On 14 May 2020, The NSW Government made a series of amendments to the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
The purpose of these amendments are to aid financial recovery and to support businesses and landowners disrupted by the COVID-19 Pandemic.
These changes include extending:
- the usual lapsing period on certain existing development consents and the period of time to satisfy deferred commencement development consent conditions by two years;
- the period of time in which a right to appeal a determination or refusal can be made; and
- the time where an existing or continuing use will be presumed to have been abandoned.
In this article, we consider the changes brought about by the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) (Amending Act).
These amendments will no doubt be welcomed by developers and landowners whose projects have been disrupted as a result of the COVID-19 pandemic. In particular, extensions to relevant statutory timeframes will provide some much-needed breathing space for developers.
We also look at changes made to the Environmental Planning and Assessment Regulation 2000 (NSW) (Regulation) which clarify when development will or won’t be considered to have been “physically commenced” for the purposes of the EP&A Act.
Extension to lapsing provisions
Under s 4.53 of the EP&A Act, a consent will generally lapse five years after the date it commenced unless “building, engineering or construction work” is “physically commenced” within the period specified in the consent (subject to an ability to extend or reduce this period of time pursuant to the relevant subsections of s 4.53).
However, as a result of the recent reforms, development consents which come into operation between 25 March 2020 and 25 March 2022 (referred to as the “prescribed period”) may be entitled to a two-year extension to the lapsing date and/or be granted protection from an ability to reduce the lapsing period below five years.
- development consents which lapsed between 25 March 2020 and 14 May 2020 are to be taken not to have lapsed and those consents are entitled to a two-year extension;
- development consents whose lapsing dates fall within the “prescribed period” are also awarded a two-year extension; and
- any consents granted during the “prescribed period” cannot have a lapsing period that is less than five years.
These amendments do not apply to development consents which have already been physically commenced, or to concept development applications.
Extension on deferred commencement conditions
Amendments to the EP&A Act have also extended the period of time to satisfy deferred commencement development consent conditions by two years.
Deferred commencement conditions require an applicant to comply with certain conditions (such as a requirement to submit further details or documents) prior to the development consent becoming operational.
As with development consents, deferred commencement consents granted in the “prescribed period”, being the two-year period from 25 March 2020, will have a five-year lapsing period that cannot be reduced by the consent authority.
For those consents granted prior to 25 March 2020 (and that have not already lapsed), the lapsing date has also been extended by a period of two years.
Clarification of “physical commencement”
Clause 124AA has also been inserted into the Regulation, providing clarification on the amount of work that is required in order to “physically commence” a development, or more specifically, those works that will not be sufficient to constitute physical commencement of a development consent.
Under cl 124AA, and for the purposes of s 4.53(7) of the EP&A Act, “physical commencement” is specified to not include:
- 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 to those activities approved under the development consent; or
- marking the ground to indicate how land will be developed.
Of note, this appears to unwind much of the case law that had previously found that some of these works were sufficient to constitute physical commencement. To date, the Court has applied a fairly liberal interpretation to the requirement of “physical commencement” and have found that it extends to preparatory works such as survey works. For example, in Richard v Shoalhaven City Council  NSWLEC 11, the Court found 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 therefore the consent had not lapsed.
The new threshold for “physical commencement” will only apply to development consents granted after 15 May 2020. As a result of these amendments however, more work will likely be required in order to physically commence such consents than may have previously been the case.
Recent amendments to the EP&A Act have also extended the period of time to appeal certain determinations or refusals of development applications, as well as to modifications to development applications.
This means 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 means that appeal rights for certain developments will have been re-enlivened as a result of the recent changes.
In addition, s 4.66 of the EP&A Act has been amended to extend the time required for an existing use to be presumed to be abandoned. In particular, the EP&A Act now provides that an existing use is considered abandoned if it ceases for a period of three years, rather than the usual 12 months.