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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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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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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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Council Liability as Roads Authority – Case Note: Oberlechner v Hornsby Shire Council [2017] NSWSC 23

Background

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

In 2011, the Plaintiff, Mr Oberlechner was walking his dogs at night on a poorly lit suburban street in the Council’s LGA when he stepped into what appeared to him to be bushes or overgrown weeds. He stepped into what was in fact actually an unfenced culvert and fell three meters into the drain below. As a result of the accident, the Plaintiff suffered various injuries including the exacerbation of a long-standing psychiatric illness which was pre-existing prior to the accident. [...]  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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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 →

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Pollution Licences under the POEO Act

The Protection of the Environment Operations Act 1997 (NSW) (the Act) provides an environmental regulatory framework in NSW.  Regulatory authorities are able to issue environment protection licences under the Act to control the impact of pollution.  These licences are sometimes referred to as ‘pollution licences’.  The relevant regulatory authorities are the Environment Protection Authority (EPA), local councils, the Roads and Maritime Service and the Marine Parks Authority.

The pollution licences that are issued are subject to conditions.  For premises that do not hold an pollution licence, the local Council regulates pollution from the premises.  The activities that require a licence are listed in Schedule 1 of the Act. The activities that are listed are generally activities that have the potential to have significant environmental impacts.  Licences are issued for: [...]  READ MORE →