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Amber Light Approach – Where to from Now?

The term ‘Amber Light Approach’ was first coined in Ali v Liverpool City Council [2009] NSWLEC 1327 to describe an approach that had been favoured by the Court at the time. Under this approach, the decision-maker in the Class 1 appeal jurisdiction of the Land and Environment Court would consider whether an otherwise unacceptable development proposal could be approved after making identifiable amendments. If the answer to this question is yes, then the Court may approve the development proposal after the requisite amendments have been made (Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096). [...]  READ MORE →

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Beyond the Usual Argy Bargy – How Repeated Amendments to Class 1 Appeal Application Can Lead to General Costs Order

In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3) [2018] NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –

  • the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;
  • the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and
  • the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.

 Background

In Statewide Planning, the developer commenced the Class 1 appeal on 21 September 2015 after its development application was deemed refused by Council. Due to multiple and serious deficiencies with the development application, the developer amended the application 11 times before the hearing, which led to a domino effect of delayed expert’s reports and adjournments of proceedings. Worse, the developer had failed to seek leave from the Court before amending the application on multiple occasions. [...]  READ MORE →

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Can an intervener/objector participate in s34 conciliation conference after the onsite consultation?

On 19 April 2018, judgment was delivered in M.H.Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council [2018] NSWLEC 56 dismissing a motion by Gundagai Community Environmental Impact Group (GCEIG), an objector to the subject class 1 proceedings seeking an order to be permitted to participate in the “closed door” part of the s 34 conciliation conference.

Full judgment can be found here.

Background

The Class 1 proceedings in question concerned an application made by the Applicant in relation to the decision of the Southern Joint Regional Planning Panel (JRPP) to refuse the Applicant’s development application for the expansion of an existing solid waste, non-putrescible, landfill at the subject land. The Respondent Council is the relevant public authority to defend the decision of the JRPP in this matter. [...]  READ MORE →