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Recent changes to the planning principles in relation to brothel

Background

On the 31 March 2017, the NSW Land and Environment Court dismissed an appeal to modify the hours of operation for an existing brothel in Liverpool and revised the planning principle of Martyn v Hornsby Shire Council [2004] NSWLEC 614.

Land and Environment Court Facts

The applicant sought to modify a condition of a development consent granted by the Liverpool City Council (the Council) in 1998. This modification would have extended the operating hours of the brothel.

The Council refused the application on the basis that the proposed “extended hours are not compatible with surrounding areas”, and “would give rise to unacceptable social impacts in the immediate locality”. Furthermore, the applicant “has not demonstrated a satisfactory justification for the proposed extended hours”.

Residents, objectors and other commercial operators in the area provided evidence in opposition of the extended hours.

Land and Environment Court Decision

The brothel was located in a B3 Commercial Core Zone under the Liverpool Local Environmental Plan 2008 (LEP 2008). Its use was characterised as a ‘sex services premises’, which was prohibited.
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Can Council charge for services based on availability of services and actual use of services?

Background

On the 27 February 2017, the NSW Land and Environment Court dismissed an appeal of the applicant seeking to invalidate the Rates and Charges notices issued by a respondent council – Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44.

Facts

The matter concerned water availability charges and sewerage access charges (Availability Charges) being levied by Bathurst Regional Council (the Council) against the Premises which were owned by the applicant. Council had levied the Availability Charges against the Premises since 2004 under the authority of s 501 of the Act, and such charges had been paid by the applicant. Council also issued separate water usage charges and sewer usage charges (the Notices) under s 502 of the Act every three months in arrears, The applicant specifically challenged the validity of the Notices under s 574(1) of the Local Government Act 1993 (NSW) (the Act) on the basis that Council was only able to charge for water services and sewerage service according to the actual use of the service and had no power to make the Availability Charges, which were imposed independently of actual use.
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Employment Law – Dismissal for pornographic emails

Employment Law – Background

In B v Mid North Coast Local Health District [2017], the NSW Industrial Commission found that despite a woman’s sacking for amassing thousands of sexually explicit emails on her work computer being valid, the dismissal was still harsh.
Facts
• The woman was working with Mid North Coast Local Health District as an assistant to the district manager of Mental Health Services
• She was found to have received, stored and sent a large amount of emails which were “pornographic, graphic (violence) and generally inappropriate in nature”
• She was sacked for inappropriately using the workplace email system, breach of the code of conduct and communications policy and serious misconduct
• She argued that her employer’s email system should have had a filtering system in place to prevent inappropriate emails
• It was also argued that she was unaware of the communications policy, despite the fact that

Decision

The NSW Industrial Commission found:
• the employer had a valid reason to dismiss the woman
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Who keeps the family dog? How a separation lawyer can help determine pet ownership

Following a divorce or separation, couples often see a separation lawyer to assist them in reaching an agreement as to the distribution of assets such as houses, vehicles and other valuable items.

But who keeps the family dog?

For many a dog isn’t just a pet, he is man’s best friend, your security guard, a cuddle buddy and the one you tell all your problems to. His value is priceless.

So how does the Court determine who gets to keep this little furry member of the family if parties can’t agree?

Unlike with parenting matters, the Court does not have the power to make an order determining where a pet is to reside. Nor does the Court have the power to order if and when the other party will be permitted to spend time with the pet or required to financially support the pet. The Court can however make a determination as to who the pet will be the property of.
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Child Support for Children over 18

Financial assistance for children under 18 is usually by way of child support. For children over 18, financial assistance usually occurs by way of child maintenance.

Child Maintenance

Child maintenance orders for children over 18 are made at the Court’s discretion and in consideration of the threshold test and capacity to pay.

Section 66H requires the Court to;

  1. Consider the financial support necessary for the maintenance of the child; and
  2. Determine the financial contribution towards the financial support necessary for the maintenance of the child, that should be made by a party.

(a) Financial Support Necessary

In determining the financial support necessary the Court considers a variety of matters under section 66J of the Act.

Some of the considerations may consist of:

  • Age
  • Education
  • Special needs
  • Earning capacity and financial resources of the child

(b) Financial Contribution

In determining the financial contributions to be made by the parties, the Court considers a variety of matters under section 66K of the Act.

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Councils to Lose Ability to Assess some DAs

Councils in Sydney and Wollongong are set to lose the ability to assess Development Applications worth $5 Million or more as part of new rules to be implemented which require the use of Independent Planning Panels.

Mandatory Referral

Yesterday, the Honourable Anthony Roberts announced that Independent Hearing and Assessment Panels (IHAP) will be mandatory for all Councils in Sydney and Wollongong.  These panels are currently voluntarily in use by 15 Sydney Councils and Wollongong Council.

For Development Applications with a value between $5 Million and $30 Million, assessment by the IHAP will be mandatory.  Where the value of the development is over $30 Million, the development application is assessed by the Regional Sydney Planning Panel.  The threshold for assessment by the RSPP has increased by $10 Million i.e. from $20 Million to $30 Million.

Reasoning

The reasoning provided for the changes by the NSW Planning Minister include concern about “inappropriate” relationships between Councils and Developers, transparent and accountable processes for assessing development applications of significant value and guarding against corruption.
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Employment Law – Ex-Employee Restraint Clause Unenforceable    

Employment Law – Background

The Victorian Court of Appeal reaffirmed a decision that an employer was unable to enforce a restraint clause against an employee. The accounting firm’s breach of an employment contract consequently ended its right to enforce a restraint clause against the accountant. The case highlights the importance of carefully assessing any differing views between the employee and employer in employment law.

Employment Law – Facts

In essence:

  • the employee-accountant signed an employment contract in 2012
  • the contract contained a restraint clause that operated for 12 months. Notably, the terms were found to be reasonable by judges in earlier cases
  • the accounting firm expanded its business over 2015-16
  • the accounting firm denied the accountant certain bonuses he believed he was entitled to
  • as a result, the accountant requested payment to which the employer refused
  • the accountant took a week’s leave. A few days after he returned, he informed the employer he considered the refusal to pay the bonuses as a repudiation of the employment contract
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Employment Law – Modern Awards Reductions

Employment Law – Background

In June this year, the Fair Work Commission (FWC) announced the reductions of public holiday penalty rates for the hospitality, retail, fast food and pharmacy sectors. The reductions were decided as part of the FWC’s four-yearly review of modern awards.

As of 1 July 2017, public holiday penalty rates were reduced while Sunday rates will reduce over three to four years. Although the unions argued for the delay in reductions, the FWC agreed with employer organisations. As a result, the first transition step is smaller than later transitions. Furthermore, the retail and pharmacy sectors will have longer transition periods due to their reductions being more significant.

Employment Law – The Modern Awards Reductions per Sector

For the retail and pharmacy sectors:

retail-pharmacy-sector

For the fast food sector:

fast-food-sector

And for the hospitality sector:

hospitality-sector

Employment Law – Tips for Employers:

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review these changes to your respective modern awards
  • seek the assistance of an employment lawyer to understand the impacts of these modern awards changes
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