27 April 2010
In our Member Alert last Thursday, we told you about the Environmental Planning and Assessment Amendment (Development Consents) Bill 2010 which is now before Parliament.
One thing, worth noting, is that there is a significant omission from the current version of the bill that will reduce its effectiveness (if it is not amended).
The Act currently has two different provision regarding the expiry of development consents – one for regular development consents and one for deferred commencement consents.
Perhaps through oversight, the Bill does not extend a time limitation on a deferred commencement provision It’s possible that a developer may have been given only (say) two years to comply with a deferred commencement condition. That two year period will not be extended by the bill as in stands.
In our view there is no grounds for different treatment. The policy issue is the same whether a consent is “deferred commencement” or regular. If a developer cannot secure finance, they will typically be unable to spend the money to go ahead and do the work to satisfy a deferred commencement provision. We are currently making this case to government and asking them to amend the bill, to cover this situation.
The government has also flagged that it does intend to proceed with a plan by former Minister, Frank Sartor, to make a new regulation changing the definition of “physical commenmcent”.
The Land and Environment Court has previously held that peg out surveys may be “physical commencement” in certain circumstances. The government says that it will make a regulation to say that “a peg out survey does not constitute physical commencement”. We previously opposed this change when it was flagged by Mr Sartor, and we will oppose it on this occasion. We will also raise concerns about any retrospective impacts it might have. The exact nature of the change is not clear at this time and no legal document is available to more clearly set out the government’s intentions.
The statement by the government is contained in a speech available here.
