Lapsing of development consents – Cando v Cumberland Council

In Cando Management and Maintenance Pty Ltd v Cumberland Council, the New South Wales Court of Appeal considered whether a development consent had lapsed.

The Court reiterated that Applicant’s must demonstrate that any works that are relied on to activate a development consent were carried out in accordance with the conditions of that development consent.

The law

Section 4.53 of the Environmental Planning and Assessment Act 1979 (EPA Act) relevantly states:

4.53 Lapsing of consent

(4) Development consent for:

(a) the erection of a building, or
(b) the subdivision of land, or
(c) the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

In accordance with this section of the EPA Act, a development consent will not lapse in circumstances where building, engineering or construction work has physically commenced on the land.

Relevant case law in relation to the lapsing provision includes the following:

  1. The work must relate “in a real sense” to the work approved under the development consent and must be more than a sham (Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council).
  2. Only work that has been carried out in accordance with the relevant development consent will be taken to have prevented a development consent from lapsing (K & M Prodanovski Pty Ltd v Wollongong City Council).

The proposed development

On 23 July 2004 Parramatta City Council granted development consent for the construction of nine townhouses on land in Woodville Road, Guildford (the 2004 Consent). The development consent was specified to lapse in 5 years.

The 2004 Consent was subject to conditions including condition 44:

(44) All pruning works and tree removals shall be carried out a by a suitably qualified tree surgeon/arborist in accordance with the provisions of AS4373-1996 Pruning Amenity Trees and the Tree Works Industry Code of Practice (WorkCover NSW).

In 2011 the land was rezoned R2 Low Density Residential. Townhouses were prohibited in the zone. However, the development remained permissible under the 2004 Consent provided that this consent had not lapsed.

In 2012, Cando Management and Maintenance Pty Ltd (Cando) purchased a property and sought to rely on the 2004 Consent to develop the land.

Issue in dispute 

The 2004 Consent would be found to have lapsed on 23 July 2009 unless Cando could prove:

  1. that they had begun works prior to 23 July 2009; and
  2. that those works were in accordance with conditions of the 2004 Consent.

The Council pressed, among other things, that the removal of shrubs did not amount to works because the removal of those shrubs was not carried out in accordance with condition 44.

Findings of the Court

In the first instance, the Land and Environment Court held that the 2004 Consent had lapsed and any works undertaken on the land had not been in accordance with the conditions of consent. The Court specifically found that the removal of shrubs had not been carried out in accordance with condition 44 and therefore works had not been carried out in accordance with the 2004 Consent.

On appeal, the Court of Appeal found that the 2004 Consent had not lapsed. The Court made the following observations:

  1. it was necessary that both trees and shrubs were removed for the proposed development to be undertaken;
  2. while condition 44 of the development consent required removal of trees by a qualified arborist or tree surgeon, a shrub is not a tree and therefore its removal was not in breach of the consent; and
  3. the clearing of trees and shrubs is construction work and not demolition work. As such, conditions of consent requiring “completion prior to demolition” did not have to be satisfied prior to the clearing of shrubs and trees.

Key take away

When determining whether a development consent has lapsed, close attention should be given to the conditions of consent themselves. Development consents may include pre-conditions to the carrying out of work, or conditions requiring work to be carried out in a particular manner.

Further reading

Click here to read more about the law on “physical commencement” and the legislative provisions that have been implemented in 2020.

Click on the following cases to access them on NSW Caselaw:

  1. Cando Management and Maintenance Pty Ltd v Cumberland Council
  2. Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council
  3. K & M Prodanovski Pty Ltd v Wollongong City Council

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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