Development Consent on building projects can lapse, and recent legislation makes it easier for that to happen. The RMB Lawyers Property & Town Planning Division explains the avenues to prevent your project’s development consent from lapsing.
A development application, known as a DA, is a formal application to your local council or relevant authority for any development that requires consent under the NSW Environmental Planning and Assessment Act 1979 (EP&A Act). This legislation rules over environmental planning in NSW.
Development consent is usually issued by your local council. This is necessary for all homeowners, developers or builders who wish to carry out any works. Importantly, consent only lasts for a period of five years from the date from when it starts to operate.
However, consent will not lapse if physical commencement has occurred on the land within the five-year period.
Recently, the NSW Government introduced a new definition of physical commencement which applies to consent provided after 15 May 2020.
This new definition of physical commencement does not apply to any consent that was provided before 15 May 2020. This provides a safeguard to developments that may have been granted consent even 20 years ago, but can show that they have commenced work on the site to prevent it from lapsing using the old criteria.
Prior to the new reforms, consent did not lapse if it could be shown there was:
- Survey work, including clearing of vegetation or placement of pegs
- Geotechnical work including testing soil
- Clearing of shrubs.
Post-15 May 2020 Consent
The EP&A regulations now provide that there is no physical commencement if work has been done to:
- Create a bore hole for soil testing,
- Remove water or soil for testing,
- Carry out survey work, including the placing of pegs or other survey equipment,
- Acoustic testing,
- Remove vegetation as an ancillary activity,
- Mark the ground to indicate how land is to be developed.
This now makes it harder to prove that development consent has not lapsed. This has important implications for individuals or companies involved in property development. Whether you’re a builder, developer, or homeowner, understanding the time limitations for development consent ensures your project stands the test of time.
Contact the Property & Town Planning Division at RMB Lawyers to assist you in navigating this complicated area of the law phone on Freecall 1800 681 211 for a consultation, or use our 'Ask a Question' tool on our website.