Every DA consent (approval) will include conditions. These conditions form part of the consent and set out the circumstances in which the development may proceed. Conditions commonly set out protective or mitigating measures to protect the environment and retain amenity.
To assist applicants, owners, builders and others our new development consent format applies conditions of consent under the following categories:
A. General Conditions
B. Conditions which must be satisfied prior to the demolition of any building or structure
C. Conditions which must be satisfied prior to the issue of any Construction Certificate
D. Conditions which must be satisfied prior to the commencement of any development work
E. Conditions which must be satisfied during any development work
F. Conditions which must be satisfied prior to the issue of any Occupation Certificate or use of the building
G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate
H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate
I. Conditions which must be satisfied during the ongoing use of the development
J. Miscellaneous Conditions
What are the legal effect of conditions?
Conditions are an integral part of a consent and it is a criminal offence to fail to comply with or breach any development consent condition. The conditions bind each and every individual and company who undertake any work under the development consent.
It doesn't matter if you're the owner, the builder or a labourer on the site, the conditions apply to everyone involved. If you breach the conditions in any way, you can be prosecuted and, as a minimum, you may be fined.
See unauthorised work for further information about illegal work.
Are there any limitations on Council's power to impose conditions?
Section 4.17 of the Environmental Planning and Assessment Act 1979 allows Council to impose conditions, but does not give Council free rein.
- be imposed for a planning, not an ulterior purpose (however desirable they may be in the public interest) - Newbury Principle.
- be fairly and reasonably related to the proposed development - Nexus test & Newbury Principle.
- be reasonable i.e. not so unreasonable that no reasonable authority would have imposed them - Newbury & Wednesbury Principles.
- be final - "not defer any essential matter for later consideration"
- be reasonably enforceable, and "enable or enhance the development as intended."
The Chief Justice of the Land and Environment Court stated in a case on this issue:
"Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application."
Conditions are meant to enable or enhance development, the impact of which would otherwise be unacceptable. We follow these principles.
What happens if I breach conditions?
If Construction Certificates are issued prior to compliance with or in breach of pre-construction certificate requirements they can be challenged as being void. In other cases more serious breaches of conditions of consent will result in Council prosecuting the applicant, owner, builder or sub-contractors in the Land and Environment Court or Local Court. Council may also issue fines (Penalty Infringement Notices).
If you breach conditions, or continue to do so, then we can issue orders and, if necessary, seek interlocutory injunctions to restrain any breach of environmental law and seek Court orders requiring you to comply with our approvals or remedy the matter.
If we take any such action, in addition to any penalties the court may apply by way of fines, we will seek the payment of our legal costs from those who are convicted.
Neighbours and others can take their own legal action also.