Transcript Drafting & Negotiating Conditions of Approval

What are development approval
conditions?
 What is their purpose?
Conditions attach to an approval and form part of a mutually
accepted contract between the approving authority and the
applicant/owner/successors in title in regard to actions required
to enable a use to commence or how that use will operate into
the future.
 Who writes approval conditions?
Conditions are typically written by the authority generating the
approval having assessed the application. However the applicant
often has direct input into the drafting as it is not unusual for a
copy of the draft conditions to be made available to the applicant
ahead of the final determination.
 Who do they impact?
The conditions prescribe how a development is established and will
proceed. They will therefore impact on everybody associated in these
operations up to the commencement of the approved use or activity
and beyond in its operational state.
 How Long do they last?
In the modern days of IPA, conditions attach to and “run with” the land.
But not all development conditions are particularly relevant to the
ongoing use. Some conditions are associated with very specific task
and have limited life e.g.
“Flood hazard signage
The applicant must install flood markers and warning signs within the
proposed development site informing occupants of the potential flood
hazard. The applicant must provide details of the design and location(s)
of the proposed flood markers and warning signs to Council for
approval, prior to the earlier of the endorsement of survey plans or the
issue of a certificate of classification.”
How are engineering conditions
different to other conditions?
 What are engineering conditions?
Engineering conditions deal with specific technical issues that must be
resolved to a particular standard and within a particular timeframe e.g
geotechnical, hydraulic, civil construction, traffic and transport etc.
 What do they apply to?
Engineering conditions typically apply to OPWs, but are also found in MCUs
and ROLs setting up a technical regime whereby future works will be
considered e.g.
“Submit engineering plans checked and certified by a Registered Professional
Engineer Queensland (RPEQ-Civil), that are in accordance with Council's
"Subdivision and Development Guidelines", showing the design of the
bikeway including any external signs and permanent traffic safety signs,
markings and devices. Obtain endorsement from the Engineering Delegate,
Development Assessment.”
 Who do they apply to?
The engineering conditions typically require the actions of specific professionals
and/or suitably proficient contractor in resolving issues e.g. geotechnical instability,
acid soils, or in construction or private or public infrastructure. In the case of
public infrastructure there is, in most cases, a requirement for inspections by
Council officers and a process of acceptance of the asset e.g.
“During works
The applicant must successfully complete the inspections relevant to particular work in
accordance with Planning Scheme Policy 11 – Land Development Guidelines,
Standard Specifications and Drawings and/or as required by conditions of this
approval. The inspections must be booked through Council’s Contributed Assets
Inspector for the area.
The applicant must allow inspections to be undertaken by Council officers from time to
time to ensure compliance with the conditions of this approval. All
outstanding/unsatisfactory items identified as a result of an inspection must be
attended to and checked to Council’s satisfaction, in accordance with the timeframes
and requirements indicated on the record of inspection, including variations and/or
additions to the approved plans/drawings required as a result of insufficient detail on
the plans/drawings or to ensure that compliance with the conditions of this approval
and good engineering practice is achieved.
Work must not progress until successful completion of each inspection.”
 How long do they last?
Typically engineering conditions have a limited life i.e. they require a
specific action, to a specific standard prior to commencement of the
use or endorsement of plans of survey. In the case of publicly owned
infrastructure, the responsibility for the care and maintenance of the
asset passes to the Local Authority with their acceptance and
endorsement of survey plans. In the case of privately owned
infrastructure the care and maintenance passes to the new property
owner.
What are the basic ingredients of
conditions?
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Relevance – IPA test
Reasonable – IPA test
Who? – Who is responsible for the action?
What? – What is the action?
When? – When must the action be complete?
How? – How is the action to be undertaken?
Certainty? – Is there certainty? Will the condition
achieve the intent?
 Finality? – Does the condition establish an end point?
 Why? – Good question?
“Certification of retaining structures/batters long-term factor of safety
The applicant must submit to Council:
owith any future development application for operational work (works for
infrastructure or change to ground level), certification from a Registered
Professional Engineer Queensland (RPEQ) specialising in geotechnical
engineering stating that all cut/fill batters and/or retaining structures
associated with proposed bulk earthworks, access roads and building works
will achieve a long-term factor of safety greater than 1.5; and
oprior to the earlier of endorsement of survey plans or the making of a
building development application, certification from an RPEQ specialising in
geotechnical engineering stating that all constructed cut/fill batters and/or
retaining structures have achieved adequate stability with a factor of safety
greater than 1.5.”
What are the extra issues associated with
engineering conditions?
 Contributed Assets
Development works that produce assets that will become public property
engage an extra level of complexity beyond works which will be
privately owned.
 Relevant Standards
Engineering conditions often refer to standards, policies and codes as a
reference in the establishment of the quality of the required actions or
works. It is essential that only current and active documents are used
and referenced. This is a potential trap for the cut and paste technique
of drafting new approvals from the conditions of old ones. Out of date
standards will undermine the relevance of conditions.
 Sequence Plans
Development can be a complicated array of actions from different
disciplines attempting to bring the site to a position that will realise the
intended use. Site works can include bulk earthworks, geotechnical
stability works (pre-loading), acid soils management, flora and fauna
management, revegetation, bushfire management, sedimentation and
erosion control, water quality management, civil works (water, sewer,
roads, power, comms), flood balance etc., all proceeding at different
rates and derived from different consultants reports.
 Consistency
The condition drafter will often receive conditions from each of the
subject matter experts and it is tempting to simply create a heading for
each and paste them in. It is essential that the drafter step back and
read the conditions as a whole to ensure that collectively they support
and not contradict each other e.g. the identified protected flora species
isn’t in the bushfire hazard reduction zone.
 Who carries the can?
There is a clear trend to push more of the responsibility for quality design
and construction, against appropriate standards, onto the professionals
engaged by the developer i.e consultant certification. Conditions must
be carefully constructed to ensure that it is clear where the
responsibility rests and in some cases this has been considered quite an
onerous action on the person nominated to “carry the can”. E.g.
• “Certification of building envelope drawing
• The applicant must, prior to Council’s endorsement of survey plans, resubmit to
Council with the following certification shown on the face of the drawing:
‘I, [insert full name], REPQ No. [insert], a qualified geotechnical engineer and
Registered Professional Engineer Queensland, hereby certify that provided the advice
and recommendations of the geotechnical report are adhered to:
1. The building envelopes shown on this drawing are considered suitable for
residential buildings and structures defined in the Building Code of Australia as Class
1 and Class 10a (non-habitable building being a private garage, carport, shed or the
like);
2. Land proposed for driveway access from the constructed road to the building
envelope is considered suitable for the construction of a driveway;
3. Effluent disposal areas can be suitably situated within the building envelopes so
as to have no adverse geotechnical effects on building envelopes in the vicinity;
4. Each specific building envelope is free from any future land sliding and/or outside
the buffer zone of any potential slip area(s), provided no development external to the
site adversely affects the subject development;
5. The building envelope will be geotechnically suitable and fit for its intended use
and will remain stable at least for the design life of the residential buildings and
structures, provided no development external to the site adversely affects the subject
development.’
Note that in the condition above the responsibility remains in effect for
the design life of the residential buildings.
The private certification for design and construction is undergoing
further review in the assessment of applications within the Urban Land
Development Areas where applications for OPWs are no longer
necessary and ultimate reliance is placed upon the integrity of the
developer’s consultant team.
Perhaps there will come a time when assessment of DA will be a thing of
the past. All government will require is a certification that the design
and construction is compliant and that will be OK. But who checks the
checker?
The Millau bridge over the River Tarn in the Massif Central mountains is more than
300m (984ft) high - taller even than the Eiffel Tower.
 Conclusion
Writing conditions may be as exciting as contract law, and like contract
law the risks associated with getting it wrong can be catastrophic.
Drafters must be mindful of the basic ingredients to the structure of
the condition and ensure that it satisfies the intended purpose of
delivering the required outcome, to an appropriate standard at the
required time. Conditions cannot be considered in isolation but must
be reviewed not only against the full suite of conditions associated with
the current application but preceding, related approvals.
 Acknowledgements
Gold Coast City Council – New Development Conditions
Brisbane City Council – Development Approval Conditions package