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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 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? 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 10 a (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 300 m (984 ft) 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