It’s that heart wrenching moment and panic that we all want to avoid as either developers or consultants when you realise your development approval has lapsed. That panic really sets in when it occurs to you that you never lodged an extension application (usually with the Council) before the development approval lapsed.
As most of us who practice in the development space know, there is an option available to breathe life back into your development approval if this is the case. That option is seeking appropriate orders from the Planning and Environment Court.
The Court has a wide discretion to excuse any non-compliance with the Planning Act 2016. This discretion is applicable to a failure to make an extension application to the assessment manager to extend the currency period of the development approval before the development approval lapsed.
As the Court’s power to excuse such a non-compliance is discretionary in nature, a number of factors will be taken into account when considering whether it is appropriate to grant the relief sought (being the revival of the lapsed development approval).
In our experience in previous Planning and Environment Court applications, the Court will usually take into account the following matters when deciding whether it is appropriate to make orders excusing the non-compliance to lodge an extension application:
- Level of support of the Council
- Whether there is a reasonable explanation for the lapsing of the development approval (such as change in ownership of the land and administrative oversight)
- Whether the applicant has acted promptly to remedy the situation
- Whether there is a desire and willingness by the applicant to actually implement the proposed development
- Prejudice to the applicant if forced to make a fresh development application
- Community awareness of the proposed development
- Steps taken to implement the proposed development (for example obtaining related approvals such as operational works and acting upon those approvals)
- Changes to the relevant planning controls since the development approval was given and consistency with the current planning controls relevant to the subject land
- Whether any town planning purpose would be served in requiring the applicant to make a new development application
The above list is not exhaustive and there may be many other factors that will be relevant to the lapsing of a development approval. As the Court has said previously on many occasions, each case will turn on its own facts and circumstances.
The application made to the Court must be supported by comprehensive affidavit material, which will form the evidence the Court will consider when deciding the application.
Evidence will usually be required from the owner of the land, the applicant (if different to the owner of the land) and the consultant (usually the town planner). Evidence may also be required from other consultants, depending on the nature of the proposed development and any changes to the relevant planning controls since the development approval was given. To be successful in these types of applications, it is critical that there is sufficient evidence to support the application, otherwise the Court may be minded to refuse to grant the relief sought.
It’s not the end of the road if your development approval has lapsed. You do have options available. If you have found yourself in this situation, please reach out to us to discuss the prospects of successfully seeking orders from the Court to breathe some life back into your development approval to allow your development to proceed as intended, with our specialist Planning and Environment Lawyer, Sarah Day, at [email protected] or phone 3439 8880.
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