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Requests pursuant to GIPA Act

A recent Civil and Administrative Tribunal decision has upheld a local council’s decision to refuse an individual’s request for documents pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act).

A resident and ratepayer (“the applicant”) who resides in the local government area of the Sutherland Shire Council, made a request pursuant to the GIPA Act for documents relating to Council’s stormwater management investigation in respect of a stormwater issue on/near the applicant’s property, including information on who had directed Council’s officers, and who drafted responses on behalf of Council officers. In particular, the applicant sought the following records relevant to this decision:

  1. I request a record of the written report of the ‘visit’ by the relevant officer/s (ref:8/1/19), CR18-301708 Mr Barber’s email 5/12/18, para 3)
  2. Should no record exist for the ‘visit’ in Item 7, then I request the record supporting Mr Barber’s conclusion: there was no ‘problematic overland flow.’

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Builders Beware – The Importance of Council Approval

A recent Land and Environment Court Case highlights the importance of obtaining Council approval before spending time and incurring costs in constructing a secondary dwelling on a property.

The case of Sutherland Shire Council v Perdikaris [2019] NSWLEC 149 tells the tale of a man named Mr Perdikaris who made the decision to build a new shed on his property in Menai, to replace a small garage which was not suitable for his needs.

He started by seeking Council approval, which was granted, for the building of a driveway. This application did not contain any reference to the construction of a garage. Mr Perdikaris then sought quotes for a garage. During this process, he received advice from various companies that he did not necessarily need approval for a new garage. Mr Perdikaris also assumed that as there had already been approval for the previous, smaller garage, it would not be necessary to seek approval for a larger garage, in circumstances where the larger garage kept the same distance from the neighbours fence as the smaller garage had.
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Part 6 of the Environmental Planning and Assessment Act is Finally Coming into Effect (Hopefully)!

On 30 August 2019, the NSW government introduced the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW). With this, Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is likely to finally come into effect on 1 December 2019, bringing significant changes to the building approval and certification regimes in NSW.

Background

Part 6 of the EPA Act was inserted into the EPA Act as part of the major reform package introduced by the Environmental Planning and Assessment Amendment Act 2017 (NSW). With the exception of the sections relating to the Building Information Certificate, Part 6 did not immediately commence with most of the reform package. Instead, its commencement was delayed several times to enable industry to make the transition.

Introduced by the state government as a part of its response to the report on the building certification regime in NSW by former state treasury secretary Michael Lambert (the Lambert Report), Part 6 of the EPA consolidated all provisions relating to building certification – which was previously found at various parts of the EPA Act – into a one single part within the EPA Act. Further, Part 6 will make the following substantive changes:
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An Ethical Issue Expert Witness Opinions

The recent case of DeBattista v Minister for Planning and Environment [2019] NSWCA 237 highlights the importance for an expert witness to provide a report that reflects their own opinion unless stated otherwise.

In this case, Council engaged with an external Urban Design Consultant (Consultant) to comment on a planning proposal. After Council requested significant changes to the first and second draft reports, the Consultant provided a third and final version adopting such changes. The contention was that the final version of the report failed to identify the adopted comments from Council and thus was prima facie the Consultant’s prepared report based on their own opinion.

His Honour divulged the greater pressure asserted on the Consultant by Council noting that the terms of the professional’s retainer were that it would not be paid if Council was dissatisfied with the opinion provided. His Honour further stated that:

“No professional should assent to such a term. No ethical client should demand it”
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Amber Light Approach – Where to from Now?

The term ‘Amber Light Approach’ was first coined in Ali v Liverpool City Council [2009] NSWLEC 1327 to describe an approach that had been favoured by the Court at the time. Under this approach, the decision-maker in the Class 1 appeal jurisdiction of the Land and Environment Court would consider whether an otherwise unacceptable development proposal could be approved after making identifiable amendments. If the answer to this question is yes, then the Court may approve the development proposal after the requisite amendments have been made (Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096).

The types of amendments the Court has ordered under the Amber Light Approach are quite diverse. These amendments include reducing the number of apartments in a residential apartment development (Benevolent Society v Waverley Council [2010] NSWLEC 1082), incorporating a wild life management plan (Riordans Consulting Survey Pty Ltd v Lismore City Council [2010] NSWLEC 1333), and changing the length of the proposed trial period in a brothel development (Tl & Tl Tradings Pty Ltd v Parramatta City Council [2017] NSWLEC 142). However, what exactly constitutes the Amber Light Approach has never been clearly defined, which, as will be seen below, makes the approach problematic.
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Social Media Liability: Are you liable for comments made on your Facebook page?

The realm of social media liability has been a relatively untouched legal subject up until a recent landmark case in the Supreme Court of New South Wales. The case of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 held that three media companies were classed as the ‘publishers’ of comments made by the public on their Facebook posts for the purposes of a defamation class.

The three companies typically used their facebook page to disseminate links to news stories, which would also invite the public to leave comments on their public facebook page or their respective news website. Liability in defamation arises because the actual publication of the material is defamatory in nature, and ‘publication’ occurs when the material is delivered to the public. In this case, the Court found that ‘publication’ only occurs in respect of the comments when the comment is placed in a form that is easy to understand and able to be viewed by the public, which is done by the owner of the facebook page as opposed to the actual author of the comments.
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Interlocutory Injunction at the Land and Environment Court

An interlocutory injunction is a type of an interim relief that the Court can order, usually to preserve the status quo until a formal hearing can be conducted. In this article, we will take a look at the elements of the interlocutory injunctions in the planning and environmental law context, and discuss some of the common issues councils may face when applying for interlocutory injunctions.

The Elements

There are, in essence, two elements that must be positively addressed before the Court will grant an interlocutory injunction.

Firstly, the applicant for the interlocutory injunction must prove there is a serious question to be tried. It is not necessary, for the purpose of addressing this element, to show that the applicant has a strong case. It would be sufficient to show that the applicant has a prima facie case by identifying the statutory or other legal rights on which the final relief are based.

Secondly, the applicant must show that the balance of convenience favours the applicant. In the planning and environmental law context, the Court would often consider the following non-exhaustive factors:
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The Importance of Grampian conditions

The recent case of Visionary Investment Group Pty Ltd v Wollongong City Council [2019] discussed the flexibility of imposing a condition of consent when there is insufficient information provided with the development application.

The case involved a development application for a community title subdivision. During the duration of the proceedings, the applicant filed and produced a wide variety of amended plans/reports in support of its application.

One particular issue related to insufficient detail provided by the applicant in respect of ‘upstream’ impacts of off-site wastewater and water supply infrastructure which needed to be built in order to service the proposed subdivided lots. The design for the wastewater site was not put before the Court and Council argued that the development application could not be granted as these plans needed to be assessed.

In reply, the applicant argued that under the processes in Division 5.1 of the Environmental Planning and Assessment Act 1979 the Court has the ability to grant consent based on the fact they are able to give proper consideration and assessment of the ‘upstream impacts’. Noting this, the applicant stated that any consent granted could include conditions necessary to ensure that the div 5.1 processes were followed before commencing development.
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