HWL Ebsworth Lawyers has successfully defended Woollahra Municipal Council in Class 4 proceedings in the Land and Environment Court in a case concerning what was required to satisfy a deferred commencement condition in a development consent.

In his judgment, Beasley J confirmed that where a deferred commencement condition requires a council to be satisfied that evidence has been provided that addresses particular matters specified in a deferred commencement condition, an applicant does not satisfy that condition merely by lodging documents before the lapsing date. Rather, such a condition requires that the Council must actually turn its mind to the evidence and reach a requisite state of satisfaction that the evidence addresses those matters, before the consent becomes operative.

Background

On 13 April 2021, Council granted development consent for the demolition of an existing dwelling and the construction of a new dwelling for a property in Bellevue Hill, NSW. The consent was subject to a deferred commencement condition (Condition A3) requiring the applicant to submit revised stormwater plans which specifically addressed certain matters before the consent would operate.

Because of temporary COVID-19 legislative amendments, the applicants had until 14 April 2026 (five years after the grant of consent) to satisfy Council as to Condition A3 before the consent would lapse.

The Applicants first submitted stormwater plans on 4 March 2026. Council’s development engineers reviewed the plans, however, they determined that the plans were insufficient to satisfy Condition A3 and requested further information. The additional information was provided by the Applicant on 30 March 2026.

Council was only able to finalise its review of that additional information, and therefore determine the additional material was sufficient to address the matters specified in condition A3, on 28 April 2026.

By this date, however, Council considered the consent had lapsed, as they were only able to satisfy themselves that the revised material was sufficient to satisfy Condition A3 after the lapsing date.

The Applicants subsequently commenced Class 4 proceedings seeking a declaration that Condition A3 had been satisfied (amongst other declarations), on the basis that they had produced evidence as to the matters specified in condition A3 prior to the lapsing date.

Findings

The principal issue in contention was whether Condition A3 required either:

• only the submission, before the lapsing date, of material capable of satisfying Council as to the matters specified in condition A3 (as contended by the Applicant); or
• Council itself actually reaching a state of satisfaction about that material before the lapsing date (as contended by Council).

The Applicants argued that Condition A3 was satisfied once they provided evidence capable of enabling Council to be satisfied of the relevant matters, and that Council’s assessment and determination could occur after the lapsing date.

That argument was rejected by the Court.

Beasley J held that, properly construed, Condition A3 required Council to reach a state of satisfaction that the revised stormwater plans addressed the matters specified in Condition A3. His Honour held that this state of satisfaction could only be reached after Council had actually considered the material submitted by the Applicants and that it could not arise merely upon the production of that material.

In reaching this conclusion, the specific wording of Condition A3 was key. In this regard, the condition required that Council must be satisfied that the revised plans addressed the matters specified in Condition A3. Council could only determine that the revised materials addressed condition A3 once they had completed their assessment of those materials.

As Beasley J observed at paragraph [56] of the judgment:

‘In other words, prior to the agreed date between the parties when the Development Consent would lapse (14 April 2026), Council had to form a mental state of satisfaction not only that the Plans had been produced, but that they addressed (the Court’s emphasis) the matters in subparagraphs 1(a), (b), and (c) of Condition A3. That state of satisfaction as to whether the Plans addressed 1(a), (b) and (c) could only be reached from a consideration as to the contents of the Plans. It could not be reached merely on the submission or production of the Plans.’

Because Council did not reach that state of satisfaction until 28 April 2026, the consent had lapsed under s 4.53(6)(b) of the Environmental Planning and Assessment Act 1979.

Consequently, the Applicants’ Amended Summons was dismissed.

Key takeaways

The case underscores the importance of careful drafting. The outcome turned on the specific wording of Condition A3, which the Court read as requiring Council to be satisfied that the submitted plans addressed specific requirements, not merely that plans capable of addressing them had been provided. Councils should review their standard deferred commencement conditions to ensure they clearly identify both the matters requiring assessment and the state of satisfaction Council must reach before the consent will operate.

This decision also stresses the importance of timing as it relates to deferred commencement conditions and how a delay in the production of evidence may result in a subsequent delay in the assessment of that evidence, resulting in deferred commencement consents lapsing.

This article was written Jane Hewitt, Partner, and Jeremy Leech, Solicitor.