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New Land and Environment Court Practice Notes

On 1 March 2018, the new amended Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) came into force. A newsletter article outlining the key amendments can be found here https://www.matthewsfolbigg.com.au/news/planning-environment/key-amendments-environmental-planning-assessment-act/

New provisions vs old provisions

Clause 4A of Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 provides that a reference in any document to a provision of the repealed EP&A Act that has been renumbered or relocated by the new EP&A Act is taken to be a reference to the renumbered or relocated provision. In other words, wherever an old provision of the EP&A Act is mentioned, that it is to be read as if the new provision applies. [...]  READ MORE →

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Key Amendments to the Environmental Planning and Assessment Act

On 1 March 2018, the Environmental Planning & Assessment Act 1979 (the Act) underwent its largest and most significant change since it commenced in 1979. Many of the changes are expected to be implemented throughout 2018 with further amendments being rolled out over the course of the next two years.

The NSW Government has stated that the amendments provide “an updated, modern planning system that is simpler, faster and designed to ensure high quality decision and planning outcomes for the people of NSW”. The Bill was before NSW Parliament last year and was the subject of much parliamentary debate. The Bill was ultimately assented to on 23 November 2017. [...]  READ MORE →

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The Benefits of Mediation

What is Mediation?

Mediation is a structured negotiation process whereby a neutral independent party, the mediator, helps the parties in a dispute to achieve their own resolution to the dispute.

When should parties mediate?

Mediation is most successful when the parties have a genuine desire to settle and prepared to compromise.

The following are examples of circumstances where mediation may occur:

  • compulsory referral to mediation by order of the court
  • before commencement of litigation
  • early in the stages of litigation
  • when the Plaintiff has prepared evidence but the defendant has not
  • after all evidence has been served and a court date has been set

Benefits

One of the key benefits of mediation is confidentiality.  The Civil Procedure Act 2005 provides that admissions made in mediation or evidence of anything said in mediation is not admissible in any proceedings before a court or other body (see s 30(4)).  If the mediation is unsuccessful, the substance of the mediation cannot be used against a party later in the proceedings. [...]  READ MORE →

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What part of the Pasteurised Garden Organic Order and Exemption applies to Council and what requirements are expected from Council?

The Mulch Order 2016 applies to unpasteurised/raw mulch which by virtue of the nature and source of the plant material, poses minimal risk of the presence of physical and chemical contaminants and does not include plant material obtained from kerbside waste collection.  Whilst the need for pasteurisation may be dispensed with on the tree clippings obtained from Council’s tree maintenance operations and as such this mulch will only be subject to the provisions in the Mulch Order 2016 and Mulch Exemption 2016 [Click here to see our article: “How do the new Mulch Order and Exemption 2016 impact on Councils’ tree maintenance operations?” https://www.matthewsfolbigg.com.au/news/local-government/new-mulch-order-exemption-2016-impact-councils-tree-maintenance-operations/]. However, if the plant material used for mulch also contains kerbside waste collection or tree material that has a significant risk of contaminants, mulch processed from such a mixed source may pose a risk of the presence of contaminants and therefore falls outside the definition of mulch in the Mulch Order 2016. Mulch of this kind is regulated by Pasteurised Garden Organic Order 2016 (PGOO) and Pasteurised Garden Organic Exemption 2016 (PGOE). [...]  READ MORE →

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Hefty Fine in Polluting Waters Prosecution

In the recent decision Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64, Dyno Nobel Asia Pacific Pty Ltd (Dyno Nobel) was convicted of two offences under the Protection of Environment Operations Act 1997 (POEO Act).

The Offences

The first offence was for polluting waters (s 120(1) POECO Act) and the second offence was for breaching its Environment Protection Licence conditions (s 64(1) POEO Act).

These offences arose out of a pollution incident in 2015.  Work on Dyno Nobel’s on-site collection dams for wastewater caused wastewater to flow into neighbouring property.  A misplaced pipe and a valve failure resulted in the toxic wastewater flowing onto a neighbouring farm where it waterlogged a paddock, killed livestock and stopped 200m short from the major waterway. [...]  READ MORE →

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Proposed changes to planning rules for outdoor advertising and signage

The NSW Government has recently proposed a number of amendments to the State Environmental Planning Policy No. 64 – Advertising and Signage (SEPP 64) and in conjunction, has also proposed the addition of a new penalty notice offence in the Environmental Planning and Assessment Regulation 2000 (Regulation). The intention of the proposed amendments is to fulfil the community’s expectation of balancing road safety whilst maintaining the public and economic benefit of advertising.

Repealing Council’s power to prohibit advertising [...]  READ MORE →

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Compulsory Acquisition – Recent Developments in relation to an “interest” in land

A recent decision of the Court of Appeal has provided further guidance on what is considered an “interest” in land for the purposes of the Land Acquisition (Just Terms Compensation) Act 1991 (the Act).

In Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2016] NSWCA 73 the Court of Appeal dismissed an appeal by Dial A Dump Industries (Dial A Dump) from the decision of the Land and Environment Court  in Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2016] NSWLEC 39 dismissing its claim for compensation under the Act for the compulsory acquisition of the Alexandria Landfill site. [...]  READ MORE →

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Employment Law – Unfair Dismissal – ‘Crude’ Facebook Post

Employment Law – Background

The Fair Work Commission’s decision in Colby Somogyi v LED Technologies Pty Ltd, where the FWC awarded an employee compensation after his dismissal for crude Facebook posts, provides a warning to employers of the care that needs to be taken in addressing issues arising from employee use of social media.

Facts
• A company dismissed a sales representative after posting crude comments on Facebook suggesting that a woman gave sexual favours to her boss for a promotion
• The company argued that as the employee posted the comments during work hours and directed the comments at the business, one of its employees or customers, it was “clearly inappropriate”
• The company believed that the employee’s opinions did not align with its objectives of promoting a safe workplace free of harassment, victimisation or sexual abuse
• They claimed that the employee had breached its social media policy, which prohibits inappropriate social media use at work
• However, the employee argued that the dismissal was unfair because he was not given an adequate chance to respond. He was not informed that the Facebook post was the catalyst for his dismissal, as the company did not respond to his queries as to why he was dismissed
• The employee claimed that his posts were not directed at the company, and were actually in reference to his mother being bullied at her workplace
• The employee claimed he posted the comments during his break and that he was unaware of the company’s social media policy [...]  READ MORE →

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Vesting of Transferable Crown land in Local Councils

A new piece of legislation concerning the management of Crown land was assented to in November 2016 which now allows the Crown to vest land in local Councils by way of a gazette. Some provisions of the Crown Land Management Act 2016 (NSW) (CLM Act) came into force on 16 November 2016 and the remainder has not yet come into force.

What land can be vested?

The CLM Act prescribes that the type of Crown land able to be vested in Councils is that which has not yet been ‘declared or reserved’. Further, the land must not be declared as being a ‘wildlife refuge’ or be required to be used for some specific purpose under any legislation. In other words, it must be simply Crown land that serves no special purpose. [...]  READ MORE →

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Council Liability as Roads Authority

In a recent decision of Oberlechner v Hornsby Shire Council [2017] NSWSC 23, the Supreme Court of NSW has awarded damages of $380,640 in finding that Hornsby Shire Council (Council) was negligent when a resident fell into an unfenced culvert on a public road and suffered substantial injuries.

A Council will often find that it is protected from liability from defects in footpaths and roads as a result of the statutory protection provided to roads authorities by section section 45 of the Civil Liability Act 2002 (NSW) (CLA). Section 45 of the CLA reads: [...]  READ MORE →

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Proposed Amendments to the Environmental Planning & Assessment Act

On 9 January 2017 the NSW Government announced a number of proposed amendments to the Environmental Planning & Assessment Act 1979 (NSW) (EP&A Act). To begin the process, Minister Stokes released a public consultation draft of the Environmental Planning and Assessment Amendment Bill 2017 (the draft Bill) on 9 January 2017. The draft Bill will be exhibited until 10 March 2017 for public consultation.

The proposed amendments are extensive and the Minister has put forward the following as being the objectives: [...]  READ MORE →

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Incorporating an Environmental Group

Individuals with common environmental interests or concerns are able to come together to form groups to oppose developments or represent broader environmental concerns.  Incorporating these groups can provide benefits such as challenging bringing proceedings for judicial review of a development.

What is incorporation?

Incorporation is when a non-commercial group of five or more members are registered as a separate legal entity.

Why incorporate?

Incorporation can provide a range of benefits including:

  • establishing a legal identity separate from individual members
  • limiting some legal liability
  • the existence of the group will continue despite membership change

And the group can:

  •  enter into enforceable contracts
  • sue in the corporate name
  • attract funding more easily
  • apply for status as a charity/formally register as an environmental organisation

How do you incorporate?

  1. Choose a name
  2. Establish objectives and a constitution
  3. Authorise an application for registration
  4. Apply for registration

What else do I need to know?

Incorporation involves ongoing costs, administrative burdens and legislative responsibilities. [...]  READ MORE →