The recent decision in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 has highlighted the importance of satisfying deferred commencement conditions before the specified period elapses, or else development consent may lapse. In this case, development consent for a flood-prone property in Beechwood was subject to a deferred commencement condition that required Mr Dennes to submit a Flood Emergency Response Plan (FERP) within 12 months. Mr Dennes submitted such a plan within that time frame, but it was rejected by the Council as it was ‘not capable of being supported in its current form.’ Mr Dennes then failed to take any action until four months after the time period of the deferred commencement condition had elapsed, at which time he appealed to the Land and Environment Court.

The court ultimately held that the presentation of the FERP to the Council was not enough to satisfy the deferred commencement condition, as it expressly required the council to find the FERP to be satisfactory. As this did not happened within the specified period, the court held that the development consent had elapsed with the deferred commencement condition. This decision is an important reminder that any appeals must be brought before the specified time period for the satisfaction of a condition elapses.

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