Development consent is permission from a Council to carry out
development on land.
When does a development consent lapse?
A development consent lapses five years after the date from
which it operates (s95(1) of the Environmental Planning and
Assessment Act 1979)(EPAA). This doesn't mean that the
whole development covered by the development consent needs to be
finished in the five year period to prevent the development consent
Are there any cases where my development consent won't
Section 95(4) and (5) of the EPAA provides that development
consent for the erection of a building or the subdivision of land
or the carrying out of work does not lapse if building, engineering
or construction work relating to the building, subdivision or work
is physically commenced on the land before the date on which the
consent would otherwise lapse.
What is physical development?
Physical development is all activities that involve
relevant work necessary for the building, engineering or
construction of the approved development; including survey work and
geotechnical investigation work.
The test for what constitutes physical commencement was set by
the Court of Appeal in the matter of Hunter
Development Brokerage v Cessnock City Council; Tovedale Pty Ltd v
Shoalhaven City Council  NSWCA 169. These appeals
were separately instituted but were heard together because of the
common issues of law being raised, to do with physical
commencement. In these cases the Court of Appeal held that survey
work and geotechnical investigation work performed by the
Applicants amounted to 'engineering' work for the
purposes of the EPAA and accordingly held that the development
consents had not lapsed.
How do I know if my development consent has lapsed?
There are three questions to be answered when determining if
development consent has lapsed:
Was the work relied on building, engineering or construction
work? If so,
Did it relate to the approved development? If so,
Was it physically commenced on the land to which the consent
applied prior to the relevant lapsing date?
What work is classed as physical commencement will vary from
development to development. The requirement that the relevant
work related to the approved development requires a real nexus
and must truly be work relating in a real sense to that which has
been approved. For work to be 'physically commenced' there
must be physical activity which involves an appearance of reality
and which is not merely a sham.
Can I extend my development consent?
If your development consent has been granted for a period of
less than five years Council may grant an extension of one year if
you can show 'good cause' as to why the extension should be
Each matter is different and that is why it is so important to
obtain legal advice as to whether the work being undertaken for
your development is capable of being classed as 'physical
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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