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Development Control Orders: Validity Matters More Than Ever

A recent decision by the NSW Land and Environment Court in Kingfisher Properties Pty Ltd v Northern Beaches Council [2025] NSWLEC 39 (Kingfisher Case) is a timely reminder that development control orders (DCO) must adhere to statutory requirements.

In this case, the Court reduced a $100,000 penalty to just $9,000 after finding that the DCO issued went beyond the powers permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

Background

Kingfisher Properties Pty Ltd (Kingfisher) was a company that built a carport without obtaining the necessary development consent for the construction. Northern Beaches Council (Council) issued a DCO requiring Kingfisher to remove the carport. Initially, this was done via a Compliance Order under item 11, part 1 of Schedule 5 of the EP&A Act. However, a Compliance Order can only be used when a planning approval exists but has not been complied with. Given there was no planning approval in this instance this was not the appropriate order to issue. [...]  READ MORE →

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New Proposed ‘Housing and Productivity Contribution Scheme Works-in-Kind Guideline’

On 1 October 2023, the NSW Government introduced the Housing and Productivity Contribution Scheme (HPCS), which enables the NSW Government to collect housing and productivity contributions from residential, commercial, and industrial developments to fund state and regional infrastructure within the following regions:

  • Central Coast
  • Greater Sydney
  • Illawarra-Shoalhaven
  • Lower Hunter

Under Part 3 of the Environmental Planning and Assessment (Housing and Productivity Contributions) Order 2024 (HPC Order), housing and productivity contributions are ordinarily made as monetary contributions. However, clause 18(2) permits developers, by agreement with the Minister, to dedicate land or carry out capital works (or both) for regional infrastructure (Works-in-Kind), in whole or in part, as an alternative to meeting their monetary contributions. [...]  READ MORE →

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Low and Mid Rise Housing Policy Reforms – Phase 2 Begins

The next stage of housing reform is officially underway. Phase 2 of the Low and Mid Rise Housing Reform commenced on 28 February 2025, introducing significant changes that will affect residential development across the region. In this article, we outline the key updates, their implications, and how to navigate the evolving planning landscape.

 What is Low and Mid-Rise Housing Policy Reforms?

The first stage of the Low and Mid-Rise Housing Policy (Policy), which took effect on 1 July 2024, introduced key amendments to the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). These initial changes permitted dual occupancies and semi-detached dwellings within the R2 Low Density Residential zone across all of New South Wales. [...]  READ MORE →

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A concept development application, what is it?

What is a Concept Development Application (‘Concept DA’)?

A Concept DA is a type of development application that sets out a proposal at a conceptual level. The Concept DA outlines a proposal that will be the subject of one or more subsequent development applications and may relate to the entire site or just a part of it.

A Concept DA must include a description of the proposed future development. It may also include  more detailed plans for the first stage of the development. If the Concept DA is approved, it permits certain development works to commence without the need for further consent. This is in accordance with s 4.22(1) and (2) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’). The developer can then commence work on the initial stage, while submitting a more detailed development application for the remaining stages, consistent with the approved Concept DA. [...]  READ MORE →

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New Approval Pathway for Major Residential Housing Projects: The Housing Development Authority

In a push to boost housing supply and affordability in accordance with the National Housing Accord, the NSW Government has introduced the Environmental Planning and Assessment (Housing Delivery Authority) Order 2024 (‘HDA Order’). The HDA Order has established the Housing Development Authority (‘HDA’) which will lead a streamlined State Significant Development (‘SSD’) approval pathway for major residential development projects, allowing new homes to be delivered more quickly to the community. [...]  READ MORE →

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Court of Appeal overturns LEC decision and provides clarity as to “public purpose” in compulsory acquisitions

The recent NSW Court of Appeal Judgment of Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292 has overturned the decision of the Land and Environment Court (“LEC”), providing clarity as to the principles of ‘public purpose’ under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) relating to the valuation of land in compulsory acquisitions by government authorities.

Background Summary

  1. On 19 March 2021, Transport for NSW (“TfNSW”) issued a proposed acquisition notice to acquire a part of 31.79 hectares of land located at 777-819 Luddenham Road, Luddenham (“the Land”) that Goldmate had purchased in November 2020 for $33,056,500. The purpose of the acquisition was to facilitate in the construction of the M12, being a part of the Western Sydney Infrastructure Plan (“WSIP”) and linked to the construct the Western Sydney Airport (“WSA”). Relevant areas around the WSA were rezoned from RU2 to EUT pursuant to the State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 (“Aerotropolis SEPP”), including the Land.
  1. On 30 June 2021, TfNSW acquired 14.66 hectares of the Land (“Acquired Land”) under the Roads Act 1993 (NSW) (Roads Act) to facilitate the construction of the M12 motorway.
  1. The primary issue in dispute was whether the public purpose had caused the change in zoning from RU2 to ENT and a subsequent increase in market value.
  1. The market valuation of the parties and Valuer General was as follows:
Valuer General’s determinationGoldmateTfNSW
Market Value$0$55,437,200$4,000,200
Disturbance$160,116.58$199,527.59$167,979.78
Total$160,111.58$55,636,727.59$4,168,179.78

 

Land and Environment Court Proceedings [...]  READ MORE →

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Case Review: Sydney Metro v G & J Drivas Pty Ltd [2024] 113 NSWCA 5

Understanding the Impact of Compulsory Acquisition on Market Value

The recent decision in Sydney Metro v G & J Drivas Pty Ltd [2024] 113 NSWCA 5 (Drivas) provides critical clarity on how compulsory acquisition affects the market valuation of land under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act). This case focuses on whether the market value of land should include the value of a hypothetical development that was halted due to the prospect of acquisition. The ruling of the Court of Appeal, now upheld after the High Court declined special leave to appeal, reaffirms the principle of just compensation and sets clear limits for claims related to hypothetical development costs. [...]  READ MORE →

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Achieving Accountability: Special Executive Liability Provisions Extended to Council Executives

The recent case of Environment Protection Authority v McMurray [2024] NSWCCA 160 (McMurray) highlights how council executives and those involved in council management can be held accountable under laws attracting special executive liability.

The central issue in the case was the legal status of a council and whether its executives, such as the General Manager, could be prosecuted under section s 169(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Section 169(1) of the POEO Act holds individuals involved in the management of a corporation liable if the corporation is found to have contravened certain provisions of the Act. [...]  READ MORE →

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Payment of Lodgement Fee is Essential for Making a Development Application – Lessons from Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

In Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 (Hinkler), the Court of Appeal confirmed the long-standing principle that development applications are not “made” until the lodgement fees for the applications have been paid. This case addressed the applicability of a savings provision under the State Environmental Planning Policy (Housing) 2021, emphasising the distinction between submitting and completing a DA under the Environmental Planning and Assessment regulation. For this reason, it is crucial that applicants are aware of their responsibilities in regard to development applications. [...]  READ MORE →

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The Introduction of Transport Oriented Development to the State Environmental Planning Policy (Housing) 2021

In December 2023 the NSW Government announced the introduction of the Transport Oriented Development (TOD) program to increase housing supply and density near the existing and planned transport hubs. Later in April of 2024, the TOD initiative culminated to the making of  theState Environmental Planning Policy (Housing) Amendment (Transport Oriented Development) 2024 (TOD SEPP), with the NSW Minister for Planning and Public Spaces announcing its arrival. This then commenced on 13 May 2024 by way of creation of a Chapter 5 in the  State Environmental Planning Policy (Housing) 2021 (Housing SEPP). [...]  READ MORE →

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Proposed Reforms for Low and Medium Density Housing

In December 2023, the NSW Department of Planning and Environment released its “Explanation of Intended Effect” (EoE) for proposed low and mid-rise housing reforms, aiming to address the housing crisis by enabling increased residential development in urban areas near transports and town centres. The reforms will propose significant changes to house permissibility, development controls and landscape regulations with public exhibition concluding in February 2024.

The housing crisis is a major concern for many individuals with an extensive shortfall of dwellings. The EoE is attempting to address this by by supplying new housing in existing urban areas (known as “infill development”), to facilitate low and mid-rise housing “near established town centres, and in areas where there is good public transport”. The proposed reforms look to expand the permissibility and development controls for certain forms of residential developments. Notably, the proposed reform would expand the permissibility of residential developments by: [...]  READ MORE →

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Limits to the power to amend undetermined development applications during Class 1 appeal proceedings before the Land and Environment Court (LEC)

Summary: The LEC has recently found that the proposed amendments to a development application on appeal were outside the power to amend, and in accordance with s 4.19 of the Environmental Planning and Assessment Act (EPA Act), and the substantive use as sought in the original development application submitted to Council is limited to the use as sought in the Class 1 Application.

Facts: In the matter of Reid v Woollahra Municipal Council [2023] NSWLEC 1611, the applicants sought leave to amend their development application (DA) to rely on amended plans and documents. The respondent, Woollahra Municipal Council (Council) opposed the application for leave to amend. The substantive proceedings were brought pursuant to ss 8.7 and 8.11 of the EPA Act against Council’s deemed refusal of a DA, which originally sought consent for demolition of an existing attached dual occupancy and construction of a new attached dual occupancy. The amended plans and documents sought a change to the erection and use of the development from an attached dual occupancy to a single dwelling. [...]  READ MORE →