Lapsing of development consents – Donvito v Hawkesbury City Council

When a local council and an applicant are in disagreement, the Court has the power to determine whether a consent has lapsed (or not).

The facts

In 2012, Mr and Ms Donvito (the Donvitos) applied to Hawkesbury City Council (the Council) for development consent to construct a boarding house at 100 Mileham Street, South Windsor. The proposed development was, at that time, permissible. Such development was later prohibited at the site.

On 9 July 2013, the Council granted development consent (the 2013 consent) for the Donvitos’ proposed boarding house subject to conditions, including condition 12 and condition 15:

Condition 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.

Condition 15: A construction management program shall be submitted and approved by the Council prior to the issue of any construction certificate.

In 2018, prior to the potential lapsing of the 2013 consent, the Donvitos submitted a construction management plan to Council. They also obtained a construction certificate from Council (being the Stage 1 Construction Certificate), and had work carried out at the site including electrical safety works, structural propping, and the demolition and partial removal of a wall. No works were done to the roof at this time.

At a later time, the Donvitos engaged with staff of Hawkesbury City Council, and with the Council’s then Mayor, seeking to obtain acknowledgment that the 2013 consent had been commenced and, therefore, had not lapsed. The Council has declined to do so.

In response, the Donvitos commenced proceedings in the Land and Environment Court to seek a declaration that the 2013 Consent had not lapsed.

The law

Section 4.13 of the Environmental Planning and Assessment Act 1979 sets out when a development consent will lapse. This provision has changed significantly throughout the Covid-19 pandemic, as changes were made to stop development consents from lapsing during a time of great uncertainty in NSW and throughout the world.

In relation to the Donvitos, section 4.13 operated in a way which would result in their consent lapsing 5 years after the granting of the 2013 consent if “building work” pursuant to that consent had not taken place prior to 9 July 2018, being the fifth anniversary of the granting of the 2013 consent.

What the Court said

The Court determined that the 2013 Consent was still operational and had not lapsed.

Relevant to its determination was that there was to be a staged approach to the construction of the development. Because of this, it was not necessary for condition 12 to be satisfied before the consent became operational. That is, there could be more than one construction certificate for the development, which meant that a construction certificate showing a metal roof (as required by condition 12) was not a precondition to the consent becoming operational.

Relevantly, the Court said:

…the DA Conditions Compliance Matrix… disclosed the nature of the matters to be encompassed in … Stage 1 works and authorised by the Stage 1 construction certificate. No matters relating to works involving the asbestos roof were noted as being encompassed within the Stage 1 construction certificate.

Relevant for present purposes, this document expressly nominated that works encompassing the asbestos sheeting roof would be addressed in a Stage 2 construction certificate.

It is to be observed that there is no evidence that any Stage 2 works have been undertaken, nor that any Stage 2 construction certificate has been sought and obtained.

What is clear, however, is that the Council has been provided with documentation concerning the Stage 1 works and the Stage 1 construction certificate. There is no evidence that the Council seeks to suggest that it has raised any objection to the deferral until the Stage 2 works and construction certificate process for the necessity to satisfy condition 12 arising.

Indeed, I am satisfied that the evidence of the Construction Management Plan, and its acceptance by the Council as the basis for Stage 1 works, enables me to draw the inference that the endorsement of the Council of the Construction Management Plan for Stage 1 constituted acceptance by the Council that the necessity for satisfaction of condition 12 of the 2013 consent would not arise until a construction certificate was proposed to be executed which would involve works to the asbestos sheeting roof to the existing structure.

As a consequence, I am satisfied that:

    • the works involving the creation of the two apertures in the wall to the existing structure and the prior… propping was carried out within five years of the granting of the 2013 consent; and
    • because the 2013 consent was proposed to be effected in stages and that Stage 1 did not include any work to the asbestos‑sheeting roof, it was appropriate that satisfaction of condition 12 could be deferred for satisfaction until the stage when such works to the roof were contemplated.

I am also satisfied that the second of the above propositions had also been accepted, by necessary inference, by the Council.

I am therefore satisfied that it is appropriate to make a declaration confirming that the 2013 consent has commenced and, therefore, has not lapsed.

In the orders made, the Court reserved its position on costs. This means that no orders have been made regarding costs of the proceedings – yet. Usually, costs are awarded to the winner (being the applicant in this case). The Court will likely make a decision with respect to costs at a later time, however it is a timely reminder that costs orders can be made against local councils in circumstances where an applicant commences these kind of proceedings.

What does this mean?

It is important to note that:

  1. the Land and Environment Court has the power to declare whether a development consent has lapsed (or not).
  2. in determining whether a consent has lapsed, the Court will look at the operation of conditions and the practical effect of those conditions; and
  3. the Court has the power to make costs orders and can make orders for costs against a local council in these matters.

Read more

You can read more about the lapsing of consents here: Lapsing of development consents: Cando v Cumberland Council

You can read a full copy of the judgment here: Donvito v Hawkesbury City Council [2022] NSWLEC 26

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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.