The Court of Appeal (Court) in recent judgment of Cardo Management and Maintenance Pty Ltd v Cumberland Council  has established an easier criteria to prevent a lapse of consent, assisting developers and landowners in protecting their development rights. Section 4.53 of the Environmental Planning and Assessment Act 1979 (Act) stipulates that a development consent for the erection of a building, subdivision of land or the carrying out of work will lapse if no physical commencement of the development occurs after 5 years.
Land and Environmental Court Judgment
Within the recent judgment, the Land and Environment Court (LEC) had found that the developer had failed to establish that lawful works had physically commenced before the lapsing date of the consent. The developer had removed shrubs and trees as well as erecting fences and disconnecting the water.
The LEC found that the demolition of the trees and shrubs were not completed by a certified arborist as required by the consent, and further, the work on the fence and disconnection of water hadn’t been approved by the Principal Certifying Authority as per the consent. As such, the work done did not lawfully constitute physical commencement of the development.