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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
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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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Requests pursuant to GIPA Act

A recent Civil and Administrative Tribunal decision has upheld a local council’s decision to refuse an individual’s request for documents pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act).

A resident and ratepayer (“the applicant”) who resides in the local government area of the Sutherland Shire Council, made a request pursuant to the GIPA Act for documents relating to Council’s stormwater management investigation in respect of a stormwater issue on/near the applicant’s property, including information on who had directed Council’s officers, and who drafted responses on behalf of Council officers. In particular, the applicant sought the following records relevant to this decision:

  1. I request a record of the written report of the ‘visit’ by the relevant officer/s (ref:8/1/19), CR18-301708 Mr Barber’s email 5/12/18, para 3)
  2. Should no record exist for the ‘visit’ in Item 7, then I request the record supporting Mr Barber’s conclusion: there was no ‘problematic overland flow.’

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Builders Beware – The Importance of Council Approval

A recent Land and Environment Court Case highlights the importance of obtaining Council approval before spending time and incurring costs in constructing a secondary dwelling on a property.

The case of Sutherland Shire Council v Perdikaris [2019] NSWLEC 149 tells the tale of a man named Mr Perdikaris who made the decision to build a new shed on his property in Menai, to replace a small garage which was not suitable for his needs.

He started by seeking Council approval, which was granted, for the building of a driveway. This application did not contain any reference to the construction of a garage. Mr Perdikaris then sought quotes for a garage. During this process, he received advice from various companies that he did not necessarily need approval for a new garage. Mr Perdikaris also assumed that as there had already been approval for the previous, smaller garage, it would not be necessary to seek approval for a larger garage, in circumstances where the larger garage kept the same distance from the neighbours fence as the smaller garage had.
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Part 6 of the Environmental Planning and Assessment Act is Finally Coming into Effect (Hopefully)!

On 30 August 2019, the NSW government introduced the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW). With this, Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is likely to finally come into effect on 1 December 2019, bringing significant changes to the building approval and certification regimes in NSW.

Background

Part 6 of the EPA Act was inserted into the EPA Act as part of the major reform package introduced by the Environmental Planning and Assessment Amendment Act 2017 (NSW). With the exception of the sections relating to the Building Information Certificate, Part 6 did not immediately commence with most of the reform package. Instead, its commencement was delayed several times to enable industry to make the transition.

Introduced by the state government as a part of its response to the report on the building certification regime in NSW by former state treasury secretary Michael Lambert (the Lambert Report), Part 6 of the EPA consolidated all provisions relating to building certification – which was previously found at various parts of the EPA Act – into a one single part within the EPA Act. Further, Part 6 will make the following substantive changes:
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An Ethical Issue Expert Witness Opinions

The recent case of DeBattista v Minister for Planning and Environment [2019] NSWCA 237 highlights the importance for an expert witness to provide a report that reflects their own opinion unless stated otherwise.

In this case, Council engaged with an external Urban Design Consultant (Consultant) to comment on a planning proposal. After Council requested significant changes to the first and second draft reports, the Consultant provided a third and final version adopting such changes. The contention was that the final version of the report failed to identify the adopted comments from Council and thus was prima facie the Consultant’s prepared report based on their own opinion.

His Honour divulged the greater pressure asserted on the Consultant by Council noting that the terms of the professional’s retainer were that it would not be paid if Council was dissatisfied with the opinion provided. His Honour further stated that:

“No professional should assent to such a term. No ethical client should demand it”
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