A con­di­tion using the term ​“Appli­cant” can impose a restric­tion relat­ed to the iden­ti­ty of the user

A con­di­tion using the term ​“Appli­cant” can impose a restric­tion relat­ed to the iden­ti­ty of the user only – and may not ​“run with the land”: Dravin Pty Ltd v Black­town City Coun­cil [2017] NSWLEC 38

Why is Dravin important? 

We are prob­a­bly all a bit lazy about throw­ing around phras­es like ​“in rem” and ​“con­sents run with the land”. Dravin reminds us that a more care­ful exam­i­na­tion of con­di­tions of con­sent are required.

Pur­chasers and devel­op­ers: Have you pur­chased land or devel­oped land with the ben­e­fit of a devel­op­ment con­sent? Do ALL the con­di­tions apply in rem? Are any per­son­al? Is the word ​“Appli­cant” used in the con­sent? What does ​“Appli­cant” mean in the con­text of that con­sent?

Due dili­gence exer­cis­es: Are there any par­tic­u­lar con­di­tions that should be inter­pret­ed as per­son­al, that will not trans­fer when a busi­ness or land is pur­chased?

Coun­cils: The term ​“Appli­cant” in con­sents should be avoid­ed – is it intend­ed that ​“a per­son enti­tled to act on the con­sent” can utilise the con­di­tion, or the per­son who is the appli­cant for the devel­op­ment con­sent? Over the counter enquiries about exist­ing con­sents should be treat­ed with care – a sim­ple response that ​“con­sents run with the land” is not suf­fi­cient, or accu­rate.

Draft­ing con­di­tions of con­sent: Be mind­ful in appor­tion­ing respon­si­bil­i­ty for com­pli­ance with a con­di­tion by the appli­cant. If the con­di­tion is intend­ed to apply to future own­ers or ben­e­fi­cia­ries of the con­sent, con­sid­er using the phrase ​“the ben­e­fi­cia­ry of the con­sent” ​“or ​“per­son who may act on the consent”.

The Deci­sion

Dravin appealed against the deci­sion of Com­mis­sion­er Brown, who refused the sec­tion 96 mod­i­fi­ca­tion appli­ca­tion on the basis that the pro­pos­al did not meet the two pre­con­di­tions of sec­tion 96(1A): the pro­pos­al was not of min­i­mal envi­ron­men­tal impact, and it failed to demon­strate that the devel­op­ment would be sub­stan­tial­ly the same as the orig­i­nal con­sent. His Hon­our Jus­tice Pre­ston, the Chief Judge, reviewed the Commissioner’s rea­sons for refusal. One of the Commissioner’s find­ings was that ​“the Appli­cant” in con­di­tion 2.2(ii) was a ref­er­ence per­son­al­ly, to Mr Hle­bar, who was the Appli­cant for the orig­i­nal 1978 devel­op­ment con­sent. Dravin, in the appeal alleged this was an erro­neous con­struc­tion of the word ​“Appli­cant”.

Dravin sub­mit­ted that ​“Appli­cant” in a con­sent means any­one who may act on the con­sent. A devel­op­ment con­sent runs with the land and ​“is not per­son­al to the appli­cant but enures for the ben­e­fit of sub­se­quent own­ers and occu­piers, and in some respects a con­sent is equiv­a­lent to a doc­u­ment of title” (Else-Mitchell J per Ryde Munic­i­pal Coun­cil v Roy­al Ryde Homes (1970) 19 LGRA 321 at 324, as extract­ed at [20]). Con­di­tion 2.2(ii) was incor­po­rat­ed into the con­sent in def­er­ence to a let­ter from the Met­ro­pol­i­tan Waste Dis­pos­al Author­i­ty, to whom the Appli­cant, Mr Hle­bar, had applied. Dravin argued ​“Appli­cant” in con­di­tion 2.2(ii) was the ​“own­er” or ​“oper­a­tor” [at 21]. 

The Coun­cil accept­ed that there is a gen­er­al prin­ci­ple that a con­sent oper­ates in rem. How­ev­er, that gen­er­al prin­ci­ple ​“must oper­ate sub­ject to the express lan­guage of the con­sent” [23]. His Hon­our Jus­tice Pre­ston agreed with the Council’s sub­mis­sions, indi­cat­ing that ​“A con­sent can law­ful­ly impose restric­tions relat­ed to the iden­ti­ty of the user.” [27]. On close exam­i­na­tion of the con­di­tion, Pre­ston CJ observed the con­di­tion lim­it­ed the waste that could be received to ​“Waste car­ried by the appli­cant in his own vehi­cles” [28], the lim­i­ta­tion to ​“his vehi­cles” indi­cat­ed a ​“lim­i­ta­tion by ref­er­ence to the iden­ti­ty of the per­son” [29]. Also impor­tant in this mat­ter was that trans­port­ing waste is an activ­i­ty that requires a licence. A licence is per­son­al, and does not oper­ate in rem [30]. Pre­ston CJ also observed the dis­tinc­tion between ​“use of land for the pur­pose of a waste dis­pos­al depot and the activ­i­ty of trans­port­ing waste to that land. A devel­op­ment con­sent attach­es to the land on which the use for the pur­pose of waste dis­pos­al depot per­mit­ted by the con­sent is car­ried out……the con­sent does not attach to oth­er land that is not the sub­ject of the con­sent” [30].

Find the case here.