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Challenging conditions of approval … what are my options? August 17, 2021

You have received your development approval from Council, but you are not happy with some of the conditions Council has imposed.  There are options available to challenge those conditions.   

The conditions of a development approval form an integral part of the development approval, together with the approved plans and documents.  Applicant’s should ensure that conditions of approval are appropriate for the nature of the proposed development in addition to the scale of the development. 

It is an offence to either fail to comply with a condition of a development approval or breach a condition of a development approval.  It is therefore important that applicants understand the legal consequences associated with the conditions Council has imposed on a development approval. 

The planning framework gives an applicant options in terms of challenging the conditions imposed on a development approval. 

Negotiated Decision Notice

The first of these options is the ability to make change representations to Council, during the appeal period about changing a matter in the development approval (usually conditions).  While this can be done during the appeal period (being 20 business days after the decision notice is received by the applicant), there is the ability to suspend the appeal period if more time is required.

If the Council is minded to agree with the change representations, it will issue a negotiated decision notice which will replace the original decision notice for the development application.  However, if Council does not agree with the change representations, Council must give the applicant a notice setting out its decision in respect of the applicant’s change representations. 

Your town planner will generally be able to assist with making change representations to Council.   

If Council does not issue a negotiated decision notice or if you remain unhappy with the conditions of approval you are still entitled to file Court proceedings as outlined below.  This option is where the lawyers come in.

Appeal against conditions

The second option available in terms of challenging conditions of approval is by filing a Notice of Appeal in the Planning and Environment Court.  The Notice of Appeal must be filed within 20 business days after the decision notice or negotiated decision notice is given to the applicant. 

The Notice of Appeal must set out the grounds of appeal.  Generally, with conditions appeals, it will be a matter of setting out why you consider that the particular conditions you wish to challenge are not:

  • relevant to, or a reasonable imposition on, the development or the use of premises as a consequence of the development; and / or
  • reasonably required in relation to the development or the use of premises as a consequence of the development.

The difference between Council approving or refusing a development application may ultimately come down to the feasibility of a project or development in light of the obligations imposed by the conditions of approval.  Sometimes the conditions of approval may impose such a large financial burden that it may render the proposed development virtually unviable.   

If you are considering your options regarding conditions Council has imposed on your development approval, please reach out to us to discuss the risks, costs and time involved in pursuing each option with our specialist Planning and Environment Lawyer, Sarah Day, at [email protected] or phone 3439 8880.  This is particularly so where you are considering commencing an appeal in the Planning and Environment Court against Council’s decision. 

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