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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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Prefabricated Buildings Pty Ltd v Bathurst Regional Council (No.2) [2017] NSWLEC 111

Background

On 24 April 2017 judgment was delivered in Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44 dismissing a Class 3 application brought by Prefabricated Buildings Pty Ltd (‘Prefabricated Buildings’) appealing against a rates notice issued by Bathurst Regional Council (‘Council’). The appeal was brought pursuant to s 574(1) of the Local Government Act 1993 (NSW) (‘Act’) and related to an annual rates notice issued for water and sewerage services.

A summary of that case by our Local Government specialists can be found here.

Council’s Notice of Motion for costs

On 10 May 2017, Council filed a Notice of Motion seeking an order that Prefabricated pay its costs in the proceedings, including the costs of the Motion. The case of Prefabricated Buildings Pty Ltd v Bathurst Regional Council (No.2) [2017] NSWLEC 111 deals with this Motion.

At the Motion, Robson J considered at whether a departure from the presumptive rule that each party bears its own costs is warranted and whether it is fair and reasonable in the circumstances to award costs. He looked at whether the applicant acted unreasonably and whether proceedings were solely centred on a question of law.
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Recent changes to the planning principles in relation to brothel

Background

On the 31 March 2017, the NSW Land and Environment Court dismissed an appeal to modify the hours of operation for an existing brothel in Liverpool and revised the planning principle of Martyn v Hornsby Shire Council [2004] NSWLEC 614.

Land and Environment Court Facts

The applicant sought to modify a condition of a development consent granted by the Liverpool City Council (the Council) in 1998. This modification would have extended the operating hours of the brothel.

The Council refused the application on the basis that the proposed “extended hours are not compatible with surrounding areas”, and “would give rise to unacceptable social impacts in the immediate locality”. Furthermore, the applicant “has not demonstrated a satisfactory justification for the proposed extended hours”.

Residents, objectors and other commercial operators in the area provided evidence in opposition of the extended hours.

Land and Environment Court Decision

The brothel was located in a B3 Commercial Core Zone under the Liverpool Local Environmental Plan 2008 (LEP 2008). Its use was characterised as a ‘sex services premises’, which was prohibited.
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Can Council charge for services based on availability of services and actual use of services?

Background

On the 27 February 2017, the NSW Land and Environment Court dismissed an appeal of the applicant seeking to invalidate the Rates and Charges notices issued by a respondent council – Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44.

Facts

The matter concerned water availability charges and sewerage access charges (Availability Charges) being levied by Bathurst Regional Council (the Council) against the Premises which were owned by the applicant. Council had levied the Availability Charges against the Premises since 2004 under the authority of s 501 of the Act, and such charges had been paid by the applicant. Council also issued separate water usage charges and sewer usage charges (the Notices) under s 502 of the Act every three months in arrears, The applicant specifically challenged the validity of the Notices under s 574(1) of the Local Government Act 1993 (NSW) (the Act) on the basis that Council was only able to charge for water services and sewerage service according to the actual use of the service and had no power to make the Availability Charges, which were imposed independently of actual use.
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