On 12 October 2021, the Council granted a development consent for a rural subdivision and the construction of dwellings on the resultant lots, subject to a deferred commencement condition. The condition relevantly limited the period within which the Applicant was required satisfy the Council as to the matters specified in the condition to 12 months.
Approximately 14 months after the grant of the development consent, the Applicant commenced judicial review proceedings challenging the validity of the condition on the basis that it contravened sections 4.53(6)(b) and (6B) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) by reducing the period within which the condition was to be satisfied to less than 5 years and was therefore beyond power.
The development consent was granted within the COVID-19 “prescribed period” as defined in section 4.53(8) of the EP&A Act, being the period commencing on 25 March 2020 and ending on 25 March 2022.
The operation of the provisions of the EP&A Act relating to the lapsing of development consents was modified during the “prescribed period” by the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020.
As at the grant of the development consent, section 4.53 of the EP&A Act relevantly provided as follows in relation to the lapsing of deferred commencement consents:
“4.53 Lapsing of consent
…
(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within—
(a) 5 years after the grant of consent if the consent is granted after the prescribed period, or
(b) 5 years after the grant of consent if the consent is granted during the prescribed period, or
(c) 2 years after the date on which the development consent would otherwise have lapsed if—
(i) the grant of consent was before the commencement of the prescribed period, and
(ii) the development consent has not lapsed at that commencement.
(6A) A consent authority may reduce a period specified in subsection (6)(a) or (b) in granting development consent.
(6B) Subsection (6A) does not authorise a reduction to be made that would cause a development consent granted during the prescribed period to lapse within 5 years after the date on which it was granted.
…”
Justice Pepper was firstly required to determine whether leave to extend the time to commence the proceedings ought to be granted, noting that the appeal had been commenced in excess of the 3 month limitation period imposed by section 4.59 of the EP&A Act.
Noting that the operation of section 4.59 of the EP&A Act was not without controversy, her Honour ultimately concluded that the imposition of a condition in the absence of any power was a matter that went to the jurisdiction of the consent authority and was therefore amenable to review notwithstanding the 3 month limitation period.
Her Honour then determined that it was appropriate to exercise her discretion to extend the time for commencing the proceedings under rule 59.10(2) of the Uniform Civil Procedure Rules 2005 in light of the significant financial prejudice to be suffered by the Applicant due to the imminent lapsing of the consent.
In relation to the proper construction of section 4.53 of the EP&A Act, her Honour accepted that there was an internal inconsistency in so far as section 4.53(6)(b) provides for a deferred commencement consent granted during the “prescribed period” to lapse in 5 years, section 4.53(6A) empowers a consent authority to reduce the period specified in section 4.53(6)(b) to some lesser period and section 4.53(6B) does not empower a consent authority to impose a time period causing a deferred commencement consent granted during the “prescribed period” to lapse within 5 years.
In light of the drafting anomaly, her Honour had recourse to the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Bill 2020 and other extrinsic materials including the second reading speech and explanatory note and noted the following:
(a) the legislature intended to amend, by the enactment of the Covid-19 Amendment Act, the previously wide discretionary power conferred upon consent authorities contained within s 4.53 of the EPAA to impose some lesser period for the lapsing of deferred development consents. This was to provide additional time to a proponent to comply with deferred development conditions, having regard to the constraints imposed on economic activity by the pandemic due to the imposition of public health measures (Chu v Inner West Council (2022) 251 LGERA 211; [2022] NSWLEC 14 at [56]);
(b) Parliament initially proposed a seven year time period within which deferred commencement conditions could be satisfied. The initial intention was that the seven year period could be reduced to a period of no less than five years by the consent authority. In the first draft of the Covid-19 Amendment Bill, s 4.53(6)(b), (6A) and (6B) could be construed harmoniously insofar as s 4.53(6A) preserved a consent authority’s discretion to impose a limitation period of between five and seven years; and
(c) the amendments moved to the Covid-19 Amendment Bill changed the proposed seven year period to a five year period in s 4.53(6)(b). However, no cognate textual change was made to s 4.53(6A). This was necessary to give effect to the legislature’s intention to afford additional time to proponents whose deferred development consents were granted during the prescribed period, that is, during the period when most of the public safety measures limiting development were operative.
Her Honour concluded that it was appropriate for the Court to read down section 4.53(6A) so as to omit the reference to “or 6(b)”, meaning that a consent authority would not be authorised to reduce the 5 year period by the operation of section 4.53(6B).
As a consequence, it followed that the imposition of the condition was beyond power and the Court made orders setting aside the 12 month period for the satisfaction of the condition.
This case may have important implications for development consents including deferred commencement conditions granted during the “prescribed period” in which consent authorities relied upon a literal reading of section 4.53(6A) of the EP&A Act to reduce the time period for compliance with the condition to less than 5 years.
Section 4.53 of the EP&A Act has not yet been amended in response to the decision.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Special legal advice should always be sought separately before taking any action based on this publication.
