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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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Indemnity Costs Order in Class 3 Proceedings

On 7 February 2018, Molesworth AJ of the Land and Environment Court delivered his judgment in Croghan v Blacktown City Council (No 2) [2019] NSWLEC 9 (Croghan). The judgment represents a notable development in the law concerning the making of costs order in Class 3 land acquisition proceedings.  It represents the first time that the Land and Environment Court in New South Wales has ordered the claimant to pay the acquiring authority’s legal costs assessed on an indemnity basis.

Background

In Croghan, the acquiring authority is Blacktown City Council (Council), who sought to acquire part of Mr Croghan’s land in the suburb of Vineyard in 2016 for the purpose of constructing new drainage system and for public recreational uses.

In October 2016, the Valuer-General of New South Wales had assessed the total compensation payable to Mr Croghan at $4,802,000.

Dissatisfied with the Valuer General’s assessment, Mr Croghan lodged an appeal in the Land and Environment Court under the Court’s Class 3 jurisdiction. In the Class 3 Application, Mr Croghan sought a compensation of $11,157,251.88.  This figure was revised down $8,405,752.00 four days before the hearing in February 2018.
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Compulsory changes to NSW Parking Fines – 10 Minute Grace Period

Starting 31 January 2019, amendments to section 123C of the Road Transport (General) Regulation 2013 were introduced by Road Transport (General) Amendment (Parking Fine Flexibility and Grace Period) Regulation 2018 which states that Councils will now be required to implement a regulated 10 minute grace period for certain paid parking offences that have a duration of more than one hour. These changes will affect all parking fine issuing authorities including NSW government agencies, Local Councils and Universities. These changes are compulsory and are not related to the recent NSW governments ‘opt in’ provisions to reduce the amount of parking fines.

What this means for you?

  1. Councils should ensure that their authorised issuing staff are made aware of these changes when issuing parking fines from 31 January 2019.
  2. Councils are encouraged to update any relevant manuals, procedures and systems that are involved with respect to parking fines.

Conditions for 10 minute grace period:

Councils are only required to enforce the 10 minute grace period if the following parking conditions are met:
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3 Tree-Lessons from the Land & Environment Court

Trees can mean many things to many people, 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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