What has happened?
In Cameron v Woollahra Municipal Council [2026] NSWLEC 106, the Land and Environment Court held that a development consent for a new house in Bellevue Hill had lapsed. The owners had lodged the information needed to satisfy a deferred commencement condition two weeks before the deadline, but the Council did not finish assessing it until after the deadline had passed.
Context
A deferred commencement consent does not operate until the applicant satisfies the council about the matters specified in the condition. If that does not happen within the time allowed, the consent lapses (s 4.53(6) of the Environmental Planning and Assessment Act 1979 (EPA Act)).
Here, the consent was granted in April 2021. Because of the COVID-19 amendments, the owners had five years, until 13 April 2026, to satisfy the condition. The condition required "revised stormwater plans" addressing three specified matters, including rainwater tank capacity and absorption trench calculations.
The owners lodged plans in early March 2026. The Council responded that more information was needed, and the owners lodged further plans and a structural certificate on 30 March 2026. The Council did not assess them until 28 April 2026. It then found them satisfactory, but took the view that the consent had already lapsed.
The decision
Justice Beasley dismissed the owners' application for declarations that the consent had not lapsed. The condition required the Council to reach a state of satisfaction that the plans actually addressed the three matters. That could only happen once the Council had considered the content of the plans; it could not be reached merely by receiving them.
Because the Council was not satisfied until after the consent had lapsed, it was too late. The Court distinguished an earlier decision where the condition only required the applicant to provide certain documents.
The Court noted that the owners were incurring holding costs of about $40,000 per week. Even so, it had no discretion to keep the consent alive.
How will this affect you?
Read the deferred commencement condition carefully. If it requires the council to be satisfied of something, lodging documents before the deadline may not be enough.
Lodge well before the lapse date, allowing time for the council to assess the material and to request more information.
If the deadline is approaching, get advice on your options early rather than relying on the council to act in time.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.