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Case Note: Port Macquarie-Hastings Council v Mansfield

In the recent decision of Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (Mansfield), the NSW Court of Criminal Appeal overturned an earlier decision of the Land and Environment Court in relation to the power of councils to compel production of documents under the former section 119J (now section 9.22) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

Background

Mr Mansfield was accused of carrying out a development that was prohibited under the Local Environmental Plan. After some investigations and before the commencement of the criminal proceedings, Council’s investigation officer, Craig Henderson, issued a number of notices under section 119J (now section 9.22) of the EPA Act. From the documents produced under those notices, Council learned two companies may have further documents relating to the alleged offence and issued a subpoena to each of the two companies after criminal prosecution had commenced.

Mr Mansfield challenged the validity of the two subpoenas in the Land and Environment Court, primarily on the basis that Council must not rely on the information gathered from section 119J notices to issue the subpoena because the section 119J notices were not validly issued in the first place.
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New Land and Environment Court Class 3 Compensation Claims Practice Note

On 15 March 2019, the Chief Judge of the Land and Environment Court of New South Wales issued a new Practice Note for Class 3 Compensation Claim proceedings relating to the acquisition of land. The purpose of this new practice note was to implement a significant change to the way in which compensation proceedings are managed. More specifically, the new practice note is better aimed at facilitating just, quick and cheap resolutions of what can often be very complex compensation cases.

Change 1 – Earlier Conciliation conferencing

The biggest change in the practice note is that conciliation conferencing will be one of the initial procedural steps undertaken prior to preparation of expert evidence. The old practice note provided that conciliation conferences were to take place approx. 16 weeks after the initial directions hearing, following preparation of all of the expert evidence and relevant pleadings. Under the new practice note, parties should now expect to attend a conciliation conference approx. 4 weeks after the initial directions hearing.
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Tree dispute principle for claims for structural damage to property caused by a tree

Fang v Li & Anor [2017] NSWLEC 1503

Background

On 19 September 2017, judgment was delivered in Fang v Li & Anor [2017] NSWLEC 1503 to remove two trees pursuant to s7 of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (‘Trees Act’) and established a new tree dispute principle for claims for structural damage to property caused by a tree.

The applicant’s application encompassed the following:

  • removal of a Tulip Tree which he claimed had damaged his property and would cause further damage if not removed and repair costs to his property caused by the Tulip Tree;
  • pruning of a Turpentine Tree which he claimed was likely to cause injury to people on his property.

Judgment

The Court ordered that both the Tulip and Turpentine Trees be removed for the following reasons:

Turpentine Tree

  • The Court found that adequate pruning of the Turpentine tree would remove so much of the crown that the tree would no longer be viable. As such, it was likely to cause injury in the near future and therefore must be removed.
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A tree dispute relating to obstruction of views and sunlight

Rees & Anor v Chen [2017] NSWLEC 1502

Background

On 12 September 2017, judgment was delivered in Rees & Anor v Chen [2017] NSWLEC 1502 dismissing an application brought by Rees pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) against the adjoining property owner, Chen. The applicant sought to have the hedges planted in the adjoining property to be limited to a certain height as it was alleged that the hedges have severely obstructed Rees’ view of the Lane Cover River.

Judgment

  • The Court found that the jurisdictional tests in s 14E(2) are not met in regards to the obstruction of sunlight because i) the obstruction of sunlight was caused by a hedge that pre-existed the applicant’s purchase of the property and ii) the sunlight obstructed was not direct sunlight.
  • The Court also found that the jurisdictional tests are not met in regards to the obstruction of views because i) the view of water was across a side boundary and relatively small portion of the overall view available; ii) the loss of views from other rooms was not severe and iii) the obstruction of views from one room pre-existed the applicant’s purchase of the property.
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Court Invalidates Minister’s Decision

On 30 July 2016, the Minister for Heritage (Minister) made a decision not to direct that the Sirius Apartment Building (Sirius) at Millers Point, Sydney be listed on the State Heritage Register. This decision was made despite a recommendation from the Heritage Council of New South Wales (Heritage Council) that Sirius be listed on the Register.

Sirius was built in the 1980s and since then has become a well-known and significant building in Sydney. It has been used predominantly as social housing up until the NSW Government announced in March 2014 that it intends to sell Sirius and then re-invest the proceeds of sale into social housing across the state.

Minister’s Determination

On 14 March 2016, the Heritage Council made its recommendation that it be listed on the Register under section 33 of the Heritage Act 1977 (NSW) (the Act). Once the Heritage Council makes a recommendation, the Minister can direct listing on the Register in accordance with section 32 of the Act.
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Enforcing Environmental Laws in the Land and Environment Court

The Land and Environment Court operates in a specialist jurisdiction dealing with cases that relate to mining, planning, the environment, local government and development. The Land and Environment Court was established by legislation and can only deal with matters that fall within its jurisdiction.

Civil Enforcement

Most environmental proceedings within NSW can be enforced through civil proceedings in the courts, particularly the Land and Environment Court where there is an alleged breach of an environmental law.

Civil action in the courts can be used to obtain court orders to prevent environmental harm from occurring which is beneficial as often in criminal proceedings, legal action is reactive and taken after harm has already been caused. For example an injunction can be sought in the Land and Environment Court to prevent an incident that would cause environmental harm.

Examples of actions that may be undertaken in the Land and Environment Court include:

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Can Council charge for services based on availability of services and actual use of services?

Background

On the 27 February 2017, the NSW Land and Environment Court dismissed an appeal of the applicant seeking to invalidate the Rates and Charges notices issued by a respondent council – Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44.

Facts

The matter concerned water availability charges and sewerage access charges (Availability Charges) being levied by Bathurst Regional Council (the Council) against the Premises which were owned by the applicant. Council had levied the Availability Charges against the Premises since 2004 under the authority of s 501 of the Act, and such charges had been paid by the applicant. Council also issued separate water usage charges and sewer usage charges (the Notices) under s 502 of the Act every three months in arrears, The applicant specifically challenged the validity of the Notices under s 574(1) of the Local Government Act 1993 (NSW) (the Act) on the basis that Council was only able to charge for water services and sewerage service according to the actual use of the service and had no power to make the Availability Charges, which were imposed independently of actual use.
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