Emil Ford Lawyers

Development Consent - Lapsed or still current?

No doubt many times you have been presented with the opportunity to acquire a potential development site but it is a live and very important question whether the Development Consent for the site remains valid, or whether it has lapsed. Often, the answer to this question turns upon whether relevant works have been “physically commenced”. For some reason these development sites always seem to become available and change hands right at the end of the Consent period!

A recent decision of the Supreme Court of NSW is illustrative of the issues.

Section 95 (4) of the Environmental Planning and Assessment Legislation provides that development consent does not lapse if “building, engineering or construction work relating to the building, subdivision or work” is physically commenced on the land to which the consent applies, before the date on which the consent would otherwise lapse.

In this case, the developer relied on the following works being performed before the lapsing date for the consent:

  • Demolition and removal of two buildings;
  • Excavation and earthworks;
  • Extraction and removal of old oil tanks from the site and remediation of those areas;
  • Termination and diversion of various services on the site;
  • Construction of stormwater detention basins;
  • Performance of earthworks and construction works on an adjacent road; and
  • Construction of traffic lights.


 " ... the developer relied on the following works being performed before the lapsing date for the consent: ..."

The relevant Authority sought to argue that the works undertaken were “preliminary” in nature and that they could have been done for any development, and were not focussed on the “core” purpose of this potential Consent.

These arguments were rejected by the Supreme Court (in our view quite sensibly) as was an approach by the Authority which sought to bring a meaning to “physically commence” which was closer to “substantially commence”, (being the approach under previous legislation).

This case is reassuring for developers.

If you have any questions relating to development matters of this nature please do not hesitate to .

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