Not now? Not ever!

06 March 2019

A quick refresher on deferred commencement conditions following two recent decisions of the land and Environment Court

Two recent decisions by Justice Preston, the Chief Judge of the Land and Environment Court, have provided a timely reminder of the limitations that conditions of consent have on development consents: Dennes v Port Macquarie-Hasting Council [2018] NSWLEC 95 (Dennes) and Savellis v Sutherland Shire Council [2018] NSWLEC 100 (Savellis).

Deferred commencement consents

Under s 4.16(3) of the EPA Act, development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. Then, under s 4.53(6), the applicant must satisfy the consent authority of all matters specified in deferred commencement conditions, or the development consent will lapse – either within 5 years of the date the consent or a shorter period if specified in the deferred commencement condition. If the period in which the consent will lapse is shorter than 5 years, this period can be extended for one year if the applicant seeks such an extension from the consent authority under s 4.54(1).

If an applicant provides evidence to Council which the applicant thinks satisfies the deferred commencement conditions and Council disagrees, or fails to provide a positive response within 28 days, the applicant can appeal to the Land and Environment Court seeking merits review of Council’s decision under 8.7(1). The Court can then decide whether the conditions are satisfied such that the consent becomes operational.

Lessons and reminders

The following key points were affirmed in the recent decisions:

  1. The applicant must bring an appeal about a deferred commencement condition before the consent lapses. Put simply, no appeal under s 8.7(1) can be brought if the consent has lapsed. A lapsed consent simply does not exist. This was determined by the Court in Dennes at [41] and agreed in Savellis.
  2. The determination of any appeal as to whether the deferred commencement condition is satisfied must occur before the consent lapses. Lodging an appeal does not “stop the clock” and the Court’s decision cannot be back-dated.  A consent will lapse if the time limit set by a deferred commencement condition expires without the applicant receiving confirmation from Council that the conditions are satisfied. Therefore, the Court’s decision, after that time limit has expired, will not change the occurrence of this factual event. See Dennes at [42] for more information.

It was understandable that the applicant in Dennes thought otherwise. In previous cases, some have understood that an appeal would put the consent into a state of suspension, preventing, among other things, its lapse (see for example Roberts v Blue Mountains City Council [2012] NSWLEC 2 at [34]-[35]).

  1. The time in which a deferred commencement condition may be satisfied can only be changed by s 4.54(1). The time-limit cannot be altered by a modification application under 4.55 or 4.56 of the EPA Act, although those provisions may be used to otherwise alter the wording or even remove deferred commencement conditions.

In Savellis, the Council had purportedly approved a modification application which altered the wording of the deferred commencement condition under then s 96(2) of the EPA Act to say the condition must be satisfied “within 3 years” rather than “within 1 year”. The Chief Judge made clear that this purported modification was without effect as the Council had no power to approve a modification application to vary the time within which a deferred commencement condition could be satisfied.

This article was written by Jane Hewitt, Partner and Simon Hill, Associate.

Jane Hewitt

P: +61 2 9334 8639

E: jhewitt@hwle.com.au

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