Hunter Development Brokerage Pty Ltd v Cessnock City Council

The dispute in this matter concerned whether development consents for the subdivision of land had lapsed. The appellants, Hunter Development Brokerage Pty Ltd and Tovedale Pty Limited, appealed decisions of the Land and Environment Court which had found their respective consents had lapsed. The appeals were heard by Santow and Tobias JJA and Stein AJA in the Court of Appeal.

The central legal issue before the Court of Appeal was the interpretation of section 95(2) of the *Environmental Planning and Assessment Act 1979* (NSW), which stipulated that a development consent lapses unless "building, engineering or construction work relating to" the development was "physically commenced" upon the land. Specifically, the Court had to determine whether survey work and/or geotechnical investigation work could constitute "building, engineering or construction work" and, if so, whether such work carried out by the appellants qualified as physically commenced and "related to" the approved development, considering whether the work was merely preparatory.

The Court of Appeal reasoned that the phrase "building, engineering or construction work" was broad enough to encompass survey and geotechnical investigation work, provided such work was not merely preparatory and was genuinely "physically commenced" in relation to the approved development. The Court applied principles of statutory construction, interpreting "relating to" in its ordinary sense to mean having a connection or reference to the development. The Court found that the work undertaken by the appellants in each case was not merely preparatory and did indeed constitute the physical commencement of engineering work related to the approved development.

Consequently, the Court of Appeal allowed both appeals. The orders of the Land and Environment Court were set aside, and the proceedings were remitted for determination in accordance with the Court of Appeal's decision. The respondent councils were ordered to pay the appellants' costs of the appeals.