LEC clarifies Council's role in determining whether a development consent has lapsed

The Land and Environment Court of NSW (LEC) has recently considered two applications for declarations about the lapsing of development consents.

Summary of cases

In PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 (PAG Services), the Applicant sought a declaration that a development consent for the erection of 10 townhouses in Byron Bay had not lapsed because construction work (being the removal of a coastal cypress) physically commenced on the property prior to the lapsing date. The Council filed a submitting appearance in those proceedings and initially indicated to the Court that it was “a matter of controversy” between the Council and the Applicant whether the subject consent had lapsed.

In Fabemu (No 2) Pty Limited v Kiama Municipal Council [2023] NSWLEC 79 (Fabemu), the Applicant sought a declaration that engineering work physically commenced on land prior to the date the subject development consent would otherwise lapse for the purposes of s 4.53(4) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Council filed a submitting appearance in those proceedings. It was agreed between the parties, and by the Court, that the lapsing date for the consent had not yet passed.

A Council’s role

These decisions clarify the role a Council is expected to play in confirming whether a development consent has lapsed (or will not lapse because building, engineering or construction work physically commenced on the subject land prior to the lapsing date).

In PAG Services, the Applicant had provided plans to the Council as required by a condition of the consent and also lodged a modification application. The Council refused to accept the modification application (on the basis the consent had lapsed) but took the position that it had no “legal power or duty to determine or certify whether or not a development consent has or has not lapsed”.

While it is correct that there is no general requirement in the EPA Act for a consent authority to confirm or declare that a development consent has lapsed, Justice Pritchard confirmed that the question of whether a consent has lapsed will be relevant to the exercise of some of Council’s functions under the EPA Act. She said:

[100] I accept the applicants’ submission that Council is in a special statutory position as consent authority under the EPA Act. It has functions and duties under the EPA Act in relation to this development. One such function was to consider the amended plans, verifying compliance with condition 2, pursuant to condition 3 of the development consent. Unless it held the view that the development consent had lapsed, it had a duty to proceed to consider the modified plans.

...

[106] I accept the applicants’ submission that it misses the point to say that Council had “no duty, obligation or function to perform in providing or confirming advice to any person as to whether a development consent has lapsed”. The development consent required the applicants to lodge further plans with Council for approval. In those circumstances, Council then had a function to exercise under the EPA Act. The evidence leads me to find that Council declined to exercise that function because it took the view that the consent had lapsed.

It will therefore be necessary for a Council to form an opinion on whether a development consent has lapsed if it is requested or required to perform any function or exercise any power under the EPA Act (such as approving plans required by a condition of consent or considering a modification application).

Justice Moore in Fabemu confirmed that the position adopted by the Council in those proceedings was consistent with the position addressed in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 where a public authority provides appropriate and limited assistance to a decision-maker - generally of a purely factual nature - without advocating any position for or against the proposal requiring to be addressed in the proceedings.  

Justice Moore ultimately refused to make the declaration because of a failure to satisfy a condition of the development consent required to be satisfied before any works were permitted to be carried out on the site (including the engineering works sought to be relied on as demonstrating commencement of the consent).

Message for Councils

These decisions confirm that, in some circumstances, it is appropriate for a Council to not take a view on whether a development consent has lapsed. If, however, a Council is requested or required to perform any function or exercise any power under the EPA Act to which the question of whether a consent has lapsed is relevant or must be determined by the Council before exercising the function or power, (such as determining a modification application or approving plans under a condition of consent), Council will need to form an opinion on whether the development consent has lapsed.