What has happened?
In Huang v Waterhouse [2025] NSWLEC 71, the Land and Environment Court declared that a 2007 development consent for alterations to a garage and studio in Rose Bay had lapsed in 2012. This was despite the Council having approved four modifications to it in the years that followed.
Context
Under the law as it stood, a development consent lapsed after five years unless building, engineering or construction work "relating to" the development was physically commenced before then.
The owner relied on work carried out on the site shortly before the June 2012 deadline. However, the consent contained conditions that had to be satisfied before any development work began, including dilapidation reports for the neighbouring property and a survey by a registered surveyor. No construction certificate was issued until the day before the deadline.
The neighbouring owner challenged the consent in 2024, after the Council approved a fourth modification. The neighbour argued that the consent had lapsed long before.
The decision
Justice Pritchard held that:
the pre-commencement conditions had not been complied with when the work was done, so the work was carried out in breach of the consent;
following the Court of Appeal's decision in Iron Gates, work done in breach of a consent is not work "relating to" the consent and cannot prevent it lapsing; and
the consent therefore lapsed on 26 June 2012. The later modifications could not revive it.
The Court declined to refuse relief on discretionary grounds, rejecting arguments based on the neighbour's delay. The owner was ordered to pay the neighbour's costs.
How will this affect you?
To keep a consent alive, the work relied on must be lawful. That generally means satisfying all "prior to commencement" conditions first.
A council's approval of later modifications does not prove that the consent is still in force.
Purchasers of sites with older consents should check, with evidence, whether the consent was validly commenced before relying on it.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.