Lapsing of development consents
What is the change?
Lapsing dates of development consents and deferred commencement consents have been changed so that:
- all consents and deferred commencement consents granted from 25 March 2020 to 25 March 2022 will have a five-year lapsing period that cannot be reduced by the consent authority,
- for consents and deferred commencement consents granted prior to 25 March 2020 that had not already lapsed, the lapsing date has been extended by 2 years and;
- consents and deferred commencement consents that have lapsed since 25 March 2020 are revived and extended by 2 years from the date they lapsed.
Development consents
My development consent was granted after 25 March 2020, but before the amendments were made. When will my consent lapse?
Development consents granted between 25 March 2020 and 14 May 2020 will lapse after 5 years. This is the case even if your consent had a lapsing period of less than 5 years.
For example, a consent granted on 1 April 2020 with a 3 year lapsing date, will now be valid for 5 years.
My development consent was granted after the amendments were made on 14 May 2020. When will my consent lapse?
Your consent will lapse after 5 years. The lapsing period cannot be reduced if it is granted before 25 March 2022.
My development consent lapsed after 25 March 2020, will it be extended?
Development consents that lapsed after 25 March 2020 have been extended by 2 years from the original lapsing date. For example, if your consent lapsed on 30 March 2020, it has been revived and is now valid until 30 March 2022.
My development consent was granted before 25 March 2020. When does it lapse?
Your consent will now lapse 2 years later than the original lapsing date.
For example, if your consent was due to lapse on 1 July 2023, it will now lapse on 1 July 2025.
My development consent lapsed before 25 March 2020. Do I get an extension on my lapsing date?
No. Only development consents that were valid as at 25 March 2020 will have their lapsing dates extended by 2 years.
Is an extension to my development consent automatic? Do I need to do anything?
If you have a development consent that has been extended under the changes, the extension is automatic and you do not need to take any action.
Deferred commencement consents
My deferred development consent was granted after 25 March 2020, but before the amendments were made. When will my consent lapse?
Deferred commencement consents granted between 25 March 2020 and 14 May 2020 will lapse after 5 years if the deferred commencement condition has not been satisfied. This is the case even if the deferred commencement condition/s had a lapsing period of less than 5 years.
For example, if your deferred commencement condition had to be to be satisfied within 2 years, you now have 5 years to satisfy the condition.
My deferred commencement consent was granted after the amendments commenced on 14 May 2020. When will my consent lapse?
If you have not satisfied the requirements of the deferred commencement condition, your deferred commencement consent will lapse after 5 years. A consent authority may not reduce the lapsing period if the consent is granted before 25 March 2022.
My deferred commencement consent lapsed after 25 March 2020. Will it be extended?
Deferred commencement consents that lapsed after 25 March 2020 have been extended by 2 years from the lapsing date. This means you have 2 additional years to satisfy the deferred commencement condition.
My deferred commencement consent was granted before 25 March 2020 and has not lapsed. When does it lapse?
You now have 2 additional years to satisfy the deferred commencement condition. For example, if your deferred commencement condition had to be satisfied by 1 July 2021, you now have until 1 July 2023 to satisfy the condition.
My deferred commencement consent lapsed before 25 March 2020. Do I get an extension on my lapsing date?
No. Only deferred commencement consents that had not lapsed as at 25 March 2020 have been extended by 2 years.
Is an extension to my deferred development consent automatic? Do I need to do anything?
If you have a deferred development consent that has been extended under the changes, the extension is automatic and you do not need to take any action.
Why have the changes been made?
The COVID-19 pandemic has made it more difficult for industry to secure project finance and has caused disruption to the supply chain of construction materials.
This has created greater potential for development consents to lapse before work on projects can be physically commence.
The additional two years for existing consents and the guaranteed 5 years for new consents to physically commence a development provides greater flexibility to applicants and developers and additional time to secure finance, labour and materials.
Are these amendments permanent?
No. The ability for consent authorities to grant development consents with lapsing periods that are less than 5 years will resume on 25 March 2022 for consents granted from that date.
Merit appeal periods
What is the change for applicants?
The period an applicant has to make an appeal to the NSW Land and Environment Court has been doubled from 6 months to 12 months for merit appeals. The change applies to determinations (or deemed refusals) made from 6 months before 25 March 2020 and for those made 2 years after 25 March 2020.
It applies to appeals against determinations of development applications (including deemed refusals) and modification applications.
What is the change for objector appeals?
The period an objector had to make an appeal to the NSW Land and Environment Court was doubled from 28 to 56 days for merit appeals. The change applies to determinations made from 28 days before 25 March 2020 to 2 years after 25 March 2020. After 25 March 2022, the period objector has to make an appeal returns to 28 days.
It applies to appeals against determinations for designated development or state significant development that would have been designated development.
Why were the extension of time to appeal periods necessary?
The changes provided greater flexibility to developers, more time for objectors to consider whether to lodge an appeal and enable the NSW Land and Environment Court to manage any backlogs of cases due to COVID-19.
Does the extension of time apply to judicial review court challenges?
No. It only applies to merit appeals.
Were these amendments permanent?
No. The extended appeal periods only apply for two years from 25 March 2020 to 25 March 2022. At the end of this period, the appeal period for applicants will again be 6 months, and 28 days for objector appeals.
Extension of abandonment period for existing and continuing use rights
What is the change?
The period after which an existing or other lawful use is considered abandoned has been extended from one to three years from 25 March 2020. This will be in place for two years.
Why has the change been made?
Existing and continuing use rights allow lawful uses to continue even where the planning rules no longer allow that use or require approval for the use which was not previously required.
However, property owners lose these rights if they ‘abandon’ the use for 12 months. In the current economic climate, property owners may find it difficult to continue to operate as their businesses are required to shut down and may have trouble attracting new tenants.
The amendment allows property owners to abandon the use for up to three years (instead of 1 year) to give more time for economic conditions to improve so that businesses can re-start and new tenancies secured.
Is the change permanent?
No. The 12 month period in which existing use rights and continuing use rights are considered abandoned will resume after the 2 year period from 25 March 2020.
Powers of compliance officers
What is the change?
A range of Acts have been amended to allow compliance officers to require questions to be answered using an audio or audio visual link, such as telephones and video conferencing, to facilitate investigations.
What Acts does the change apply to?
The changes apply to the:
- Biodiversity Conservation Act 2016
- Crown Land Management Act 2016
- Environmental Planning and Assessment Act 1979
- Protection of the Environment Operations Act 1997
- Water Management Act 2000.
Before the change, compliance officers had to carry out formal questioning in person during an investigation.
Social distancing and lockdown requirements imposed due to COVID-19 crisis have made it difficult for compliance officers to investigate and gather evidence about potential offences, including conducting interviews in person.
Can I still be required to attend an interview in person?
Yes. The notice issued by the investigation officer will specify whether you must attend in person or whether the interview may take place remotely.
If you have health concerns about attending an interview in person, you should contact the investigation officer.