LUPAA updates explained: New extension for technical and complex projects

In late 2024, amendments were made to the Land Use Planning and Approvals Act 1993 (LUPAA), specifically sections 42C and 53, and relate to the availability of extensions to the timeframe to achieve substantial commencement of a planning permit.

Status of LUPAA prior to the amendments

A planning permit is required to be substantially commenced within two years from the date it was granted. Failure to achieve substantial commencement within this timeframe results in the planning permit lapsing.

The previous provisions allowed a proponent to make up to two applications for a two-year extension to the timeframe to substantially commence the use and or development – offering a maximum period of six years to achieve substantial commencement.

Summary of the amendments

The recent amendments to LUPAA introduce two key changes:

Additional extension

• An additional two-year extension can now be granted by the applicable planning authority upon application.
• This third extension can only be granted if the planning authority is satisfied that the “technical or complex nature” of the approved use or development means that substantial commencement is not, or is unlikely to be, achieved before the permit would otherwise lapse.
• The decision to grant any extension remains at the discretion of the planning authority.

Extension timing

• The former provisions of LUPAA were silent in respect of when an application and approval for an extension to a permit needed to be made. It was commonly understood that an extension would need to be applied for and approved by Council prior to a permit lapsing.
• LUPAA now provides that where any extension to a planning permit is sought, this can be made up to six months from the date on which the planning permit has lapsed. If the extension is granted, the permit is treated as if it had not lapsed.

Implications of the amendments

Extended timeframes

• Proponents may now have up to eight years to achieve substantial commencement, compared to the previous six-year maximum.

Increased flexibility

• Developers can secure additional time to achieve substantial commencement for technical and complex projects. Additionally, extension applications can be made even after a permit has lapsed.

Clearer application guidelines

• LUPAA now explicitly outlines when an extension application must be made, reducing ambiguity.

Future considerations

• The absence of clear guidance on what constitutes a “technical or complex nature” could lead to legal challenges.

Conclusion

These amendments represent a positive change for developers by streamlining the process for seeking extensions and providing a valuable opportunity to secure additional time to substantially commence technical and complex projects.

With enhanced flexibility and a longer timeframe, the updates to LUPAA are set to better accommodate the needs of technical and complex projects.