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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.

The Decision in M.H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101:

By way of a brief background, this case involved a Class 1 Development application to expand an existing landfill in the Cootamundra-Gundagai Local Government Area.

As per the old EPA Act, the development application was required to be heard at the time by the Southern Joint Regional Planning Panel (the JRPP Panel), and at the time the panel determined the application by way of refusal.  Upon this decision, the Applicant then filed an appeal with the LEC and the Planning Panel was informed as per the requirements under the EPA Act.
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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.

What is Complying Development?

Complying Development is development which can obtain development consent by having regard to and meeting specified predetermined development standards. The predetermined development standards include criteria such as minimum lot size, setbacks, building height and floor space ratio.

A development can only be complying development if it is permitted with consent within that zone. If it is permitted and meets the predetermined development standards, the proposed development can be approved by either Council or a qualified private certifier which issues a complying development certificate.
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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:

144AB   Repeat waste offenders

(2)  A person commits an offence against this section if the person is an individual who:

(a)  has been convicted of a waste offence, and

(b)  commits a waste offence on a separate subsequent occasion within five years after that conviction.

Maximum penalty: The maximum monetary penalty provided by this Act for the commission of the waste offence by an individual or imprisonment for two years, or both.

(3)  A reference in this section to a conviction for a waste offence includes a conviction before or after the commencement of this section and a conviction for an offence against this section.
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EPA Fines Company $30,000 for Breaching Licence and Polluting Waters

The NSW Environment Protection Authority (EPA) has recently fined South Coast Plant Hire Pty Ltd (South Coast), a resource recovery facility in Bomaderry, $30,000 for allegedly breaching its licence conditions and discharging waste water from the site.

It is alleged that South Coast Plant Hire failed in its responsibilities when its operations led to polluted water flowing off-site.

In December 2017, the EPA carried out a site inspection and found a containment system holding polluted water had overflowed. The water was used to suppress dust and contained waste water from stockpiles.

The EPA issued a clean-up notice directing South Coast to clean-up the area where the discharge occurred and put measures in place to prevent further pollution. Two penalty notices were subsequently issued to South Coast totalling $30,000.

Clean up notices, prevention notices and penalty notices are some of the tools the EPA can use to achieve environmental compliance.

Clean-up notices

Pursuant to s 92 of the Protection of the Environment Operations Act 1997 (POEO Act), the EPA is able to issue a clean-up notice when it reasonably suspects that a pollution incident has occurred or is occurring or when the release of a pollutant is likely or imminent. The notices may direct that action is taken to prevent, minimise, remove, disperse, destroy or mitigate pollution resulting from or likely to occur from an incident. The notice details the specific clean-up action required and a time frame for completion.
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Supreme Court decision highlights the importance of careful preparation of Proposed Acquisition Notices

The Supreme Court of NSW has handed down a decision that highlights the importance for public authorities including Councils to be thorough and have express regard to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) when preparing Proposed Acquisition Notices (PAN).

The decision of Justice Hammerschlag in Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553 found that a PAN issued by the RMS was invalid as it failed to meet the formal requirements under the Just Terms Act. Specifically, the PAN did not comply with the approved form prescribed by the Minister, it failed to state the public purpose of the acquisition and it was issued for an improper purpose.


On 26 May 2017, the RMS served a PAN on the plaintiff, Desane to compulsorily acquire its commercial property, as part of the NSW Government’s WestConnex project. Under s 171(1) of the Roads Act 1993 (Roads Act), the RMS has the authority to compulsorily acquire land for any purposes of that Act.
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The New Crown Land Management Act 2016

On 1 June 2018, the Minister for Lands and Forestry, the Hon. Paul Toole MP announced that the Crown Land Management Act 2016 (NSW) (CLM Act) will commence on 1 July 2018.

Local councils will commence management of Crown reserves under the Local Government Act 1993 (LGA) from 1 July 2018, and must be ready to start the transition to the new requirements from that date.

An Interim Schedule of Crown Reserves was distributed to each council to help complete the preparatory work of classifying and categorising Crown Reserves.

Until the CLM Act commences, Crown reserves continue to be administered in accordance with existing legislation – Crown Lands Act 1989 (NSW) – with no changes for existing reserve trusts, lessees, licence holders or other with an interest in Crown land.


 Key changes

  1. Native title manager training
  • A key change to the way councils manage Crown Land under the CLM Act will be the requirement for each council to employ or engage a trained native title manager who will be responsible for providing advice on certain dealings for land that may be affected by native title.
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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.


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.

GCEIG, a not-for-profit, ‘grass roots’ community based group, established to protect and enhance the environment, social and economic wellbeing of the Gundagai and District  GCEIG, filed a Notice of Motion in the proceedings, seeking two primary orders:
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Increased Council and Court Powers under the recently reformed Environment Planning and Assessment Act

The recently reformed Environmental Planning & Assessment Act 1979 (the Act) continues to be rolled out over the first half of 2018. As well as the other amendments aforementioned in our previous article, one of the major changes to the Act is with regard to the increased powers given to Local Councils and Courts when dealing with complying development certificates for local development applications.

In order to achieve the NSW Government’s primary purpose “to promote confidence in our state’s planning system”, the Act aims to enable Local Councils and Courts to adequately and appropriately deal with developments and their relative certificates with more ease by granting them increased powers in this area.

Below is an outline of the major increases/changes in powers issued to Local Councils and Courts:


Powers to suspend work under a complying development certificate

Under the new amendments, Councils will have new investigative powers to suspend work under a complying development certificate for up to 7 days. Due to the generally fast paced nature of Complying developments, Council authorities have often found it difficult in using their current enforcement powers to ensure that improper or flawed complying developments are not being built. This new amendment seeks to address this issue, as it allows Councils to completely suspend works on a site while the 7 day investigative period happens, ensuring that they are able to fully exercise their enforcement options with regard to complying developments.
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