HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND ...

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HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND ENFORCEABLE The legal perspective

15 May 2013

Presenter:

Michael Leong Partner

8832184/1

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FORMAT

• Part 1 – Rules for drafting lawful conditions.

• Part 2 – Rules for interpreting conditions.

HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND

ENFORCEABLE 15 May 2013

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PART 1: RULES FOR DRAFTING LAWFUL CONDITIONS



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RULES FOR DRAFTING LAWFUL CONDITIONS

Lawful conditions need to satisfy:

• The statutory tests in SPA; and

• The common law tests established by the Courts.



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Section 345 of the SPA sets out the current test as follows:

RULES FOR DRAFTING LAWFUL CONDITIONS STATUTORY TESTS



Conditions must be relevant or reasonable

A condition must:

(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a

consequence of the development; or

(b) be reasonably required in relation to the development or use of premises as a consequence of the

development.

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RULES FOR DRAFTING LAWFUL CONDITIONS STATUTORY TESTS “First limb” - Relevance test

• In relation to the test of "relevance" in the first limb, the Courts have said:

"It may well be that a condition which is in no proper sense of the word "required" by a subdivision is

nevertheless relevant ...as falling within the proper limits of a local authority's functions under the Act

....as imposed to maintain proper standards in local development ........ imposed in the interests of

the rational development of the area in which the subdivision is located.”:

Proctor -v- Brisbane City Council.

• The qualification on the test of "relevance” is that even if the condition is

relevant, it must not be an unreasonable imposition on the development:

Delfin Property Group Pty Ltd -v- Thuringowa City Council and Nelson -v-

Gold Coast City Council.



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“Second limb” - Reasonably required test

RULES FOR DRAFTING LAWFUL CONDITIONS STATUTORY TESTS



ln relation to the test of "reasonably required" in the second limb, the Courts

have said:

"..the local authority, in deciding whether a condition is reasonably required by

the subdivision, is entitled to take into account the fact of the subdivision and the

changes that the subdivision is likely to produce.. .and to impose such

conditions as appear to be reasonably required in those circumstances..':

Cardwell Shire Council-v- King Ranch Australia Pty Limited.

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RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS



Meriton Apartments Pty Ltd

-v-

Minister for Urban Affairs & Planning

Drafting Rule 1 –

A condition must be for a legitimate

planning purpose.

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Drafting Rule 2 –

A condition must be final, in that it

must not defer an important aspect

of the approval for future

consideration.



McBain -v- Clifton Shire Council

Carter -v- Redland Shire Council

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Cox

-v-

Chief Executive, Department of Main

Roads & Anor

Drafting Rule 3 –

A condition must not be vague or

uncertain

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Drafting Rule 4 –

A condition must not require

onerous supervision by the relevant

authorities.



Westfield Management Ltd

-v-

Pine Rivers Shire Council & Anor

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Barakat Properties Pty Ltd

-v-

Pine Rivers Shire Council & Winn

Contrast with “part refusal powers”:

SLS Property Group P/L v Townsville

City Council & Anor; Catchlove & Ors

v Townsville City Council& Ors and

in Metroplex Management P/L v

Brisbane City Council & Ors

Drafting Rule 5 –

A condition cannot modify a

development, such that it results in

a different development than was

applied for by the applicant.

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Drafting Rule 6 –

An unlawful condition cannot be

made lawful because it is accepted

by the applicant.



Hammercall Pty Ltd

-v-

Gold Coast City Council & Anor

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Drafting Rule 7-

A condition cannot require an indemnity.




Galandon Pty Ltd -v- Narrabri Shire Council

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Drafting Rule 8 –

A condition can only require the

preservation of land for future major

road infrastructure if the

infrastructure is recognised in the

planning document in a definite way.



Australian Retirement Homes Limited

-v-

Pine Rivers Shire Council

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Drafting Rule 9 –

A condition cannot create an unlawful fetter on the future exercise of

Council’s discretion.




BM Carr Holdings atf The Carr Family Trust

-v-

Southern Downs Regional Council & Anor

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Drafting Rule 10 –

A condition can prevent a use

commencing until certain criteria are

satisfied.



KCY Investments (No.2) Pty Ltd

-v-

Redland City Council

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A condition can be used to establish a trial period to determine how the use

will operate, if objective criteria are used.




Wilhelm -v- Ipswich City Council & Anor (No.2)

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A condition can be used to limit the

type of use which is approved.



Newman & Ors

-v-

Brisbane City Council & Ors

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PART 2: RULES FOR INTERPRETING CONDITIONS



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RULES FOR INTERPRETING CONDITIONS

Interpretation Rule 1

Any uncertainty should be construed in favour of the landowner.



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A sensible rather than legalistic approach should be adopted in

interpretation.

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A condition should be interpreted without reference to extrinsic material

except in very limited circumstances.



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A condition must be interpreted in accordance with its written terms and

not what the parties intended.

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An explanatory statement or guideline may be considered in interpreting a

condition.



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A condition must be construed in the context of the approval as a whole

and not in isolation.

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CONCLUSION



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THANK YOU



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