Planning Approval Conditions

The recent decision of the State Administrative Tribunal (SAT) in Ursula Frayne Catholic College and Town of Victoria Park(Ursula Frayne), provides useful guidance on the SAT’s position in relation to proposed conditions of development approvals. In particular, the SAT explored circumstances where proposed conditions may be inappropriate and ultimately lead to an unsuccessful outcome.

This case emphasises that careful attention should be paid to how much a development application depends on any proposed conditions of approval. Key questions to consider are whether the proposed conditions are appropriate and in line with the planning framework, whether the conditions confine and restrict the proposed development from being used in an ordinary sense, and whether the proposed conditions can actually be implemented in practice.

In the Ursula Frayne case, Ursula Frayne Catholic College (school) had acquired two residential adjoining lots located in between two residential dwellings (site). The site was located across the road from the school and was intended to be used as a “green space” for students to visit during breaks. The proposed development was in accordance with the zoning in the Town’s Local Planning Scheme No. 1 (LPS 1) which classified the proposed green space as an “educational establishment” use.

Despite this, the Town refused the proposed development. The school then sought a review of the Town’s decision from the SAT who made the decision to affirm the Town’s position.

Clause 67(n) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions) was a key planning consideration in this case. It requires local governments to have due regard to the amenity of the locality, including the environmental impacts of the development, the character of the locality and the social impacts of the development.

In Ursula Frayne, the SAT ultimately decided that the extent of the restrictions set out in the conditions indicated that the site was not an appropriate site to establish an “educational establishment” to be used as a green space.

The SAT noted that conditions are imposed on development approvals to allow for the regulation of incidental aspects of a development, and in particular, to ensure that an approved development does not have an adverse impact on the amenity of the locality.

In this case, the SAT found that the conditions went far beyond regulating incidental aspects to safeguard against adverse impacts to amenity. In fact, the SAT suggested that the appropriateness of the proposed development relied almost exclusively on the conditions that had been designed to mitigate its impacts.

By way of example, some of the proposed conditions that the SAT considered inappropriate and impossible to regulate included requirements that students would only use the green space under staff supervision, and further, that they would not carry out any loud communications or engage in any “vigorous movements” whilst on the green space. Similarly, the proposed conditions required staff to relocate any congregation of students, especially if they had moved away from the centre of the space towards fringe areas, and further to refrain from calling out to students over long distances.

The SAT found that even if the proposed conditions were approved by the Town, they would not be practical for several reasons. Firstly, the conditions would be impossible to police in any meaningful way from a planning compliance perspective, particularly given that the students who would use the space in the future, and whose conduct necessitated careful regulation, were not a party to the proceedings. Secondly, it was far from certain that noise could be controlled effectively all day on every school day. Thirdly, the conditions sought to confine and restrict the use of the site as an ‘educational establishment’, thereby defeating its purpose.

Lavan comment

The proposed conditions of development approval were only one of the considerations that led to the outcome in this case, however it was a factor that the SAT placed considerable weight upon in making its final decision.

While including conditions in a development application may be helpful in securing local government approval, it essential to ensure that the proposed development is well-grounded in and supported by the planning framework in its own right. Proposed conditions should only serve to strengthen an already sound development application.

If you are in the process of preparing a development application or are at any stage in the development process and require assistance from the perspective of due diligence checks, strategic advice or litigation support, we would like to hear from you. Please feel free to contact any member of our experienced Planning and Environment team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.