A development consent is a valuable document. It runs with the land and may be availed of by subsequent owners and other occupiers of the land. However, a consent can and will lapse unless it is acted upon by way of what is referred to as ‘physical commencement’.
Turnbull Planning International acted for a client who owned a property in the Ku-ring-gai local government area. An issue arose as to whether or not a consent obtained by the client was in danger of lapsing by effluxion of time.
The Council granted a development consent for the demolition of an existing pool and the construction of a new dwelling and plunge pool on the property. The consent had a lapsing period of 2 years. One of the conditions of the consent (Condition 8) required the erection of tree protection fencing on the property before any other work commenced. The tree protection fencing work referred to in Condition 8 was carried out on the subject land before the date on which the consent would otherwise have lapsed. The issue was—was that sufficient to prevent the consent from otherwise lapsing?
Lapsing of development consents
Section 4.53(1) of the Environmental Planning and Assessment Act 1979 (‘EPAA’) provides that a development consent lapses 5 years after the date from which it operates. However, section 4.53(2) of the EPAA provides that a consent authority may reduce that period of 5 years except as otherwise permitted. In the case of our client’s consent, the lapsing period was 2 years.
A lapsing period of a specified number of years doesn’t mean that the whole development the subject of a development consent must be finished before the end of the lapsing period to prevent the development consent from lapsing, the reason being that section 4.53(4) of the EPAA provides that consent for the erection of a building, or the subdivision of land, or the carrying out of a work does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.
The test of ‘physical commencement’
The legal test for what constitutes ‘physical commencement’ was set out by the NSW Court of Appeal in the cases of Hunter Development Brokerage v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council  NSWCA 169; (2005) 63 NSWLER 124; 140 LGERA 201 (jointly, ‘Tovedale’), in which it was held that survey work and geotechnical investigation work performed by the applicants amounted to ‘engineering’ work for the purposes of the EPAA and accordingly held that the development consents in question had not lapsed. The Court of Appeal held that there are three questions to be answered when determining if development consent has lapsed:
- Is the work relied on ‘building, engineering or construction work’? If so
- Does the work ‘relate to’ the approved development? If so:
- Was the work physically commenced on the land to which the consent applied prior to the relevant lapsing date?
Did the consent lapse?
In our opinion, all three questions can only be answered in the affirmative, meaning that there had been physical commencement. Now, the work relied on was the installation of protective fencing (refer Condition 8). The installation of protective fencing was an essential precondition to other work being carried out pursuant to the consent.
The first element of the tripartite test enquires whether the work relied on is ‘building, engineering or construction work’. The answer to that question must be ‘yes’. The work carried out is, in our opinion, best described as being ‘construction’ work, although we are aware of cases in which fences of various kinds have also been held to constitute ‘buildings’ or at least structures in the nature of buildings: see, for example, R v Lowe (1954) 19 LGR 348.
The second element of the tripartite test enquires whether the work relied on is work ‘relating to’ the approved development. Once again, the answer to that question must be ‘yes’. Condition 8 is a condition of the consent. The installation of protective fencing is a precondition to other work being carried out. In that sense and otherwise, the work ‘relates to’ the approved development. Condition 8 satisfies the Newbury tests of validity (see Newbury District Council v Secretary of State for the Environment  AC 578) in that the condition was imposed for what is demonstrably a planning purpose (namely, the protection of trees during the construction phase of the development), fairly and reasonably relates to the approved development (in the sense that it seeks to protect trees that might otherwise be detrimentally affected in the course of the construction of the approved development), and is not so unreasonable that no reasonable consent authority, properly acting within the four corners of its jurisdiction, could ever have imposed it.
In deciding whether certain work is referable to the building or work the subject of the consent, one looks for a nexus or connection—in other words, a relationship. Here, there is clearly a relationship between the work carried out and satisfying the requirement of Condition 8. The work carried out—namely, the installation of fencing—objectively ‘relates to’ the construction of the approved condition and is itself in the nature of an essential precondition to the carrying out of the substantive development.
The third element of the tripartite test enquires whether the work was physically commenced on the land to which the consent applies ‘before the date on which the consent would otherwise lapse under this section’ [emphasis added]. Now, it should be noted that section 4.53(4) of the EPAA does not actually state or require that the work physically commenced on the land to which the consent applies must have been carried out after the date of issue of the consent. The subsection simply requires that the work must have been physically commenced on the land to which the consent applies ‘before the date on which the consent would otherwise lapse’ under section 4.53. In the case of the work relied upon, we were satisfied that the work was carried out on the subject land before the date on which the consent would otherwise have lapsed.
The bottom line, as we saw it, is that the tripartite test in Tovedale was satisfied such that the consent had not lapsed.
On behalf of our client, Turnbull Planning International made representations to that effect to the Council. To date, the Council has not indicated whether it is satisfied that there has been ‘physical commencement’.
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