Temporal Limitations in Development Consents

3rd November 2022

In this article, we discuss temporal limitations in development consents:

The creation of a temporal limitation in a development consent has been considered in various cases and the Court’s approach to these types of conditions of consent is now well-established.

A relevant case is Kendall St Developments Pty Ltd v Byron Shire Council (No. 2) [2004] NSWLEC 530 ("Kendall"), which clearly outlines the approach taken by the Court.

In this case, the applicant sought to modify a condition of development consent. The condition proposed to be modified stated:

"D2 This development consent shall cease if at any time the erosion escarpment as defined by the Shire Engineer comes within 50 metres of any building associated with this development."

In previous class 4 proceedings, the Court has found that the condition of development consent had expired.

The condition of development consent was imposed under what is now sections 4.17(1)(c) and 4.17(1)(d) of the EP&A Act. The wording of these sections is the same as would have been in operation at the time the development consent in Kendall was granted.

At [16] and [18], Justice Lloyd stated:

"[16] Accordingly, condition D2 places a temporal limitation on the development, but upon a proper construction of the EP&A Act, does not impose such a limitation on the development consent. In my earlier decision, it has the same practical effect as if the development consent were to cease, but not the same legal effect. The continued carrying out of the development constituted an unlawful use, but the development consent continued to exist.

[18]…Since the development consent continues to exist in the current circumstances, it follows that the development consent may be the subject of an application for modification, notwithstanding that the development itself has become unlawful. It also follows from the continuing operation of the development consent, that the applicant is entitled to act upon the consent in applying for modification of condition D2 of the development consent [Emphasis Added]."

The legal principle in this case is that where a development consent has been granted, the development consent will not lapse provided it has been physically commenced in accordance with sections 4.53 - 4.54 of the EP&A Act. 

Following physical commencement of a development consent, the development consent continues to exist despite any temporal limitation imposed by its conditions and can be modified pursuant to sections 4.55-4.56 of the EP&A Act.

If you have questions about temporal limitations or development consents in general, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.