any persons (individual or company) who undertake any work or carry out any use under the development approval. It is an offence to fail to comply with a development condition or breach a development condition. All Councils throughout Queensland generally have a development compliance unit who is tasked to enforce development offences by investigating possible breaches. The consequences of unlawful development may include:
- court actions;
- the requirement to lodge a further development application to obtain approval; or
- ceasing to carry out the use of the premises.
It is therefore prudent for development proponents to ensure that conditions imposed on a development approval are appropriate for the type and scale of development and to be mindful of the statutory obligations of the conditions. After all, the difference between an approval and a refusal, or the feasibility of a project might come down to the obligations of the conditions imposed.
The SPA sets out the rules and tests that Assessment Managers (typically Councils) are required to follow when imposing conditions. If an applicant wishes to challenge a condition, their arguments (representations) should be based around these rules and tests.
The SPA also allows negotiation of conditions of a development approval within 20 business days after receiving a Decision Notice. An applicant can make representations to Council requesting a ‘Negotiated Decision Notice’. If Council does not agree with the representations, the final avenue to have conditions changed or removed is by way of appeal to the Planning and Environment Court, within the applicant’s appeal period.
Relevant or Reasonable Test
The starting point when considering the lawfulness of development approval conditions is the ‘relevant or reasonable’ test of the SPA which states (emphasis added):
(1) A condition must—
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in relation to the development or use of premises as a consequence of the development.
(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.
The relevant or reasonable test is not a new concept, but has existed in a number of different iterations under the superseded planning legislation (i.e. Local Government (Planning & Environment) Act 1990 and Integrated Planning Act 1997) and therefore a substantial body of case law exists relating to the lawfulness of conditions. In its simplest form, this statutory test requires a lawful condition to satisfy either the first subclause and be ‘relevant but not unreasonable’ or the second subclause and be ‘reasonably required’. The two subclauses (a) and (b) are alternatives and only one must be satisfied for a condition to be lawful. Therefore, conditions need to be considered in light of the facts and circumstances of the development being assessed, because ‘relevant’ and ‘reasonable’ will be different in each circumstance depending on a number of factors including, but not limited to, site attributes, constraints and the nature and scale of the development. As a result, the use of standard conditions is somewhat limited to only issues/requirements that apply to all development types, scale and locations.
Things Conditions May do
The SPA specifies how conditions may be used:
(1) A condition may—
(a) place a limit on how long a lawful use may continue or works may remain in place; or
(b) state a development may not start until other development permits or compliance permits, for development on the same premises, have been given or other development on the same premises, including development not covered by the development application, has been substantially started or completed; or
(c) require compliance with an infrastructure agreement relating to the land; or
(d) require a document or work to be subject to compliance assessment; or
(e) require development, or an aspect of development, to be completed within a particular time; or
(f) require the payment of security under an agreement under section 348 to support a condition mentioned in paragraph (e).
(2) A condition imposed under subsection (1)(c) is taken to comply with section 345.
While this is not an extensive list and certainly not limited to the items listed, it does provide a useful guide to understand the types of matters that may be dealt with by conditions. Conditions dealing with the matters listed in the SPA must also still satisfy the relevant or reasonable test.
Things Conditions Must Not do
The SPA also sets out matters that cannot be imposed by conditions:
A condition must not—
(a) be inconsistent with a condition of an earlier development approval or compliance permit still in effect for the development; or
(b) other than under chapter 8, part 2 or 3— require a monetary payment for the establishment, operating or maintenance costs of, or works to be carried out—
(i) for development infrastructure; or
(ii) for the imposition of a condition by a State infrastructure provider— infrastructure or works to protect or maintain the infrastructure operation; or
(c) state that works required to be carried out for a development must be undertaken by an entity other than the applicant; or
(d) require an access restriction strip; or
(e) limit the time a development approval has effect for a use or work forming part of a network of community infrastructure, other than State-owned or State-controlled transport infrastructure; or
(f) require a person to enter into an infrastructure agreement.
Common Law Tests
The Courts have established through case law a number of rules to determine if a condition is lawful. In his 2009 paper titled “Drafting and Negotiating Conditions for Approval”, Mr Michael Leong – Partner Corrs Chambers Westgarth Lawyers identifies ‘8 Rules of Thumb’ that should also be considered in addition to the statutory tests in the SPA:
- Planning Purpose: A condition must be for a planning purpose and not an ulterior purpose.
- Finality: A condition must be final, in that it must not defer an important aspect of the approval for future consideration (i.e. the assessment manager is bound to decide the application fully and may not defer its decision on an essential matter or delegate its power to another person or entity to determine.
- Ambiguity: A condition must not be vague or uncertain or require a third party to take an action. It is noteworthy that case law demonstrates an interpretation which favours a developer over Council in such circumstances.
- Enforcement: A condition must not require onerous supervision by the relevant authority. A condition that is difficult to enforce is unlikely to reach its objectives and therefore this is both a legal rule and a practical necessity.
- Materially Different Proposal: A condition must not change a development proposal to be a materially different proposal. The ‘minor change’ test of the SPA also applies in deciding to impose a condition (i.e. a condition can only modify a proposed development to the extent it satisfies the minor change test).
- Acceptance by Applicant Does Not Make a Condition Lawful: An unlawful condition cannot be made lawful because it is accepted by the applicant.
- A condition Cannot Require Indemnity: An assessment manager cannot seek an indemnity against liability in exchange for the granting of a development approval.
- Limitation on Preservation of Land for Future Major Road Infrastructure: A condition can only require the preservation of land for future major road infrastructure if the infrastructure is recognised in the planning scheme in a definite way.
The Take Away
You should now have a better idea of the importance and significance of conditions of a development approval. While this blog does not purport to substitute professional town planning advice, we have identified some noteworthy ‘take away’ points:
- A lawful condition must either be relevant but not an unreasonable imposition, or be reasonably required as per the statutory test in section of 345 of the SPA.
- As such, there is no such thing as standard conditions. While assessment managers will utilise standard conditions to gain efficiencies, each development approval must have the conditions tailored to the specific circumstances of the proposal being assessed.
- The SPA provides some guidance on the type of matters that can be conditioned and it outlines matters that may not be conditioned.
- A significant body of case law has been established to help interpret the rules about conditions.
- In addition to the statutory test and condition rules contained in the SPA, there are also common law tests to determine the lawfulness of conditions.
Clegg Town Planning routinely facilitates optimum outcomes for clients (Councils, applicants, submitters). This is achieved through advice about setting conditions, reviewing conditions, negotiating conditions, changing conditions and satisfying conditions. Contact us if you require advice or assistance with DA conditions.