A developer has successfully challenged a condition of consent which restricted the hours during which it could carry out construction works on Saturdays. The condition imposed by the council that the developer considered to be problematic limited construction work to the hours between 8 a.m. and 12 noon. As a result of an appeal against the condition that was taken in the Land and Environment Court, the hours of permissible work were enlarged to extend from 8:00 a.m. until 4 p.m. The Court's decision allowing the increase in working hours, Landmark Group Pty Limited v Lane Cove Council (2014) NSWLEC 1187, can be found at the following link: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174004.
The background of the case was that in March 2014, the Council had adopted a resolution which prohibited construction work on Saturdays to between 8 a.m. and noon, and thereafter, all consents for residential flat buildings in a particular district of the Council's local government area had included this limitation. According to the Court's judgement, the Council did not provide for public consultation before it passed the resolution. The area where the restriction was applied was one that had been "up-zoned" to allow buildings of greater density, and as a result, at the time of the appeal the district was composed of single family dwellings and a number of large apartment buildings under construction. The Council took the view that the restriction was necessary to give local residents a "respite" from the noise of construction works on Saturday afternoons, and thus to protect amenity.
The developer that appealed against the restriction on Saturday hours argued that it was "uneconomic" because the practical result of the restriction was that the developer was required to pay contractors for a full day's work on Saturdays when their employees would actually work only half a day. The developer also asserted that many contractors would simply not turn up for a half day's work on Saturdays, and that if they did, they would bring only a skeleton staff, so that construction would be progressed very slowly if at all.
The particular state of the building, and the nature of the works that the developer proposed to do during the expanded hours, were pivotal to the outcome of the appeal. At the time that the condition restricting the hours of work was brought, the construction had already progressed to a point where the building was "a shell with walls". The developer was prepared to accept a limitation on the building works to be allowed to relatively "low impact" work such as tiling, partitioning, gyp rocking, carpeting, and the like, and to refrain from heavier, noisier works such as excavation, haulage truck movement, rock picking, sawing, jack hammering and pile driving. The developer was also prepared to carry out continuous acoustical monitoring, and to appoint an on site manager to ensure that controls on the level of noise emitted by the construction works would be followed.
The Court (per Commissioner Dixon) found that the Council resolution that had led to the uniform imposition of a restriction of working hours on all consents for residential flat buildings was only entitled to limited weight, because it had been enacted without allowing for consultation from the "developer community". Commissioner Dixon took the view that she should review the application for modification of the condition restricting working hours on its individual merits. In the event, she accepted the evidence of the acoustical expert who had been retained by the developer that the proposed limited construction works would not, in the particular circumstances, result in an unreasonable noise impact on the surrounding community. Accordingly, the Court found that it was acceptable to grant an enlargement of the hours during which the light construction work could be carried out until 4 p.m. in the afternoons on Saturdays.
The result in this case demonstrates that it is possible for a developer to obtain an increase in the hours during which construction works may take place on Saturdays. However, it appears from the decision that the prospects for obtaining such an expansion of working hours will be governed by the specific factual background of each case and that it will be easier to secure longer working hours for "light" construction works that have lesser noise and amenity impacts. There is also a lesson that conditions of consent that are adopted pursuant to a council resolution that has been passed without public consultation will be susceptible to challenge.
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