Extension of time for development consents

22 April 2010

The NSW Government has today introduced the Environmental Planning and Assessment Amendment (Development Consents) Bill 2010 into Parliament.

The proposed legislation has been introduced in response to the current difficulties many developers have had in obtaining finance. The Urban taskforce has been pushing for this legislation since the Jobs Summit early last year. It was foreshadowed by the then Minister for Planning, Kristina Keneally, at the most recent Urban Taskforce Development Excellence Awards.

Finance difficulties mean that some developers are now starting to run up against the existing provisions of the Environmental Planning and Assessment Act which provide that a development consent lapses when it is not acted upon. In theory, a development consent could last up to five years, but many have been limited to shorter periods, such as three years.

Existing development consents issued with an expiry date of less than 5 years can currently only be extended by an additional one year, with the approval of the consent authority. Neither a consent authority, or the Land and Environment Court currently have the discretion to extend the life of an existing development consent for a further period.

This proposed legislation, now before parliament, will address this issue by extending the life of existing development consents to five years and requiring development consents issued up until 1 July 2011 to be for a full five year period. However, it is not yet clear whether the proposed legislation will have the support of the Opposition or other non-government parties. We are actively seeking their support.

One other positive consequence of the proposed legislation is to discontinue a pending change to the arrangements for lapsing of development consents (originally pushed through parliament by Frank Sartor in 2007).

The 2007 change, which has not yet formally been implemented, would have meant that, even when there had been “physical commencement” within the period set down under a development consent (typically 3-5 years) the consent would still have lapsed if work was not also “substantially commenced” within a further 2 years after the expiry date for the consent.

We did not support this 2007 change because it would make it easier for development consents to lapse and would have created difficulties in distinguishing between “physical commencement” and “substantial commencement”.

If today’s proposed legislation passes through parliament unamended, this 2007 chnage will be removed from the statute books.

Today’s proposed legislation is available here.