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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
2
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
3 3
PART 1: RULES FOR DRAFTING LAWFUL CONDITIONS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
4
RULES FOR DRAFTING LAWFUL CONDITIONS
Lawful conditions need to satisfy:
• The statutory tests in SPA; and
• The common law tests established by the Courts.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
5 5
Section 345 of the SPA sets out the current test as follows:
RULES FOR DRAFTING LAWFUL CONDITIONS STATUTORY TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
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.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
7 7
“Second limb” - Reasonably required test
RULES FOR DRAFTING LAWFUL CONDITIONS STATUTORY TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
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
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Meriton Apartments Pty Ltd
-v-
Minister for Urban Affairs & Planning
Drafting Rule 1 –
A condition must be for a legitimate
planning purpose.
9
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
Drafting Rule 2 –
A condition must be final, in that it
must not defer an important aspect
of the approval for future
consideration.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
McBain -v- Clifton Shire Council
Carter -v- Redland Shire Council
10 10
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Cox
-v-
Chief Executive, Department of Main
Roads & Anor
Drafting Rule 3 –
A condition must not be vague or
uncertain
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RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
Drafting Rule 4 –
A condition must not require
onerous supervision by the relevant
authorities.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Westfield Management Ltd
-v-
Pine Rivers Shire Council & Anor
12 12
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
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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RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
Drafting Rule 6 –
An unlawful condition cannot be
made lawful because it is accepted
by the applicant.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Hammercall Pty Ltd
-v-
Gold Coast City Council & Anor
14 14
Drafting Rule 7-
A condition cannot require an indemnity.
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Galandon Pty Ltd -v- Narrabri Shire Council
15
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
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.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Australian Retirement Homes Limited
-v-
Pine Rivers Shire Council
16 16
Drafting Rule 9 –
A condition cannot create an unlawful fetter on the future exercise of
Council’s discretion.
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
BM Carr Holdings atf The Carr Family Trust
-v-
Southern Downs Regional Council & Anor
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RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
Drafting Rule 10 –
A condition can prevent a use
commencing until certain criteria are
satisfied.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
KCY Investments (No.2) Pty Ltd
-v-
Redland City Council
18 18
Drafting Rule 11 –
A condition can be used to establish a trial period to determine how the use
will operate, if objective criteria are used.
RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Wilhelm -v- Ipswich City Council & Anor (No.2)
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RULES FOR DRAFTING LAWFUL CONDITIONS COMMON LAW TESTS
Drafting Rule 12 –
A condition can be used to limit the
type of use which is approved.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
Newman & Ors
-v-
Brisbane City Council & Ors
20 20
PART 2: RULES FOR INTERPRETING CONDITIONS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
21
RULES FOR INTERPRETING CONDITIONS
Interpretation Rule 1
Any uncertainty should be construed in favour of the landowner.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
22 22
Interpretation Rule 2
RULES FOR INTERPRETING CONDITIONS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
A sensible rather than legalistic approach should be adopted in
interpretation.
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RULES FOR INTERPRETING CONDITIONS
Interpretation Rule 3
A condition should be interpreted without reference to extrinsic material
except in very limited circumstances.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
24 24
Interpretation Rule 4
RULES FOR INTERPRETING CONDITIONS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
A condition must be interpreted in accordance with its written terms and
not what the parties intended.
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RULES FOR INTERPRETING CONDITIONS
Interpretation Rule 5
An explanatory statement or guideline may be considered in interpreting a
condition.
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
26 26
Interpretation Rule 6
RULES FOR INTERPRETING CONDITIONS
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
A condition must be construed in the context of the approval as a whole
and not in isolation.
27 27
CONCLUSION
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013
28 28
THANK YOU
HOW TO DRAFT CONDITIONS THAT ARE LAWFUL, CERTAIN AND
ENFORCEABLE 15 May 2013