Recent case – deferred commencement consent conditions

On 29 April 2020, Justice Preston, Chief Judge of the Land and Environment Court handed down an important decision. In Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, his Honour upheld an appeal against a decision of a Commissioner granting consent to development for the purposes of extensions to an existing seniors housing development.

The Council alleged six errors of law by the Commissioner and the Chief Judge upheld five of the grounds of appeal.

Clause 28(1) of the Seniors Housing SEPP provides as follows:

“(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.”

In this case the Commissioner granted consent subject to a deferred commencement condition requiring application for and approval of “sewer mains required to service the development”. 

Justice Preston concluded that the deferred commencement condition offended clause 28(1) of the SEPP in two respects:

• Firstly, the Commissioner could not be satisfied that the development will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewerage. For example, an application for connection to such services or facilities might not be granted.
• Secondly, the Commissioner’s satisfaction under clause 28(1) of the Seniors SEPP was required to be based on “written evidence” available to the Commissioner before exercising a power to grant consent. There was no such written evidence. The deferred commencement condition came into existence upon, and not before, the grant of consent whereas clause 28(1) required the Commissioner to be satisfied by the required written evidence before granting consent. As such the Commissioner was precluded from granting consent, including granting deferred commencement consent, to the development application.

The Chief Judge also found that the Commissioner:

• failed to consider relevant matters under the Sustainable Aquaculture SEPP
• failed to consider, in the absence of an acid sulphate soils management plan, whether relevant lands in a creek line would be managed so as not to cause environmental harm
• failed to form the (required) opinion that the development would not significantly impact upon relevant matters under the Coastal Management SEPP, and
• failed to understand the likely impact of civil works in a road reserve by granting consent subject to a deferred commencement condition and so deferring for later consideration “a complete environmental assessment of all [the relevant civil] works”.

It often happens that applicants for development consent will urge Councils to grant consent subject to a deferred commencement condition in the absence of a proper assessment of relevant aspects or impacts of a development. But as the Chief Judge has said – consistent with earlier authority – care must be taken to ensure that deferred commencement conditions are firstly, lawfully imposed and secondly, do not postpone the need for a proper consideration of the impacts of development before the grant of consent.

If you have any questions in relation to this article, please feel free to contact a member of our specialised local government team.