DEVELOPMENT – development consent to erect dwelling house – land burdened by dealing creating rights of light, air and prospect – dwelling house would exceed height plane specified in dealing – statutory provision suspending specified regulatory instruments to enable development to be carried out – specified instruments are “any agreement, covenant or other similar instrument” – whether dealing any of these instruments – instrument “restricts the carrying out of that development” – whether dealing so restricts – statutory provision applies to dealing – whether breach of rights of light, air and prospect a nuisance – substantial interference required for nuisance – substantial interference with rights not established. EASEMENTS – dealing creating rights of light, air and prospect – whether grant of easement – whether easement for light and air – whether easement for prospect or restrictive covenant.
DEVELOPMENT APPLICATION – application for the construction of semi-detached dwellings and Torrens title subdivision – application properly characterised as dual occupancy (attached) development and Torrens title subdivision because the development is on one lot of land – prohibition of Torrens title subdivision that would create separate titles for each of the two dwellings resulting from a dual occupancy development
DEVELOPMENT APPLICATION – subdivision of land – bushfire prone land – potential impacts on biodiversity – potential impact on squirrel glider habitat – creation of wildlife corridor – whether Applicant’s BDAR is acceptable – whether Applicant’s proposed wildlife corridor is acceptable – consideration of proposed conditions of consent.
ABORIGINAL LAND RIGHTS – s 36(1)(b) of Aboriginal Land Rights Act 1983 (NSW) – whether land claimable Crown land – claimed land leased to Surf Life Saving Sydney – whether part of claimed land was lawfully used or occupied – claim limited to open space curtilage area surrounding building – whether claimed land should be treated as single unit of separate divisible areas – appeal upheld
ENVIRONMENTAL OFFENCES: defendant charged with breach of clean-up notice offence in summons – whether summons was duplicitous – whether the activity the subject of the offence as charged constitutes a continuing offence – whether the activity the subject of the offence as charged constitutes a single criminal enterprise – summons not bad for duplicity.
APPEAL – development application – alterations and additions to an attached dwelling in heritage conservation area – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION: staged construction of multi dwelling housing – amended plans – agreement between the parties – orders made. SUBDIVISION APPLICATION: further subdivision of estate – no physical works proposed – amendment to incorporate residue parcel for future commercial use.
DEVELOPMENT APPLICATION – renovation and rehabilitation of existing golf course – amended plans and further information provided during conciliation – agreement between the parties – orders made
DEVELOPMENT APPLICATION – equestrian centre and associated works and use of roads – contamination – excavation and earthworks – scale of the development
DEVELOPMENT APPLICATION – construction of a residential flat building – exceedance of the floor space ratio development standard – whether the bulk and scale of the proposal is consistent with the existing and desired streetscape character
DEVELOPMENT APPEAL – residential – alterations and additions – outbuilding – precinct controls – objectives of precinct controls - flexible application of controls in development control plan – zone objectives - orders
APPEAL – development appeal – appeal concerning conditions – alterations and additions to a dwelling house – conciliation conference – agreement reached
DEVELOPMENT APPEAL – residential - conciliation conference – agreement between the parties – jurisdictional prerequisite – contravention of height of building development standard – earthworks - orders
DEVELOPMENT APPLICATION – residential apartment development – shop top housing development in B4 Mixed use zone – building separation standard in B4 Mixed Use zone - flood planning – whether exhibits design excellence – conditions of consent
DEVELOPMENT APPLICATION – new dwelling – basement carparking – breach of the minimum lot size control - amended plans and documents – agreement between the parties – orders made.
PRACTICE AND PROCEDURE – application for separate question – appeal against refusal of a development application for a boarding house – separate question concerning whether the repealed or current housing State environmental planning policy applies to the development application – determining question separately from other issues not justified – separate identification of relevant matter of environmental planning instrument to be considered in determining development application not appropriate – parties’ and objectors’ evidence and cases should only address development application on appeal, not potential amended application – adjudication of separate question not just, quick or cheap.
CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Carrying out development work contrary to Court order — Wilful contempt — Sentencing factors — Consistency in sentencing — Fine imposed
CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Multiple Counts — Carrying out development work contrary to Court injunction — Failure to provide access to property — Wilful contempt — Sentencing factors — Consistency in sentencing — Fine imposed for each count — Costs ordered
PRACTICE AND PROCEDURE – Application to strike out parts of Summonses – r 14.28(1) of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) – whether tendency to cause embarrassment – whether reasonable cause of action disclosed relating to case as pleaded – Respondent partly successful in that four paras struck out – Applicant granted leave to re-plead single ground PRACTICE AND PROCEDURE – leave to adduce expert evidence – rr 31.19 and 31.20 of UCPR – whether experts reasonably required to resolve grounds of review – whether need for multiple ecological experts – ss 56, 57 and 58 of Civil Procedure Act 2005 (NSW) – whether case as pleaded identifies causes of action relating to expert topics – leave granted for evidence by single ecological expert on identified issue – leave not granted to adduce expert evidence going to Aboriginal cultural values
JUDICIAL REVIEW – Complying Development Certificates (CDC) issued for multi dwelling development of terrace houses and subdivision of site – whether terrace housing development met minimum lot size requirements for multi dwelling housing (terraces) pursuant to cl 3B.33 of State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 – cl 4.1A of Hills Shire Council Local Environment Plan 2019 (NSW) – whether error of construction by certifier reviewable – s 4.31 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – whether error produced invalidity of CDC – whether proceedings brought out of time pursuant s 4.59 of EP&A Act – claims not established – whether discretion would have been exercised – Applicant to pay costs
COMPULSORY ACQUISITION ‑ substratum compulsorily acquired for the purpose of construction of a railway tunnel for the Sydney Metro project ‑ claim for compensation for market value of the substratum and for the decrease in value of the residual land retained by the dispossessed owner ‑ three jurisdictional tests as prerequisites to being permitted to seek compensation pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) set by Sch 6B of the Transport Administration Act 1988 (the Transport Administration Act) ‑ first test is whether “the surface of the overlying soil is disturbed” ‑ geotechnical evidence establishes test is satisfied ‑ alternative tests not satisfied ‑ ability to claim compensation pursuant to the Just Terms Act established MARKET VALUE CLAIM ‑ Applicant’s valuer assesses market value of acquired substratum on the basis of “blot on title” ‑ Respondent’s valuer assesses market value of acquired substratum as nil ‑ “blot on title” not an appropriate approach ‑ statutory requirement to consider a hypothetical transaction involving a willing, but not anxious, purchaser and a willing, but not anxious, vendor ‑ hypothetical vendor would not altruistically ascribe no value to the substratum ‑ only valuation evidence of appropriate compensation of $20,000 proposed by the Applicant's valuer ‑ appropriate to award the Applicant compensation for acquisition of the substratum in the quantum proposed by its valuer CLAIM FOR COMPENSATION FOR IMPACT ON RESIDUE LAND ‑ town planning evidence of increased development potential of the site ‑ consideration of how increase in development potential was caused ‑ increased development potential caused by the public purpose ‑ dispute as to cost of additional geotechnical monitoring to permit realisation of future development potential arising from the public purpose ‑ cost of additional monitoring to realise increased development potential determined as $140,000 ‑ valuers disagree about value of increased development potential ‑ Applicant's valuer says no increase in value to be ascribed ‑ Respondent’s valuer proposes 10% uplift in value for future development potential ‑ Respondent’s valuer’s position preferred ‑ increase in value of residue land significantly greater than the cost of the necessary geotechnical monitoring ‑ no entitlement to compensation pursuant to s 55(f) of the Just Terms Act ‑ claim for compensation for decrease in value of residue land dismissed COSTS ‑ Applicant partially successful ‑ no unreasonable conduct by Applicant ‑ Respondent to pay Applicant's costs as agreed or assessed unless notification within 21 days of a party seeking an alternative costs order.
BUILDING INFORMATION CERTIFICATE APPLICATION – unauthorised structure – conciliation conference – agreement reached – orders made DEVELOPMENT APPLICATION – change of use of structure previously approved as a cabana to a secondary dwelling – partial demolition – conciliation conference – agreement reached – orders made
JUDICIAL REVIEW – regulation – whether in excess of regulation-making power – regulation for or with respect to matters prescribed – whether inconsistent with primary statute or other statute – regulation prohibits certain activity except at certain places and in certain circumstances – whether inconsistent with permissive licensing scheme to grant licence for activity at any premises – regulation creates offence for carrying out activity – whether inconsistent with primary statute permitting activity – regulation requires refusal of licence for activity prohibited by regulation – whether inconsistent with other statute that precludes refusal of activity in certain circumstances – other statute prevails over regulation in event of inconsistency – regulation not invalid.
APPEAL ‑ use of the Defendant’s site as a “waste or resource transfer station” prohibited by the Penrith Local Environmental Plan 2010 ‑ development control order prohibited use of the Defendant’s site as a “waste or resource transfer station” ‑ development control order also required Defendant to remove accumulated waste material stored on the site by 9 May 2021 ‑ on three days in March 2021, Defendant transports additional material onto the site in breach of the first element of development control order ‑ importation of waste material filmed on surveillance camera ‑ Defendant charged with three breaches of development control order based on photographic evidence ‑ waste transported on the site in cage on Defendant’s tray‑back vehicle in each instance ‑ maximum volume transported onto site in each instance ~ 2 m³ ‑ maximum fine in Local Court $110,000 for each offence ‑ Defendant pleads guilty before Local Court ‑ Defendant fined $30,000 for each offence ‑ Defendant appeals against severity of sentences imposed by Local Court SENTENCING FACTORS ‑ breaches of development control order carried out for financial gain ‑ potential financial gain minor ‑ financial gain a factor of aggravation ‑ factor to be given limited weight in sentencing consideration SENTENCING FACTORS ‑ no direct environmental harm ‑ large volume of waste material stored on the site not a relevant factor as offending conduct occurred prior to the expiry of the time within which that waste was required to be removed ‑ harm to the regulatory scheme of environmental planning ‑ Defendant imported the material to the site, knowing that he was not permitted to do so ‑ Defendant has no relevant prior convictions ‑ offending conduct to be characterised as toward but not at the low end of the middle range ‑ appropriate starting penalties of $24,000 for each offence GUILTY PLEAS ‑ discount for guilty pleas ‑ Prosecutor accepts Defendant pleaded guilty on the earliest occasion ‑ appropriate to give maximum 25% discount for utilitarian value of guilty pleas ‑ starting sentences adjusted to $18,000 TOTALITY AND ACCUMULATION ‑ all three offences part of the same course of offending conduct ‑ appropriate to modify penalties for second and third offences ‑ penalty for second offence reduced to $16,500 ‑ penalty for third offence reduced to $15,000 ‑ total penalty to be imposed of $49,500 CAPACITY TO PAY FINE ‑ incomplete evidence provided of Defendant’s income and other aspects of his financial position ‑ limited evidence provided concerning Defendant’s assets, including the Defendant’s equity in the site of the offending conduct ‑ Defendant owns the site of the offending conduct unencumbered ‑ Defendant has significant equity in a second property at which he resides ‑ no proper basis established for the purposes of s 6 of the Fines Act 1996 to moderate the otherwise appropriate penalties
ENVIRONMENTAL OFFENCES: pollution of waters – breach of licence – discharge of partially treated effluent into a creek – failure to maintain equipment in proper and efficient condition – pleas of guilty – factors taken into account in determining sentence – whether actual or potential environmental harm caused – whether harm substantive – whether harm foreseeable – whether offender could have taken practical measures to reduce the harm – whether offender demonstrated contrition and remorse – whether utilitarian value of the pleas of guilty eroded by the conduct of the offender during the sentence hearing – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – costs ordered.
MODIFICATION APPLICATION: alterations and additions to dwelling house development in R2 Low Density Residential zone – whether substantially the same – whether consistent with provision of the Randwick Development Control Plan
DEVELOPMENT APPLICATION – alterations and additions to dwelling house in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused; apprehension of further damage; leaves, fruit and small sticks falling onto garage roof and into gutters
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall and risk of injury claimed, reasonable wear and tear, no consequential damage or genuine risk found
ENCROACHMENT – ss 2, 3 and 4 of Encroachment of Buildings Act 1922 (NSW) – characterisation of encroaching owner and adjacent owner – Applicant encroaching owner – relief not available – discretion not exercised – application dismissed
APPEAL – development application – demolition of existing structures and the construction of a two-storey dwelling house with carport and studio at the rear – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – seniors housing and subdivision – existing use and existing use rights – extent of land used for existing use – whether subdivision is a use of land – whether subdivision is an existing use – partial consent
DEVELOPMENT APPLICATION – regionally significant development – electricity generating works – solar farm – alienation of residential land – visual impacts and landscape character – site suitability – public interest
SUBPOENA ‑ Applicant issues subpoena to the Third Respondent ‑Third Respondent’s Notice of Motion to have subpoena set aside in part - Third Respondent’s subpoena challenge partially resolved by agreement ‑ challenge remained as to whether two anthropological reports protected from production by legal privilege - report known as “Martin report” not protected - production to be required ‑ consideration of potential confidentiality regime required - report known as “Lum report” protected - production not to be required COSTS - equality in outcomes of Third Respondent’s Notice of Motion - appropriate that there be no order for costs of Third Respondent’s Notice of Motion
APPEAL – development application – Torrens title subdivision in to 63 residential lots, road construction and construction of 36 two-storey dwellings – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL – dwelling house – non-compliance with building height and wall height –conciliation conference – agreement between the parties – orders
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
DEVELOPMENT APPLICATION: centre-based child care centre – effect of proposed development on heritage conservation area – whether plan of management will be complied with – whether acoustic performance is acceptable
DEVELOPMENT APPLICATION – development for the purposes of spray booth – existing use rights – amended plans and further information – conciliation conference – agreement reached between the parties – orders made
DEVELOPMENT APPLICATION – residential flat building – shop top housing – cl 4.6 written request – height of buildings – agreement between the parties – orders
DEVELOPMENT APPLICATION – boarding house – medium density residential zone – whether the development displays design excellence – precondition not satisfied – no power to grant consent- appeal dismissed
COSTS ‑ Respondent classifies two assessment parcels of land as “coal mine” for rating purposes ‑ two assessment parcels of land owned by applicant coal mine ‑ reclassification sought as “farmland” for two rating years ‑ held both assessment parcels correctly classified as “coal mine” in both assessment years ‑ appeal concerning classification of larger assessment parcel ‑ no appeal concerning classification of smaller assessment parcel as “coal mine” ‑ appeal successful concerning larger assessment parcel ‑ larger assessment parcel proceedings remitted for consideration of tests in s 515 of the Local Government Act 1993 ‑ likely need for further hearing ‑ Council accepts reclassification of larger assessment parcel as “farmland” without necessity for further hearing and determination ‑hypothetical determination of s 515 of the Local Government Act issues not appropriate ‑ Applicant applies for costs of hearing concerning larger assessment parcel ‑ “fair and reasonable” costs rule applies ‑ possible apportionment of costs between larger and smaller assessment parcel proceedings ‑ consideration of factors involved in original hearing ‑ not “fair and reasonable” to award Applicant costs ‑ costs application dismissed COSTS ‑ costs of costs proceedings follow the event ‑ Applicant to pay Respondent’s costs of costs proceedings as agreed or assessed
DEVELOPMENT APLPICATION: dual occupancy development in R3 medium density residential zone – contravention of minimum lot size for dual occupancies – contravention of minimum subdivision lot size for dual occupancies – desired future character
DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R3 Medium Density Residential zone – view loss assessment – whether proposed development exhibits design excellence – consideration of public submissions
DEVELOPMENT APPLICATION: residential development in B4 Mixed Use zone – alterations and additions to existing boarding house – whether exhibits design excellence - effect of the proposed development on heritage conservation area
DEVELOPMENT APPLICATION – alterations and additions to an existing residential flat building ––floor space ratio contravention – height of building contravention
Development Consent:- proposed new dwelling and swimming pool in R2 Low Density Residential zone – breach of height standard – breach of floor space ratio standard – breach of wall height standard – view loss
ABORIGINAL LAND RIGHTS – ss 36(1)(b) and 36(1)(c) of Aboriginal Land Rights Act 1983 (NSW) – whether claimed land was lawfully used or occupied – whether claimed land was needed or likely to be needed for essential public purpose of public recreation – claimed land reserved for Community and Sporting Club Facilities – licences for access and site investigation held by local council – appeal upheld
DEVELOPMENT APPLICATION – attached self-contained dwellings – amended plans and further information – conciliation – agreement between the parties – orders made
NOTICE OF MOTION – leave sought to qualify additional expert and admit his report – issue of whether evidence would resolve matter or whether further evidence from other experts would be required
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the Applicant made reasonable effort – high hedges – is the obstruction of views severe – balance between views and privacy
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the applicant made reasonable effort – high hedges – is the obstruction of views severe – balance between views and privacy – pruning ordered
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environment protection licence – plea of guilty – factors to take into account in determining sentence – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce the harm – whether offender demonstrated contrition and remorse – comparable cases – whether a restoration order appropriate – application of totality principle - monetary penalty imposed – moiety order – publication order – costs ordered.
APPEAL – development application for a two-lot subdivision and construction of dwelling houses on each lot – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION — alterations and additions to dwelling house in R2 Low Density Residential zone - heritage conservation area – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – construction of a three-storey commercial building with basement parking for use as a food and drink premises, a childcare centre and a gymnasium, construction of a fast-food premises with drive through facility, on-grade car parking, landscaping and signage – whether the proposal is consistent with the desired future character for the Schofields Neighbourhood Centre – riparian management
DEVELOPMENT APPLICATION – proposed service station– whether potential noise impacts are acceptable – whether potential impacts concerning character, visual and streetscape are acceptable – consideration of conditions of consent – directions concerning facilitation of site access – consent in the public interest.
JUDICIAL REVIEW: whether there was apprehended bias in the assessment of a development application and the granting of consent by a local planning panel – whether the local planning panel was independent from the council – whether there was apprehended bias by reason of the council’s ownership of the land upon which the development was partly to occur – whether there was apprehended bias by reason of the council purportedly expressing support for the development – whether there was apprehended bias by reason of the council’s asserted pecuniary interest in the outcome of the assessment of the development application – no apprehended bias found.
APPEAL – modification application – Gunlake Quarry Extension Project – modification of State significant development consent to reduce the size of the Biodiversity Offset Areas – interpretation of Final Determination for Box Gum Woodland – derived native grassland – determination of offset requirement using calculator – what is appropriate offset ratio – failure to locate original survey data – absence of reasons in the 2017 judgment giving effect to s34 agreement – management options for offset areas – submissions from objectors – jurisdictional prerequisites - whether the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted
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
APPEAL – development application – dwelling house and boat shed – breach of wall height development standard – conciliation conference – agreement reached
DEVELOPMENT APPLICATION: health services facility in R4 High Density Residential zone – Adamstown Renewal Corridor – whether provision of parking is sufficient – whether setbacks are acceptable
DEVELOPMENT APPLICATION – concept development – residential flat building – biodiversity conservation – exceedance in height development standard – cl 4.6 written request to vary standard – heritage conservation
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – Review of the Trees Act – trees severely obstructing sunlight before applicants’ occupation – other causes of sunlight obstruction
ABORIGINAL LAND RIGHTS: whether resumed land vested in Her Majesty as at the date of the claims – whether Land Acquisition (Just Terms Compensation) Act 1991 vested the land in the Minister for Families, Communities and Disability Services – whether land able to be sold and leased as at the date of the claims – whether land was lawfully used or occupied as at the date of the claims – whether the land was needed or likely to be needed as at the date of the claims. STATUTORY CONSTRUCTION: whether the Land Acquisition (Just Terms Compensation) Act 1991 impliedly repealed the Real Property Act 1900 to the extent of any inconsistency – doctrine of implied repeal – whether the Acts can be construed harmoniously – proper scope and operation of s 42(3) of the Real Property Act 1900.
JOINDER - Notice of Motion to join Willoughby Local Planning Panel (the Panel) as Third Respondent to Class 4 judicial review proceedings - r 59.3 (4) of the Uniform Civil Procedure Rules 2005 (the UCPR) mandates joinder of body “responsible for the decision” being reviewed - decision made by the Panel - notice of determination granting development consent issued by Willoughby City Council (the Council) as a consequence of the decision of the Panel - question of whether the Panel or the Council is “responsible for the decision” for the purposes of r 59.3(4) - applicant in Class 4 proceedings seeks joinder of the Panel in order to seek leave to issue interrogatories - the Council opposes joinder - holder of the challenged development consent takes no part in joinder hearing - held the Panel not “responsible for the decision” in the sense required by r 59.3(4) of the UCPR - joinder, in the alternative, also sought pursuant to r 6.24(1) of the UCPR - consideration of whether joinder necessary for issues in dispute -consideration of whether joinder necessary to bind the Panel to the outcome of the proceedings - neither basis for joinder established - joinder of the Panel rejected COSTS - costs of the application for joinder follow the event - the Applicant ordered to pay the Council's costs of the joinder motion as agreed or assessed
DEVELOPMENT APPLICATION: demolition and construction of a proposed three storey mixed use development with basement car park – supermarket, shops, 77 residential apartments – whether the development has an adverse impact on built form and character of the village – acceptability of pedestrian circulation and public domain -whether the development will result in unacceptable impacts on the adjacent heritage items – whether the residential component of the development will have appropriate amenity – whether the development will have an appropriate level of acoustic amenity given proximity to rail and commercial uses – consideration of public submissions and concerns – appeal dismissed, application refused.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – damage to terracotta sewer pipe – whether trees have caused or are likely to cause other damage
APPEAL – modification application – modification to roof top terrace on residential flat building – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – demolition of on-site structures – construction of multi dwelling housing – in-fill affordable housing – no contentions pressed by the Respondent – objecting lay submissions – significant excavation in proximity to boundaries – existing building prevents the undertaking of further subsurface investigations to define construction particulars – partial consent to allow demolition which in turn allows subsurface investigations – subsequent deferred commencement consent in regard to remainder of the development application
DEVELOPMENT APPLICATION – housing for 'older people or people with a disability – independent living units – jurisdiction – whether consistent with the desired future character described in the relevant Locality Statement – whether low intensity, low impact uses – neighbour objections
DEVELOPMENT APPLICATION – boarding house development – cl 4.6 written request – height of buildings – motorcycle parking – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – roots from neighbouring jasmine vine – damage to terracotta pipe – contribution to pipe repair
BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Whether applicant should be awarded costs of hearing of separate question — Development carried out in breach of consent — Applicant primarily successful — Whether costs should be apportioned — Costs apportioned
SEPARATE QUESTION - Class 1 development appeal - applicant for development consent seeks to have separate questions set down for determination - appeal concerning substantial proposed landfill development to rehabilitate former quarry site - haul road for trucks to the proposed development site from a main highway is along a road not constructed entirely within its road reserve - deviations from the road reserve on two private property and National Park - no owners consent to use the road where it deviates from the road reserve onto private property - proposed questions involve mixed matters of fact and law - proposed questions unlikely to result in finalisation of Class 1 proceedings - proposed questions unlikely to significantly narrow the issues in the Class 1 proceedings - risk that determination of separate questions would cause significant delay to hearing and determination of all issues in dispute in the Class 1 appeal - application for separate question hearing refused - costs reserved
DEVELOPMENT APPLICATION – development in heritage conservation area – dwelling house development in R2 Low Density Residential zone – view loss – whether adverse impact on amenity
DEVELOPMENT APPLICATION – dwelling house – alterations and additions – cl 4.6 written request – height of building – floor space ratio – agreement between the parties – orders
JOINDER - claim for compensation for resumption in 1922 of land at Lake Victoria in far south‑western New South Wales - claimant an Aboriginal person - claim advanced on two bases - first claim based on extinguishment of native title rights - second claim based on adverse possession - claim made against South Australian and New South Wales governments - claim opposed by both governments - both bases of claim opposed - claim founded on rights said to be held by claimant's grandmother at time of resumption - 2015 native title determination recognises native title rights as existing on land surrounding resumed land - native title rights those of the Barkandji and Malyangapa Peoples - determination lists apical ancestors from whom the native title rights are derived - native title rights held by Barkandji Native Title Group Aboriginal Corporation (Corporation) as trustee for descendants of listed apical ancestors - apical ancestors include three members of the Maraura, a subgrouping of the Barkandji and Malyangapa Peoples - three Maraura apical ancestors nominated by claimant in pleadings - claimant is descendant of one of the three Maraura apical ancestors - question of whether Corporation should be joined as a party to the proceedings - joinder sought by Corporation - joinder opposed by claimant - tests for joinder considered - rights of descendants of all three Maraura apical ancestors affected by claimant’s native title claim - Corporation may have responsibilities with respect to those rights - potential for Corporation to have responsibility more than a mere possibility - joinder of Corporation appropriate - Corporation joined as Third Respondent COSTS - costs of joinder deferred to outcome of primary proceedings SUBPOENA - subpoena issued to the Corporation by the claimant - Corporation applies to have subpoena set aside in part - Corporation’s subpoena challenge deferred pending outcome of joinder proceedings FUTURE CONDUCT OF PROCEEDINGS - future conduct of proceedings adjourned to permit Corporation to consider what role it proposed to take in the primary proceedings and whether it maintained its opposition to the claimant’s subpoena - short adjournment permits retention of hearing dates set for February 2023
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the applicants have lost access to views – privacy and other benefits of the trees
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicants have lost access to views – application refused
APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 - Commissioner approves a new McDonald’s restaurant at Wongawilli - appeal on questions of law - Council presses three grounds of appeal - Ground 1, Council complains that Commissioner misconstrued or misapplied applicable provisions of the Council's development control plan - Commissioner’s decision demonstrates appropriate and sufficient consideration of applicable provisions of the development control plan - Ground 1 fails - Ground 2 pleads three subgrounds - Ground 2.1 alleges failure to make applicable provisions of the development control plan a focal point of the Commissioner’s consideration of the relevant issues - Ground 2.1 contingent on Ground 1 and therefore fails - Ground 2.2 alleges specific failure to address cl 3.74 ch B4 of Wollongong Development Control Plan 2009 - matters in the provision adequately addressed - Ground 2.3 alleges failure to have regard to objector evidence concerning “healthy food” - objector evidence appropriately considered - Ground 2 fails - Ground 3 proposed that the Commissioner had no evidence to support his conclusion that changes made to the proposed development were acceptable by failing to consider the likely impacts of the proposed changes - proper evidence upon which the Commissioner based his conclusion of acceptability of the changes - expert evidence on the relevant point supported the Commissioner’s conclusion as to acceptability of the changes - Ground 3 fails - failure on all three grounds requires dismissal of appeal COSTS - costs of s 56A appeals follow the event - Council ordered to pay the Company's costs as agreed or assessed
DEVELOPMENT APPLICATION – child care centre – whether streetscape of Proposed Development is compatible with character of the local area – whether Applicant’s proposed earthworks are acceptable - whether proposed stormwater management arrangements are acceptable – whether parking is acceptable
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new six storey mixed use development – amended plans – conciliation – agreement between the parties – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether a tree is on adjoining land – whether the obstruction is severe – application refused
APPEAL – development control order – stop use order – whether current use of the premises is authorised by earlier development consent – purpose of use approved by development consent – purpose of use currently carried out on the site – acoustic impact of current use – whether discretion to issue an order should be exercised
CIVIL ENFORCEMENT – ss 9.46(1) and 6.32 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – cl 145 of Environmental Planning and Assessment Regulation 2000 (NSW) – consistency of construction certificate and development consent – demolition works and construction of dwelling house – ss 4.2(1)(a) and 4.2(1)(b) of EP&A Act – carrying out of development otherwise than in accordance with the development consent – discretion – whether whole of construction certificate invalid or only that part inconsistent with development consent – adjourned for parties to form appropriate orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury – application refused
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes; apprehension of additional damage to property; leaves, sticks, and other refuse from trees falling on applicants’ land; is genuine risk of injury foreseeable
DEVELOPMENT APPLICATION – centre-based childcare centre – flood prone land – childcare centres as an “unsuitable land use” in the site circumstances – appropriateness of adopted “Manning’s coefficient” or “n value” (roughness factor) in flood modelling – whether the proposed development would result in an unacceptable increase in flooding on-site or off-site – adequacy of proposed Flood Emergency Response Plan as responses to flood risk – appropriateness of “shelter in place” during flood events – applicability of clause 5.21 of standard instrument
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works – impact on the heritage significance of the heritage conservation area – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION— modification application for dwelling house development in R2 low density residential zone – heritage conservation area – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – appeal against condition of consent – alterations and additions to existing commercial building – whether proposed development exhibits design excellence – effect on heritage significance of heritage item – pedestrian amenity in City of Sydney
DEVELOPMENT APPLICATION – construction of three storey dual occupancy (attached), basement parking, landscaping and subdivision – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether the obstruction is severe – orders for pruning
VALUATION OF LAND - appeals against statutory valuations for two valuation years - major regional shopping centre - “highest and best” use - choice between hypothetical development schemes - valuation issues arising concerning the adopted hypothetical development scheme - question of whether, on appeal, a statutory valuation can be increased - unnecessary to resolve jurisdictional question concerning increase in statutory valuation - appeal upheld concerning each statutory valuation - revised valuations substituted for issued statutory valuations - costs reserved
DEVELOPMENT APPLICATION – residential flat building development – cl 4.6 written request – height of buildings – minimum landscaped area – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development in B2 Local Centre zone – residential apartment development – residential flat building – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – compensation for damage to pool – lack of evidence – orders for pruning
DEVELOPMENT APPEAL – conditions of consent – modification of development consent – consideration of objector submissions - conciliation conference – agreement between the parties - orders