In Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 (Hinkler), the Court of Appeal confirmed the long-standing principle that development applications are not “made” until the lodgement fees for the applications have been paid. This case addressed the applicability of a savings provision under the State Environmental Planning Policy (Housing) 2021, emphasising the distinction between submitting and completing a DA under the Environmental Planning and Assessment regulation. For this reason, it is crucial that applicants are aware of their responsibilities in regard to development applications. [...]
The Introduction of Transport Oriented Development to the State Environmental Planning Policy (Housing) 2021
In December 2023 the NSW Government announced the introduction of the Transport Oriented Development (TOD) program to increase housing supply and density near the existing and planned transport hubs. Later in April of 2024, the TOD initiative culminated to the making of theState Environmental Planning Policy (Housing) Amendment (Transport Oriented Development) 2024 (TOD SEPP), with the NSW Minister for Planning and Public Spaces announcing its arrival. This then commenced on 13 May 2024 by way of creation of a Chapter 5 in the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). [...]
Proposed Reforms for Low and Medium Density Housing
In December 2023, the NSW Department of Planning and Environment released its “Explanation of Intended Effect” (EoE) for proposed low and mid-rise housing reforms, aiming to address the housing crisis by enabling increased residential development in urban areas near transports and town centres. The reforms will propose significant changes to house permissibility, development controls and landscape regulations with public exhibition concluding in February 2024.
The housing crisis is a major concern for many individuals with an extensive shortfall of dwellings. The EoE is attempting to address this by by supplying new housing in existing urban areas (known as “infill development”), to facilitate low and mid-rise housing “near established town centres, and in areas where there is good public transport”. The proposed reforms look to expand the permissibility and development controls for certain forms of residential developments. Notably, the proposed reform would expand the permissibility of residential developments by: [...]
Limits to the power to amend undetermined development applications during Class 1 appeal proceedings before the Land and Environment Court (LEC)
Summary: The LEC has recently found that the proposed amendments to a development application on appeal were outside the power to amend, and in accordance with s 4.19 of the Environmental Planning and Assessment Act (EPA Act), and the substantive use as sought in the original development application submitted to Council is limited to the use as sought in the Class 1 Application.
Facts: In the matter of Reid v Woollahra Municipal Council [2023] NSWLEC 1611, the applicants sought leave to amend their development application (DA) to rely on amended plans and documents. The respondent, Woollahra Municipal Council (Council) opposed the application for leave to amend. The substantive proceedings were brought pursuant to ss 8.7 and 8.11 of the EPA Act against Council’s deemed refusal of a DA, which originally sought consent for demolition of an existing attached dual occupancy and construction of a new attached dual occupancy. The amended plans and documents sought a change to the erection and use of the development from an attached dual occupancy to a single dwelling. [...]
NCAT affirms Disciplinary Decision to Disqualify Certifier from Registration for 10 years.
Case Review: Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4
The NSW Civil and Administrative Tribunal (NCAT) has recently affirmed a decision of the Commissioner for Fair Trading (Commissioner) to cancel a certifier’s registration and disqualify him from registration for 10 years. Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 (Orfali Case) is a case that exemplifies the necessity for certifiers to ensure they comply with conditions of their certificates of registration.
Background
The Applicant, Mr Orfali, applied for an NCAT review of the Commissioner’s decision to cancel his registration as a registered certifier and disqualify him from registration for a period of 10 years. [...]
Effect of Having a Dog Declared Dangerous by a Local Council
Summary: When a dangerous dog declaration is issued by a council, it is effective through the entire state of New South Wales. As a consequence if you have a dangerous dog that is registered, and you move council areas, you must notify your new local council of your dangerous dog.
Declaring a Dog as Dangerous
What is a Dangerous Dog?
In accordance with section 34 of the Companion Animals Act 1998 (NSW) (Act), if an authorised officer of a Council is satisfied that a dog is dangerous, or if the dog has been declared a dangerous dog under a corresponding legislation in another state or territory, such authorised officer may declare a dog to be a dangerous dog. Sections 5 and 6 of the Act define such authorised officer to be either an employee of a local authority (i.e. council) that is authorised for the purposes of the Act, or a police officer. The authorised officer must give notice to the owner of a dog of the intention to declare the dog to be dangerous, in accordance with section 35 of the Act. [...]
An Overhaul of the Taxation Scheme: Developments for Developers
In July 2023, the NSW parliament passed the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 (NSW), which introduces Housing and Productivity Contribution (HPC). HPC replaces the previous Special Infrastructure Contribution (SIC) scheme and applies a more consistent contribution framework over a much wider area, including the entire Local Government Areas located in:
- the Greater Sydney region;
- the Illawarra-Shoalhaven region;
- the Lower Hunter region; and
- the Central Coast region.
The HPC will apply from 1 October 2023, except in relation to land within the Western Sydney Growth Areas and Western Sydney Aerotropolis SIC areas (to transition to the HPC regime by 2026). [...]
How do I object to a Development Application?
Who can make an objection to a DA and what is in an objection?
When a development application (DA) is lodged on the NSW Planning Panel, nearby property owners and any concurrent authorities are notified, so that they are aware of the DA and have opportunities to make submissions. Council’s own policy, council’s development control plan, and the local environmental plan provide guidance as to who is notified of such a DA. The property owners within the vicinity of the proposed DA, and/or anyone who has a submission to make, may provide one of the following responses: [...]
State-wide Standard Conditions of Consent and Notices of Determination Now in Use
On 30 June 2023, the Department of Planning’s requirement for planning authorities to adopt standardised conditions of consent and notices of determination came into effect. This requirement affects all councils and planning authorities when they are granting development consents via the Planning Portal.
The Department has published a manual containing about 40 conditions of consent and made standard notices of determination templates for 11 types of determination, including standard approval subject to conditions of consent, deferred commencement consent, and refusal of consent. [...]
McMillan v Taylor
The recent decision of the NSW Court of Appeal in c [2023] NSWCA 183 (McMillan) has built upon the role of the Commissioner in conciliation conferences of the Land and Environment Court (LEC), a judicial mechanism commonly used in development appeal proceedings.
The Court deliberated on the construction of section 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which imposes a duty on the presiding Commissioner to dispose of the proceedings if an agreement is reached between the parties, so long as the decision is one “that the Court could have made in the proper exercise of its functions”. [...]
The Public Spaces (Unattended Property) Act 2021 (NSW) repeals the Impounding Act 1993 (NSW)
The Public Spaces (Unattended Property) Act 2021 (NSW) (PSUP Act) came into force on 1 November 2022 and will repeal the Impounding Act 1993 (NSW) (Impounding Act).
The PSUP Act came about after extensive consultation with key stakeholders such as councils, members of the public, industry groups and government agencies.
The PSUP Act is now the source of regulatory powers for councils to take possession of unattended items found in public spaces. Under the PSUP Act, where property is left unattended in public, those responsible must attend to it within reasonable timeframes, or face enforcement action, including strong penalties. [...]
Case Summary: NSW Land and Environment Court rules on Proposed Developments in a Boatyard at Berrys Bay
The NSW Land and Environment Court (NSW LEC) in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 (Stannards Marine Case) highlights the importance of considering the objectives of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the Sydney Harbour Foreshores and Waterways Development Control Plan 2013, and the principles of public trust and intergenerational equity embedded in those statutory instruments, when deciding the outcome of development applications relating to developments within the Sydney Harbour. [...]