Property law

Existing Use Rights – Part One (Explained)

Existing Use Rights – Part Two (Explained)

By Mark Evans • December 4, 2025

Our latest video discusses existing use rights, their expansion, enlargement, intensification of use and change of existing use rights.

Existing Use Rights – Part One (Explained)

By Mark Evans • November 30, 2025

Planning law changes can create uncertainty for property owners and developers.

Understanding road closures by local councils in NSW and the appeal process

By Mark Evans • November 13, 2025

Understanding road closures by local councils in NSW and the appeal process

Existing Use Rights – Part One

By Mark Evans • October 2, 2025

Existing use Rights

An aerial view of a green field with markers drawn on it.

When is a boundary realignment "minor" and therefore exempt development?

By Mark Evans • November 7, 2022

A boundary realignment must be "minor" to be exempt

An aerial view of a small island in the middle of the ocean.

Does an Amended LEP Apply to Your Development Application?

By Mark Evans • September 6, 2022

In this article, we explain whether an amended LEP in place at the time of lodgement applies to a development application or at the time of determination, and what happens if an LEP is amended.

A green key on a keyboard that says easement

A Guide to Easements and Ancillary Rights - Part 1

By Mark Evans • March 30, 2022

In this article, you will find the answers to some common questions on the subject of easements, including ancillary rights and obligations implied in it.

The word ancillary is written in wooden blocks on a wooden table.

A Guide to Easements and Ancillary Rights - Part 2

By Mark Evans • March 29, 2022

This article, which is a continuation of the article entitled "Easements | Ancillary Rights | Part One", tackles common issues surrounding easements, including who is responsible for maintenance and liability for damage while using the easement.

Who is Responsible for the Repair and Maintenance of Retaining Walls?

By Mark Evans • January 2, 2020

This article entitled "Retaining Walls" contains a video discussing retaining walls and who is responsible for maintaining and repairing them.

A large white house with a porch and stairs

What to Do When Your Neighbour’s Tree Is Damaging Your Property

By Mark Evans • October 15, 2019

In this article, you will learn what legal actions you can take if your neighbour's tree is causing damage to your property.

A white house with a black roof and a fence in front of it.

How to Know if Your Neighbour Has to Contribute for the New Fence

By Mark Evans • October 8, 2019

In this article, you will learn whether or not your neighbour has to contribute for the new fence between you and their property.

A black and white photo of a brick house

Do I Have a Right to a View? A Fast Overview for Property Owners

By Mark Evans • September 18, 2019

Property owners don't have a right to a view. If you are looking to purchase a property with stunning views, you should practice caution. Read more.

Need expert advice?

Whiteacre Legal are committed to achieving solutions for clients.

Book an initial consultation today so we can assist you further.

Contact Us

A white background with a few lines on it

Whiteacre is a boutique property law firm specialising in planning and environment law. We bring more than 20 years of experience acting for private developers, private equity funds and local councils, giving us a unique insight into the significant challenges that each side faces for development applications, planning agreements or support for complex litigation matters.

Get In Touch

Phone:

02 9145 0900

Head Office

Wollongong

Suite 3, 129 Crown Street,

Wollongong NSW 2500

LinkedIn Page

Mark evans gave practice and sound advice .

News and Insights

The Law of Private Nuisance in NSW and the Impact of Hunt Leather v Transport for NSW [2025] HCA 53

By Mark Evans • February 27, 2026

Part 1: The Law of Private Nuisance in NSW What is Private Nuisance? Private nuisance is a common law tort that protects landowners from substantial and unreasonable interference with their use and enjoyment of land. Unlike public nuisance — which affects the broader community — private nuisance is concerned with protecting the rights of individual landowners against interference caused by neighbouring activities. The tort does not require any physical entry onto the plaintiff's land. Interference caused by noise, vibration, dust, fumes, noxious odours, or prolonged obstruction of access can all found a nuisance claim, provided the interference is sufficiently serious. At its core, private nuisance seeks to balance two competing interests: the right of a landowner to enjoy their property without undue disturbance, and the freedom of a neighbouring landowner to use their land for legitimate purposes. Key Elements of a Private Nuisance Claim To succeed in a claim for private nuisance, a plaintiff must establish two key elements. First, there must be a substantial interference with the plaintiff's ordinary use and enjoyment of their land. Trivial or fleeting disruptions will not meet this threshold. The interference must be something that a person of ordinary habits and sensibilities, taking into account the surrounding environment and circumstances would find genuinely disruptive to their normal use of property. Second, that interference must be attributable to the defendant's use of land or activities that affect the plaintiff's land. The concept of 'substantial interference' is assessed objectively, having regard to the locality in which the land is situated and the reasonable expectations of persons using land in that area. Courts will consider the nature, duration, frequency, and intensity of the interference when determining whether it crosses the necessary threshold. A person who operates a business in Sydney's CBD, for example, must tolerate a greater degree of noise and disruption from nearby commercial activities than a homeowner in a quiet suburban street. How Private Nuisance Differs from Negligence Private nuisance is frequently conflated with the tort of negligence, but the two are conceptually and practically distinct. In negligence, the central question is whether the defendant failed to exercise reasonable care — the focus is on the defendant's conduct. In private nuisance, the focus is on the nature of the interference with the plaintiff's land, not the manner in which the defendant behaved. A defendant who has exercised all reasonable care and skill, and who cannot be criticised for the way in which it conducted its activities, may nonetheless be liable in private nuisance if the interference with the plaintiff's land is found to be unreasonable. This distinction has significant practical consequences for plaintiffs. It means that landowners and business operators who suffer interference with their properties are not required to identify and prove a specific act of carelessness on the part of the defendant. The question is whether the interference itself was unreasonable — and whether the defendant can demonstrate a lawful justification for it. The Locality Principle NSW courts apply a locality principle in assessing private nuisance claims. The reasonable expectations of ordinary landowners differ depending on whether property is located in a quiet residential area, a busy commercial precinct, or an established industrial zone. The standard applied is that of a person of ordinary habits and sensibilities living in the relevant locality, not an unusually sensitive plaintiff whose discomfort results from a pre-existing vulnerability. Defences Available to Defendants Several defences may be available to a defendant in a private nuisance claim. The most commonly invoked — particularly in the context of public infrastructure — is the defence of statutory authority. Where legislation authorises a public authority to carry out works that would otherwise constitute a nuisance, the authority may escape liability on the basis that the interference was an inevitable consequence of exercising its statutory powers. A common example is roadworks where a statutory authority, typically a Council is authorized by legislation to carry out roadworks that may impact on private land. However, the defence is not unlimited. To succeed, the defendant must establish both that the statutory power authorised the relevant interference and that the power was exercised in a manner that reasonably minimised the impact on affected landowners. A statutory power to build, without more, does not authorise every form of disruption that results from the way in which construction is carried out. Other recognised defences include prescription — where the nuisance has continued openly for 20 years without objection — and consent. These defences are narrowly applied and will rarely excuse substantial ongoing interference. Remedies for Successful Plaintiffs A successful plaintiff in a private nuisance action may seek two principal forms of relief. Damages may be awarded to compensate for losses suffered as a result of the interference, including loss of use and enjoyment of land, diminution in property value, and losses to a business operated from the affected premises. In some cases, consequential economic losses arising from the interference may also be recoverable. An injunction may be available to restrain the defendant from continuing the nuisance, though courts exercise discretion in granting injunctive relief and will consider whether damages would be an adequate remedy and where the balance of convenience lies. Why Private Nuisance Matters for NSW Landowners Private nuisance remains one of the most valuable legal tools available to NSW landowners and business operators who suffer interference with their properties. It does not require proof that the defendant was careless. It does not require physical entry onto the plaintiff's land. And it is not dependent on any specific statutory compensation scheme. This combination of features makes private nuisance particularly relevant for those affected by large-scale construction projects, infrastructure works, and industrial or commercial activities in proximity to their premises. The High Court's decision in Hunt Leather v Transport for NSW [2025] HCA 53 has confirmed and clarified the legal principles that govern such claims — and in doing so, has strengthened the position of aggrieved landowners considerably. Part 2: Hunt Leather v Transport for NSW [2025] HCA 53 — Case Summary Background and Facts The case arose from the construction of the Sydney Light Rail project — a major infrastructure undertaking in the Sydney CBD, connecting Circular Quay with Randwick and Kensington. Transport for NSW ( TfNSW ) was the statutory authority responsible for the design and delivery of the project. The plaintiffs, including Hunt Leather Pty Ltd, were proprietors of businesses located along the construction route. They brought representative proceedings seeking damages against TfNSW in private nuisance, alleging that TfNSW's construction activities caused substantial interference with their businesses through noise, dust, vibrations, and impediments to access. The central complaint was not merely that construction was disruptive, but that it extended far beyond the timeframes set out in TfNSW's Initial Delivery Program ( IDP ) — the document that notified affected businesses of the anticipated duration of construction in each stage or 'fee zone.' The delays were substantially caused by the unexpected discovery of underground utilities along the construction route, which had not been identified or accounted for when the IDP was prepared. The Trial Decision At first instance in the NSW Supreme Court, the trial judge found TfNSW liable in private nuisance. The judge held that the delays which caused construction to extend beyond the IDP periods amounted to unreasonable interference with the plaintiffs' enjoyment of their properties. Critically, the trial judge rejected TfNSW's submission that it had exercised reasonable care in planning the works and that this was sufficient to defeat the claim. The judge accepted that reasonableness in nuisance is assessed by reference to the nature of the interference — not the conduct of the defendant. The NSW Court of Appeal TfNSW appealed, and the NSW Court of Appeal overturned the trial judge's findings. The Court of Appeal concluded that the plaintiffs had failed to establish that the interference was unreasonable. In the Court's view, the IDP could not be treated as a reliable benchmark for assessing the reasonableness of the interference, because it made no allowance for contingencies such as inclement weather or the discovery of underground utilities. The Court also held that the plaintiffs had failed to establish what pre-construction investigations TfNSW could reasonably have undertaken, whether those investigations would have been feasible, how long they would have taken, and whether they too might have constituted a substantial interference with the plaintiffs' land. In the absence of that evidence, the plaintiffs could not demonstrate that the construction exceeded a reasonable timeframe. The Court of Appeal went further, stating that it could not be the law that construction authorised by statute becomes actionable nuisance simply because it takes longer than scheduled. This observation reflected significant judicial caution about the prospect of imposing nuisance liability on public infrastructure projects that experience ordinary construction delays. The High Court Decision The High Court allowed the plaintiffs' appeal and upheld the trial judge's finding. In doing so, the Court provided the most authoritative and comprehensive statement of the principles governing private nuisance to emerge from an Australian appellate court in many years. The lead judgment was delivered by Justices Gordon and Edelman, with the Chief Justice and other members of the Court providing separate concurring judgments. Substantial Interference — The starting point for any nuisance claim is whether there has been a substantial interference with the plaintiff's ordinary enjoyment of land. This threshold must be established by the plaintiff and is assessed objectively by reference to the locality and the reasonable expectations of persons using land in that area. The High Court confirmed that this element was clearly established on the facts: the prolonged occupation of fee zones, far beyond what was contemplated in the IDP, plainly constituted a substantial interference with the plaintiffs' use and enjoyment of their properties. Common and Ordinary Use — Once substantial interference is established, the onus shifts to the defendant to justify it. The first question is whether the defendant's use of land was 'common and ordinary' for that locality. This is assessed with regard to the objectively reasonable expectations for land use in the relevant area. The Court emphasised that 'common and ordinary' does not mean 'performed with reasonable care.' The inquiry is about the nature of the use itself — whether it is the kind of use that landowners in that locality could reasonably expect from their neighbours — not about the standard of care with which it is carried out. Conveniently Done — Even if a defendant's use of land is found to be common and ordinary, it may still constitute nuisance unless the defendant can establish that the interference was 'conveniently done.' This test requires the defendant to demonstrate that it took reasonable steps to minimise the extent of the interference with the plaintiff's enjoyment of land. As Justices Gordon and Edelman explained, this requires consideration not merely of the convenience of the defendant, but also the convenience of the plaintiff. A defendant cannot point to its own operational preferences, financial constraints, or project management decisions to justify an extended and substantial interference with a neighbouring landowner's use of their property. Burden of Proof — The High Court confirmed the allocation of the burden of proof with clarity. The plaintiff bears the legal onus of establishing substantial interference with the common and ordinary use of their land. Once that is established, the onus shifts to the defendant to prove — by way of defence — that its use of land was common and ordinary and was conveniently done. The plaintiff also has an evidentiary onus to identify the respects in which the defendant's conduct was not conveniently done, but is not required to prove a detailed counterfactual about what the defendant could have done differently and with what result. No Counterfactual Required — One of the most important aspects of the High Court's decision is its rejection of the Court of Appeal's finding that the plaintiffs were required to establish what steps TfNSW could and should have taken prior to and during construction to reduce the interference, and to prove that those steps would have made a material difference. The High Court held that this requirement imposed an unrealistic and disproportionate evidential burden on plaintiffs who are unlikely to have access to the defendant's internal planning records, operational data, and project management decisions. Statutory Authority Defence TfNSW argued that it was immune from liability on the basis that the Sydney Light Rail was authorised by legislation. The High Court upheld the Supreme Courts' rejection of this defence. The Court confirmed that statutory authority requires the defendant to establish that the interference was an inevitable consequence of the exercise of the statutory power — not merely that the project as a whole was authorised by statute. Because the prolonged delays that caused the interference resulted from TfNSW's own planning decisions and choices, rather than from the inherent nature of the authorised works, the interference was not inevitable. The statutory authority defence therefore failed. Section 43A of the Civil Liability Act 2002 (NSW) TfNSW also relied on s 43A of the Civil Liability Act 2002 (NSW), which attenuates the standard of care applicable to public authorities exercising special statutory powers. The High Court unanimously confirmed that s 43A does not operate as a standalone defence, but rather adjusts the applicable standard of care. More importantly, the Court held that s 43A did not apply on the facts because the planning and procurement of the project did not involve the exercise of a 'special statutory power' within the meaning of the provision. Outcome Although the Justices reached different conclusions on the question of whether TfNSW's use of land was 'common and ordinary,' they were unanimous in finding that TfNSW's construction was not 'conveniently done.' TfNSW was accordingly held liable to the plaintiffs in private nuisance, and the trial judge's award of damages was reinstated. Part 3: Implications for Private Nuisance Law in NSW Nuisance and Negligence Are Distinct The High Court's most enduring contribution in Hunt Leather is the unequivocal confirmation that private nuisance and negligence are distinct torts governed by different principles. For plaintiffs, this is of profound practical significance. A landowner or business operator who suffers substantial interference with the use and enjoyment of their property is not required to prove that the interfering party was careless, that a duty of care was owed, or that the defendant breached any applicable standard of reasonable conduct. The question in nuisance is whether the interference itself was unreasonable — not whether the defendant's behaviour was unreasonable. This distinction opens the door to liability even where the defendant has done everything that could reasonably be expected of a careful and diligent operator. A Stronger Position for Affected Landowners For NSW landowners and business operators, Hunt Leather provides a clearer and more accessible legal framework for pursuing private nuisance claims arising from construction and infrastructure works. The rejection of the counterfactual requirement — which would have compelled plaintiffs to mount a detailed expert case about how the defendant's project planning should have been conducted — removes a significant practical obstacle. Affected parties need only identify the respects in which the defendant's use of land was not conveniently done. Once that evidentiary case is made, the burden falls squarely on the defendant to justify the interference. This is a more workable framework for landowners and business operators who will often lack access to the defendant's internal planning documents, programming schedules, and operational decision-making. It recognises that the plaintiff is not in a position to know the full detail of how the defendant managed its project. Obligations for Statutory Authorities and Project Proponents The decision carries important and practical implications for statutory authorities responsible for infrastructure and construction projects, as well as for their contractors and project managers. The mere fact that works are authorised by statute will not protect an authority from liability in private nuisance. To successfully invoke the statutory authority defence, the authority must demonstrate that the interference with neighbouring landowners was an inevitable consequence of exercising its statutory powers — and that those powers were exercised diligently and expediently and with proper consideration for the interests of affected parties. Where delays and disruptions result from the authority's own planning choices — inadequate pre-construction investigations, unrealistic programming or poor risk management — the statutory authority defence will not provide protection. Authorities and contractors must invest seriously in thorough pre-construction investigations, realistic and contingency-aware programming, and active management of construction impacts on neighbouring properties and businesses. Where extended works or delays are unavoidable, authorities should be in a position to demonstrate the specific steps taken to minimise the impact on affected parties. The 'Conveniently Done' Standard The High Court's articulation of the 'conveniently done' standard will be a focal point of future private nuisance litigation. The test is a demanding one. It requires defendants to demonstrate not merely that their chosen approach to construction was operationally convenient or cost-effective for them, but that it gave proper and genuine consideration to the impact on neighbouring landowners. The interests of the plaintiff must be weighed alongside the interests of the defendant in assessing whether the interference was conveniently done. In practice, this means that authorities and project proponents should document their impact mitigation efforts from the earliest stages of a project. Evidence of proactive engagement with affected businesses, meaningful adjustment of construction sequences to reduce impacts, and genuine consideration of alternative approaches will all be relevant to establishing that the interference was conveniently done. Defendants who cannot point to such measures will face significant exposure. Conclusion Hunt Leather v Transport for NSW [2025] HCA 53 is the most significant development in the law of private nuisance in Australia in recent decades. By authoritatively clarifying the framework for establishing and defending nuisance claims, and by firmly distinguishing the tort from negligence, the High Court has provided both plaintiffs and defendants with a clearer understanding of their legal rights and obligations. For landowners and business operators in NSW, the decision confirms that private nuisance is a robust and accessible legal remedy — one that provides genuine protection where the use and enjoyment of land is substantially and unjustifiably disrupted by the activities of others. For statutory authorities, infrastructure proponents, and their contractors, it is a clear signal that thorough planning, realistic programming, and genuine impact mitigation are not merely good practice — they are legal imperatives. 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.

No Right of Appeal Against Council Rejection of Development Applications in NSW

By Mark Evans • February 20, 2026

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.

Validity of Development Consent Conditions in NSW

By Mark Evans • January 14, 2026

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.

Whiteacre is a boutique planning and property law firm specialising in planning and environmental law. We bring more than 20 years of experience acting for private developers, private equity funds and local councils, giving us a unique insight into the significant challenges that each side faces for development applications, planning agreements or support for complex litigation matters.

Get In Touch

Phone

02 9145 0900

Head Office

Wollongong

Suite 3, 129 Crown Street, Wollongong NSW 2500