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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: [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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Amber Light Approach – Where to from Now?

The term ‘Amber Light Approach’ was first coined in Ali v Liverpool City Council [2009] NSWLEC 1327 to describe an approach that had been favoured by the Court at the time. Under this approach, the decision-maker in the Class 1 appeal jurisdiction of the Land and Environment Court would consider whether an otherwise unacceptable development proposal could be approved after making identifiable amendments. If the answer to this question is yes, then the Court may approve the development proposal after the requisite amendments have been made (Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC 1096). [...]  READ MORE →

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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. [...]  READ MORE →

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Compulsory changes to NSW Parking Fines – 10 Minute Grace Period

Starting 31 January 2019, amendments to section 123C of the Road Transport (General) Regulation 2013 were introduced by Road Transport (General) Amendment (Parking Fine Flexibility and Grace Period) Regulation 2018 which states that Councils will now be required to implement a regulated 10 minute grace period for certain paid parking offences that have a duration of more than one hour. These changes will affect all parking fine issuing authorities including NSW government agencies, Local Councils and Universities. These changes are compulsory and are not related to the recent NSW governments ‘opt in’ provisions to reduce the amount of parking fines. [...]  READ MORE →

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Section 34 Conciliation Conferences – Requirement for Reasons

A recent development consented to by a Commissioner of the Land and Environment Court during a Court mandated section 34 conference has been set aside by the Court of Appeal due to the fact that the Commissioner failed to give proper and adequate reasons for their decision. The Commissioner further failed to give proper reasons with respect to her satisfaction as to the legal perquisites to their power to grant the consent.

Huajun Investments Pty Ltd filed a class 1 appeal against City of Canada Bay Council’s deemed refusal of their DA which sough to demolish pre-existing structures on the DA site and replace it with an 8 storey-residential flat building. [...]  READ MORE →

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Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018

On 24 October 2018, the New South Wales upper house introduced the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (the Bill) with the stated aim of ‘[making] clearer the Government is serious about protecting the environment of New South Wales and the health of its citizen’, as well as ‘provide greater deterrence against illegal dumping of asbestos waste’.

The current laws on illegal dumping, transporting, and recycling of asbestos waste

The current version of the Protection of the Environment Operations Act 1997 (NSW) (the Act) provides for prohibitions against unauthorised dumping and receiving of waste in general [Ss 143 & 144, of the Act]. This general prohibition is complimented by asbestos-related provisions within the Protection of the Environment Operations (Waste) Regulations 2014 (NSW) (Waste Regulations), which detail the requirements for handling of asbestos waste. For example, the Waste Regulations requires the person delivering the asbestos waste to notify the owner of the landfill that will be receiving the asbestos waste [Clause 80(2), Waste Regulations], the occupier of the landfill site to cover up the disposed asbestos waste in certain manners [Clause 80(4), Ibid], the transportation of asbestos waste to follow certain regulatory requirements, including securing the asbestos materials securely during transport [Clause 78, Ibid] and wetting down the waste if the asbestos materials are contained soil [Clause 78(d), Ibid]. The Waste Regulations also expressly bans recycling and reusing asbestos materials [Clause 81, Ibid]. [...]  READ MORE →

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Inland Code: Simplifying development approval in Regional Code

The NSW Department of Planning & Environment has recently announced new legislation aimed to simplify and speed up the approval process for homes, home renovations and farm buildings in regional NSW. The Inland Code commences on 1 January 2019, with its major purpose to simplify the complying and exempt development rules in residential and rural areas of regional NSW. The rules and regulations with respect to complying and exempt development are going to be consolidated into the Inland Code, which will then form part of 3D of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.  [...]  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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Sentencing Principles for Water Pollution Offences

BACKGROUND

On 7 and 8 March 2018, judgment was delivered in Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 (Ardent) to impose a fine totalling $157,950 on Ardent Leisure Ltd (AL) for polluting Sydney Harbour after approximately 6000L of diesel fuel escaped into the waters from a fuel storage system at Rushcutters Bay marina.

AL was convicted with the following offences and penalty imposed:

  1. Section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for the pollution of waters in Rushcutters Bay (Water Pollution Offence) – Penalty $135,000.00;
  2. Clause 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) (UPSS Regulation) in relation to Ardent’s failure to include current ‘as-built’ drawing for the fuel storage system (UPSS Regulation Offence) – Penalty $22,950.00

A publication order for a notice of the offences was also made for the purposes of improving the effectiveness of general deterrence. [...]  READ MORE →