PROCEDURE: application to amend statement of facts and contentions – Aboriginal land rights claim –legal principles – Minister agreed to further amend to remove ambiguity caused by proposed amendments – adequacy of explanation for delay by Minister –hearing date not jeopardised – no irredeemable prejudice to non-amending party – whether appropriate to order another s 34 conciliation conference upon the amendments being made – leave to amend granted – further s 34 conciliation conference not ordered. COSTS: whether Minister liable for costs thrown away occasioned by the amendments – whether costs thrown away include the costs of preparing for and attending the s 34 conciliation conference prior to the amendments – Minister ordered to pay the costs thrown away, including those associated with the s 34 conciliation conference.
TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; sunlight; whether trees that were not planted to form a hedge can become part of a hedge; obstruction not severe; application dismissed
DEVELOPMENT APPLICATION – alterations and additions to an existing dual occupancy development – conciliation conference – amended plans and materials – agreement between the parties – orders made
APPEAL – appeal against Commissioner’s decision on question of law – grant of development consent to dwelling houses in foreshore area – contravention of foreshore building line – whether development standard – dwelling houses not rebuilding of existing dwelling house – whether considered by Commissioner – cl 4.6 request justifying contravention of development standard – whether adequately addressed cl 4.6(3) matters – existing dwelling house encroaching on adjoining land – demolition of existing dwelling house but not encroaching wall – whether consent of owner of adjoining land required – restrictive covenant preventing new dwelling houses beyond foreshore building line – utility in granting development consent – whether covenant considered by Commissioner
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – centre-based childcare facility – mixed us development in R4 high density residential development – conciliation conference – agreement between parties - orders
EXTENSION OF TIME – whether r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) applies – whether valid reason for delay – whether prejudice to respondents COSTS – respondents seek each party pay their own costs – whether proceedings defended in public interest – whether need for contradictor – whether “something more” – costs follow the event
PRACTICE AND PROCEDURE – notice of motion – dismissal of appeal – state significant development – inherent power to control Court processes – s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) – whether the second applicant can continue the appeal without the originating party – application dismissed
APPEAL – building information certificate – 6.26 request - is the application amended – information requested by Council - notional development application – floor space ratio - stormwater – landscaping – inadequate information – inconsistent information
MODIFICATION APPLICATION – appeal against the terms of a modified development consent – proposal to add a garage structure, a pergola over an approved terrace and to raise the level of the swimming pool and surrounding structures
JUDICIAL REVIEW – water access licence – replacement floodplain harvesting access licence – regulations for conversion of actual or proposed floodplain water usage into licence – proclamation applying statutory part to water source – regulations made prior to application proclamation – whether regulations invalid – whether application proclamation identified incorrect water source – whether compliance with statutory scheme for issuing licence – requirement to adopt models to determine share component of licence – whether decision to adopt models was legally unreasonable – requirement to publish information in relation to models – failure to do so – whether previously issued documents satisfied notice requirement – requirement to give notice and opportunity to make submissions on proposed share component – failure to do so – whether previous consultation satisfied notice requirement – requirement to consider submissions – failure to do so – whether consideration of submissions from previous consultation satisfied requirement – whether denial of procedural fairness – requirement to use models in determining share component – whether use of utility program as well as models breached requirement – whether statutory notice given for licence to take effect COSTS – indemnity costs – heads of agreement for settling proceedings – whether Minister’s conduct in breaching heads of agreement warranted indemnity costs
DEVELOPMENT APPLICATION – road widening, new traffic signals and upgrades to intersection – conciliation conference – agreement between the parties – orders
SENTENCING — environmental offences — use of place as waste facility without lawful authority —s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — potential for significant environment harm — capacity to pay a fine — s 6 of the Fines Act 1966 (NSW) —moiety — restoration order — s 245 of the POEO Act
DEVELOPMENT APPLICATION — demolition and construction of a three-storey detached dwelling with basement parking and storage — amended plans and documents — conciliation conference — agreement between the parties — orders made
DEVELOPMENT APPLICATION — demolition and construction of a three — storey detached dwelling with basement parking and storage — amended plans and documents — conciliation conference — agreement between the parties — orders made
DEVELOPMENT APPLICATION — demolition and construction of a three - storey detached dwelling with basement parking and storage — amended plans and documents — conciliation conference — agreement between the parties — orders made
CONTEMPT: civil enforcement proceedings – elements of contempt – whether orders permitted the retention of some or all of a horizontal concrete slab and retaining wall – proper construction of the final orders – legal principles to be applied in construing court orders – whether topsoil constituted “building and construction materials” – whether demolition waste constituted “building and construction materials” – whether orders sufficiently clear – whether orders breached – whether breach of orders more than accidental, casual and unintentional – liability for contempt established.
ENVIRONMENT AND PLANNING – appeal – s 56A of the Land and Environment Court Act 1979 (NSW) – appeal against a Commissioners’ decision on a question of law – heritage impact of use of building as shop instead of pub – relevance of viability of pub – appeal dismissed
APPEAL – development application for subdivision – development application for storage facility – no contentions remaining concerning the storage facility application – issue in subdivision concerning isolation of contaminated land – whether deferred commencement condition should be imposed
DEVELOPMENT APPEAL – excavation – Pittwater waterfront Site – steep land – lift and tunnel installation – conciliation conference – agreement between the parties – orders
NOTICE OF MOTION — Expert evidence — Whether leave should be granted pursuant to r 31.19 of the Uniform Civil Procedure Rules (2005) — Alleged “expert shopping” — Claim for privilege — Indemnity costs
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a ceramic pot – apprehension of further damage and injury – nuisance caused by debris from tree – both parties seek tree removal – abuse of purpose of the Trees Act
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – creeping fig – whether the tree is on adjoining land – damage to property – damage to dividing fence – whether tree removal is required – orders for fencing works
COMPULSORY ACQUISITION — Objection to compensation offered pursuant to s 66 of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Valuation — Public purpose for which the land acquired — Rezoning of land — Disturbance claim — Easement
SENTENCING – offences – environment and planning – non-compliance with clean-up notice and prohibition notice – ss 91(5) and 102 of the Protection of the Environment Operations Act 1997 (NSW) – defendant convicted after not guilty pleas – totality – limited capacity to pay fine – s 6 of the Fines Act 1996 (NSW) – fine imposed – investigation costs – legal costs – moiety
MODIFICATION APPLICATION - s 4.55(8) application to the Court to modify a development consent granted by the Court – deletion of toe levels of basement parking – change to floor plans to reduce the number of managers rooms – changes to architectural presentation of the proposed building – amendment to design of proposed communal spaces – impacts of the proposed development.
DEVELOPMENT APPLICATION – centre based childcare centre – joint expert conferences – merit concerns resolved with amended plans and additional information – agreed orders to effect final outcome in the proceedings
COSTS - award of costs to local council respondent following unsuccessful judicial review challenge to stop work order issued under Environmental Planning and Assessment Act – award of costs for notice of motion granting extension of time to commence judicial review proceedings also awarded to the local council - usual rule that costs follow the event applied
DEVELOPMENT APPLICATION — Alterations and additions to a residential dwelling — amended plans and supporting documents — conciliation conference — agreement between the parties — orders made.
LAND LAW – strata title – notice of motion – Strata Schemes Development Act 2015 (NSW) – ancillary orders – appointment of a trustee for the sale of an owner’s lot
TREES (DISPUTES BETWEEN NEIGHBOURS) — hedges — sunlight — whether trees that were not planted to form a hedge can become part of a hedge — obstruction not severe — application dismissed
APPEAL – highway service centre – business identification sign – whether signage is business identification sign – whether visual impact – whether visual clutter
DEVELOPMENT APPLICATION – development application for a long term Caravan park and associated infrastructure – concurrent application for water and sewer works – whether the development is characterised as development for the purpose of a manufactured home estate and therefore prohibited – whether the proposal is likely to have a significant and unacceptable impact on the local populations of koala – whether there are adequate arrangements for the provision of sewer services – appeal dismissed
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – repairs to property – tree removal – who should pay for the works – the tree was there first
TREES (DISPUTES BETWEEN NEIGHBOURS) — whether damage to retaining wall caused by tree — apportionment of costs of rectification — whether a retaining wall is a dividing fence
CIVIL PROCEDURE — Notice of Motion — Application for joinder — Seeking to join after judgment has been delivered — Jurisdictional error — Restrictive covenants — Application to set aside judgment of Commissioner — Application for a stay
JUDICIAL REVIEW – review of decision to grant development consent – cll 4.1 and 4.1B of the Cooma – Monaro Local Environmental Plan 2013 – statutory interpretation – orders and declarations – development consent void and of no effect
APPEAL – development application – two-storey residential addition above an existing building commercial building – contravention of development standard for height of building – clause 4.6 variation
DEVELOPMENT APPLICATION: subdivision of land in C2, C3 and R5 zone – biodiversity values of site – whether biodiversity Development Assessment Report adequate – whether development avoids and minimises impacts – whether serious and irreversible impacts – flood management – assessment of off-site impacts – bush fire protection
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – fig tree that caused damage has been removed – application to remove neighbouring bamboo – application for repairs to property – whether trees have damaged or are likely to damage property – whether the respondents could have reasonably prevented the damage – orders to remove bamboo and repair fence – Pt 2A application – neighbouring bamboo hedges – obstruction of sunlight – Pt 2A application not pressed
TREES (DISPUTES BETWEEN NEIGHBOURS) – likelihood of future damage claimed – jurisdiction does not apply to risk of injury from undertaking pruning – application refused
APPEAL – development application –detached dwelling house with rooftop terrace and swimming pool – conciliation conference – agreement reached – orders made
APPEAL – development application – alterations and additions to an existing building – change of use to secondary dwelling – conciliation conference – agreement reached – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – application to remove neighbouring tree – whether the tree has damaged or is likely to damage property – whether the tree is likely to cause injury – whether tree removal is required – the tree was there first – whether dwelling was constructed according to approved plans – who should pay for works – Pt 2A application – neighbouring tree – obstruction of sunlight – no jurisdiction for single tree
CIVIL PROCEDURE — Notice of motion to vacate hearing — related proceedings transferred from the Supreme Court of NSW to the Land and Environment Court of NSW
DEVELOPMENT APPLICATION – mixed use residential apartment building development – cl 4.6 written request – height of buildings – agreement between the parties – orders
DEVELOPMENT APPLICATION – multi-dwelling housing and alterations and additions to an existing Victorian villa – heritage item – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – alterations and additions to a residential flat building – change of use of ground floor to a centre based childcare centre – conciliation conference – amended plans and materials – agreement between the parties – orders made
DEVELOPMENT APPLICATION: subdivision of land – dwelling house development in R3 Medium Density Residential zone – biodiversity impact assessment – orders
APPEAL – appeal against grant of development consent subject to conditions – dwelling house – conciliation conference – agreement reached – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes – orders for removal of Fig tree – no damage by hedge proven – applicant failed to maintain own property – high hedges – sunlight is severely obstructed – hedge similar height upon applicant’s occupation – orders for pruning of hedge thus contrary to scope of Pt 2A – respondent values privacy and aesthetics – undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed or remedied
PROCEDURAL RULINGS – environment and planning – offences – objection to admissibility of certificate under s 60F(5) of the Local Land Services Act 2013 (NSW) – application for voir dire – admissibility of defendant’s expert evidence served during trial – application dismissed
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – overhanging branches – burden of pruning neighbour’s hedge – damage to the applicants’ property – injury while maintaining trees is not injury caused by the trees – application refused
DEVELOPMENT CONTROL ORDER APPEAL — unauthorised works — modifying order to stop use demolish works and restore works — conciliation conference — agreement between the parties — orders
DEVELOPMENT APPEAL – modification of consent – child care centre - increase in number of children – substantially the same development - conciliation conference – agreement between the parties - orders
ENVIRONMENTAL OFFENCES — Prosecution where defendant did not appear in Court — Defendant charged with 20 offences under the National Parks and Wildlife Act 1974 (NSW) and the Biodiversity Conservation Act 2016 (NSW) — Allegation of clearing of native vegetation on land — Offences of harming or picking plants and damaging habitat of threatened species, endangered populations or endangered ecological communities — Where defendant did not obtain the required development consent in activity resulting in damage to habitat — Defendant found guilty of all 20 offences — Proceedings listed to obtain sentence hearing date and directions
DEVELOPMENT APPLICATION – Mixed use development – streetscape – character – contamination – parking – traffic – amenity – height – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential flat building – site width development standard – impact on heritage items – scale and bulk – conciliation conference – agreement between the parties
DEVELOPMENT APPEAL – residential – alterations and additions – cl 4.6 written request to justify contravention of floor space ratio development standard – cl 4.6 written request to justify contravention of site coverage development standard – conciliation conference – agreement between the parties – orders
PROCEDURAL RULINGS – evidence in one trial tendered in another trial – ss 59 and 190 of the Evidence Act – consent of defendants – dispensing with hearsay rule
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to the applicant’s property – the respondent wants to remove the tree – orders for pruning and compensation
DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – demolish works order – conciliation conference – agreement between the parties – orders DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – restore works order – conciliation conference – agreement between the parties – orders
APPEAL — s 56A Land and Environment Court Act 1979 (NSW) appeal from decision of a Commissioner — proper characterisation of purpose of proposed development — whether a “water reticulation system” within the meaning of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) and/or “water storage facility” within the meaning of the Wingecarribee Local Environmental Plan 2010 (NSW) (WLEP) — whether “light industry” within the meaning of WLEP — appeal dismissed
DEVELOPMENT APPEAL – multi storey - centre based child care facility – car parking – car stacker – landscaping - design excellence – insufficient information
DEVELOPMENT APPLICATION – subdivision – construction of new dwelling – conciliation conference – amended plans and additional documents – agreement between the parties – orders made
MODIFICATION APPLICATION – modification of consent originally granted by the Court – conciliation conference – residential flat building – agreement between the parties – orders
DEVELOPMENT APPLICATION: proposed signage structure and digital advertisement display – whether the signage is compatible with the desired amenity and visual character of the area – whether road safety is adversely affected