Posted on April 26, 2017 by 1

Can a developer seek a court order to remedy its own apprehended breach of a development consent?

It is well established that there are two ways to modify a development consent under the Environmental Planning and Assessment Act 1979. A consent may be modified by resort to the process in s96 or s96AA of the Act, or in consequence of the imposition of a condition of development consent under s 80A(1)(b) requiring the modification of another consent.

In a novel argument, the Land and Environment Court was, however, effectively asked to consider whether there is a third way.

Hallmark Construction Pty Ltd v Strathfield Municipal Council [2016] NSWLEC 170 concerned an application by a developer for an order under s 124 of the Act.

The developer was planning to undertake work inconsistently with a development consent. Having commenced a concrete pour that morning, the need for the concrete to be poured continuously meant the developer felt that it had no choice but to continue work beyond the hours specified in the development consent.

Rather than lodging a modification application, the developer instead sought an urgent order under section 124 to suspend the operation of the hours of work condition in the development consent.

Section 124(1) provides that:

Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

The developer submitted that the power of the Court to make an order under section 124 was broad enough to enable the Court to prevent a breach of the hours of work condition, and therefore a breach of the Act, by restraining or modifying the operation of the condition itself.

Justice Robson rejected the argument. He held that section 124 did not give the Court such a power.

In coming to that conclusion, the Court emphasised that the Act provides a detailed regime for the modification of development consents and referred to section 96. Furthermore, the Court agreed with Council’s submission that a construction that permitted modification of  a consent under s 124 would not be consistent with the objects of the Act, particularly that of  encouraging “the promotion and co-ordination of the orderly and economic use and development of land”.

Robson J went on to hold that even if the power was available, he would have declined to exercise the power in the particular case.  This was, amongst other reasons, because the Applicant approached the court so late, when the pour was already happening, when it had known that the need for the pour had been on the horizon for some days. The court was also concerned that in the context of a history of complaints, it was important for the processes under s96 to be followed with the potential for the involvement of the public in the assessment process.