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
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 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
COMPULSORY ACQUISITION – objection to compensation – determination of public purpose – highest and best use – disturbance – determination of compensation
APPEAL – appeal against Commissioner’s decision – residential subdivision – plan of subdivision marks a lot as “public reserve” – development consent not granted to dedication of lot as public reserve – later dedication on registration of plan – no error on question of law in granting consent to subdivision – two minimum lot size development standards – one for community title subdivision – another for dual occupancy subdivision – whether inconsistent – whether principle that specific provision prevails over general provision applies – misconstruction of provisions – floor space ratio development standard – application on facts – no error on question of law
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – severe obstruction of sunlight to windows of a dwelling – privacy important to respondent – orders balance both parties’ needs
TREES (DISPUTES BETWEEN NEIGHBOURS) high hedges —¬¬ severe obstruction of view from a dwelling — privacy important to respondent — orders provide a balance between both parties’ preferences
CIVIL ENFORCEMENT — s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) — Alleged breach of Development Control Order — Council ordered demolition of structure — Safety risk of structure — Failure to obtain development consent NOTICE OF MOTION — Applicant seeking to amend Summons and Points of Claim
DEVELOPMENT APPEAL – residential development – off street parking hard stand – Australian standards and assessment of on street parking – expert evidence – public interest – precedent – character and streetscape presentation – orders
MODIFICATION APPLICATION – concept consent – stage two consent – alterations and additions – commercial building – agreement between the parties – orders
DEVELOPMENT APPLICATION – continued use of an existing orchard and construction of orchard netting – view sharing principles – impacts on adjacent heritage item
PRACTICE AND PROCEDURE — Land and Environment Court — Application to vacate hearing dates — Court’s discretion to review registrar’s decision — Change in circumstances and late application raised by applicant — Where Council has not marshalled evidence in anticipation of matters now raised by applicant — Where Council not responsible for applicant’s position — Consideration of interests of justice — Hearing dates vacated
DEVELOPMENT APPEAL – Torrens title subdivision and construction of internal road and associated works – planning for bushfire safety – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – damage to property – history of branch failure – who owns the tree – tree removal – who should pay for the works
DEVELOPMENT APPLICATION – application seeking development consent for the use of existing shed – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – subdivision and development of part of the site for fast food outlets, new road access, tree removal and associated works – conciliation conference – amended plans and information – agreement between the parties – orders made
PROCEDURAL RULINGS – Environment and Planning – offences – s 60N of the Local Land Services Act 2013 (NSW) – s 12 of the Native Vegetation Act 2003 (NSW) – objection to admissibility of certificate under s 60F(5) of the Local Land Services Act 2013 (NSW) – whether certifier had delegation to issue the certificate – whether the certificate was validly issued – objection dismissed
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