Posted on August 17, 2026 by Adriana Kleiss and Sinead Macauley 7

Where to from here? Legislative Assembly Committee releases report on Historical Development Consents

In July 2026, the NSW Legislative Assembly Committee on Environment and Planning (Committee) published the report on its inquiry into Historical Development Consents (Report).

The Report deals with the issues raised by so called “zombie developments”, which the Committee finds to be a slang term for what are also referred to as “historical development consents”.

We have previously written about “zombie developments” and the Committee’s inquiry here and here.

There are many findings and recommendations in the Report. In this article we highlight some of the more interesting findings, and ask, where to from here for historical development consents?

Definition for “historical development consent” not practical

There is no formal definition for the term “historical development consent”. The Committee found that it is used informally to refer to a development consent granted more than five years ago that does not expire because work has nominally commenced on the site before lapsing but has not been finished.

There have been many attempts to define the term, however the Committee ultimately found that it may not be practical or possible to usefully do so. It was noted that the term is used to refer to a wide range of developments of varying ages.

Call for a centralised register of development consents

The Committee was concerned by the fact that there is currently no centralised register of existing development consents, meaning that there is often no way of knowing that a historical development consent exists before work recommences on site, which may be after many years of inactivity. This can cause distress to neighbours and undermine strategic planning for an area.

The Report recommends a modification to the Planning Portal to enable it to act as a development consents register and contain information relating to the commencement and completion status of developments. The Committee also recommends that consent holders be required to provide details of development consents which they hold and believe have not lapsed within a prescribed period.

We consider these recommendations to be extremely ambitious, and the Committee clearly acknowledged the extreme difficulty of achieving a complete register of consents, particularly those granted by local councils prior to the creation of online development trackers.

These recommendations also raise a number of issues, including what the consequences would be for a consent holder who failed to register their consent, and whether there would need to be any confirmation from the relevant consent authority that the consent had not lapsed prior to it being included on the Portal. As acknowledged by the Committee, there is currently no formal way to confirm that a consent was physically commenced before lapsing, other than obtaining a declaration from the Land and Environment Court.

Concern that recent reforms will not achieve policy objectives

The Committee considered the following relevant reforms that have recently been made to the Environmental Planning and Assessment Act 1979 (Act) and Environmental Planning and Assessment Regulation 2021 (Regulation):

• Section 96 of the Regulation was introduced to specify a list of minor works that will not amount to physical commencement, such as survey work, boreholes and ancillary clearing, which the court has previously held to be sufficient to prevent a consent from lapsing.
• Section 4.57 of the Act was amended and s116A of the Regulation introduced to enable a consent authority to revoke or modify a development consent having regard to the provisions of an existing environmental planning instrument, but only if it was granted 25 years ago or more (s4.57(1)(a)(ii)).

In relation to s96 of the Regulation, the Committee agreed with stakeholders that, to date, there is no compelling evidence that the provision will achieve the policy objective of restricting consents from becoming valid in perpetuity based on only minor works being carried out. In particular, the Committee considered submissions that the list of works excluded was too narrow.

In relation to s4.57 of the Act, the Committee was critical of the decision to, without clear justification, limit the operation of s4.57(1)(a)(ii) to consents granted 25 years ago or more. The Committee heard evidence on historical development consents granted less than 25 years ago which has become problematic due to changes in natural disaster risk and site constraints.  The Committee also found that the power under s4.57 is not being used, and that this is likely because there is uncertainty as to what compensation a consent authority would have to pay a developer if it revoked or modified a historical development consent under s4.57.

The Report recommends that the application of s4.57 of the Act and s96 of the Regulation be closely monitored to determine whether the reforms are achieving their policy objectives, and that further reform be considered if it is found that they are not. The Committee also recommended that the Act or Regulation be amended to clarify what compensation a consent authority would need to pay if it decided to modify or revoke an existing consent.

Consideration of potential planning reforms

The Committee considered many ways that the planning legislation could be amended to address stakeholder concerns but ultimately limited itself to identifying the benefits and challenges of each. While not reaching a determinative view, the Committee found that further consideration should be given to the following avenues for reform:

• changes to the physical commencement test, such as a return to the old ‘substantial commencement test’ or the introduction of a new definition of physical commencement which states what will amount to physical commencement, rather than what will not,
• clarification of the scope of a consent authorities’ liability to pay compensation to a consent holder where a consent is modified or revoked under s4.57 of the Act,
• removing or reducing the 25-year time period prescribed by s116A of the Regulation as the time that has to have passed between the granting of consent and a decision to revoke or modify that consent under s4.57 having regard to the provisions of an existing planning instrument,
• the introduction of a mechanism to allow councils to recover costs from developers for infrastructure provided for their validly commenced development consents that remain incomplete after the date they would have otherwise lapsed,
• the introduction of a power for consent authorities to impose mandatory completion dates for developments in addition to a lapsing period (noting that most other Australian jurisdictions do not permit consents to last in perpetuity), and
• a limited power being given to consent authorities to reassess developments approved by historical development consents where there is compelling justification to do so (with some indication that increase in natural disaster risk may be such a reason).

On the other hand, the Committee expressly did not recommend the introduction of statutory mechanism to confirm physical commencement of a development, such as a requirement for developers to submit evidence of physical commencement or apply for a ‘commencement certificate’. The Committee considered that this would create additional resource burdens for local councils and would require an avenue for appeal to the court, which could increase litigation.

Where to from here?

The Report provides a sweeping analysis of the legal and policy concerns raised by stakeholders in relation to historical development consents, however, ultimately only touches the surface of what is a very complex and multifaceted issue.

We found it interesting that the Committee spent much of the Report discussing the adverse impacts of stalled residential development approved by historical development consents on the current housing crisis and infrastructure delivery. A concern was raised that the perpetual nature of development consents enables developers to ‘bank’ land for later development in anticipation of its value increasing. There were also concerns that local councils were incurring debt delivering infrastructure for approved developments that have not been completed, and the Committee recommended that the Government consider options for a mechanism for local councils to recover their costs from developers where this occurs. It is not clear to us what form this could take, however it could involve changes to the development contributions framework, such as making development contributions payable upon commencement (if earlier than the issue of a construction certificate) or from the date that the consent would otherwise have lapsed. The Committee acknowledged that any reform would need to balance the need to ensure that infrastructure costs are fairly recovered, with not making developments unreasonably cost-prohibitive.

The breadth of issues discussed in the Report indicates that the historical development consent issue has broadened beyond what began as a primarily eco-centric concern that developments approved in the past are not compatible with current environmental standards.

We do not anticipate any legislative reforms to be implemented as a direct response to the Report. However, given the significant concern expressed by local government, environmental NGOs and the general public on this issue, we expect that the inquiry into potential solutions to the historical development consents problem has only just begun.

The Committee’s report on Historical development consents in NSW can be found here: Report – Historical development consents in NSW.pdf.

If you require legal advice about a historical development consent, please do not hesitate to contact Adriana Kleiss on 02 8235 9718.