What is a Development Consent?

A Development Consent is a valuable asset.  The terms of the Consent is governed by the Environmental Planning and Assessment Act and by the conditions which are included in the Consent document itself.

A question that is often asked is how long is the Consent valid for?  This can happen because the owner of the property for financial or other reasons didn’t carry out the approved works for some time, or perhaps the owner of the property has sold the property to someone else.

A subsequent owner of the property is entitled to exercise the rights granted by the Development Consent.

The Development Consent document will specify an expiry date.  The date so specified is usually a date between two (2) years and five (5) years.    Five years is the maximum period.  However, so long as “physical commencement” as defined by Section 95 in the Environmental Planning and Assessment Act has occurred after the consent was granted and before the expiry date, then the owner can finish the works effectively at any time unless something else happens to interfere with their right to carry out the works.  So even if an expiry date has passed then so long as sufficient physical commencement work was carried out before the expiry date, the owner could take years to finish the work.

Things to look out for?

Accordingly  it is important to look at the Development Consent document to see what is the nominated expiry date.

If the owner wishes to rely on the fact that “physical commencement” of works has begun before the expiry date then there are several conditions that the work has to meet, namely:

  1. The work has to have been commenced after the date of original approval and before the expiry date, and;
  2. The work has to be “legal”. This usually involves looking at the terms of the Development Consent document to see whether, for instance, the Consent document required that before any work was commenced design plans had to be approved by Council.  If the owner has simply gone ahead and done the work without obtaining Council consent to any design plans in such a case then the work is not legal. There are a number of other things that could make the work illegal depending on the terms of the Development Consent and for instance whether the property is covered by a Heritage Listing.
  3. The nature of the work that was done has to meet the definition of “physical commencement”. Briefly this means the work must be “building, engineering or construction work relating to the building, subdivision or work”.  That was the subject of the Development Consent.  It has been held by the Land and Environment Court that Survey work can satisfy the definition of physical commencement where for instance the Survey work involved actual work being done on the property such as “the taking of levels, placing pegs, the removal of vegetation and the establishment of marks”.  The Survey work must involve work on the site. 

During the term of the Consent, i.e. before the expiry date, it is possible to apply to the Council for an extension of the date. However, a maximum extension of one (1) year only can be obtained.

At Adams & Partners there are Lawyers experienced in this area of work who can provide you with timely and reliable advice.  If you have any questions relating to a Development Consent please ring and make an appointment to consult either Bruce Coode or Peter Adams.

Written by Bruce Coode

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