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Potential Changes to NSW Aboriginal Planning Rules through the Aboriginal Land SEPP

New South Wales in the near future could potentially require consideration for ‘development delivery plans’ (‘DPP’) for development applications under land owned by Local Aboriginal Land Councils (‘LALCs’). The State Environmental Planning Policy (Aboriginal Land) 2019 (“SEPP”) brought into force on 6 February 2019 currently applies to certain mapped lands owned by the Darkinjung Local Aboriginal Land Council. However, the plan anticipates a review 12 months post commencement to consider extensions to include Darkinjung land; and potential extension to include further LALCs across NSW. [...]  READ MORE →

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Removal of Shrubs to Prevent Consents from Lapsing

The Court of Appeal (Court) in recent judgment of Cardo Management and Maintenance Pty Ltd v Cumberland Council [2019] has established an easier criteria to prevent a lapse of consent, assisting developers and landowners in protecting their development rights. Section 4.53 of the Environmental Planning and Assessment Act 1979 (Act) stipulates that a development consent for the erection of a building, subdivision of land or the carrying out of work will lapse if no physical commencement of the development occurs after 5 years. [...]  READ MORE →

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Beyond the Usual Argy Bargy – How Repeated Amendments to Class 1 Appeal Application Can Lead to General Costs Order

In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3) [2018] NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –

  • the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;
  • the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and
  • the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.

 Background

In Statewide Planning, the developer commenced the Class 1 appeal on 21 September 2015 after its development application was deemed refused by Council. Due to multiple and serious deficiencies with the development application, the developer amended the application 11 times before the hearing, which led to a domino effect of delayed expert’s reports and adjournments of proceedings. Worse, the developer had failed to seek leave from the Court before amending the application on multiple occasions. [...]  READ MORE →

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Torrens Title Lot – What defines ‘land’?

Two decisions of the Land and Environment Court have recently considered what defines ‘land’ on which a heritage item is situated, and what defines the ‘land’ on which an extractive industry was being carried out. Both cases are a timely reminder that Courts will not consider ‘land’ by reference to just their Torrens title lot, but also consider the scope and purpose of any relevant statutory provisions involved in the determination of the DA.

‘Land’ involving heritage items – Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179  [...]  READ MORE →

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Changes to Short–Terms Rental Accommodations – Is the Holiday Over?

The Department of Planning and Environment is currently in the process to introduce state-wide planning framework for Short-Term Rental Accommodation (STRA) following reforms provided to the Fair Trading Act 1987 (NSW) and Strata Schemes Management Act 2015 (NSW) at the end of 2018.

The changes proposed are as a result of the ever growing easily accessible holiday rental market whereby STRA in New South Wales initially compromised of a voluntary Code of Conduct – Holiday Rental Code of Conduct – originally adopted in 2012. [...]  READ MORE →

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Compulsory changes to NSW Parking Fines – 10 Minute Grace Period

Starting 31 January 2019, amendments to section 123C of the Road Transport (General) Regulation 2013 were introduced by Road Transport (General) Amendment (Parking Fine Flexibility and Grace Period) Regulation 2018 which states that Councils will now be required to implement a regulated 10 minute grace period for certain paid parking offences that have a duration of more than one hour. These changes will affect all parking fine issuing authorities including NSW government agencies, Local Councils and Universities. These changes are compulsory and are not related to the recent NSW governments ‘opt in’ provisions to reduce the amount of parking fines. [...]  READ MORE →

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Section 34 Conciliation Conferences – Requirement for Reasons

A recent development consented to by a Commissioner of the Land and Environment Court during a Court mandated section 34 conference has been set aside by the Court of Appeal due to the fact that the Commissioner failed to give proper and adequate reasons for their decision. The Commissioner further failed to give proper reasons with respect to her satisfaction as to the legal perquisites to their power to grant the consent.

Huajun Investments Pty Ltd filed a class 1 appeal against City of Canada Bay Council’s deemed refusal of their DA which sough to demolish pre-existing structures on the DA site and replace it with an 8 storey-residential flat building. [...]  READ MORE →

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Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018

On 24 October 2018, the New South Wales upper house introduced the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (the Bill) with the stated aim of ‘[making] clearer the Government is serious about protecting the environment of New South Wales and the health of its citizen’, as well as ‘provide greater deterrence against illegal dumping of asbestos waste’.

The current laws on illegal dumping, transporting, and recycling of asbestos waste

The current version of the Protection of the Environment Operations Act 1997 (NSW) (the Act) provides for prohibitions against unauthorised dumping and receiving of waste in general [Ss 143 & 144, of the Act]. This general prohibition is complimented by asbestos-related provisions within the Protection of the Environment Operations (Waste) Regulations 2014 (NSW) (Waste Regulations), which detail the requirements for handling of asbestos waste. For example, the Waste Regulations requires the person delivering the asbestos waste to notify the owner of the landfill that will be receiving the asbestos waste [Clause 80(2), Waste Regulations], the occupier of the landfill site to cover up the disposed asbestos waste in certain manners [Clause 80(4), Ibid], the transportation of asbestos waste to follow certain regulatory requirements, including securing the asbestos materials securely during transport [Clause 78, Ibid] and wetting down the waste if the asbestos materials are contained soil [Clause 78(d), Ibid]. The Waste Regulations also expressly bans recycling and reusing asbestos materials [Clause 81, Ibid]. [...]  READ MORE →

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Inland Code: Simplifying development approval in Regional Code

The NSW Department of Planning & Environment has recently announced new legislation aimed to simplify and speed up the approval process for homes, home renovations and farm buildings in regional NSW. The Inland Code commences on 1 January 2019, with its major purpose to simplify the complying and exempt development rules in residential and rural areas of regional NSW. The rules and regulations with respect to complying and exempt development are going to be consolidated into the Inland Code, which will then form part of 3D of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.  [...]  READ MORE →

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Is the need for a neutral or better outcome a requirement for success with respect to clause 4.6?

In a recent decision in the Land and Environment Court (LEC), the Court has given further clarification to the type of consideration that needs to be given to clause 4.6 of the standard instrument LEP.

The significant decision was given in the case Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where Preston CJ clarified the appropriate approach to the consideration of clause 4.6. The importance of this judgment is that a clause 4.6 submission does not require developments which do not comply with the applicable development standard to have a neutral or better environmental planning outcome than a development that does not. [...]  READ MORE →

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Deferred Commencement Consents

On 21 June 2018, the Land and Environment Court of NSW handed down a decision which reinforced the importance of time limits on deferred commencement conditions.

The decision of Commissioner Preston in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 found that the Court had no jurisdiction to grant the appeal on its merits regardless of whether the evidence submitted as part of the deferred commencement condition was satisfactory given the fact that Consent had lapsed.

Background

On 17 August 2016 the Applicant appealed against Council’s refusal of an application for development consent (Consent). Commissioner Fakes upheld this appeal and granted development consent subject to a deferred commencement condition which required the Applicant to submit to Council for approval a Flood Emergency Response Plan (‘FERP’) by 17 August 2017. [...]  READ MORE →

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Sentencing Principles for Water Pollution Offences

BACKGROUND

On 7 and 8 March 2018, judgment was delivered in Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 (Ardent) to impose a fine totalling $157,950 on Ardent Leisure Ltd (AL) for polluting Sydney Harbour after approximately 6000L of diesel fuel escaped into the waters from a fuel storage system at Rushcutters Bay marina.

AL was convicted with the following offences and penalty imposed:

  1. Section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for the pollution of waters in Rushcutters Bay (Water Pollution Offence) – Penalty $135,000.00;
  2. Clause 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) (UPSS Regulation) in relation to Ardent’s failure to include current ‘as-built’ drawing for the fuel storage system (UPSS Regulation Offence) – Penalty $22,950.00

A publication order for a notice of the offences was also made for the purposes of improving the effectiveness of general deterrence. [...]  READ MORE →