the land and environment court tackles a novel argument on the modification of development consent

In Hallmark Construction Pty Ltd v Strathfield Municipal Council [2016] NSWLEC 170, the Land and Environment Court encountered the novel argument that s 124 of the Environmental Planning and Assessment Act 1979 gives the Court power to modify development consent. Hallmark was attempting to use s 124 to seek an urgent order, rather than lodge a formal modification application.

During construction, Hallmark had begun pouring concrete, and sought an order from the court that the pouring could be continued beyond the hours stipulated in the development consent. Hallmark argued that the power given to the Court by s 124 to ‘prevent’ a breach should be read widely, so as to include the power to modify the condition which would be breached.

This argument was rejected by the Court as it would be inconsistent with the aims of the Environmental Planning and Assessment Act 1979. 

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