Lapsing of development consents

When does a development consent lapse?

A development consent generally lapses five years after the date from when it starts to operate, as set out within the provisions of the NSW Environmental Planning and Assessment Act 1979 (EP&A Act). However, this does not mean that the development covered by the consent must be completed within the five year period to stop the consent from lapsing.

A development consent for the erection of a building, the carrying out of works or the subdivision of land doesn’t lapse if building, engineering, or construction work related to the consent is physically commenced on the land before the date on which the consent would otherwise have lapsed. An explanation of the meaning of physical commencement is provided below.  

What changes were made in response to COVID-19?

To assist in the state’s economic recovery from COVID-19, changes were made to the EP&A Act. These changes relate to how long a development consent lasts for.

The NSW Government made the changes in recognition that some builders and developers would need more time to start their building, engineering, or construction works because of the pandemic.The following changes were made:

• development consents granted from 25 March 2020 to 25 March 2022 to have a five year lapsing period that cannot be reduced by the consent authority, and
• development consents granted prior to 25 March 2020 and not lapsed, extended by two years.

The changes also apply for deferred commencement consents, which are consents that do not become operational until certain conditions have been satisfied.

Full details about the lapsing of development consents can be found within the EP&A Act - Division 4.9 Post-consent provisions. Further information is available from HIA. 

When is a development consent “physically commenced”?

A development consent will not lapse if building, engineering, or construction work is physically commenced before the date on which the consent lapses.

The NSW Environmental Planning and Assessment Regulation 2021 (the regulation) sets out the provisions for physically commenced works. Clause 96 of the regulation specifies that work is not taken to have been physically commenced just by doing one or more of the following:

(a) creating a bore hole for soil testing,

(b) removing water or soil for testing,

(c) carrying out survey work, including the placing of pegs or other survey equipment,

(d) acoustic testing,

(e) removing vegetation as an ancillary activity,

(f) marking the ground to indicate how land is to be developed.

The above “test” of physical commencement does not apply to development consents granted before 15 May 2020.

Changes to the regulation were made in 2020 as there was uncertainty between parties about what works comprised physical commencement to activate a consent.