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Case Summary: NSW Land and Environment Court rules on Proposed Developments in a Boatyard at Berrys Bay

The NSW Land and Environment Court (NSW LEC) in Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 (Stannards Marine Case) highlights the importance of considering the objectives of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the Sydney Harbour Foreshores and Waterways Development Control Plan 2013, and the principles of public trust and intergenerational equity embedded in those statutory instruments, when deciding the outcome of development applications relating to developments within the Sydney Harbour. [...]  READ MORE →

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Case summary – EPA v Sydney Water Corporation [2020] NSWLEC 153

Summary

The case of EPA v Sydney Water Corporation [2020] NSWLEC 153 was heard in the LEC in the Class 5 jurisdiction before Pain J.

Proceedings in the Land and Environment Court’s (LEC) Class 5 jurisdiction typically involve summary criminal enforcement proceedings (initiated by government authorities prosecuting offences against planning or environmental laws).  According to the statistics published by the LEC, 32% of the prosecutions commenced in 2019 were initiated by the Environment Protection Authority or Office of Environment and Heritage. [...]  READ MORE →

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Application Modification

The recent NSW Court of Appeal case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 raises concerns as to the power to modify an existing development consent. The bench included Meagher, Leeming JJA and Chief Judge of the Land and Environment Court Preston CJ.

The case involved an application to modify an underground coal mine in the Hunter Valley. The Court found that the Land and Environment Court judge has erred in joining the objectors and ordered that the joining of the objectors be set aside. [...]  READ MORE →

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Laws for the Paws

Introduction

The COVID-19 pandemic has changed what we used to consider a “normal” working environment as working from home is now the new status quo. Fortunately, this has allowed many of us to bond with our pets but what happens when our beloved pets get themselves into trouble? And the next question that follows, to what extent can local council officers enter our property to seize our pets?

Powers to entry property under the CAA Ct

In New South Wales, the Companion Animals Act 1998 (NSW) confers large powers upon local councils to regulate the effective and responsible care and management of our little furry companions. [...]  READ MORE →

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Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

The above case in the Land and Environment Court reminds us of the crucial role that investigators of a Public Authority, such as Council Officers, play in upholding the foundational principles and goals of the Environmental Planning and Assessment Act 1979. The carrying out of development without consent or not in accordance with the consent undermines the objects of the Act, and Council Officers are usually the ones who bring this conduct to the attention of the Court.

 “People need to be aware that the offence of carrying out development not in accordance with development consent is a crime, that offenders will be prosecuted and that the Court will impose significant penalties on offenders”  Chief Justice Preston [...]  READ MORE →

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Clarity Regarding Council Entry to a Residential Premise

The recent decision of the Land and Environment Court in Bobolas v Waverly Council (No 2) [2020], the latest instalment of cases between Bobolas and Waverly Council (‘Council’), provides clarity as to the powers of entry possessed by councils onto residential land. This decision considered an application for judicial review challenging a section 22A order issued by Council is accordance to section 124 of the Local Government Act 1993 (NSW) (‘the Act’).

The order sought by Council on 29 January 2020 was to remove waste and refrain from collecting further waste at the property by 26 February 2020. Pursuant to section 124 of the Act, a section 22A order enables council to issue such an order ‘to remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises’ if ‘the waste is causing or is likely to cause a threat to public health or the health of any individual’. [...]  READ MORE →

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Difficulties due to COVID-19 not an excuse to vacate a hearing date

A recent decision in the Land and Environment Court to set aside a Registrar’s order that a three-day hearing be set aside substantially due to the difficulties associated with the COVID-19 pandemic has shown the Court’s willingness to facilitate the continuation of hearings, where appropriate, despite the difficulties associated with virtual hearings.

In DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31, during a general call over of all matters pursuant to the Court’s adoption of the COVID-19 Pandemic Arrangements Policy, the solicitor for the City of Parramatta Council sought an order that the hearing the subject of the Class 1 Appeal, scheduled to take place in May 2020, be vacated. [...]  READ MORE →

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UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63

A recent Land and Environment Court claim brought in respect of Class 3 proceedings to determine the compensation payable for the compulsory acquisition of a leasehold interest has resulted in the determination that the applicant be awarded nil compensation taking when into consideration outstanding occupation fees, as well as an order for a non-party cost against the director of the applicant company.

In late 2016, Sydney Metro served a Proposed Acquisition Notice on UTSG Pty Ltd (“UTSG”) in respect of its leasehold interest in premises located in Park Street, Sydney, for the purposes of construction of the Sydney Metro – City and South West Project. Sydney Metro had already acquired the freehold interest in the Park Street property, and advised UTSG they required vacant possession of the property by April 2017 and that rent remained payable for occupation of the premises. Rent remained at the amount previously paid by UTSG, being $31,402 per month (plus GST of $3,140) to be paid to Sydney Metro. [...]  READ MORE →

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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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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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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 →