COVID-19 now stops the 'clock' on lapsing of development consents and the expiry of appeal rights

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By Anthony Whealy, Partner, Ben Salon, Associate and James Oldknow, Lawyer

In our article published on 6 May 2020, we flagged that history could well repeat itself and in a blink of an eye it seems that’s just what has happened – with a bit extra.

On 14 May 2020, the NSW Parliament assented to the COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Act 2020 No 5 (‘Miscellaneous Act’). As its title suggests, the Miscellaneous Act introduces amendments to certain legislation to implement further emergency measures as a result of the COVID-19 pandemic.

Importantly, the Miscellaneous Act introduces the following 2 amendments to the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) on our subject topic:

Extension of lapsing period of existing development consents by 2 years

The amended EPA Act provides that where a development consent was granted before 25 March 2020, and it had not lapsed as at 14 May 2020 (i.e. the date of the commencement of the Miscellaneous Act) , then that development consent will now lapse 2 years after the date on which it would other wise have lapsed. This means many development consents will have a commencement period of 7 years – which is well beyond the maximum 5 years that has hitherto applied under NSW planning laws.

Deferred commencement consents are similarly extended by the amendment to the EPA Act. Where a deferred commencement development consent was granted prior to 25 March 2020, and any deferred commencement conditions were not required to be satisfied before 14 May 2020, then the time to satisfy the deferred commencement conditions is extended by 2 years.

Parliament did not see fit to provide the same 2 year extension to development consents issued on or after 25 March 2020. However, the amended EPA Act does provide that where a development consent (including a deferred commencement consent) is granted between
25 March 2020 and 25 March 2022, that consent cannot lapse in a period of less than 5 years.

These are welcome and sensible changes which should give developers in NSW a reasonable amount of time to either recover from the financial consequences of Covid 19, or to choose not to proceed with their approved DAs at all.

Extension of the expiry of appeal rights to 12 months

In addition, the amendments to the EPA Act have also extended the time to appeal certain determinations or refusals (including deemed refusals) of development applications or modifications to development applications.

The Amended EPA Act provides that where a developer’s right to appeal a determination or refusal (including deemed refusal) of a development application arose or arises between 25 September 2019 and 25 March 2022, then the right to appeal that determination or refusal is extended from the usual 6 months to be 12 months after the date of the determination or refusal.

This amendment will be of particular interest to developers whose right to appeal a determination or refusal (including a deemed refusal) of a development application or modification to development application expired post 25 September 2019,  as those appeal rights may now be re-enlivened.

Extension of time before abandonment of existing use rights

Separately, but equally of interest to developers and owners of land, the amended EPA Act now provides that during the period between 25 March 2020 and 25 March 2022, an existing use right is considered abandoned if it ceases for a period of 3 years instead of the usual 12 months.

What does this all mean?

The amendments to the EPA Act introduced by the Miscellaneous Act give developers and land owners some much needed breathing space in which to recover from the economic impact of the COVID-19 pandemic.

It is important to be certain on when your development consent will lapse, as to whether you have the right to appeal a determination or refusal of a development application or modification, or whether ceasing use of a development that operates under existing use rights will constitute an abandonment of use.

We are available to assist you on these matters and those arising from the amendment to the EPA Act that may apply to you.

For further information, please do not hesitate to contact us.

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