No Comments

Updated Guidance for Councils – Flood Prone Land

On 14 July 2021, the NSW Department of Planning, Industry and Environment introduced updated guidance for councils in respect of flooding in land-use planning, to support better management of flood risk beyond the 1% annual exceedance probability (“AEP”), and to ensure best management practises in managing and mitigating severe to extreme flood events. The updated guidance and materials are:

  1. a new planning circular: Considering flooding in land use planning: guidance and statutory requirements (and revoking the existing planning circular PS 07-003);
  2. a new guideline: Considering Flooding in Land Use Planning (2021) (and revoking the Guideline on Development Controls on Low Flood Risk Areas);
  3. an amendment to clause 7A of Schedule 4 to the Environmental Planning and Assessment Regulation 2000. The changes will simplify the notation to advise of flood-related development controls up to the flood planning area (clause 7A(1)) or between the flood planning area and the PMF (clause 7A(2));
  4. two standard instrument local environmental plan (LEP) clauses which introduce flood related development controls (one mandatory, one optional);
  5. a SEPP amendment to replace councils existing flood planning clause with the new mandatory standard instrument clause; and
  6. a revised local planning direction regarding flooding issued under section 9.1 of the Environmental Planning and Assessment Act 1979.

Section 10.7 Planning Certificates

Under Schedule 4: There are new requirements in section 10.7 planning certificates for land affected by flood-related development controls. [...]  READ MORE →

No Comments

Home owners should not underestimate the importance of Council approval!

It’s likely crossed most home owners’ minds:  it might be nice to replace the front fence, or it’s time to upgrade to a bigger backyard garden shed. But before home owners get too excited, it’s crucial that any plans for any kind of development are submitted to the local Council. Omitting this step could result in not only a potential fine and conviction, but the demolition of that dream development.

Why do Home Owners need Council approval?

Home owners sitting on their deck admiring the view should be thankful that there are no high rise developments in their line of sight and for that they can thank their Council’s Local Environment Plan. Each Council’s Local Environment Plan sets out what each parcel of land in a suburb and community is zoned as and therefore what can or cannot be built there. So in a residential area, it may be prohibited for buildings taller than two stories to be built, or for a rubbish dump to be next to a child’s primary school. But these same regulations also limit what a home owner can and cannot do with their own land, from what kinds of home businesses they can run, to what kind of additions, renovations and developments can be constructed as well as what kinds of development require consent. [...]  READ MORE →

No Comments

Builders Beware – The Importance of Council Approval

A recent Land and Environment Court Case highlights the importance of obtaining Council approval before spending time and incurring costs in constructing a secondary dwelling on a property.

The case of Sutherland Shire Council v Perdikaris [2019] NSWLEC 149 tells the tale of a man named Mr Perdikaris who made the decision to build a new shed on his property in Menai, to replace a small garage which was not suitable for his needs.

He started by seeking Council approval, which was granted, for the building of a driveway. This application did not contain any reference to the construction of a garage. Mr Perdikaris then sought quotes for a garage. During this process, he received advice from various companies that he did not necessarily need approval for a new garage. Mr Perdikaris also assumed that as there had already been approval for the previous, smaller garage, it would not be necessary to seek approval for a larger garage, in circumstances where the larger garage kept the same distance from the neighbours fence as the smaller garage had. [...]  READ MORE →

No Comments

No ‘Character of the Local Area’ in diverse neighbourhoods

Under clause 16A of the State Environmental Planning Policy (Affordable Rental Housing) 2009, a consent authority must not consent to a development if the design is incompatible with the character of the local area.

In the recent decision of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden), clause 16A played a prominent role in Commissioner Gray’s judgement. In that case, the Council had refused the development, inter alia, because the development’s design did not match the local aesthetic. The Council relied on the argument that the setbacks and design of the proposal were inconsistent with other residential flat buildings in the local area. [...]  READ MORE →

No Comments

Section 34 Conciliation Conferences – Requirement for Reasons

A recent development consented to by a Commissioner of the Land and Environment Court during a Court mandated section 34 conference has been set aside by the Court of Appeal due to the fact that the Commissioner failed to give proper and adequate reasons for their decision. The Commissioner further failed to give proper reasons with respect to her satisfaction as to the legal perquisites to their power to grant the consent.

Huajun Investments Pty Ltd filed a class 1 appeal against City of Canada Bay Council’s deemed refusal of their DA which sough to demolish pre-existing structures on the DA site and replace it with an 8 storey-residential flat building. [...]  READ MORE →

No Comments

Inland Code: Simplifying development approval in Regional Code

The NSW Department of Planning & Environment has recently announced new legislation aimed to simplify and speed up the approval process for homes, home renovations and farm buildings in regional NSW. The Inland Code commences on 1 January 2019, with its major purpose to simplify the complying and exempt development rules in residential and rural areas of regional NSW. The rules and regulations with respect to complying and exempt development are going to be consolidated into the Inland Code, which will then form part of 3D of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.  [...]  READ MORE →

No Comments

Is the need for a neutral or better outcome a requirement for success with respect to clause 4.6?

In a recent decision in the Land and Environment Court (LEC), the Court has given further clarification to the type of consideration that needs to be given to clause 4.6 of the standard instrument LEP.

The significant decision was given in the case Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where Preston CJ clarified the appropriate approach to the consideration of clause 4.6. The importance of this judgment is that a clause 4.6 submission does not require developments which do not comply with the applicable development standard to have a neutral or better environmental planning outcome than a development that does not. [...]  READ MORE →

No Comments

Deferred Commencement Consents

On 21 June 2018, the Land and Environment Court of NSW handed down a decision which reinforced the importance of time limits on deferred commencement conditions.

The decision of Commissioner Preston in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 found that the Court had no jurisdiction to grant the appeal on its merits regardless of whether the evidence submitted as part of the deferred commencement condition was satisfactory given the fact that Consent had lapsed.

Background

On 17 August 2016 the Applicant appealed against Council’s refusal of an application for development consent (Consent). Commissioner Fakes upheld this appeal and granted development consent subject to a deferred commencement condition which required the Applicant to submit to Council for approval a Flood Emergency Response Plan (‘FERP’) by 17 August 2017. [...]  READ MORE →

No Comments

Sentencing Principles for Water Pollution Offences

BACKGROUND

On 7 and 8 March 2018, judgment was delivered in Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 (Ardent) to impose a fine totalling $157,950 on Ardent Leisure Ltd (AL) for polluting Sydney Harbour after approximately 6000L of diesel fuel escaped into the waters from a fuel storage system at Rushcutters Bay marina.

AL was convicted with the following offences and penalty imposed:

  1. Section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for the pollution of waters in Rushcutters Bay (Water Pollution Offence) – Penalty $135,000.00;
  2. Clause 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) (UPSS Regulation) in relation to Ardent’s failure to include current ‘as-built’ drawing for the fuel storage system (UPSS Regulation Offence) – Penalty $22,950.00

A publication order for a notice of the offences was also made for the purposes of improving the effectiveness of general deterrence. [...]  READ MORE →

No Comments

Powers of a Sydney District or Regional Planning Panel to “direct and control” a Council under the new amendments to the Environmental Planning and Assessment Act in a Class 1 Appeal:

Recently the Land and Environment Court has considered the newly introduced provision of the Environmental Planning and Assessment Act which enables planning panels involved in application decisions to “direct and control” the Council involved.

In this landmark case, the Court found the Council was indeed subject to both the direction and control of the Planning Panel, but furthermore that when the application goes before the Court in order to enter into an agreement to solve proceedings, that the Panel also becomes joined as a party in this process. [...]  READ MORE →

No Comments

Commencement of the Low Rise Medium Density Housing Code

On 6 July 2018, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) will be amended to include the Low Rise Medium Density Housing Code (Medium Density Code). The effect of the Medium Density Code is to expand the scope of what is considered ‘complying development’ under NSW legislation.

The amendments to the Codes SEPP are part of the NSW Government’s overall agenda to increase affordable housing within the State by streamlining the development consent process. [...]  READ MORE →

No Comments

The New South Wales Land and Environment Court exercises its ‘repeat waste offender’ powers in landmark gaol sentence

On 31 May 2018 Chief Justice Preston of the Land and Environment Court recently convicted serial offender Mr Dib Hanna Abdallah Hanna of five offences against the Protection of the Environment Operations Act 1997 under its relatively new ‘repeat waste offenders’ powers, and sentenced Mr Hanna to a three year gaol sentence.

Introduction of repeat waste offender provisions:

The Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013 introduced section 144AB(2) which stipulates the following: [...]  READ MORE →