Lapsing of development consents
A development consent lapses five years after the date from when it starts to operate, as set out within the provisions of the NSW Environmental Planning and Assessment Act 1979 (EP&A Act).
A development consent for the erection of a building, the carrying out of works or the subdivision of land doesn’t lapse if building, engineering, or construction work related to the consent is physically commenced on the land before the date on which the consent would otherwise have lapsed.
When is a development consent ‘physically commenced’?
For a building, physical commencement is achieved by appointing a principal certifier, obtaining a construction certificate and pouring the footings/slab after the first inspection is passed.
Other ways to achieve physical commencement may include:
• If the development consent is for a dwelling and flood mound – constructing the flood mound.
• If the development consent requires the construction of a vehicular crossing to provide access to the property from a public road as a condition of development consent - constructing the driveway after obtaining a Section 138 driveway approval.
The NSW Environmental Planning and Assessment Regulation 2021 (Section 96) states that work is not taken to have been physically commenced just by doing one or more of the following:
• Creating a bore hole for soil testing
• Remove water or soil for testing
• Carry out survey work, including the placing of pegs or other survey equipment
• Acoustic testing
• Remove vegetation as an ancillary activity
• Mark the ground to indicate how land is to be developed
This provision does not apply to development approved prior 15 May 2020.
Unlawful works will not be considered as demonstrating physical commencement i.e. works commencing without a construction certificate.
Can I apply to extend the 5 year period?
No. The legislation does not allow for any extension beyond 5 years.
However in response to COVID19, the NSW Government extended the lapse date by 2 years for development consents granted prior to 25 March 2020 that had not already lapsed.
Can Council provide a letter to confirm physical commencement has occurred?
Yes. You can lodge a professional advice application on Council’s website with details/evidence of physical commencement and a letter can be issued advising the consent has been activated and will not lapse.
How long do I have to complete a development?
Once physical commencement has been achieved there is currently no legislated time limit to complete a development. A Council can issue a complete works order (under Schedule 5 of the EP&A Act), however this rarely occurs. Please note that a building cannot be occupied/used unless an occupation certificate has been issued.