DEVELOPMENT APPLICATION – alterations and additions to an approved residential flat building –exceedance in height development standard – cl 4.6 written request to vary standard – provision of adequate communal open space
COSTS – whether costs determination should be stayed pending appeal – whether costs should follow the event – whether public interest litigation – no order as to costs.
COSTS: whether costs follow the event when a respondent surrenders to the orders sought by an applicant in the originating process – whether conduct of the applicants was unreasonable thereby warranting a departure from the usual costs order – whether applicants’ failure to notify the first respondent prior to commencing proceedings was unreasonable conduct warranting a different costs order – whether applicants’ failure to personally serve the first respondent with the originating process was unreasonable conduct warranting a different costs order – whether the applicants’ rejection of an offer to settle the proceedings on the same terms as the relief that they ultimately obtained absent an order as to costs was unreasonable – effect of filing of a submitting appearance by the second respondent on costs – applicable legal principles.
APPEAL – development application for water storage facility – characterisation – whether proposed development can be properly characterised as water storage facility – whether industrial activity – traffic safety issues
MODIFICATION APPLICATION – whether substantially the same development – the floor space ratio standard exceeded – the height standard is exceeded – whether the bulk and scale is acceptable – whether development as modified will establish undesirable precedent
DEVELOPMENT APPLICATION – mixed use development in R4 High Density Residential zone – residential apartment development – conciliation conference – agreement between parties – orders
INTERLOCUTORY APPLICATION – injunction – forestry operations – civil enforcement proceedings – integrated forestry operations approval under Part 5B of the Forestry Act 2012 (NSW) – standing to sue – whether the common law test for standing applies in civil enforcement proceedings – serious question to be tried – balance of convenience.
DEVELOPMENT APPLICATION – Torrens title subdivision and construction of two dwellings – works in the public reserve requiring owner’s consent from Crown Lands – part of the site is mapped as littoral rainforest – the subdivision of the site is on land mapped as littoral rainforest – the proposal is designated development pursuant to s 2.7(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021 and the development application is to be accompanied by an environmental impact statement pursuant to ss 4.10(1) and 4.12(8) of the Environmental Planning and Assessment Act 1979 – parties directed to file a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works
DEVELOPMENT APPLICATION: shop top housing development in E1 Local Centre zone – whether development isolates adjoining site – whether exhibits design excellence
JUDICIAL REVIEW: validity of complying development certificate in respect of works to a boatshed – boatshed on Crown land – no landowner’s consent obtained prior to issue of certificate – whether declaration of invalidity should be made – absence of contradictor – utility of declaration – declaration made – certifier filed submitting appearance save as to costs – consequential procedural orders made in relation to foreshadowed costs hearing.
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new dwelling and swimming pool – exceedance of the height of buildings development standard
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the tree has caused damage – actions taken by the parties – whether compensation should be paid – application refused
DEVELOPMENT APPLICATION – alterations and additions to existing commercial development in E1 Local Centre – whether consistent with the desired future character of the neighbourhood – height standard is exceeded – FSR standard is exceeded – conditions of consent are disputed
CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – second proceedings litigating same cause of action and issues – abuse of process – effect of judgment in first proceedings – res judicata – issue estoppel – Anshun estoppel
DEVELOPMENT APPLICATION – subdivision of land to create 61 lots – whether the development is appropriate given the split zoning of the proposed lots – determination of appropriate conditions of consent – appeal upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedge removed before hearing – do bananas form a hedge – if so, does hedge severely obstruct a view from a dwelling – damage to fence and unreasonable maintenance burden
CIVIL PROCEDURE – review of deputy registrar’s decision pursuant to r 49.19 of Uniform Civil Procedure Rules 2005 (NSW) – deputy registrar’s decision set aside and notice of motion re-determined – orders seeking leave to rely on amended plans not made
APPEAL – question of law – Commissioner’s decision to modify development consent – precondition to power to modify consent – whether modified development substantially the same development as originally approved development – whether error in chain of reasoning – whether error that no change in critical elements of development – whether error in adopting expert’s approach that no change in consequences of development – no error of law established
DEVELOPMENT APPLICATION – demolition and construction of new dual occupancy development – amended plans and additional information – agreement between the parties – orders made
APPEAL – modification – application direct to Court – Court ordered consent at s 34 conference for child care centre – deletion of deferred commencement condition to create s 88K drainage easement over public school land – whether easement reasonably necessary – whether modified on site stormwater drainage system adequate – whether substantially the same development – unencumbered space in child care centre
APPEAL – development application – prospective building works – building information certificate – regularising building works undertaken without consent – conciliation conference – agreement between the parties – orders
APPEAL – development application – alterations and additions to existing Marina – adequacy of parking assessment – insufficient evidence – public interest
SENTENCE: occupier of landfill charged with emission of offensive odour – plea of guilty – odour affected local residents over a three month period – substantial environmental harm caused – multiple victims – harm reasonably foreseeable – practical measures available to avoid or mitigate the harm – objectively serious – subjective factors – moiety ordered – environmental services order – publication order made – notice to residents ordered.
INTERLOCUTORY APPLICATION: application for interim injunctive relief – no serious question to be tried – excessive delay in bringing application for injunctive relief and in commencing judicial review proceedings – whether proceedings brought in the public interest – whether the applicant should pay the respondents’ costs of the application.
PRACTICE AND PROCEDURE – construction and operation of s 8.5(7) of Environmental Planning and Assessment Act 1979 (NSW) enabling withdrawal of Class 1 appeal following grant of development consent as result of review – joinder of third party has no effect on application of section to applicant and consent authority
CIVIL PROCEDURE — time — extension of time to commence proceedings — r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ENVIRONMENT AND PLANNING — consent — conditions — construction — whether condition C.1(d) of the modified development consent prohibits excavation within the area previously identified as the ‘cellar’ level ENVIRONMENT AND PLANNING — consent — conditions — s 19(1)(b) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) — whether the relevant building work plans and specifications in the construction certificate are consistent with the modified development consent ADMINISTRATIVE LAW — ground of review other than procedural fairness — unreasonableness — jurisdictional error — whether it was legally unreasonable for the certifier to determine the relevant building work plans and specifications were consistent with the modified development consent — whether legal unreasonableness leads to invalidity of all or part of the construction certificate
DEVELOPMENT APPLICATION – residential flat development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – bamboo – whether land is adjoining – Pt 2 application – whether neighbouring bamboo has damaged property – whether bamboo should be pruned or removed – whether a root barrier should be installed – compensation – Pt 2A application – bamboo hedge – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed
VALUATION OF LAND – appeals against land valuations by Valuer-General – s 6A(1) of Valuation of Land Act 1916 (NSW) – limited relevant comparable sales
DEVELOPMENT APPLICATION – conciliation conference – residential property – bulk and scale – desired future character – landscaping – potential view loss – agreement between the parties – orders
SENTENCING – environmental crime – offences against ss 342(1)(a) and 343(1) of Water Management Act 2000 – damaging or interfering with any work owed or under control of irrigation corporation – taking water from water supply work without authorisation – objective seriousness of offences – sentencing principles – general and specific deterrence – totality – jurisdictional limit of the Local Court – order for moiety against s 122 of Fines Act 1996
DEVELOPMENT APPLICATION – telecommunications facility – amendment to the proposed location – additional information – agreement between the parties – orders made.
DEVELOPMENT APPEAL – service station – frontage on classified road – whether a right of way is a road – jurisdictional prerequisite as opposed to merit assessment –whether a deferred commencement condition can satisfy a jurisdictional prerequisite - orders
DEVELOPMENT APPLICATION: dwelling house development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION: Residential apartment development – residential flat development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION – seniors housing development – part of the site is flood affected land – the site is not suitable for the proposed development because a part sheltering in place strategy is not appropriate for seniors due to the vulnerability of the occupants and the likely duration of the isolation period
DEVELOPMENT APPLICATION – Torrens title subdivision and construction of two dwellings – works in the public reserve requiring owner’s consent from Crown Lands – part of the site is mapped as littoral rainforest – the subdivision of the site is on land mapped as littoral rainforest – the proposal is designated development pursuant to s 2.7(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021 and the development application is to be accompanied by an environmental impact statement pursuant to ss 4.10(1) and 4.12(8) of the Environmental Planning and Assessment Act 1979
CIVIL ENFORCEMENT – multiple breaches of Environmental Planning and Assessment Act 1979 (NSW) established in relation to building of dwelling – failure to comply with development consent and construction certificate – failure to comply with stop work order issued under the Environmental Planning and Assessment Act 1979 (NSW) – failure to comply with compliance order issued under the Environmental Planning and Assessment Act 1979 (NSW) – exercise of discretion to make declarations of breaches of Environmental Planning and Assessment Act 1979 (NSW) and consequential orders requiring demolition and construction in compliance with development consent and construction certificate – costs
MODIFICATION APPLICATION – conversion of non-trafficable green roof to trafficable – heritage conservation area – conciliation conference – agreement between the parties – orders
REMEDIATION ORDER – conciliation conference – clearing of native vegetation and endangered ecological communities – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – risk of damage or injury – whether tree removal is required – orders for pruning
DEVELOPMENT APPEAL – demolition and construction new three-storey dwelling house – steep land – height of building - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 1 application — Question regarding characterisation of development and permissibility — Determining question separately from other issues not justified — Adjudication of separate question not just, quick or cheap
DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R2 Low Density Residential zone – existing use – whether sufficient environmental planning grounds to justify contravention of height standard
DEVELOPMENT APPLICATION – secondary dwelling – alterations and additions – character – bulk and scale – privacy – landscaping – private open space – hearing
DEVELOPMENT APPLICATION – mixed use development – shop top housing in E1 Local Centre zone – conciliation conference – agreement between parties – orders
ENVIRONMENT AND PLANNING – Judicial review of development consent of State Significant development – alleged that the consent authority failed to consider environmental impact of transmission line – material jurisdictional error – question as to whether the transmission line formed “part of a single proposed development” – s 4.38 of Environmental Planning and Assessment Act 1979 – provision to be construed in terms of context and purpose – environmental impacts of transmission line – s 4.15(1)(b) of Environmental Planning and Assessment Act 1979 – lack of certainty as to route of transmission line precluded a finding as to “likely impacts” – no error in respect of mandatory relevant considerations
DEVELOPMENT APPLICATION – two residential flat buildings and associated site works – development capable of being delivered in two stages – site is to be amalgamated prior to issue of occupation certificate for the first stage
COSTS — Costs assessment — Determination — Self-represented litigant — Class 7 proceedings APPEAL — Appeal against conviction in Local Court wrongly commenced — Conviction in Local Court annulled during proceedings in the Land and Environment Court — Appeal discontinued — Orders made that applicant pay 60% of respondent’s costs including costs of the application for costs
APPEAL – s 56A appeal from decision of acting commissioner on question of law in finding that applicant company a fit and proper person under Protection of the Environment Operations Act 1997 (NSW) – no failure to consider matter not identified to acting commissioner at hearing – no failure to consider correct statutory test – no failure to consider specific paragraphs of judgment in separate criminal case – attribution of weight to relevant factors by acting commissioner not reviewable under statutory scheme – decision not legally unreasonable – appeal dismissed
MODIFICATION APPLICATION – alterations and addition to an approved residential flat building – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – demolition – construction new dwelling house, pool and landscaping – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – application refused
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – whether tree removal is required – apportionment of costs of the works
DEVELOPMENT APPEAL – alterations and additions to residential flat building – contravention of wall height development standard – contravention of floor space ratio development standard – orders APPEAL – application directly to the court for approval to modify a consent – whether substantially the same – orders
DEVELOPMENT APPLICATION – semi-detached dwellings – Torens title subdivision – cl 4.6 written request – minimum subdivision lot size – floor space ratio – agreement between the parties – orders
MODIFICATION APPLICATION – alterations and additions to an approved building – boarding house - conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – bamboo – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed – whether a root barrier should be installed
DEVELOPMENT APPEAL – demolition – lot amalgamation – construction of residential flat building – affordable housing scheme – solar access - conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – sunlight to a window is not severely obstructed – slime and mould, and injury from spiders, are not covered by the jurisdiction
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – two mature fig trees – damage to neighbouring property – to what extent the trees caused any damage – whether tree removal is required – compensation – whether damage existed when the applicants purchased their property – whether the respondent could have prevented the damage – tree removal ordered – no compensation for damage
DEVELOPMENT APPLICATION – multi dwelling housing – cl 4.6 written request – height of buildings – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – subdivision into 2 lots – construct 2 new dwelling houses on each lot – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damaged wall – neighbouring trees – whether the trees contributed to damage – whether the applicant has demonstrated causation – other causes of property damage – application refused
APPEAL – development application for alterations and additions to an existing dwelling house – conciliation conference – agreement reached – orders made
ENCROACHMENT OF BUILDINGS – retaining wall encroaching on applicant’s land – retaining wall failing and should be removed – retaining wall benefits both landowners and should be reconstructed on the shared boundary
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – breach in height development standard – written request for variation in development standard – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – concept development application – demolition – subdivision – certain construction works – certain tree removal – conciliation conference – agreement between the parties – orders
APPEAL – appeal of acting commissioner’s decision under Trees (Disputes between Neighbours) Act 2006 (NSW) – no error of law in determination that four palm trees did not form a hedge – appeal dismissed
SEPARATE QUESTION: whether consent authority precluded from granting consent to a concept development application in circumstances where clauses concerning the number of lots and the density of the development could not be complied with by the proponent at that stage – what was the “development” in respect of which the consent DA sought consent – whether provision in planning instrument concerning density control is a development standard or a control – whether if the density control is a development standard the consent authority can grant consent to the concept development application.
JURISDICTION – partial strike out of Class 2 application as court lacks jurisdiction to consider breach of duty of care to provide support for land under s 177 of the Conveyancing Act 1919 (NSW) PRACTICE AND PROCEDURE – premature application for compensation under s 181 of Local Government Act 1993 (NSW) struck out PRACTICE AND PROCEDURE – no transfer of proceeding to Supreme Court of NSW
DEVELOPMENT APPEAL – construction of commercial building with basement parking and gym – conciliation conference – agreement between the parties - orders
COSTS – costs order made in Respondent’s favour in interlocutory proceeding in compensation for compulsory acquisition claim under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – costs in interlocutory proceedings not payable on indemnity basis
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – two neighbouring hedges – obstruction of views and sunlight – whether the obstruction is severe – background material – whether the applicants have lost sunlight and views
APPEAL – development application – consent sought for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School – deemed refusal – amended application renotified – objectors’ submissions – commencement at Frensham School with objector submissions, inspection of site of proposal and observation of areas to south including upper Holt – whether site is core koala habitat – change to conservation status of koala – Biodiversity Development Assessment Report (BDAR) – Flood Emergency Response Plan (FERP) – impacts on platypus – water quality assessment is not required to be met – nature of vegetation on site – establishment of Asset Protection Zones – managing bush fire risk – bush fire evacuation plan – whether the proposal is appropriate given biodiversity and other values – agreed conditions imposed
APPEAL – development application – grant of consent subject to conditions concerning a tree – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL – residential development – masonry retaining wall and dividing fence – foreshore area– compatibility with surrounding area – orders
DEVELOPMENT APPLICATION – multi dwelling housing – desired future character – front setback configuration – streetscape presentation – visual privacy – non-compliance with the minimum lot size for multi dwelling housing
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environmental protection licence – failure to store waste in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether offender committed offences recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – whether offences committed without regard for public safety – whether offender has capacity to pay fine – comparable cases – application of totality principle – monetary penalty imposed – moiety order – publication order – costs ordered.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – row of trees along boundary wall – whether the trees have caused damage – whether the trees are likely to cause damage – application refused
DEVELOPMENT APPLICATION: semi detached dwelling development in R1 – General Residential zone – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION – subdivision of land to create Torrens title residential lots – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – demolition – construction of detached dual occupancy – Torrens title subdivision - conciliation conference – agreement between the parties - orders
VALUATION OF LAND – appeal against valuations by Valuer-General – s 6A(1) of Valuation of Land Act 1916 (NSW) – conciliation conference – agreement between the parties
DEVELOPMENT APPLICATION – amend a development consent – residential flat building – contravention of the height of buildings development standard – impact on the heritage significance of the adjoining heritage conservation area
DEVELOPMENT APPLICATION: storage facility and commercial premises in E3 Productivity Support zone – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R4 High Density Residential zone – public submissions are considered – orders by consent
TREES (DISPUTES BETWEEN NEIGHBOURS) – Trees adjacent boundary – repeated pipe blockages – are respondent’s trees causing damage – s 12 considerations – compensation ordered
DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
DEVELOPMENT CONSENT – stratum subdivision of 1 lot into 2 lots – FSR – city high rise building - applicability of cl 4.6 variation of development standard – orderly and economic use and development of the land
PRACTICE AND PROCEDURE – interlocutory application – notice of motion for injunctive relief – restrain applicant from accepting offer of compensation under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) – serious question to be tried – balance of convenience
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – risk of damage and injury from two neighbouring trees – whether the application was served on the respondent – trees partly removed prior to the hearing
DEVELOPMENT APPEAL – staged development – construction of new buildings and associated works – continued use as a cemetery and crematorium - upgrade to access to classified road – conciliation conference – agreement between the parties – orders
CRIME – Environmental Offences – Offences under ss 120(1) and 142A(1) of the Protection of the Environmental Operations Act 1997 (NSW) – prohibition of pollution of water and land – diesel spill – applicable sentencing principles under Crimes (Sentencing and Procedure Act 1999 (NSW) – objective seriousness of offence – offence aggravated by nature and seriousness of the harm to the environment – strict liability – conduct unintentional – subjective circumstances of offender – remorse – early guilty plea – consistency in sentencing – limited capacity to pay fine – s 6 of Fines Act 1996 (NSW) – appropriate sentence – discount in fine for each offence
APPEAL – modification application – alterations and additions to existing professional consulting rooms (chiropractor) – conciliation conference – agreement between the parties - orders
JOINDER —application for joinder — statutory tests — issues proposed to be raised by applicants for joinder —public interest – Double Bay Marina order – application for joinder dismissed.
CRIMINAL APPEAL – Environmental Offences – Liability of Councils and directors – special executive liability – s 169(1) of Protection of the Environment Operations Act 1997 (NSW) – statutory construction – construction of “to and in respect of”– whether such an expression is to be read disjunctively or conjunctively – ordinary and grammatical meaning of “and” is conjunctive – assistance of extrinsic material – s 220(4) of Local Government Act 1993 (NSW) – costs limitations imposed upon lower courts
DEVELOPMENT APPLICATION – mixed use development – development application seeks consent for alterations and additions to the approved mixed-use development – conciliation conference – agreement between the parties – orders made.
APPEAL – development application – shop top housing development with basement parking – conciliation conference – agreement between the parties – orders