What has happened?
In Painters Lane Developments Pty Ltd v Central Coast Council (No 2) [2025] NSWLEC 105, the Land and Environment Court declared that a deferred commencement condition attached to a consent for a 20-storey mixed-use development in Gosford had been satisfied. The consent had not lapsed, even though the Council had argued otherwise.
Context
The 2020 consent for a 182-unit shop-top housing development had two deferred commencement conditions:
the first required the developer to provide geotechnical and structural material to Sydney Trains for approval; and
the second required the submission of "written permission and deed of agreement" from the neighbouring owner to carry out sewer relocation works on its land.
In March 2021, within the time allowed, the developer gave the Council an executed deed signed by the neighbouring owner. The Council did not say at the time that it was inadequate. Years later, as the extended lapse date approached, the Council said the deed did not bind later owners of the neighbouring land and that the condition had not been met.
The decision
Justice Robson held that the condition had been satisfied when the deed was provided in March 2021:
The condition called for evidence that a deed had been obtained, assessed at the time the evidence was provided. It did not require the arrangement to continue indefinitely, and once satisfied it was exhausted.
The Council had deliberately used different wording in the first condition, which required Sydney Trains' approval. The second condition did not require the Council to decide that the deed was satisfactory.
The deed, despite some shortcomings in its form, was sufficient to show that the neighbour's permission had been obtained.
The Council was ordered to pay the developer's costs.
How will this affect you?
The precise wording of a deferred commencement condition matters. A condition requiring documents to be provided may be satisfied on lodgement, while one requiring a council or agency to be satisfied or to approve may not be.
The Court contrasted this with a later case in which the condition required the council to be satisfied of the content of plans, and the consent lapsed. Both cases show why the wording of the condition must be checked.
Keep a clear record of what was lodged and when. In this case, the developer's March 2021 email was decisive.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.