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Cando Management and Maintenance Pty Ltd v Cumberland Council

Lapsing of Development Consent, Shaw Reynolds lawyers

In Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26, the New South Wales Court of Appeal considered whether a development consent had lapsed. The Court reiterated that Applicant’s must demonstrate that any works that are relied on to activate a development consent were carried out in accordance with the conditions of that development consent.

The law

Section 4.53 of the Environmental Planning and Assessment Act 1979 relevantly states:

4.53 Lapsing of consent

(1) A development consent lapses 5 years after the date from which it operates.

(4) Development consent for:
(a) the erection of a building, or
(b) the subdivision of land, or
(c) the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

In accordance with this section, development consent lapses 5 years after the date of consent. The exception to this occurs in circumstances where building, engineering or construction work has physically commenced on the land.

Some relevant case law regarding above section includes:

  • The works must relate “in a real sense” to the works approved under the development consent and must be more than a sham: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169.
  • Only works that have been carried out in accordance with the relevant development consent will be taken to have prevented a development consent from lapsing: K & M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202.

The proposed development

On 23 July 2004, Parramatta City Council granted development consent for the construction of nine townhouses on land in Woodville Road, Guildford (the 2004 Consent).

The 2004 Consent was subject to conditions including condition 44:

(44) All pruning works and tree removals shall be carried out a by a suitably qualified tree surgeon/arborist in accordance with the provisions of AS4373-1996 Pruning Amenity Trees and the Tree Works Industry Code of Practice (WorkCover NSW).

In 2011 the land was rezoned R2 Low Density Residential. Townhouses were prohibited in the zone. However, the development remained permissible under the 2004 Consent provided that this consent had not lapsed.

In 2012, Cando Management and Maintenance Pty Ltd (Cando) purchased a property and sought to rely on the 2004 Consent to develop the land.

The Issue

The 2004 Consent would be found to have lapsed on 23 July 2009 unless Cando could prove that they had begun works prior to 23 July 2009 and that those works were in accordance with conditions of development consent.

The Council pressed, among other things, that the removal of shrubs did not amount to works because the removal of those shrubs was not carried out in accordance with condition 44.

Findings of the Court

In the first instance, the Land and Environment Court held that the 2004 Consent had lapsed and any works undertaken on the land had not been in accordance with the conditions of consent. The Court specifically found that the removal of shrubs had not been carried out in accordance with condition 44 and therefore works had not been carried out in accordance with the 2004 Consent.

On appeal, the NSW Court of Appeal found that the 2004 Consent had not lapsed. The Court made the following observations:

  • it was necessary that both trees and shrubs were removed for the proposed development to be undertaken;
  • while condition 44 of the development consent required removal of trees by a qualified arborist or tree surgeon, a shrub is not a tree and therefore its removal was not in breach of the consent; and
  • the clearing of trees and shrubs is construction work and not demolition work. As such, conditions of consent requiring “completion prior to demolition” did not have to be satisfied prior to the clearing of shrubs and trees.

Key take away

When determining whether a development consent has lapsed, close attention should be given to the conditions of consent themselves. Development consents may include pre-conditions to the carrying out of work, or conditions requiring work to be carried out in a particular manner.

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