This is the single most valuable piece of advice we give clients, and it costs nothing to implement at the right moment: if the site needs a Development Application, make lease commencement conditional on DA and CC approval — not on DA approval alone.
Why DA approval is not enough
DA approval does not mean you can start work. A Construction Certificate is also required, and the CC stage is where the DA conditions are tested against reality.
If your lease has already commenced, you are paying rent for a tenancy you are legally unable to occupy or build in.
The sequence is: DA determination, then satisfaction of every condition, then detailed design and further consultant input, then certifier review and quotation, then the Construction Certificate, then construction. Between DA and CC is typically three to six weeks — and that is the optimistic case.
The three risks the clause removes
| Risk | What it looks like | Who carries it |
|---|---|---|
| Unpredictable determination time | Six to twelve weeks is the good case. Questions and further information requests extend it substantially. | Tenant, if rent has started |
| Impossible or unreasonably expensive conditions | Approvals are sometimes issued with conditions that cannot be achieved on that site, or that cost far more than the project can carry. | Tenant, if rent has started |
| CC delay or refusal | The condition is unworkable. No CC, no construction, no opening. | Tenant, if rent has started |
With commencement bound to DA and CC approval, all three sit with the landlord’s asset rather than the tenant’s cash flow. The tenant begins paying rent when they can actually build.
The exact position to argue for
Lease commencement: upon DA and CC approval.
Not “upon DA approval”. Not “upon obtaining all necessary approvals” without defining them. Name both instruments explicitly, so there is no argument later about whether the condition has been satisfied.
Where a landlord will not accept a full condition, the fallback positions are a rent-free period that runs until CC is issued, or a delayed commencement date that starts from DA lodgement plus a defined period. Both are weaker than naming DA and CC, but far better than commencement on signing.
For landlords: why this is a reasonable clause
A tenant who cannot obtain a CC cannot open, cannot trade and cannot pay rent sustainably. A tenancy that fails at the approval stage costs the landlord a vacancy, a new agent’s fee and another marketing period. Sharing the approval risk through the commencement date produces a tenant who survives, which is the outcome both parties want.
