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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):
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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:
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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].
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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.
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Is the need for a neutral or better outcome a requirement for success with respect to clause 4.6?

In a recent decision in the Land and Environment Court (LEC), the Court has given further clarification to the type of consideration that needs to be given to clause 4.6 of the standard instrument LEP.

The significant decision was given in the case Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where Preston CJ clarified the appropriate approach to the consideration of clause 4.6. The importance of this judgment is that a clause 4.6 submission does not require developments which do not comply with the applicable development standard to have a neutral or better environmental planning outcome than a development that does not.

By way of background – a “Clause 4.6” in the standard instrument LEP which permits a consent authority to grant development consent for a development that would contravene a development standard, where the consent authority is satisfied of the following two standards:

  1. a written request from the applicant adequately demonstrating that the compliance with the development standard is unreasonable or unnecessary and that there is sufficient environmental planning grounds to justify the contravention; and
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Deferred Commencement Consents

On 21 June 2018, the Land and Environment Court of NSW handed down a decision which reinforced the importance of time limits on deferred commencement conditions.

The decision of Commissioner Preston in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 found that the Court had no jurisdiction to grant the appeal on its merits regardless of whether the evidence submitted as part of the deferred commencement condition was satisfactory given the fact that Consent had lapsed.

Background

On 17 August 2016 the Applicant appealed against Council’s refusal of an application for development consent (Consent). Commissioner Fakes upheld this appeal and granted development consent subject to a deferred commencement condition which required the Applicant to submit to Council for approval a Flood Emergency Response Plan (‘FERP’) by 17 August 2017.

The deferred commencement condition had to be fulfilled to Council’s satisfaction by 17 August 2017. The applicant submitted its FERP to Council in April 2017. Following this submission, Council advised the applicant that the deferred commencement condition had not been satisfied to the requisite standard on 20 June 2017.
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Sentencing Principles for Water Pollution Offences

BACKGROUND

On 7 and 8 March 2018, judgment was delivered in Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 (Ardent) to impose a fine totalling $157,950 on Ardent Leisure Ltd (AL) for polluting Sydney Harbour after approximately 6000L of diesel fuel escaped into the waters from a fuel storage system at Rushcutters Bay marina.

AL was convicted with the following offences and penalty imposed:

  1. Section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for the pollution of waters in Rushcutters Bay (Water Pollution Offence) – Penalty $135,000.00;
  2. Clause 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) (UPSS Regulation) in relation to Ardent’s failure to include current ‘as-built’ drawing for the fuel storage system (UPSS Regulation Offence) – Penalty $22,950.00

A publication order for a notice of the offences was also made for the purposes of improving the effectiveness of general deterrence.
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Powers of a Sydney District or Regional Planning Panel to “direct and control” a Council under the new amendments to the Environmental Planning and Assessment Act in a Class 1 Appeal:

Recently the Land and Environment Court has considered the newly introduced provision of the Environmental Planning and Assessment Act which enables planning panels involved in application decisions to “direct and control” the Council involved.

In this landmark case, the Court found the Council was indeed subject to both the direction and control of the Planning Panel, but furthermore that when the application goes before the Court in order to enter into an agreement to solve proceedings, that the Panel also becomes joined as a party in this process.

The Decision in M.H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101:

By way of a brief background, this case involved a Class 1 Development application to expand an existing landfill in the Cootamundra-Gundagai Local Government Area.

As per the old EPA Act, the development application was required to be heard at the time by the Southern Joint Regional Planning Panel (the JRPP Panel), and at the time the panel determined the application by way of refusal.  Upon this decision, the Applicant then filed an appeal with the LEC and the Planning Panel was informed as per the requirements under the EPA Act.
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