Once you have received your development consent you need to read the conditions, which will outline what needs to be completed before, during and after construction of your development.
If your approval involves any form of construction works, you will be required to obtain a Construction Certificate (CC) before you commence works. This requirement is mandatory if stated in your development consent. A CC can be approved and issued by either Council or a Private Accredited Certifier. Please view the Building section of this web site for a more detailed outline of the processes required to advance a new development beyond a DA.
A Development Consent has a limited life that must be strictly observed. A consent given by Council will expire if not commenced within five years of the approval date.
It is also important to check if your conditions of development consent require Section 94 developer contributions or Section 64 sewer and water levies.
Sometimes applications are approved with a Deferred Commencement condition/s. A Deferred Commencement Consent has two parts.
Part 1 of a Deferred Commencement consent requires further information to be submitted prior to Council allowing that consent to continue. For example a specific report from an appropriately qualified person is required prior to release of Part 2 of the consent.
When the applicant or owner has the information ready a 'Request for Council to Review Deferred Commencement Documents Form' would be made to Council.
When the information has been checked by Council staff or Consultants to ensure that the document/s are satisfactory a letter is sent to the applicant advising the consent is now operative.
If a consent has a condition that requires a Covenant to be prepared it is suggested that a solicitor prepare the covenant for you.
Once the covenent is prepared, your solicitor will request Council sign a Positive Covenant Document (88B). Council will then return the signed document to your solicitor for registration at the Land Titles Office. This ensures that the information is stored on the title of the land so it will never become lost over time with property exchanges.
The condition of consent may ask the covenant to be in accordance:
- with Council's Standard Onsite Detention Wording
- with the recommendations of the Geotechnical Report - copy the exact recommendation from the geotechnical report submitted with the application
- no separate assessable structure allowed
- or any other reason that may be placed on the consent as part of the assessment process
Modification of Consent – Section 96 Application
If you wish to change or delete a condition of development consent, or amend details of your approved plans, you are likely to be required to lodge an application under Section 96 of the Environmental Planning and Assessment Act 1979.
To qualify as a modification under Section 96, the development must be substantially the same as that which was granted the original consent. You are encouraged to Contact Council staff, preferably the assessment officer of the original application, to discuss your proposed modification prior to lodgement.
What Types of Modifications are Allowed Under Section 96
There are number of different types of modifications allowed under Section 96 of the Act. Council’s application form can be used to make an application for three of these types of modifications:
Section 96 (1) – Modifications involving minor errors, misdescription, or miscalculation.
There would be no change to the form of the development approved, and notification would not be required. For example:
Section 96 (1a) – Modifications involving minimal environmental impact.
These are used for minor amendments. There is no impact on privacy, height, overshadowing, etc, and notification is generally not required. These might be:
- Internal design changes
- Amended landscape plans
- Drainage design amendment
Section 96 (2) – Other modifications.
These are all other modifications where environmental impact is possible. They generally require notification. Typical changes include:
- Windows
- Floor levels
- Heights
- Car parking generation
- Roof design
Most modifications are likely to require some form of re-notification of adjoining and affected property owners and residents, and re-advertisement in The Tweed Link.
To lodge a Modification of Consent, you must complete an application form and provide accompanying written and plan information. Fees will be applied for both the application, as well as any notification and/or advertising.
If you have already obtained your Construction Certificate (CC) and you are seeking a Modification of Consent, you will also have to modify your CC. For more information on these processes, please contact either Council or the Private Certifier that issued your original CC.
If you have already commenced works and decide to make changes, you must firstly notify your Principal Certifying Authority (PCA).
It is unlawful to undertake works that are different to your development consent, and you run the risk of a variety of enforcement actions, including fines, notices to stop work, and possible legal action.
For all development applications received from 28 February, 2011, an applicant may seek a review of a determination by council in respect of a modification application under sections 96 and 96AA where council is the consent authority. This type of review is not available for modifications involving minor error, mis-description or mis-calculation (i.e. those lodged under section 96(1).
This type of review is also not available for modification determinations in respect of:
- Complying development certificates.
- Designated development.
- Integrated development.
- Crown DAs.
- Determinations taken to have been made because the council has failed to determine the application (deemed refusals).
- Determinations made by a Joint Regional Planning Panel.
Applicants have 28 days after being notified of a modification determination to request a review.
Council must give written notice to the applicant as soon as practicable after the review is determined.
The review decision may be further appealed in the NSW Land and Environment Court.
Download the Section 96 Application Form (0kb).
Reconsideration of Council DA Decision – Section 82A and 82B Review of Determination
The provisions for a review of Council’s determination of development application were updated through the Planning Appeals Legislation Amendment Act 2010 (PALA) and the Environmental Planning and Assessment Amendment (Planning Appeals) Regulation 2011 (Planning Appeals Regulation), which commenced on Monday 28 February, 2010.
The processes for internal reviews of development applications now involve:
- Reviews of development applications rejected due to inadequate information when lodged (section 82B of the EP&A Act); and
- Reviews of development application determinations (section 82A of the EP&A Act).
Applicants for reviews under Section 82B need to make a written request to Council within 14 days of the being notified of Council’s decision.
Applicants for reviews under Section 82A need to make a written request to Council any time before expiry of making an appeal under Section 97 of the Environmental Planning and Assessment Act 1979, ie within 6 months after being notified of Council’s decision.
In terms of these reviews, Council may need to notify your neighbours and/or advertise the proposed amendments. Fees apply for the request as well as any notification and/or advertising. The lodgement fees for these requests can be confirmed by either visiting Council’s customer service counters at Murwillumbah or Tweed Heads, ringing Council staff on 02 6670 2529, or send an email to 
records@tweed.nsw.gov.au requesting a "Section 82A Request Fee Calculation".
Appeal Process - Land and Environment Court
The Planning Appeals Legislation Amendment Act 2010 (PALA), taking effect from 28 February 2011, reduced the period within which a merit appeal for development applications must be lodged with the NSW Land and Environment Court from 12 months to six months.
The six month time limit for appeals will not apply to development applications lodged with a consent authority before the commencement of the PALA Act provisions on 28 February 2011.
The six month time limit for appeals to the Court in respect of modification applications under sections 96 and 96AA will not apply to determinations made before 28 February 2011. Where a development application has been amended during the section 82A or 96AB review process, any appeal made to the Court will be in respect of the amended application that was the subject of the section 82A or 96AB review determination.