Key points
- Clause 6.9 of the Georges River Local Environmental Plan 2021 (GRLEP) provides that a Development Application (DA) must not be granted unless the consent authority is satisfied that essential services, including vehicular access, are available or that adequate arrangements have been made to make them available when required.
- The Land and Environment Court recently delivered a judgment which provides guidance as to when a deferred commencement condition may not be sufficient to address the lack of availability of an essential service.
- The case has relevance to councils which have a similar jurisdictional requirement in relation to essential services in their LEP as it will affect whether or not a deferred commencement condition may lawfully be imposed to address the lack of an essential service.
- Similarly, the case has relevance to developers proposing developments in LGAs which have such a jurisdictional requirement, as it may affect the prospects of a given development being approved, if essential services are not yet available.
Key findings
HWLE recently advised Georges River Council (Council) on a successful s 56A appeal in the Land and Environment Court (Court) against the decision of a Commissioner of the Court to grant consent to a development application (DA) in Peakhurst NSW subject to a deferred commencement condition.
The DA sought consent for the demolition of existing buildings on site and the construction of a detached dual occupancy development along with a pool. Separate vehicular access was sought for the second dual occupancy dwelling, which would have required the grant of an easement over Council’s land. Council had resolved not to grant the easement and so the applicant for the DA commenced separate proceedings in the Court seeking the imposition of the easement (s 40 proceedings). At the time of the Commissioner’s determination, the s 40 proceedings were undetermined.
The Georges River Local Environmental Plan 2021 (GRLEP) provides at cl 6.9 that consent must not be granted to a DA unless the consent authority (in this case, the Court) is satisfied that certain essential services, including vehicular access, are available or that adequate arrangements have been made to make them available when required.
The grant of the DA was the subject of a contested hearing before the Commissioner at first instance. Council opposed the DA at hearing on a number of grounds, including that the Court had no jurisdiction to grant the DA in circumstances where cl 6.9 was not satisfied. Council’s submission was that the Court could not be satisfied that vehicular access was available or that adequate arrangements for vehicular access had been made for vehicular access in circumstances where:
- the required easement for vehicular access was not in place and was opposed by the land owner (Council); and
- the s 40 proceedings to impose the easement were undetermined.
In her determination at first instance, the Commissioner granted the DA and imposed a deferred commencement condition requiring the applicant to submit adequate written documents and plans to address the issue of the required easement for vehicular access so that lawful vehicular access would be available prior to the consent becoming operative.
On appeal, Council submitted to the Court, in summary, that the imposition of a deferred commencement condition in the circumstances could not overcome the requirement for the Court to form an opinion of satisfaction as to either the existence of the easement or adequate arrangements for same.
Justice Robson agreed with the Council’s submissions and found that the Commissioner misdirected herself by substituting for the requirement in clause 6.9 a different (and lesser) requirement such as the commencement of a process (the s 40 proceedings) by which an easement might be obtained. Justice Robson therefore upheld Council’s appeal, setting aside Commissioner Gray’s determination to grant the DA. A link to the Court’s full judgment in Georges River Council v Eskander [2024] NSWLEC 98 is below:
Georges River Council v Eskander – NSW Case law
Implications
Some key relevant implications include the following:
- For Councils/ planning panels/ consent authorities: the case provides guidance as to what amounts to ‘adequate arrangements’ for the purposes of essential services clauses, and as to when it is or is not appropriate to impose a deferred commencement condition in relation to the availability of an essential service.
- For applicants/ developers: the case provides guidance as above and indicates that care should be taken before making a development application proposing a DA in circumstances where essential services for that DA may not be available at the time that approval is sought – as a deferred commencement condition may not be available to overcome that lack of availability.
If you have any questions about the judgment, or the issues it raises, please contact our Planning, Environment and Government Team.
This article was written by Jane Hewitt, Partner and Sarah Wilson, Senior Associate.
