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Clarification on the Meaning of “Land” in Section 57 of the Heritage Act

The 19 June 2019 decision of Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] has assisted in further understanding the definition of ‘land’ within s57(1)(e) of the Heritage Act 1977 (Act). Where s57(1)(e) provides a requirement that approval for development must be obtained “in relation to the land” if it is a State heritage item or is subject to an Interim Heritage Order (IHO).

Meaning in Relation to s57(1)(e)

On appeal from the Land and Environment Court (LEC), the Court of Appeal found that within s57(1)(e) the meaning of ‘land’ refers to the physical part of the land which the State heritage item or IHO applies. This is contrary to the decision in the LEC which defined ‘land’ as the whole cadastral review with a relevant link to the heritage item. Furthermore, all judges disagreed with the LEC which held that the word ‘land’ cannot be determined by evaluating the circumstances within each individual case, but must be applied in an overarching manner to all cases to not detriment of the efficacy of the Act.
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Removal of Shrubs to Prevent Consents from Lapsing

The Court of Appeal (Court) in recent judgment of Cardo Management and Maintenance Pty Ltd v Cumberland Council [2019] has established an easier criteria to prevent a lapse of consent, assisting developers and landowners in protecting their development rights. Section 4.53 of the Environmental Planning and Assessment Act 1979 (Act) stipulates that a development consent for the erection of a building, subdivision of land or the carrying out of work will lapse if no physical commencement of the development occurs after 5 years.

Land and Environmental Court Judgment

Within the recent judgment, the Land and Environment Court (LEC) had found that the developer had failed to establish that lawful works had physically commenced before the lapsing date of the consent. The developer had removed shrubs and trees as well as erecting fences and disconnecting the water.

The LEC found that the demolition of the trees and shrubs were not completed by a certified arborist as required by the consent, and further, the work on the fence and disconnection of water hadn’t been approved by the Principal Certifying Authority as per the consent. As such, the work done did not lawfully constitute physical commencement of the development.
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Importance of Careful Drafting for Council Contracts

Background

Case Note: Port Macquarie-Hastings Council v Diveva Pty Limited [2017] NSWCA 97

In a recent decision, the Court of Appeal of NSW made a determination which is particularly instructive for Councils when undertaking any tender process. The decision highlights the importance of carefully drafting contracts and the need to ensure that sufficient information is provided to potential tenderers during the tender process.

In 2011, Diveva Pty Limited (Diveva) successfully entered into a contract with Council to supply and lay asphalt around Council’s local government area. The contract had a simple “option” clause which merely stated that the period of the agreement was to be two years “with a future twelve (12) month option available”.

Diveva conducted works under the contract throughout 2011 and 2012 but Council observed significant defects in the works during this period. Due to the defective work, in March 2013 Council advised that it would not exercise the option to extend and a new tender would be advertised.  In April 2013, Diveva gave notice that it would exercise the option to extend for a further 12 months. Council asserted that the option was not a unilateral clause for the benefit of Diveva and could only be exercised by the Council or by mutual agreement. Therefore, Council commenced the tender process and entered into agreement with another company for those services.
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