by Alyce Kliese and Benjamin Kelso

The Law

There are two ways a development consent may be surrendered under the Environmental Planning and Assessment Act 1979(the Act):

  1. A consent may be surrendered voluntarily under section 4.63:

4.63 Voluntary surrender of development consent (cf previous s 104A)
(1) A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.

  1. A development consent may need to be surrendered as a condition to a subsequent development consent imposed by a consent authority under section 4.17:

4.17 Imposition of conditions (cf previous s 80A)
(1) Conditions – generally A condition of development consent may be imposed if –

  • (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or

(5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations.

An applicant surrendering or modifying a consent in accordance with either of the above circumstances must provide notice to the consent authority in accordance with clause 97 of the Environmental Planning and Assessment Regulation 2000 (the Reg), which relevantly provides requirements with respect to the provision of owner’s consent:

97 Modification or surrender of development consent or existing use right

(1) A notice of modification or surrender of a development consent or existing use right, as referred to in section 4.17(5) of the Act, must include the following information-

            …

  • (e) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.

(2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1) –

  • (a) takes effect when it is received by the consent authority, and
  • (b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.

(3) A notice of voluntary surrender of a development consent, as referred to in section 104A of the Act, is to be given to the consent authority and is to include the following information-

  • (d) if the person giving the notice is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the surrender of the consent

(4) A duly signed and delivered notice of surrender of a development consent referred to in subclause (3) –

  • (a) takes effect when the consent authority notifies the person that –
    • (i) it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
    • (ii) that the surrender will not have an adverse impact on any third party or the locality, and
  •    (b) operates, according to its terms, to surrender the consent to which it relates.

What does this mean?

An applicant who is not the owner of land must include a statement signed by the land owner when seeking to surrender a development consent.

The requirement is the same regardless of whether the development consent is surrendered voluntarily, or the surrender is required by a condition of consent in a subsequent development consent.

A voluntary surrender becomes effective when the consent authority notifies the applicant that it is satisfied with the requirements of clause 97(4) of the Reg.

In contrast, a consent that is required to be surrendered under section 4.17 of the Act as a condition to a subsequent development consent only becomes effective when the consent authority receives a notice from the applicant in accordance with clause 97(1)-(2) of the Reg (the consent is not automatically surrendered when the consent is made).

Notice of Modification

In addition to a consent authority’s ability to impose a condition to a development consent requiring the surrender of an existing development approval, they may alternatively impose a condition requiring the modification of a previous development consent.

This is different to a usual application to modify a development consent under section 4.55 of the Act which would be made by a private individual/ land owner. In this case, an existing development consent is being modified by a condition imposed to a subsequent development consent by the consent authority under section 4.17.

In this respect, the Court clarified in Waverly Council v C M Hairis Architects (2002) 123 LGERA 100 that a development consent modified by a consent authority under section 4.17 does not require an application under section 4.55, and therefore there is no requirement that the development as modified be “substantially the same” (as would be the case for modification applications under section 4.55). In other words, a consent authority can modify a previous development consent to a greater extent than would be possible under a section 4.55 modification application, to the extent the previous consent is required to be modified in order to facilitate the new consent.

The Court has suggested in Pritchard v Northern Beaches Council [2020] NSWLEC 1310 that the consent authority’s powers under section 4.17 likely extend to consents granted by way of a complying development certificate, in addition to consents granted by way of development applications.

Similar to the surrender of a consent under section 4.17, the Court also confirmed the requirements of clause 97(2) of the Reg in that a modification of a consent under section 4.17 by a consent authority only takes effect upon a relevant notice of modification being delivered to the consent authority, and does not automatically take effect on the making of the consent: Lendlease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2020] NSWLEC 1608.

Links

Act: https://legislation.nsw.gov.au/view/html/inforce/current/act-1979-203

Reg: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2000-0557

 Waverly Council v C M Hairis Architects (2002) 123 LGERA 100 at [27]: https://www.caselaw.nsw.gov.au/decision/549f853f3004262463ac2a06

Pritchard v Northern Beaches Council [2020] NSWLEC 1310 at [54]: https://www.caselaw.nsw.gov.au/decision/1735ab7e92e78723d6af72c8

Lendlease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2020] NSWLEC 1608 at [38]: https://www.caselaw.nsw.gov.au/decision/1762584c2a8f6f37762d1e7c