On 21 June 2018, the Land and Environment Court of NSW handed down a decision which reinforced the importance of time limits on deferred commencement conditions.
The decision of Commissioner Preston in Dennes v Port Macquarie-Hastings Council  NSWLEC 95 found that the Court had no jurisdiction to grant the appeal on its merits regardless of whether the evidence submitted as part of the deferred commencement condition was satisfactory given the fact that Consent had lapsed.
On 17 August 2016 the Applicant appealed against Council’s refusal of an application for development consent (Consent). Commissioner Fakes upheld this appeal and granted development consent subject to a deferred commencement condition which required the Applicant to submit to Council for approval a Flood Emergency Response Plan (‘FERP’) by 17 August 2017.
The deferred commencement condition had to be fulfilled to Council’s satisfaction by 17 August 2017. The applicant submitted its FERP to Council in April 2017. Following this submission, Council advised the applicant that the deferred commencement condition had not been satisfied to the requisite standard on 20 June 2017.