If you act quickly after receiving a decision notice, you should be able to suspend the Appeal period and make a ‘change representation’. Such actions are part of the DA process under the Planning Act 2016. An applicant only has the opportunity to do this once so it is important that any unreasonable or irrelevant conditions be removed at this point.

The question of whether conditions are lawful is a common one. The Courts have said a lot about the two statutory tests in the Sustainable Planning Act 2009, and more recently under the Planning Act 2016:

  1. Conditions must be relevant to, but not an unreasonable imposition on the development or the use of the premise as a consequence of the development; and
  2. Conditions must be reasonably required in relation to the development or use of the premises as a consequence of the development.

There is also a considerable body of common law 'tests' that an assessment manager or referral agency should follow in applying conditions, including:

  1. finality and certainty principles: conditions should not defer aspects of approval for future determination and should not be uncertain or vague;
  2. conditions should not modify a proposal to create something different from the development application;
  3. conditions cannot fetter future legitimate discretion by the Council;
  4. conditions must be for legitimate planning purposes only.