In the case Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) [2017] NSWLEC 87, the Land and Environment Court grappled with the question of when work will be sufficient to ensure development consent does not lapse. The development consent granted to MACH expired in 2005, and MACH argued that it had undertaken works which would prevent the consent from lapsing being: an engineering survey and associated geotechnical work, the partial construction of a dam, and the grading of a road.

The Court applied the three limb test from Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124. The Court first asked whether the work was engineering, construction and building work, then whether it was related to the development, and lastly whether the work was real and substantial. The Court decide that the survey work and partial construction of the dam were sufficient to satisfy the requirements of the Hunter Brokerage test, and therefore the works were commenced prior to 2005 and the development consent did not lapse. The Court did not need to decide whether the grading of a road would have been sufficient, but indicated it may have been.

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