DEVELOPMENT APPEAL – modification of consent – child care centre – increase in number of children –no increased impact – conciliation conference – agreement between the parties - orders
TREES ([(DISPUTES BETWEEN NEIGHBOURS)NEIGHBOURS)]: – likely dwelling damage and risk of injury claimed – removal required as condition of dwelling construction contract
DEVELOPMENT APPLICATION: attached dual occupancy development in C4 Environmental Living zone – conciliation conference – agreement between parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – fungal bracket – apprehension of damage and injury – dead sticks falling onto applicant’s land
DEVELOPMENT APPEAL – conciliation conference – Aboriginal Heritage Significance – Interim Development Order No. 122 - agreement between the parties – orders
DEVELOPMENT APPLICATION – demolition and construction of multi dwelling housing development – conciliation conference – amended plans – agreement between the parties – orders made
DEVELOPMENT APPLICATION – residential apartment development – application to amend development application – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION: alterations and additions to dwelling house in R1 General Residential zone – conciliation conference – agreement between parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application regarding high hedges – neighbouring palms – whether the palms form hedges – obstruction of views – whether the obstruction is severe – balancing of interests
DEVELOPMENT APPLICATION – hotel suite accommodation development – cl 4.6 written request – height of buildings – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – agreement between the parties – conciliation conference – orders – dangerous tree – potential for dangerous tree to cause damage
APPEAL – development application – hair and beauty salon – whether hair and beauty salon is business premises used for creative purposes – objectives of zone – character of area
DEVELOPMENT APPLICATION – mixed use development – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
SENTENCE — Environmental offences — Offences under s 12(1) of the Native Vegetation Act 2003 (NSW) — Clearing of native vegetation without consent — Substantial harm caused for land converted to cropland — Clearing of the remainder area of land caused low harm — Foreseeable risk of environmental harm — Offences committed for financial gain — State of mind in committing offences reckless and negligent — Objective seriousness near the mid to low range of seriousness — Subjective circumstances of the defendants — Previous good character — No remorse demonstrated — Guilty pleas — Need for both specific and general deterrence — Determination of appropriate penalties — Fines imposed with moiety to prosecutor — Orders as to costs
CRIMINAL – sentencing for breach of condition of environment protection licence – early guilty plea – failure to maintain rising main in proper and efficient manner – relevance of financial crisis of amalgamated council and appointment of administrator to objective seriousness of offence considered – extent of environmental harm – application of s 10, s 10A of Criminal (Sentencing Procedure) Act 1999 not appropriate – mitigating circumstances considered – order for restoration project made – penalty imposed – publication order made CRIMINAL – sentencing for water pollution offence arising from operation of sewerage system – early guilty plea
INTERLOCUTORY APPLICATION: application for interim injunctive relief in Class 4 judicial review proceedings – legal principles – whether proceedings brought out of time - whether a serious question to be tried – no serious question to be tried - balance of convenience against granting interim injunction – application dismissed – costs reserved – no evidence that proceedings brought in the public interest warranting a different costs order.
DEVELOPMENT APPEAL – alterations and additions to dwelling house – heritage conservation area – conciliation conference – agreement between the parties – orders
APPEAL – development application – telecommunications facility – monopole with headframe - visual impact – building height - compatibility with character of the area – suitability of the site – public interest
APPEAL – development application – child care centre – traffic safety – whether a proposed plan of management provides an effective response to traffic safety concerns – whether certain road works which would require approval from the Local Traffic Committee are essential to the grant of consent
APPEAL – development application – consent orders – demolition of existing residential flat buildings – construction of new – residential flat buildings – building height contravention – whether in the public interest – whether consistent with the objective of providing for the housing needs of the community – finding that jurisdiction not available – lay objections – view loss – building massing
APPLICATION – modification application under s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify a Court-granted consent – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – modification of consent – semi-detached dwelling – amendment to conditions of consent – retention of tree – agreement between the parties – orders
COMPLUSORY ACQUISTION – assessment of compensation for acquired land under Land Acquisition (Just Terms Compensation) Act 1991 – claim for reinstatement value under s 56(3) – factual preconditions of reinstatement not made out – particular purpose for which acquired land was used a detention basin – Council failed to demonstrate genuine intention to use other land for such a purpose – alternative claim for market value under s 56(1) – valuation methodology based on comparable sales – ‘heavily constrained’ sites deemed most appropriate – adjustments made – parties agreed as to disturbance under ss 55(d) and 59
DEVELOPMENT APPLICATION – Subdivision – integrated development – absence of integrated authority approvals – bushfire prone land – adequacy of proposed bushfire safety measures – adequacy of information about potential impacts on Aboriginal heritage arising from the development – the anticipated bridge/crossing over Hazelton Creek – the traffic impacts of the development – appeal dismissed
APPEAL – development application – alterations and additions to the Newport Surf Life Saving Club – conciliation conference – agreement between the parties – orders
OFFENCES AND PENALTIES – sentence – aiding, abetting, counselling or procuring another person to commit an offence – offence of carrying out development otherwise than in accordance with development consent – alteration and additions to a dwelling house – objective seriousness of offences – nature of offending – intention an element of secondary participation in offence – not aggravating factor – no harm to environment – no foreseeability of harm – no practical measures to prevent harm – full control over causes of offences – offences not committed for financial gain – low objective seriousness – subjective circumstances of offenders – early guilty plea – remorse – no prior convictions – good character – unlikelihood of reoffending – general deterrence – review of appropriate penalties – totality of sentences – substantial overlap between offences – close relationship between corporate and individual offenders – fines reduced – no additional orders appropriate – application of fines when recovered – process for – costs
APPEAL – development control order – childcare centre – remedial works – conciliation conference – agreement reached to modified development control order
CRIMINAL – sentencing – pleas of guilty to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation by contractor – extent of environmental harm disputed CRIMINAL – sentencing – pleas of guilty to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation by sub-contractor – extent of environmental harm disputed – capacity to pay fine - extra curial punishment – impact of publication order
ENVIRONMENTAL OFFENCES: directors of a company which caused a place to be used as a hazardous waste facility without lawful authority – executive liability – pleas of guilty – factors to take into account in determining sentence – whether offenders committed offences intentionally or recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable –practical measures to reduce harm – control over commission of offences – contrition and remorse –good character and likelihood of reoffending – whether offences committed for financial gain – whether offences committed without regard for public safety – capacity to pay fine – comparable cases – monetary penalty imposed – moiety ordered – publication orders made – costs ordered.
DEVELOPMENT APPLICATION – centre based childcare centre – adaptive reuse of existing heritage building – contentions addressed by amendments and expert evidence – consideration of concerns of objectors – appeal upheld.
APPEAL – DEVELOPMENT APPEAL – consolidation of adjoining lot to existing development – shop top housing – MODIFICATION – modification of existing DA – conciliation conference – agreements reached – orders
DEVELOPMENT APPLICATION – demolition of existing structures and construction of shop top housing – conciliation and amended plans and material – agreement between the parties – orders made.
ENVIRONMENT AND PLANNING — Development application — No development consent for amusement park structures and attractions — Certain structures and attractions to be dismantled
DEVELOPMENT APPLICATION – boarding house –waste and recycling management – implications of private contractor waste collection – food organic and green organic waste – reasonable requirements for reporting waste separation and processing – whether rent controls should apply – neighbour objections
PROCEDURE – serious question to be tried and balance of convenience favours grant of interlocutory orders to local council to prevent short-term rental of buildings in remote location – commencement of bushfire season considered
PRACTICE AND PROCEDURE — Application for substituted service of first respondent in Class 4 proceedings — whether Court should exercise its discretion to make order for substituted service —motion for substituted service granted — no orders for substituted service made in respect of second respondent because second respondent located overseas.
APPEAL – concept development application – seniors living development – consistency with concept plan – motion to rely upon a further set of amended plans and documents – all merit contentions are resolved
PROCEDURE: joinder of corporate entity as respondent to compulsory acquisition proceedings – putative respondent deemed to have accepted compensation offered by Valuer-General – effect of deemed acceptance on compensation being claimed by applicants - basis of power of Court to order joinder – whether statutory discretion permissive or a power coupled with a duty – whether upon the Court being satisfied that a person who claims to have had or who may have had an interest in the subject land as at the date of acquisition the Court must join that person as a party – third party had an interest in fee simple in the land as at the date of the acquisition – joinder ordered. STATUTORY INTERPRETATION: whether properly construed the words “may order” in a statutory power permitting the Court to join additional parties to the proceedings gives rise to a permissive discretion or whether it gives rise to a power coupled with a duty – applicable principles of construction – power coupled with a duty.
DEVELOPMENT APPEAL – dual occupancy – contentions resolved - covenant – variation of covenant – weight to be given to covenant - view sharing – community objections
DEVELOPMENT APPLICATION – Alterations and additions to a residential dwelling – conciliation conference – amended plans – agreement between the parties – orders made.
CRIMINAL – sentencing for offence of failure to maintain equipment in proper and efficient manner – plea of guilty – discharge of untreated sewage into stormwater drain from pipe – minimal environmental harm established – prior convictions aggravating – mitigating factors – payment to Environmental Trust ordered – publication order made
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – risk of damage and injury – tree removal – threatened species – consent under other acts
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – is alleged future damage likely in the near future? Pt 2A – high hedges – future severe obstruction of views and sunlight claimed – do trees form a hedge for the purpose of the Act – s 14F considerations – oversight from applicant’s dwelling – privacy important
DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
APPEAL – development application – change of use from the existing hotel use to a retail and commercial use – adverse impact on heritage significance of the local heritage item (The Village Inn) and the Paddington Conservation Area – social impact on the locality – public interest
PRACTICE AND PROCEDURE — claim of public interest immunity over Cabinet documents — ss 130 and 131 of the Evidence Act 1995 (NSW) — the Court’s inspection of the documents subject of the claim
SENTENCING — Environmental offences — Offences under s 12 of the Native Vegetation Act 2003 (NSW) — Offences under s 60N of the Local Land Services Act 2013 (NSW) — Clearing of native vegetation without consent — Substantial harm caused — Foreseeable risk of environmental harm — Practical measures to prevent risk of harm — Full control over the cause of offences — Offences committed for financial gain — State of mind in committing offences — Objective seriousness near the mid to high range of seriousness — Subjective circumstances of the defendants — Previous good character — No remorse demonstrated — Defendants pleaded not guilty — Need for both specific and general deterrence — Determination of appropriate penalties — Fines imposed with moiety to prosecutor — Orders as to costs
COSTS — r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) — applicant in dismissed proceedings to pay the respondent’s costs unless otherwise ordered — applicant seeks an “otherwise order” — no order as to costs COSTS — costs of costs hearing — costs ordinarily follow the event — no order as to costs
CONTEMPT – orders for removal of unused vehicles and other waste materials – respondents failed to purge contempt despite attempts – respondents convicted of contempt – costs awarded on usual basis
APPEAL – development application – rural residential subdivision – community title subdivision – steep gradients - bushfire risk management – adequacy of access to hazard vegetation for bushfire suppression – climate change and bushfire risk management – adequacy of response to threatened species – more positive than negative ecological and biodiversity outcomes – risk and consequences of failure of internal access road
ABORIGINAL LAND RIGHTS: whether the land was claimable Crown lands as at the date of the claim – whether land was divisible for the purpose of the claim – whether the land was used as at the date of the claim – whether the land was occupied as at the date of the claim – whether the land was lawfully used as at the date of the claim – whether the land was lawfully occupied as at the date of the claim – relevant legal principles – appeal upheld in part.
APPEAL – development application – demolition of building within a heritage conservation area – effect of demolition on heritage significance – contravention of limited development on foreshore area controls – whether foreshore area controls a development standard – land subdivision – two detached dwellings – uncertainty regarding “slither of land” immediate to site and subject to possessory title claim – whether owners consent needed – contravention of development control plan provisions – implications of proposed works contrary to building line covenant
TREES (DISPUTES BETWEEN NEIGHBOURS) –high hedges – bamboo – alleged severe obstruction of sunlight – leaves falling onto roofs and into gutters – apprehension of damage and injury
DEVELOPMENT APPLICATION – Co-living housing in R2 Low Density Residential zone – alterations and additions to heritage item – whether permissible development – heritage conservation – landscaped area – maximum number of rooms exceeded
DEVELOPMENT APPLICATION – conciliation conference – shop top housing – alterations and additions – residential flat building – agreement between the parties – orders
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
Appeal against refusal of permission for tree removal – Leyland Cypress competing with Turpentine tree – no current indications of negative impacts – negative impacts unlikely in the mid-term future – appeal dismissed
DEVELOPMENT APPLICATION: demolition and construction of a new residential dwelling – conciliation conference – amended plans and materials – agreement between the parties – orders made.
DEVELOPMENT APPLICATION – Existing self storage units seeking expansion of use – existing use rights – amended plans and further information – conciliation conference – agreement reached between the parties – orders made.
ENVIRONMENTAL LAW – waste storage – storage of waste tyres in enclosed storage units at storage facilities – whether scheduled activity requiring licence – whether pollution of land – order to remedy or restrain breach – whether includes payment of compensation to third party
COSTS – public interest litigation – unsuccessful civil enforcement proceedings to remedy breach of statutory requirement for review of environment protection licence – whether costs order should be made – whether proceedings brought in the public interest – whether countervailing considerations – no order as to costs
APPEAL – Building Information Certificate – removal of unapproved building items - local heritage exemption granted - conciliation conference - agreement between the parties – building compliance matter - orders
DEVELOPMENT APPEAL – community title subdivision – whether minimum lot frontage development standard – whether FSR development standard – whether min lot size development standard – orders
PRACTICE AND PROCEDURE — Notice of motion to dismiss summons seeking appeal in Land and Environment Court which was filed out of time — Notice of motion granted APPEAL — Severity appeal against sentence in Local Court in relation to an environmental offence — Application for leave to appeal lodged more than three months after date of conviction — Whether Court has power to grant leave — Section 33(2) of the Crimes (Appeal and Review) Act 2001 (NSW) — No power to grant leave — Appeal dismissed
APPEAL – Development Control Order – unlawful removal of significant trees and vegetation and associated works on the land - conciliation conference – agreement between the parties – modified Restore Works Order made
ENVIRONMENTAL OFFENCES: breach of licence – failure to deal with material in a proper and efficient manner causing air pollution – failure to notify relevant authorities immediately after becoming aware of pollution incident – negligent disposal of waste in a manner that harmed or was likely to harm the environment – pleas of guilty – factors to take into account in determining sentence – state of mind of offender at the time of the commission of the offences – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender took practical measures to reduce harm – whether offender had control over commission of the offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – costs ordered.
DEVELOPMENT APPLICATION – mixed use development – multi dwelling housing – demolition of part of local heritage item – consideration of heritage significance of item – consideration of effect on heritage significance – balancing positive aspects of the proposal including providing for housing needs – adaptive re-use consideration – breaches of development control provisions relating to multi dwelling housing
PRACTICE AND PROCEDURE – notice of motion – “working out” orders sought in relation to Commissioner’s orders concerning pruning or removal of trees – orders beyond the scope of “working out” orders – motion dismissed with costs
DEVELOPMENT APPLICATION: alterations and addition to dwelling house in R1 General Residential zone – conciliation conference – agreement between parties - orders
COMPULSORY ACQUISITION – objection to the amount of compensation offered by the respondent – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – BUILDING INFORMATION CERTIFICATE APPEAL – residential premises - substantial non compliant excavation and building works on Site – agreement between the parties – s 34 agreement – resolution of both appeals – orders
CRIME – environmental offences – vicarious liability – 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 – ss 3A, 21A and 22 of Crimes (Sentencing and Procedure Act 1999 (NSW) – objective seriousness of offence – aggravated by nature and seriousness of the harm to environment – strict liability – cause of spill – subjective circumstances of offender – early guilty plea – specific and general deterrence – consistency in sentencing – appropriate sentence – totality principle
EVIDENCE — relevance — probative value — danger of unfair prejudice — Latent duplicity objections — objections to purported expert report — compliance with the Expert Witness Code of Conduct — whether there is lack of impartiality SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — failure to comply with a prevention notice — waste — real risk of environmental harm — objectively very serious — good character — remorse — publication order — moiety SENTENCING — environmental offences — s 169A of the Protection of the Environment Operations Act 1997 (NSW) — executive liability offence — guilty plea — objectively serious — good character — remorse — publication order — moiety — totality SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — real risk of environmental harm —objectively very serious — good character — remorse — publication order — moiety — totality
DEVELOPMENT APPLICATION: proposed residential flat development – interpretation of ‘site area’ for the purpose of determining applicable development standards – whether the proposed variation to the height and floor space development standard should be granted – appeal dismissed
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves falling onto roofs and into gutters – alleged severe obstruction of sunlight and views
COSTS – whether costs payable by applicant following discontinuance of Class 1 appeal after hearing commenced – application of no discouragement principle – no costs order made
APPEAL – development application – redevelopment of shopping centre – concept plan and Stage 1 DA – characterisation of land use – meaning of “development standard” – clause 4.6 variation
DEVELOPMENT APPLICATION: mixed use development in E2 Commercial Centre – whether objectives of the standard are achieved – whether sufficient environmental planning grounds
DEVELOPMENT APPLICATION: alterations and additions to heritage item – heritage conservation – conciliation conference – agreement between parties - orders
APPEAL – development application – Torrens title subdivision for boundary adjustment – conciliation conference – agreement between the parties – orders
APPEAL – development application – use of part of a heritage item for occasional events – conciliation conference – agreement between the parties – orders
CONTEMPT – plea of guilty to charge of contempt for failing to comply with court order made by consent requiring production of waste classification report within specified timeframe – contempt wilful –contempt not purged – indemnity costs ordered CONTEMPT – plea of guilty to charge of contempt for failing to comply with court order made by consent requiring production of waste classification report within specified timeframe – contempt less serious – contempt not purged