Physical commencement of a development consent


Once a development consent is granted by Council (or the Land and Environment on an appeal) the lapsing clock starts ticking. If the lapsing period is not specified in the Notice of Determination, then the default period is 5 years from the date of determination (or date nominated on the Notice). A shorter lapsing period can be expressly specified – but in any case, it cannot be less than 2 years. Once a consent lapses it cannot be revived – it is lost.

How can you stop a development consent from lapsing? You have to act on it!

You don’t have to do everything required under a consent – but you do have to make a reasonable start under what is referred to as ‘physical commencement’. Once a consent has reached physical commencement, then the consent is saved and runs with the land – in theory, forever.

So, what works constitute physical commencement?

Preparatory work such as design and preliminary construction works can be relied on for physical commencement. The crucial element is that any such works must “relate to” the development consent. For example, geotechnical investigation works (involving actual borehole testing) and civil engineering works. The preparatory works will be sufficiently connected to the consent granted if they are a necessary step or part in the process required for carrying out the work authorised by the consent.

Note: The EP&A Regulations were amended on 15 May 2020, to further restrict the types of work previously relied upon for physical commencement [see clause 124AA].

Crucially, works that do not ‘relate to’ the consent, or are carried out contrary to satisfying some precondition in the consent (e.g. pre-approval of a vegetation management plan, before any clearing of vegetation takes place) do not count as ‘works’ for the purpose of proving physical commencement.

If you are contemplating only doing enough works to reach the threshold of physical commencement and no more for the time being – then we strongly recommend getting specific advice from our office as to what those works should be, in order to properly protect the continuation of the development consent. A consent is a valuable asset and shouldn’t be put at risk of lapsing. Call our expert Property & Planning Team to advise you further.