Local Government

The Land & Environment Court in Blacktown City Council v The Penatrators Pty Limited [2013] NSWLEC 169 has determined that the balance of convenience favours the granting of an injunction in circumstances where a company has continued to use a site located within the Blacktown Local Council area as a waste resource transfer station without a development consent.  The company’s director did not demonstrate any willingness to cease the breach of the Environmental Planning & Assessment Act1979 (NSW).  Further it was determined that use of the land is potentially hazardous to the environment and to human health insofar as the materials may contain asbestos and other contaminants, the material is uncovered, and the material is, in some places, stored in close proximity to power lines presenting an attendant fire risk. These dangers are exacerbated when consideration is given to the fact that the site is situated near to residential dwellings. [...]  READ MORE →

The government yesterday passed the Local  Government (Early Intervention) Bill 2013 which will enable the Minister to issue a performance improvement order and to suspend a council if in the Minister’s opinion, such action is necessary to improve the performance and effective functioning of the Council.  As the name of the Bill suggests the new provisions will allow the Minister to take early action to ensure the proper functioning of Councils.

This is an alternative to undertaking a public  inquiry and dismissing a Council – the process to date.  It does, however, give both the Minister and the Director-General wide discretion and powers to monitor and enforce performance of both individual Councillors and the Council as a whole. [...]  READ MORE →

The Local Government Act 1993 and City of Sydney Act 1988 are to be rewritten. The Minister for Local Government has appointed a four member Local Government Acts Taskforce to develop new, modern legislation that meets the current and future needs of the community and local government sector.

In undertaking its work the Taskforce is required to consult with key stakeholders and to take into account recommendations made by the Independent Local Government Review Panel that are adopted by the NSW Government. [...]  READ MORE →

On 2 May 2013, NSW Parliament passed the Small Business Commissioner Bill (“the Bill) to formally establish the role of the NSW Small Business Commissioner (“the Commissioner”), a position that has existed since 2011 and is currently filled by Ms Yasmin King.

As set out in the Bill, the objectives of the Commissioner include:

(a) dealing with issues concerning the small business sector in a neutral and independent manner;

(b) facilitating the resolution of disputes involving small businesses; [...]  READ MORE →

Wilpinjong Coal Pty Limited v Mid-Western Regional Council; Ulan Coal Mines Limited v Mid-Western Regional Council [2012] NSWLEC 277

Wilpinjong Coal and Ulan Coal owned properties for which they had to pay rates to Mid-Western Regional Council.  Council decided to re-categorise these properties from ‘farmland’, ‘residential’, or ‘business’ to the category ‘mining coal’ for the purpose of rates. The mines applied to the Council to have the land re-categorised back to the old categories, however the Council refused. The mines appealed this refusal to the Land and Environment Court. Ulan made 20 appeals and Wilpinjong 100. [...]  READ MORE →

Commencing on 11 January 2013, the Miscellaneous Acts Amendments (Directors’ Liability) Act 2012 (NSW) (“the Act”) will significantly impact how various corporate criminal offences, including environmental offences, which are the subject of this bulletin, are pursued and prosecuted.

The Act brings into effect a number of changes including those that will reverse the position of who bears the onus of proof applicable to corporate offences. The onus of proof which was previously borne by the defendant directors and managers in over 1000 corporate offences will now apply to only 150. In the remaining 850 offences, now categorised as “executive liability offences”, the onus will be shifted back to the prosecution. [...]  READ MORE →

A recent Supreme Court case makes clear for councils the steps they must follow in order to properly exercise their powers of sale under s713 of theLocal Government Act 1993 (NSW) (“LGA”).

In Harden Shire Council v Richardson [2012] NSWSC 622, Harden Shire Council (“Council”) commenced proceedings pursuant to s60 of the Real Property Act 1900(NSW) (“RPA”) for possession of land, having sold the relevant property by exercising its power under s713 of the LGA due to outstanding rates and charges. [...]  READ MORE →

In a recent case of Dimitrios Michos & Anor v Council of the City of Botany Bay [2012] NSWSC 625, Justice Slattery in the Equity Division of the Supreme Court found the Council of the City of Botany Bay (“Council’) guilty of negligence for failing to install an effective root barrier to prevent damage to the plaintffs’ property.

What did the Court do?

The Court ordered a mandatory injunction against Council requiring it to install a root barrier extending along the full length of the plaintiffs’ boundary where the 3 encroaching native fig trees grew, to a depth of 2m. [...]  READ MORE →