Thinking | 22 May 2020

By Stan Kondilios, Maurice Doria and Kitty Vo

In light of COVID-19, amendments have been made to the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to assist businesses and landowners in dealing with disruptions caused by the pandemic. These amendments will also ensure that parties involved in planning disputes will not be adversely affected by extended delays arising from government lockdowns or changes to Court procedures.

Below we have provided a summary of three changes to the EPA Act that will be of benefit to developers, applicants and objectors by keeping consents alive and matters progressing through Court.

Development consents

There has been a significant change to development consents with lapsing dates of development consents and deferred commencement consents being extended.

Under the amendments there are three major changes:

  • consents and deferred commencement consents granted in the two-year period from 25 March 2020 will have a five-year lapsing period that cannot be reduced by the consent authority;
  • for consents and deferred commencement consents granted prior to 25 March 2020 that had not already lapsed, the lapsing date has been extended by two years; and
  • the lapsing date has been extended by two years and consents and deferred commencement consents that would otherwise have lapsed in the period between 25 March 2020 and 14 May 2020 are revived and extended by two years from the date they lapsed.

A consent authority cannot reduce the period for a development consent granted during the period 25 March 2020 to 25 March 2022 if that reduction would cause the consent to lapse within five years after the date on which it was granted. This means all development consents granted during this period must remain ‘alive’ for at least five years.

Time for filing appeals

The amendments to the EPA Act have also extended the time to appeal certain determinations or refusals of development applications or modifications to development applications.

The period of time an applicant has to make an appeal to the NSW Land and Environment Court has been doubled from six months to 12 months for merit appeals. The change applies to actual determinations and deemed refusals made from six months before 25 March 2020 and for those made two years after 25 March 2020.

The period of time an objector has to make an appeal to the NSW Land and Environment Court has been doubled from 28 days to 56 days for merit appeals. The change applies to determinations made from 28 days before 25 March 2020 to two years after 25 March 2020.

Extension of abandonment period for existing and continuing use rights

The amended EPA Act now provides that during the period between 25 March 2020 and 25 March 2022, an existing use right is considered abandoned if it ceases for a period of three years instead of the usual 12 months. This is to assist property owners who may find it difficult to continue to operate as their businesses are required to shut down and may experience difficulty in attracting new tenants.

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