The Land and Environment Court of NSW in Roberts v Blue Mountains City Council  NSWLEC 2 has provided clarification as to when a consent lapses in circumstances where a council refuses to be satisfied that a ‘deferred commencement’ condition has been complied with. The Court held that upon the grant of a ‘deferred commencement’ development consent, the consent was effective but not operative until such time as the deferred commencement conditions had been complied with to the satisfaction of the consent authority. Upon commencing legal proceedings, the consent, including its ability to lapse, was suspended.
Facts: Mr Roberts filed an appeal against the refusal by the Blue Mountains City Council (“Council”) to be satisfied that the requirements of deferred commencement conditions of a development consent granted by the Court on 7 December 2005, for the subdivision of land, had been fulfilled. The deferred commencement condition in question related to the provision of Asset Protection Zones for bush fire safety. A five year time limit from the date of the grant of the consent, within which satisfaction of the deferred commencement conditions was to occur, was imposed under Section 95(6) of the EPA Act in conjunction with cl 111 of Sch 6 to that Act. Mr Roberts filed an appeal with the Court on 6 December 2010, one day before the condition was due to lapse.
The Court considered when the consent lapsed absent satisfaction of the deferred commencement conditions. The Court considered the combined operation of sections 83, which provided that the consent became effective and operated from the date of the decision, and s 80(3) which provided that a development consent could be granted subject to a condition that the consent was not to operate until the applicant satisfied the consent authority as to any matter specified in the condition.
Findings: The Court held that upon the grant of a deferred commencement development consent, the consent is effective, but not operative until such time as the deferred commencement conditions have been complied with to the satisfaction of the consent authority. As the Court concluded that it was not satisfied that the condition of the consent had been fulfilled and, the consent lapsed on 7 December 2010.
Note: This information is not be relied on as legal advice