Environmental Planning and Assessment Act 1979

Post-consent provisions div 4.9, hdg (previously pt 4, Div 7, heading): Renumbered 2017 No 60, Sch 4.2 [3]. Am 2017 No 60, Sch 4.2 [4]. 4.53 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. (2) However, a consent authority may reduce the period of 5 years in granting development consent. (3) Subsection (2) does not— (a) apply to a development consent granted to a concept development application under Division 4.4 for development that requires a subsequent development application and consent, or (b) authorise a reduction of a period that would cause— (i) 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 (ii) a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent. (4) Development consent does not lapse for the following 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— (a) the erection of a building, (b) the subdivision of land, (c) the carrying out of a work. (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 the consent is actually commenced before the date on which the consent would otherwise lapse. (6) Despite another provision of this section, a development consent subject to a deferred commencement condition under section 4.16(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 shorter specified period. (7) The regulations may set out the circumstances in which work is or is not taken to be physically commenced for the purposes of this section. s 4.53 (previously s 95): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2020 No 5, Sch 1.11[1]–[3]. Subst 2025 No 71, Sch 1[95]. 4.54 Extension of lapsing period for 1 year (cf previous s 95A) (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) (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. s 4.54 (previously s 95A): Renumbered 2017 No 60, Sch 4.2 [1]. 4.55 Modification of consents—generally (cf previous s 96) (1) Modifications involving minor error, misdescription or miscalculations or of no environmental impact A consent authority may, on application by the applicant or another 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— (a) to correct a minor error, misdescription or miscalculation, or (b) if satisfied the proposed modification has no environmental impact. (1AA) Subsections (1A), (2), (3) and (6) and Part 8 do not apply to a modification under subsection (1). Note— The Mining Act 1992 , section 380AA provides that an application for a modification of development consent to mine for coal may only be made by or with the consent of the holder of an authority under that Act in relation to 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 has minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is the same or 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) and (2) 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 the same or 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 4.8) 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 a modification of a consent under this section, the consent authority must take the following into consideration— (a) the matters referred to in section 4.15(1), but only so far as the matters are of relevance to the application, (b) the reasons given by the consent authority for the grant of the consent sought to be modified, but only so far as the reasons are of relevance to the application. (3A) Section 4.15(1C) extends to an application for a modification under this section of a consent for targeted assessment development. Note— Section 4.15(1C) provides that a consent authority, in determining a development application for targeted assessment development, must take into consideration only the matters referred to in section 4.15(1)(a) and (d) as are of relevance to the development. (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) To avoid doubt, a consent authority is not prevented from modifying a consent under subsection (1), (1A) or (2) merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent. (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) (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. s 4.55 (previously s 96): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2025 No 24, Sch 1[29]–[32]; 2025 No 71, Sch 1[96]–[98] [102] [103] [105]. 4.55A Consent authority must not refuse certain minor modification applications if not dealt with promptly (1) This section applies to an application made under section 4.55(1). (2) The consent authority must determine the application within the period after lodgement prescribed by the regulations (the prescribed period ). (3) If the consent authority has not determined the application within the prescribed period, the consent authority, after the expiry of the prescribed period— (a) must, as soon as practicable, determine the application, and (b) must not refuse the application. (4) Subsection (3)(b) does not prevent the consent authority from imposing a condition on the modified development consent. (5) A condition on the modified development consent by the consent authority— (a) must relate only to the modification application, and (b) must not defeat the purpose of the modification application. (6) Despite subsection (3)(b), the consent authority must refuse an application to modify a condition about a housing and productivity contribution imposed under section 7.28, unless the modification has been approved by the Minister under section 7.28(6). (7) The regulations may make further provision about the determination of applications referred to in this section, including the following— (a) conditions that may or may not be imposed on the modified consent, (b) the procedures for dealing with an application. s 4.55A: Ins 2025 No 71, Sch 1[106]. 4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA) (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 the same or 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 a modification of a consent under this section, the consent authority must take the following into consideration— (a) the matters referred to in section 4.15(1), but only so far as the matters are of relevance to the application, (b) the reasons given by the consent authority for the grant of the consent sought to be modified, but only so far as the reasons are of relevance to the application. (1AA) Section 4.15(1C) extends to an application for a modification under this section of a consent for targeted assessment development. Note— Section 4.15(1C) provides that a consent authority, in determining a development application for targeted assessment development, must take into consideration only the matters referred to in section 4.15(1)(a) and (d) as are of relevance to the development. (1B) To avoid doubt, a consent authority is not prevented from modifying a consent under this section merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent. (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) s 4.56 (previously s 96AA): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2025 No 24, Sch 1[33] [34]; 2025 No 71, Sch 1[107]. 4.57 Revocation or modification of development consent (cf previous s 96A) (1) If at any time it appears to— (a) the Planning Secretary, having regard to— (i) the provisions of a proposed environmental planning instrument, or (ii) the provisions of an existing environmental planning instrument, but only in relation to a development consent granted at least the prescribed period before the Planning Secretary proposes to exercise a function under this section, 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 a 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 Planning 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 a registered certifier. (3) Before revoking or modifying the consent, the Planning Secretary or council must— (a) by notice in writing inform, in accordance with the regulations— (i) each person who in the Planning 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 Planning Secretary or council, or a person appointed by the Planning 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), (6) (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 Planning 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 Planning 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 Planning 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. s 4.57 (previously s 96A): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2018 No 25, Sch 4 [5]; 2018 No 63, Sch 3.3[4]; 2025 No 71, Sch 1[108].