DEVELOPMENT APPLICATION: Marina development in W1 Natural Waterways zone – W2 Recreational Waterways zone – permissibility – Coastal Environment Area – Coastal Use Area
APPEAL – development application – seniors living – direction made in earlier decision for updated conditions of consent – direction complied with – final orders made
DEVELOPMENT APPLICATION – integrated housing – land and housing release – conciliation – amended plans and documents – agreement between the parties – orders made.
DEVELOPMENT APPLICATION — demolition and new residential flat building — conciliation conference — amended plans and documents — agreement between the parties — orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring trees — bamboo hedge — obstruction of views and sunlight — whether the obstruction is severe — privacy — potential sale of the applicants’ property — balancing of interests — orders for pruning, maintenance and access
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether the trees have caused damage to the applicants’ property — whether compensation for damage should be paid — application refused
ENVIRONMENTAL OFFENCES – sentencing for two water pollution offences resulting from overflow of polishing lagoon at coal colliery – sentencing for offence of failing to maintain polishing lagoon in proper and efficient manner – potential for environmental harm including cumulative impact of coal fines in Wollangambe River considered – numerous practical measures could have been taken to prevent harm – causes of offences within control of defendant – subjective circumstances – early pleas of guilty – prior record ENVIRONMENTAL OFFENCE – sentencing for failure to test pollution incident response management plan in timeframe required by Protection of the Environment Operations Regulation – no environmental harm caused – continuing offence over 269 days – very substantial maximum penalty – early plea of guilty ENVIRONMENTAL OFFENCE – sentencing for failure to comply with prevention notice requiring no discharge of water from former licenced discharge point - further water pollution caused – potential for environmental harm – cumulative impact of coal fines in Wollangambe River – causes of offence within control of defendant – subjective mitigating factors – early plea of guilty
LAND LAW – compulsory acquisition of land – remitter from Court of Appeal – scope of remitter – remitted to determine market value pursuant to s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – public purpose for which land was acquired – causation – whether changes in value of land were caused by the public purpose – determination of amount of compensation – costs
OFFENCES AND PENALTIES: occupier of landfill charged with emission of offensive odour – contravention of an environment protection licence in respect of leachate management – pleas of guilty – sentencing principles – odour affected local residents over a three month period – actual environmental harm caused – multiple victims involved – harm reasonably foreseeable – practical measures available to avoid or mitigate the harm – control over the causes of the offences – moderate objective seriousness of odour offence – low objective seriousness of breach of licence offence – no previous convictions – good character – no likelihood of reoffending – remorse shown – assistance to the prosecutor – general deterrence warranted – totality principle applied – payment to Environmental Trust ordered – publication order and notification order made – costs agreed.
DEVELOPMENT APPLICATION – demolition and construction of a residential flat building – conciliation conference – amended plans – agreement between the parties – orders made
DEVELOPMENT APPLICATION – single dwelling house – cl 4.6 written request – height of buildings – floor space ratio – heritage conservation – agreement between the parties – orders
DEVELOPMENT APPLICATION — attached dual occupancy in R2 Low Density Residential zone — Low to Mid Rise Housing Map — conciliation conference — agreement between parties — orders
DEVELOPMENT APPEAL — residential Torrens title subdivision — vegetation removal — strategic road layout in an urban release area — whether serious and irreversible impacts on the Swift Parrot — whether serious and irreversible impacts on the Swift Parrot — application of the precautionary principle — treatment of interface of a subdivision with signification vegetation — amenity impact of lot orientation and setbacks — orders
DEVELOPMENT APPLICATION – industrial subdivision – intersection works – Transport for NSW joined - amended plans and materials - conciliation conference – agreement between the parties – orders made
APPEAL – Development application for illuminated electronic variable content sign and associated roof solar panels – impact on the heritage item – design excellence provisions – public benefit condition – existing character of the area – desired amenity and visual character
MODIFICATION APPLICATION – pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) for modification of a development consent granted by the Court
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – root damage to common boundary fence, retaining wall and paving – apprehension of further damage – s 12(h) damage caused by applicant’s omissions – Pt 2A – high hedges – applicant claims 2 trees form a hedge that severely shades back veranda and yard – trees do not satisfy s 14A(1)
ENVIRONMENT AND PLANNING — Civil enforcement — Interpretation of development consents and conditions — Lapsing of consent — Permissible development — Declaratory and injunctive relief
JUDICIAL REVIEW — whether former chief executive officer has power to commence proceedings on behalf of Local Aboriginal Land Council — operation of s 78A(2) of the Aboriginal Land Rights Act 1983 (NSW) — whether Minister failed to comply with the statutory preconditions imposed by s 223A and 222 of the Aboriginal Land Rights Act 1983 (NSW) in making decision to appoint administrator to a Local Aboriginal Land Council — whether Minister complied with the requirements of procedural fairness — whether the decision was made for an improper purpose — whether the decision was unreasonable — whether the applicant require leave to include ground of review pursuant to s 10 of the Racial Discrimination Act 1975 (Cth)
DEVELOPMENT APPEAL – development application for redevelopment of an existing hotel in a heritage conservation area – existing use rights – traffic impacts – guest parking, staff parking or loading facilities within the Site – streetscape
DEVELOPMENT APPLICATION — demolition and new detached residential dwelling — conciliation conference — amended plans and documents — agreement between the parties — orders made
PRACTICE AND PROCEDURE – motions that two proceedings be tried at same time and before same judge – proceedings for compensation for compulsory acquisition of land – whether common central question of law – applicants’ claims different – applicants’ lawyers and experts different – hearings should be heard separately but consecutively.
PROCEDURE: application to strike out expert report on the grounds of criminal perjury – claim for compensation in the sum of $250,000 – expert report not yet in evidence – power to award compensation not engaged because appeal not yet determined – motion dismissed.
INTERLOCUTORY INJUNCTION – application for interlocutory order restraining work by local council of development of playing fields – whether serious question to be tried – whether irreparable harm caused if no order made – claim of acting in public interest – balance of convenience – delay in making application – application dismissed
DEVELOPMENT APPLICATION – appeal against conditions of consent – construction of a jetty and sea stairs – conciliation conference – agreement between the parties – orders
APPEAL – modification application – modification of consent for alterations and additions to a dwelling house – conciliation conference – agreement reached – 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
CIVIL PROCEDURE — unlawful clearing — whether land should be categorised as Category 1 – Exempt Land or Category 2 – Regulated Land — construction of Remediation Order — whether on proper construction the Remediation Order applied to whole of land or only unlawfully cleared portion — appeal dismissed
PRACTICE AND PROCEDURE – stay of proceedings ordered to enable appeal of interlocutory judgment – consequential vacation of hearing dates PRACTICE AND PROCEDURE – production of documents by respondent required as have legitimate forensic purpose
PRACTICE AND PROCEDURE — whether Class 1 appeal filed out of time — whether Council had power to determine review under Division 8.2 of the EPA Act — whether period in s 8.3(2)(a) of the EPA Act had expired — whether there was a changed determination within the meaning of s 8.4 of the EPA Act even though original refusal was upheld — whether review determination was a decision subject to appeal within the meaning of s 8.6 of the EPA Act COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order — central issue determinative of the proceedings and preliminary to an evaluation of the merits — conduct of the parties in circumstances leading up to the commencement of the proceedings
APPEAL – development control order – removal of advertising sign and associated structure – when order may be given – unsightly, objectionable or injurious to amenity of public place – whether sign and structure are – advertisement displayed unlawfully – associated structure erected unlawfully – whether sign and structure are – whether use of sign and structure for advertising an existing use – prior determination of existing use issue in another administrative appeal – whether issue estoppel – circumstances for making order established – discretion to revoke order – basis for not established – modify order to allow time for compliance
VALUATION OF LAND – appeal – s 56A of the Land and Environment Court Act 1979 (NSW) – appeal against determination of land value by Commissioner – s 6A(1) of the Valuation of Land Act 1916 (NSW) – procedural fairness – comparable sales and adjustments – consideration of irrelevant material – failure to consider relevant material – estoppel – appeal dismissed
DEVELOPMENT APPEAL – co-living housing – contravention of height of building development standard – contravention of building setbacks and separation development standard - conciliation conference – agreement between the parties - orders
APPEAL – development application – seniors housing – built form and amenity – site re-zoning – bushfire protection – stormwater design – groundwater impacts – impacts on adjacent biobanking area – adequacy of management plans – impacts on aquatic ecology – flood impacts and flood evacuation – biodiversity conservation – impacts on biodiversity values – adequacy of BDAR – conditions of consent
TREES (DISPUTES BETWEEN NEIGHBOURS) — high hedges — severe obstruction of sunlight — Are the trees hedges for the purpose of the Trees Act? — the scope of the Trees Act is limited to cases where the applicant themselves has lost the light or view — limited pruning ordered
DEVELOPMENT APPEAL — residential development — dual occupancy — Torrens title subdivision — justification of contravention of the site area development standard — agreement between the parties — orders
LAND LAW – strata title – strata renewal plan for redevelopment – s 182 of the Strata Schemes Development Act 2015 (NSW) – objections by dissenting owners – whether relationship existed between owner of lots and developer – strata renewal plan given effect – costs as agreed
DEVELOPMENT APPLICATION — alterations and additions to an approved residential flat building — determination of applicable parking standard — statutory interpretation of non-discretionary standards for parking in SEPP Housing — development compliant with non-discretionary standards for parking — preconditions to consent met — development application acceptable on merit — appeal upheld
MODIFICATION APPLICATION – pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) for modification of a development consent granted by the Court
PROCEDURE: the applicants seek to vacate part-heard encroachment proceedings to permit an application to be made to NSW Land Registry Services to determine a plan of delimitation – opposed by respondents – respondents not legally represented – expert surveying evidence relied upon by the parties is to the effect that there is no encroachment by the respondents on the applicants’ land – delay in lodging plan by applicants – no real prejudice to applicants if vacation not permitted – respondents seek to have the matter determined to finality – neither just, nor quick or cheap to grant the vacation – application denied – each party to pay their own costs of the motion.
MODIFICATION APPLICATION – application made directly to Court - residential flat building – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION — alterations and additions to dwelling house — heritage conservation area — conciliation conference — agreement between the parties — orders
COSTS – unsuccessful judicial review application by self-represented litigant - indemnity costs sought by respondent local council - partial award of indemnity costs
DEVELOPMENT APPEAL – time limited consent – appropriateness of time limited consent - shipping containers – new industrial precinct – desired character of new precinct – appeal of conditions
PROCEDURE: Class 1 appeal against deemed refusal of development application - application to amend development application to substitute applicant – development application lodged in the name of wrong applicant by mistake – named applicant subsequently went into liquidation – power of Court to amend development application – power of Court to substitute party in Class 1 appeal – development application amended to substitute new applicant – Class 1 application amended to substitute new applicant.
PRACTICE AND PROCEDURE – motion to dismiss proceedings or, in the alternative that various claims be struck out – whether enforcement of a deed of settlement and release between the applicant and the respondent falls within the Land and Environment Court jurisdiction as an ancillary matter pursuant to s 16(1A) of the Land and Environment Court Act 1979 (NSW) – whether proceedings relate to subject matter of proceedings settled by deed – whether deed repudiated – whether deed can operate as a bar to judicial review proceedings
DEVELOPMENT APPLICATION – demolition and construction of a co living development – conciliation conference- amended plans and documents – agreement between the parties – orders made.
MODIFICATION APPLICATION – Modification to a residential flat building to accommodate an increase in building height and the size of the roof top communal area – conciliation conference – amended plans and documents – agreement between the parties – orders made
CIVIL PROCEDURE — notice of motion for joinder — s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) — whether issue that should be raised not raised — whether relevant issue not sufficiently addressed — application dismissed
APPEAL — development application — town houses — Cumberland Plain Woodland — arboricultural impacts — residential amenity — overdevelopment of the site
OFFENCES AND PENALTIES: appeal against the severity of a sentence imposed by the Local Court – convicted of unlawful transporting of waste offence and disposal of asbestos waste offence against ss 143(1)(a) and144AAA(1) of the Protection of the Environment Operations Act 1997 in the court below – nature of appeal against sentence – applicable sentencing principles on appeal – no reckless state of mind – actual and potential harm to the environment – practical measures to prevent harm – harm was reasonably foreseeable – complete control over cause of offences – previous conviction – no planned or organised criminal activity – good prospects of rehabilitation – remorse shown – guilty pleas – limited capacity to pay a fine – general and specific deterrence warranted – parity principle – totality principle – monetary penalty imposed – publication order made – appeal upheld – costs order made by the Local Court varied – each party to bear their own costs of the appeals.
TREES (DISPUTES BETWEEN NEIGHBOURS) — zoning of land — whether the zone has the substantial character of a designated zone — whether the Trees Act applies — Pt 2 application — whether neighbouring trees have caused damage to property — whether a tree is likely to cause damage — dividing fence — whether the fence is a sufficient dividing fence — whether the entire dividing fence needs replacement — Pt 2A application — whether trees are severely obstructing sunlight — whether trees should be pruned or removed
DEVELOPMENT APPLICATION – alterations and additions to an approved residential flat building – conciliation conference – amended plans and documents – agreement between the parties -orders made.
DEVELOPMENT APPLICATION – additions to an existing garage including a first floor studio – conciliation conference – amended plans and documents – agreement between the parties – orders made
APPEAL – development application – land subdivision – urban release area – North Lismore Plateau – Lismore CBD flood planning response –adequacy of Aboriginal cultural heritage significance assessment – tangible and intangible Aboriginal cultural heritage – whether adequate assessment of Aboriginal cultural heritage impact – relationship of consultation to understanding cultural heritage significance and impact – relevance of Indigenous Land Use Agreement (ILUA) – balancing benefits and impacts
DEVELOPMENT APPLICATION — mixed use development including affordable housing and basement parking — conciliation conference — agreement between the parties — orders
DEVELOPMENT APPLICATION — construction of jetty and slipway — alterations and additions to existing boatshed — impacts to seagrass — conciliation conference — agreement between the parties — orders.
DEVELOPMENT APPLICATION: alterations and additions and construction of site structures, pool and landscape works – site has existing consent approving construction and use of a private recreation facility (a roadway) – determination of disputed conditions – appeal upheld.
APPEAL — objector appeal against the Independent Planning Commission’s decision to approve a large-scale solar farm and associated infrastructure — the proposed development’s impacts on the scenic quality and landscape character of the surrounding land and the visual amenity of local landowners is acceptable — the use of the site for renewable energy development is not inconsistent with the Yass Valley Strategy 2036, including its proscription of large-scale development within 5km of the ACT-NSW border
TREES (DISPUTES BETWEEN NEIGHBOURS) high hedges — likely future severe obstruction of view from a dwelling — respondent’s reasonable desire for privacy — orders balance preferences of each party
NOTICE OF MOTION — criminal proceedings — defendant seeking to give evidence via audio visual link — unfairness to Prosecutor — more convenient for evidence to be given in court in Sydney — motion dismissed
NOTICE OF MOTION — abridged time for service of summons, notice of motion, and affidavit in support — order made for Council to carry out emergency order
APPEAL – development control order – stop work order – polytunnels relating to raspberry growing – statutory construction – whether polytunnels are a building – characterisation of polytunnels – whether a farm building – whether purpose of polytunnels is intensive agriculture a use not requiring the grant of consent – order revoked
DEVELOPMENT APPEAL — residential development — alterations and additions — rooftop addition — impacts on surrounding properties — streetscape impacts — justification of contravention of height of building development standard — orders
APPEAL – development application – centre based childcare centre – flood liable land – suitability of the site having regard to overland flooding risk – shelter in place
DEVELOPMENT APPEAL – centre based child care facility – assessment of expert evidence on acoustic and air quality impacts – suitability of the site for the proposed development – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) — applicant makes two applications concerning trees on two adjoining properties — neighbouring properties owned by different members of one family — Pt 2 and Pt 2A applications — whether two neighbouring trees are likely to cause damage or injury — whether the applicant should bear the cost of any pruning works — whether trees are severely obstructing a view — orders for pruning two trees, one in each Pt 2 application — Pt 2A application refused
OFFENCES AND PENALTIES: carrying out development without consent by individual and corporate offender – pleas of guilty – sentencing principles – extent of environmental harm – whether harm was substantial – state of mind at the time of the commission of the offences was recklessness – lower end of moderately objective seriousness – no prior convictions – specific and general deterrence warranted – totality principle applied – fine imposed – publication order made.
MODIFICATION APPLICATION — modification of a development consent for shop top housing — conciliation conference — amended plans and documents — agreement between the parties — orders made.
DEVELOPMENT APPLICATION — shop top housing development — cl 4.6 written request — minimum site area — landscaped area — in-fill affordable housing — agreement between the parties — orders
DEVELOPMENT APPLICATION — backpacker and hotel accommodation development — cl 4.6 written request — height of buildings — agreement between the parties — orders
DEVELOPMENT APPEAL – centre based child care facility – development fronting classified road – all merit contentions resolved – satisfaction of jurisdictional prerequisites – statutory construction - meaning of the protean expression “adversely affects” - orders
DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation of minimum subdivision lot size development standard — agreement between the parties — orders
DEVELOPMENT APPEAL — centre based child care facility — drainage upgrade works on adjacent drainage reserve — deferred commencement conditions — conciliation conference — agreement between the parties — orders
ENVIRONMENT AND PLANNING — offences — failure to comply with condition of environment protection licence — defendant charged under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) — meaning of “proper and efficient condition”
APPEAL – s 56A appeal on questions of law – no legal obligation of commissioner to uphold part of modification appeal in absence of express case to do so – scope of s 22 of Land and Environment Court Act 1979 – failure to give adequate reasons – appeal upheld
APPEAL – appeal on questions of law – Commissioner’s decision not to grant development consent to a digital advertising sign – advertising prohibited – whether existing use for the purpose of advertising – Commissioner found no existing use – whether Commissioner misconstrued definition of existing use – whether facts found by the Commissioner necessarily fell within the definition of existing use – alternative development of rebuilding of static not digital advertising sign – whether alternative development a principal contested issue – whether Commissioner failed to determine a principal contested issue
APPEAL — Development application for extension to an existing marina — Development consent refused — Sydney Harbour — Visual and landscape character impacts — Heritage impacts — Aquatic ecology impacts — Navigation safety
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — no appearance by the respondent — neighbouring trees — whether the trees have caused damage to the applicant’s property — risk of further damage or injury — orders for aerial inspection — orders for pruning — order for compensation
SENTENCING – Environmental Planning and Assessment Act 1979 (NSW) ss 4.2(1)(b) – development otherwise than in accordance with conditions of development consent – strict liability offence – subjective circumstances – objective circumstances – environmental harm – totality – determination of sentence – legal costs – moiety – publication order
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — two neighbouring trees — damage to property — orders for removing two trees and repairing property damaged by trees
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring trees – bamboo hedge – obstruction of sunlight – whether the obstruction is severe – orders for pruning
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage to property — preventing further damage — orders for removing the tree — order for compensation subject to completion of works
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — damage to property — risk of injury — extent of damage that has occurred during the applicant’s ownership — access for fencing works
DEVELOPMENT APPLICATION – development application for use of existing structures on the site as transitional group homes – conciliation conference – amended plans and documents – agreement reached – orders made
ABORIGINAL LAND RIGHTS: whether three parcels of land are “claimable Crown lands” – whether land was the subject of an application for a determination of native title that had been registered in accordance with the Commonwealth Native Title Act – whether land was able to be lawfully sold or leased, or was reserved or dedicated for any purpose, under the Crown lands legislation because it was reserved for a public road under the Roads Act – whether the lands were needed, or likely to be needed, for the essential public purpose of nature conservation. STATUTORY CONSTRUCTION: meaning of “the subject of an application for a determination of native title …that has been registered in accordance with the Commonwealth Native Title Act” – meaning of lands “able to be lawfully sold or leased, or were reserved or dedicated for any purpose, under [Crown lands legislation]” – whether “or” used disjunctively or conjunctively.
DEVELOPMENT APPLICATION — industrial units, carparking, landscape and infrastructure works — conciliation conference — agreement between the parties — orders
APPEAL – appeal on questions of law – Commissioner’s decision to refuse consent for change of use of boarding house – assessment of financial viability of continued use of boarding house – Commissioner’s assessment of use of an upgraded boarding house – upgrading of boarding house not development proposed in development application – assessment not of existing boarding house the subject of development application – assessment not in accordance with prescribed method – no evidence for assessment of upgraded boarding house – assessment without affording procedural fairness
TREES (DISPUTES BETWEEN NEIGHBOURS) — two Pt 2A applications — neighbouring cypress hedge — obstruction of sunlight — whether the obstruction is severe — consent orders — orders for removing 105 trees
DEVELOPMENT APPEAL – residential development – demolition of existing dwelling and construction of two dwellings – tree removal – Torrens title subdivision – stormwater management – deferred commencement condition - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPEAL – place of public worship - conciliation conference – agreement between the parties – satisfaction of jurisdictional prerequisites to empower the court to exercise its function to grant consent - orders
DEVELOPMENT APPLICATION – deemed refusal – demolition – construction of semi-detached dwellings – boundary readjustment – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential subdivision, residue environmental lot, associated infrastructure and creation of an environmental corridor – amended plans and documents – agreement between the parties – orders made.
DEVELOPMENT APPLICATION – concept development – stage one development -proposed community title subdivision – site nominated in development control plan as a school site – whether the provision should be varied – strategic provision of school facilities - satisfaction of flooding precondition in local environmental plan – whether there is sufficient detail as to water and sewer servicing – capacity of sewer infrastructure – appeal dismissed.