Independent schools across Australia continue to evolve following the pandemic. Growing enrolments, new teaching models, ageing facilities and changing community needs often require schools to expand, redevelop or intensify the use of an established school site. This is happening in urban and regional areas.

School projects can, however, create a particular legal risk under town planning legislation. Once a school lodges a development application, consent authorities sometimes seek to impose caps on student numbers or use the application opportunistically to address broader infrastructure issues around the site, including traffic congestion, intersection capacity, parking or deficiencies in the surrounding road network. These infrastructure works can be costly.

The difficulty is that those problems may have existed for years. They may result from broader community demand or inadequate infrastructure investment by local or state governments, rather than the development for which approval is sought. 

Parents of independent schools contribute school fees and schools need to steward the use of those fees to best provide for the needs of the school. Without proper advice, schools may feel like they have no choice but to accept a cap or to pay for large infrastructure upgrades if they want to carry out the proposed development. 

However, the law is clear. A school's development application does not necessarily lead to the school becoming responsible for solving wider public infrastructure problems.

A recent decision of the NSW Land and Environment Court in Christian Education Ministries Pty Ltd v Singleton Council [2026] NSWLEC 1646 (CEM v Singleton) serves as an important reminder about the limits consent authorities face in leveraging a school's development application to extract broader contributions for public infrastructure. 

It provides important lessons for schools contemplating redevelopment, expansion and increased enrolments, particularly where the school already operates under an existing development consent.

The case concerned a proposed expansion of the Australian Christian College at Singleton, including a new classroom building, parking and access works and a cap of 665 students. 

The appeal was initially refused with that refusal then appealed. 

By the hearing, the parties agreed that consent could be granted and most conditions were settled. 

The remaining dispute concerned: 

1. Singleton Council's proposed temporary cap of 420 students until the Singleton Bypass became operational; 
   
   
2. construction of a formal channelised right-hand turn lane (CHR) at the New England Highway and Kelso Street intersection; and 
   
   
3. construction of a Stage 1 car park before enrolments exceeded 420.

An important legal issue we often see for any established school is to distinguish between:

1. activities or uses already lawfully permitted under existing approvals; and
   
   
2. the additional development or intensification proposed for which new consent is required.

Distinguishing between these is important for numerous reasons, but relevantly here because a new development application does not necessarily reopen every aspect of an existing school's operations to more onerous regulation or provide an opportunity for extracting a contribution towards the upgrade of local infrastructure surrounding the school.

The NSW Land and Environment Court's decision in CEM v Singleton provides useful guidance on two recurring questions that we see facing schools during the development assessment process, whether that involves state significant development or local development under NSW planning laws:

1. can a new consent be used to re-regulate an activity already authorised by an existing approval; and 
   
   
2. when can an applicant be required to fund public infrastructure works?

The court took a narrow approach to both questions. 

Although law and practice sometimes diverge, under NSW planning law a consent authority must look at what the application needs approval for and what has been applied for. Any condition must fairly and reasonably relate to that development. 

A consent authority such as a council cannot necessarily use a new application to “retrofit” controls onto an existing lawful use, or make an applicant fix a longstanding problem with public infrastructure simply because the development will contribute something to that demand.

The decision confirms that additional use of deficient infrastructure does not, of itself, establish a sufficient nexus to require one applicant to fund an upgrade to local or state infrastructure.

The difficulty for Council was that the school's existing consent did not impose a student cap. The Court accepted that enrolments could lawfully increase within the existing buildings independently of the proposed new classrooms.

The Court found that it could not "assume jurisdiction" over student numbers independently of the new classrooms (at [38]). References to increased enrolments in the development application did not surrender the benefit of the existing consent or mean that fresh approval was required for an increase already lawfully permitted (at [41] and [44]).

Whilst the school was successful, the above controversy serves as a reminder that where an established school proposes new classrooms, sporting facilities, administration buildings or other works, the application should clearly identify:

• what work requires development consent;
  
  
• what activities are already authorised by existing consents;
  
  
• whether existing approvals impose an enrolment or operational limit;
  
  
• the relationship between the new works and any proposed increase in student or staff numbers; and
  
  
• which impacts genuinely arise from the proposed development, as opposed to the existing school.

Loose language within the application and supporting reports describing the project as an overall "expansion" or "increase in enrolments" may encourage a consent authority to treat the application as reopening the entirety of the school's operations.

The application, supporting reports and environmental assessment should therefore align with the school's existing approval framework.

Council also sought to require construction of additional parking before enrolments exceeded 420 students. The traffic experts even agreed that 490 students and 51 staff would exceed the existing formal parking capacity.

Nevertheless, because the increase in enrolment was already permissible under the existing consent, the Court concluded that the new approval could not be used to "retrofit new parking supply to a lawful increase in student numbers" (at [43]).

The Court considered that the existing grassed overflow parking could safely accommodate the increase and the school proposed staged additional parking on occupation of the new classrooms (at [44] and [45]). 

This does not mean that traffic and parking impacts can be ignored. A new development must still demonstrate that its actual impacts are acceptable and can properly be mitigated.

The important point is the nexus. A condition imposed on a new development must relate sufficiently to that development. It may not be able to be imposed to remedy an existing issue associated with an established lawful use.

Council also sought to require the school to fund and construct a formal channelised right-hand turn lane at an intersection with the New England Highway. 

The critical evidence was that the traffic experts agreed it was warranted even without the school's proposed development. General traffic volumes and a longstanding public road deficiency created this need. 

The Court found that there was not a sufficient nexus between the proposed development and the intersection upgrade condition (at [67]).

This is particularly important for established schools. A development may add traffic to an already deficient intersection or road network without being the cause of the deficiency or creating the need for an upgrade.

Where infrastructure is already inadequate and an upgrade is required irrespective of the school development, requiring one school to fund that upgrade may go beyond what can lawfully or reasonably be imposed as a condition of its consent.

Schools considering major capital works should ask early: which impacts arise from the development requiring approval and which problems would exist regardless? That is best teased out by having a clear understanding of precisely what the school can already lawfully do and then methodically preparing an application that clearly separates existing lawful operations from the proposed new development requiring approval and considering those impacts.

Schools and their advisers need to understand that whilst a consent authority can require reasonable measures to address the genuine impacts of a school's proposed development, what it cannot do is use that development application as a Trojan horse to rewrite an existing consent or make the school responsible for solving a public infrastructure problem that exists independently of its proposal.

For further guidance on school development applications, planning approvals or managing infrastructure requirements associated with school redevelopment and expansion, please contact our Planning, Government, Infrastructure & Environment team.