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Application Modification

The recent NSW Court of Appeal case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 raises concerns as to the power to modify an existing development consent. The bench included Meagher, Leeming JJA and Chief Judge of the Land and Environment Court Preston CJ.

The case involved an application to modify an underground coal mine in the Hunter Valley. The Court found that the Land and Environment Court judge has erred in joining the objectors and ordered that the joining of the objectors be set aside. [...]  READ MORE →

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Breaches of the Council Model Code of Conduct – A Lesson for Councillors

The NSW Civil and Administrative Tribunal has recently heard a matter in which the Office of Local Government was seeking a determination as to whether the mayor of Inner West Council, Mr Darcy Byrne, had engaged in misconduct as defined in s 440F(1) of the Local Government Act 1993, for failing to comply with an applicable requirement of the Inner West Model Code of Conduct.

By way of background, following approval by Inner West Council to amendments being made a development control plan, a councillor at Inner West Council posted on her Facebook page which referred to her unhappiness in the amendments being approved and commenting that the mayor had been the one pushing for the amendments. In response, another councillor commented on the Facebook post, as well as other individuals. [...]  READ MORE →

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Laws for the Paws

Introduction

The COVID-19 pandemic has changed what we used to consider a “normal” working environment as working from home is now the new status quo. Fortunately, this has allowed many of us to bond with our pets but what happens when our beloved pets get themselves into trouble? And the next question that follows, to what extent can local council officers enter our property to seize our pets?

Powers to entry property under the CAA Ct

In New South Wales, the Companion Animals Act 1998 (NSW) confers large powers upon local councils to regulate the effective and responsible care and management of our little furry companions. [...]  READ MORE →

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Impact of Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 on Local Governments

In December 2020, the Commonwealth parliament passed the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (Foreign Relations Act), which will impose new restrictions on local governments’ autonomy in making certain types of arrangements with foreign entities.

The Foreign Relations Act requires State and Territory statutory bodies, including local governments, to notify the responsible Minister (which is currently the Foreign Minister) before entering into arrangements with foreign public entities. The type of “arrangement” that will trigger compliance with this requirement are extremely wide and include:- any written arrangement; agreement; contracts; understandings; or undertakings, whether legally binding or not. The types of foreign entities with whom arrangements are entered into that will trigger the notification requirement are also very wide, including:- foreign countries; foreign local governments; and certain types of universities. [...]  READ MORE →

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New Practice Note Issued in NSW on Voluntary Planning Agreements

On 12 February 2021, the Planning Secretary issued a new Planning Agreement Practice Note (VPA Practice Note) under clause 25B(2) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations), replacing the Development Contributions – Practice Note – Planning Agreements (Former VPA Practice Note) issued on 19 July 2005. This clause provides guidance on the making, administration and negotiation of VPAs under section 7.4 of the Environmental Planning and Assessment Act (EPA Act). On the same day, the Environmental Planning and Assessment Amendment (Development Contributions) Regulations 2021 (Amendment Regulations) made numerous amendments to the EPA Regulations. [...]  READ MORE →

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Home owners should not underestimate the importance of Council approval!

It’s likely crossed most home owners’ minds:  it might be nice to replace the front fence, or it’s time to upgrade to a bigger backyard garden shed. But before home owners get too excited, it’s crucial that any plans for any kind of development are submitted to the local Council. Omitting this step could result in not only a potential fine and conviction, but the demolition of that dream development.

Why do Home Owners need Council approval?

Home owners sitting on their deck admiring the view should be thankful that there are no high rise developments in their line of sight and for that they can thank their Council’s Local Environment Plan. Each Council’s Local Environment Plan sets out what each parcel of land in a suburb and community is zoned as and therefore what can or cannot be built there. So in a residential area, it may be prohibited for buildings taller than two stories to be built, or for a rubbish dump to be next to a child’s primary school. But these same regulations also limit what a home owner can and cannot do with their own land, from what kinds of home businesses they can run, to what kind of additions, renovations and developments can be constructed as well as what kinds of development require consent. [...]  READ MORE →

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Overlapping responsibilities in Condition of consents for music festivals

The entertainment and live music industry has undoubtedly taken the biggest hit by the coronavirus pandemic. To grapple with the economic fallout, the Federal Government announced a $250 million targeted package to help restart the creative, entertainment, arts and screen sectors.

As event organisers slowly formulate management plans, local councils will undoubtedly play a significant role to consult with other agencies to ensure a COVID-safe environment. The following case of NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 is relevant as it demonstrates the complexities of having a condition of consent that involves multiple local agencies. [...]  READ MORE →

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Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50

The Court of Appeal recently considered and upheld a judicial review decision, Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2019] NSWLEC 117 (“Universal  1”). As a result, we now have a unanimous decision from the Court of Appeal of NSW that the statutory requirements found in Schedule 5 of the Environmental Planning and Assessment Act 1979 to afford procedural fairness to a recipient of a section 9.34 Notice are sufficient to exclude any remaining common law rights.

Universal 1 was a decision made by Justice Biscoe in the Class 4 jurisdiction of the Land and Environment Court, in relation to the validity of a Development Control Order No. 10, Restore Works Order issued under section 9.34 and 9.35 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (‘the Act’). [...]  READ MORE →

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Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

The above case in the Land and Environment Court reminds us of the crucial role that investigators of a Public Authority, such as Council Officers, play in upholding the foundational principles and goals of the Environmental Planning and Assessment Act 1979. The carrying out of development without consent or not in accordance with the consent undermines the objects of the Act, and Council Officers are usually the ones who bring this conduct to the attention of the Court.

 “People need to be aware that the offence of carrying out development not in accordance with development consent is a crime, that offenders will be prosecuted and that the Court will impose significant penalties on offenders”  Chief Justice Preston [...]  READ MORE →

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Clarity Regarding Council Entry to a Residential Premise

The recent decision of the Land and Environment Court in Bobolas v Waverly Council (No 2) [2020], the latest instalment of cases between Bobolas and Waverly Council (‘Council’), provides clarity as to the powers of entry possessed by councils onto residential land. This decision considered an application for judicial review challenging a section 22A order issued by Council is accordance to section 124 of the Local Government Act 1993 (NSW) (‘the Act’).

The order sought by Council on 29 January 2020 was to remove waste and refrain from collecting further waste at the property by 26 February 2020. Pursuant to section 124 of the Act, a section 22A order enables council to issue such an order ‘to remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises’ if ‘the waste is causing or is likely to cause a threat to public health or the health of any individual’. [...]  READ MORE →

Simone Brew
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Simone Brew appointed Managing Director of Matthews Folbigg Lawyers

1 September 2020

Matthews Folbigg Lawyers is delighted to announce the appointment of our new Managing Director, Simone Brew. Simone is the head of the firm’s Litigation, Planning and Local Government groups.

Matthews Folbigg Lawyers is the premier medium sized firm in Western Sydney, based in Parramatta, with 8 practice groups and over 60 lawyers and legal service professionals. This is the first time in the firm’s 60 year history that the firm has had a female Managing Director. Even more notably the firm is owned 50% by our experienced female lawyers. [...]  READ MORE →

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Difficulties due to COVID-19 not an excuse to vacate a hearing date

A recent decision in the Land and Environment Court to set aside a Registrar’s order that a three-day hearing be set aside substantially due to the difficulties associated with the COVID-19 pandemic has shown the Court’s willingness to facilitate the continuation of hearings, where appropriate, despite the difficulties associated with virtual hearings.

In DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31, during a general call over of all matters pursuant to the Court’s adoption of the COVID-19 Pandemic Arrangements Policy, the solicitor for the City of Parramatta Council sought an order that the hearing the subject of the Class 1 Appeal, scheduled to take place in May 2020, be vacated. [...]  READ MORE →