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BSCA v EPA: Litigation for climate change action

Dominating the political and media sphere is Australia’s commitment to net zero carbon emissions by 2050. This is unsurprising given the fast-approaching 2021 United Nations Climate Change Conference (COP26) and G20, where world leaders will gather and deliver their roadmap on climate action. Australia’s position on climate change has been met with mixed views as the federal government has yet to establish a net-zero target on a national level. Despite the federal government’s lack of progress, the case of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (BSCA v EPA) shows an unprecedented step forward by an Australian Court in holding a statutory body to account for action against climate change. [...]  READ MORE →

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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 →

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Application Modification

The recent NSW Court of Appeal case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 raises concerns as to the power to modify an existing development consent. The bench included Meagher, Leeming JJA and Chief Judge of the Land and Environment Court Preston CJ.

The case involved an application to modify an underground coal mine in the Hunter Valley. The Court found that the Land and Environment Court judge has erred in joining the objectors and ordered that the joining of the objectors be set aside. [...]  READ MORE →

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Impact of Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 on Local Governments

In December 2020, the Commonwealth parliament passed the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) (Foreign Relations Act), which will impose new restrictions on local governments’ autonomy in making certain types of arrangements with foreign entities.

The Foreign Relations Act requires State and Territory statutory bodies, including local governments, to notify the responsible Minister (which is currently the Foreign Minister) before entering into arrangements with foreign public entities. The type of “arrangement” that will trigger compliance with this requirement are extremely wide and include:- any written arrangement; agreement; contracts; understandings; or undertakings, whether legally binding or not. The types of foreign entities with whom arrangements are entered into that will trigger the notification requirement are also very wide, including:- foreign countries; foreign local governments; and certain types of universities. [...]  READ MORE →

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New Practice Note Issued in NSW on Voluntary Planning Agreements

On 12 February 2021, the Planning Secretary issued a new Planning Agreement Practice Note (VPA Practice Note) under clause 25B(2) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations), replacing the Development Contributions – Practice Note – Planning Agreements (Former VPA Practice Note) issued on 19 July 2005. This clause provides guidance on the making, administration and negotiation of VPAs under section 7.4 of the Environmental Planning and Assessment Act (EPA Act). On the same day, the Environmental Planning and Assessment Amendment (Development Contributions) Regulations 2021 (Amendment Regulations) made numerous amendments to the EPA Regulations. [...]  READ MORE →

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Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

The above case in the Land and Environment Court reminds us of the crucial role that investigators of a Public Authority, such as Council Officers, play in upholding the foundational principles and goals of the Environmental Planning and Assessment Act 1979. The carrying out of development without consent or not in accordance with the consent undermines the objects of the Act, and Council Officers are usually the ones who bring this conduct to the attention of the Court.

 “People need to be aware that the offence of carrying out development not in accordance with development consent is a crime, that offenders will be prosecuted and that the Court will impose significant penalties on offenders”  Chief Justice Preston [...]  READ MORE →

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Requests pursuant to GIPA Act

A recent Civil and Administrative Tribunal decision has upheld a local council’s decision to refuse an individual’s request for documents pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act).

A resident and ratepayer (“the applicant”) who resides in the local government area of the Sutherland Shire Council, made a request pursuant to the GIPA Act for documents relating to Council’s stormwater management investigation in respect of a stormwater issue on/near the applicant’s property, including information on who had directed Council’s officers, and who drafted responses on behalf of Council officers. In particular, the applicant sought the following records relevant to this decision: [...]  READ MORE →

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Part 6 of the Environmental Planning and Assessment Act is Finally Coming into Effect (Hopefully)!

On 30 August 2019, the NSW government introduced the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW). With this, Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is likely to finally come into effect on 1 December 2019, bringing significant changes to the building approval and certification regimes in NSW.

Background

Part 6 of the EPA Act was inserted into the EPA Act as part of the major reform package introduced by the Environmental Planning and Assessment Amendment Act 2017 (NSW). With the exception of the sections relating to the Building Information Certificate, Part 6 did not immediately commence with most of the reform package. Instead, its commencement was delayed several times to enable industry to make the transition. [...]  READ MORE →

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Amber Light Approach – Where to from Now?

The term ‘Amber Light Approach’ was first coined in Ali v Liverpool City Council [2009] NSWLEC 1327 to describe an approach that had been favoured by the Court at the time. Under this approach, the decision-maker in the Class 1 appeal jurisdiction of the Land and Environment Court would consider whether an otherwise unacceptable development proposal could be approved after making identifiable amendments. If the answer to this question is yes, then the Court may approve the development proposal after the requisite amendments have been made (Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096). [...]  READ MORE →

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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 →

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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 →

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Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018

On 24 October 2018, the New South Wales upper house introduced the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (the Bill) with the stated aim of ‘[making] clearer the Government is serious about protecting the environment of New South Wales and the health of its citizen’, as well as ‘provide greater deterrence against illegal dumping of asbestos waste’.

The current laws on illegal dumping, transporting, and recycling of asbestos waste

The current version of the Protection of the Environment Operations Act 1997 (NSW) (the Act) provides for prohibitions against unauthorised dumping and receiving of waste in general [Ss 143 & 144, of the Act]. This general prohibition is complimented by asbestos-related provisions within the Protection of the Environment Operations (Waste) Regulations 2014 (NSW) (Waste Regulations), which detail the requirements for handling of asbestos waste. For example, the Waste Regulations requires the person delivering the asbestos waste to notify the owner of the landfill that will be receiving the asbestos waste [Clause 80(2), Waste Regulations], the occupier of the landfill site to cover up the disposed asbestos waste in certain manners [Clause 80(4), Ibid], the transportation of asbestos waste to follow certain regulatory requirements, including securing the asbestos materials securely during transport [Clause 78, Ibid] and wetting down the waste if the asbestos materials are contained soil [Clause 78(d), Ibid]. The Waste Regulations also expressly bans recycling and reusing asbestos materials [Clause 81, Ibid]. [...]  READ MORE →