This article is in response to a great question asked via email.
The question is:
If I have a consent for a subdivision (lots, retaining walls, earthworks, roads etc) and I want to lodge another subdivision for the same parcel of land (for the same type of works) that is a different concept, can I have two development consents for two different concepts on the same parcel of land?
The answer is yes. It is possible to have two development consents for two different subdivision concepts on the same parcel of land.
What about inconsistencies?
Having multiple development consents on land creates the risk that there will be inconsistencies between those consents. That is why section 80A(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) allows for a consent authority to put a condition on a development consent requiring the modification or surrender of any existing development consents.
If a council does not put this condition on the later development consent, both development consents can be acted on. In that situation, if any inconsistencies can’t be resolved between the development consents, a further development application would need to be considered and determined by the consent authority.
Findings of the Land and Environment Court
The issue of multiple development consents was considered by the Land and Environment Court in Waverley Council v C M Hairis Architects.
In that case, C M Hairis Architects (the Applicant) had:
- one development consent on the land (the First Consent) for 13 apartments, car parking for 28 vehicles, a swimming pool and a club; and
- one development application pending approval (the Second Consent) for changing the club and swimming pool into 4 apartments and a car park.
Waverley Council argued that the Applicant should either:
- modify the First Consent under section 96 of the EPA Act (which could not be done due to the extent of the changes); or
- lodge a fresh development application seeking consent for the whole development, not just for the changes to the club and swimming pool.
The Land and Environment Court disagreed with this approach.
The Court stated that development applications can be made for specific works, and can relate to pre-existing development. This meant that the Second Consent could be just for the changes to the club and pool, and did not need to be for the whole development.
Furthermore, the Court also emphasised that there is no legal constraint on the number of development applications that a person can make in respect to the same land. This meant that both the First Consent and the Second Consent could exist and be operative at the same time.
The Court said Waverley Council could:
- place a condition on the Second Consent requiring the applicant to modify the First Consent, to ensure that any inconsistency is removed and locking the applicant out of the option to have a club use; or
- approve the Second Consent with no requirement to modify the First Consent.
It was acknowledged by the Court that complications could arise if the First Consent was not modified, especially if there were issues that could not be resolved by either development consent. In that instance, the Court said a further development application could be considered and determined by Waverley Council. It was acknowledge that this approach “may be complicated, inept, inconvenient, inappropriate or conceptually unsound but that does not make [the Second Consent] incompetent.”
Are there other ways to surrender a development consent?
Section 104A of the EPA Act allows for a person entitled to act on a consent to voluntarily surrender that consent. This section of the EPA Act is often used outside of the development consent process. For example, it could be a requirement of a voluntary planning agreement to surrender an old consent, and the developer could surrender that old consent under section 104A of the EPA Act (you can read more about voluntary planning agreements here).