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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. [...]  READ MORE →

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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.

 Background

In Statewide Planning, the developer commenced the Class 1 appeal on 21 September 2015 after its development application was deemed refused by Council. Due to multiple and serious deficiencies with the development application, the developer amended the application 11 times before the hearing, which led to a domino effect of delayed expert’s reports and adjournments of proceedings. Worse, the developer had failed to seek leave from the Court before amending the application on multiple occasions. [...]  READ MORE →

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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  [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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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”. [...]  READ MORE →

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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. [...]  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 →