Posted on August 14, 2018 by Liam Mulligan and Stuart Simington
Deferred commencement consents – don’t let them lapse!
The decision of Preston CJ in Dennes v Port Macquarie-Hastings Council  NSWLEC 95 (‘Dennes‘) confirms that, once the period for satisfaction of a deferred commencement condition has expired without the condition being satisfied, the consent cannot be revived on appeal against the reasonableness of the Council’s failure to be satisfied.
On 17 August 2016, following Class 1 proceedings appealling against Council’s refusal of development consent for a dwelling on land at Beechwood, Fakes C granted the development consent (‘Consent‘) to Mr Dennes.
The Consent was subject to a deferred commencement condition requiring Mr Dennes to ‘submit to Council for approval a Flood Emergency Response Plan for the proposed development. The FERP must be determined to be satisfactory by Council’.
The deferred commencement condition specified that it needed to be satisfied within 12 months from the date of determination, i.e. by 17 August 2017.
The applicant attempted to satisfy the condition within the specified period, by submitting a Flood Emergency Response Plan (‘FERP‘) to Council in April 2017. On 20 June 2017, Council advised the applicant that the FERP was ‘not capable of being supported in its current form‘, with the consequence that the deferred commencement condition was not satisfied.
The applicant did not take any action in response until 22 December 2017, when he lodged an appeal under s 97(3) of the EPA Act (as it then was).
Council contested the Court’s jurisdiction to hear and determine the appeal, on the basis the Consent the subject of the proceedings had lapsed due to the operation of section 95(6) of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘). In Council’s submission, there was ‘no matter as to which the Court could be satisfied which could cause the deferred commencement consent to operate‘.
The Court’s decision
1. The Consent had lapsed
The Court accepted at  that the Consent had lapsed before the s 97(3) appeal had commenced because the applicant had failed to satisfy the matter specified in the deferred commencement condition within the specified period.
Importantly, Preston CJ held that, because the deferred commencement condition expressly required Council to positively determine that the FERP was satisfactory, it was necessary but not sufficient for the applicant to give the information to Council. Although the applicant provided information, no positive determination was ever made by Council.
The Court accordingly held at  that the failure of the Council to determine that the FERP was satisfactory, within the specified period, meant that the deferred commencement consent lapsed due to s 95(6) of the EPA Act.
2. The Court had no jurisdiction
The Court also accepted the Council’s argument that the lapsing of the Consent meant that the Court did not have jurisdiction to grant the orders sought by the applicant.
The Court held at - that once the deferred commencement consent had lapsed, there was ‘no effective development consent’ on which the applicant could rely to make his appeal and the Court had no power to make a decision or order, which could revive the lapsed consent and make it operate.
Extension of lapsing periods for 1 year
Preston CJ referred in passing to the possibility of Mr Dennes obtaining an extension of the lapsing period under section 95A of the EPA Act at .
Such an extension may be granted by a consent authority where it is satisfied that the applicant has shown good cause. Such an extension is therefore discretionary, and will not be available in all cases, but consent holders faced with the possibility of losing their consents should be aware of this option.
The decision in Dennes confirms the importance, for consent holders, of satisfying deferred commencement conditions – by obtaining a positive decision from Council, obtaining an extension of the lapsing period, or by bringing an appeal and securing a positive decision of the Court – before the specified period for the satisfaction of a condition elapses.