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Interlocutory Injunction at the Land and Environment Court

An interlocutory injunction is a type of an interim relief that the Court can order, usually to preserve the status quo until a formal hearing can be conducted. In this article, we will take a look at the elements of the interlocutory injunctions in the planning and environmental law context, and discuss some of the common issues councils may face when applying for interlocutory injunctions.

The Elements

There are, in essence, two elements that must be positively addressed before the Court will grant an interlocutory injunction.

Firstly, the applicant for the interlocutory injunction must prove there is a serious question to be tried. It is not necessary, for the purpose of addressing this element, to show that the applicant has a strong case. It would be sufficient to show that the applicant has a prima facie case by identifying the statutory or other legal rights on which the final relief are based.

Secondly, the applicant must show that the balance of convenience favours the applicant. In the planning and environmental law context, the Court would often consider the following non-exhaustive factors:
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Removal of Shrubs to Prevent Consents from Lapsing

The Court of Appeal (Court) in recent judgment of Cardo Management and Maintenance Pty Ltd v Cumberland Council [2019] has established an easier criteria to prevent a lapse of consent, assisting developers and landowners in protecting their development rights. Section 4.53 of the Environmental Planning and Assessment Act 1979 (Act) stipulates that a development consent for the erection of a building, subdivision of land or the carrying out of work will lapse if no physical commencement of the development occurs after 5 years.

Land and Environmental Court Judgment

Within the recent judgment, the Land and Environment Court (LEC) had found that the developer had failed to establish that lawful works had physically commenced before the lapsing date of the consent. The developer had removed shrubs and trees as well as erecting fences and disconnecting the water.

The LEC found that the demolition of the trees and shrubs were not completed by a certified arborist as required by the consent, and further, the work on the fence and disconnection of water hadn’t been approved by the Principal Certifying Authority as per the consent. As such, the work done did not lawfully constitute physical commencement of the development.
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Beyond the Usual Argy Bargy – How Repeated Amendments to Class 1 Appeal Application Can Lead to General Costs Order

In the recent case of Statewide Planning Pty Ltd v Penrith City Council (No. 3) [2018] NSWLEC 109 (Statewide Planning), the Land and Environment Court (LEC) heard the Council’s Notice of Motion (NOM) for costs against the developer who had amended plans annexed to the Class 1 Appeal 11 times in the course of a Class 1 development appeal proceeding that lasted almost two years. The judge presiding the hearing for the NOM, Justice Sheahan, found: –

  • the conduct of the developer had gone beyond ‘the usual argy bargy’ between a party in Class 1 Appeal proceedings;
  • the developer should pay the Council’s legal costs in respect of the whole proceedings, in addition to any costs thrown away by reason of making those amendments; and
  • the Council was permitted to bring the NOM even though it was filed outside of the deadline permitted by the LEC’s Practice Note – Class 1 Development Appeals.
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Torrens Title Lot – What defines ‘land’?

Two decisions of the Land and Environment Court have recently considered what defines ‘land’ on which a heritage item is situated, and what defines the ‘land’ on which an extractive industry was being carried out. Both cases are a timely reminder that Courts will not consider ‘land’ by reference to just their Torrens title lot, but also consider the scope and purpose of any relevant statutory provisions involved in the determination of the DA.

‘Land’ involving heritage items – Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179

In this case, the Court was considering an integrated development application seeking consent to conserve a heritage listed building (both the building and its curtilage being listed on the State Heritage Register), and construct a 16 storey residential apartment building on a differing part of the same Torrens Title Lot.  The Heritage Council provided general terms of approval regarding the conservation of the building, but also provided some comments regarding the construction of the residential building on the same site. The applicant began proceedings on the basis that the consent authority was unable to properly determine the DA without the Heritage Council indicating whether it would provide terms of approval in relation to the entire DA.
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Deferred Commencement Consents

On 21 June 2018, the Land and Environment Court of NSW handed down a decision which reinforced the importance of time limits on deferred commencement conditions.

The decision of Commissioner Preston in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 found that the Court had no jurisdiction to grant the appeal on its merits regardless of whether the evidence submitted as part of the deferred commencement condition was satisfactory given the fact that Consent had lapsed.

Background

On 17 August 2016 the Applicant appealed against Council’s refusal of an application for development consent (Consent). Commissioner Fakes upheld this appeal and granted development consent subject to a deferred commencement condition which required the Applicant to submit to Council for approval a Flood Emergency Response Plan (‘FERP’) by 17 August 2017.

The deferred commencement condition had to be fulfilled to Council’s satisfaction by 17 August 2017. The applicant submitted its FERP to Council in April 2017. Following this submission, Council advised the applicant that the deferred commencement condition had not been satisfied to the requisite standard on 20 June 2017.
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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.

It is important to note that for the purpose of this Clause, the word “document” means any Act or statutory or other instrument or any contract or agreement, and includes any document issued or made under or for the purposes of any Act or statutory or other instrument.
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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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Recent changes to the planning principles in relation to brothel

Background

On the 31 March 2017, the NSW Land and Environment Court dismissed an appeal to modify the hours of operation for an existing brothel in Liverpool and revised the planning principle of Martyn v Hornsby Shire Council [2004] NSWLEC 614.

Land and Environment Court Facts

The applicant sought to modify a condition of a development consent granted by the Liverpool City Council (the Council) in 1998. This modification would have extended the operating hours of the brothel.

The Council refused the application on the basis that the proposed “extended hours are not compatible with surrounding areas”, and “would give rise to unacceptable social impacts in the immediate locality”. Furthermore, the applicant “has not demonstrated a satisfactory justification for the proposed extended hours”.

Residents, objectors and other commercial operators in the area provided evidence in opposition of the extended hours.

Land and Environment Court Decision

The brothel was located in a B3 Commercial Core Zone under the Liverpool Local Environmental Plan 2008 (LEP 2008). Its use was characterised as a ‘sex services premises’, which was prohibited.
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