Can an Owner obtain an extension of time to complete conditions imposed by Council?

26/06/2019

It is not unusual for a Municipal or Local Council to stipulate conditions as part of its Consent to a Development Application, such as the Consent is deferred and does not start to operate until the Applicant has satisfied certain conditions.

The conditions can encompass for example, the Council may require that the Applicant carry out remediation of the site, lodge plans and reports with the Council, or provide proof of the creation and registration of an easement. 

Often the Council will stipulate a date by which the conditions for the deferred Consent must be satisfied, which may be 6 months or 12 months from the date of the issue of the DA Consent.  The effect of such a deferred Consent is that if the conditions are not met by the stipulated deadline, the DA Consent will lapse.

What happens, for example if the specialist contractors qualified to carry out the remediation works are not available for the period required; or if the expert consultant takes much longer to prepare the plans and reports than he or she had anticipated; or if the neighbours (whose Consent is required for the creation and registration of an easement) opposes the proposed easement? 

Before facing an impending deadline for satisfying the Council’s deferred consent conditions, what can an Applicant do in those situations to prevent the DA Consent from lapsing?

Under the Environmental Planning and Assessment Act 1979, an Applicant who is unable to satisfy the Council’s conditions within the period allowed, can apply to the Council to extend the lapsing period of the Consent for one year where the lapsing period of the Consent has been reduced from 5 years to a shorter period.

The application to extend the lapsing must be brought before the expiry of the period stipulated by the Council for meeting the conditions of deferred commencement.

The Council in considering whether to extend the lapsing period under Section 4.54 of the Environmental Planning and Assessment Act must be satisfied that the Applicant has shown “good cause”.

What are the factors that the Council would take into account in considering if an applicant has shown “good cause” has been shown?

The Courts have been reluctant to define a narrow list of factors which the Council may take into account or to identify the types of conduct that is capable of being characterised as showing “good cause”.

The Courts have said that the concept of “good cause” must relate to considerations involving the implementation of the consent.  In other words, the applicant must demonstrate the steps that have been taken to comply with the consent conditions, the circumstances that have prevented the applicant from satisfying the conditions and an explanation of why an extension of time is required.

Legal proceedings by neighbours to challenge the consent, appointment of receivers and managers to the applicant, delays in satisfying the consent conditions caused by factors beyond the applicant’s control, the applicant’s inability to commence development due to impecuniosity, factual errors on the part of the Council are some of the circumstances which are said to be sufficient for showing “good cause” for the purpose of applying to extend the lapsing period.

There is a different view held by some that the period for compliance with the conditions of a deferred commencement Consent can be extended by applying to modify the consent (as distinct from an application to extend the lapsing).

Under the Environmental Planning & Assessment Act, the Council also has the power to modify a Consent in circumstances where the proposed modification is intended to correct a minor error or miscalculation, or where the proposed modification is of minimal environmental impact, or in the case of integrated development, the Minister, public authority or approval body has been consulted and does not object, provided that the Council is satisfied that the development (to which the Consent as modified relates) is substantially the same as the development for which Consent was originally granted and before that original Consent was modified.

In the case of Reid’s Farms Pty Limited v Murray Shire Council held that the life of a deferred commencement Consent is defined at the point in time when it was first issued.  The Consent lapses if the Applicant has failed to meet the conditions by the stipulated period.  The Court held in Reid’s Farms that any attempt to extend the period for compliance by way of Application to modify a Consent will have no effect in preventing the Consent from lapsing.

If you find yourself in the unexpected position of needing to lodge an Application to Extend the Lapsing Period of Consent in relation to your DA, at Watson & Watson our experienced Solicitors have the knowledge and expertise to help you prepare an Application to the Council and assist you with this process and achieve a resolution of an issue which could otherwise have been costly and stressful.  Please contact Richard Watson Accredited Special stream of Building & Construction or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.