Planning Update: Lapsing of deferred development consents

In a decision handed down last week, the Land and Environment Court has clarified the circumstances in which a deferred commencement consent will lapse.

Facts

In Dennes v Port Macquarie-Hastings Council development consent had been granted for the erection of a replacement dwelling house on flood-prone land. The development consent was granted subject to a deferred commencement condition which required the applicant to submit a flood emergency response plan for the Council’s approval, and for the response plan to be determined to be satisfactory by the Council.  The consent specified a period of 12 months within which the applicant had to satisfy the deferred commencement condition.

The applicant arranged for the preparation of a flood emergency response plan and submitted it to the Council. It did this well within the required 12 month period. However, still within the 12 month period, the Council informed the applicant that the response plan was not supported by the Council, and that the deferred commencement condition had therefore not been satisfied.

At that point the applicant had a number of options available to him. He could have appealed against the Council’s decision that it was not satisfied with the applicant’s response plan. He could also have appealed from the Council’s deemed decision (being the failure of the Council to make a decision within 28 days after he had provided the response plan to the Council). He could also have applied for an extension of the 12 month lapsing period for a further year.

However, the applicant did none of these things within the 12 month period required by the development consent. He did ultimately appeal against the Council’s decision that it was not satisfied with the applicant’s response plan – but not until well after the 12 month lapsing period had ended.

Issues

The Council argued that the Court had no jurisdiction to hear the appeal because the development consent had lapsed when the applicant had not satisfied the Council in relation to the deferred commencement condition within the required 12 month period.

Decision

Preston CJ accepted the Council’s argument and found that the development consent had lapsed.

His Honour said that it was necessary, but not sufficient, for the applicant to have provided evidence to the Council to enable the Council to be satisfied with the applicant’s flood emergency response plan within the 12 month period specified in the consent. The applicant submitted a response plan to the Council which he considered to be satisfactory but, of itself, this did not satisfy the deferred commencement condition.

The deferred commencement condition expressly required the Council to determine that the response plan was satisfactory.  The condition could therefore only be satisfied if and when the Council determined that the response plan submitted by the applicant was satisfactory. This never happened. The development consent therefore lapsed at the end of the 12 month period specified.

As the development consent had lapsed, there was no effective development consent on which the applicant could rely for the purpose of bringing an appeal in relation to the Council’s lack of satisfaction with the response plan submitted by the applicant.

Take home lesson

When imposing a deferred commencement condition requiring the submission of further information, Councils should make it clear not only that the further information must be provided within the specified timeframe, but also that the information must be determined by the Council to be satisfactory.

For more information about this decision, or deferred development consents, please contact Alan Bradbury.