PROSECUTION - charge of pollute waters - split in sewer rising main - Defendant relies on statutory defence pursuant to s 122 of the Protection of the Environment Operations Act 1997 (the POEO Act) - consideration of conditions of the Defendant’s environment protection licence (the EPL) - consideration of whether the facts, in conjunction with the EPL conditions, establish the statutory defence - statutory defence established - alternative defence of honest and reasonable mistake of fact also raised - alternative defence also established - Defendant to be found not guilty of rising main offence - Prosecutor’s application to consider findings on defences before entering any orders for acquittal - rising main offence proceedings adjourned to permit Prosecutor to consider findings PROSECUTION - charge of pollute waters - overflow of sewage pumping station caused during repair of split rising main - overflow of untreated sewage from pumping station into waterway - Defendant raises defence of necessity - Defendant proposes that defence is not confined to circumstances of immediate and irreparable harm to human health or life - expansive approach to defence of necessity rejected - Defendant relies on evidence establishing belief held by relevant employees of immediate and irreparable risk of harm to human health or life - evidence does not establish the existence of such a belief - defence of necessity not established - Defendant convicted of pumping station charge - matter adjourned to permit setting down of, and directions for preparation for, sentencing hearing PROSECUTION- charge of breach of EPL condition - alleged failure to maintain equipment - failure to divert sewage from pumping station serving the split rising main - charge that Defendant failed to maintain the valve that would have permitted the diversion of sewage - Defendant concedes failure to operate the valve but submits that valve had been maintained - Defendant presses “wrong charge” defence on the basis that the charge was founded on the wrong element in the condition of the Defendant’s EPL - evidence establishes operator error and not failure to maintain - Defendant found not guilty and acquitted
APPEAL – development application – grant of consent subject to conditions requiring changes to the design – conciliation conference – agreement reached – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – is there sufficient notice of lodgement of application – has applicant made reasonable effort to reach agreement - is the obstruction of sunlight and views severe - no entitlement to sunlight or views that were unavailable to applicant upon occupation of dwelling
TREES (DISPUTES BETWEEN NEIGHBOURS) – agreement between the parties – conciliation conference – orders – obstruction of view by Magnolia tree – does the tree form a hedge – damage to retaining wall caused by trees
DEVELOPMENT APPLICATION – heritage conservation – dwelling house development in R2 Low Density Residential zone – heritage conservation zone – conciliation conference – agreement between parties - orders
CIVIL PROCEDURE: urgent application for joinder in Class 1 appeal – applicable legal principles – whether issues sought to be raised by intervenor would be sufficiently addressed absent a contradiction – delay in bringing application for joinder – whether Commissioner should have regard to previous Class 4 consent orders and their alleged non-compliance in the Class 1 appeal – issues raised by intervenor would be either raised by the parties in their contentions or able to be dealt with by the intervenor by way of submissions – joinder refused.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to concrete slab, pavers and fence – roots exposed – are exposed roots a risk to safety
JUDICIAL REVIEW: whether complying development certificate validly granted by certifier – whether at the time it was granted the development was prohibited or permissible with consent in the relevant zone – whether “development application” in a savings provision in a local environmental plan included complying development certificates – complying development invalid because development prohibited in the zone at the time of grant. STATUTORY CONSTRUCTION: principles of construction of subordinate legislation, including environmental planning instruments – whether terms in subordinate legislation have same meaning as the principal Acts under which they are made – use of extrinsic material to construe subordinate legislation – presumption against retrospectivity – application of s 30(1)(b) and (c) of the Interpretation Act 1987 - whether right to apply for a complying development certificate under legislation prior to amendment a relevant right for the purpose of the Interpretation Act.
APPEAL – development application for the use of a relocatable shed at existing boatyard – structural integrity of shed – acoustic and air quality impacts –impact on land contamination – visual and heritage impacts – consistency with zone objectives APPEAL – development application for the mooring and use of a floating dry dock at existing boatyard – visual and landscape character impacts – statutory provisions recognising harbour as public asset of national and heritage significance to be protected for public good, for existing and future generations – public trust – intergenerational equity – unacceptable visual and landscape character impacts
CIVIL PROCEDURE — Separate determination of questions — Whether development application made, but not yet determined, on or before commencement of state environmental planning policy — Statutory interpretation — Proper construction of State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2(1)(a) — Word “determined” within savings provision means determination which finally disposed of the development application — Separate questions answered in the applicant’s favour — No order as to costs
COSTS – application for lump sum costs order – s 98(4)(c) of Civil Procedure Act 2005 (NSW) – relative responsibility of parties – proportion between issues litigated and costs claimed – complexity of proceedings – gross sum costs order appropriate
DEVELOPMENT APPLICATION – dual occupancy –contravention of minimum lot size for dual occupancy standard – whether sufficient environmental planning grounds – foreshore scenic protection area
CIVIL PROCEDURE – application for joinder – s 8.15(2) Environmental Planning and Assessment Act 1979 – whether issues raised would be sufficiently addressed absent joinder – application for joinder dismissed
DEVELOPMENT APPLICATION – development in heritage conservation area – dwelling house development in R2 Low Density Residential zone – view loss – whether adverse impact on amenity
INTERIM HERITAGE ORDER: whether an interim heritage order over two residential properties found not to reach the threshold for local heritage listing, should be revoked.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – Pt 2A application – neighbouring hedge – obstruction of views – whether the trees are planted so as to form a hedge – whether the obstruction is severe – privacy
SENTENCING – environment offence – s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – polluted waters – significant harm – practical measures available but not taken – harm or risk of harm foreseeable – no financial benefit gained – upper middle range of objective seriousness – contrition and remorse demonstrated – co-operation with regulatory authority – early plea of guilty – no prior convictions – specific deterrence not warranted – general deterrence warranted – fine not reduced due to capacity to pay pursuant to s 6 of Fines Act 1996 (NSW) – monetary penalty imposed – publication order – investigation costs – legal costs
CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre in breach of complying development certificate because operating as a shop – no impermissible shop use occurring in business zone CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre as a retail pharmacy in breach of occupation certificate permitting medical pharmacy
DEVELOPMENT APPLICATION: shop top housing development – heritage conservation – effect of proposed development on item of heritage significance – whether proposal exhibits design excellence – remediation of land
APPEAL – development application – clearing of land and construction of warehouses and self-storage units – conciliation conference – agreement reached – orders made
COSTS - Prosecutor charges each Defendants with a common charge in March 2019 - each Defendant successfully challenged the charge against it on the basis of it being duplicitous - Prosecutor granted leave to seek to amend to cure duplicity - several attempts by the Prosecutor to reparticularise the charge to cure duplicity - final version of the Prosecutor’s amended charge held to be (i) unknown to the law and (ii) patently duplicitous and (iii) latently duplicitous and (iv) constituted a fresh charge, being one sought to be relied upon after the expiry of the relevant statutory time limit - the charges against each Defendant were dismissed - each Defendant applied for costs of the entire proceedings pursuant to s 257D(1)(d) of the Criminal Procedure Act 1986 - Defendants proposed that there were exceptional circumstances arising from the conduct of the proceedings by the Prosecutor that warranted each Defendant having a costs order made in its favour for the entirety of the proceedings - exceptional circumstances established concerning the whole of the proceedings - appropriate to award costs to each Defendant for the entirety of the proceedings - costs order made COSTS - costs of costs proceedings usually follow the event - each costs’ Applicant entirely successful in the costs order sought - appropriate to make costs order in each Defendant's favour for the costs of the costs proceedings
APPEAL – development control orders – demolish works carried out partly on public land – cease use orders for outbuildings and principal dwellings – conciliation conference – agreement reached to modify orders – statutory requirements of the orders met – orders made
DEVELOPMENT APPLICATION – boarding house – non-compliant height development standard – cl 4.6 written request to vary development standard - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – centre-based childcare centre – carparking in front setback – defining local character – streetscape character – acoustic fencing
DEVELOPMENT APPLICATION – Sixty four (64) place centre-based childcare facility with basement parking – State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 – Streetscape character – Suitability of location – Impact on amenity of residents – Low Density Residential Zone – Whether the facility will be ‘well ventilated’
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees are situated on adjoining land, s7 not satisfied; jurisdiction not engaged; no powers to make orders; application refused
DEVELOPMENT APPEAL – residential – cl 4.6 written request to justify contravention of development standard of minimum lot size - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION: demolition and construction of a new residential flat building – amended plans – planning and urban design experts agree contentions are resolved - agreement between the parties – orders
LOCAL GOVERNMENT – Powers, functions and duties – Orders – Non-compliance with development control order – Collateral challenge in criminal proceedings – Whether development control order invalid – Whether in-ground swimming pool a “building” – Literal, contextual and purposive approaches to statutory construction – Whether development control order uncertain
APPEAL – appeal from acting commissioner’s judgment in tree dispute under s 56A of the Land and Environment Court Act – acting commissioner made order for tree pruning not removal of neighbour’s tree as sought – failure to accord procedural fairness established – no error of law in dismissing claim – no error of law in ordering inappropriate remedy – no error of law in court order for pruning of tree to be paid for by appellant to large extent – appeal upheld – exclusionary remitter order made
DEVELOPMENT APPEAL – residential flat building – setback and building separation - streetscape – view sharing - orders DEVELOPMENT APPEAL – residential flat building – setback and building separation – cl 4.6 written request to justify contravention of maximum building height development standard - streetscape – view sharing - orders
SEPARATE QUESTION: whether a question should be determined separately – applicable legal principles – question if resolved in favour of the Council is entirely dispositive of the proceedings – substantial savings in terms of expert evidence and costs if separate question ordered – utility of s 34 conciliation eroded if separate question not ordered – application granted.
JUDICIAL REVIEW — challenge to Special Minister for State’s direction to list MLC Building on State Heritage Register — ss 32 and 34 of Heritage Act 1977 (NSW) — whether Minister failed to consider mandatory considerations pursuant to ss 32(1)(c) and 32(1)(d) of Heritage Act 1977 (NSW) — consideration of reasons provided by Minister — whether inference can be drawn from documentary material that Minister considered mandatory considerations — Minister failed to consider mandatory relevant considerations — decision of Minister set aside and invalid and/or of no effect — Heritage Council to remove listing of the MLC Building from State Heritage Register
NOTICE OF MOTION – application for joinder – adverse impact on residential amenity of noise emanating from The Scots College premises located adjacent to the property of the applicant for joinder – cumulative impact of noise and traffic on residential amenity resulting from increased student numbers
DEVELOPMENT APPLICATION – demolition of existing structures, construction of attached dual occupancy, basement parking and swimming pools, CONCILIATION CONFERENCE – agreement between the parties - orders
DEVELOPMENT APPLICATION – appeal against the conditions of consent acoustic impacts on neighbouring properties – economic and social impact – motorsport activities
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage to property – risk of injury – orders for removal of one tree – application for compensation refused – application to remove bamboo refused
APPEAL – development application – removal of tree – whether tree has caused damage – whether requirements of a development control plan are met for its removal – evidence is that tree has caused damage and will cause future damage
CIVIL PROCEDURE — Notice of Motion seeking summary dismissal or strike out of proceedings — Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28 — whether reasonable causes of action disclosed — no reasonable causes of action disclosed — Notice of Motion granted in that summons dismissed — costs reserved CIVIL PROCEDURE — Notice of Motion seeking leave to further amend Summons — leave granted — costs reserved
DEVELOPMENT APPLICATION – proposed flood mitigation works - whether proposed works are acceptable having regard to the matters in section 166C(1) of the Water Act 1912.
DEVELOPMENT CONTROL ORDERS, BUILDING INFORMATION CERTIFICATE APPLICATIONS –orders by consent to modify the date for compliance with nine development control orders – orders by consent dismissing appeals against the refusal of three building information certificate applications
PRACTICE AND PROCEDURE — application to vacate hearing dates by consent — case management directions not complied with — parties did not relist when slippage occurred — hearing dates vacated
SEPARATE QUESTION: whether a question should be determined separately and in advance of the final hearing – applicable legal principles – the resolution of the separate question will substantially narrow the evidential and factual field of controversy – substantial savings in terms of expert evidence and costs if separate question ordered – utility of s 34 conciliation eroded if separate question not ordered – application granted.
DEVELOPMENT APPLICATION – demolition of an existing dwelling and construction of a new dwelling – conciliation conference – agreement between the parties – orders
ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development – Whether work could be said to have physically commenced – Whether Consent had lapsed – Conditions required compliance prior to the work undertaken – Declaration that development consent lapsed – Order restraining respondent from relying on the development consent – Costs follow the event
APPEAL – development application – boarding house – compatibility with character of the area – overshadowing impacts – adequacy of car parking – contentions resolved – consent orders
CONTEMPT: failure to comply with orders made by the Court to prepare and submit a remediation action plan to council as a result of unlawful earthworks – applicable legal principles – whether contemnor aware of orders and statement of charge – contempt proved beyond reasonable doubt.
CONTEMPT: sentencing for contempt – breach of Court orders – contempt ongoing – appropriate penalty – seriousness of contempt – wilful and contumacious contempt – whether environmental harm occasioned by the contempt – contempt committed without regard for public safety – whether contempt committed for financial gain – no plea of guilty – no remorse demonstrated – comparable cases – whether contemnor has capacity to pay a fine – monetary penalty imposed – whether the imposition of a periodic fine appropriate – periodic fine imposed – indemnity costs ordered.
DEVELOPMENT APPLICATION – alterations and additions to development consent – shop top housing development – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION – conversion of existing upper floor retail area to residential use – variation to the floor space ratio control – whether a written request to vary the floor space standard is required – whether design excellence is achieved – whether the development is contrary to the character of the precinct – acceptability of the amenity of the proposed apartments – appeal upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the obstruction is severe – whether the applicant had access to views
NOISE ORDERS – appeal from Local Court Orders – noise emanating from hotel beer garden - conciliation conference – agreement between the parties – orders
APPEAL – development application – detached dual occupancy and subdivision of land – breach of minimum lot size for dual occupancy development – breach of minimum subdivision lot size – complies with new local environmental plan that does not apply due to savings provision – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – demolition – 7 storey mixed use – height control – heritage impact –conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – conditions of consent relating to architectural design – amenity and parking considerations – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – removal of an existing advertising sign and floodlights and replacement with an internally illuminated LED advertising sign – conciliation conference – agreement between the parties – orders
APPEAL – development application – residential flat building – breach of floor space ratio and height development standards – conciliation conference – agreement reached – orders made
APPEAL – appeal against commissioner’s decision – development standard – provision precluding development consent for boarding house with more than 12 boarding rooms – whether provision a development standard – jurisdictional precondition – satisfaction that not more than 12 boarding rooms – provision a development standard
MODIFICATION APPLICATION – advertising sign – modification to replace existing illuminated static sign with digital sign and associated works – whether substantially the same development – whether acceptable in terms of road safety
DEVELOPMENT APPLICATION – Torrens title subdivision – boarding house functionality – non-compliant floor space ratio and motorcycle parking development standards – cl 4.6 written request to vary development standards - conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – changes to residential apartments within mixed use development – conciliation conference – agreement between the parties – orders
CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Motion to set aside Registrar’s decision on costs — Motion dismissed COSTS — Party/Party — Specific court rules in relation to costs — Class 2 proceedings — Presumptive rule that each party pays its own costs — Whether order for costs fair and reasonable — No order as to costs
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – risk of injury – orders for removal of one tree and pruning of one tree – apportionment of pruning costs
COSTS - costs application in tree dispute proceedings - special costs rule applies - costs not to be awarded unless it is “fair and reasonable” to do so - costs’ Applicant only partially successful at substantive hearing of Trees Dispute Application - Respondents defended part of the proceedings on an incorrect and untenable legal premise - “fair and reasonable” to make partial costs order for substantive hearing and for costs hearing - appropriate to order that Respondents pay portion of the Applicant’s costs of the hearing and the costs hearing on a gross sum costs basis pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - actual costs apportioned – Respondents ordered to pay Applicant’s costs in the gross sum of $5,000
SENTENCE - three charges of breaching s 69SA(1) of the Forestry Act 2012 - pleas of guilty by Defendant - agreed facts for sentencing purposes - no potential aggravating factors - consideration of matters mandated by the Biodiversity Conservation Act 2016 - consideration of Defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward (but not at) the low end of the low range for such conduct - penalties of $120,000 for each offence - plea of guilty entered at earliest opportunity - discount of 25% on starting penalties appropriate TOTALITY AND ACCUMULATION - offences all arising out of same course of conduct - penalties for second and third offences moderated ADDITIONAL ORDERS - publication order appropriate to be made - minor changes to Prosecutor’s draft - publication order made - proposals for order requiring training of forest‑harvesting employers and contractors in new mapping technology - consent orders settled by the parties for mapping technology training - training orders made by consent
DEVELOPMENT APPLICATION – alterations and additions to Victorian terrace – heritage conservation – desired future character – bulk, form and scale – compatibility
APPLICATION FOR JOINDER - application for joinder to development appeal - Applicants for Joinder seek to raise several issues - one issue a potential jurisdictional barrier to upholding the appeal - jurisdictional issue is not raised by the Council - apparent validity of jurisdictional issue - appropriate that the issue be raised by the Applicants for Joinder being made parties - additional parties joined
COSTS - costs application in tree dispute case - special costs rule applies - costs not to be awarded unless it is fair and reasonable to do so – costs’ applicant only partially successful at substantive hearing of tree dispute application - not fair and reasonable to make any costs order for substantive hearing – costs’ respondent seeks costs of costs’ hearing - costs of costs’ hearings conventionally follow the event - appropriate to order that costs applicant pay respondents’ costs of costs’ hearing - appropriate to make gross sum costs order for costs’ hearing pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - actual costs discounted as conventionally appropriate - costs applicant ordered to pay costs’ respondents’ costs in the gross sum of $4875 within 28 days
DEVELOPMENT APPEAL – residential development – Torrens title subdivision – ANEF contour - conciliation conference – agreement between the parties - orders
CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 3 application — Question of liability concerning nature and extent of interest in compulsorily acquired land — Question of quantum of compensation payable — Separate question ordered
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Land and Environment Court — Proceedings discontinued or dismissed — Whether applicant entitled to costs against first respondent where proceedings discontinued — Whether applicant almost certain to have succeeded if the matter had been fully tried — No order as to costs of the proceedings — Applicant to pay first respondent’s costs of the notice of motion
CIVIL ENFORCEMENT: whether consent orders made and entered in 2014 can be set aside on the grounds of illegality, improper purpose or contrary to public policy – whether the Court had jurisdiction to make the orders – construction of consent orders – construction of development consent – whether variations to environment protection licence issued by EPA modified the development consent – application of doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process – whether the Court has statutory or implied power to set aside the consent orders – whether as an exercise of its discretion the Court ought to set aside consent orders – delay – detriment, including to third parties – consent orders not set aside – agreement procuring consent orders not void or voidable for illegality – whether further development consent required to carry out the works the subject of consent orders – no further development consent required – whether development the subject of consent constitutes “development (whether existing or approved)” within the meaning of cl 35 of Sch 3 of the Environmental Planning and Assessment Regulation – meaning of “development (whether existing or approved)” – utility of granting declaratory relief – declaratory relief granted. JUDICIAL REVIEW: whether variations made by the EPA to an environment protection licence were invalid – whether doctrines of estoppel, res judicata and abuse of process applied to a party not the subject of earlier related proceedings – meaning of “(other than on the initiative of the EPA)” – variations not on the initiative of the EPA but on the initiative of the licence holder – no power to issue the variations because no development consent for the works the subject of the variations as required – variations invalid – whether invalid variations can be severed – invalid variations severed.
DEVELOPMENT APPEAL – modification – penthouse apartment – communal open space – floor space ratio - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION: substantial demolition of existing building - construction of boarding house - directions made in earlier decision for amended plans – directions complied with – preconditions to the grant of consent met – development acceptable on merit - final orders made.
PRACTICE AND PROCEDURE — order 3 seeking leave to amend grounds of appeal — amendment of documents pursuant to s 64 Civil Procedure Act 2005 (NSW) — whether error of law identified that would vitiate decision of Commissioner — no prospects of success found — leave not granted — Applicant to pay costs
TREES (DISPUTES BETWEEN NEIGHBOURS) – is bamboo hedge severely obstructing views – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – contemplation of orders
ABORIGINAL LAND RIGHTS – whether land needed or likely to be needed for essential public purpose at the date of claim of provision of supported employment for disabled persons in workshop located on the land ABORIGINAL LAND RIGHTS – whether land needed or likely to be needed for essential public purpose at the date of claim of use as driveway to access workshop for supported employment for disabled persons
PROCEDURE – applicant seeks leave of court to rely on expert evidence concerning climate change related topics in judicial review proceedings challenging making of a water sharing plan for the Border Rivers region
SEPARATE QUESTION: whether land was "Crown lease restricted" under the Valuation of Land Act 1916 – meaning of "Crown lease restricted" – whether a lease signed in 1994 was a lease granted under the Crown Lands Act 1989 or the Fish Marketing Act 1994 – application of the presumption of regularity - whether the lease is a "holding" for the purpose of the Valuation of Land Act as that term is defined in the Crown Lands Management Act 2016 - meaning of "Crown land" under the Crown Lands Management Act – the effect of the transfer of the land the subject of the lease to a State statutory body – the effect of the repeal of the Crown Lands Act on the lease – the effect of the operation of the savings and transitional provisions of the Crown Lands Management Act on the lease – the land is Crown lease restricted – separate question answered affirmatively in favour of the applicant.
ENVIRONMENTAL OFFENCES — Sentence — Conducting forestry activities in exclusion zones contrary to conditions of biodiversity conservation licence — Determination of objective seriousness — Statutory scheme undermined by offences — Extent of harm to environment — De Simoni principle — Substantial harm — Practical measures available to prevent, control, abate or mitigate harm — Control over causes where conduct by contractors – No evidence that offences committed intentionally or for any reason — “Rolled-up” koala offence in medium range of objective seriousness — Rainforest and warm temperate rainforest offences in low to moderate range of objective seriousness — Determination of subjective circumstances — Record of prior convictions — Pleas of guilty – Assistance to authorities — Good character and low likelihood of similar reoffending — Need for general and specific deterrence — Consistency in sentencing — Publication orders made — Costs as agreed — Unable to make order for payment to Biodiversity Conservation Fund — Determination of appropriate penalties — Principle of totality applied — Order for moiety made — Defendant convicted and fined of four offences
DEVELOPMENT APPLICATION — boundary realignment and construction of a new dwelling – heritage conservation area – conciliation conference — agreement between the parties
DEVELOPMENT APPLICATION – manufactured home estate – State Environmental Planning Policy No 36 – whether adequate transport services will be provided – whether community facilities and services will be available and reasonably accessible to residents – appeal upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to fence and wall – is tree overhanging house causing excessive maintenance - whether damage to house is caused by the tree
CIVIL PROCEDURE – Separate determination of question – Questions of law – Where appropriate – Application for separate determination of question of construction of environmental planning instrument – Application dismissed
BIAS – apprehended bias – application for recusal – whether a fair-minded lay observer might reasonably apprehend that the commissioner might not bring an impartial and independent mind to the fair resolution of the issues in this case – application upheld
COSTS — ss 155(8) and 155(9) of Mining Act 1992 (NSW) — dispute of reasonableness of quantum of costs claimed by Respondents — costs of the application for costs — Respondents costs as claimed ordered
ENVIRONMENT AND PLANNING — installation of indoor component of air conditioning unit in breach of development consent — ss 4.2 and 9.45 of Environmental Planning and Assessment Act 1979 (NSW) — operation of air conditioning unit in breach of cl 45 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) — further orders sought in relation to compensation for hardship caused, cancellation of Local Court costs order and the connection of stormwater drainage line — Notices of Motion dismissed — Amended Summonses dismissed — costs
ENVIRONMENT AND PLANNING — class 1 appeal — application to modify a development consent pursuant to s 4.56 Environmental Planning and Assessment Act 1979 (NSW) — electricity generating power plant — coal tailings used as fuel — addition of biomass as fuel source — whether proposed development substantially the same — not substantially the same — appeal dismissed
DEVELOPMENT APPLICATION – residential flat building development – cl 4.6 written request – height of buildings – agreement between the parties – orders
MODIFICATION APPLICATION – commercial development and cafe – modification to alter roof form – whether overdevelopment of site – whether inconsistent with character of heritage conservation area – whether approval contrary to public interest
DEVELOPMENT APPLICATION – whether the locally listed heritage item should be demolished to allow construction of a 75-place childcare centre –whether proposed development unsuitable for the site – management of acoustic and air quality impacts