How should I decide? Development assessment and conditions by Sarah Hausler

Abstract

The power to impose conditions on a development approval is a critical tool for developers, assessment managers, referral agencies and the community. Conditions can be the difference between an approval and a refusal; between a profitable development and a non-viable development; and between a great community outcome and a blight. The law about conditions of a development approval is well developed and has not substantially changed (other than for infrastructure conditions) in decades. However, this does not mean that imposing and implementing effective conditions is easy. The role of conditions in securing approval or refusal of a development application is now even more important under the Planning Act 2016. The rules for deciding code and impact assessable development applications have changed substantially with the commencement of the Planning Act 2016. For code assessments, it’s a return to the presumption in favour of approval, with some new tweaks that puts discretion and conditions in the spotlight. For impact assessment, it is a move away from a rigid analysis of conflicts with individual assessment benchmarks and grounds supporting the development, to a more holistic and flexible application of planning documents and discretion. The transition period for development applications lodged under the now repealed Sustainable Planning Act 2009 is coming to an end. Most development applications before Councils are now assessable under Planning Act 2016, and the Planning and Environment Court is now deciding cases under Planning Act 2016, providing guidance about the application of the new development assessment rules. This presentation will provide a practical overview of the law about conditions of approval and provide insights about imposing conditions under the Planning Act 2016. The presentation will provide examples through case law and direct experience.