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On Friday 15 May 2020, the Minister for Planning and Public Spaces made the Environmental Planning and Assessment Amendment (Lapsing of Consent) Regulation 2020 (Regulation).

The object of the Regulation is to specify that the carrying out of certain preliminary work (including soil or water testing or surveying) is not of itself sufficient to prevent a development consent from lapsing.

The Regulation introduces a new clause 124AA into the Environmental Planning and Assessment Regulation 2000. It deems that the following activities will not constitute physical commencement of work for the purpose of a development consent:

  • creating a bore hole for soil testing
  • removing water or soil for testing
  • carrying out survey work, including the placing of pegs or other survey equipment
  • acoustic testing
  • removing vegetation as an ancillary activity
  • marking the ground to indicate how land is to be developed.

The Regulation does not apply to a development consent granted before 15 May 2020.

The Regulation effectively overturns the 2005 decision of the Court of Appeal in Hunter Development Brokerage Pty Ltd v Cessnock City Council (and other cases that have subsequently dealt with the commencement of development).

If you have any questions about the Regulation, please feel free to contact a member of our specialised local government and planning law team.

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