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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 determination Goldmate TfNSW
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 →

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An Overhaul of the Taxation Scheme: Developments for Developers

In July 2023, the NSW parliament passed the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 (NSW)which introduces Housing and Productivity Contribution (HPC). HPC replaces the previous Special Infrastructure Contribution (SIC) scheme and applies a more consistent contribution framework over a much wider area, including the entire Local Government Areas located in:

  • the Greater Sydney region;
  • the Illawarra-Shoalhaven region;
  • the Lower Hunter region; and
  • the Central Coast region.

The HPC will apply from 1 October 2023, except in relation to land within the Western Sydney Growth Areas and Western Sydney Aerotropolis SIC areas (to transition to the HPC regime by 2026). [...]  READ MORE →

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How do I object to a Development Application?

Who can make an objection to a DA and what is in an objection?

When a development application (DA) is lodged on the NSW Planning Panel, nearby property owners and any concurrent authorities are notified, so that they are aware of the DA and have opportunities to make submissions. Council’s own policy, council’s development control plan, and the local environmental plan provide guidance as to who is notified of such a DA. The property owners within the vicinity of the proposed DA, and/or anyone who has a submission to make, may provide one of the following responses: [...]  READ MORE →

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State-wide Standard Conditions of Consent and Notices of Determination Now in Use

On 30 June 2023, the Department of Planning’s requirement for planning authorities to adopt standardised conditions of consent and notices of determination came into effect. This requirement affects all councils and planning authorities when they are granting development consents via the Planning Portal.

The Department has published a manual containing about 40 conditions of consent and made standard notices of determination templates for 11 types of determination, including standard approval subject to conditions of consent, deferred commencement consent, and refusal of consent. [...]  READ MORE →

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New employment zones are now in effect!

On 26 April 2023, five new employment zones and four supporting zones were introduced into 135 local environment plans (LEPs) across NSW.

The new zones were formally introduced via an amendment to the Standard Instrument (Local Environmental Plans) Order 2006 (SI LEP Order) on 1 December 2021 to repeal the Business () or Industrial (IN) zones. These changes were made in response to the NSW Productivity Commission’s White Paper on Rebooting the Economy, which recommended consolidating employment zones. [...]  READ MORE →