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Planning Principle Update: Brothels

Recently, in Yao v Liverpool City Council (Yao) [2017] NSWLEC 1167 the Land and Environment Court’s planning principle in relation to brothels was updated from the principles enunciated in Martyn v Hornsby Shire Council (Martyn) [2004] NSWLEC 614.

The planning principles in Martyn had been in operation for 13 years, and, in some instances, had been overtaken by development controls provisions in individual council development control plans. 

The updated planning principle requires (Yao at [25]):

When considering whether to grant consent for a development application for a “sex services premises” a consent authority should to take into consideration such of the following matters as are relevant to the development application:

1. the proximity to any sensitive land uses, such as, but not exclusively educational establishments, places of public worship, child care centres etc

2. the proximity to any premises used for residential accommodation,

3. paths of travel for different members of the community near the premises,

4. the hours of operation,

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The Benefits of Mediation

What is Mediation?

Mediation is a structured negotiation process whereby a neutral independent party, the mediator, helps the parties in a dispute to achieve their own resolution to the dispute.

When should parties mediate?

Mediation is most successful when the parties have a genuine desire to settle and prepared to compromise.

The following are examples of circumstances where mediation may occur:

  • compulsory referral to mediation by order of the court
  • before commencement of litigation
  • early in the stages of litigation
  • when the Plaintiff has prepared evidence but the defendant has not
  • after all evidence has been served and a court date has been set

Benefits

One of the key benefits of mediation is confidentiality.  The Civil Procedure Act 2005 provides that admissions made in mediation or evidence of anything said in mediation is not admissible in any proceedings before a court or other body (see s 30(4)).  If the mediation is unsuccessful, the substance of the mediation cannot be used against a party later in the proceedings.
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Swimming Pools – Selling or Leasing a property

From April 2016 new laws were enacted relating to the sale or leasing of properties in NSW with swimming pools.

Who is affected?

The laws affect the following stakeholders, in relation to properties with pools:

  • the vendor;
  • the purchaser;
  • the tenant;
  • the landlord;
  • the real estate agent;
  • the local Council;
  • an accredited Certifier.

What are the requirements?

Properties sold with a pool must have either:

  • a certificate of compliance;
  • relevant occupation certificate and certificate of registration; or
  • a certificate of non-compliance.

Properties leased with a pool must have either:

  • a certificate of compliance; or
  • a relevant occupation certificate and certificate of registration.

What is the role of Local Councils?

Local Councils are responsible for educating about backyard pool safety in their local communities including swimming pool inspections and community education.  The NSW Government also encourages safety through its swimming pool register and “Be Pool Safe” campaign.

Councils are required to:

  1. Develop and implement a swimming pool barrier inspection program in consultation with their communities.
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AGL’s Failure to Disclose Political Donations

AGL Energy Limited (AGL) and its subsidiary AGL Upstream Infrastructure Investments Pty Ltd (AGL Upstream) pleaded guilty in the Land and Environment Court to offences relating to the failure to disclose political donations (Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2, per Moore J).

Failures to Disclose

Section 147(11) of the Environmental Planning and Assessment Act 1979 (EP&A Act) provides an offence where a person fails to make a disclosure of a political donation when making a planning application.  The offence occurs where a person fails to make that disclosure where they knew, or reasonably ought to have known, that a disclosure was required to have been made under s 147.

In total there were 11 failures to make complete disclosure of political donations.  The offences committed by AGL and AGL Upstream occurred over a period from 2008 to 2014. Donations were made to the Liberal Party, the Australian Labour Party and the National Party.  The failures to disclose were in relation to both planning applications and modification of approval applications.
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