“Zombie DAs” are development applications that have been approved historically and are seemingly brought back to life, in other words relied and acted upon, many years after they were granted. This can become a cause for concern where developments that no longer adhere to contemporary environmental and planning controls, standards or strategic objectives are permitted to proceed.

The Land and Environment Court recently dealt with this issue in the matter of Phillip Rise Pty Ltd v Kempsey Shire Council [2022] NSWLEC 1107. In this case, the Applicant applied to Kempsey Shire Council for a construction certificate to undertake site clearing works on a site in South West Rocks. The principal issue in contention was whether the consent, which was granted on 24 February 1993, had lapsed. Specifically, whether engineering work relating to the approved development had physically commenced on the land before the date on which the consent would otherwise have lapsed.

At the time the consent was granted, the relevant provisions[1] of the Environmental Planning and Assessment Act 1979 (EPA Act) provided that the development consent would lapse unless the subject of the consent ‘commenced’ within a certain period. 

The relevant lapsing date for the consent in question was 24 February 1998, unless building, engineering or construction work relating to the building had been physically commenced on the land before the date on which the consent would otherwise have lapsed.[2] This required the Court to consider whether building, engineering or construction work relating to the building approved by the Consent had been physically commenced on or before 24 February 1998.

In the first instance, the Court found in favour of the Respondent Council and held that the consent had lapsed and accordingly the application for a construction certificate to undertake site clearing works in accordance with the development consent must be refused. However, this original decision was ultimately overturned by Moore J in 2 Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28 after the Applicant appealed the initial decision on the following grounds:

  • Sulphate soil testing was required by condition 38 of the consent, in the following terms: 

“Further testing for the presence of acid sulphate soils shall be undertaken prior to the release of the building application and appropriate measures identified and implemented to obviate any impact.”

  • Sulphate soil testing was in fact found by the Court to be engineering work; and
  • The work (sulphate soil testing) was carried out before the consent expired.

The Appellant argued that the Commissioner erred in not finding that the work related to the development for which the consent had been granted and that as a result the consent had not lapsed. It was also contended that the Commissioner erred in imposing an additional test, that it was necessary to find that the entity carrying out the sulphate soil testing had to comply with condition 38 of the consent, before finding that those works related to the development for which development consent was granted.

The Court also found that the approach adopted by the Commissioner in the first instance when considering the scope of section 99(4) of the EPA Act was too narrow.

Ultimately, the Court in overturning the 2022 decision ordered the construction certificate to be issued, allowing the site clearing works on 1 Phillip Drive, South West Rocks to proceed.

Key takeaways

Although the threshold for what constitutes “physical commencement” has changed for consents granted after 15 May 2020, this change does not prevent the resurrection of old consents for which a lower threshold for physical commencement may apply. Subject to the availability of sufficient evidence, such ‘zombie’ DAs will no doubt continue to arise in the future.

Thank you to Sacha Singh, Paralegal, for her contributions to this article.

1 s 99(1) of the EPA Act

2 s 99(4) of the EPA Act

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