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The New Crown Land Management Act 2016

On 1 June 2018, the Minister for Lands and Forestry, the Hon. Paul Toole MP announced that the Crown Land Management Act 2016 (NSW) (CLM Act) will commence on 1 July 2018.

Local councils will commence management of Crown reserves under the Local Government Act 1993 (LGA) from 1 July 2018, and must be ready to start the transition to the new requirements from that date.

An Interim Schedule of Crown Reserves was distributed to each council to help complete the preparatory work of classifying and categorising Crown Reserves.

Until the CLM Act commences, Crown reserves continue to be administered in accordance with existing legislation – Crown Lands Act 1989 (NSW) – with no changes for existing reserve trusts, lessees, licence holders or other with an interest in Crown land.

 

 Key changes

  1. Native title manager training
  • A key change to the way councils manage Crown Land under the CLM Act will be the requirement for each council to employ or engage a trained native title manager who will be responsible for providing advice on certain dealings for land that may be affected by native title.
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Can an intervener/objector participate in s34 conciliation conference after the onsite consultation?

On 19 April 2018, judgment was delivered in M.H.Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council [2018] NSWLEC 56 dismissing a motion by Gundagai Community Environmental Impact Group (GCEIG), an objector to the subject class 1 proceedings seeking an order to be permitted to participate in the “closed door” part of the s 34 conciliation conference.

Full judgment can be found here.

Background

The Class 1 proceedings in question concerned an application made by the Applicant in relation to the decision of the Southern Joint Regional Planning Panel (JRPP) to refuse the Applicant’s development application for the expansion of an existing solid waste, non-putrescible, landfill at the subject land. The Respondent Council is the relevant public authority to defend the decision of the JRPP in this matter.

GCEIG, a not-for-profit, ‘grass roots’ community based group, established to protect and enhance the environment, social and economic wellbeing of the Gundagai and District  GCEIG, filed a Notice of Motion in the proceedings, seeking two primary orders:
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Increased Council and Court Powers under the recently reformed Environment Planning and Assessment Act

The recently reformed Environmental Planning & Assessment Act 1979 (the Act) continues to be rolled out over the first half of 2018. As well as the other amendments aforementioned in our previous article, one of the major changes to the Act is with regard to the increased powers given to Local Councils and Courts when dealing with complying development certificates for local development applications.

In order to achieve the NSW Government’s primary purpose “to promote confidence in our state’s planning system”, the Act aims to enable Local Councils and Courts to adequately and appropriately deal with developments and their relative certificates with more ease by granting them increased powers in this area.

Below is an outline of the major increases/changes in powers issued to Local Councils and Courts:

 

Powers to suspend work under a complying development certificate

Under the new amendments, Councils will have new investigative powers to suspend work under a complying development certificate for up to 7 days. Due to the generally fast paced nature of Complying developments, Council authorities have often found it difficult in using their current enforcement powers to ensure that improper or flawed complying developments are not being built. This new amendment seeks to address this issue, as it allows Councils to completely suspend works on a site while the 7 day investigative period happens, ensuring that they are able to fully exercise their enforcement options with regard to complying developments.
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Justice Legislation Amendment Act 2018

Assented in early March 2018, the recently introduced Justice Legislation Amendment Act 2018 sets out to amend the Land and Environment Court Act 1979 in order to increase the scope of issues that the Court can deal with regarding Class 4 Proceedings.

The purpose of this amendment is to “strengthen and streamline procedural processes” in NSW Courts and Tribunals. While it is only a minor amendment to the Land and Environment Court Act 1979 its purpose is to ensure that the matters already heard within this Court are more appropriately prescribed as Class 4 Civil Enforcement Matters, and not as Class 3 Miscellaneous matters, which how they are classed currently.

Specifically speaking, the point of these amendments is to grant the Land and Environment court power to deal with Class 4 Proceedings Cost Orders. The amendment allows the Court the too deal with the following provisions:

  1. S 202 of the National Parks and Wildlife Act 1974
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New Land and Environment Court Practice Notes

On 1 March 2018, the new amended Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) came into force. A newsletter article outlining the key amendments can be found here https://www.matthewsfolbigg.com.au/news/planning-environment/key-amendments-environmental-planning-assessment-act/

New provisions vs old provisions

Clause 4A of Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 provides that a reference in any document to a provision of the repealed EP&A Act that has been renumbered or relocated by the new EP&A Act is taken to be a reference to the renumbered or relocated provision. In other words, wherever an old provision of the EP&A Act is mentioned, that it is to be read as if the new provision applies.

It is important to note that for the purpose of this Clause, the word “document” means any Act or statutory or other instrument or any contract or agreement, and includes any document issued or made under or for the purposes of any Act or statutory or other instrument.
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Tree dispute principle for claims for structural damage to property caused by a tree

Fang v Li & Anor [2017] NSWLEC 1503

Background

On 19 September 2017, judgment was delivered in Fang v Li & Anor [2017] NSWLEC 1503 to remove two trees pursuant to s7 of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (‘Trees Act’) and established a new tree dispute principle for claims for structural damage to property caused by a tree.

The applicant’s application encompassed the following:

  • removal of a Tulip Tree which he claimed had damaged his property and would cause further damage if not removed and repair costs to his property caused by the Tulip Tree;
  • pruning of a Turpentine Tree which he claimed was likely to cause injury to people on his property.

Judgment

The Court ordered that both the Tulip and Turpentine Trees be removed for the following reasons:

Turpentine Tree

  • The Court found that adequate pruning of the Turpentine tree would remove so much of the crown that the tree would no longer be viable. As such, it was likely to cause injury in the near future and therefore must be removed.
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A tree dispute relating to obstruction of views and sunlight

Rees & Anor v Chen [2017] NSWLEC 1502

Background

On 12 September 2017, judgment was delivered in Rees & Anor v Chen [2017] NSWLEC 1502 dismissing an application brought by Rees pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) against the adjoining property owner, Chen. The applicant sought to have the hedges planted in the adjoining property to be limited to a certain height as it was alleged that the hedges have severely obstructed Rees’ view of the Lane Cover River.

Judgment

  • The Court found that the jurisdictional tests in s 14E(2) are not met in regards to the obstruction of sunlight because i) the obstruction of sunlight was caused by a hedge that pre-existed the applicant’s purchase of the property and ii) the sunlight obstructed was not direct sunlight.
  • The Court also found that the jurisdictional tests are not met in regards to the obstruction of views because i) the view of water was across a side boundary and relatively small portion of the overall view available; ii) the loss of views from other rooms was not severe and iii) the obstruction of views from one room pre-existed the applicant’s purchase of the property.
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Court Invalidates Minister’s Decision

On 30 July 2016, the Minister for Heritage (Minister) made a decision not to direct that the Sirius Apartment Building (Sirius) at Millers Point, Sydney be listed on the State Heritage Register. This decision was made despite a recommendation from the Heritage Council of New South Wales (Heritage Council) that Sirius be listed on the Register.

Sirius was built in the 1980s and since then has become a well-known and significant building in Sydney. It has been used predominantly as social housing up until the NSW Government announced in March 2014 that it intends to sell Sirius and then re-invest the proceeds of sale into social housing across the state.

Minister’s Determination

On 14 March 2016, the Heritage Council made its recommendation that it be listed on the Register under section 33 of the Heritage Act 1977 (NSW) (the Act). Once the Heritage Council makes a recommendation, the Minister can direct listing on the Register in accordance with section 32 of the Act.
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