42 For these reasons, the assumption in the question posed for determination is incorrect. Even if the power to modify a consent under s 96 of the Act were to be available, an exercise of that power would not prevent a consent from lapsing in accordance with the statutory means and timings which operate in relation to the unmodified consent.
56 The council and KSK argued that caution was now required in approaching the reasoning of Preston CJ in Kinder, which was decided prior to the enactment of s 95(6) (inserted into the EPAA by cl 41 of Sch 1 of the Environmental Planning Legislation Amendment Act 2006).
57 While it is undeniable that a council may permissibly modify a deferred consent condition pursuant to s 96, in my view, a council may not, pursuant to this provision, extend the time in which a development consent that is subject to a deferred commencement condition will lapse. Notwithstanding the legislature's insertion of s 95(6) into Pt 4 Div 7 of the EPAA and irrespective of the word "condition" contained in that provision, the analysis in Kinder is, in my opinion, equally valid and applicable to the present consent.
58 The time limit stated in s 95(6) is clear, namely, that "a development consent that is subject to a deferred commencement condition… lapses…within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified". In the present case, the time limit specified in the December consent was for a "shorter period", namely, six months from 16 December 2008 (the date of the granting of the consent). This is no different than the time limit stated in s 95(1) read together with (2), viz, "a development consent lapses 5 years after the date from which it operates. However, a consent authority may reduce the period of 5 years in granting development consent." (emphasis added)
59 The time limit in s 95(6) is fixed by the statute and not by the consent, other than by causing a development consent to lapse upon the occurrence of an event, namely, the failure to satisfy the consent authority as to the matter specified in the condition within the time stipulated (Kinder at [32]-[33]). The modification of the December consent by extending the time for compliance of deferred condition 3 by six months is qualitatively no different than that which was sought in Kinder. The result is, like Kinder, that the modification of the time limit for the expiration of the consent caused by the review is legally ineffectual to prevent the statutory consequence of lapsing.