It has long been the case that reasonably minimal preparatory works are sufficient to prevent a development consent from lapsing. A recent case has held that a consent was prevented from lapsing as the result of removal of shrubs, thus making it even easier for landowners and developers to protect their development rights.
Lapsing of Consents
A development consent for the erection of a building, subdivision of land or carrying out of a work will lapse after 5 years if building, engineering or construction work relating to the development is not physically commenced on the land before the lapsing date (see s4.53 of the Environmental Planning & Assessment Act 1979). The lapsing date can be reduced by the consent authority on the grant of the consent.
Caselaw is to the effect that preparatory or initiatory works fall within the phrase ‘building, engineering or construction work‘, but that to be work which will prevent a consent from lapsing the work must be carried out in accordance with, or at least not be prohibited by the relevant consent (Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124).
The Land & Environment Court Decision
In the recent case, the Land & Environment Court had held that the developer had failed to establish that the works which had been physically carried out on site before the lapsing date were lawful, and as a result those works could not be relied on to prevent the lapsing of the consent. It was accepted it was the onus of the developer to prove the lawfulness of the works relied on.
The works included demolition and removal of ‘trees and shrubs’ in addition to some site fencing and disconnection of water.
The developer had not established that the demolition was carried out only after the various conditions required to be satisfied before the commencement of work had been met, or that tree removal had been carried out by a certified arborist (as required by another condition of the consent, condition 44). There was no evidence that disconnection of water involved any ‘physical work’ and the erection of site fencing also hadn’t been approved by the PCA as required by the consent.
The Land & Environment Court therefore held the consent had lapsed.
Appeal to Court of Appeal
On appeal, the Court of Appeal agreed that the developer had the onus of proving that the works relied on were lawful. The Court of Appeal also agreed with the Land & Environment Court in respect of most of the works.
However the developer submitted that the condition requiring an arborist to carry out tree removal did not relate to the removal of shrubs. Condition 44 required ‘pruning work and tree removals‘ to be carried out by an arborist. The Council submitted shrubs were simply small trees, but the Court accepted that the difference between a tree and a shrub was understood, and said that there would be no reason to impose a condition requiring removal of shrubs to be done by an arborist. Condition 44 was held not to apply to shrubs.
The Council also submitted that removal of shrubs was part of demolition work, which could not be carried out without meeting various preconditions which had not been met. The Court of Appeal considered the way the consent was structured, and found that the consent did not treat the removal of trees and shrubs as part of the demolition work , so the preconditions for demolition work to be lawful were not triggered and did not need to be met before trees and shrubs were removed.
The Court accepted that the primary judge had found that tree removal was ‘construction work‘ for the purposes of s4.53 of the EPA Act (as it is preparatory to the erection of the buildings the subject of the consent) and therefore considered the removal of shrubs also had to be considered to be construction work.
As a result, as there was nothing in the consent which imposed any preconditions to or requirements in respect of shrub removal, the shrub removal was lawful, and was sufficient to prevent the consent from lapsing.
Clearly the removal of shrubs is a very quick and cost effective way for a landowner or developer to prevent a consent from lapsing. The finding that tree and shrub removal is construction work and can prevent lapsing is therefore very helpful to those seeking to prevent a consent from lapsing, particularly if little time is available to carry out work before the lapsing date.
The terms of the relevant consent do need to be carefully considered. Firstly, the shrub removal must be authorised by the consent (or at least not prohibited by it). Also, if the consent imposes preconditions to the removal of shrubs, or requirements regarding how the removal is carried out, then those conditions or requirements need to have been complied with in order for the shrub removal to prevent the consent from lapsing.
Developers should also ensure that they keep records of works undertaken and, if there are preconditions and requirements in respect of the carrying out of those works, evidence that those preconditions and requirements have been met, given the developer will need to prove the lawfulness of the works to establish their effectiveness to prevent lapsing.
A copy of the Court of Appeal’s decision can be found here: Cando Management and Maintenance Pty Ltd v Cumberland Council  NSWCA 26
If you have any questions regarding the above please contact Megan Hawley on 82359703.