Being granted development consent with a ‘deferred commencement condition’ can confuse an applicant for consent. Unfortunately, Councils’ themselves are quite often confused by the operation of these conditions and their own statutory role under the Environmental Planning and Assessment Act 1979 (EP&A Act).

Put simply, a deferred commencement condition or conditions must be satisfied before a development consent becomes operative, that is, you cannot undertake any other work and/or action under the consent until the Council is satisfied that the deferred commencement condition has been met and Council has issued a written notice to that effect.

Crucially, the lapsing period for the whole development consent, being five years or a shorter period as specified, is perfected on the date of the satisfaction of the deferred commencement condition.

A deferred commencement condition also has its own lapsing period in which compliance must be met. Generally, this compliance period is from six months to two years.  The EP&A Act permits a ‘one-off’ extension to the lapsing period, which is at the discretion of the relevant Council.

Importantly, if a deferred commencement condition is not satisfied within that lapsing period – the whole of the development consent is lost. Neither Council nor the Court have power to revive a lapsed consent.

While an appeal to the Land and Environment Court is available in relation to a contest about whether the terms of the deferred commencement condition has been satisfied – it is important to note that the Court has no power to stay a lapsing date if you appeal too late.

Deferred commencement conditions and lapsing periods are matters of critical importance in planning law and expert legal advice should always be sought at the earliest opportunity if there is any risk to the development consent itself. Contact our expert Property & Planning Team to advise you further.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.

Paul Jayne

Paul Jayne -

Consultant

Environmental planning and property law specialist