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When does a savings provision apply? Three cases to help navigate savings provision

Savings provisions are commonly found in environmental planning instruments such as Local Environmental Plans (LEP) and State Environmental Planning Policies (SEPP). Usually, their intended effect are to carve out certain types of development applications, usually by reference to the lodgement date, from being determined according to the environmental planning instrument containing the savings provision. Whilst this sounds straightforward at first, it is not always easy to discern when and how savings provisions should apply to a development application. Both councils and developers must carefully interpret savings provisions, as incorrect application of planning instruments could lead to errors in the preparation and assessment of development applications. Today, we look at three common problems in the interpretation of savings provision and how the Courts have addressed them. [...]  READ MORE →

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Personal Information & Data Breaches – Obligations for NSW State and Local Government Entities

The recent data breaches involving Optus and Telstra highlight the potential risks facing businesses and entities that collect and store personal information.

Where entities employ individuals, those entities are required by law to collect and keep various forms of personal information relating to their employees. Such information can include employees’ contact information, health information, banking details, and tax file numbers.

For NSW state public sector and local government entities, the obligations relating to the collection, retention, use and disclosure of personal information are set out in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). [...]  READ MORE →

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NSW Parliamentary Inquiry’s Report on the Response to the Major Flooding Across NSW in 2022

On 9 August 2022, the NSW Select Committee (Committee) released a report following an inquiry (Inquiry) into the response to major flooding across NSW in 2022 (Report).

The Inquiry was set up to consider the NSW Government’s preparedness, coordination, and response to flooding events. The Committee received 87 submissions, 4 supplementary submissions and 119 responses from individual participants to an online questionnaire. The Committee also undertook site visits and conducted public forums for local residents. [...]  READ MORE →

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Overview of the Greater Cities Commission

Established in 2016, the Greater Sydney Commission was initially formed under the (now repealed) Greater Sydney Commission Act 2015 (NSW), its purpose was to act as a central state government agency to assist local and state governments in the collective planning and development of the Greater Sydney Region.

Recent amendments under the Greater Cities Commission Act 2022

With the continuous growth of the population and demand for accessibility, the Greater Cities Commission Act 2022 (NSW) (Act) was introduced to expand the Greater Sydney Region to include three new cities. As such, there are now six cities managed by the new Greater Cities Commission (Commission) as follow:- [1] [...]  READ MORE →

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Who is Responsible for Infrastructure in Flood Prone Land Downstream of Warragamba Dam?

Summary

The floods earlier this year have resulted in many questioning who is responsible for infrastructure being built on flood prone land, and how it can be stopped, given the resulting devastation to homes and business. The Environmental Planning and Assessment Act establishes the framework for provision of Environmental Planning Instruments (‘EPIs’) which set out how land can be used for development purposes by dividing land into different land use types, called ‘zones’ .  The EPI determines what type of developments can occur on different ‘zones’ within each of Councils Local Government Area’s. This includes provision for what can and cannot be built on flood prone land.  There are two different types of EPIs being Local Environmental Plans (‘LEPs’) and State Environment Planning Policies (‘SEPPs’). These, in conjunction with developers building on flood prone land and the unique constraints associated with Warragamba Dam, have contributed flooding in areas within the Hawkesbury Nepean catchments. [...]  READ MORE →

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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 SEPPRepealed SEPP
State Environmental Planning Policy (Planning Systems) 2021State 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) 2021State 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) 2021State 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) 2021State 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) 2021State 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) 2021State 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) 2021State 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) 2021Parts 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) 2021Parts 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) 2021Parts 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) 2021Parts 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 →