Q&A
I was informed by my Council that I require a stormwater easement over my neighbour’s property as part of my proposed development. Can Council still approve my development application before I obtain the stormwater easement?
Yes, pursuant to section 4.16(3) of Environmental Planning and Assessment Act 1979, Council can approve your development application subject to a condition that the consent is not to operate until you satisfy Council that you have obtained the easement. That condition is referred to as a ‘Deferred Commencement’ condition. However, you must ensure that you comply with any deferred commencement conditions within the timeframe conditioned by Council otherwise your condition may lapse.
I have obtained a development consent for the construction of a Dual Occupancy (Duplex). The development consent is subject to a deferred commencement condition that requires me to obtain an easement for drainage over downstream property. Am I able to compel my neighbours to grant me an easement over their property?
Pursuant to section 88K of the Conveyancing Act 1919, the Supreme Court of New South Wales may make orders imposing an easement if the easement is reasonably necessary for the effective use or development of land.
If your development consent was granted by the Land and Environment Court, you may have standing to seek orders for the imposition of the easement in the Land and Environment Court under section 40 of the Land and Environment Court Act 1979.
Amongst other steps that you will need to undertake, you will need to make reasonable attempts to obtain the easement by agreement with your neighbours before making an application to the Court. Those attempts will generally include an offer for the payment of any compensation arising from the grant of the easement.
I lodged my development application over 42 days ago through the NSW Planning Portal and Council have not yet determined it. Am I able to appeal the development application in the Land and Environment Court?
Assuming that you meet the requirements under section 8.11 of the Environmental Planning and Assessment Act 1979, you may have legal standing to commence an appeal in the Land and Environment Court.
Relevantly, section 8.11 of the Act provides that if a consent authority (in this case your Council) does not determine a development application within the ‘prescribed period’, the development application is taken to have been refused by Council.
The prescribed period:
Pursuant to section 113 of the Environmental Planning and Assessment Regulation 2000, the prescribed period is:
- 40 days, except in the case of development referred to in paragraph (b) or (c), or
- 60 days, in the case of—
- designated development, or
- integrated development (other than integrated development that, pursuant to Part 5 of State Environmental Planning Policy (Primary Production and Rural Development) 2019, is Class 1 aquaculture development), or
- development for which the concurrence of a concurrence authority is required, or
- a development application that is accompanied by a biodiversity development assessment report and that proposes a discount in the biodiversity credits required under the report to be retired, or
- 90 days, in the case of State significant development.
Furthermore, pursuant to section 113(2) of the Environmental Planning and Assessment Regulation 2000, the deemed refusal period is measured from:
- the date the development application is lodged on the NSW planning portal, or
- the date the Commission complies with clause 6 of Schedule 2 to the Act, if a public hearing has been conducted by the Independent Planning Commission into development other than development the subject of a development application to which section 8.7 of the Act does not apply, or part of any such development.
However, there are other factors (such as when additional information is requested by Council, at which point the ‘clock’ will be stopped) that will need to be considered to ascertain whether your appeal has been properly commenced.
If I lodge an appeal in the Land and Environment Court in connection with a development application that was ‘deemed refused’, can Council still approve the development application or do I have to wait for the Court to determine it?
Yes, Council may still determine your development application during the course of the appeal under section 8.11(2) of the Environmental Planning and Assessment Act 1979.
If Council approve your development application and you are satisfied with the determination, you may then decide to seek to discontinue the appeal.
For further information, please do not hesitate to contact our office.
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