On 30 June 2023, the Department of Planning’s requirement for planning authorities to adopt standardised conditions of consent and notices of determination came into effect. This requirement affects all councils and planning authorities when they are granting development consents via the Planning Portal.
The Department has published a manual containing about 40 conditions of consent and made standard notices of determination templates for 11 types of determination, including standard approval subject to conditions of consent, deferred commencement consent, and refusal of consent.
The standard conditions of consent prepared by the Department fall into six categories:
- General condition referring to the approved plans and amendments to approved plans;
- Conditions to be fulfilled before construction certificate;
- Conditions to be fulfilled before the commencement of works;
- Conditions to be fulfilled during construction;
- Conditions to be fulfilled before occupation certificate; and
- Conditions relating to ongoing occupation and use.
Although some of the standard conditions apply to all developments, the majority of the standard conditions only apply to residential developments. These conditions cover all the basic aspects of developments, from construction management to waste management and payment of levies.
The standard conditions are not dissimilar to the generic conditions of consent already in use by most councils. It is anticipated that the standardisation of conditions will create a minimum benchmark for clarity and consistency, which should in turn improve compliance. Whilst it appears that the requirement to use standard conditions only applies to granting of consents via the Planning Portal and not, critically, to the granting of consent by the Land and Environment Court, they may be helpful for councils preparing Court-ordered conditions of consent as well.
In addition to standard conditions, the Department has also published a guideline to help councils drafting conditions of consent.
The current reforms are not, of course, a solution for eliminating issues associated with poorly-drafted conditions of consent. Whilst the standard conditions cover many basic aspects of residential developments, there will often be needs for councils to draft and impose “bespoke” conditions of consent to suit the circumstances of particular developments.
Such bespoke conditions of consent must be drafted with care, as these conditions will operate in “in rem” – that is, benefiting or burdening anyone who happens to be the owner or occupier of the land. The guideline to drafting conditions of consent published by the Department provides some helpful guidance on some of the issues we commonly find in conditions of consent.
It is also worth noting that many councils keep their own library of precedents for bespoke conditions. Since the introduction of the standard conditions, any such precedents should be carefully reviewed to ensure that they are consistent with the conditions of consent and the conditions are appropriately drafted in accordance with the Department’s guideline.
The standard conditions of consent can be viewed here.
The Department’s guideline for drafting “bespoke” conditions can be viewed here.
