2020 saw several significant amendments to rules regulating the lapsing and rejection of development consents in NSW. This article summarises some of these changes to statute and recent case law considering the amended legislation.
In May 2020, the NSW government passed the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (Emergency Measures Act) which introduced a range of amendments in response to the effects of the COVID-19 pandemic.
One significant amendment that was made to section 4.53 of the Environmental Planning and Assessment Act 1979 (EPA Act) changed the lapsing dates of development consents, and deferred development consents. The extension to lapsing periods was aimed at giving developers and property owners additional time to prepare their documentation, obtain funding and physically commence works before the lapsing date to preserve their consent.
The amendment introduced a ‘prescribed period’ being the period commencing on 25 March 2020 and ending on 25 March 2022. The impact of the amendment on consents depends on the status of the particular consent in relation to the prescribed period.
All development consents and deferred development consents granted during the prescribed period now have a 5 year lapsing period that cannot be reduced or changed by a consent authority.
The lapsing date for any development consent or deferred development consent that was granted before 25 March 2020 and which had not already lapsed on 14 May 2020, was extended by a further 2 years.
A development consent or deferred development consent that lapsed after 25 March 2020 is revived and the lapsing date is extended to a date that is 2 years after the consent initially lapsed.
The amendment is not permanent. Consent authorities will have the power to grant development consents with lapsing periods of less than 5 years from 25 March 2022.
Preliminary works – lapsing of consent
On 15 May 2020 a new clause was added to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) which changed the meaning of physically commenced works when determining when a development consent lapses. Previously, very minor works were sufficient to prevent a consent from lapsing, for example removal of shrubs has been held by the NSW Court of Appeal to be physical commencement of construction work (Cando Management and Maintenance Pty Limited v Cumberland Council  NSWCA 26).
The new clause 124AA provides that the following works do not constitute physical commencement of construction works in order to prevent a consent from lapsing: creating a bore hole for soil testing; removing water or soil for testing; carrying out survey work, including the placing of pegs or other survey equipment; acoustic testing; removing vegetation as an ancillary activity; marking the ground to indicate how land is to be developed.
The new rules apply only to consents granted after 15 May 2020. Developers will now need to be conscious that substantive works will need to be carried out to avoid lapsing of their consents.
Development application – rejection not appealable
On 30 April 2020 Duggan J handed down a decision in the Land and Environment Court that clarifies rules concerning rejection of development applications.
In Johnson Property Group Pty Ltd v Lake Macquarie City Council (No 2)  NSWLEC 42, the applicant appealed against the council’s decision to reject the development application on the basis that the applicant had not submitted an owner’s consent with the application. Owner’s consent is one of the items that must be submitted with an application pursuant to Part 1 Schedule 1 of the EPA Regulation.
Councils have the power to reject a development application within 14 days of receiving the application if the application is not accompanied by one or more of the mandatory items (clause 51 EPA Regulations). The judge found that the applicant did not have a right to appeal to the Court against the Council’s decision to reject the application. This is a departure from earlier case law.
An applicant’s options now are to either seek an internal review of Council’s decision to reject an application under section 8.3 of the EPA Act, or to prepare and lodge a fresh development application, which carries with it significant time and cost implications for the applicant.
The decision provides a Council with a different avenue to deal with an application that the Council considers should not proceed, by rejecting an incomplete application rather than assessing and refusing the application, which would give the applicant a right of appeal to the Land and Environment Court.
Further Information and contact details
Pigott Stinson regularly advises and acts for clients on a range of property matters, including commercial and residential construction and development works. If you would like any further information, please contact our Property Law Partner, Mark Fitzpatrick.