In June 2022, we wrote about a decision of Justice Duggan in the Land and Environment Court which confirmed that the only source of power to impose a condition of consent relating to the dedication of land was pursuant to either section 7.11 (contributions) or 7.4 (planning agreements) of the Environmental Planning and Assessment Act 1979.
You can read that article which summarises the judgment of Justice Duggan in the case of L & G Management Pty Ltd v Council of the City of Sydney  NSWLEC 149 here.
The restriction on the power to impose conditions to dedicate land has created practical problems for councils, particularly when it comes to development applications where a developer is proposing to construct and dedicate roads to council at no cost.
In those circumstances, despite a developer being willing to hand over the roads to council, the decision of Justice Duggan in L & G Management suggests that a condition of consent in relation to their dedication will only be valid where the council’s contribution plan provides for the dedication of those roads.
In most circumstances, contributions plans do not nominate future roads to be created as being required to be dedicated to council. Therefore, according to the decision in L & G Management the only other legal mechanism for facilitating the dedication is pursuant to a planning agreement.
A recent decision in the Land and Environment Court has suggested that a more practical approach may be available to councils when it comes to the dedication of land as public road.
In a judgment handed down on 2 March 2023 in the matter of Urban Apartments Pty Ltd v Penrith City Council  NSWLEC 1094, Commissioner Horton accepted that the dedication could occur pursuant to section 9 of the Roads Act 1993.
Section 9 of the Roads Act 1993 relevantly states as follows:
“9 Public road created by registration of plan
(1) A person may open a public road by causing a plan of subdivision or other plan that bears a statement of intention to dedicate specified land as a public road (including a temporary public road) to be registered in the office of the Registrar-General.
(2) On registration of the plan, the land is dedicated as a public road.”
In circumstances where the council of a local government area is the roads authority for all public roads within the area, but for any freeway or Crown road, and any public road for which some other public authority is declared by the regulations to be the roads authority, section 9 of the Roads Act 1993 would have the effect of the land being dedicated to council (where council is the roads authority) upon registration of a plan of subdivision bearing a statement of intention to dedicate the land as a public road.
Commissioner Horton considered that this approach could be distinguished from the circumstances considered by Justice Dugan in the L & G Management case, as no condition of consent is required to be imposed to give effect to the dedication. Furthermore, Commissioner Horton considered the facts of the development application the subject of L & G Management to be different, as noted at paragraph 77 of his judgment:
“ This is factually distinct from the proposal advanced by the Applicant in L & G Management in which land was proposed to be subdivided into lots and dedicated to the Council for the purpose of road widening at some point in the future. In that case, the opening of a road was not proposed, and s 9 of the Roads Act was not engaged.”
Whilst the decision of Commissioner Horton in the matter of Urban Apartments is not binding, it seems to us to identify an alternate mechanism by which the dedication of land as public road can be facilitated without reliance on a contributions plan or planning agreement.
However, in order to engage the provisions of section 9 of the Roads Act 1993, council must ensure that the development application clearly proposes to create and open a public road. Having regard to the language of section 9, it seems to us that this requires the provision of a subdivision plan (either in draft or final form) as part of the development application which contains a clear “statement of intention to dedicate specified land as public road”.
It is important to note that in accordance with the decision in L & G Management, and as recognized by Commissioner Horton, notwithstanding the applicant’s proposal to dedicate the land as public road, council cannot impose a condition requiring the same.
In our view, the subdivision plan itself would need to be approved as part of any conditions imposed, to ensure it forms part of the development consent issued. Additionally, a condition of consent should be included which requires the registration of that subdivision plan, to ensure the dedication occurs in accordance with section 9 of the Roads Act 1993.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.