In a recent feature within New Planner – the official magazine of the NSW & ACT Division of the Planning Institute of Australia, our Director Mark Cottom, speaks to the importance of interpretation when applying beneficial provisions included among changes made to the NSW planning legislation throughout the pandemic.
This article originally appeared in New Planner – the journal of the New South Wales planning profession – published by the Planning Institute of Australia. For more information, please visit: www.planning.org.au/news/new-planner-nsw
Chu v Inner West Council  NSWLEC 14
Applicants in an appeal against Stop Work Order asserted that the relevant demolition was authorised by complying development certificate (CDC). However, Council argued that the CDC had lapsed.
The case turned upon whether amendments made on 14 May 2020 to section 4.53 if the Environmental Planning and Assessment Act 1979 (the EP&A Act) extend to CDC’s. Relevantly, section 4.53 (1)(c) of the EP&A Act provides a two-year extension to physically commence work to avoiding lapsing a development consent, if the lapsing date would otherwise have been within the ‘prescribed period’ of 25 March 2020 to 25 March 2022.
The applicant’s CDC was issued on 8 July 2015, and (on the face of section 4.29 of the EP&A Act) lapsed on July 8 2020. Section 4.29 was not amended by the Emergency Measure Act, and provides that a CDC lapses 5 years after the date endorsed on the certificate (absent physical commencement), and that no proceedings may be taken to extend the 5-year period.
Nonetheless, the applicants argued their CDC had benefit of the 2-year extension in section 4.53(1)(c) of the EP&A Act. Section 4.1(1) defines ‘development consent’ as follows:
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires… development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.
Justice Pain determined that it was clearly intended by the EP&A Act that the 2-year extension did not apply to the CDC’s. Her Honour agreed with the Council that separate divisions in the EP&A Act “have been carefully drafted to apply differentially to development consents and CDCs in relation to lapsing of these different instruments.” Her Honour found the words “except in so far as the content or subject-matter otherwise indicates or requires” in section 1.4(1) of the EP&A Act clearly applied in this case. She then went on to find, on the evidence before the Court, that the relevant CDC was not physically commenced for the purposes of section 4.29(3) of the EP&A Act.
Read more on this publication, HERE