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Payment of Lodgement Fee is Essential for Making a Development Application – Lessons from Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

In Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 (Hinkler), the Court of Appeal confirmed the long-standing principle that development applications are not “made” until the lodgement fees for the applications have been paid. This case addressed the applicability of a savings provision under the State Environmental Planning Policy (Housing) 2021, emphasising the distinction between submitting and completing a DA under the Environmental Planning and Assessment regulation. For this reason, it is crucial that applicants are aware of their responsibilities in regard to development applications. [...]  READ MORE →

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The Introduction of Transport Oriented Development to the State Environmental Planning Policy (Housing) 2021

In December 2023 the NSW Government announced the introduction of the Transport Oriented Development (TOD) program to increase housing supply and density near the existing and planned transport hubs. Later in April of 2024, the TOD initiative culminated to the making of  theState Environmental Planning Policy (Housing) Amendment (Transport Oriented Development) 2024 (TOD SEPP), with the NSW Minister for Planning and Public Spaces announcing its arrival. This then commenced on 13 May 2024 by way of creation of a Chapter 5 in the  State Environmental Planning Policy (Housing) 2021 (Housing SEPP). [...]  READ MORE →

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Proposed Reforms for Low and Medium Density Housing

In December 2023, the NSW Department of Planning and Environment released its “Explanation of Intended Effect” (EoE) for proposed low and mid-rise housing reforms, aiming to address the housing crisis by enabling increased residential development in urban areas near transports and town centres. The reforms will propose significant changes to house permissibility, development controls and landscape regulations with public exhibition concluding in February 2024.

The housing crisis is a major concern for many individuals with an extensive shortfall of dwellings. The EoE is attempting to address this by by supplying new housing in existing urban areas (known as “infill development”), to facilitate low and mid-rise housing “near established town centres, and in areas where there is good public transport”. The proposed reforms look to expand the permissibility and development controls for certain forms of residential developments. Notably, the proposed reform would expand the permissibility of residential developments by: [...]  READ MORE →

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Limits to the power to amend undetermined development applications during Class 1 appeal proceedings before the Land and Environment Court (LEC)

Summary: The LEC has recently found that the proposed amendments to a development application on appeal were outside the power to amend, and in accordance with s 4.19 of the Environmental Planning and Assessment Act (EPA Act), and the substantive use as sought in the original development application submitted to Council is limited to the use as sought in the Class 1 Application.

Facts: In the matter of Reid v Woollahra Municipal Council [2023] NSWLEC 1611, the applicants sought leave to amend their development application (DA) to rely on amended plans and documents. The respondent, Woollahra Municipal Council (Council) opposed the application for leave to amend. The substantive proceedings were brought pursuant to ss 8.7 and 8.11 of the EPA Act against Council’s deemed refusal of a DA, which originally sought consent for demolition of an existing attached dual occupancy and construction of a new attached dual occupancy. The amended plans and documents sought a change to the erection and use of the development from an attached dual occupancy to a single dwelling. [...]  READ MORE →

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From Big to Small and Out of Luck: How the new Closing Loopholes Legislation stops Insolvent Employers seeking to dodge Redundancy payments

By Stephen Mullette, a Principal, and Keely Wunsch, a Law Clerk of Matthews Folbigg Lawyers in our Insolvency, Restructuring and Debt Recovery Group

New legislation closes a loophole which previously prejudiced loyal employees who stayed to help during an insolvency administration. Where once large businesses became small due to restructuring or run-down of a business during an insolvency administration, those employees who remained missed out on their entitlements because by the time they were terminated the business had shrunk to a size which fit within the small business redundancy exemption under s 121 of the Fair Work Act 2009 (Cth). This exemption applies to exempts small businesses with less than 15 employees from the requirement to make redundancy payments to employees. [...]  READ MORE →

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Important information for Landlords & Tenants regarding Make-Good

Make-Good rights and obligations are an important aspect of leasing for both Landlords and Tenants.

Landlords are often entitled to enforce their rights by requiring Tenants to comply with the Make-Good provisions when the Lease ends.

The Make-Good provisions should clearly define the condition in which the premises must be returned to by the Tenant at the end of the Lease.

Typically this means that the premises must be returned to the same condition that the premises was in at the commencement of the Lease, excluding fair wear and tear. [...]  READ MORE →

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Lease Incentive Deeds and Tenant Default.

Many retail and commercial transactions for landlords generally provide an Incentive for Tenant’s to enter into a Lease.

What is an incentive?

Standard Lease Incentives can include Landlord’s contributing towards the cost of the Lease fit out works / improving the premises, rent free periods, rent reductions over the term of the Lease.

Most Incentive Deeds, being separate to the Lease agreement, will also include a Clawback Provision – which allows a Landlord to demand payment for the incentive amount (reduced rental payments) in the event of default by the tenant of a term of the Lease. [...]  READ MORE →

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Leases – Heads of Agreement

A Lease Heads of Agreement is an essential first step in entering into a Lease, whether that be a retail or a commercial lease agreement.

There are several key essential commercial terms that should always be included in the Heads of Agreement, which is typically prepared by the agent acting for the Lessor / property owner.

Once the Heads of Agreement is agreed, a formal Lease is prepared and signed by the parties.

The parties can still negotiate the terms of the Lease which are not included in the Heads of Agreement terms. [...]  READ MORE →

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Unfair Contract Terms under the Australian Consumer Law and ASIC Act

UPDATE

We provide below an update to the applicability of the Unfair Contract terms national regime, further to our Mondaq Article issued on 23 May 2023 below:

New changes to and penalties for Unfair Contract Terms under the Australian Consumer Law (ACL)

https://www.mondaq.com/australia/corporatecommercial-law/1319814/new-changes-to-and-penalties-for-unfair-contract-terms-under-the-australian-consumer-law

Monetary Penalties

Following the introduction of monetary penalties, and the inclusion of small business contracts, effective from 9 November 2023, the Courts have made several interesting findings with respect to the unfair contract terms regime as governed by the ACL and the ASIC Act. [...]  READ MORE →

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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave their estate to whoever they choose. However, there may be circumstances in which a person has been left out of a will and believes they should have been included.  This situation often leads to family provision claims, as “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), grandchildren, and members of the household who were dependent on the deceased. [...]  READ MORE →

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Capacity Issues In Estate Planning

Establishing legal capacity is crucial, especially when contesting a will. It’s not always as straightforward as it sounds. The Supreme Court case of d’Apice v Gutkovich illustrates this complexity. In this case, Irene Abrahams (the deceased) was found to have the capacity to make a will, despite a prior decision by Guardianship Tribunal indicating she could not manage her affairs.

What is Legal Capacity?

Generally, legal capacity requires a person to:

  • understand the facts involved regarding the decision to be made;
  • comprehend the choices available;
  • Evaluate those choices and their likely effects;
  • Communicate the decision clearly.

It’s important to note that legal capacity requirements vary depending on the context. For wills, the foundational principles were established in the 1870 case of Banks v Goodfellow, which has withstood the test of time. [...]  READ MORE →

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A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario.

A person has made a will which leaves all their assets to their spouse. A few years later this person permanently separates from their spouse but forgets to amend their will. Some time later they become mentally impaired and they will no longer have the capacity to alter their will. [...]  READ MORE →