As Development Consents are expensive and time consuming to obtain, their retention has always been critical to developers, mining companies and landowners.
Normally a Development Consent will lapse a date 5 years after the date it is granted, unless there is physical commencement of “building, engineering or construction work relating to the building, subdivision or work” which takes place on the site before the expiry date of the consent.
To stop a Development Consent from lapsing requires certain actions to be undertaken by way of works or activities on the site. See section 4.53 of the Environment Planning and Assessment Act 1979 (NSW) (the Act) which sets out the statutory requirements, namely;
- Where building, engineering or construction work has been physically commenced on the land which is the subject of the development consent; or
- Where work has been physically commenced before the date on which the consent of consent would otherwise have lapsed; or
- The work relates to an approved development.
The test has often been based on a bare minimum of physical activity.
In accordance with section 4.53 of the Act, various Court decisions have given guidance in relation to what physical activities or works would prevent a Development consent from lapsing, with the proviso that the works must be lawful and referable to the Development Consent.
See the decision of Cando Management and Maintenance Pty Ltd v Cumberland Council  NSWCA 26, where the New South Wales Court of Appeal considered whether a Development Consent had lapsed. The Court reiterated that Applicant’s must demonstrate that any works that are relied on to activate a Development Consent were carried out in accordance with the conditions of that Development Consent.
Examples of activities that have constituted ‘physical commencement’, as held by the Courts have included:
- extracting samples of water from the site for offsite quality testing;
- erosion and sediment control work;
- acoustical testing for the purpose of engineering works;
- demolition work;
- the removal and testing of soil for the purposes of obtaining a remediation report;
- digging boreholes for the testing of soil conditions; or
- survey work.
What has changed?
On 15 May 2020 a new clause 124AA was inserted in the Environmental Planning and Assessment Regulation 2000 via the Environmental Planning and Assessment Amendment (Lapsing of Consent) Regulation 2020, to state that the following work will not be sufficient to constitute physical commencement of a development in order to save a Development Consent from lapsing:
(a) creating a bore hole for soil testing,
(b) removing water or soil for testing,
(c) carrying out survey work, including the placing of pegs or other survey equipment,
(d) acoustic testing,
(e) removing vegetation as an ancillary activity,
(f) marking the ground to indicate how land is to be developed.
As can be seen from the ambit of this new clause 124AA, certain works will no longer qualify as physical commencement. There has been a paradigm shift.
So, for Development Consents granted post 15 May 2020 careful consideration will now need to be undertaken to ensure that reliance is not placed on the above-mentioned activities, as set out in clause 124AA, as a basis for preventing a Development consent from lapsing. These could have been relied upon in the past.
Accordingly, those that obtain a Development Consent post 15 May 2020 will now need to demonstrate more substantive works, if their Development Consent is not to lapse in accordance with section 4.53 of the Act.