TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree damaging boundary fence – whether tree removal is required – orders for tree pruning and fencing works
DEVELOPMENT APPEAL – residential development – alterations and additions – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE APPEAL – orders
MODIFICATION APPLICATION – application made directly to the Court – conciliation conference – residential flat building – agreement between the parties – orders
OFFENCES AND PENALTIES – sentence by Local Court – appeal against sentence – offence of failing to comply with development control order – development control order largely outside power – non-compliance with potentially invalid order of low objective seriousness – no environmental harm, foreseeability of harm or practical measures to prevent harm – offence deliberate but not for financial gain – mitigating factors
DEVELOPMENT APPEAL – residential development – alterations and additions while maintaining existing building envelope - conciliation conference – agreement between the parties - orders
APPEAL – development control orders – both orders revoked by the Council – the subject matter of each appeal has been lost – signed consent orders – proceedings dismissed
DEVELOPMENT APPEAL – residential development – new vehicular access to existing garage – conciliation conference – agreement between the parties – orders
APPEAL – development application – stage 1 of a concept development consent – modification application concerning concept development consent – conciliation conference – agreement reached in both matters – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – debris falling from neighbouring tree – risk of damage – risk of injury – whether allergy has been demonstrated – application refused
ADMINISTRATIVE LAW — Judicial review — Development consent and conditions imposed by local government authority — Whether decision to approve modification application was invalid — Five grounds of review — Lapse of consent — Consideration of acoustic and noise impacts as an essential matter — Forming state of satisfaction that development was substantially the same — Satisfaction reasonably open or not — Lawfulness in part of condition — Relief in amended summons granted
DEVELOPMENT APPEAL – modification application – mixed use building – substantially the same development - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPEAL – excavation under existing 4 storey house to extend garage and build underground tunnel to rear of house – install vertical lift from tunnel to rear of house – steep land – earthworks – geotechnical hazard – proximity to Bungan Head cliff and ‘environmentally sensitive area’ – site suitability – whether excavation excessive – whether impacts unacceptable – desired future character – Newport Locality statement in DCP – reduced landscape area – public interest
DEVELOPMENT APPEAL – mixed use development – justification of contravention of development standards - conciliation conference – agreement between the parties - orders
SENTENCE — Offences against s 64(1) and s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) — Objective seriousness of the offences — Offences caused actual and potential environmental harm — Subjective circumstances — Totality principle applies — Fines imposed — Offender ordered to pay prosecutor’s costs — Offender ordered to publish notices and to pay a portion of the monetary penalty to NSW National Parks and Wildlife Service
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE - conciliation conference – agreement between the parties – orders
JUDICIAL REVIEW – challenge to stop work order –extension of time to file judicial review proceedings under Uniform Civil Procedure Rules 2005 (NSW) r 59.10 granted – remaining judicial review ground in amended summons not established on balance of probabilities.
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
DEVELOPMENT APPLICATION – centre based childcare centre – joint expert conferences – merit concerns resolved with amended plans and additional information – contention that the appeal was lodged prior to the right to appeal arose – appeal not competent.
DEVELOPMENT APPLICATION – demolition of existing structure and construction of shop top housing – conciliation conference – amended plans and materials – agreement between the parties – orders made.
APPEAL – development application – residential flat building – contentions resolved – appropriate conditions of consent – whether conditions should be imposed requiring creation of right of carriageway or restriction as to user
APPEAL — Appeal against Council’s deemed refusal of development consent for proposed supermarket development — Whether there is noncompliance with planning controls in relation to urban design and landscaping — Effect of building design and appearance and streetscape setback issues on satisfaction of controls — Appeal upheld and consent granted subject to conditions
DEVELOPMENT APPLICATION – partial demolition and alterations and additions to an existing dwelling – conciliation conference – amended plans and documents – agreement between the parties – orders made
MODIFICATION APPLICATION – application directly made to Court – residential flat building – conciliation conference – agreement between the parties – orders
PRACTICE AND PROCEDURE – Notice of Motion to set aside a Notice to Produce – Apparent relevance – Legitimate forensic purpose – Notice of motion dismissed – Access granted
DEVELOPMENT APPEAL – residential development – demolition of existing dwelling – secondary dwelling – development on coastal land – flood planning – compliant BASIX certificate – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – centre-based child care facility in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders
CIVIL ENFORCEMENT – development in breach of condition of development consent – use of land for carparking without development consent – civil enforcement – ss 4.2 and 9.46 of the Environmental Planning and Assessment Act 1979 (NSW) – orders and declarations
COSTS – application for costs in Class 2 Trees (Disputes Between Neighbours) Act 2006 (NSW) proceedings – s 98(1) Civil Procedure Act 2005 (NSW) – r 3.7 Land and Environment Court Rules 2007 (NSW) – presumption against an order for costs – whether costs are fair and reasonable – each party to bear their own costs
SENTENCING — environmental offences — s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) — air pollution — guilty plea — environmental services order — publication order made
DEVELOPMENT APPLICATION – residential accommodation for 83 co-living rooms – conciliation conference – amended plans and information – agreement between the parties – orders made
DEVELOPMENT APPEAL – residential development – Torren title subdivision – minimum lot size development standard – flooding and stormwater drainage – deferred commencement condition - conciliation conference – agreement between the parties - orders
CRIMINAL PROCEDURE – defendants’ notices of motion alleging multiple private prosecutions are an abuse of process upheld – stay ordered CRIMINAL PROCEDURE – prosecutor’s notices of motion alleging defendants’ notices of motion an abuse of process dismissed
TREES (DISPUTES BETWEEN NEIGHBOURS) – Roots damaging common boundary fence and paved path – apprehension of further damage – s 12(h) damage impacted by applicants’ omissions
DEVELOPMENT APPEAL – residential development – flood impacts – weight to be given to zone objectives – bulk and scale – contravention of height development standard – adequacy of the written request
PRACTICE AND PROCEDURE – Notice of Motion to vacate hearing – failure to comply with the Court’s directions to file and serve evidence – ss 56, 57 and 58 Civil Procedure Act 2005 (NSW) – hearing date vacated – condition for vacation guillotine order for service of evidence and costs – costs
DEVELOPMENT APPEAL – commercial – serviced apartments – centre-based child care centre – conciliation conference – agreement between the parties - orders
APPEAL – subdivision application including subdivision works – urban release area – direction made in earlier decision for the first plan of subdivision to be amended – direction complied with – final orders made
ENVIRONMENTAL OFFENCES: case management for summary criminal proceedings – prosecution disclosure – purpose of Div 2A of the Criminal Procedure Act 1986 - scope of duty of prosecutor under s 247J of that Act – obligation to serve separate s 247J notice for each charge – level of detail required by prosecutor in s 247J notice – whether prosecutor must identify specific portions of the information and documents it has disclosed to effect compliance with s 247J – where prosecutor relying on body of evidence in respect of multiple charges arising from the same factual matrix.
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – whether damage to retaining wall caused by tree – apportionment of costs of rectification – whether a retaining wall is a dividing fence
MODIFICATION APPLICATION – application directly made to Court – residential care facility - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – alterations and additions to existing dwelling in heritage conservation area – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – whether development permissible in B6 Enterprise Corridor zone – whether jurisdictional preconditions are satisfied – signage is consistent with objectives of Chapter 3 – signage satisfies assessment criteria in Schedule 5
DEVELOPMENT APPLICATION – part 4 storey and part 5 storey mixed use development including co-living – integrated development – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – application directly made to Court – mixed use development - conciliation conference – agreement between the parties – orders
COSTS — Discontinuance — Refusal to discontinue — Where applicant on a notice of motion acted reasonably and incurred costs due to respondent on the motion acting unreasonably — Application for costs of applicant on the motion to be paid on an indemnity basis — Where Class 1 proceedings by respondent on the motion are struck out and dismissed — Orders made that respondent on the motion pay costs of applicant on the motion not on an indemnity basis
LAND LAW — strata title — strata renewal plan for redevelopment — Strata Schemes Development Act 2015 (NSW) — one dissenting owner not a party to the proceedings — strata renewal plan given effect
COMPULSORY ACQUISITION: proper characterisation of the public purpose – whether council empowered to acquire land for the public purpose of precinct land release for housing – whether council empowered to acquire land for the purpose of the provision of trunk drainage infrastructure – public purpose that of the provision of drainage channel and Green and Golden Bell Frog habitat – applicable principles in determining the public purpose – determination of the underlying hypothetical zoning of the acquired land – zoning is both E2 Environmental R2 Low Density – valuation methodology – direct comparison approach – whether betterment – calculation of market value – disturbance – respondent to pay the applicant’s costs.
PROSECUTION – sentencing – plea of guilty to breach of condition of development consent for locating unapproved silt cells in quarry development – commission of offence not intentional – no environmental harm – low objective seriousness – application for s 10 order under Crimes (Sentencing Procedure) Act 1999 (NSW) refused – mitigating factors – publication order made PROSECUTION – sentencing – plea of guilty to breach of condition of development consent for bringing material onto site – commission of offence not intentional – no environmental harm – application for s 10 order under Crimes (Sentencing Procedure) Act 1999 (NSW) refused – low objective seriousness – mitigating factors – publication order made
DEVELOPMENT APPEAL – alterations and additions to existing car parking building – 24 hour gymnasium – bulk and scale – contravention of height and floor space ratio development standards – adequacy of the written requests
DEVELOPMENT APPLICATION: demolition of existing structures – heritage conservation area – contributory item – site contamination – structural damage to dwelling – conciliation - amended plans and information – agreement between the parties – orders made
DEVELOPMENT APPLICATION – dual occupancy – single dwelling house – subdivision – cl 4.6 written request – height of buildings – agreement between the parties – orders
DEVELOPMENT APPLICATION – construction of a two storey 107-place childcare centre – conciliation agreement – agreement between the parties – orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) –overhanging branches – leaves falling onto roofs and into gutters – damage to timber fence – apprehension of further damage, and of injury
DEVELOPMENT APPLICATION: alterations and additions to heritage item – appeal against conditions of consent – height is exceeded – effect of proposed development on heritage significance
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether trees have damaged or are likely to damage property – Pt 2A application – neighbouring hedge – whether the trees are planted so as to form a hedge
DEVELOPMENT APPLICATION – application seeking development consent for the use of internal alterations to the existing boat shed – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders
APPEAL – Development Application – Development Control Order – unauthorised works on council land – conciliation conference – agreement between the parties – modified development control order
DEVELOPMENT APPLICATION: dwelling house development in C4 Environmental Living zone – alterations and additions to dwelling in conservation zone – conciliation conference – agreement between parties - orders
DEVELOPMENT APPEAL – residential flat building – whether contravention of maximum height of building development standard is justified – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage and injury – neighbouring trees – damage to fence and retaining wall – risk of damage and injury – whether tree removal is required – who is responsible for the works
DEVELOPMENT APPEAL – centre-based child care centre – character – car parking area – site coverage – leave not granted for new contention – leave not granted for amended development application
APPEAL – appeal on question of law – misconstruction of statutory provision – Commissioner’s decision to refuse development consent for demolition and erection of new residential flat buildings – contravention of building height development standard – written request seeking to justify contravention – Commissioner not satisfied that development is consistent with zone objectives – misconstruction of zone objectives – misunderstanding and misapplication of principles of statutory interpretation APPEAL – appeal on question of law – denial of procedural fairness – Commissioner decided appeal on issues not contested by the parties - consent orders – Commissioner’s findings of social impacts and negative environmental effects of development not in issue – denial of procedural fairness by failing to give parties notice and opportunity to be heard
DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R1 General Residential zone – effect on heritage conservation area
DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of building – floor space ratio – building separation – agreement between the parties – orders
PROCEDURE: application to transfer proceedings to the Supreme Court of New South Wales from the Land and Environment Court – legal principles – no reason to transfer proceedings – Land and Environment Court has jurisdiction to hear the matter – Land and Environment Court has power to grant the relief sought – Land and Environment Court, as a specialist environment and planning court, best placed to determine the issues raised by the proceedings – transfer would be inefficient and unjust to the applicants given that a final hearing date has been allocated and the applicants have filed and served all of their evidence. PROCEDURE: application for a stay of proceedings pending transfer to the Supreme Court of New South Wales – legal principles – stay not warranted.
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Costs — Tree dispute — Whether order for costs fair and reasonable — No order as to costs
DEVELOPMENT APPLICATION – Shop top housing development in E1 Local Centre zone – height standard is exceeded – conciliation conference – agreement between parties – orders
APPEAL – modification application – modification of a development consent granted by the Court – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R4 High Density Residential zone – conciliation conference – agreement between parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – tree structurally deteriorating – damage caused by branch failure – apprehension of further damage and risk of injury to persons – tree removal ordered
JUDICIAL REVIEW — whether the consent authority had power to impose a condition requiring an affordable housing contribution — operation of ss 4.17(1)(h) and 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) — construction of cl 15A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) — whether invalid condition — whether the condition can be severed from the development consent
DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variations – feasibility of site amalgamation – residential flat building – orders
DEVELOPMENT APPLICATION – demolition and construction of a two storey 86-place childcare centre – conciliation conference – agreement between the parties – orders made.
DEVELOPMENT APPLICATION: site clearing, civil works and new multi dwelling housing – conciliation conference – amended plans – agreement between the parties – orders made.
DEVELOPMENT APPLICATION: demolition and residential subdivision, civil works and road construction – conciliation conference – amended plans and additional information – agreement between the parties – orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – whether strata plan can make an application – whether multiple applications required – neighbouring cypress hedges – obstruction of sunlight and views – whether the obstruction is severe – balancing of interests – orders for tree removal, tree pruning and ongoing maintenance
EVIDENCE – Class 3 proceedings – admissibility of expert reports – experts not available for cross-examination – material prejudice – reports not admitted
APPLICATION – s 4.55(8) application to the Court to modify a development consent granted by the Court – conciliation conference – agreement between the parties – orders
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Tree dispute — Whether proceedings should be dismissed due to no reasonable cause of action in application under the Trees (Disputes Between Neighbours) Act 2006 (NSW) STATUTORY INTERPRETATION — s 4(4) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) — Whether application can be brought after tree has been removed
APPEAL – subdivision application including subdivision works – urban release area – permissibility of subdivision where minimum lot size applies – staged subdivision – each stage considered separately – acceptability of subdivision design
NOTICE OF MOTION – stay of order pursuant to s 124 of the Local Government Act 1993 (NSW) pending outcome of appeal – request for referral to Pro Bono Panel
DEVELOPMENT APPLICATION: residential flat building in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders