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The terms of a development consent can have a significant impact on how a development is carried out and the extent of the use to which the land is ultimately put.
Additionally, if you fail to comply with the terms of a consent, the council may take enforcement action to compel compliance. Accordingly, how the terms of that consent are construed may be relevant to the lawfulness of your conduct.
The established principles were helpfully summarised by Biscoe J in Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17 (Reysson) at [21]-[28]:
- Consents must be construed fairly and liberally in context according to its written terms, having regard to the fact that a consent is enduring and will run with the land – they are not applicable only to the person who applied for the consent.
- Communication between the applicant for consent and the council does not form part of the consent, but may be relied on by the Court when considering the objective and physical circumstances of the development, including plans accompanying the development application and matters relating to title.
- Plans accompanying a development will not form part of the consent unless they are expressly or impliedly referred to in the consent, or the consent is meaningless or ambiguous without the aid of the plans.
- Consents should not be interpreted in the same way that acts of parliament are interpreted; they should be interpreted with a view to achieving a practical result. Conditions of consent are intended to achieve something substantial and, as such, should be construed to give effect to that intention and avoid uncertainty.
- Words used in a development consent are to have the meaning that the consent authority is objectively taken to have intended them to have. This is to be informed by grammar, context and the purpose of the consent.
Accordingly, Councils need to be careful in how they word their consents as the Court will imply significant meaning from the plain words of the consent and the objective meaning of those words.
If you would like to know more about consents, you can read our article on when you need a consent, or our article on challenging consents. You can also review our article on what to do if your application for consent is refused, the difference between an approval and a consent, as well as the Class 1 process.
If you need more information or help please contact us.
Lorri is a director of PDC Law. Lorri combines excellent technical expertise with a common-sense approach to best represent her clients. She is one of few Accredited Specialists in Commercial Litigation in the Illawarra and Shoalhaven. This accreditation is testament to Lorri’s expert knowledge and skill in dealing with commercial disputes. In 2019 Lorri was awarded Regional Lawyer of the Year by Women Lawyers Achievement Awards.
