No Comments

McMillan v Taylor

The recent decision of the NSW Court of Appeal in c [2023] NSWCA 183 (McMillan) has built upon the role of the Commissioner in conciliation conferences of the Land and Environment Court (LEC), a judicial mechanism commonly used in development appeal proceedings.

The Court deliberated on the construction of section 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which imposes a duty on the presiding Commissioner to dispose of the proceedings if an agreement is reached between the parties, so long as the decision is one “that the Court could have made in the proper exercise of its functions”[...]  READ MORE →

No Comments

Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50

The Court of Appeal recently considered and upheld a judicial review decision, Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2019] NSWLEC 117 (“Universal  1”). As a result, we now have a unanimous decision from the Court of Appeal of NSW that the statutory requirements found in Schedule 5 of the Environmental Planning and Assessment Act 1979 to afford procedural fairness to a recipient of a section 9.34 Notice are sufficient to exclude any remaining common law rights.

Universal 1 was a decision made by Justice Biscoe in the Class 4 jurisdiction of the Land and Environment Court, in relation to the validity of a Development Control Order No. 10, Restore Works Order issued under section 9.34 and 9.35 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (‘the Act’). [...]  READ MORE →

No Comments

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. [...]  READ MORE →

No Comments

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. [...]  READ MORE →

No Comments

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”. [...]  READ MORE →