No Comments

3 Tree-Lessons from the Land & Environment Court

Trees can mean many things to many peoples, for the ancient Norse people Yggrasil “the giant tree of life” connected the heavens and the earth, for real estate agents in metropolitan Sydney it delivers a mystical extra $40K to the selling price, and for the ancient welsh druids – stationary lovers. This varied appreciation of trees also extends to the many and various Class 2 applications in the Land & Environment Court. One person’s tree delights, is another’s waking terror.

  1. Annoyance or Discomfort of the Third Kind

If your neighbour’s trees or hedges continue to deposit leaves and other detritus all over your property, the best solution maybe to forgo the Class 2 Application and pick up a rake instead – as the Court has found that Gaia’s garbage will not be enough to engage an application by an affected land owner pursuant to section 7 (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act):
Continue reading…

No Comments

Who Can Access My Family Court Records?

Like other family law lawyers, I am often asked whether non-parties (persons that are not directly involved in the family law litigation) are able to access the Court records relating to the case.

Documents filed in a family law case (and other documents relating to the case) are held in a Family Court case file.  This information is protected under the Family Law Act 1975 and the Family Law Rules 2004.  For example:

  • Rule 24.13 of the Family Law Rules 2004 limits those who are allowed to access the Court’s records in family law cases;
  • Section 121 of the Family Law Act 1975 limits the publication of reports of family law proceedings and of lists of cases. There are exceptions to this;
  • Family Law Judgments are reported by the Court in a de-identified form (for example, with pseudonyms replacing the parties’ real names).

There are also exceptions to the restrictions to a Court file, including research (Regulation 24.13(1)(d) Family Law Rules 2004) or by the Australian Taxation Office (Commissioner of Taxation & Darling (2014) FLC 93-583).

Continue reading…

No Comments

Section 34 Conciliation Conferences – Requirement for Reasons

A recent development consented to by a Commissioner of the Land and Environment Court during a Court mandated section 34 conference has been set aside by the Court of Appeal due to the fact that the Commissioner failed to give proper and adequate reasons for their decision. The Commissioner further failed to give proper reasons with respect to her satisfaction as to the legal perquisites to their power to grant the consent.

Huajun Investments Pty Ltd filed a class 1 appeal against City of Canada Bay Council’s deemed refusal of their DA which sough to demolish pre-existing structures on the DA site and replace it with an 8 storey-residential flat building.

After being sat down for a section 34 conference pursuant to section 34 of the Land and Environment Court Act 1979 (“the Act”) , The Commissioner overseeing the matter granted development consent in accordance with the agreed terms under section 34(3) of the Act. Section 34(3) states that once an agreement is reached, the Commissioner must:
Continue reading…

No Comments

Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018

On 24 October 2018, the New South Wales upper house introduced the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (the Bill) with the stated aim of ‘[making] clearer the Government is serious about protecting the environment of New South Wales and the health of its citizen’, as well as ‘provide greater deterrence against illegal dumping of asbestos waste’.

The current laws on illegal dumping, transporting, and recycling of asbestos waste

The current version of the Protection of the Environment Operations Act 1997 (NSW) (the Act) provides for prohibitions against unauthorised dumping and receiving of waste in general [Ss 143 & 144, of the Act]. This general prohibition is complimented by asbestos-related provisions within the Protection of the Environment Operations (Waste) Regulations 2014 (NSW) (Waste Regulations), which detail the requirements for handling of asbestos waste. For example, the Waste Regulations requires the person delivering the asbestos waste to notify the owner of the landfill that will be receiving the asbestos waste [Clause 80(2), Waste Regulations], the occupier of the landfill site to cover up the disposed asbestos waste in certain manners [Clause 80(4), Ibid], the transportation of asbestos waste to follow certain regulatory requirements, including securing the asbestos materials securely during transport [Clause 78, Ibid] and wetting down the waste if the asbestos materials are contained soil [Clause 78(d), Ibid]. The Waste Regulations also expressly bans recycling and reusing asbestos materials [Clause 81, Ibid].
Continue reading…

No Comments

Quick Questions Answered: Property Settlement Agreement

  1. What is a Property Settlement Agreement?

A Property Settlement Agreement contains the agreed terms to divide property between you and your former partner following separation. This includes assets, liabilities and superannuation.

  1. When Can I Get A Property Settlement Agreement?

You can finalise a property settlement agreement as soon as you and your former partner have decided to separate i.e. end your relationship.

  1. What if we are still living under the same roof?

You can be living under the same roof but still be considered ‘legally separated’. You do not need to be living in separate households; however, your relationship does need to have ended.

  1. What are the deadlines for obtaining a Property Settlement Agreement?

The Family Law Act 1975 (Cth) provides some “deadline dates” depending on whether you were married or in a de facto relationship. There are some exceptions however, the general rule is:

For married couples: You have 12 months from the date your divorce* comes into effect to make an application for a Property Settlement.
Continue reading…

No Comments

Inland Code: Simplifying development approval in Regional Code

The NSW Department of Planning & Environment has recently announced new legislation aimed to simplify and speed up the approval process for homes, home renovations and farm buildings in regional NSW. The Inland Code commences on 1 January 2019, with its major purpose to simplify the complying and exempt development rules in residential and rural areas of regional NSW. The rules and regulations with respect to complying and exempt development are going to be consolidated into the Inland Code, which will then form part of 3D of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Who does it apply to?

The Inland Code will apply to 69 differing local government areas as specified on the Inland Code Map. The Inland Code will apply to specific developments on land zones RU1, RU2, RU3, RU4, RU5, RU6, R1, R2, R3, R4 and R5 in the inland LGA.

Exempt Development:

The Code creates a brand new category of developments that now are classed as ‘exempt’. More specifically, the code now states that development standards for stock holding yards (that are not used for the sale of stock, grain silos and grain bunkers) are now all classed as exempt developments in the hope that it simplifies the process for citizens within these LGA.
Continue reading…

No Comments

Unjust Put and Call Options – When a developer Comes Knocking

When a developer approaches you to buy your home (and you’re interested), you need to ensure you get as many facts as you can and seek legal advice. Sometimes the developer may not wish to purchase your land straight away, and you may enter into an agreement to sell and purchase land in the future.

A ‘Call option’ is essentially an approved right granted to the buyer by the seller of a property. This right requires the seller to sell the property to this buyer on the agreed terms at a future point in time. For example, you agree to sell you home to the developer in 2 years for a million dollars. A call option is beneficial in that the price agreed upon will not change irrespective of pricing fluctuations in the property market. A ‘put option’ is an approved right granted to the seller by the buyer. This right enables the seller to request the buyer to buy the land at a future point in time.
Continue reading…

No Comments

3 things to know when applying for a Partner visa

The Partner Visa program allows Australian citizens, permanent residents and eligible New Zealand citizens to sponsor their partners for a visa to permanently stay and work in Australia.

Similar to other pathways to migrate to the country, the requirements for eligibility for a Partner Visa are not straightforward – you or your partner will need more than just a genuine relationship to be successful in obtaining this visa.

With that in mind, we have set out below the 3 requirements that could make or break your visa application:

1. Length of your relationship

Unless you and your partner are married or have registered your relationship under the laws of your State, your partner needs to prove that he/she has been in a genuine de facto relationship for at least 12 months with an Australian citizen/permanent resident – this would involve providing evidence of the first day you and your partner committed to life together to the exclusion of all others.
Continue reading…