Introduction Until recently, uncertainty existed around whether a council's rejection of a development application, could be appealed to the NSW Land and Environment Court ( LEC ). That uncertainty was resolved by the decision in Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42 (Johnson Property Group) in which the LEC held that there is no right of appeal against a council's decision to reject a development application. There is a very big difference between a refusal to accept a development application and determination of that development application by way of refusal. The decision in Johnson Property Group explore this the critical distinction between procedural "rejection" and substantive "determination." The Legislative Framework The EPA Act appeal structure Section 8.1 of the Environmental Planning and Assessment Act ( EPA Act ) defines "appeal" as referring to appeals to the LEC under Divisions 8.3, 8.4, 8.5, and 8.6. This definition is important because it confines the scope of appellate rights to those expressly provided within these divisions in the EPA Act. Section 8.6: The gateway provision Section 8.6(1) operates as the gateway provision for all appeal rights within Division 8.3, providing that: "A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is ( if this Division so provides ) subject to appeal to the Court under this Division." [our emphasis] For this provision to confer a right of appeal, three essential conditions must be satisfied: There must be a decision of a consent authority under Part 4. That decision must relate to a development consent or an application for development consent. The Division must expressly provide a right to appeal. The critical phrase "if this Division so provides” in s 8.6 (1) makes it clear that for appeal rights to exist, they must be found somewhere in Division 8.3. Section 8.6(2) provides that "a decision subject to appeal includes a decision made after a review under Division 8.2." Johnson Property Group clarified that this subsection does not independently create appeal rights for all decisions subject to internal review. Instead, it operates to extend existing appeal rights to decisions made on review. Power to reject development application Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EPA Reg ) grants councils a discretionary power to reject a development application within 14 days of receiving it. The grounds for rejection are specified in section 39(1) of the EPA Reg and include circumstances where the development application: Is illegible or unclear as to the development being sought. Does not contain required information on documents specified in the Approved Form. Seeks consent for development that is prohibited. Is substantially the same as a development application previously refused and circumstances have not changed. Critically, section 39(2) of the EPA Reg provides that an application "is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review." Internal Review Rights Section 244 of the EPA Reg provides for an internal review of a decision to reject a development application. The application for review must be made within 14 days of receiving written notice of the council's rejection decision. This internal review mechanism allows the council to reconsider its decision administratively, but it does not confer a right of appeal to the LEC. Section 8.2(1)(c) of the EPA Act specifically provides for review of "a decision of a consent authority to reject and not determine an application for development consent." This express reference to “rejection” reinforces the statutory distinction between rejection and determination of a development application. There matters were considered by the LEC in Johnson Property Group. The factual background The Johnson case arose from straightforward but instructive circumstances. The applicant lodged a development application for the construction of cycleways and intersection improvement works. The works were to be located on both privately held land and public road reserves. The applicant provided owner's consent for all privately held land within the site. However, it did not provide owner's consent for the public roads, which were owned by the Council. On 9 October 2019, the Council rejected the development application on the sole basis that owner's consent had not been provided for all land to which the development application related. The applicant sought internal review under section 8.2(1)(c), which the Council refused. The applicant then commenced class 1 appeal proceedings in the LEC, seeking an order that the Council accept, assess and determine the development application. The applicant's arguments The applicant advanced two primary arguments in support of its appeal right: First, the applicant contended that section 8.6(2) created an independent right of appeal. The rejection decision was subject to internal review under section 8.2(1)(c). Section 8.6(2) expressly states that "a decision subject to appeal includes a decision made after a review under Division 8.2"; therefore, any decision made on review must be appellable. Second, the applicant argued that section 8.7(1) applied because the rejection of the development application constituted a "determination” of the application within the meaning of that section. The applicant submitted there was no warrant in the statutory language to draw a meaningful distinction between "decision" and "determination" such that rejections would be excluded from the right to appeal. The applicant also relied heavily on the earlier decision of Parkes v Byron Shire Council (2003) 129 LGERA 156 ( Parkes ), in which Lloyd J held that a rejection decision attracted a right of appeal. The applicant acknowledged that the statutory provisions had changed since Parkes, but submitted that the amendments only reinforced the position arrived at in that case. Additionally, the applicant argued that even if there was no appeal right, the Council had acted beyond its power in rejecting the development application. The argument was that because owner's consent had been provided for some (but not all) of the land, and because the missing consent related to land owned by the Council itself, the development application should have been assessed. The applicant noted that if the development application had been assessed and determined, the Court could have granted the missing owner's consent under section 39(2) of the Land and Environment Court Act 1979 during any subsequent class 1 appeal. The Council's response The Council's primary submission was straightforward: on a proper construction of sections 8.6(1) and 8.7(1) of the EPA Act, appeal rights are limited to "determinations" under section 4.16, not to "decisions" to reject. This distinction is critical because: A determination is made pursuant to section 4.16 to either refuse or approve a development application following assessment on the merits. A rejection is a procedural decision that operates such that the development application is taken never to have been made s 39 (2) EPA Reg. The Council submitted that this legislative intent to limit appeals to determinations is evident from the different language used throughout the EPA Act: Division 4.3 consistently uses the term "determination" with respect to the final substantive decision of the consent authority after considering the merits of an application. Division 8.2 (reviews) makes a clear distinction between determinations that are subject to review and decisions that are subject to review—rejection is referred to as a "decision," while approval or refusal is referred to as a "determination". Division 8.3 (appeals), while using "decisions" in headings, limits substantive appeal rights to determinations as specified in section 8.7(1). Regarding section 8.6(2), the Council argued that this provision does not independently confer appeal rights for all decisions made on review. Rather, it operates to clarify that where an appeal right exists in relation to a particular type of decision, that right continues to apply even if the decision has been subject to internal review. In other words, it extends existing appeal rights to reviewed decisions; it does not create new appeal rights. The Council also contended that the decision in Parkes was wrongly decided and should not be followed, as it failed to properly analyse the statutory scheme and relied primarily on the Court's powers under section 39(2) of the LEC Act without first establishing that an appeal right existed. Does section 8.6 confer an appeal right? Justice Duggan undertook a careful and systematic analysis of the statutory provisions, ultimately concluding that there is no right of appeal against the rejection of a development application. Her Honour began by examining whether the rejection decision satisfied the three requirements of section 8.6(1): Requirement 1: A decision under Part 4 The Court found this requirement was satisfied. The power to reject a development application derives from s 39(1) of the EPA Reg (then cl 51 of the Environmental Planning and Assessment Regulation 2000 ), which is made pursuant to section 4.12 of the EPA Act (which governs applications for development consent). The decision to reject is therefore a decision made under Part 4. This construction was reinforced by section 8.2(1)(c), which expressly provides for review of rejection decisions and describes them as decisions under Part 4. Requirement 2: Relating to an application for development consent This requirement was also satisfied. Section 8.6(1) refers to decisions "in relation to an application for development consent," which is broader than the defined term "development application." The rejection of a development application clearly relates to an application for development consent, even though it prevents that application from being determined. Requirement 3: The Division must provide for the appeal This is where the rejection decision fell outside the scope of section 8.6. The phrase "if this Division so provides" makes clear that section 8.6(1) does not itself create appeal rights; it merely sets the preconditions. The actual appeal rights must be found elsewhere in Division 8.3. Her Honour then considered whether section 8.6(2) could supply the missing appeal right and concluded it could not, for three reasons: The definitional nature of the provision : The use of the word "includes" indicates that section 8.6(2) operates to define or expand the scope of decisions covered by section 8.6(1), rather than to independently confer appeal rights. It clarifies that where an appeal right exists, it extends to decisions made on review. Consistency with the Division's structure : Sections 8.7, 8.8, and 8.9 each expressly confer appeal rights using phrases like "may appeal to the Court against the determination." Section 8.6(2) contains no such express language, indicating it serves a different function. The operation of section 8.6(3) : This subsection excludes certain decisions from appeal, further indicating that section 8.6 as a whole operates to define the scope of appeal rights conferred elsewhere, not to create independent rights. Accordingly, section 8.6 does not provide a right of appeal from rejection decisions. Does section 8.7(1) confer an appeal right? Justice Duggan then turned to section 8.7(1), which provides that an applicant "who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination." The critical question was whether "determination" includes a decision to reject a development application. Her Honour concluded it does not, for several reasons. Consistent statutory usage : The term "determination" is used consistently throughout the EPA Act to refer to a decision made pursuant to section 4.16—that is, a decision to approve (with or without conditions) or refuse consent. While "determination" is not formally defined, statutory interpretation principles require that a word be given a consistent meaning where it is used repeatedly in the same Act. Section 8.7(2)'s expansion : Section 8.7(2) expands the definition of "determination" to include certain post-consent decisions. This expansion reinforces that the core meaning relates to section 4.16 decisions, with extensions only where expressly provided. The language of section 8.2(1)(c) : This provision, which establishes the internal review right for rejections, refers to "a decision of a consent authority to reject and not determine an application for development consent." The express juxtaposition of "reject" with "not determine" strongly suggests that rejection is not considered a determination. Section 39(1) as context : While s 39(2) of the EPA Reg (then cl 51(3)) refers to the "determination to reject," this usage must be understood in context. The Regulation uses "determination" colloquially to mean "decision," not in the technical sense used throughout the EPA Act. This isolated usage in subordinate legislation cannot override the consistent statutory usage in the primary Act. Her Honour therefore concluded that section 8.7(1) is limited to appeals against determinations under section 4.16 (approval or refusal) and does not extend to decisions to reject a development application. The Court's conclusion Justice Duggan concluded that the applicant did not have a right of appeal against the Council's rejection of its development application. Accordingly, the appeal was dismissed. Her Honour noted that the applicant had also raised arguments about whether the Council had power to reject the development application in the particular circumstances of the case (where private landowners' consent was provided but not the Council's consent as road owner). However, as these submissions did not relate to the separate question as formulated, and as they might fall for consideration in any judicial review proceedings, Justice Duggan declined to determine them. This observation is significant: it leaves open the possibility that a council's exercise of the power to reject in certain circumstances might be challengeable through class 4 proceedings (judicial review), even though class 1 appeal rights do not exist. Key Takeaways No appeal right : section 8.7(1) of the EPA Act is limited to appeals against "determinations" under section 4.16 (approval or refusal), and does not extend to "decisions" to reject under s 39(1) of the EPA Reg. Section 8.6(2) does not assist : This provision extends existing appeal rights to decisions on review; it does not create independent appeal rights for all reviewable decisions. Internal review only : The only statutory recourse from rejection is internal review under section 8.2(1)(c), which must be sought within 14 days. Judicial review theoretically available : Class 4 proceedings remain available in cases of jurisdictional error or unreasonableness. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE. 

This article examines the legal framework governing conditions of consent in NSW, explores key case law, and explains how and when conditions may be challenged through Class 1 or Class 4 proceedings. Statutory Basis for Conditions of Consent The power to impose conditions in a development consent arises under section 4.17 of the Environmental Planning and Assessment Act 1979 ( EPA Act ). Section 4.17 prescribes when a condition of consent may be imposed. For example, s.4.17(d) prescribes that a condition may be imposed that limits the period during which development may be carried out. The grant of development consent is the exercise of a statutory power, which means conditions of consent must: be authorised by the EPA Act or another applicable planning instrument; and comply with established common law principles governing validity. Consent authorities must therefore ensure that each condition falls within the scope of the statutory power authorizing the condition. The Newbury Principles and Their Application in NSW In addition, the condition must be reasonable. The reasonableness, and therefore validity of consent conditions is assessed by reference to the principles established in Newbury District Council v Secretary of State for the Environment [1981] AC 578. These principles have been consistently adopted by Australian courts, including the NSW Land and Environment Court. To be considered reasonable, and valid, a condition of consent must: be imposed for a proper planning purpose; fairly and reasonably relate to the development the subject of the consent; and not be so unreasonable that no reasonable planning authority would impose it. These principles are now reflected in section 4.17 of the EPA Act and remain central to the judicial assessment of consent conditions in NSW. Key Takeaways for Developers Consent authorities do not have unlimited discretion to impose conditions of consent. Conditions must remain tethered to legislation and planning controls. Conditions must be reasonable. Authorisation and the Limits of Planning Power A condition will be invalid if it is not authorised by statute, even if it appears reasonable or desirable. The Land and Environment Court has repeatedly emphasised that conditions cannot be used to achieve outcomes that fall outside the planning system. In Kindimindi Investments Pty Ltd v Lane Cove Council [2009] NSWLEC 114, the Court confirmed that councils cannot rely on s 4.17 to impose obligations more properly dealt with through private law mechanisms. Conditions requiring applicants to enter into restrictive covenants or indemnify councils are common examples of overreach. The case illustrates that planning conditions must regulate land use impacts—not private legal relationships. Nexus: The Relationship Between Conditions and Development A critical element of validity is whether the condition sufficiently relates to the development as approved. There must be a clear planning nexus between the impacts of the development and the obligation imposed. In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, the NSW Court of Appeal held that conditions must address planning consequences of the development itself, rather than broader policy objectives or unrelated outcomes. More recently, Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWLEC 121 reinforced that councils cannot impose conditions aimed at regulating hypothetical future development or alternative development scenarios. Key Takeaways for Developers Conditions must respond to impacts of the approved DA. “Futureproofing” conditions are vulnerable. Speculative controls are likely invalid.  Reasonableness and Proportionality Even where a condition serves a planning purpose and has a nexus to the development, it may still be invalid if it is unreasonable or disproportionate. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, the Court invalidated conditions requiring extensive off-site works that were disproportionate to the development’s impacts. The decision confirms that conditions must be scaled to impact, not used to secure unrelated infrastructure upgrades. The threshold is high, but NSW courts will intervene where the burden imposed is excessive. Certainty and Enforceability of Conditions Conditions must also be drafted with sufficient clarity and precision to be enforceable. Conditions that are vague, uncertain, or defer essential matters to future discretion are vulnerable to challenge. A consent authority is tasked with assessing a development application and determining the application either by (i) granting consent or (ii) refusing the application: s.4.16(1) EPA Act. There is no third option and conditions of consent that introduce ambiguity or have the consequence of deferring the consent authority’s determination to a later date will be invalid. In Gales Holdings Pty Ltd v Tweed Shire Council [2021] NSWLEC 163, the Court held that conditions lacking objective standards or measurable criteria may be invalid for uncertainty. Key Takeaways for Developers Conditions must be clear and enforceable. Open-ended or vague obligations increase risk. Uncertainty may invalidate a condition. Challenging Conditions: Class 1 vs Class 4 Proceedings The appropriate pathway for challenging a condition of consent depends on whether the issue is one of planning merit or legal validity. Class 1 Proceedings – Merits Review Class 1 proceedings in the Land and Environment Court involve a merits-based re-determination of the development application. These proceedings are appropriate where: the condition is excessive but legally permissible; the developer seeks alternative or amended conditions; or the issue concerns planning judgment rather than legality. In Class 1 appeals, the Court has broad discretion to impose new or revised conditions. Class 4 Proceedings – Judicial Review Class 4 proceedings are confined to judicial review and focus on whether the condition is lawful. They are appropriate where a condition: exceeds statutory power; lacks a planning nexus; is unreasonable in the Newbury sense; or is uncertain or unenforceable. The Court does not re-determine the development application in Class 4 proceedings. Severance and Risk to the Entire Consent If a condition is found to be invalid, it may sometimes be severed from the consent, leaving the remainder of the consent intact. However, this is not always possible. In T ransport for NSW v Parramatta City Council [2020] NSWCA 139, the NSW Court of Appeal confirmed that where an invalid condition is integral to the grant of consent, its invalidity may render the entire consent invalid. This risk underscores the importance of careful strategic assessment and competent legal advice before commencing proceedings. Conclusion Conditions of development consent are a powerful planning tool, but they must operate within clearly defined legal limits. NSW courts have consistently reinforced that conditions must be authorised by statute, connected to the approved development, reasonable in scope, and drafted with certainty. Where a condition goes beyond those limits, early legal advice is essential to determine whether the condition should be challenged through Class 1 merits review or Class 4 judicial review, and to manage the risk to the underlying consent.