Can I challenge a condition of consent?

You can, but you need to be careful in how you go about it.

If your development application has been determined by way of a consent, the council issuing the consent will usually apply conditions. The conditions need to satisfy certain criteria if they are to be valid.

The criteria for valid consent conditions was set out in the English case of Newbury District Council v Secretary of State for Environment [1981] AC 578 and are referred to as the ‘Newbury Principles’. They provide that conditions of consent must:

1. be imposed for a planning purpose;
2. fairly and reasonably relate to the development the subject of the consent; and
3. be reasonable.

If you consider that a condition of consent is invalid, you may have the question determined by the Land and Environment Court through judicial review proceedings. The Court will determine whether the condition of consent is valid. If it is found that the condition is not valid, an order may be made that the condition does not apply.

However, it is important to understand the distinction between judicial review proceedings and merit review proceedings. Judicial review takes place before a judge. Merit review, will usually take place before a Commissioner of the Court.

When you make an application for a merit review, you are commencing Class 1 proceedings (see our article on the Class 1 process here). An appeal relating to the merits of the development brings the entire consent under review and may lead to a worse outcome if other, beneficial conditions of consent, are also removed during that process. Or worse, your could lose your consent entirely.

If you are concerned about a condition of your consent, contact us and we can advise you on the appropriate course to take.