Environmental Planning and Assessment Act 1979 No 203
Current version for 19 November 2014 to date (accessed 21 December 2014 at 12:53)
Part 4Division 7

Division 7 Post-consent provisions

95   Lapsing of consent

(1)  A development consent lapses 5 years after the date from which it operates.
(2)  However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent.
(3)  Such a reduction may not be made so as to cause:
(a)  a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or
(b)  a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.
(3A)  A reduction that has been made under subsection (2) is to be disregarded if:
(a)  the development consent operated before, and lapses after, the commencement of this subsection (or the development consent lapsed during the period commencing on 22 April 2010 and ending on the commencement of this subsection), or
(b)  the development consent operated before, and lapses after, a date after 1 July 2011 prescribed by the regulations.

A reduction may not be made under subsection (2) during the period commencing on the commencement of this subsection and ending on 1 July 2011 or during any subsequent period prescribed by the regulations.

(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.
(5)  Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.
(6)  Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
(7)  The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.

95A   Extension of lapsing period for 1 year

(1)  If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.
(2)  The consent authority may grant the extension if satisfied that the applicant has shown good cause.
(3)  A person making an application under subsection (1) who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after it is made, may appeal to the Court, and the Court may determine the appeal.
(4)  An extension of 1 year granted under this section commences to run from the later of the following:
(a)  the date on which the consent would have lapsed but for the extension,
(b)  the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.
(5)  This section does not apply to complying development.

95B   (Repealed)

96   Modification of consents—generally

(1) Modifications involving minor error, misdescription or miscalculation
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6), section 96AB and Division 8 do not apply to such a modification.
Note. Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a)  it is satisfied that the proposed modification is of minimal environmental impact, and
(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.
(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(5) Threatened species
Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:
(a)  in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or
(b)  in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).

This subsection does not apply to State significant development.

(6) Deemed refusals
The regulations may make provision for or with respect to the following:
(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,
(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,
(c)  the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.
(6A), (7)  (Repealed)
(8) Modifications by the Court
The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.

96AA   Modification by consent authorities of consents granted by the Court

(1)  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if:
(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(b)  it has notified the application in accordance with:
(i)  the regulations, if the regulations so require, and
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(c)  it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
(1A)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.
(1B)  Development consent of the kind referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless:
(a)  in the case of development referred to in section 79B (3)—the requirements of section 79B (3)–(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or
(b)  in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995—the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act).

This subsection does not apply to State significant development.

(1C)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(2)  After determining an application for modification of a consent under this section, the consent authority must send a notice of its determination to each person who made a submission in respect of the application for modification.
(3)  The regulations may make provision for or with respect to the following:
(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,
(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,
(c)  the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.
(4)  (Repealed)

96AB   Review where modification application refused or conditions imposed

(1) Applications for review of modification decisions
An applicant for the modification of a development consent for which a council is the consent authority may request the council to review a determination by the council under section 96 or 96AA of the application.
(2) Council must review determination
A council must, on a request made in accordance with this section, conduct a review.
(3) Persons who may conduct council review
The review must be carried out by:
(a)  if the determination was made by the council—the council, or
(b)  if the determination was made by a delegate of the council—by the council or another delegate of the council who is not subordinate to the delegate who made the determination.
(4) Determination of review
As a consequence of the review, the council may confirm or change the determination.
(5) No review if appeal period expired or appeal made
A determination cannot be reviewed:
(a)  after the time limited for the making of an appeal under section 97AA expires, if no such appeal is made against the determination, or
(b)  after an appeal under section 97AA against the determination is disposed of by the Court, if such an appeal is made against the determination.
(6) Withdrawal of appeals
If on a review the council modifies a development consent, the council is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal made under section 97AA in respect of its determination withdrawn at any time prior to the determination of that appeal.
(7) Determinations not subject to review
This section does not apply to the following determinations:
(a)  a determination of an application to modify a complying development certificate,
(b)  a determination in respect of designated development,
(c)  a determination in respect of integrated development,
(d)  a determination made by the council under section 89A in respect of an application by the Crown,
(e)  a determination that is taken to have been made because the council has failed to determine an application.
Note. Sections 82C and 82D apply to a review under this section.

96A   Revocation or modification of development consent

(1)  If at any time it appears to:
(a)  the Secretary, having regard to the provisions of any proposed State environmental planning policy, or
(b)  a council (being the consent authority in relation to the development application referred to in this subsection), having regard to the provisions of any proposed local environmental plan,
that any development for which consent under this Division is in force in relation to a development application should not be carried out or completed, or should not be carried out or completed except with modifications, the Secretary or council may, by instrument in writing, revoke or modify that consent.
(2)  This section applies to complying development for which a complying development certificate has been issued in the same way as it applies to development for which development consent has been granted and so applies to enable a council to revoke or modify a complying development certificate whether the certificate was issued by the council or by an accredited certifier.
(3)  Before revoking or modifying the consent, the Secretary or council must:
(a)  by notice in writing inform, in accordance with the regulations:
(i)  each person who in the Secretary’s or council’s opinion will be adversely affected by the revocation or modification of the consent, and
(ii)  such persons as may be prescribed by the regulations,
of the intention to revoke or modify the consent, and
(b)  afford each such person the opportunity of appearing before the Secretary or council, or a person appointed by the Secretary or council, to show cause why the revocation or modification should not be effected.
(4)  The revocation or modification of a development consent takes effect, subject to this section, from the date on which the instrument referred to in subsection (1) is served on the owner of the land to which the consent applies.
(5)  Within 3 months after the date on which the revocation or modification of the consent takes effect, the applicant for the consent, or any other person entitled to rely on the consent, who is aggrieved by the revocation or modification may appeal to the Court, and the Court may determine the appeal.
(6)  The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.
(7)  If a development consent is revoked or modified under this section, a person aggrieved by the revocation or modification is entitled to recover from:
(a)  the Government of New South Wales—if the Secretary is responsible for the issue of the instrument of revocation or modification, or
(b)  the council—if the council is responsible for the issue of that instrument,
compensation for expenditure incurred pursuant to the consent during the period between the date on which the consent becomes effective and the date of service of the notice under subsection (3) which expenditure is rendered abortive by the revocation or modification of that consent.
(8)  The Secretary or council must, on or as soon as practicable after the date on which the instrument referred to in subsection (1) is served on the owner of the land referred to in subsection (4), cause a copy of the instrument to be sent to each person who is, in the Secretary’s or council’s opinion, likely to be disadvantaged by the revocation or modification of the consent.
(9)  This section does not apply to or in respect of a consent granted by the Court or by the Minister.
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