In a decision that clarifies the extent to which planning authorities can impose deferred commencement conditions, the Land and Environment Court has clarified that such conditions cannot be imposed on the granting of a modification of consent.

Understanding Deferred Commencement Conditions

Deferred commencement conditions are conditions imposed by consent authorities which must be satisfied before a development consent becomes operational. These conditions allow development consents to become “operational” subject to certain prerequisites being met, often to ensure that the proposed development is aligned with community, environmental, and legal standards.

With respect to deferred commencement conditions, the Environmental Planning and Assessment Act 1979 relevantly states:

4.16 Determination

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(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

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4.55   Modification of consents—generally

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(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

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The Environmental Planning and Assessment Regulation 2021 also relevantly states:

76 Deferred commencement consent

(1) A development consent with a deferred commencement, as referred to in the Act, section 4.16(3), must be clearly identified as a “deferred commencement” consent, whether by using the expression, referring to that section or otherwise.

(2) A deferred commencement consent must clearly distinguish between—

(a) conditions that relate to matters about which the consent authority must be satisfied before the consent can operate (the relevant matters), and

(b) other conditions.

(3) A consent authority may specify the period within which the applicant must produce sufficient evidence to the consent authority to enable it to be satisfied about the relevant matters.

(4) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether it is satisfied about the relevant matters.

(5) If the consent authority does not notify the applicant within 28 days after the applicant produces the evidence, the consent authority is taken to have notified the applicant, on the day on which the period expires, that it is not satisfied about the relevant matters.

(6) Subsection (5) applies for the purposes of the Act, section 8.7 only.

The Case Overview

In Peake Pearce Pty Ltd v Georges River Council the key issue was whether the deferred commencement condition, which was imposed following the approval of a modification application, were valid and legal. There was no deferred commencement condition on the original development consent itself.

Under section 4.16(3) of the EPA Act, deferred commencement conditions can be attached to a “development consent”. However, s 4.55(4) clarifies that a “modification of consent” is different from the granting of a “development consent”.

The Applicant contended that deferred commencement conditions apply only to initial development consents. Modifying an already operative consent to make it inoperative was viewed as impractical and potentially unlawful.

The Court determined that the imposition of a deferred commencement condition on the modification was beyond the Council’s legal authority, rendering the modification invalid. The Court agreed with the Applicant, noting that a modification is not a new grant of consent but an alteration to existing consent. Due to the Council exceeding its powers, the modification with the deferred condition was deemed invalid.

The Court highlighted that errors in exercising power don’t always invalidate a decision. However, in this case, the nature of the error was significant enough to impact the decision’s validity.

Moving Forward

This decision is a step towards more transparent and effective use of deferred commencement conditions. It illustrates the importance of a careful approach to the granting of development approval and ensuring that the power to impose particular types of conditions is used as intended.

You can read the decision by clicking here.