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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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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.

What this means for you?

  1. Councils should ensure that their authorised issuing staff are made aware of these changes when issuing parking fines from 31 January 2019.
  2. Councils are encouraged to update any relevant manuals, procedures and systems that are involved with respect to parking fines.

Conditions for 10 minute grace period:

Councils are only required to enforce the 10 minute grace period if the following parking conditions are met:
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Increased Council and Court Powers under the recently reformed Environment Planning and Assessment Act

The recently reformed Environmental Planning & Assessment Act 1979 (the Act) continues to be rolled out over the first half of 2018. As well as the other amendments aforementioned in our previous article, one of the major changes to the Act is with regard to the increased powers given to Local Councils and Courts when dealing with complying development certificates for local development applications.

In order to achieve the NSW Government’s primary purpose “to promote confidence in our state’s planning system”, the Act aims to enable Local Councils and Courts to adequately and appropriately deal with developments and their relative certificates with more ease by granting them increased powers in this area.

Below is an outline of the major increases/changes in powers issued to Local Councils and Courts:

 

Powers to suspend work under a complying development certificate

Under the new amendments, Councils will have new investigative powers to suspend work under a complying development certificate for up to 7 days. Due to the generally fast paced nature of Complying developments, Council authorities have often found it difficult in using their current enforcement powers to ensure that improper or flawed complying developments are not being built. This new amendment seeks to address this issue, as it allows Councils to completely suspend works on a site while the 7 day investigative period happens, ensuring that they are able to fully exercise their enforcement options with regard to complying developments.
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Key Amendments to the Environmental Planning and Assessment Act

On 1 March 2018, the Environmental Planning & Assessment Act 1979 (the Act) underwent its largest and most significant change since it commenced in 1979. Many of the changes are expected to be implemented throughout 2018 with further amendments being rolled out over the course of the next two years.

The NSW Government has stated that the amendments provide “an updated, modern planning system that is simpler, faster and designed to ensure high quality decision and planning outcomes for the people of NSW”. The Bill was before NSW Parliament last year and was the subject of much parliamentary debate. The Bill was ultimately assented to on 23 November 2017.

Below is an outline of some of the key amendments made that will have a significant impact on local councils:

Amendments to the EPA Act Structure

One of the more noticeable reforms is the structural amendments that have been made to the Act. The former sections have been removed and replaced with 10 principal parts with decimal numbering of all provisions. Certain provisions have also been relocated as well as updates to the objects of the Act.
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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.

Examples of actions that may be undertaken in the Land and Environment Court include:

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Local Council Amalgamations: City/Country Policy Division

The NSW Government announced that the forced local council amalgamations in Sydney City areas will continue whilst the forced amalgamations in regional areas will be abandoned.  There will be no change to the 20 Councils that have already been merged.

The announcement from Premier Gladys Berejiklian has disappointed many of the local councils embroiled in legal battles over the amalgamations.

The five Sydney mergers that will be pushed forward, subject to the decision of the courts are:

  • North Sydney, Mosman & Willoughby
  • Hunter’s Hill, Lane Cove & Ryde
  • Strathfield, Burwood & Canada Bay
  • Randwick, Waverley & Woollahra
  • Ku-ring-gai & Hornsby

The Government plans to hold elections for the Sydney mergers that are still to occur as soon as possible.

Local Government NSW released polling information on Tuesday demonstrating that less than 20% of the community supported Council mergers.  Local Government NSW President, Cr Keith Rhoades AFSM strongly opposes the forced amalgamations stating that “Local Government is the only way the majority of ordinary individuals can have a direct input into the future of their neighbourhoods”.
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Local Council Amalgamations – Potential Backflip

Muiltiple reports state that the new NSW Premier, Gladys Berejiklian, may reverse the local Council amalgamation process set up by former Premier, Mike Baird.

The Premier is said to be considering a range of options including using plebiscites to allow merged Councils to unmerge, some reports saying by this year and others saying as late as 2020.  A plebescite is held by Governments to test whether people support or oppose a proposed course of action.  In practice this would allow rate payers of local council’s to vote on whether they want to de-amalgamate.

The Premier is also considering whether to dump plans to amalagamate the unmerged Councils currently fighting in Court.   Matthews Folbigg currently represents North Sydney Council in opposing the forced amalgamations.  Other Sydney Councils that are yet to be merged include Mosman, Willoughby, Woollhara, Randwick, Strathfield, Burwood, City of Canada Bay, Hunter’s Hill, Lane Cove and Waverley.

The catalyst for the backflip is said to be as a result of the impact of the deeply unpopular policy in regional areas.  The policy arguably caused the swing of more than 20 percent in the Orange by-election against the Nationals Party.  This caused the loss of a coalition seat held for almost 7 decades.
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