DEVELOPMENT APPLICATION: alterations and additions to dwelling house in R1 General Residential zone – heritage conservation area – conciliation conference – agreement between parties - orders
APPEAL – modification application – amendments to acoustic fencing and associated conditions – application to modify approved consent for a 70-place childcare centre – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – new multi dwelling housing development – conciliation conference – amended plans – agreement reached between the parties – orders made.
DEVELOPMENT APPLICATION – Alterations and additions to a dwelling house – conciliation conference – amended plans – agreement between the parties – orders made.
JUDICIAL REVIEW – whether development consent has lapsed – whether evidence establishes physical commencement – whether declaration appropriate where no contradictor
APPEAL – development application – alterations and additions to existing dwelling house to raise it by 3m – existing dwelling house in flood prone land
DEVELOPMENT APPLICATION – Demolition and construction of a new dwelling house – conciliation conference - amended plans – agreement between the parties – orders made.
DEVELOPMENT APPLICATION – mixed use development with approval for use of ground and first floors as a childcare centre – whether, given its width, the site is suitable for the proposed development – whether the proposed development provides safe access to the basement and parking spaces - whether built form of the proposed development is incompatible with the character of the locality – insufficient landscaping and impacts on trees – whether the proposed development will have an unacceptable impact on the amenity of neighbouring residential properties – whether the internal amenity of the proposed childcare centre is acceptable -whether the development has been designed and will be constructed and operated in a sustainable manner- appeal dismissed.
COSTS – application for gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in certain amount – sufficient material before court to enable gross sum costs order to be made – circumstances of substantive civil enforcement proceeding justify making a gross sum costs order
APPEAL – MODIFICATION - application direct to Court – Court ordered consent for seniors housing development – access to public services - whether Keoride satisfies requirement – whether Keoride a public transport service - whether modified development substantially the same
DEVELOPMENT APPEAL – centre based child care facility – stormwater management and deferred commencement condition – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – damage caused – apprehension of further damage and injury – leaves falling onto dwelling roof and clogging gutters
JUDICIAL REVIEW: decision to approve forestry operational plans – whether compliance with principles of ecological sustainable forestry management a mandatory precondition or consideration – whether satisfaction of principles of ecological sustainable forestry management a jurisdictional fact – whether compliance with the conditions of the Coastal Integrated Forestry Operations Approval 2018 a mandatory consideration – whether respondent obliged to consult applicant on planned forestry operations – whether applicant denied procedural fairness – materiality
CIVIL PROCEDURE — subpoena — objection to production of documents on basis of legal professional privilege – onus of proof of legal professional privilege on party claiming it – claim for legal professional privilege dismissed
JOINDER —application for joinder — statutory tests — issues proposed to be raised by applicant for joinder — interest of justice– application for joinder dismissed.
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – tree branches have damaged a roof – risk of damage or injury – whether tree removal is required – orders for pruning
ENVIRONMENT AND PLANNING – Environment protection licence – statutory requirement for review of licence – separate statutory requirement to consider matters in licence review – proceedings brought to remedy breach of statutory requirement to consider matters – privative clause precluding proceedings for failure to comply with requirement for licence review – whether proceedings precluded – consideration of whether licence holder fit and proper person – whether inference to be drawn from licence review record that matter not considered – considerations of impact of pollution and practical measures to mitigate pollution and environmental harm – whether inference to be drawn from licence review record that matters not considered.
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of views claimed –respondent’s privacy important – obstruction of views is not severe
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – cypress hedges – obstruction of sunlight and views – whether the obstruction is severe – privacy – balancing of interests – orders for pruning
DEVELOPMENT APPLICATION: Multi dwelling development in R3 Medium Density Residential zone – whether consistent with desired future character - consent in an environment of uncertainty is problematic - no power to consider development that is not the subject of the development application
DEVELOPMENT APPLICATION – Amendment to trading hours of the General Roberts Hotel – do the amended trading hours result in an unacceptable impact on the amenity of the neighbours? -should the Court exercise flexibility in the application of the controls in the applicable development control plan? – are the proposed trading hours consistent with the character of the area? – the development application is acceptable – appeal upheld.
ENVIRONMENT AND PLANNING — Consent — Validity — whether directions given by the Minister for Planning are invalid — whether there was a reasonable apprehension of bias — directions not invalid ENVIRONMENT AND PLANNING — Development application — Validity — whether the approval of the modification application is invalid — approval of the modification application not invalid ENVIRONMENT AND PLANNING — Consent — Conditions — whether the third respondent failed to comply with conditions 3 and 4 of the modified development consent — no relief granted COSTS — order that the applicant pay the third respondent’s costs
ENVIRONMENT AND PLANNING – Class 1 appeal – appeal against the deemed refusal of amended development application seeking change of use of land – suitability of site – s 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 – risk to safety of users of site posed by Commonwealth explosive ordnance facility not sufficient for site to be deemed unsuitable – “likely impacts” of development – s 4.15(1)(b) of the EP&A Act – impact of site on Commonwealth facility not made out – application granted, subject to conditions
MODIFICATION APPLICATION: multi dwelling housing development in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – demolition works and construction of centre based child care centre for 120 children – conciliation conference – amended plans and documents – agreement reached between the parties – orders made.
APPEAL – development application – alterations and additions to an existing residential flat building – conciliation conference – agreement between the parties – orders
COSTS – tree dispute – no discouragement principle applied – no unreasonable behaviour in conduct of proceedings – improper purpose not established – no costs order made
COSTS – whether fair and reasonable to award costs under r 3.7 Land and Environment Court Rules in favour of respondent following unsuccessful tree dispute application – presumptive rule that each party pays their own costs – whether unreasonable circumstances justify costs order
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
DEVELOPMENT APPLICATION: new residential dwelling development – conciliation conference – amended plans – agreement reached between the parties – orders made.
DEVELOPMENT APPLICATION – alterations and additions – single dwelling house – cl 4.6 written request – floor space ratio – agreement between the parties – orders
DEVELOPMENT APPLICATION – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – whether the applicant has contributed to death of the tree – who should pay for tree works – orders for tree removal
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree with copious deadwood – apprehension of damage and injury – sticks and leaves falling onto dwelling roof and back yard
COSTS — successful applicant should receive costs — r 6.11 of the Uniform Civil Procedure Rules 2005 (NSW) — submitting appearance without the words “save as to costs” — effect of late submitting appearance — apportionment of costs between respondents — order for costs to be paid in equal shares COSTS — first and second respondents seek costs of costs hearing — order that respondents pay the costs of the hearing costs as agreed or assessed
DEVELOPMENT APPLICATION – demolition, proposed co-living development, landscaping and associated works – conciliation conference – amended plans and information – agreement between the parties – orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) – rhizomatous bamboo – current and near future damage to property – balancing damage and environmental considerations with privacy
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – actions taken by the parties – orders for tree removal
DEVELOPMENT APPLICATION – new residential dwelling and swimming pool – amended plans and documents – conciliation conference – agreement reached – orders made.
DEVELOPMENT APPLICATION – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – 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 catchment of the area – whether the proposed signage is a safety risk – precedent – appeal upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring bamboo hedges – obstruction of sunlight – res judicata – whether the situation has changed – whether the obstruction is severe – Pt 2A application refused
DEVELOPMENT APPEAL – residential development – dwelling house in rural zone – whether minimum lot size is a development standard capable of variation pursuant to cl 4.6 or whether it is a prohibition – no merit contentions – satisfaction of jurisdictional prerequisite prior to exercise of function as consent authority – orders
DEVELOPMENT APPLICATION – subdivision, demolition, tree removal, bulk earthworks, road constriction and associated works – conciliation conference – amended plans – agreement between the parties – orders made.
APPEAL – development application – strata subdivision of an existing dual occupancy – calculation of strata lot size – breach of the minimum strata lot size development standard – consistency with the zone objectives concerning housing affordability and housing needs
APPEAL – appeal on questions of law – Commissioner’s decision to refuse development consent for development in a heritage conservation area – effect of development on heritage significance of area concerned – building to be demolished assessed in DCP as detracting and non-contributory element – Commissioner found assessment incorrect – whether asked wrong question – whether failed to consider relevant matter – error not established
DEVELOPMENT APPLICATION – shop top housing – exceedance in height and floor space ratio development standards – cl 4.6 written requests to vary development standards – desired future character of the Double Bay Centre
DEVELOPMENT APPLICATION – co-living housing development – breach in height development standard – variation of development standard – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – Residential apartment development in R3 Medium Density Residential zone – orders by consent of the parties – public submissions
DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders
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 – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – costs ordered.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Cypress trunk damaging front boundary fence – apprehension of future damage and risk of injury – Orders by Consent
PRACTICE AND PROCEDURE – multiple defendants’ notices of motion seeking orders that summonses be quashed and dismissed upheld – prosecutor’s notice of motion seeking to amend summonses does not arise and dismissed in any event – costs awarded to defendants under s 257C of Criminal Procedure Act
APPEAL – modification application – alterations to consent for industrial facility for production of concrete pipes – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – whether proposed use is permitted in R4 High Density Residential zone – heritage conservation – heritage incentives facilitate conservation - whether view loss is reasonable – public submissions are considered
SENTENCING – Defendant guilty of three offences against of s 91I(2) of the Water Management Act 2000 (NSW) – objective seriousness low – strict liability – no environmental harm – subjective circumstances – totality principle – fine imposed – publication order – moiety
NOTICE OF MOTION – leave sought to adduce expert evidence – leave opposed on the basis of misuse of commercially sensitive or confidential information – risk not a real or sensible possibility – leave granted
APPEAL – development control order – stop use order – use now authorised by deferred commencement consent – conciliation conference – agreement reached to modify the terms of the order – orders made
DEVELOPMENT APPLICATION – land subdivision – essential services – consent authority also functions as water management authority – out of sequence development – appropriateness of provision of interim services – sewage management – stormwater management – roadworks – maintenance responsibilities – bond – positive covenant
DEVELOPMENT APPLICATION: attached dual occupancy development in R3 Medium Density Residential zone – height of building standard exceeded – conciliation conference – agreement between parties - orders
DEVELOPMENT CONTROL ORDER – demolish works order – public safety order – restore works order – heritage conservation area - conciliation conference – agreement between the parties to substitute orders – orders
DEVELOPMENT APPEAL – change of use to residential – use of various ‘as built’ internal non-loadbearing walls – minor works – conciliation conference – agreement between the parties - orders
COMPULSORY ACQUISITION ‑ claim for compensation ‑ resumption of leasehold interest ‑ 18 advertising billboards owned by claimant ‑ billboards located on road between international and domestic terminals at Sydney Airport ‑ compensation claim for hypothetical digitisation of signs prior to date of acquisition ‑ no legal basis for a claim ‑ if wrong, contingent determination of number of signs which might have been digitised ‑ two signs would have been digitised COMPULSORY ACQUISITION ‑ method to be used for calculating value of leasehold interest ‑ discounted cashflow method appropriate basis of calculation ‑ determination of input factors for such calculation COMPULSORY ACQUISITION ‑ claim for “Digital advantage” ‑ “Digital advantage” claim separate from “Halo effect” claim ‑ no proper evidentiary basis for “Digital advantage” advantage claim ‑ claim rejected COMPULSORY ACQUISITION ‑ claim for “Halo effect” ‑ “Halo effect” said to arise because of claimant's ability to market billboards in combination at multiple airport locations in other cities ‑ no proper evidentiary basis for claim ‑ claim mere assertion ‑ claim rejected COMPULSORY ACQUISITION ‑ claim for fees of forensic accountant ‑ fees claimed pursuant to s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 ‑ fees said to be incurred as part of providing legal advice to claimant ‑ fees properly claimed - reimbursement of claimed fees to be ordered DIRECTIONS ‑ matter adjourned to permit the parties to consider the findings and calculate compensation based on them and to bring in orders to reflect the determined outcomes
DEVELOPMENT APPLICATION: dwelling house development in C4 Environmental Living zone – the height standard is exceeded – the wall height standard is exceeded
DEVELOPMENT APPEAL – steel frame shed on large lot residential land – ancillary to dwelling – consideration of contamination - conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – bamboo – view obstruction severe – sunlight obstruction – balance between redemption of ocean views and privacy – pruning ordered
DEVELOPMENT APPEAL – residential – dual occupancy – height of building development standard – ground level existing – heritage – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – alterations and additions – commercial building – cl 4.6 written request – height of buildings – agreement between the parties – orders
CRIMINAL – practice and procedure– multiple charges of breaches of s 64 of Protection of the Environment Operations Act 1997 (NSW) – whether summons patently duplicitous – whether summons latently duplicitous and uncertain
DEVELOPMENT APPEAL – Class 1 – modification of conditions of consent – amendment to conditions of consent for a caravan park – flood and fire risk – social impact on residents – time to make site compliant – caravan park residential site agreements and regulation of caravan parks – end of useful asset life – certainty – orders LOCAL GOVERNMENT ACT APPROVAL APPEAL – Class 2 – authority to operate a caravan park – conditions of approval – orders
APPEAL – development application – mixed use development with ground floor commercial and upper level residential – breach of the height development standard – view loss – adjacent to a heritage item and in a heritage conservation area
APPEAL – land valuation appeal – whether land value of small lot in Mascot too high – whether highest and best use of land boarding house or mixed use – proximity to Mascot Towers affected selection of highest and best use APPEAL – land valuation appeal – whether land value of lot in Mascot too high – whether highest and best use of land boarding house or mixed use – impact of Mascot Towers on development of property
ENVIRONMENTAL OFFENCES: pollution of waters – breach of licence – failure to obtain approval for discharge of wastewater in contravention of an environmental protection licence – failure to monitor volume of liquids discharged into water in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether there was environmental harm – actual environmental harm – whether harm foreseeable – whether offender could have taken 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 – comparable cases – application of totality principle – monetary penalty imposed – financial penalty payable to environmental trust – publication order – costs ordered.
DEVELOPMENT APPEAL – procedural and final orders – self represented litigant – failure to disclose all plans at hearing – additional plan filed after hearing – slip rule not applicable - leave granted and final orders made
COMPULSORY ACQUISITION – objection to the amount of compensation offered by the Respondent – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring trees – damage to property – risk of injury – nuisance – who is responsible for pruning trees – orders for tree pruning
ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — validity of direction 7 of the varied clean-up notice — whether there was a connection between direction 7 and the pollution incident the subject of the varied clean-up notice — whether the prosecutor held reasonable suspicion of pollution incident — whether the prosecutor was the appropriate regulatory authority — construction of ss 212C and 212D of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 7 of clean-up notice — defence of reasonable excuse ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 10 of varied clean-up notice — defence of reasonable excuse ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 102 of the Protection of the Environment Operations Act 1997 (NSW) — whether the giving of the prohibition notice was warranted under s 101(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) — construction of ss 101 and 102 of the Protection of the Environment Operations Act 1997 (NSW) —failure to comply with prohibition notice —definition of cease — definition of keeping — definition of storing — defence of reasonable excuse