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Mandatory Planning Considerations: Don’t forget the DCP!

In the recent Land and Environment Court (LEC) decision of Ross v Randwick City Council [2025] NSWLEC 89, Justice Pritchard confirmed that a development control plan (DCP) is a mandatory consideration when determining modification applications under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

The Council’s approval was held invalid, because the assessment failed to engage with the applicable DCP.

Background

On 28 July 2022, ADS Building Designers (ADS) obtained development consent from Randwick City Council (Council) for demolition works and construction of a new two-storey duplex. [...]  READ MORE →

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Noise Prevention Notices – evidentiary requirements

A recent decision of the Land and Environment Court in Doon v Snowy Valleys Council [2025] NSWLEC 1514, confirms that the ‘reasonable suspicion’ required to issue a Prevention Notice under the Protection of the Environment Operations Act 1993 (POEO Act) is not arbitrary and must be based on objective evidence.

Background

These proceedings related to an appeal against a Noise Prevention Notice issued by Snowy Valleys Council (Council) to Mr Doon (Appellant) under s 96 of the POEO Act.

Council received 15 written complaints from three neighbours about noise emanating from the Appellant’s property. The complaints related to noise from:- vehicles; undertaking of vehicle repairs; use of power tools, use of ride-on lawnmower, use of dirt bikes and amplified noise. The Appellant’s property is approximately 1.5ha, located within a low density residential zone and adjoins the Tumut golf course on one side. [...]  READ MORE →

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Development Control Orders: Validity Matters More Than Ever

A recent decision by the NSW Land and Environment Court in Kingfisher Properties Pty Ltd v Northern Beaches Council [2025] NSWLEC 39 (Kingfisher Case) is a timely reminder that development control orders (DCO) must adhere to statutory requirements.

In this case, the Court reduced a $100,000 penalty to just $9,000 after finding that the DCO issued went beyond the powers permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

Background

Kingfisher Properties Pty Ltd (Kingfisher) was a company that built a carport without obtaining the necessary development consent for the construction. Northern Beaches Council (Council) issued a DCO requiring Kingfisher to remove the carport. Initially, this was done via a Compliance Order under item 11, part 1 of Schedule 5 of the EP&A Act. However, a Compliance Order can only be used when a planning approval exists but has not been complied with. Given there was no planning approval in this instance this was not the appropriate order to issue. [...]  READ MORE →

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Payment of Lodgement Fee is Essential for Making a Development Application – Lessons from Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

In Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 (Hinkler), the Court of Appeal confirmed the long-standing principle that development applications are not “made” until the lodgement fees for the applications have been paid. This case addressed the applicability of a savings provision under the State Environmental Planning Policy (Housing) 2021, emphasising the distinction between submitting and completing a DA under the Environmental Planning and Assessment regulation. For this reason, it is crucial that applicants are aware of their responsibilities in regard to development applications. [...]  READ MORE →

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Limits to the power to amend undetermined development applications during Class 1 appeal proceedings before the Land and Environment Court (LEC)

Summary: The LEC has recently found that the proposed amendments to a development application on appeal were outside the power to amend, and in accordance with s 4.19 of the Environmental Planning and Assessment Act (EPA Act), and the substantive use as sought in the original development application submitted to Council is limited to the use as sought in the Class 1 Application.

Facts: In the matter of Reid v Woollahra Municipal Council [2023] NSWLEC 1611, the applicants sought leave to amend their development application (DA) to rely on amended plans and documents. The respondent, Woollahra Municipal Council (Council) opposed the application for leave to amend. The substantive proceedings were brought pursuant to ss 8.7 and 8.11 of the EPA Act against Council’s deemed refusal of a DA, which originally sought consent for demolition of an existing attached dual occupancy and construction of a new attached dual occupancy. The amended plans and documents sought a change to the erection and use of the development from an attached dual occupancy to a single dwelling. [...]  READ MORE →

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Case Summary: NSW Land and Environment Court rules on Proposed Developments in a Boatyard at Berrys Bay

The NSW Land and Environment Court (NSW LEC) in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 (Stannards Marine Case) highlights the importance of considering the objectives of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the Sydney Harbour Foreshores and Waterways Development Control Plan 2013, and the principles of public trust and intergenerational equity embedded in those statutory instruments, when deciding the outcome of development applications relating to developments within the Sydney Harbour. [...]  READ MORE →

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Case summary – EPA v Sydney Water Corporation [2020] NSWLEC 153

Summary

The case of EPA v Sydney Water Corporation [2020] NSWLEC 153 was heard in the LEC in the Class 5 jurisdiction before Pain J.

Proceedings in the Land and Environment Court’s (LEC) Class 5 jurisdiction typically involve summary criminal enforcement proceedings (initiated by government authorities prosecuting offences against planning or environmental laws).  According to the statistics published by the LEC, 32% of the prosecutions commenced in 2019 were initiated by the Environment Protection Authority or Office of Environment and Heritage. [...]  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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Laws for the Paws

Introduction

The COVID-19 pandemic has changed what we used to consider a “normal” working environment as working from home is now the new status quo. Fortunately, this has allowed many of us to bond with our pets but what happens when our beloved pets get themselves into trouble? And the next question that follows, to what extent can local council officers enter our property to seize our pets?

Powers to entry property under the CAA Ct

In New South Wales, the Companion Animals Act 1998 (NSW) confers large powers upon local councils to regulate the effective and responsible care and management of our little furry companions. [...]  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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Clarity Regarding Council Entry to a Residential Premise

The recent decision of the Land and Environment Court in Bobolas v Waverly Council (No 2) [2020], the latest instalment of cases between Bobolas and Waverly Council (‘Council’), provides clarity as to the powers of entry possessed by councils onto residential land. This decision considered an application for judicial review challenging a section 22A order issued by Council is accordance to section 124 of the Local Government Act 1993 (NSW) (‘the Act’).

The order sought by Council on 29 January 2020 was to remove waste and refrain from collecting further waste at the property by 26 February 2020. Pursuant to section 124 of the Act, a section 22A order enables council to issue such an order ‘to remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises’ if ‘the waste is causing or is likely to cause a threat to public health or the health of any individual’. [...]  READ MORE →

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Difficulties due to COVID-19 not an excuse to vacate a hearing date

A recent decision in the Land and Environment Court to set aside a Registrar’s order that a three-day hearing be set aside substantially due to the difficulties associated with the COVID-19 pandemic has shown the Court’s willingness to facilitate the continuation of hearings, where appropriate, despite the difficulties associated with virtual hearings.

In DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31, during a general call over of all matters pursuant to the Court’s adoption of the COVID-19 Pandemic Arrangements Policy, the solicitor for the City of Parramatta Council sought an order that the hearing the subject of the Class 1 Appeal, scheduled to take place in May 2020, be vacated. [...]  READ MORE →