The starting point is section 4.53 of the Environmental Planning and Assessment Act 1979 (NSW). This section fixes a period of time from the grant of the consent after which a development consent will lapse, unless certain works have been carried out to the land.
A development consent lapses 5 years after the date from which it operates (lapsing period). This Is the default position. However, the consent authority can reduce or extend the lapsing period at is discretion (other than in respect of a ‘concept development consent’ that requires a subsequent development application and consent). Furthermore, the consent authority can’t reduce the lapsing period in relation to a consent to erect or demolish a building or to subdivide land to lapse within 2 years.
A development consent for the erection of a building, subdivision of land or the carrying out of a work will lapse at the expiry of the lapsing period unless the following three things have occurred:
- ‘building, engineering or construction work’ is undertaken on the land which is the subject of the consent;
- the work was ‘physically commenced’ before the end of the lapsing period; and
- the work ‘relates to’ the approved development.
Under the Act, ‘building work’ is broadly defined as ‘any physical activity involved in the erection of a building’ but ‘engineering work’ and ‘construction work’ are not defined. These expressions have been considered by the Courts to include survey work or taking water samples from the land for testing off-site.
The term ‘physically commenced’ suggests work being done on the land rather than any design work occurring off-site.
Finally, there must be some real connection between the development and the building, subdivision or work carried out.
Even if the three elements above are satisfied, if the consent is subject to a ‘deferred commencement condition’ and the applicant fails to satisfy the consent authority as to the condition within 5 years from the grant of the consent, then the development consent will lapse.
Planning regulations can be complex, but you will find the team at Conditsis Lawyers is here to demystify your planning concerns. Call us on (02) 4324 5688 today.
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