Posted on April 6, 2022 by Megan Hawley and Lachlan Penninkilampi
Lapsing of Consents for Staged Developments
A recent case has illustrated the importance of closely interpreting conditions in consents for staged developments not only for compliance purposes, but also to determine what is needed to prevent the development consent from lapsing.
Donvito v Hawkesbury City Council  NSWLEC 26
This case involved a development consent which was granted for a boarding house in part of industrial premises at 100 Mileham Street, South Windsor. The development was to be undertaken in stages.
The Applicants, Mr and Ms Donvito, had obtained their consent on 9 July 2013. By virtue of section 4.53(1)(a) of the Environmental Planning and Assessment Act 1979, the consent would have lapsed if building, engineering, or construction work pursuant to the consent had not been carried out within five years.
Mr Donvito had carried out certain works throughout the month of June 2018, just before the consent was due to lapse.
In September 2021, the Applicants sought a declaration that their development consent had not lapsed. The Council did not dispute the application.
Justice Moore in the NSW Land and Environment Court accepted that the works carried out by Mr Donvito were building works which related to the development and were physically commenced on the land to which the consent applied prior to the relevant lapsing date (see Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124).
However, the Courts have previously held that works relied on to prevent a consent from lapsing must be referable to the consent and carried out in accordance with it, or at least not be prohibited by it (see Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132). This means any preconditions in the consent to carrying out the works must have been complied with, if they are to prevent a consent from lapsing.
Condition 12 read:
12 The existing asbestos roof shall be removed and replaced by a metal roof. The plans submitted with the construction certificate must indicate the installation of a metal roof.
This condition had not been complied with as there was no plan indicating the installation of a metal roof. His Honour needed to consider whether that meant that any works carried out could not be relied on to prevent lapsing.
In this case, the decision ultimately turned on the fact that a further condition (condition 15) required a construction management plan to be submitted and approved by the Council prior to the issue of any construction certificate. The construction management plan was required to demonstrate the order in which works would be carried out.
That condition clearly showed that the development was to be carried out in stages and the approved construction management plan made it clear that the works involving the replacement of the asbestos roof were part of stage 2 of the works, which would be subject to a separate construction certificate to the stage 1 works. There was no evidence that any stage 2 works had been undertaken or that a stage 2 construction certificate had been sought and obtained.
Council had also been given the various documents in respect of stage 1 and had not raised any objection to deferring the satisfaction of condition 12 until Stage 2.
From these circumstances, his Honour inferred that condition 12 did not need to be satisfied until a construction certificate was proposed to be issued that would involve works to the asbestos roof. His Honour was therefore satisfied that the works which were carried out were lawful and in accordance with the consent, and that the consent had been prevented from lapsing.
Whilst not noted as a factor in His Honour’s decision, it was argued that condition 15 referred to ‘any‘ construction certificate, indicating that it was contemplated that there would be more than one. The use of the words ‘the construction certification’ in condition 12 suggested that it was only the construction certificate relevant to the stage of works including the roof replacement which needed to show the metal roof. If the intention had been that the metal roof needed to be shown before the first construction certificate could be issued, this could have been stated.
This case illustrates that not all conditions precedent in consents for staged developments need to be satisfied before any works can be carried out. It may be that the terms of the conditions, the documents provided to the consent authority pursuant to those conditions, and the acceptance or otherwise of those documents by the consent authority mean that a given condition may not need to be satisfied until a later stage of development.
It is critical to properly interpret such conditions when ascertaining whether a development consent for a multi-stage development has been prevented from lapsing.
You can read the judgment of Justice Moore here.
If you have any questions about this blog post, please contact Megan Hawley at 02 8235 9703 or Lachlan Penninkilampi at 02 8235 9719.