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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’).

This case also deals with the validity of orders (pursuant to section 9.34) issued to an Owner of a building (the landlord), as opposed to an Occupier.
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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’.
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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.

The hearing was scheduled to be heard before Acting Commissioner Bindon, who had, as part of the section 34 process, attended the subject site and heard submissions from nearby residents. Council argued that the hearing should be vacated as it was necessary for all relevant parties to attend the site as part of the hearing, which would be difficult in the current climate. Further, Council had only recently retained a planning expert who had not yet attended the site, and was unwilling to go the site due to COVID-19. Despite submissions from the developer as to the prejudice to the developer if the hearing was vacated, and a submission that the matter should proceed by way of audio-visual link due to the fact that Acting Commissioner Bindon had already attended the site and heard from residents, the Registrar ultimately made the decision to vacate the hearing date.
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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):

  • Budget review statement for the quarter ended 31 March 2020
  • Annual reports
  • Audited financial reports
  • Operational plan

It also allows council to notify and provide inspection of various documents through their website rather than in newspapers or at council’s officers.
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Requests pursuant to GIPA Act

A recent Civil and Administrative Tribunal decision has upheld a local council’s decision to refuse an individual’s request for documents pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act).

A resident and ratepayer (“the applicant”) who resides in the local government area of the Sutherland Shire Council, made a request pursuant to the GIPA Act for documents relating to Council’s stormwater management investigation in respect of a stormwater issue on/near the applicant’s property, including information on who had directed Council’s officers, and who drafted responses on behalf of Council officers. In particular, the applicant sought the following records relevant to this decision:

  1. I request a record of the written report of the ‘visit’ by the relevant officer/s (ref:8/1/19), CR18-301708 Mr Barber’s email 5/12/18, para 3)
  2. Should no record exist for the ‘visit’ in Item 7, then I request the record supporting Mr Barber’s conclusion: there was no ‘problematic overland flow.’
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Builders Beware – The Importance of Council Approval

A recent Land and Environment Court Case highlights the importance of obtaining Council approval before spending time and incurring costs in constructing a secondary dwelling on a property.

The case of Sutherland Shire Council v Perdikaris [2019] NSWLEC 149 tells the tale of a man named Mr Perdikaris who made the decision to build a new shed on his property in Menai, to replace a small garage which was not suitable for his needs.

He started by seeking Council approval, which was granted, for the building of a driveway. This application did not contain any reference to the construction of a garage. Mr Perdikaris then sought quotes for a garage. During this process, he received advice from various companies that he did not necessarily need approval for a new garage. Mr Perdikaris also assumed that as there had already been approval for the previous, smaller garage, it would not be necessary to seek approval for a larger garage, in circumstances where the larger garage kept the same distance from the neighbours fence as the smaller garage had.
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Part 6 of the Environmental Planning and Assessment Act is Finally Coming into Effect (Hopefully)!

On 30 August 2019, the NSW government introduced the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW). With this, Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is likely to finally come into effect on 1 December 2019, bringing significant changes to the building approval and certification regimes in NSW.

Background

Part 6 of the EPA Act was inserted into the EPA Act as part of the major reform package introduced by the Environmental Planning and Assessment Amendment Act 2017 (NSW). With the exception of the sections relating to the Building Information Certificate, Part 6 did not immediately commence with most of the reform package. Instead, its commencement was delayed several times to enable industry to make the transition.

Introduced by the state government as a part of its response to the report on the building certification regime in NSW by former state treasury secretary Michael Lambert (the Lambert Report), Part 6 of the EPA consolidated all provisions relating to building certification – which was previously found at various parts of the EPA Act – into a one single part within the EPA Act. Further, Part 6 will make the following substantive changes:
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An Ethical Issue Expert Witness Opinions

The recent case of DeBattista v Minister for Planning and Environment [2019] NSWCA 237 highlights the importance for an expert witness to provide a report that reflects their own opinion unless stated otherwise.

In this case, Council engaged with an external Urban Design Consultant (Consultant) to comment on a planning proposal. After Council requested significant changes to the first and second draft reports, the Consultant provided a third and final version adopting such changes. The contention was that the final version of the report failed to identify the adopted comments from Council and thus was prima facie the Consultant’s prepared report based on their own opinion.

His Honour divulged the greater pressure asserted on the Consultant by Council noting that the terms of the professional’s retainer were that it would not be paid if Council was dissatisfied with the opinion provided. His Honour further stated that:

No professional should assent to such a term. No ethical client should demand it
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