MODIFICATION APPLICATION – reduction sought in contributions payable pursuant to s 7.11 EP&A Act – 42 lot subdivision – whether there was unreasonable delay in the grant of development consent resulting in increase in contributions imposed after 1 July 2020 when Ministerial cap on contributions removed – whether the condition requiring contributions was unreasonable – whether for a condition requiring contributions to be unreasonable the unreasonableness must arise from the application of the contributions plan
DEVELOPMENT APPLICATION – proposed warehouse – size and frequency of vehicles to attend warehouse facility – consideration of AS2890.2 concerning off street commercial vehicle facilities – application of EP&A Act s 4.15(3A)
DEVELOPMENT APPLICATION – new semi-detached dwellings – Torrens title subdivision – interpretation of minimum lot size development standard – whether the development requires a request to vary the development standard – whether the development impacts on trees proposed for retention – whether the private open space is satisfactory – appeal upheld
DEVELOPMENT APPLICATION – new shop top housing development – Applicant granted leave for amended plans – supplementary planning expert report agreed height standard exceeded – absence of variation request – precondition not met – no power to grant consent – appeal dismissed
DEVELOPMENT APPLICATION – massage parlour and sex services premises – breach of separation control in Willoughby Local Environmental Plan – clause 4.6 objection – whether there is a cluster – whether the objectives of the control are otherwise met – whether there are sufficient environmental planning grounds to justify the contravention – relevance of planning principles
NOTICE OF MOTION – application to amend development application – further amended statement of facts and contentions – further expert evidence adduced – costs
DEVELOPMENT APPLICATION – application seeking consent for the demolition of existing structures and the construction of a part five and part six-storey residential flat building – site isolation – whether proposed development isolates adjoining corner lot – the relevance of planning principles in the assessment process
CRIMINAL – practice and procedure – following determination of essential element of two offences in preliminary hearing summonses can be summarily dismissed – case stated at request of prosecutor
ORDER APPEAL – keeping premises in healthy condition – management and number of cats – conciliation conference – agreement between the parties – orders
APPEAL – modification application – building information certificate – sandstone clad wall containing letterbox – encroachment into the road reserve – adjacent to stairs leading to public reserve – whether modification application should be granted in the circumstances – whether building information certificate should be issued
MODIFICATION APPLICATION – ground floor levels of garages to comply with Australian Standard AS2890.1-2004 – conciliation conference – agreement between the parties – orders
COMPULSORY ACQUISITION - Respondent acquires land for public recreation purposes - land zoned R2 Low Density Residential prior to rezoning for public recreation - land compulsorily acquired from each Applicant after successful hardship applications - Applicants dissatisfied with Valuer General’s compensation determinations - Applicants commence proceedings seeking higher compensation - dispute as to whether Valuer General’s future land zoning basis for compensation is correct - Applicants contend future zoning would be R4 High Density Residential - Respondent contends zoning would remain R2 Low Density Residential - Consent Orders in related Supreme Court proceedings resulted in advance payments to each Applicant - advance payments significantly less than 90% of the compensation determination made by the Valuer General in each instance - each Applicant now seeks an order requiring the Respondent to make an additional payment to bring the total advance payment to 90% of the Valuer General's compensation determination - Respondent contends in each proceeding that the Valuer General's compensation determination is too high and that 90% of the Valuer General's determination would exceed the amount that will be the outcome in each proceeding - Respondent has paid $5 million into its legal representatives’ trust account to protect each Applicant's compensation position but resists paying additional advance payment amounts direct to each Applicant - Respondent proposes continuation of the trust account regime which had been established pursuant to this Supreme Court proceedings’ Consent Orders - consideration of the statutory regime in the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act) concerning advance payments - Applicants submit there is no power to withhold advance payments as proposed by the Respondent - held that there is no discretionary power to withhold the statutorily mandated advance payments - held that there is power to order the Respondent to make the additional advance payments sought - additional advance payments ordered to be made DISCRETION - appropriate to consider issues of discretion on a contingent basis - statutory regime in the Land Acquisition Act for recovery of monies when advance payments exceed the quantum of compensation determined by the Court - consideration of whether Respondent has an arguable case in support of its future zoning position - held Respondent has an arguable case in support of its future zoning position - nature of the financial information concerning each of the Applicants - necessity to evaluate evidence as to whether each applicant would be able to repay any overpayment of monies made as advance payments - taking into account the advance payment already made to Mr Azizi, no basis to conclude he would not be able to make any required repayment - if power to maintain Respondent’s trust account regime, it would not be appropriate to exercise it in Mr Azizi’s proceeding - taking into account the advance payment already made to Alnox Pty Ltd, there is a proper basis to conclude Alnox Pty Ltd would not be able to make any required repayment - if power to maintain Respondent’s trust account regime, it would be appropriate to exercise it in the Alnox Pty Ltd proceeding COSTS - costs follow the event in Class 3 compensation proceedings - both Applicants succeed in obtaining orders sought in the relevant Notice of Motion - Respondent ordered to pay Applicant’s costs of the relevant Notice of Motion
DEVELOPMENT APPLICATION – child care centre – whether proposed side setbacks are acceptable – whether proposed parking is acceptable – whether character is compatible
DEVELOPMENT APPLICATION – dwelling house – building height contravention – wall height contravention – floor space ratio contravention – neighbour objection
MODIFICATION APPLICATION – approved large residential subdivision – deletion of condition requiring access point – impacts on local traffic – impacts on amenity of residents
DEVELOPMENT APPLICATION – Alterations and additions to a dwelling and new garage with studio in a heritage conservation area – conciliation conference – agreement between the parties
PROCEDURE: application to set aside a subpoena issued in compensation for compulsory acquisition proceedings in civil jurisdiction of the Court – whether a legitimate forensic purpose established by the party seeking production and access to the documents – correct test to be applied in civil proceedings – subpoena valid – claim of public interest immunity – principles to be applied – claim of public interest immunity rejected.
APPEALS – modification application – development application for use – building information certificate – work done otherwise than in accordance with development consent for approved dual occupancy – works required to regularise unlawful work – overlooking – bulk and scale
DEVELOPMENT APPEAL – residential – first floor addition to an existing dual occupancy – conciliation conference – agreement between the parties – orders
ENVIRONMENTAL OFFENCES: defendant charged with pollute waters offence and breach of licence offence in separate summonses – whether summonses should be set aside on the grounds of duplicity – alternatively whether the prosecutor should be required to elect to seek leave to amend the summonses to avoid the duplicity – applicable legal principles – whether the activity the subject of the offences constitutes a continuing offence – whether the activity the subject of the offences constitutes a single criminal enterprise – proper construction of condition O2.1(a) of licence – whether a duty imposed upon licensee to ensure compliance with condition O2.1(a) – whether person who contravened condition of licence clearly identified in the breach licence offence summons – pollute waters offence duplicitous – breach of licence offence not duplicitous – breach of licence offence known to law – breach of licence offence not time barred.
VARIATION OF ENVIRONMENT PROTECTION LICENCE – remediation – public positive easement – easement for access – conditions necessary to protect the environment from pollution over a long period of time
DEVELOPMENT APPLICATION – subdivision – new road construction – residential apartment development – stormwater drainage – height of buildings development standard – minimum lot size development standard – clause 4.6 written request
COUNCIL ORDERS – keeping of birds – relevant standards – storing junk on public land and private land – storing various materials on premises – preservation of healthy conditions
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Appeal proceedings futile where notices the subject of appeal revoked APPEALS — Procedure — Time limits — Out of time
DEVELOPMENT APPLICATION – hotel – extension of trading hours for gaming room – impact on nearby residents – whether character of the area will be affected – precedent – noise of patrons arriving and leaving – impact of smoke from outdoor gaming room – plan of management – trial period – number of security persons – limit on number of patrons
COSTS – unsuccessful applicant in Class 4 proceedings seeking variation of usual costs order on basis that public interest litigation – vacancy in civic office of counsellor following absence from three consecutive council meetings – “something more” identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 not demonstrated – usual costs order made
PRACTICE AND PROCEDURE - earlier charges (identical for each Defendant) found to be defective - Prosecutor provided with the opportunity to replead the charge - Prosecutor seeks to rely on an Amended Summons against each Defendant - Defendants oppose the proposed repleaded charge - several further iterations of a repleaded charge proposed by the Prosecutor (including during the hearing) - Prosecutor seeks and is granted leave during the course of the hearing to rely on a final version of a proposed Amended Summons - Defendants attack the final version of the proposed Amended Summons on a number of discrete bases - the first complaint was that the proposed Amended Summons seeks to plead a charge not known to the law - held that the proposed Amended Summons pleads a charge not known to the law - the second complaint was that the charge in the proposed Amended Summons is patently duplicitous - held that the charge in the proposed Amended Summons is patently duplicitous - the third complaint was that the charge in the proposed Amended Summons is latently duplicitous - held that the charge in the proposed Amended Summons is latently duplicitous - the fourth complaint was that the charge in the proposed Amended Summons is a fresh charge laid after the expiry of the relevant statutory limitation period - held that the charge in the proposed Amended Summons did constitute a fresh charge sought to be laid, impermissibly, after the expiry of the relevant statutory limitation period - the fifth complaint was that the charge in the proposed Amended Summons is impermissibly uncertain - held that the charge in the proposed Amended Summons is impermissibly uncertain - each of these five defects separately warrants refusal of leave being granted to the Prosecutor to rely upon the proposed Amended Summons - not appropriate to provide the Prosecutor with any further opportunity to seek to replead - proceedings to be dismissed - costs reserved.
DEVELOPMENT APPLICATION – multi dwelling housing under State Environmental Planning Policy (Affordable Rental Housing) 2009 – whether s 4.15(3A)(c) of Environmental Planning and Assessment Act 1979 is beneficial and facultative and scope of “widest interpretation that its language will give” – precedent – tree removal – character – cut and fill
DEVELOPMENT – modification application to modify development consent granted by the Court – air conditioning on roof – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – termite damage not caused by trees – maintenance – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe
MODIFICATION APPLICATION – modify a condition of consent requiring a contribution for affordable housing – minor miscalculation – conciliation conference – agreement between the parties
DEVELOPMENT APPLICATION – replacement of a dual occupancy dwelling with a new dwelling house and swimming pool and alterations and additions to a dual occupancy dwelling – the new dwelling house is an expanded house within the meaning of the Byron Shire Development Control Plan 2014 – final orders by consent of parties
PRACTICE AND PROCEDURE - application by the Respondent for a determination of the terms of an alleged settlement of the proceedings - whether the parties had agreed to the terms of a settlement resolving the proceedings so as to enable the use of s 73 of the Civil Procedure Act 2005 to permit determination of the terms of the settlement - requirement that any settlement resolve all issues in dispute between the parties - all issues in dispute between the parties not resolved - no settlement to which the statutory provision could be applied AMENDMENT APPLICATION - application to rely on proposed Amended Summons and proposed Amended Points of Claim - outstanding merit issue resolved as a consequence of Respondent giving undertaking to the Court to the effect of the order sought by the Applicant in its proposed Amended Summons - all merit issues resolved as a consequence of the undertaking - whether to permit amendment nonetheless - terms of settlement between the parties of merit issues arising as the direct consequence of the proposal to amend - although amendment not strictly necessary, leave to amend appropriate to be granted in order to provide proper contextual framework for resolution of the proceedings - application for leave to amend granted - proceedings discontinued by consent on the basis of the Amended Summons and Amended Points of Claim. COSTS - Applicant seeks an order following discontinuance of the proceedings - whether the Respondent effectively capitulated on the issues in the proceedings without the necessity for determination of any merit matters - whether there was any unreasonable conduct on behalf of the Respondent - Respondent capitulated without the necessity for any determination of merit matters - not necessary to consider whether Respondent acted unreasonably - appropriate to order the Respondent to pay the Applicant's costs of the proceedings - appropriateness of a gross sum costs order - gross sum costs order not opposed - order that the Respondent pay the Applicant's costs in the gross sum of $120,000.
APPEALS — Leave to appeal — Application for leave to appeal after time for appeal expired — Length of delay — Reasons for delay — Arguable case — s 38 of the Valuation of Land Act 1916 (NSW) — Leave granted
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) – boarding house development in R4 High Density Residential zone – weight given to draft Local Environmental Plan – clause 30A character of the local area
DEVELOPMENT CONTROL ORDER APPEAL – unauthorised screen at rear boundary – exempt and complying development – conciliation conference – agreement between the parties – orders
APPEAL – refusal of development application for self-storage unit facility – satisfaction of statutory conditions to grant of consent – resolution of contentions regarding traffic management and pedestrian safety, flooding and stormwater, urban design and visual impact, biodiversity management and impact on trees
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves, sticks, and other refuse from trees falling on applicant’s land – is risk of genuine injury foreseeable
DEVELOPMENT APPLICATION – new shed – conciliation conference – agreement between the parties – orders NOTICE OF MOTION – application to amend the Court’s orders to correct plan reference in condition of consent – amend landscape plan Uniform Civil Procedure Rules – rule 36.17
DEVELOPMENT APPLICATION – existing vacant rural allotments – proposed amalgamation of lots – site fails to meet the minimum lot size development standard for the erection of a dwelling – request to vary the standard – request not upheld – consent refused.
DEVELOPMENT APPLICATION – heritage conservation area – alterations and additions to item of local heritage significance – conciliation conference – agreement between parties – orders
MODIFICATION APPLICATION – conversion of an existing industrial building to a residential flat building – application seeking approval for reconfiguration of the approved parking arrangement within the existing ground floor open car park to accommodate a new studio – whether the modified development is substantially the same development as the development for which consent was originally granted – concerns relating to amenity, solar access, access and car parking
DEVELOPMENT APPLICATION – mixed use development – deferred commencement condition satisfied – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development – deferred commencement condition lapsed consent – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedges – palms – cypress – whether the trees form a hedge – obstruction of views – whether the obstruction is severe – whether the applicant’s view has become severely obstructed – no orders made for palms – consent orders for cypress
ENVIRONMENT AND PLANNING – existing use rights – whether existing use of premises as a hotel extends to the first floor outdoor terrace ENVIRONMENT AND PLANNING – characterisation of existing use – s 4.65 EP&A Act – use defined by reference to Liquor Act 1912 – whole of building used for purposes of a hotel ENVIRONMENT AND PLANNING – continuation of existing use – construction of s 4.66(2)(b) EP&A Act – extent to which area was actually physically lawfully used prior to date use prohibited ENVIRONMENT AND PLANNING – enlargement expansion or intensification or an existing use – s 4.66(2)(c) – ordinary meaning – extent of hotel use prior to date use prohibited
DEVELOPMENT APPLICATION – alterations and additions to an approved residential flat building – provision of affordable rental housing – exceedance of the height of buildings development standard
APPEAL – appeal against conviction in Local Court for offence of wilful delay of authorised officer in taking and removing samples – locking gates preventing officer from leaving premises in car was wilful delay of an officer in carrying out their duties – conviction appeal dismissed APPEAL – appeal against sentence in Local Court for wilful delay of authorised officer in taking and removing samples – sentencing appeal dismissed
APPEAL – modification application concerning acoustic condition – noise control notice – agreement reached on modification application – whether noise control notice should be modified or revoked
DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development – view loss – Foreshore Scenic Protection Area
ENVIRONMENTAL OFFENCES: offender convicted of three charges of unlawfully carrying out bulk earthworks contrary to the conditions of a project approval and one charge of commencing works without a construction certificate – determination and composition of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – weight to be applied to partial expert witness – state of mind of offender at the time of the commission of the offences – De Simoni principle – objective seriousness of the commission of the offences low to moderate – defendant had a prior conviction for an environmental offence – whether defendant able to express contrition and remorse in the absence of guilty pleas – specific and general deterrence warranted – comparable cases – whether the defendant ought to pay the prosecutor’s costs – whether the Court ought to order that the charges be dismissed – whether the Court ought to convict the defendant but impose no penalty – application of the totality principle – whether the Court ought to make a publication order – defendant convicted and fined in respect of all four offences – publication order made.
APPEAL – development application – extension of an existing industrial complex by the construction of an industrial building – Oxford Falls Valley locality – consistency with character statement – contentions resolved
DEVELOPMENT APPLICATION – boarding house development – State Environmental Planning Policy (Affordable Rental Housing) 2009 – character is compatible with the local area – agreement between the parties – conciliation conference – orders
DEVELOPMENT APPLICATION – Bellbird North Urban Release area – integrated development – subdivision of land – deemed refusal – conditions of a kind allowed by a contributions plan – impacts on state roads
DEVELOPMENT APPLICATION – appeal against two conditions of consent – two adjoining pub premises – deletion of conditions requiring no internal access between the premises – plans of management – conciliation – agreement between the parties – orders
COSTS - Class 1 merit appeal - application by successful party for a costs order - “fair and reasonable” test in the Land and Environment Court Rules 2007 - matters in favour of a costs order balanced by matters weighing against such an order - costs order refused - costs ordinarily follow the event on costs applications - whether purported Calderbank offer provided basis to award costs of costs application on an indemnity basis - no basis to depart from award of costs on an ordinary basis - Respondent awarded costs of costs motion – cap placed on the recoverable costs of photocopying
MODIFICATION APPLICATION – consent for boarding house – increase in height sought – improved amenity of some boarding rooms – no additional accommodation – impact on character of the area – reduced overshadowing of adjoining property – impact on views across the site – iconic view – application of Tenacity principles – reasonableness of the proposal
APPEAL – development application – boarding house – encroachment on public land – whether active street frontage required – car parking –contentions resolved APPEAL – development control order – unauthorised development – fire safety – order likely to make residents homeless
DEVELOPMENT APPLICATION – s 4.22 Concept Development Applications – Stage 1 development application – Sydney Harbour Catchment Strategic Foreshore Site – height exceedance – clause 4.6 written request – Sydney Harbour foreshore walk – cultural heritage significance – impact on heritage significance of item – adaptive reuse
MODIFICATION APLICATION – appeal against imposition of condition – whether substantially the same development – visual privacy – daylight and ventilation
JUDICIAL REVIEW – construction of garage on council owned land approved by local council as consent authority – applicant for garage development and local council as consent authority unaware that construction on council owned land when development application approved – absence of consent of council jurisdictional as development application not valid – proceedings commenced more than three months after public notice of grant of development consent – operation of s 101 Environmental Planning and Assessment Act 1979 bar to proceedings – Hickman principles satisfied – exercise of discretion to extend time under UCPR r 59.10 – exercise of discretion to grant relief
DEVELOPMENT APPLICATION – residential flat building – site width development standard – impact on heritage items – scale and bulk – conciliation conference – agreement between the parties
CIVIL PROCEDURE — Judgments and orders — Amending, varying and setting aside — Correction under slip rule — Uniform Civil Procedure Rules — Rule 36.16 JUDGMENTS AND ORDERS — Application for stay of operation COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion
CIVIL ENFORCEMENT – discharge of treated effluent from sewage treatment plant into creek – erosion of bank of creek – whether breach of planning or environmental laws – approval under Part 3A of Environmental Planning and Assessment Act 1979 – approval condition that proponent comply with statement of commitments – commitment not to cause degradation of bed or bank stability of creek – effect of statement of commitments – commitment breached – whether erosion is pollution of land – no land pollution established – condition of operating licence for sewage treatment plant to meet objectives of Sydney Water Act 1994 – effect of principal objectives and special objectives – no breach of operating licence TORTS – duty of care in relation to support for land under s 177 of the Conveyancing Act 1919 – whether bank erosion removed support – breach of duty of care – defence under s 43A of Civil Liability Act 2002 not established – defence of statutory authority not established – nuisance action not maintainable
DEVELOPMENT APPEAL – Manufactured Home Estate – Permissibility – Innominate use – Site contamination – Biodiversity Development Assessment Report – avoidance, mitigation and offsetting of impacts on flora and fauna – adequacy of biodiversity assessment – intensity of development – visual impact – reasonableness of impacts arising from the development – character – public interest – appeal dismissed – development refused.
DEVELOPMENT APPLICATION – Demolition of existing buildings – construction of new shop top housing – breach of height control – breach of floor space ratio control – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – construction of two new dwellings on adjacent blocks – alterations and additions to an existing building – whether requests to vary height development standards are well founded
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2A application – Part 2A only applies to two or more trees planted to form a hedge – Part 2A application refused – Part 2 application – damage to property – nuisance – minor damage likely – past pruning – orders for pruning at applicant’s expense
APPEAL – development application – alterations and additions to caravan park – consistency with zone objectives – contamination – access to services and facilities – displacement of tourist accommodation – density of the proposed development – whether the use for long term accommodation is particularly suitable due to the location and character of the land – amenity impacts – displacement of long term residents
ENVIRONMENT AND PLANNING — Waste disposal — Use of land as a waste facility without lawful authority — Cessation of use and restoration of land sought by council — No appearance by respondent
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – damage to tiled verandah – two of five trees have caused or are likely to cause damage – orders to remove two of five trees
DEVELOPMENT APPLICATION – dual occupancy – minimum lot size – compliance with DCP controls – subdivision – consequential changes to building categorisation – precedent
DEVELOPMENT APPLICATION – mixed use development – contravention of height of building standard – whether compliance is unreasonable or unnecessary in the circumstances of the case – whether proposed development in the public interest because it is consistent with the objectives of the particular standard
ENVIRONMENT AND PLANNING — Offences — Water pollution — Sentencing — Plea of guilty — Discharge of sewage — Determination of objective seriousness of offence — Extent of environmental harm — Prior sewage discharge not the subject of charge — Subjective circumstances of offender — Prior convictions for environmental offences
MODIFICATION – whether substantially the same development – view loss – gross floor area – landscaped area – proceedings disposed of on the basis of what occurred at the conciliation conference with consent of the parties
COSTS – prosecutor should not be ordered to pay costs as provided for by s 257D of Criminal Procedure Act 1986 following dismissal of charges – proceedings not conducted improperly or unreasonably – investigation not conducted improperly or unreasonably – proceedings not initiated without reasonable cause – no exceptional circumstances justifying award of costs
STATUTORY CONSTRUCTION: whether objectors to designated development where consent was refused are entitled to be given notice of the appeal – proper interpretation of phrase “in respect of which the objector has a right of appeal under this Division”. JOINDER: whether objector should be joined as a party to the appeal – whether objector able to raise any issue that should be considered but will not likely be sufficiently addressed in the appeal absent joinder – whether joinder is in the interest of justice or is in the public interest – objector joined.
DEVELOPMENT APPLICATION – construction of a new garage with stacker – flood management – pedestrian safety – conciliation conference – agreement between the parties – orders
APPEAL – development application – dwelling house – basement below the 1 in 100 year flood level – whether driveway crest and flood barriers sufficient
DEVELOPMENT APPLICATION: roof top terrace – whether the development exceeds the floor space ratio standard – whether the roof terrace will create unreasonable impacts for adjoining neighbours – the reasonableness of the terrace – appeal upheld
DEVELOPMENT APPLICATION – childcare centre with basement parking – acoustic impacts and treatment – unencumbered outdoor play space – consistency with character and streetscape – basement and street parking
DEVELOPMENT APPLICATION – Concept development application – mixed use development – 30 storey tower – qualification for uplift in floor space and building height under cl 7.5A of Liverpool Local Environmental Plan 2008 – whether clause 7.5A(2) of Liverpool Local Environmental Plan 2008 is beneficial and facultative and warrants “widest interpretation that its language will give” – whether development properly characterised as “business premises” – whether development properly characterised as “food and drink premises”
MODIFICATION APPLICATION – consent for use as a place of public worship (Islamic Centre) – change to the internal layout – modification application amended – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – zoning of land – whether the land is within a zone to which the Trees Act applies – row of cypress trees – damage to slab of concrete shed – evidentiary burden lies with the applicant – Court cannot be satisfied that trees have caused the damage – cause of damage is not identified – trees were there first – other possible remedies for damage – application refused
PROSECUTION – finalisation of sentence for two offences of knowingly supply false and misleading information about waste contrary to s 144AA(2) of the Protection of the Environment Operations Act 1997 – intensive correction order made in lieu of terms of imprisonment – community service work condition imposed – publication order made – order that prosecutor’s costs paid by defendant made
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – exceedance of the floor space ratio development standard – adjoining a local heritage item — conciliation conference — agreement between the parties
DEVELOPMENT APPLICATION – multi dwelling housing development – local heritage item – identification of a heritage curtilage – form of the development is inconsistent with objectives for low density residential zone – inadequate site analysis
MODIFICATION APPLICATION – pergola over an approved rooftop terrace – modification is substantially the same development – unacceptable bulk and scale – potential privacy and overlooking impacts
APPEAL – development control order – compliance order – retaining walls and fill on the site – raised levels of rear yard – not authorised by the development consent or construction certificate – no evidence of their design – potential interference with dispersion of water from absorption trench – visual and privacy impacts
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – retaining wall – evidentiary burden lies with the applicant – Court cannot be satisfied that trees have caused the damage – other possible causes of damage – fence damage is minor – three small trees to be removed to prevent further damage – no orders for removing two mature remnant trees – no orders for compensation – risk of injury – orders for pruning
REVIEW OF REGISTRAR’S DECISION - unavailability of counsel for the Applicant - matter set down for hearing on a date when the Applicant’s counsel was not available - reason for unavailability of counsel not given to Assistant Registrar - Applicant’s counsel not available as undertaking a two-week hearing in the Federal Court on a pro bono basis - matter of policy appropriate to support barristers undertaking pro bono briefs - no prejudice to Applicant or Respondent if hearing delayed - appropriate to vacate hearing date set by the Assistant Registrar - new hearing date convenient to counsel for both parties allocated
DEVELOPMENT APPLICATION – Subdivision of land – construction of a child care centre – whether proposed development is compatible with the character of the local area – whether the bulk and scale of the proposed development is acceptable – whether imposition of proposed conditions is reasonable – application of Newbury test
DEVELOPMENT APPLICATION – alterations and additions to an approved commercial development – contributory building to heritage conservation area – exceedance of the height of buildings development standard
TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage and injury – two applications concerning the one tree – overhanging tree – whether the tree is likely to cause damage or injury – works already permitted by Council – access to properties for works to be carried out
MODIFICATION APPLICATION – New roof top terrace proposed – modification is substantially the same development – whether the necessity of the open space is a relevant consideration – agreement of experts no impact arises from roof top terrace – appeal upheld
DEVELOPMENT APPLICATION – Green Square community infrastructure - Statement Environmental Planning Policy (Urban Renewal) 2010 – floor space ratio on subdivided land – exceedance of floor space standard – clause 4.6 – active frontages – dedication of land – voluntary planning agreement
DEVELOPMENT CONTROL ORDER – power to issue an order – completion or non-completion of Stage 1 works – development consent conditions – impacts on amenity of residents – period for compliance
DEVELOPMENT APPLICATION – Dual occupancy development – variation to lot frontage control – conciliation agreement – agreement between the parties – orders
DEVELOPMENT APPLICATION – change of use from commercial to residential – proper characterisation of development application – whether provision in local environmental plan requiring 60% commercial floor space a prohibition or development standard – clause 4.6 objection – whether compliance is unreasonable or unnecessary – whether in the public interest
DEMOLISH WORKS ORDER & RESTORE WORKS ORDER – roofed pergola – concrete slab – non-portable in-ground swimming pool – conciliation conference – agreement between the parties – orders
APPEAL – development control order – demolish works order and compliance order – roof tiles of a dwelling in a heritage conservation area – conciliation conference – agreement reached
PROCEDURE – exercise of discretion whether to allow amendment of summons – no reasonable prospects of success – history of proceedings militates against allowing amendment – notice of motion dismissed
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of sunlight and views – whether the obstruction is severe – whether the applicant had access to sunlight and views – whether access to sunlight and views resulted from non-compliance with conditions of development consent – whether the extent of obstruction has increased since the applicant has owned the property – privacy and other benefits – avoiding adverse impacts to amenity
DEVELOPMENT APPLICATION – secondary dwelling – characterisation of secondary dwelling – permissible development – location of the secondary dwelling would result in an adverse impact of the character of the rural area