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EPA v Riverina (Australia) [2015] NSWCCA 165

Case Background

By way of summons (“the Summons”) filed on 17 April 2014, Riverina (Australia) Pty Ltd (“Riverina”) was charged under the Environment Protection Authority (“EPA”) with an offence of polluting waters being a breach of section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the “POEO Act”). The particulars of the charge alleged that Riverina disposed of waste material through a storm water drainage system which flowed down a number of drainage lines and then discharged into a main body of water. Relevantly, the items forming the manner of contravention as set out in the Summons were separated by the words “and/or”. [...]  READ MORE →

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New Guidance Released for Preparing or Assessing Biodiversity Development Assessment Reports

The NSW Department of Planning and Environment has recently released a Biodiversity Development Assessment Report Template (‘the BDAR Template’) to assist accredited assessors in preparing  Biodiversity Development Assessment Reports (‘BDAR’) for proposed developments.

The BDAR Template has been developed in accordance with best practice and sets out the minimum requirements for a BDAR in accordance with the Biodiversity Assessment Method 2020 (‘the BAM 2020’). It is not compulsory for accredited assessors to use the BDAR Template. [...]  READ MORE →

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Consolidation of State Environmental Planning Policies

On 1 March 2022, the New South Wales government has repealed some 45 State Environmental Policies (SEPPs) and consolidated them into 11 new SEPPs. For the most parts, the provisions of the repealed SEPPs are simply transferred into the consolidated SEPPs.

The following table shows the result of the SEPP consolidation:-

Consolidated SEPP Repealed SEPP
State Environmental Planning Policy (Planning Systems) 2021 State Environmental Planning Policy (State and Regional Development) 2011;

State Environmental Planning Policy (Aboriginal Land) 2019; and

State Environmental Planning Policy (Concurrences and Consents) 2018.
State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017;

State Environmental Planning Policy (Koala Habitat Protection) 2020;

State Environmental Planning Policy (Koala Habitat Protection) 2021;

Murray Regional Environmental Plan No 2—Riverine Land;

State Environmental Planning Policy No 19—Bushland in Urban Areas;

State Environmental Planning Policy No 50—Canal Estate Development;

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011;

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997);

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment; and

Willandra Lakes Regional Environmental Plan No 1—World Heritage Property.
State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Coastal Management) 2018;

State Environmental Planning Policy No 33—Hazardous and Offensive Development; and

State Environmental Planning Policy No 55—Remediation of Land.
State Environmental Planning Policy (Transport and Infrastructure) 2021 State Environmental Planning Policy (Infrastructure) 2007;

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017;

State Environmental Planning Policy (Major Infrastructure Corridors) 2020; and

State Environmental Planning Policy (Three Ports) 2013.
State Environmental Planning Policy (Industry and Employment) 2021 State Environmental Planning Policy (Western Sydney Employment Area) 2009; and

State Environmental Planning Policy No 64—Advertising and Signage.
State Environmental Planning Policy (Resources and Energy) 2021 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007; and

Sydney Regional Environmental Plan No 9—Extractive Industry (No 2—1995).
State Environmental Planning Policy (Primary Production) 2021 State Environmental Planning Policy (Primary Production and Rural Development) 2019; and

Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas).
State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

Darling Harbour Development Plan No 1;

Sydney Regional Environmental Plan No 26—City West;

Sydney Regional Environmental Plan No 16—Walsh Bay;

Sydney Regional Environmental Plan No 33—Cooks Cove; and

State Environmental Planning Policy No 47—Moore Park Showground.
State Environmental Planning Policy (Precincts—Central River City) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006;

State Environmental Planning Policy (Kurnell Peninsula) 1989;

Sydney Regional Environmental Plan No 24—Homebush Bay Area; and

State Environmental Planning Policy (Urban Renewal) 2010.
State Environmental Planning Policy (Precincts—Western Parkland City) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

Parts of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006;

State Environmental Planning Policy (Western Sydney Aerotropolis) 2020;

State Environmental Planning Policy (Penrith Lakes Scheme) 1989;

Sydney Regional Environmental Plan No 30—St Marys; and

State Environmental Planning Policy (Western Sydney Parklands) 2009.
State Environmental Planning Policy (Precincts—Regional) 2021 Parts of the State Environmental Planning Policy (State Significant Precincts) 2005;

State Environmental Planning Policy (Activation Precincts) 2020;

State Environmental Planning Policy (Kosciuszko National Park—Alpine Resorts) 2007; and

State Environmental Planning Policy (Gosford City Centre) 2018.

As at 1 March 2022 only three SEPPs had not been amended. These SEPPs are the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. [...]  READ MORE →

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Best Practices for Dismissing or Disciplining Public Sector Employees

Disciplining and dismissing an employee is a fraught but necessary aspect of the employer/employee relationship, and given the potential legal risks arising from dismissals they must always be carefully considered and managed.

Even where a valid reason for dismissal exists (e.g. for poor work performance or serious misconduct), an employer must still take care to afford an employee appropriate procedural fairness, have regard to their legal and industrial obligations, and ensure that any dismissal is not influenced by any discriminatory or other unlawful factors. [...]  READ MORE →

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Environmental Planning and Assessment Regulation 2021

The Environmental Planning and Assessment Regulation 2021 (Regulation 2021) came into force on 1 March 2022 and replaced the Environmental Planning and Assessment Regulation 2000 (Regulation 2000). Regulation 2021 largely continues to reflect its predecessor, but has been designed to improve the planning system by removing unnecessarily complex provisions and simplifying the system for all users.

A number of the key changes are outlined below.

Development Applications

Regulation 2021 requires that all development applications must be made in the approved form, which is located on the NSW Planning Portal, and must include all the information and documents specified in the approved form or required by the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Regulation. The development application (DA) may be rejected by the consent authority if it does not contain this information. [...]  READ MORE →

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New State Environmental Planning Policy for Housing Imminent

In December 2020, the New South Wales government announced its intention to introduce major reforms to the planning policies for housing.

The reforms were to be introduced in multiple phases. Phases 1 and 2 had been rolled out in late 2020 and early 2021. These reforms include amendments to the existing State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and introduction of the State Environmental Planning Policy Amendment (Build-to-rent Housing) 2021 (BTRH SEPP). The BTRH SEPP, notably, introduced purpose-built rental apartment buildings as a new type of land use, and permits these build-to-rent apartments to be developed on any zone where multi dwelling house, residential flat buildings, and shop top housing are permitted. [...]  READ MORE →

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Contracts Involving Public Authorities

Summary

Case summary re: 123 259 932 Pty Ltd (123) v Cessnock City Council (Council) (No 2) [2021] NSWSC 1329 (Cessnock case).

The decision of the Cessnock case demonstrates that public authorities, such as Councils should take reasonable action to ensure compliance with lease agreements and other related contracts. The case also highlights the importance of having knowledge of the assets held by another party, as expectation damages will not be awarded if there are no assets.

The Facts

In Cessnock Case, 123 sought damages against the Council for the breach of contract and unconscionable conduct. [...]  READ MORE →

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Minister’s Planning Principles and the Consolidation of SEPPs

On 2 December 2021 the Minister for Planning and Public Spaces released the Minister’s Planning Principles (‘Principles’) which have the following themes devoted to guiding future planning and development in New South Wales:

  1. Strategic and inclusive planning systems
  2. Well-designed places
  3. Natural environment and heritage preservation, conservation and management
  4. Resilience and hazards management
  5. Transport and infrastructure
  6. Safe, diverse and affordable housing
  7. Competitive and resilient economy
  8. Resources and renewable energy transitioning
  9. Protecting and supporting agricultural lands and opportunities for primary production

These Principles will apply through the existing statutory scheme under Part 3 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). Additionally, the Principles will align with the 11 new State Environmental Planning Policies (‘SEPPs’) created to consolidate and simplify NSW planning policies. From March 1 2022, the 45 SEPPs that currently exist will be consolidated into the following 11 SEPPs: [...]  READ MORE →

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BSCA v EPA: Litigation for climate change action

Dominating the political and media sphere is Australia’s commitment to net zero carbon emissions by 2050. This is unsurprising given the fast-approaching 2021 United Nations Climate Change Conference (COP26) and G20, where world leaders will gather and deliver their roadmap on climate action. Australia’s position on climate change has been met with mixed views as the federal government has yet to establish a net-zero target on a national level. Despite the federal government’s lack of progress, the case of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (BSCA v EPA) shows an unprecedented step forward by an Australian Court in holding a statutory body to account for action against climate change. [...]  READ MORE →

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Mandating Covid-19 Vaccinations in the Workplace

With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.

The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine. [...]  READ MORE →

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Updated Guidance for Councils – Flood Prone Land

On 14 July 2021, the NSW Department of Planning, Industry and Environment introduced updated guidance for councils in respect of flooding in land-use planning, to support better management of flood risk beyond the 1% annual exceedance probability (“AEP”), and to ensure best management practises in managing and mitigating severe to extreme flood events. The updated guidance and materials are:

  1. a new planning circular: Considering flooding in land use planning: guidance and statutory requirements (and revoking the existing planning circular PS 07-003);
  2. a new guideline: Considering Flooding in Land Use Planning (2021) (and revoking the Guideline on Development Controls on Low Flood Risk Areas);
  3. an amendment to clause 7A of Schedule 4 to the Environmental Planning and Assessment Regulation 2000. The changes will simplify the notation to advise of flood-related development controls up to the flood planning area (clause 7A(1)) or between the flood planning area and the PMF (clause 7A(2));
  4. two standard instrument local environmental plan (LEP) clauses which introduce flood related development controls (one mandatory, one optional);
  5. a SEPP amendment to replace councils existing flood planning clause with the new mandatory standard instrument clause; and
  6. a revised local planning direction regarding flooding issued under section 9.1 of the Environmental Planning and Assessment Act 1979.

Section 10.7 Planning Certificates

Under Schedule 4: There are new requirements in section 10.7 planning certificates for land affected by flood-related development controls. [...]  READ MORE →