July 31, 2019

Planning and Environment

Unlike a good red wine, development approvals do not get better with age. They are ‘current’ only for a limited time and may go ‘bad’ if they are not actioned within the currency period.

Applicants looking to extend the life of a development approval by making an application pursuant to section 81 of the Planning Act 2016 should not presume that their application will be approved. Councils’ tastes for development can change with time. What was once acceptable, and approved, may no longer be desired.

The current assessment regime gives Councils a very broad discretion to decide extension applications. Examples of matters that may be considered include:

  1. reasons why the development authorised by the approval has not commenced;

  1. inconsistencies with current planning intent for the land;

  1. adoption of new planning instruments;

  1. proposed amendments to planning schemes;

  1. adoption of new overlays, introducing new assessment benchmarks;

  1. changes in infrastructure charging regimes or the quantum of levied charges;

  1. changes to State Planning Policies or referral triggers;

  1. completion of subsequent development in the vicinity of the development (which may change the context of the development);

  1. need for the development;

  1. previous extensions of the currency period;

  1. expiration of the currency period; and
     
  2. fresh eyes within Council looking at the development approval (as reasonable minds can differ about the acceptability of a proposed development).

The above matters may be relevant to both extension applications and revival applications (to bring a lapsed application back to life).

We have observed an increase in the number of extension application refusals in recent times which has led to a greater number of appeals about extension applications. There are, of course, many more matters that may be considered by a Council in deciding an extension application. Ultimately, the weight to be given to each matter is informed by the facts, matters and circumstances relevant to each application.

If your approval is ageing, and you’re concerned about its currency, please contact the authors for more information.