In a recent decision of Justice Robson in Willoughby City Council v Blanc Black Projects Pty Limited [2023] NSWLEC 54 regard was had to the effect relevant provisions of a local environmental plan had when imposing conditions for contributions for affordable housing under section 7.32(3)(b) of the Environmental Planning and Assessment Act 1979 (EPAA).
The decision involved an appeal against the Acting Commissioner’s refusal to impose a condition requiring the monetary contribution for the provision of affordable housing on Blanc Black Projects’ development, which proposed the demolition of two existing dwelling houses and the construction of a four storey residential flat building comprising 12 apartments. The Acting Commissioner concluded that the condition could not be lawfully imposed where it was not authorised by the Willoughby Local Environmental Plan (WLEP).
Section 7.32(3)(b) of the EPAA relevantly states as follows (emphasis added):
“(3) A condition may be imposed under this section only if:
…
(b)the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan …”
It is worth noting the relevant affordable housing provision in the WLEP relevantly issued “Willoughby Affordable Housing Principles” supporting the imposition of affordable housing conditions and a clause which was expressly directed to the consideration of affordable housing concerns in the process of determining development applications. The WLEP did not however itself impose any precondition in relation to the imposition of affordable housing conditions.
In his decision Justice Robson considered the operation of section 7.32(3)(b) with particular emphasis on the meaning of authorised and the relationship of the section to the relevant provision of a local environmental plan.
In considering the meaning of authorised, Justice Robson provided that “a decision-maker was bound to satisfy the requirements incidentally imposed by the local environmental plan applicable to the development application.”
Concerning the relationship between the EPAA and the local environmental plan, Justice Robson relied on the rules of interpretation, stating that the WLEP must be read by reference to the language of section 7.32(3) which specifies circumstances when an affordable housing condition may be imposed, in that regard any reliance on the WLEP is to be limited to the form of conditions that can be imposed.
In Justice Robson’s findings he concluded that the decision maker is constrained by section 7.32(3)(b) and the relevant local environmental plan provision, to the extent that they both set out preconditions to the imposition of affordable housing conditions. However, as stated by Justice Robson, the WLEP “imposes a precondition to the exercise of the power to grant development consent, but not to the exercise of the power to impose affordable housing conditions”. Therefore the Acting Commissioner’s reliance on the WLEP affordable housing provision was misplaced to the extent that it resulted in finding that the condition could not be imposed and erred in law by doing so.
With this decision in mind it is important to note not all provisions of a local environmental plan relating to affordable housing and conditions for the same will be considered relevant under section 7.32(3) of the EPAA.
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.
