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No ‘Character of the Local Area’ in diverse neighbourhoods

Under clause 16A of the State Environmental Planning Policy (Affordable Rental Housing) 2009, a consent authority must not consent to a development if the design is incompatible with the character of the local area.

In the recent decision of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden), clause 16A played a prominent role in Commissioner Gray’s judgement. In that case, the Council had refused the development, inter alia, because the development’s design did not match the local aesthetic. The Council relied on the argument that the setbacks and design of the proposal were inconsistent with other residential flat buildings in the local area.

However, Commissioner Gray rejected this argument in favour of the Applicant’s reliance on Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture). There, Roseth SC stated [at 22]: “Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.”
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Case Note: Port Macquarie-Hastings Council v Mansfield

In the recent decision of Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (Mansfield), the NSW Court of Criminal Appeal overturned an earlier decision of the Land and Environment Court in relation to the power of councils to compel production of documents under the former section 119J (now section 9.22) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

Background

Mr Mansfield was accused of carrying out a development that was prohibited under the Local Environmental Plan. After some investigations and before the commencement of the criminal proceedings, Council’s investigation officer, Craig Henderson, issued a number of notices under section 119J (now section 9.22) of the EPA Act. From the documents produced under those notices, Council learned two companies may have further documents relating to the alleged offence and issued a subpoena to each of the two companies after criminal prosecution had commenced.

Mr Mansfield challenged the validity of the two subpoenas in the Land and Environment Court, primarily on the basis that Council must not rely on the information gathered from section 119J notices to issue the subpoena because the section 119J notices were not validly issued in the first place.
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New Land and Environment Court Class 3 Compensation Claims Practice Note

On 15 March 2019, the Chief Judge of the Land and Environment Court of New South Wales issued a new Practice Note for Class 3 Compensation Claim proceedings relating to the acquisition of land. The purpose of this new practice note was to implement a significant change to the way in which compensation proceedings are managed. More specifically, the new practice note is better aimed at facilitating just, quick and cheap resolutions of what can often be very complex compensation cases.

Change 1 – Earlier Conciliation conferencing

The biggest change in the practice note is that conciliation conferencing will be one of the initial procedural steps undertaken prior to preparation of expert evidence. The old practice note provided that conciliation conferences were to take place approx. 16 weeks after the initial directions hearing, following preparation of all of the expert evidence and relevant pleadings. Under the new practice note, parties should now expect to attend a conciliation conference approx. 4 weeks after the initial directions hearing.
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Potential Changes to NSW Aboriginal Planning Rules through the Aboriginal Land SEPP

New South Wales in the near future could potentially require consideration for ‘development delivery plans’ (‘DPP’) for development applications under land owned by Local Aboriginal Land Councils (‘LALCs’). The State Environmental Planning Policy (Aboriginal Land) 2019 (“SEPP”) brought into force on 6 February 2019 currently applies to certain mapped lands owned by the Darkinjung Local Aboriginal Land Council. However, the plan anticipates a review 12 months post commencement to consider extensions to include Darkinjung land; and potential extension to include further LALCs across NSW.

The DPP promotes strategic and independent planning decisions for LALC whilst considering regional strategic plans for the area adopted under the Aboriginal Land Rights Act 1983 and other matters considered relevant by the LALC and Minister. Part 2 under the SEPP provide the following requirements for DPPs:

DPP must set out the following [9(1) of the SEPP]:

  • Set out the general objectives and nature of for the land
  • Set out a basis for which the development is proposed

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Removal of Shrubs to Prevent Consents from Lapsing

The Court of Appeal (Court) in recent judgment of Cardo Management and Maintenance Pty Ltd v Cumberland Council [2019] has established an easier criteria to prevent a lapse of consent, assisting developers and landowners in protecting their development rights. Section 4.53 of the Environmental Planning and Assessment Act 1979 (Act) stipulates that a development consent for the erection of a building, subdivision of land or the carrying out of work will lapse if no physical commencement of the development occurs after 5 years.

Land and Environmental Court Judgment

Within the recent judgment, the Land and Environment Court (LEC) had found that the developer had failed to establish that lawful works had physically commenced before the lapsing date of the consent. The developer had removed shrubs and trees as well as erecting fences and disconnecting the water.

The LEC found that the demolition of the trees and shrubs were not completed by a certified arborist as required by the consent, and further, the work on the fence and disconnection of water hadn’t been approved by the Principal Certifying Authority as per the consent. As such, the work done did not lawfully constitute physical commencement of the development.
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Beyond the Usual Argy Bargy – How Repeated Amendments to Class 1 Appeal Application Can Lead to General Costs Order

In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3) [2018] NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –

  • the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;
  • the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and
  • the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.

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Torrens Title Lot – What defines ‘land’?

Two decisions of the Land and Environment Court have recently considered what defines ‘land’ on which a heritage item is situated, and what defines the ‘land’ on which an extractive industry was being carried out. Both cases are a timely reminder that Courts will not consider ‘land’ by reference to just their Torrens title lot, but also consider the scope and purpose of any relevant statutory provisions involved in the determination of the DA.

‘Land’ involving heritage items – Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179

In this case, the Court was considering an integrated development application seeking consent to conserve a heritage listed building (both the building and its curtilage being listed on the State Heritage Register), and construct a 16 storey residential apartment building on a differing part of the same Torrens Title Lot.  The Heritage Council provided general terms of approval regarding the conservation of the building, but also provided some comments regarding the construction of the residential building on the same site. The applicant began proceedings on the basis that the consent authority was unable to properly determine the DA without the Heritage Council indicating whether it would provide terms of approval in relation to the entire DA.
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Changes to Short–Terms Rental Accommodations – Is the Holiday Over?

 

The Department of Planning and Environment is currently in the process to introduce state-wide planning framework for Short-Term Rental Accommodation (STRA) following reforms provided to the Fair Trading Act 1987 (NSW) and Strata Schemes Management Act 2015 (NSW) at the end of 2018.

The changes proposed are as a result of the ever growing easily accessible holiday rental market whereby STRA in New South Wales initially compromised of a voluntary Code of Conduct – Holiday Rental Code of Conduct – originally adopted in 2012.

With growth in the industry outpacing policy changes, owner’s corporations were forced to use strata laws to manage STRA impacts and locally derived planning controls. Due to the difficulty surrounding the permissibility of uses, concerns have been raised by local communities as a result of noise, parking and house availability. In 2015, the NSW Legislative Assembly Committee on Environment and Planning conducted an inquiry into the adequacy of the regulation into STRA finding that planning laws needed to be amended to regulate the STRA.
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