Setting and enforcing clear conditions of consent

Monday, 31 August, 2015
A council alleged a certifier didn't ensure a stormwater detention system had been constructed in accordance with the approved plans. However, the council had written the conditions of consent in a way that gave the certifier some discretion in decision-making.

Lessons identified from this case

  • Councils must set clear and unambiguous conditions of consent, or may find them difficult to enforce.
  • Certifiers should take steps at each stage of development to clarify with councils any unclear conditions of consent, and/or required third-party approvals, to minimise the potential for later disagreement.

Case details

An application for a new dual occupancy development was approved by the council and the applicant then appointed a non-council certifier as the principal certifying authority.

Following construction, the council alleged the certifier didn't ensure the stormwater detention system had been built in accordance with the plans approved by the council.

Councils: set unambiguous conditions of development consent

The development consent issued by the council contained a number of conditions for the stormwater detention system.

Importantly, the consent noted that the stormwater plans approved by the council were conceptual in nature and not to be used for construction purposes.

Other conditions required detailed engineer's plans to be approved by the principal certifying authority before construction began on the stormwater system.

By setting such conditions, the council effectively relinquished full control over the detailed design and construction of the stormwater system. Therefore, the engineers had some discretion in preparing the detailed plans, as did the certifier in assessing and approving those plans.

Under section 109O of the Environmental Planning and Assessment Act 1979, and clause 161(1)(iii) of the Environmental Planning and Assessment Regulation 2000, conditions which require a council to be satisfied about stormwater drainage work may be met when the certifier is satisfied as to the work.

'Not inconsistent' test permits minor differences

Minor differences between the plans approved by council, and the detailed plans approved by the certifier, were deemed to fit within the 'not inconsistent' test applied by the certifier as required by legislation. The differences related to pit locations and the amount of detail shown on the plans.

The certifier inspected the completed stormwater system and found it satisfactory. In so doing, the certifier also had regard to certificates from the hydraulic engineer and plumber, as entitled to do.

The Board's findings

The Board determined that the certifier's actions were reasonable, given the broad scope of the consent conditions and the application of the 'not inconsistent' test. The allegation was therefore dismissed.

In conclusion

Councils: set clear conditions of consent and assist certifiers

Councils should set clear conditions of consent that identify any required third-party approvals so each party understands what is needed at each stage of development.

Unless a council sets clear conditions of consent, it may not have sufficient grounds for complaint if it later disagrees with a certifier's actions.

It is recommended councils also assist certifiers by providing written clarification of conditions when requested. This helps certifiers to interpret councils' intentions more accurately, therefore achieving better development outcomes.

Certifiers: options for clarifying unclear conditions of consent

Certifiers can take steps to clarify unclear conditions of consent, to help maintain harmony between parties in the development and reduce the potential for a complaint to be made to the Board about the certifier.

If unclear about a condition of consent, certifiers have a range of options such as:

  • contacting the council to request clarification of the condition in writing
  • advising the applicant to seek a section 96 modification to the consent to clarify the condition
  • asking their peers for advice or seeking independent legal advice
  • checking whether the matter is covered under section 109O of the Environmental Planning and Assessment Act 1979.

It is also important that certifiers carefully document their decision-making process to justify their rationale and actions.

Legislation cited

Links to more information