Environmental consents

Hitchcock v Reed [2022] NSWLEC 81

Development consents are statutory instruments governed by the same rules of construction as statutes7, as Robson J observed here (at [61-63]).  R’s development consent would have lapsed if work had not physically commenced8.  The work had begun, but conditions in the consent were not met.  Did this mean the work didn’t constitute commencement?

Robson J said ‘yes’, after close study of text, context (including the governing statute) and purpose under ordinary principles.  He said there are no principles allowing ‘laxity or flexibility’ or rewriting based on practical considerations when construing consents9, although some courts have taken a different view10.

This principle is from Episode 88 of interpretation NOW!


7 Kovacevic [2016] NSWCA 346 (at [83]), Episode 36.

8 s 4.53 of the Environmental Planning and Assessment Act 1979 (NSW).

9 JK Williams [2021] NSWLEC 23 (at [61]), 4nature [2017] NSWCA 191 (at [45]).

10 Bupa [2018] FCA 2033 (at [45]), Condon [2014] NSWCA 149, Episode 45.