The mission of these amendments is to boost financial recovery and to aid businesses and landowners hindered by the COVID-19 Pandemic.
These changes include an extension of:
- the customary lapsing period on specific standing development consents and the interval of time to fulfill deferred commencement development consent conditions by two years;
- the interval of time in which a right to appeal a determination or refusal can be filed; and
- the timeframe in which a standing or continued usage will be presumed to have been abandoned.
These measures are inspired by the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) (Amending Act).
These amendments will be popular by developers and landowners whose projects have been interrupted due to the COVID-19 pandemic. Especially, extensions to pertinent statutory timeframes will supply much-required leeway for developers.
Changes have been made additionally to the Environmental Planning and Assessment Regulation 2000 (NSW) (Regulation) which specify when development will be viewed to have been “physically commenced” as per the EP&A Act.
Under s 4.53 of the EP&A Act, a consent will expire after the date it was enacted unless “building, engineering or construction work” is “physically commenced” in the interval put forth in the consent (subject to a capability to lengthen or shorten this period of time in accordance with the pertinent subsections of s 4.53).
Due to recent reforms, development consents which come to fruition between 25 March 2020 and 25 March 2022 (called the “prescribed period”) may be subject to a two-year extension to the lapsing date and/or be protected from a capability to shorten the lapsing period shorter than five years.
- development consents which ended between 25 March 2020 and 14 May 2020 are to be considered unlapsed and those consents are deserving of a two-year extension;
- development consents whose lapsing dates land in the “prescribed period” are also given a dual-year extension; and
- any consents administered during the “prescribed period” can’t have a lapsing interval less than five years.
These amendments do not cover development consents that have been physically launched, or to idea development applications.
Amendments to the EP&A Act have lengthened the time period to satisfy deferred commencement development consent requirements by two years.
Deferred commencement conditions call upon an applicant to adhere to specific conditions (like a mandate to submit additional details or documents) in advance of the development consent being operational.
As is the case with development consents, deferred commencement consents given in the “prescribed period”: the dual-year period from 25 March 2020, will have a five-year lapsing period that can’t be diminished by the consent authority.
For those consents given prior to 25 March 2020 (and have not lapsed already), the lapsing date has also been increased by an interval of two years.
Clause 124AA has been added to the Regulation, supplying clarification on the workload needed to “physically commence” a development, or those works that will not be enough to constitute the physical launch of a development consent.
Under cl 124AA, and for the reasons of s 4.53(7) of the EP&A Act, “physical commencement” is specified to exclude:
- digging a bore hole for soil testing;
- removing water or soil for testing purposes;
- conducting survey work, such as the placement of pegs or other surveying equipment;
- acoustic tests;
- stripping vegetation as an ancillary activity to those activities allowed as per development consent; or
- marking the ground to specify how lands will be developed.
This seems to unwind the case law that had at one point found that many of these works would suffice to qualify for physical commencement. To date, the Court lightly interpreted the condition of “physical commencement” and have discovered that it includes preparatory works like survey works. For example, in Richard v Shoalhaven City Council  NSWLEC 11, the Court discovered that “the taking of levels, placing pegs, the removal of vegetation and the establishment of marks, including the centre point of a road” were “part of the engineering work required for the establishment and construction of the subdivision” and thus the consent had not lapsed.
The new threshold for “physical commencement” will apply to development consents given after 15 May 2020. Because of these amendments more work will be needed to physically commence such consents than may have at one point been the case.
Recent amendments to the EP&A Act have lengthened the interval of time to appeal some determinations or refusals of development applications, and to modifications to development applications.
This indicates that appeals can be lodged:
- within six months if appeal rights arise after the prescribed period (being 25 March 2020 to 25 March 2022);
- within 12 months if appeal rights arise:
- (i) during the prescribed period,
- (ii) or during the six-month period immediately before the prescribed period (being 25 September – 25 March 2020).
This indicates that appeal rights for some developments will have been reinvigorated because of recent changes.
Plus s 4.66 of the EP&A Act has been changed to expand the time needed for an existing application presumed to be abandoned. Especially, the EP&A Act now allows for an existing use is thought to be abandoned if it ceases for an interval of three years, as opposed to the customary 12 months.
Source: Thomson Reuters Insight