Written by The recent decision in Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19 confirms that councils can require developers to make monetary contributions for affordable housing, but only if the condition is validly authorised.
In this case, the applicants received a development consent to extend their property, subject to a condition requiring contributions for affordable housing. However, the Waverley Local Environmental Plan 2012 (NSW) did not include a provision authorising such conditions. The Council argued it could rely on clause 15A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, but the Court found that this transitional provision no longer had legal effect at the time of consent. Justice Pritchard held that the contribution condition was therefore invalid.
The Court also considered whether the invalid condition could be severed from the consent. This would only be permissible if removing the contribution condition would not affect how the remainder of the consent operated. The Court found that, as a monetary contribution condition, it could be severed without changing the operation of the consent.
This case highlights the importance of ensuring affordable housing contribution conditions are authorised by a local environmental plan, and reveals the need for careful review of consent conditions.