MODIFICATION APPLICATION – whether development is substantially the same development – retention of heritage fabric – reasons given for the grant of consent sought to be modified
NOTICE OF MOTION — Seeking to set aside orders made in principal judgment — Uniform Civil Procedure Rules 2005 rr 36.15 and 36.16 — Motion dismissed — Self-represented litigant
COSTS – costs follow the event rule – partial success on issues – whether apportionment based on partial success – factors influencing Court’s exercise of discretion – whether unsuccessful issues clearly dominant, separable or discrete from successful issues – whether unsuccessful issues involved considerable hearing time – whether such time can be identified or realistically estimated – whether unsuccessful issues lacked real merit – whether applicant behaved improperly or unreasonably in conduct of proceedings – no apportionment of costs
CIVIL ENFORCEMENT — Failure to comply with an order issued under s 124 of the Local Government Act 1993 (NSW) — Declaration and orders made to restrain and remedy breach — Further time granted for compliance
DEVELOPMENT APPLICATION – heritage conservation – the effect of the proposed development on heritage significance of an item – whether exhibits design excellence
DEVELOPMENT APPLICATION — alterations and additions to shop top housing development — height standard is exceeded — whether development exhibits design excellence
DEVELOPMENT APPLICATION – mixed use development – co-living housing pursuant to Chapter 3, Part 3 of State Environmental Planning Policy (Housing) 2021 – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION: alterations and additions to existing dual occupancy – change of use to a single residential dwelling – conciliation conference – agreement between the parties – orders made.
DEVELOPMENT APPLICATION – amended plans and documents - demolition and construction of a two-storey co-living housing development –agreement between the parties – orders made.
APPEAL — development application — dwelling house — contentions resolved — appropriate conditions of consent — whether affordable housing contribution should be imposed
CIVIL PROCEDURE — Parties — Joinder — Neighbouring property owner to development application — Leave to party to intervene in relation to one discrete issue
ENVIRONMENTAL OFFENCES: application for costs following the withdrawal of criminal proceedings – whether the investigation of alleged offences under s 120 of the Protection of the Environment Operations Act was unreasonable or improper – whether the proceedings were initiated without reasonable cause or in bad faith – whether the prosecutor unreasonably failed to investigate matters – whether the prosecutor failed to communicate the withdrawal of proceedings in a timely manner – whether exceptional circumstances warranting an award of professional costs – entitlement to a costs certificate under s 2 of the Costs in Criminal Cases Act – applicable legal principles – limited costs order made in some of the proceedings – costs certificate issued in relation to some of the proceedings.
DEVELOPMENT APPLICATION – demolition and use of existing structures – amended plans and materials – conditions of consent in dispute – appeal upheld BUILDING INFORMATION CERTIFICATE – seeking to regularise structures on the land – no power to amend building information certificates – agreed expert evidence of no utility – appeal dismissed
COSTS – whether fair and reasonable that applicant receive costs following unsuccessful notice of motion seeking summary dismissal of Class 1 appeal by respondent local council
DEVELOPMENT APPLICATION – demolition, subdivision and construction of two semi detached dwellings – amended plans and documents - agreement between the parties – orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — damage to paving, boundary fence and clothesline — whether tree removal is required — whether the applicant has suffered a loss — orders for tree pruning and fencing works
CONTEMPT— Practice and procedure — Contempt motions alleging breach of undertaking — Amended motion seeking leave to amend contempt motions — Filing and service of affidavit evidence — Leave granted
CIVIL PROCEDURE — Land and Environment Court — Tree dispute — Summary disposal — Dismissal of proceedings — Whether earlier decision should be set aside or stayed — Proceedings litigating same cause of action and issues — res judicata — issue estoppel — Anshun estoppel — Where proceedings are an abuse of process and frivolous or vexatious — Whether vexatious proceedings order should be made
DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R4 high Density Residential zone – stormwater management – orders
DEVELOPMENT APPEAL – use of existing outbuilding as a restaurant – tree removal – road re-alignment – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of injury – application refused – Pt 2A application – obstruction of views – obstruction not severe – application refused
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
NOTICE OF MOTION — Seeking to set aside orders granting change of experts — Review of Registrar’s decision — Alleged “expert shopping” — Motion to review and set aside orders granted
DEVELOPMENT APPLICATION – residential apartment building development – clause 4.6 written request – floor space ratio – agreement between the parties – orders
DEVELOPMENT APPEAL – modification application – consent for 199 lot Torrens title subdivision – changes to indicative layout plan substantially the same development – conciliation conference – agreement between the parties – orders
APPEAL – development control order – demolish works order and restore works order – works to heritage item – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL — remitted matter — community title subdivision — justification of contravention of minimum subdivision lot size development standard — orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage – application refused – Pt 2A application – obstruction of sunlight – sunlight refers to direct sunlight – application refused
JUDICIAL REVIEW — Challenge to Notice of Intention to issue a Performance Improvement Order under s 438 of the Local Government Act 1993 — Seeking an order to declare the Notice and subsequent Order invalid — Requirement to attach evidence to Notice of Intention — Summons dismissed
DEVELOPMENT APPLICATION – appeal – hard rock quarry – State significant development –pedestrian safety – traffic safety – traffic flow – uncertainty of impacts of intended road improvements – social baseline – negative social impacts related to quarry product road haulage – negative amenity impacts of quarry product road haulage – feasibility of rail haulage – economic benefits of the quarry – strategic benefits of quarry to major infrastructure – negative consequences outweigh benefits – insufficient information
COSTS: whether the respondent should pay the applicant’s costs in compulsory acquisition proceedings – where the applicant was awarded more compensation than that contended for by the respondent but less than the Valuer-General’s offer and less than it sought in the proceedings – applicable legal costs principles compulsory acquisition proceedings – respondent to pay the applicant’s costs of the proceedings and of the motion.
APPLICATION – modification application made directly to the Court – application to modify a consent for a residential flat building – conciliation conference – agreement reached – orders made
MODIFICATION APPLICATION – modification of a development consent for a residential flat building – 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
MODIFICATION APPLICATION – alterations and additions – shop top housing development – residential apartment development – agreement between the parties – orders
DEVELOPMENT APPLICATION — demolition and construction of industrial units and self storage — conciliation conference — agreement between the parties — orders made
CONTEMPT — Civil contempt — Breach of orders — Contempt proven — Contumacious contempt — Punishment of fine — Punishment suspended on conditions that contemnor cease contempt and remove waste — Order for substituted performance — Council directed to remove waste if contemnor fails to do so — Indemnity costs
DEVELOPMENT APPLICATION – demolition and construction of a five-storey mixed use commercial building including hotel – conciliation conference – amended plans and documents – agreement between the parties – orders made
DEVELOPMENT APPLICATION – subdivision and works – industrial – conciliation – additional information and amended development application – agreement between the parties – orders made
MODIFICATION APPLICATION – modification application for amendment to the approved residential dwelling – amendments to conditions – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – modification of a development consent for a residential dwelling – conciliation conference – amended plans and documents – agreement between the parties – orders made
DEVELOPMENT APPLICATION – demolition of structures and construction of a residential apartment building – conciliation – additional information and amended development application – agreement between the parties – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – risk of damage or injury – risk of tree failure – whether tree removal is required
DEVELOPMENT APPLICATION – change of use from 32 room boarding house to 4 dwellings – the proposed change of use would result in the unacceptable loss of affordable rental boarding house accommodation in the local area – the existing boarding house could be viable and able to achieve a reasonable return following the renovation works
APPEAL – development application – detached dwelling house with swimming pool – integrated development – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION — demolition of existing structures and construction of a mixed use development — conciliation conference — amended plans and materials — agreement between the parties — orders made
MODIFICATION 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
CONTEMPT — Civil contempt — Enforcement of local council and court orders — Failure to comply — Contempt proven — Contempt wilful — Fine imposed — Costs awarded
CIVIL PROCEDURE — Notice of Motion — Application for joinder granted — s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) — Public interest and interests of justice — Whether issues raised by intervenor would be sufficiently addressed absent a contradiction
DEVELOPMENT APPLICATION — alterations and additions to an existing terrace house — amended plans — conciliation — agreement between the parties — orders made
APPLICATION — encroachment — application under the Encroachment of Buildings Act 1922 concerning multiple structures — whether structures are encroachments — discretion as to whether orders should be made
DEVELOPMENT APPLICATION — demolition and construction of a residential flat building — amended plans and documents — conciliation conference — agreement between the parties — orders made
CIVIL PROCEDURE – application to extend time for compliance with orders requiring vacation of property and demolition of unlawful works – orders not made irregularly because children residing at property not joined as parties – general power to extend time for compliance with orders not exercised
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
ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development prevented its lapse – s 95 of the Environmental Planning and Assessment Act 1979 (NSW) — Whether work could be said to have physically commenced – Conditions required compliance prior to the work undertaken – Modification, revocation or review — s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) – Forming state of satisfaction that development was substantially the same — Whether decision to approve modification was manifestly unreasonable – Discretion
DEVELOPMENT APPEAL – alterations and additions to boarding house - existing use rights – justification of contravention of floor space ratio development standard - conciliation conference – agreement between the parties - orders
DEVELOPMENT CONTROL ORDER APPEAL – demolish works order – restore works order – self represented litigants – compliance with BCA – works adjacent sensitive water way – conciliation conference – agreement between the parties to modify the development control order – orders
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