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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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When does a savings provision apply? Three cases to help navigate savings provision

Savings provisions are commonly found in environmental planning instruments such as Local Environmental Plans (LEP) and State Environmental Planning Policies (SEPP). Usually, their intended effect are to carve out certain types of development applications, usually by reference to the lodgement date, from being determined according to the environmental planning instrument containing the savings provision. Whilst this sounds straightforward at first, it is not always easy to discern when and how savings provisions should apply to a development application. Both councils and developers must carefully interpret savings provisions, as incorrect application of planning instruments could lead to errors in the preparation and assessment of development applications. Today, we look at three common problems in the interpretation of savings provision and how the Courts have addressed them. [...]  READ MORE →

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Personal Information & Data Breaches – Obligations for NSW State and Local Government Entities

The recent data breaches involving Optus and Telstra highlight the potential risks facing businesses and entities that collect and store personal information.

Where entities employ individuals, those entities are required by law to collect and keep various forms of personal information relating to their employees. Such information can include employees’ contact information, health information, banking details, and tax file numbers.

For NSW state public sector and local government entities, the obligations relating to the collection, retention, use and disclosure of personal information are set out in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). [...]  READ MORE →

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Environmental Planning and Assessment Regulation 2021

The Environmental Planning and Assessment Regulation 2021 (Regulation 2021) came into force on 1 March 2022 and replaced the Environmental Planning and Assessment Regulation 2000 (Regulation 2000). Regulation 2021 largely continues to reflect its predecessor, but has been designed to improve the planning system by removing unnecessarily complex provisions and simplifying the system for all users.

A number of the key changes are outlined below.

Development Applications

Regulation 2021 requires that all development applications must be made in the approved form, which is located on the NSW Planning Portal, and must include all the information and documents specified in the approved form or required by the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Regulation. The development application (DA) may be rejected by the consent authority if it does not contain this information. [...]  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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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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Home owners should not underestimate the importance of Council approval!

It’s likely crossed most home owners’ minds:  it might be nice to replace the front fence, or it’s time to upgrade to a bigger backyard garden shed. But before home owners get too excited, it’s crucial that any plans for any kind of development are submitted to the local Council. Omitting this step could result in not only a potential fine and conviction, but the demolition of that dream development.

Why do Home Owners need Council approval?

Home owners sitting on their deck admiring the view should be thankful that there are no high rise developments in their line of sight and for that they can thank their Council’s Local Environment Plan. Each Council’s Local Environment Plan sets out what each parcel of land in a suburb and community is zoned as and therefore what can or cannot be built there. So in a residential area, it may be prohibited for buildings taller than two stories to be built, or for a rubbish dump to be next to a child’s primary school. But these same regulations also limit what a home owner can and cannot do with their own land, from what kinds of home businesses they can run, to what kind of additions, renovations and developments can be constructed as well as what kinds of development require consent. [...]  READ MORE →

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Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50

The Court of Appeal recently considered and upheld a judicial review decision, Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2019] NSWLEC 117 (“Universal  1”). As a result, we now have a unanimous decision from the Court of Appeal of NSW that the statutory requirements found in Schedule 5 of the Environmental Planning and Assessment Act 1979 to afford procedural fairness to a recipient of a section 9.34 Notice are sufficient to exclude any remaining common law rights.

Universal 1 was a decision made by Justice Biscoe in the Class 4 jurisdiction of the Land and Environment Court, in relation to the validity of a Development Control Order No. 10, Restore Works Order issued under section 9.34 and 9.35 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (‘the Act’). [...]  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 →

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Introduction of Local Government COVID 19 Regulations – Financial Relief

The State Government on 17 April 2020 has made the Local Government (General) Amendment (COVID-19) Regulations 2020 (‘COVID-19 Regulation’) to amend the Local Government (General) Regulations 2006 (‘Local Government Regulations’). This amendment was sparked by the strict procedural and financial provisions within the Local Government Act 1993 (‘Local Government Act’), limiting councils in providing financial relief for ratepayers during the COVID-19 pandemic.

These changes to the Local Government Regulations has allowed councils to waiver or reduce fees in response to the pandemic and delay payment of an instalment of rates over the next month (from date amended). Additionally, the COVID-19 Regulation has permitted councils additional time to prepare the following documents over the next month (similar from date amended): [...]  READ MORE →