A development consent that has lapsed under s 99 of the Environmental Planning and Assessment Act 1979 because work was commenced in breach of preconditions cannot be revived by a modification application under s 102; there is no person 'entitled to act upon the consent' once it has ceased to exist. Breaches of preconditions requiring acts to be done 'prior to commencement' render all subsequent work unlawful and incapable of counting as physical commencement. The characterisation of breaches of preconditions as 'technical' will be closely scrutinised, particularly where the developer deliberately avoided compliance with conditions it accepted when the consent was granted.
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