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When a development application is approved, there is a time limit imposed, requiring the proposal to be physically commenced within 5 years. Once a development has recognised Physical Commencement, it remains valid indefinitely. When financial situations are less than favourable, this can become a very important rule to be aware of to protect approved development applications where the developer does not have the funds to complete the development within 5 years.
Physical Commencement for a development, such as a subdivision, has been a tricky matter. In November 2010 the Department of Planning exhibited a new draft Environmental Planning & Assessment Regulation 2010 which included clarification on work which will be deemed to be physical commencement.
Clause 160 of the draft regulation is as follows:
- 1. For the purposes of Section 95 (7) of the Act, work is not taken to be physically commenced if that work only comprises the carrying out of a survey within the meaning of the Surveying and Spatial Information Act 2002.
- 2. This clause only applies to a development consent granted after the date of commencement of this regulation.
What this means is that development consents issued to date may be able to claim physical commencement based on survey work within the meaning of the Surveying & Spatial Information Act 2002 – meaning surveys relating to land boundaries. If the draft regulation above is made law, this option is no longer available to new development consents.
Many development consents created in past years had minimal conditions, often relating only to the survey of the land, for example, stating that “the proposed development shall be carried out in accordance with the sketch plan approved by Council”. In such cases, physical commencement must be based on the survey only, as there were no other conditions.
For a Council to recognise that a development has been “physically commenced”, some physical work should be undertaken on the site. Modern development consents often require work to be done for various reasons, for example:
- Creating or improving access roads.
- Connecting or upgrading power to the site.
- Connecting or upgrading water supply to the site.
Where conditions relating to physical work are in place, the developer should make steps towards implementing the conditions. Install a driveway, culvert, kerb and gutter or vehicle crossing. Construct a sewer connection or have water meters installed. Lay concrete or build a fence.
Most importantly, either have your planning consultant contact Council and ask them for a letter recognising that the development has physical commencement, or contact them yourself. Physical work may not necessarily mean physical commencement, however without a letter from Council recognising physical commencement the development application may lapse entirely.
Applying for approval is an expensive, slow and often frustrating process. Doherty Smith & Associates strongly recommend that anyone with a approved development consent take steps to ensure that the development is recognised as physically commenced before the consent lapses.