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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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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.

Firstly, the applicant for the interlocutory injunction must prove there is a serious question to be tried. It is not necessary, for the purpose of addressing this element, to show that the applicant has a strong case. It would be sufficient to show that the applicant has a prima facie case by identifying the statutory or other legal rights on which the final relief are based.

Secondly, the applicant must show that the balance of convenience favours the applicant. In the planning and environmental law context, the Court would often consider the following non-exhaustive factors:
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No ‘Character of the Local Area’ in diverse neighbourhoods

Under clause 16A of the State Environmental Planning Policy (Affordable Rental Housing) 2009, a consent authority must not consent to a development if the design is incompatible with the character of the local area.

In the recent decision of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden), clause 16A played a prominent role in Commissioner Gray’s judgement. In that case, the Council had refused the development, inter alia, because the development’s design did not match the local aesthetic. The Council relied on the argument that the setbacks and design of the proposal were inconsistent with other residential flat buildings in the local area.

However, Commissioner Gray rejected this argument in favour of the Applicant’s reliance on Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture). There, Roseth SC stated [at 22]: Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
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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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3 Tree-Lessons from the Land & Environment Court

Trees can mean many things to many people, for the ancient Norse people Yggrasil “the giant tree of life” connected the heavens and the earth, for real estate agents in metropolitan Sydney it delivers a mystical extra $40K to the selling price, and for the ancient welsh druids – stationary lovers. This varied appreciation of trees also extends to the many and various Class 2 applications in the Land & Environment Court. One person’s tree delights, is another’s waking terror.

  1. Annoyance or Discomfort of the Third Kind

If your neighbour’s trees or hedges continue to deposit leaves and other detritus all over your property, the best solution maybe to forgo the Class 2 Application and pick up a rake instead – as the Court has found that Gaia’s garbage will not be enough to engage an application by an affected land owner pursuant to section 7 (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act):
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