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NSW Department of Planning, Industry and Environment
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Why is the meaning of ‘physically commenced’ being clarified?

Developers, planning authorities and the courts have been required to rely upon different case law interpretations of what works do and do not count as physically commenced.

 

As a result, there have been situations where development has been taken to be ‘physically commenced’ for very minor works such as the placement of survey pegs or acoustic testing, and the actual carrying out of the development does not take place for many years after approval.

 

Developments that had technically been physically commenced, but remain unconstructed for extended periods of time can create uncertainty for the community and local planning authorities about the future of vacant construction sites.

 

Clarifying the meaning of ‘physically commenced’ will provide greater certainty for proponents, planning authorities and the courts.

What works are not taken to be physically commenced?

The following works are not taken to have been physically commenced:

  • creating a bore hole for soil testing,
  • removing water or soil for testing,
  • carrying out survey work, including the placing of pegs or other survey equipment,
  • acoustic testing,
  • removing vegetation as an ancillary activity,
  • marking the ground to indicate how land is to be developed.

Which development consents do the new provisions apply to?

The new provisions apply to all development consents granted after 15 May 2020.

Why do works need to be physically commenced to prevent a development consent from lapsing?

The Environmental Planning and Assessment Act 1979 sets out periods and circumstances where development consents lapse.

 

This is to ensure that the environmental impacts of development are assessed against current policies and legislation, and community views.

 

The Act requires works to be physically commenced prior to the consent lapsing to demonstrate a sufficient intent to complete the development.

Page last updated: 11/06/2021