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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.

One of the key provisions in the CAA Act is section 69A Powers of authorised officers to enter property, which allows an authorised officer to:

  • enter any property to seize or secure any companion animal, or
  • determine whether there has been compliance with, or contravention of the Companion Act or the Companion Regulations.
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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.

Under section 34 of the Foreign Relations Act, a local government must notify the Foreign Minister when it proposes to enter into an arrangement with a foreign entity. The Foreign Minister may then, under sections 35 and 36, make a binding declaration that the local government must not enter into the notified arrangement if the Foreign Minister is satisfied that the arrangement would adversely affect, or would be likely to adverse affect, Australia’s foreign relations, or would be, or would be likely to be, inconsistent with Australia’s foreign policy.
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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.

VPA Practice Note Differences to Former VPA Practice Note

The VPA Practice Note contains numerous differences from the Former VPA Practice Note; most notably:

  • Providing specific guidance on offers to enter into VPAs,
  • Providing specific guidance on developer’s obligations under a VPA through security for enforcement,
  • Providing specific guidance on VPA registration,
  • Providing specific guidance on re-notifications of draft VPAs where material changes are made post-public notice,
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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.
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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

Introduction

It may seem strange to some people that in today’s day and age where there are large scale campaigns to encourage more recycling by everyone, that an actual recycling plant should be penalized for recycling more than it is lawfully allowed to do on the site. However, the Land and Environment Court made such a decision recently in relation to an offence by a large recycling company operating in Wollongong.
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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.

Chairman of Matthews Folbigg Lawyers, Jeff Brown said “Matthews Folbigg is delighted to announce Simone’s appointment as Managing Director. She has been an integral part of the firm’s Executive group for many years and in particular has been instrumental in leading the firm’s response to the COVID-19 pandemic. This is just one example of the strengths that make her qualified to lead our firm into the future”.
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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.

The hearing was scheduled to be heard before Acting Commissioner Bindon, who had, as part of the section 34 process, attended the subject site and heard submissions from nearby residents. Council argued that the hearing should be vacated as it was necessary for all relevant parties to attend the site as part of the hearing, which would be difficult in the current climate. Further, Council had only recently retained a planning expert who had not yet attended the site, and was unwilling to go the site due to COVID-19. Despite submissions from the developer as to the prejudice to the developer if the hearing was vacated, and a submission that the matter should proceed by way of audio-visual link due to the fact that Acting Commissioner Bindon had already attended the site and heard from residents, the Registrar ultimately made the decision to vacate the hearing date.
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State Government Regulations: Public Meeting and Hearing Restrictions

With restrictions on physical interaction during the COVID-19 pandemic, the State Government has implemented the Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020 (COVID Regulation). The COVID Regulation which was put into action on 25 March 2020 requires the holding of public meetings and public hearings by planning bodies to be held through electronic means. These include:

  1. By way of audio link or audio visual link; and
  2. In a means that permits it to be heard or viewed electronically by members of the public whilst the meeting or hearing is being held.

The COVID Regulation applies to:

  • Local planning panels;
  • Regional planning panels;
  • District planning panels;
  • The Independent Planning Commission;
  • Any other panels established by the Planning Secretary or Minister under section 2.3 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Such meetings or hearings must be held live and available to the public, and thus is not permitted to record the meeting or hearing and subsequently make the recording publicly available. Under clause 294(6) of the EPA Regulation, a person who is required to attend the public hearing or meeting satisfies the requirement by participating by way of audio or audio visual input, in contrast to attending in person.
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