Site Search: 

NSW Government buys time on development – Lapsing periods, existing use abandonment and appeal rights extended in response to COVID-19

Share
Share on facebook
Share
Share on twitter
Twitter
Share on linkedin
LinkedIn

On 13 May 2020, the NSW Government passed the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020 (the Bill).  The Bill introduces several new amendments to the Environmental Planning and Assessment Act 1979 (EPA Act) that respond to the impact of COVID-19 and have significant impacts on both development proponents and consent authorities.

 

The amendments included extensions of time for:

  1. physically commencing work under existing and new development consents to prevent a consent from lapsing
  2. non-use that constitutes abandonment of an existing use right or other lawful use
  3. appeals to be lodged with the Court against the determination or deemed refusal of a development application.

This article focuses on these changes, noting that the Bill makes several amendments to numerous Acts.

Lapsing period for development consents and consents the subject of deferred commencement conditions

Under the previous section 4.53 of the EPA Act, a development consent would lapse 5 years (unless reduced by the consent authority) after the date from which it operates unless work relating to the consent has been physically commenced.  The amendments made to this provision by the Bill increase this period to up to 7 years for consents that are granted between 25 March 2020 and 25 March 2022,  or that would have lapsed within this period, but for the amendment.

Development consents granted during the prescribed period will lapse 7 years after they become operational as opposed to 5 years, unless the consent authority reduces this period. The amendments provide that a consent authority cannot reduce the lapsing period for consents granted between 25 March 2020 and 25 March 2022 to less then 5 years.

Our infographic below simplifies this explanation.

Amendments to Lapsing Date of Existing and New Consents

These changes have also been reflected in the provisions relating to consents which are subject to ‘deferred commencement’ conditions.

Importantly, the Environmental Planning and Assessment Regulation 2000 (NSW) has also been amended to include clause 124AA which identifies work which will not be taken to constitute physical commencement for the purposes of s 4.53 of the EPA Act. This includes bore hole soil testing, removing water or soil from a site for testing, surveying work, acoustic testing and removing vegetation as an ancillary activity. This is a significant amendment which responds to and reverses a number of decisions in the line of caselaw that has considered what constitutes ‘physical commencement’.1  The limitations created by clause 124AA will apply to development consents granted on or after 15 May 2020.

Abandonment of Existing Use and other lawful uses

Existing use rights may arise where a building, work or the land has continued to be used lawfully after the use has been prohibited or made permissible with consent.  Under the previous iteration of sections 4.66 and 4.68 of the EPA Act, an existing use right is presumed to have been abandoned if it ceases to be used for a continuous period of 12 months. This period has been extended to 3 years during the period of 25 March 2020 to 25 March 2022.

By way of example, this means that a landowner who stopped using a building than benefits from existing use rights on 1 January 2020 may recommence the use on 1 January 2022 without having abandoned the existing use.  This is particularly important for premises that are used for gatherings such as places of public worship which are unable to be used in accordance with the current restrictions.

Extended period to lodge class 1 development appeals

The amendments also extend the period of time within which an appeal right exists to the Land and Environment Court against the determination of a development application.

If the date of the determination (or the date that the application is deemed to have been refused) falls between 25 September 2019 and 25 March 2022, an appeal against the determination can be lodged within 12 months of the determination.

The period within which an appeal may be made by an objector is extended from 28 days to 56 days from the date of determination within the same period.

Conclusion

These changes will impact you if:

  • you benefit from a development consent that would have otherwise lapsed between 25 March 2020 and 25 March 2022
  • you lodged a development application which has not yet been determined
  • you are considering lodging a development application between now and 25 March 2022
  • you have land benefiting from an existing use that you can’t or do not wish to be using but do not want to abandon
  • you receive/d a notice of determination refusing or unsatisfactorily conditioning a development application or modification application between 25 September 2019 and 25 March 2022
  • you lodged a development application which is deemed to have been refused from 25 September 2019.

Our Planning and Environment team is experienced in advising its clients in relation to changes and developments in the law and can help you in understanding how the COVID19 changes may impact you. Get in contact today.


1 See for example Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 140 LGERA 201; Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86; Norlex Holdings Pty Ltd v Wingecarribee Shire Council [2010] 177 LGERA 261.

Contributors

Katharine Huxley
Associate
Andrew Gouveia
Law Graduate

Site Search: