Normally a Development Consent will lapse a date 5 years after the date it is granted, unless there is physical commencement of “building, engineering or construction work relating to the building, subdivision or work” which takes place on the site before the expiry date of the consent.
The Environmental Planning and Assessment Act specifies that physical work must have commenced on the site before the consent’s expiry date, or before it would have otherwise lapsed, or the work must be related to an approved development. This test has previously only required a minimum level of physical activity. However, various court decisions have provided guidance on what constitutes physical commencement, with the caveat that the works must be legal and consistent with the Development Consent.
In a recent development, a new clause 124AA was added to the Environmental Planning and Assessment Regulation 2000 on May 15, 2020. This clause specifies that certain activities, including creating a borehole for soil testing, removing soil or water for testing, survey work, acoustic testing, removing vegetation as an ancillary activity, and marking the ground to indicate how land is to be developed, will no longer qualify as physical commencement.
As a result, developers seeking to retain their Development Consents granted after May 15, 2020, will need to undertake more substantive works than the activities specified in clause 124AA to prevent their Development Consents from lapsing in accordance with section 4.53 of the Act. This marks a significant shift from past practices where reliance could be placed on the above-mentioned activities to prevent the lapse of a Development Consent.
If you are concerned that your Development Consents has expired or is about to expire, please contact us urgently on 1300 070 770 or legal@blackstonelaw.com.au.
