When does a Development Consent Lapse in NSW?

What is a development consent?

Development consent is permission from a Council to carry out development on land.

When does a development consent lapse?

A development consent lapses five years after the date from which it operates (s95(1) of the Environmental Planning and Assessment Act 1979)(EPAA). This doesn’t mean that the whole development covered by the development consent needs to be finished in the five year period to prevent the development consent from lapsing.

Are there any cases where my development consent won’t lapse?

Section 95(4) and (5) of the EPAA provides that development consent for the erection of a building or the subdivision of land or the carrying out of work does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land before the date on which the consent would otherwise lapse.

What is physical development?

Physical development is all activities that involve relevant work necessary for the building, engineering or construction of the approved development; including survey work and geotechnical investigation work.

The test for what constitutes physical commencement was set by the Court of Appeal in the matter of Hunter Development Brokerage v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169. These appeals were separately instituted but were heard together because of the common issues of law being raised, to do with physical commencement. In these cases the Court of Appeal held that survey work and geotechnical investigation work performed by the Applicants amounted to ‘engineering’ work for the purposes of the EPAA and accordingly held that the development consents had not lapsed.

How do I know if my development consent has lapsed?

There are three questions to be answered when determining if development consent has lapsed:

  1. Was the work relied on building, engineering or construction work? If so,
  2. Did it relate to the approved development? If so,
  3. Was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

What work is classed as physical commencement will vary from development to development. The requirement that the relevant work related to the approved development requires a real nexus and must truly be work relating in a real sense to that which has been approved. For work to be ‘physically commenced’ there must be physical activity which involves an appearance of reality and which is not merely a sham.

Can I extend my development consent?

If your development consent has been granted for a period of less than five years Council may grant an extension of one year if you can show ‘good cause’ as to why the extension should be granted.

Implications

Each matter is different and that is why it is so important to obtain legal advice as to whether the work being undertaken for your development is capable of being classed as ‘physical commencement’.

For more information, please contact Marlie Caban at Mallik Rees Lawyers:

marlie@mallikrees.com.au, ph. 02 4990 1266