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Development Without Consent

Two recent decisions of the Land and Environment Court have dealt with matters involving development without consent.

Cumberland Council v Badouli Habib [2017] NSWLEC 18

Cumberland Council v Badouli Habib [2017] NSWLEC 18 was handed down by Robson J.  The defendant was sentenced in relation to a breach of s 125 of the Environmental Planning & Assessment Act 1979 for the construction of a two storey, 5 bedroom detached dwelling and a two bedroom granny flat without development consent.   The defendant was the brother of the owner of the properties and admitted to Council that he did not possess development consent.  The defendant had previously been involved in developments and was aware of the development process. [...]  READ MORE →

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DA lodgement to move online

The Department of Planning and Environment (the Department) has announced plans to move submission of a Development Application (DA) online, potentially saving significant time for applicants.

On average, the time to prepare and submit a traditional DA can take up to ten (10) days, however, through the proposed online system this could be reduced to half an hour (30 mins).

The online lodgement of DAs will be through the Department’s Planning Portal.

Whilst some local Councils currently provide for the online submissions of a DA, the planning portal will be the “one stop shop” for DAs and complying development certificates in the future.  It is predicted that the system will connect any type of application to be lodged to any local council within New South Wales. [...]  READ MORE →

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Local Council Amalgamations: City/Country Policy Division

The NSW Government announced that the forced local council amalgamations in Sydney City areas will continue whilst the forced amalgamations in regional areas will be abandoned.  There will be no change to the 20 Councils that have already been merged.

The announcement from Premier Gladys Berejiklian has disappointed many of the local councils embroiled in legal battles over the amalgamations.

The five Sydney mergers that will be pushed forward, subject to the decision of the courts are:

  • North Sydney, Mosman & Willoughby
  • Hunter’s Hill, Lane Cove & Ryde
  • Strathfield, Burwood & Canada Bay
  • Randwick, Waverley & Woollahra
  • Ku-ring-gai & Hornsby

The Government plans to hold elections for the Sydney mergers that are still to occur as soon as possible. [...]  READ MORE →

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Local Council Amalgamations – Potential Backflip

Muiltiple reports state that the new NSW Premier, Gladys Berejiklian, may reverse the local Council amalgamation process set up by former Premier, Mike Baird.

The Premier is said to be considering a range of options including using plebiscites to allow merged Councils to unmerge, some reports saying by this year and others saying as late as 2020.  A plebescite is held by Governments to test whether people support or oppose a proposed course of action.  In practice this would allow rate payers of local council’s to vote on whether they want to de-amalgamate. [...]  READ MORE →

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Incorporating an Environmental Group

Individuals with common environmental interests or concerns are able to come together to form groups to oppose developments or represent broader environmental concerns.  Incorporating these groups can provide benefits such as challenging bringing proceedings for judicial review of a development.

What is incorporation?

Incorporation is when a non-commercial group of five or more members are registered as a separate legal entity.

Why incorporate?

Incorporation can provide a range of benefits including:

  • establishing a legal identity separate from individual members
  • limiting some legal liability
  • the existence of the group will continue despite membership change

And the group can:

  •  enter into enforceable contracts
  • sue in the corporate name
  • attract funding more easily
  • apply for status as a charity/formally register as an environmental organisation

How do you incorporate?

  1. Choose a name
  2. Establish objectives and a constitution
  3. Authorise an application for registration
  4. Apply for registration

What else do I need to know?

Incorporation involves ongoing costs, administrative burdens and legislative responsibilities. [...]  READ MORE →

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Public Parkland Challenge in the Land and Environment Court

Millers Point Fund Incorporated, a community group, was represented by the Environmental Defenders Office (EDO) in its judicial review of the Planning Assessment Commission (PAC) decision in the Land and Environment Court of NSW (LEC) in November.

The decision under review was that of PAC to allow the modification of the Crown Casino Development at Barangaroo to be on land that had originally been set aside as a public park.  In the first approval of the development the area had been set aside as a public park, in the modification of the plan the park was moved back from the waterfront and the casino was relocated to where the park was originally to be situated.  PAC deferred to an approval under the Casino Licensing Laws. [...]  READ MORE →

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EPA fines Albury City Council – Odours from Waste Centre

The Environment Protection Authority (EPA) can issue penalty notices, formal warnings, licence conditions, notices, official cautions, directions and prosecutions to achieve compliance with environmental laws in NSW.

The EPA recently issued a fine of $8000 to Albury City Council for offensive odours in relation to its Waste Management Facility at Hamilton Valley.  The EPA conducted an odour survey following a complaint from a member of the public and identified the pungent odour described as a ‘wet rotting smell’.  Albury City Council has also been directed to conduct an air quality impact assessment, a condition imposed under its Environment Protection Licence. [...]  READ MORE →

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Pollution Licences under the POEO Act

The Protection of the Environment Operations Act 1997 (NSW) (the Act) provides an environmental regulatory framework in NSW.  Regulatory authorities are able to issue environment protection licences under the Act to control the impact of pollution.  These licences are sometimes referred to as ‘pollution licences’.  The relevant regulatory authorities are the Environment Protection Authority (EPA), local councils, the Roads and Maritime Service and the Marine Parks Authority.

The pollution licences that are issued are subject to conditions.  For premises that do not hold an pollution licence, the local Council regulates pollution from the premises.  The activities that require a licence are listed in Schedule 1 of the Act. The activities that are listed are generally activities that have the potential to have significant environmental impacts.  Licences are issued for: [...]  READ MORE →

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Local Council Fined for Unlicensed Radioactive Sources

The NSW Environment Protection Authority has fined a local council $1,500, for not holding the appropriate licence, which would allow them to own two gauges containing a sealed radioactive source.

The local council used the radioactive sources for engineering works such as road construction, although the local council had not actually used the sources since 2011. The local council had previously had the correct licence for the radioactive gauges, however they had let this registration lapse after 2011, as the sources were no longer used. [...]  READ MORE →

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New Local Government Amendment (Governance and Planning) Bill 2016

On 22 June 2016 the Local Government Amendment (Governance and Planning) Bill 2016 was introduced into the NSW parliament.

Under this new Bill the NSW Government is proposing to add new provisions, giving the Minister for Local Government (“the Minister”), greater powers in relation to local councils.

These new provisions will give the Minister the power to issue a performance improvement order, on local councils they believe are not performing. After issuing this order, the Minister will be able to appoint a financial controller to a council. Once this financial controller is appointed, the council will be prevented from making any payment from council funds, unless the financial controller gives their authorisation. [...]  READ MORE →

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Environmental Law Update – Proposed Changes to Local Government Tendering

The Local Government Amendment (Red Tape Reduction) Bill 2014 (‘the Bill’) has recently been introduced in NSW Parliament.

The Bill proposes a number of amendments to the Local Government Act 1993 (NSW) and the Local Government (General) Regulation 2005 (NSW) in respect of local government tendering.

The first amendment proposed by the Bill relates to joint or collective local government tendering. Under the current law, councils undertaking joint procurement must each separately resolve to accept a tender. The Bill proposes to remove the restriction on the delegation of tenders by councils in order to facilitate group purchasing by councils without the need to go back to each individual council for endorsement. [...]  READ MORE →

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Compulsory Acquisitions – Whose Minerals?

The Problem

Transfer of land by agreement of a title in fee simple carries with it (usually) all of the interest which the transferor has in the land.  Acquisition of land by compulsory acquisition on the other hand carries with it the interests which the acquiring authority seeks to acquire.  Usually the authority is seeking “ownership” of the land, a lease, an easement or some such common interest in land.  Simple!?

Local Councils often acquire land by compulsory process, normally after all attempts to purchase the land by negotiation have failed.  The first step in the process requires the Council to apply to the Minister for Local Government for consent to the acquisition – all going well the consent will be granted, the acquisition gazetted and the Council will then request the Registrar-General for the issue of a Certificate of Title for the land vested in it by the gazettal.  A careless application to the Minister will at that stage reveal itself – instead of a title issuing for the former owner’s fee simple in the land, two titles will issue:  one in the name of the Council excluding any interest in minerals, and the other in the name of the “former” owner as registered proprietor in fee simple of the minerals in the land formerly fully owned by that entity. [...]  READ MORE →