Step 5: Determination and next steps

Why conditions are important

Your development consent is a legal document and is extremely important. You must build according to the conditions to avoid possible penalties or costly rectification measures. As an owner, you should carefully read and discuss these conditions with your certification and building team members, as the conditions may modify the proposal you submitted.

Some conditions are mandatory and must be applied to all development consents, e.g., your house must meet the Building Code of Australia.

Who makes the decision on your DA?

For small housing development, most decisions will be made at staff-level e.g. the assessment officer, senior officer, the Manager/Director of Development Assessment, or the General Manager.

The significance of the conditions of your consent

Conditions of consent can modify your plans (e.g. reducing height, deleting elements, adding a privacy screen, requiring a retaining wall). These changes may increase the cost of your construction. Getting it right at the start will help minimise unexpected and unplanned costs because of the conditions imposed.

Conditions also require you and your team to take steps prior to or at key stages e.g. before the issue of a Construction Certificate, prior to/during construction and prior to the issue of an Occupation Certificate. Some standard conditions to bring to your attention include:

• Erection of signs on-site with details about your Principal Certifying Authority (PCA) and principal contractor (see below).
• Ensure that operations on the site do not adversely affect the neighbourhood e.g. hours of work, waste management and controlling water run-off and erosion.
• Organise any bonds to be paid e.g. to protect the footpath.
• In some cases you will need to pay development contributions – which go towards local infrastructure.

How long does my development consent last?

The consent lasts for five years unless another period is specified by Council or physical commencement has occurred in which case it does not lapse.

If your DA is refused or granted with unacceptable conditions you have three options all of which will require some time and cost:

1. Request a Review of Determination by your council (with amended plans, if you wish). A fee applies and you have six months from the date of the decision for this request to be lodged and also determined. You need to allow sufficient time for this.
2. Commence an appeal to the Land and Environment Court. You have six months to lodge an appeal. The court hears from you or your representative, council, relevant experts and potentially the community and determines whether the DA should be approved and what conditions should apply to it. The appeal process can be time-consuming and costly, particularly if a matter is not resolved through mediation before going to a hearing.
3. Modify and relodge your DA.

Modifications and reviews

If you wish to make changes to your approved plans (or the conditions), you can submit an application for a Modification of Consent (under section 4.55 of the EP&A Act). This may be needed if you change your mind on particular aspects of the development.

The development you seek to modify must remain substantially the same as the development the original consent was granted for. If the application varies too much from the original consent a new DA must be lodged.

Modifications can be time-consuming and cost additional fees. Getting the intended outcome right in the initial DA is much easier.

A deferred commencement consent is a development consent that is not permitted to take effect until the applicant has met certain conditions and satisfied the consent authority. This is not a common outcome.

Did you know that Council provides certification services? To appoint Port Stephens Council as your PCA, fill out the PCA Form and upload it to the NSW Planning Portal along with your application for a construction, occupation, or complying development certificate.

We can offer next day inspections and have a large stake in ensuring your development succeeds. For more information, visit our page.

Construction Certificate

The CC must be obtained from your council or an accredited certifier and includes your detailed building plans/engineering details and specifications. The plans will most likely contain much more information than your approved DA plans, allowing your builder to work directly from them.

The building must be consistent with them and the development consent.

Any plan changes that are inconsistent with the DA plans would need to be assessed as to whether an application to modify the development consent is required (see Stage 4 – Determination).

To obtain the CC you may be required to, first, provide additional reports and pay refundable bonds or development contributions to the council. These details are covered in the conditions of your development consent.

Which certifier?

You have the choice as to whom issues your CC – the certifying authority can either be your council or an accredited certifier. The NSW Building Professionals Board (BPB) accredits all certifiers that are not employed by your council, and provides the information you need on the NSW Building Professionals Board (BPB) website.

The PCA must be appointed by the ‘person having the benefit of the development consent’ – this means you as the owner and not your builder. It would probably be the same person or firm that issued your CC, but does not have to be – as with your CC, it can be an accredited certifier or your council as PCA.

The PCA’s job is to work with you through the construction process and issue you with an Occupation Certificate when the work is completed. To make this decision, the PCA inspects the development at various points in the build and ultimately ensures that the building is safe and fit to occupy and in accordance with the development consent and CC.

Give the council and the PCA two days’ notice before you start work.