Changes to clarify the meaning of physically commenced works

What you should know.

An amendment to the Environmental Planning and Assessment Regulation 2000 (‘EPA Reg’) was introduced to on 15th May 2020 to clarify what certain minor works do not satisfy the requirement for physical commencement.

The Environmental Planning and Assessment Act 1979 (EPA Act) sets out periods and circumstances where development consents lapse to ensure that the environmental impacts of development are assessed against current policies and legislation, and community views.

The EPA Act requires works to be physically commenced prior to the consent lapsing to demonstrate a sufficient intent to complete the development.

The new provision found in Clause 124AA of the EPA Reg provides guidance on “when work is physically commenced”:

1.For the purposes of section 4.53(7) of the Act, work is not taken to have been physically commenced merely by the doing of any one or more of the following:

creating a bore hole for soil testing,
removing water or soil for testing,
carrying out survey work, including the placing of pegs or other survey equipment,
acoustic testing,
removing vegetation as an ancillary activity,
marking the ground to indicate how land is to be developed.

2. This clause does not apply to a development consent granted before the commencement of this clause.

Why the change?

The NSW Department of Planning, Industry and Environment (‘DPIE’) website provides guidance on why the changes to clarify the meaning of physical commencement were made.

The amendment is one of a number of NSW Government led responses to keep the economy moving during the impact of COVID-19 on the construction industry. The clarification of what certain minor works do not satisfy the requirement for physical commencement is intended to assist proponents to ensure that the commencement of works demonstrates a sufficient intent to complete the development.

“Amendments to the Environmental Planning and Assessment Regulation 2000 will provide greater certainty to landowners, developers and the community about development that has been ‘physically commenced’ – DPIE

When do the changes apply?

The new provisions apply to all development approved after 15 May 2020.

Implications for your Development Consent.

Development consents issued before 15 May 2020 will not be impacted by this change.

For development consents issued after that date, the new provision may impact when and how you can physically commence works.

How we can help you.

Our team of highly skilled and reputable planning specialists are ready to answer any of your questions and assist you in understanding how the changes may affect you.

For development consents granted on or after 15 May 2020, we can perform a detailed review of any proposed conditions of consent and advise on how to minimise any risks in relation activating ‘physical commencement’ to ensure the consent does not lapse.