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No ‘Character of the Local Area’ in diverse neighbourhoods

Under clause 16A of the State Environmental Planning Policy (Affordable Rental Housing) 2009, a consent authority must not consent to a development if the design is incompatible with the character of the local area.

In the recent decision of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden), clause 16A played a prominent role in Commissioner Gray’s judgement. In that case, the Council had refused the development, inter alia, because the development’s design did not match the local aesthetic. The Council relied on the argument that the setbacks and design of the proposal were inconsistent with other residential flat buildings in the local area.

However, Commissioner Gray rejected this argument in favour of the Applicant’s reliance on Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture). There, Roseth SC stated [at 22]: Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
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Case Note: Port Macquarie-Hastings Council v Mansfield

In the recent decision of Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (Mansfield), the NSW Court of Criminal Appeal overturned an earlier decision of the Land and Environment Court in relation to the power of councils to compel production of documents under the former section 119J (now section 9.22) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

Background

Mr Mansfield was accused of carrying out a development that was prohibited under the Local Environmental Plan. After some investigations and before the commencement of the criminal proceedings, Council’s investigation officer, Craig Henderson, issued a number of notices under section 119J (now section 9.22) of the EPA Act. From the documents produced under those notices, Council learned two companies may have further documents relating to the alleged offence and issued a subpoena to each of the two companies after criminal prosecution had commenced.

Mr Mansfield challenged the validity of the two subpoenas in the Land and Environment Court, primarily on the basis that Council must not rely on the information gathered from section 119J notices to issue the subpoena because the section 119J notices were not validly issued in the first place.
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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.

What this means for you?

  1. Councils should ensure that their authorised issuing staff are made aware of these changes when issuing parking fines from 31 January 2019.
  2. Councils are encouraged to update any relevant manuals, procedures and systems that are involved with respect to parking fines.

Conditions for 10 minute grace period:

Councils are only required to enforce the 10 minute grace period if the following parking conditions are met:
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Key Amendments to the Environmental Planning and Assessment Act

On 1 March 2018, the Environmental Planning & Assessment Act 1979 (the Act) underwent its largest and most significant change since it commenced in 1979. Many of the changes are expected to be implemented throughout 2018 with further amendments being rolled out over the course of the next two years.

The NSW Government has stated that the amendments provide “an updated, modern planning system that is simpler, faster and designed to ensure high quality decision and planning outcomes for the people of NSW”. The Bill was before NSW Parliament last year and was the subject of much parliamentary debate. The Bill was ultimately assented to on 23 November 2017.

Below is an outline of some of the key amendments made that will have a significant impact on local councils:

Amendments to the EPA Act Structure

One of the more noticeable reforms is the structural amendments that have been made to the Act. The former sections have been removed and replaced with 10 principal parts with decimal numbering of all provisions. Certain provisions have also been relocated as well as updates to the objects of the Act.
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Tree dispute principle for claims for structural damage to property caused by a tree

Fang v Li & Anor [2017] NSWLEC 1503

Background

On 19 September 2017, judgment was delivered in Fang v Li & Anor [2017] NSWLEC 1503 to remove two trees pursuant to s7 of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (‘Trees Act’) and established a new tree dispute principle for claims for structural damage to property caused by a tree.

The applicant’s application encompassed the following:

  • removal of a Tulip Tree which he claimed had damaged his property and would cause further damage if not removed and repair costs to his property caused by the Tulip Tree;
  • pruning of a Turpentine Tree which he claimed was likely to cause injury to people on his property.

Judgment

The Court ordered that both the Tulip and Turpentine Trees be removed for the following reasons:

Turpentine Tree

  • The Court found that adequate pruning of the Turpentine tree would remove so much of the crown that the tree would no longer be viable. As such, it was likely to cause injury in the near future and therefore must be removed.
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Court Invalidates Minister’s Decision

On 30 July 2016, the Minister for Heritage (Minister) made a decision not to direct that the Sirius Apartment Building (Sirius) at Millers Point, Sydney be listed on the State Heritage Register. This decision was made despite a recommendation from the Heritage Council of New South Wales (Heritage Council) that Sirius be listed on the Register.

Sirius was built in the 1980s and since then has become a well-known and significant building in Sydney. It has been used predominantly as social housing up until the NSW Government announced in March 2014 that it intends to sell Sirius and then re-invest the proceeds of sale into social housing across the state.

Minister’s Determination

On 14 March 2016, the Heritage Council made its recommendation that it be listed on the Register under section 33 of the Heritage Act 1977 (NSW) (the Act). Once the Heritage Council makes a recommendation, the Minister can direct listing on the Register in accordance with section 32 of the Act.
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Enforcing Environmental Laws in the Land and Environment Court

The Land and Environment Court operates in a specialist jurisdiction dealing with cases that relate to mining, planning, the environment, local government and development. The Land and Environment Court was established by legislation and can only deal with matters that fall within its jurisdiction.

Civil Enforcement

Most environmental proceedings within NSW can be enforced through civil proceedings in the courts, particularly the Land and Environment Court where there is an alleged breach of an environmental law.

Civil action in the courts can be used to obtain court orders to prevent environmental harm from occurring which is beneficial as often in criminal proceedings, legal action is reactive and taken after harm has already been caused. For example an injunction can be sought in the Land and Environment Court to prevent an incident that would cause environmental harm.

Examples of actions that may be undertaken in the Land and Environment Court include:

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Mandatory Local Planning Panels

The New South Wales Government on 10 August 2017 passed the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017 (Bill). The Bill was assented to by the Governor on 14 August 2017 and will have immediate effect. The most notable part of the Bill is that it will require all Council’s in the Greater Sydney and Wollongong regions to have a local planning panel. The intention of the Bill was described by Planning and Housing Minister, Anthony Roberts to bring “transparency, integrity and a high degree of probity” to the development application process.

Function of the Local Planning Panels

Local Planning Panels are to be constituted by any Council that is within the Greater Sydney Region and the City of Wollongong before 1 March 2018. The function of these panels will be to carry out the consent authority functions of the Council in relation to development under Part 4 of the Environmental Planning and Assessment Act 1979 in specific circumstances.
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