HOW TO draft conditions that are lawful, certain and enforceable

Transcription

1 HOW TO draft conditions that are lawful, certain and enforceable Kevin Cronin MBA, BE(Hons)(Civil) Planning Specialist Manager Specialist Services Development Assessment Branch City Planning & Sustainability Division Brisbane City Council

2 Introduction Standard matters to be addressed: Purpose of conditions Structure of conditions Language of conditions Changes to conditions Statutory and common law tests Examples of well drafted conditions Examples of poorly drafted conditions

3 Meet common law tests The Finality Principle prohibits an approval being conditioned so that further development is dependent upon the making of further discretionary decisions by the relevant local authority. [Young 1999]

4 Standard matters Submit External Details Submit for the approval of the Architect, Development Assessment, further details of the building, facade treatment and external materials, colours and finishes generally consistent with the approved plans and the materials schedule for Stage XX Timing: Prior to building work commencing

5 Purpose of conditions Must be for a planning purpose A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. [Western Australia Planning Commission v Temwood Holdings Pty Ltd (2004) HCA 23]

6 Structure of conditions Basic elements: what action must be carried out, who is responsible for carrying out the action, when the action must be done by, and how the action is to be done (e.g. to a specific standard). [Warner 2011]

7 Standard matters Council will not endorse the plan of subdivision until the monetary payment to the Balance the Earth Trust is paid in full as required by condition XX. Timing: As indicated

8 Standard matters Clear, certain and unambiguous communication The relevant period for this approval is till 2018.

9 Standard matters Assessment process identifies need for conditions: Ecological sustainability (SPA) Compliance with planning scheme codes, policies, etc. Infrastructure related conditions

10 Structure a coherent conditions package Logical and consistent sequence Consistent template Condition number Short title Actual condition (include any clarifying note) Timing for satisfying the condition Guideline (optional) Proof of fulfilment (optional)

11 Language of conditions Use imperative mood (command, directive) Clear, certain, unambiguous, understandable, professional, business-like Construct Road A... Road A must be constructed... Please construct Road A... X Road A should be constructed... X Ensure Road A is constructed... X?

12 Trunk Traffic and Transport infrastructure A.Provide the following Trunk external road works with any associated drainage and services and [ADDRESS] site access in accordance with Council s Subdivision & Development Guidelines, Standard Drawings and Reference Specifications. [Construct new Type [KERB TYPE] concrete kerb and channel and associated drainage along the [STREET NAME] frontage/s on a [DISTANCE] metre alignment (taking into account any road widening if required) and] [Construct Type [PAVEMENT TYPE] road pavement from the lip of the new kerb and channel to the edge of the existing road pavement with any appropriate tapers (the minimum width of road construction/reconstruction is to be 1.2 metres).] [Signalise the access to [ADDRESS] in accordance with Council s Subdivision & Development Guidelines and Standard Drawings, the Queensland Manual of Uniform Traffic Control Devices and the AUSTROADS design standards.] [Signalise the intersection of [STREET NAME] and [STREET NAME] in accordance with Council s Subdivision & Development Guidelines and Standard Drawings, the Queensland Manual of Uniform Traffic Control Devices and the AUSTROADS design standards.] [Construct a new median island along the [STREET NAME] frontage as shown on the approved plans and in accordance with Council s Subdivision & Development Guidelines, Standard Drawings and Reference Specifications] [Provide signs and pavement markings along the [STREET NAME] frontage in accordance with Council s Subdivision & Development Guidelines, Standard Drawings and Reference Specifications and the Queensland Manual of Uniform Traffic Control Devices.] Provide trunk transport infrastructure network (item no. [insert infrastructure item no.] on Map [insert map no.] of the transport Network Trunk Infrastructure Plans in the Council s Adopted infrastructure Charges Resolution (No. 2) 2011)

13 Timing: prior to endorsement of a Community Management Statement, or prior to making application under Schedule 19 of SPR 2009, or where approved under IPA 1997, prior to survey plan endorsement, whichever is sooner. Guideline: This condition is imposed under section 649 of the Sustainable Planning Act 2009 on the basis that: Existing trunk infrastructure necessary to service this premises is not adequate and trunk infrastructure adequate to service the premises is identified in the priority infrastructure plan or an adopted infrastructure charges resolution of the local government or, Trunk infrastructure to service the premises is necessary, but is not yet available and is identified in the priority infrastructure plan or in the Council's Adopted Infrastructure Charges Resolution of the Local Government (No.2) 2011) ; or Trunk infrastructure identified in the priority infrastructure plan or an adopted infrastructure charges resolution of the local government is located on the premises. Dedication of road Dedicate as a road the area shown as new road on approved plan [insert plan reference] Timing: prior to endorsement of a Community Management Statement, or prior to making application under Schedule 19 of SPR 2009,, whichever is sooner.

14 Meet the statutory tests Relevance test Reasonably required test

15 Changes to conditions SPA s361- by negotiated decision notice SPA s369 - by permissible change for a development approval Change to approval (review all conditions) Change to condition (review the condition)

16 Tips and Traps in drafting conditions Do not go beyond assessment manager s or concurrence agency s jurisdiction Follow the law (SPA) Is it easy to find out if a condition is met?

17 Adult shop/store Leather goods and related equipment must not be displayed in the shop/store display windows. Timing: At all times 17

18 Supermarket The supermarket must only be serviced by coin-operated shopping trolleys. Timing: At all times [From Property Council of Australia] 18

19 Fast food restaurant All dine-in meals must be served on crockery. Timing: At all times [From Property Council of Australia] 19

20 Summary Do not focus solely on statutory tests Apply discretion in conditioning Use issues highlighted and suggestions made as a tool