JUDGMENT AND ORDERS – application to vacate hearing dates – hearing on a separate question ordered on hearing dates – hearing dates not vacated – respondents to take all reasonable steps to have Class 1 appeal concerning modification application heard and determined expeditiously – respondents to pay the applicant’s costs of the motion
DEVELOPMENT– Demolition of existing demountable building and construction of new pub – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – demolition of two dwellings and construction of a residential flat building – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – construction of a manufactured home estate – Longyard golf course – proposed development near Tamworth’s Sports and Entertainment Precinct – compatibility with adjoining land uses – playability of the golf course – consideration of impacts relating to acoustics, transport, town planning, stormwater and sewerage, amenity and lighting – site suitability
APPEAL – development control order – demolish works order – stairway constructed on public reserve – statutory requirements for the issue of the order met – discretion as to whether order should remain or be revoked in circumstances where the Council’s own actions and plan of management supported the construction of the stairs – discretion exercised to vary the order to allow them to remain with work to be carried out
MODIFICATION APPLICATION – modification to approved parking – application of maximum parking rate in non-primary CBD centre but adjacent significant public transport hub
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the application was served correctly – PART 2 application – risk of damage or injury in the near future – orders for tree removal – PART 2A application – obstruction of sunlight – whether the trees are planted so as to from a hedge
DEVELOPMENT APPLICATION: Conversion of existing building – whether the proposed development will have a detrimental impact on the heritage significance of a contributory building in a heritage conservation area – whether the methodology of retaining the existing fabric is sufficiently certain – whether there is an unreasonable uncertainty of impacts to the building - appeal dismissed.
DEVELOPMENT APPLICATION – proposed construction of a dwelling house with on-site sewage disposal – Subject Site is flood liable land – Court cannot be satisfied that flooding risk to property and life is managed – insufficient information to assess adequacy of proposed sewage management
DEVELOPMENT APPEAL – residential apartment development – Apartment Design Guide – SEPP 65 – mixed use development – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall – who owns the retaining wall – tree should be removed – what repairs are required – who should pay for repairs
DEVELOPMENT APPLICATION – Earthworks – proposed clearing of an endangered ecological community – species impact statement – significant impact on an endangered ecological community – significant impact on threatened species – functionality of ecological corridor adversely impacted – development application does not comply with cll 7.6 and 7.31 of Liverpool Local Environment Plan – regard had to objectives of IN3 zone – retention of ecologically significant land not incompatible with zoning
APPEAL – modification of Concept Plan – incorporation of helipad adjacent to the Marina – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – centre based childcare facility – acoustic amenity in residential neighbourhood – traffic impacts in R2 Low Density Residential zone – public interest – resident submissions
DEVELOPMENT APPLICATION – boarding house – view loss – exceedance in height standard – cl 4.6 request for variation – character – conciliation conference – agreement between the parties – orders
COSTS – motion filed by first respondent seeking security for costs under r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) – applicable legal principles – security for costs ordered
NOTICE TO PRODUCE – Notice of Motion to set aside Further Amended Notice to Produce – whether there was a legitimate forensic purpose – whether it was on the cards that the documents sought would materially assist the applicant’s case – balancing of privacy and confidentiality concerns, the relevance of the material sought and the timing of issuance of the Notice to Produce with the burden imposed
DEVELOPMENT APPLICATION – residential dwelling – view loss – coastal protection – character – conciliation conference – agreement between the parties – orders
PRACTICE AND PROCEDURE – criminal proceedings commenced alleging breaches of s 120 of the Protection of the Environment Operations Act 1997 (NSW) – motions by defendants seeking orders that each summons be quashed, set aside or permanently stayed – whether summonses patently duplicitous – whether summonses latently duplicitous – summonses patently duplicitous
JUDICIAL REVIEW – application seeking declaratory relief in relation to decisions made by the Minister and Council to prepare, certify and adopt the Great Lakes Coastal Zone Management Plan – whether the applicant has standing – whether the impugned decisions were unreasonable – whether there was non-compliance with the Coastal Protection Act 1979 (NSW) and Guidelines for Preparing Coastal Zone Management Plans – whether there was a deficiency of information for the Great Lakes Coastal Zone Management Plan – whether there was a rational basis for the risk assessment in the Great Lakes Coastal Zone Management Plan – application dismissed
JUDICIAL REVIEW – notice of motion seeking leave to rely upon amended summons – amended summons challenged two additional decisions more than three months after each decision was made – leave to amend granted
DEVELOPMENT APPLICATION – alterations and additions to an existing building listed as a local heritage item – change of use of the first floor to retail – impact on the heritage significance of the heritage item.
JUDICIAL REVIEW – identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 being land identified by State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP)) of “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” not a jurisdictional fact
JUDICIAL REVIEW – identification of 100-metre proximity area around coastal wetlands not a disproportionate regulatory approach
JUDICIAL REVIEW – CM SEPP not invalid because Governor did not approve “Coastal Wetlands and Littoral Rainforests Area Map” at time of making CM SEPP
DEVELOPMENT APPLICATION – residential apartment development – SEPP 65 Design quality of residential apartment development – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – alterations and additions to a local heritage item – exceedance of the height of buildings development standard
JUDICIAL REVIEW – refusal by Northern Regional Planning Panel of site compatibility certificate under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 due to operation of State Environmental Planning Policy (Coastal Management) 2018 – whether State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP) or State Environmental Planning Policy No 14 – Coastal Wetlands and State Environmental Planning Policy No 71 – Coastal Protection apply due to transitional provisions – whether proximity area to coastal wetlands within coastal wetlands and littoral rainforests area for purposes of CM SEPP
CIVIL ENFORCEMENT – unlawful installation and construction of an On-Site Sewage Management System in contravention of conditions of an approval granted under the Local Government Act 1993 (NSW) – unlawful continual operation of On-Site Sewage Management System in contravention of conditions of an approval granted under the Local Government Act 1993 (NSW) – whether appropriate to grant declaratory and consequential injunctive relief by consent – relief granted
NOTICE OF MOTION – whether leave should be granted to the applicant to rely upon an expert report – motion filed shortly before commencement of the hearing of the substantive proceedings – leave granted to the applicant to rely upon expert report – leave granted to the respondents to rely upon further expert evidence in reply
MODIFICATION APPLICATION – proposed increase to vessel length – zoned W1 Maritime Waters and W6 Scenic Waters: Active Use under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 – interpretation of “mooring pen” – impacts of dredging
DEVELOPMENT APPLICATION – four storey dwelling – view loss – exceedance in FSR – cl 4.6 request for variation – streetscape – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – new driveway and path in front setback – new pergola wall – use of unauthorised works – consistency with character and streetscape – drainage - insufficiency of information
BUILDING INFORMATION CERTIFICATE – unauthorised works – bulk and scale – character – visual amenity – drainage - insufficiency of information
APPEAL – s 56A – appeal against a Commissioner’s decision on questions of law – relevant principles in s 56A appeals – 4.6 objections – appeal dismissed
ENVIRONMENT AND PLANNING – validity of development consent – mandatory relevant considerations – public interest – community notification requirements – invalidity
SENTENCE - environmental offence - breach of condition of Environment Protection Licence - Defendant operated a waste facility at a significantly greater annual volume than permitted - plea of guilty - Prosecutor asserts factors of aggravation - causing of substantial environmental harm not established - offence committed for financial gain conceded by Defendant - causing harm to human health not established - traffic impacts of truck-queuing and any consequences of trucks being untarped prior to entry to the site not demonstrated to constitute a factor of aggravation - offending conduct assessed as being at the top of the low range for such conduct - full 25% discount for guilty plea appropriate - penalty to be paid to the Environmental Trust - publication order required - appropriate penalty after discount for guilty plea is $90,000 - Defendant to pay Prosecutor's costs as agreed or assessed (but subject to opportunity to parties to seek some alternative costs order)
ENVIRONMENTAL OFFENCE – sentence – offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – offender directed the lopping of trees contrary to a tree preservation order – plea of not guilty – determination of appropriate penalty
ENVIRONMENTAL OFFENCES – defendant alleged to have procured an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – defendant alleged to have directed the lopping of trees contrary to tree preservation order
PROSECUTION – criminal trial – defendant pleaded not guilty to environmental offence – whether established beyond reasonable doubt that defendant procured lopping of trees contrary to tree preservation order
DEVELOPMENT APPLICATION – subdivision involving demolition of proposed heritage item – whether dwelling should be demolished – dispute of heritage significance – Planning Proposal for inclusion of site as a heritage item in LEP – whether Planning Proposal is imminent and certain – economic cost of restoring dwelling and impost to owner as consideration of heritage significance and whether warranting demolition of dwelling – value of landscape component (garden) in contributing to site’s heritage value – remnant trees forming part of a Critically Endangered Ecological Community – whether proposed lot configuration acceptable in streetscape – disputed condition of any consent – objections to development
DEVELOPMENT APPEAL – heritage conservation area – whether the site is a contributory property – Federation and Inter War character – Springdale Heritage Conservation Area
CONDITIONS OF CONSENT – appeal against the terms of two conditions of consent of the development consent granted by the respondent – form of the rear roof extension to an existing single storey terrace house
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – risk of injury – whether the applicant’s actions contributed to risk of damage or injury – the tree was there first – who should pay for works – orders for pruning
ENVIRONMENTAL OFFENCE – Sentence – Radiation Control Act – Radiation Control Regulation – transport of radioactive substance – non-compliance with security plans – plea of guilty – objective seriousness of the offence – harm includes remote events – monetary penalty imposed – principle of totality – no publication order
DEVELOPMENT APPLICATION – boarding house – character and streetscape – lot isolation – FSR – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – New residential subdivision and development – remitted matter – variation to height control – determination of the relevant contribution rate
APPEAL - proposed residential flat building development - development in flood risk area - unless removed, flood risk precludes granting of development consent - Council refused development consent on the basis, inter alia, of flood risk - Class 1 merit appeal - Applicant supported use of a deferred commencement condition to resolve flood risk and render the proposed development approvable - Commissioner concluded that, having regard to the flood planning clause in the Wingecarribee Local Environmental Plan 2010, use of a deferred commencement condition for this purpose was not permissible - Commissioner refused development consent on this basis - Applicant alleges error of law in Commissioner's conclusion - Applicant pleads four grounds in support of this appeal pursuant to s 56A of the Land and Environment Court Act 1979 - all four grounds rely on the Applicant's interpretation of an element of the flood-planning clause - Applicant's interpretation rejected - appeal dismissed - Applicant to pay Respondents costs as agreed or assessed
DEVELOPMENT APPLICATION – residential flat building including affordable housing component and boarding house – conciliation conference – agreement between the parties – orders
CIVIL PROCEDURE – Notice to Produce – objection to production of documents – relevance – legitimate forensic purpose – oppression – Notice to Produce amended
COSTS - application by Applicant to vary and expand upon costs order proposed in primary judgment - application for indemnity costs based on non‑acceptance of offer of compromise - offer incapable of lawful implementation if accepted - not a valid offer - no basis to award indemnity costs - application for costs order against Second Respondent - no proper basis to make costs order against Second Respondent - submissions that costs for substituted performance application to implement Order (1) of primary judgment should not be on the indemnity basis and that charged elements were excessive - submissions rejected - costs of substituted performance application for implement Order (1) of primary judgment appropriate to be ordered on the indemnity basis - appropriate to make a gross sum costs order for these costs - gross sum costs order made - partial success for both parties in costs proceedings - appropriate that there be no order for costs of costs proceedings
MODIFICATION APPLICATION – developer contributions – conditions require public road to be constructed over land dedicated as a laneway – agreed material public benefit – whether there is power to amend the contribution – basis for reducing contribution
TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of land – Rural Landscape zone – the tree is on land to which the Trees Act does not apply – orders made at the onsite hearing set aside – the application is refused
DEVELOPMENT APPLICATION – seniors housing – independent living – residential aged care – conciliation conference – agreement between the parties – orders
COMPLYING DEVELOPMENT CERTIFICATE - solar voltaic array erected in R4 Large Lot Residential Zone - array erected relying on complying development certificate issued pursuant to State Environmental Planning Policy (Exempt and Complying Development) 2008 - policy not available to permit construction of the array - complying development certificate invalid - second complying development certificate issued - second complying development certificate relies on State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array rendered permissible in the R4 Zone despite being otherwise prohibited - validity of second complying development certificate - issue of whether State Environmental Planning Policy (Infrastructure) 2007 rendered solar voltaic array complying development - construction of provision of State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array complying development - second complying development certificate valid - summons dismissed
CRIMINAL OFFENCES: whether commencement of criminal proceedings time barred — onus of proof — proper construction of statutory time bar — whether prosecutor had to elect which time period applied to commencement of proceedings — meaning of “any act or omission constituting the offence” —proceedings commenced within time.
DEVELOPMENT APPLICATION – dwelling house – height non-compliance – cl 4.6 written request – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – the trees have been removed – damage – fence – driveway – compensation sought – orders for fencing works – no orders to control future plantings
PROCEDURE – appeal against stop work order in Class 1 proceedings – unilateral assumption of nullity of development consent and invalidity of construction certificates by local council underpinning stop work order – all issues arising should be determined in Class 4 proceedings
SEPARATE QUESTION – proposed separate question not dispositive of proceedings – necessity for expert evidence on separate question – likelihood of appeal of any determination of separate question – no significant saving of time – separate question not appropriate
MODIFICATION APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders
APPEAL – development application – existing use as place of public worship – enlargement of existing use – acoustic impacts – traffic and parking impacts – development control plan parking requirements – whether on-street parking is adequate
APPEAL – development application – mixed use development – breach of FSR and height development standards – adequacy of cl 4.6 requests – public interest in maintaining the FSR development standard
DEVELOPMENT APPLICATION – additions to an existing dwelling – condition of consent regarding tree retention – contribution of the tree to the Heritage Conservation Area – whether removal of the tree would ordinarily require a permit – whether there is any reason to remove the condition of consent
PROSECUTION - amendment of charges - charges held to be duplicitous - application to amend charges - application seeks to substitute multi-count charges for single count in each instance - application to reopen amendment application - Prosecutor makes application to reopen - application to rely on affidavit and supporting material - objection by Company - Company submits supporting material unlawfully obtained - taking Prosecutor's case at its highest, affidavit and supporting material would not assist in establishing a basis to permit multi-count amendment - application to reopen refused - consideration of whether multi-count amendment would effect injustice on the Company - multi-count amendment would be unjust - Prosecutor seeks single-count amendment in the alternative in each instance - single-count amendments not unjust - single-count amendments within power - single-count amendments permitted
COSTS - parties equally successful on applications to amend - no order for costs
DEVELOPMENT APPEAL – residential apartment development – apartment design guide – SEPP 65 – a mixed use development – heritage conservation – conciliation conference – agreement between the parties – orders
ENVIRONMENTAL OFFENCE – protection of the Environment Operations Act – pollution of waters – breach of license – plea of guilty – discharge of treated sewage effluent into Perisher Creek – objective seriousness of the offence – prior convictions – discount for early guilty plea – assistance to authorities – monetary penalty imposed – principle of totality – publication order made
DEVELOPMENT APPLICATION – rooftop parking with elevated driveway (bridge) over lower footpath for approved dual occupancy – impacts on public domain particularly existing footpath and landscaped reserve – view impacts – whether in keeping with existing or desired future character – height exceedence – requirement for a clause 4.6 request to be upheld – whether compliant with LEP requirement for dual occupancy in low density zone to appear as a dwelling – precedent – public interest
MINING – review of final determination of arbitrator under 151(2)(a) of the Mining Act – whether cropped paddocks are “significant improvements” – terms of final access arrangement
SEPARATE QUESTION – whether proposed development prohibited under cl 4.1B of the Wollondilly Local Environmental Plan 2011 – proper construction of cl 4.1B – development permissible
DEVELOPMENT APPEAL: residential apartment development – residential flat building – compliance with the National Construction Code – performance solution for fire egress
DEVELOPMENT APPEAL: seniors living – housing for seniors and people with a disability – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – boarding house – height standard non-compliance – cl 4.6 request – conciliation conference – agreement between the parties – orders
JUDICIAL REVIEW – validity of complying development certificate titled “Masterplan CDC” for land zoned industrial – whether proceedings statute barred – staged development cannot be subject of complying development certificate – development subject of Masterplan CDC impermissibly designated development – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development
JUDICIAL REVIEW – validity of two modifications of Masterplan CDC – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development
CIVIL ENFORCEMENT – deposition of fill without development consent – unauthorised deposition of fill in neighbouring council reserves – inadequate or no sediment and erosion control measures in place for fill deposition
CIVIL ENFORCEMENT – operation of resource recovery facility on land without development consent
CIVIL ENFORCEMENT – water pollution – fill and sediment deposited in creeks in neighbouring council reserves – respondent owner was occupier and arranged for fill to be placed
CIVIL ENFORCEMENT – substantial remedial orders sought – exercise of discretion whether to make declarations and remedial orders where substantial delay in commencement of enforcement proceedings by council
APPEAL - proposed secondary dwelling - compliance with minimum allotment size requirements - proposal permissible pursuant to cl 22(4)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 - proposal prohibited by Appendix 4, cl 4.1AC of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - both State Environmental Planning Policies contain paramountcy clauses - paramountcy clauses to identical effect - neither paramountcy clause can prevail - determining which provision is to apply based on general principles of statutory interpretation - consideration of hierarchy of instruments - consideration of specificity of provisions - consideration of timing of the making of the conflicting provisions - more restrictive provision is later in time and considered to be more specific - proposed development in breach of minimum allotment size development standard
DEVELOPMENT STANDARD - beneficial and facultative provision in applicable Precinct Plan permitting dispensation from applicable development standard - no application to seek dispensation from applicable development standard - all town planning issues otherwise resolved - appropriate to permit Applicant the opportunity to consider whether to apply for dispensation from compliance with development standard - self-executing order to dismiss the development appeal if Applicant does not apply to seek dispensation from compliance with breached development standard
CONTEMPT – order pursuant to the Trees (Disputes Between Neighbours) Act 2006 for pruning of a hedge – height below which the hedge was to be maintained specified in the order – hedge pruned to that maximum height but permitted to grow before further pruning took place – contempt wilful but not contumacious – conviction appropriate – consideration of relevant factors meant small fine appropriate – Respondent fined $500
COSTS – no rule that costs in contempt matters be ordered on the indemnity basis – contempt proceedings uphold the integrity of the Court’s orders – reasonable that costs be ordered on the indemnity basis – appropriate to make a gross sum costs order – gross sum costs order made for $47,126.
DEVELOPMENT APPLICATION – multi-dwelling development – minimum lot size non-compliance – height non-compliance – cl 4.6 written request –conciliation conference – agreement between the parties – orders
COSTS – motion by applicant seeking orders that each of the two motions filed by the respondent be dismissed and an order that the respondent pay the applicant’s costs in relation to the motions on an indemnity basis – whether costs should be awarded in the applicant’s favour – motion dismissed – no order for costs
DEVELOPMENT APPLICANTION – removal and replacement of fence structures – conciliation conference – agreement between the parties – orders
NOTICE OF MOTION – application to amend the Court’s orders to allow for correct case name, parties name references and condition of consent – Uniform Civil Procedure Rules – rule 36.16(3A)
APPEAL - proposed medium density residential development - impact of development on views - amendment to proposed development provides appropriate amelioration of view loss from one potentially impacted dwelling - view impacts from other potentially impacted dwellings acceptable - impact on critically endangered ecological community known as Eastern Suburbs Banksia Scrub - protection of connectivity of endangered community with other remnant vegetation - redesign of development to improve conductivity - rehabilitation of portion of the site to re-establish endangered ecological community - balancing present loss of endangered ecological community with future increase in area through re‑establishment on portion of the site - future protection of endangered ecological community by public positive covenant in favour of the Council requiring Revised Vegetation Management Plan and Fire Management Plan - future benefits for endangered ecological community outweigh immediate impact - revised development appropriate to be approved subject to settlement of relevant documents including public positive covenant in favour of the Council - directions given to permit preparation of settled plans and documents as a basis for giving of development consent.
DEVELOPMENT APPEAL – desired future character – amenity of neighbouring properties – foreshore scenic protection area – contemporary and innovative design
JUDICIAL REVIEW – construction of condition of development consent granted in 2004 concerning amount of material that can be extracted from quarry – no ambiguity in development consent condition
JUDICIAL REVIEW – variation of environment protection licence based on legal error – variation set aside
DEVELOPMENT APPLICATION – roof signage – Parramatta Road transport corridor – desired future character – State Environmental Planning Policy No 64 – Advertising and Signage – height standard
DEVELOPMENT APPLICATION – addition of a rear deck on the second floor of a terrace house – impact on the heritage significance of the heritage conservation area – impact on the amenity of the northern neighbour
ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – procedure – Civil Procedure Act s 64 – amendment to points of claim – Roads Act 1993
APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld
MINERAL CLAIMS - dispute concerning opal mining on three Mineral Claims in the Lightning Ridge region - arrangement between Applicant and First Respondent to undertake mining activities - arrangement based on profit share of opal won - Applicant to contribute mining equipment and labour whilst First Respondent contributed Mineral Claims - First Respondent unilaterally terminates arrangement - characterisation of the arrangement - arrangement was not a partnership - dispute as to terms under which the arrangement operated - First Respondent's version of terms for the arrangement not accepted - First Respondent's termination of the arrangement unlawful - not practical to reinstate arrangement - appropriate remedy to transfer one Mineral Claim to the Applicant - First Respondent ordered to transfer Mineral Claim to the Applicant
MINERAL CLAIMS - First Respondent holder of two Mineral Claims - issue of whether arrangement between Applicant and First Respondent extended to mining both claims or merely the first claim upon which mining had commenced - purported sale of one Mineral Claim to Second Respondent - sale a sham - arrangement between Applicant and First Respondent encompassed mining of both Mineral Claims - appropriate to resolve the dispute between the Applicant and First Respondent on the basis that the First Respondent retained ownership of one Mineral Claim and beneficial ownership of the second Mineral Claim.
MINERAL CLAIMS - First Respondent blockades Applicant’s mining equipment in underground workings - equipment detained for ~ 327 days - detention arose as part of dispute over unlawful termination of mining arrangement - claim for damages for detention of equipment - Applicant’s equipment detained unlawfully by actions of the First Respondent - opal mining inherently speculative and no proper basis available to calculate compensation for unlawful detention of mining equipment - compensation claim dismissed
MINING EQUIPMENT - specialist equipment known as a Super Digger used for underground opal mining - Super Digger owned by the Applicant - desire of the First Respondent to have similar equipment constructed for his own purposes - necessity to have Applicant’s Super Digger measured for those purposes - dispute between the Applicant and First Respondent over costs of works undertaken to the Super Digger - Applicant's evidence preferred - First Respondent ordered to pay $10,000 to Applicant
EVIDENCE - evidentiary conflict between Applicant and First Respondent - limited corroborative evidence - First Respondent's evidence untruthful or unreliable in a number of respects - evidence of Applicant to be preferred over that of the First Respondent unless First Respondent's evidence independently satisfactorily corroborated
COSTS - although Applicant not entirely successful, no basis warranting apportionment of costs - Second Respondent (nominal owner of one transferred Mineral Claim) played no active part in proceedings - appropriate to order that First Respondent pay the Applicant’s costs as agreed or assessed unless some alternative costs order is sought within 14 days
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the first earlier proceedings (concerning Court orders made in 2015) related to accumulation of waste on residential premises - unsafe outbuilding on the property - and potential safety risks arising from unconstrained vegetation growing over the roof of the dwelling on the property - orders made in 2015 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out - order for waste removal exhausted - order for removal of unsafe outbuilding not satisfied - order for removal of vegetation partially satisfied - challenge to ongoing validity of unfulfilled orders - unfulfilled orders remain valid - order that the respondents refrain from keeping further waste on the property - clear from the site inspection that that order has been breached and there is presently a significant accumulation of waste on the property - no current order that would permit access to the property to rectify the breach - appropriate to provide an opportunity for the Council to seek a further access order to rectify breach - proceedings adjourned to provide Council with an opportunity to seek access orders
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the second earlier proceedings (concerning Court orders made in 2018) related to accumulation of waste on residential premises - Court orders made in 2018 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out in February 2019 - Council serves notices of intention to undertake further waste removal following additional accumulation of waste since February 2019 clean-up - notices based on asserted continuing operation of Order 22A of table to s 124 of the Local Government Act 1993 issued to the applicants on 22 November 2017 - was the 22A Order for waste removal exhausted? - terms of order were to remove waste within 28 days - the 22A Order did not require those to whom the order was issued to refrain from keeping waste on the premises - the 22A Order is exhausted - no basis for the Council to rely on the 22A Order for further waste removal activities - declaration appropriate and orders to restrain the Council from undertaking further clean-up activities in reliance on the Order 22A issued to the applicants on 22 November 2017
COSTS - costs reserved.
ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved
ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved.
COSTS – two notices of motion – decision of Registrar to uphold notice to produce and subpoena to produce documents to third party – challenge to decision of Registrar – no party successful overall
DEVELOPMENT APPLICATION – multi-dwelling development – flood risk – reliance on evacuation plan with safe egress - tree protection plan – absence of root mapping – character and streetscape consistency
PRACTICE AND PROCEDURE – notice of motion filed by the applicant seeking leave to re-open case after receiving evidence and hearing argument in relation to an earlier notice of motion filed by the applicant seeking urgent interlocutory relief – motion dismissed
DEVELOPMENT APPLICATION – masonry wall and new fence – consent orders – character – amenity – heritage conservation area – works wholly on applicants land
ENVIRONMENTAL OFFENCES: plea of guilty by a company to offence of contravening a condition of its environment protection licence – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – use of and weight to be given to the good character of an environmental offender - examination of comparable cases – purpose of a publication order – manner and extent of publication notice – publication order made – monetary penalty imposed.
MODIFICATION APPLICATION – amend conditions of consent relating to provision of public lighting – conciliation conference – agreement between the parties – orders
CIVIL ENFORCEMENT – use of land as a place of public worship – existing use – characterisation of use – place of public worship – whether use has been expanded, enlarged or intensified – enlargement of use
ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’
LAND AND ENVIRONMENT COURT – Jurisdiction and Powers – Class 4 – Heritage Act – Interim Heritage Order – statutory authorisation – local council – statutory construction – conditions of minister’s authority under Heritage Act – discretionary powers – invalidity
INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – threatened species – flood risk – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – motion dismissed
DEVELOPMENT APPLICATION – alterations and additions to dwelling house – neighbourhood shop – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – boarding houses – traditional housing design – neighbourhood residential density – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – boarding house – whether the proposal is compatible with the character of the local area – the proposal does not meet the parking standard – overshadowing of adjoining property – impact on views across the site – amenity of boarding rooms – vicinity of heritage conservation areas and impact on setting – management of tandem car parking
NOTICE OF MOTION – deemed refusal of application to modify development consent which provided for use of land as a brothel subject to a two-year trial period – modification sought a continuation of the use on a permanent basis – motion filed by applicant to strike out sole contention in respondent’s statement of facts and contentions and vacate conciliation conference listed – motion dismissed – conciliation conference listing vacated
PROSECUTION – plea of not guilty to charge of unlawful clearing of native vegetation – three pre-trial applications by Defendant – order to stay part of charge period as authorised officer aware of clearing earlier than stated in amended summons – order that part of charge period statute barred as evidence does not disclose continuing offence – order preventing reliance on admissions by Defendant in related Class 4 and Class 1 proceedings – no orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – bamboo – obstruction of sunlight – the bamboo is not planted so as to form a hedge – other tree in the application is a single tree – Part 2A only applies to groups of two or more trees
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – boundary fence – climbing fig is a tree for the purposes of the Trees Act – the climbing fig has only been partly removed – orders for tree removal
PROCEDURE: application to set aside subpoenas and a notice to produce—whether oppressive—whether lacking any legitimate forensic purpose—applicable legal principles—application dismissed.
EVIDENCE: whether a claim for legal professional privilege or without prejudice privilege is a proper basis to set aside subpoenas and a notice to produce—exceptions to claim of privilege to communications made to further an illegal purpose—loss of privilege where joint-retainer—loss of privilege by reason of waiver—privileges not established.