JOINDER - claim for compensation for resumption in 1922 of land at Lake Victoria in far south‑western New South Wales - claimant an Aboriginal person - claim advanced on two bases - first claim based on extinguishment of native title rights - second claim based on adverse possession - claim made against South Australian and New South Wales governments - claim opposed by both governments - both bases of claim opposed - claim founded on rights said to be held by claimant's grandmother at time of resumption - 2015 native title determination recognises native title rights as existing on land surrounding resumed land - native title rights those of the Barkandji and Malyangapa Peoples - determination lists apical ancestors from whom the native title rights are derived - native title rights held by Barkandji Native Title Group Aboriginal Corporation (Corporation) as trustee for descendants of listed apical ancestors - apical ancestors include three members of the Maraura, a subgrouping of the Barkandji and Malyangapa Peoples - three Maraura apical ancestors nominated by claimant in pleadings - claimant is descendant of one of the three Maraura apical ancestors - question of whether Corporation should be joined as a party to the proceedings - joinder sought by Corporation - joinder opposed by claimant - tests for joinder considered - rights of descendants of all three Maraura apical ancestors affected by claimant’s native title claim - Corporation may have responsibilities with respect to those rights - potential for Corporation to have responsibility more than a mere possibility - joinder of Corporation appropriate - Corporation joined as Third Respondent COSTS - costs of joinder deferred to outcome of primary proceedings SUBPOENA - subpoena issued to the Corporation by the claimant - Corporation applies to have subpoena set aside in part - Corporation’s subpoena challenge deferred pending outcome of joinder proceedings FUTURE CONDUCT OF PROCEEDINGS - future conduct of proceedings adjourned to permit Corporation to consider what role it proposed to take in the primary proceedings and whether it maintained its opposition to the claimant’s subpoena - short adjournment permits retention of hearing dates set for February 2023
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the applicants have lost access to views – privacy and other benefits of the trees
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicants have lost access to views – application refused
APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 - Commissioner approves a new McDonald’s restaurant at Wongawilli - appeal on questions of law - Council presses three grounds of appeal - Ground 1, Council complains that Commissioner misconstrued or misapplied applicable provisions of the Council's development control plan - Commissioner’s decision demonstrates appropriate and sufficient consideration of applicable provisions of the development control plan - Ground 1 fails - Ground 2 pleads three subgrounds - Ground 2.1 alleges failure to make applicable provisions of the development control plan a focal point of the Commissioner’s consideration of the relevant issues - Ground 2.1 contingent on Ground 1 and therefore fails - Ground 2.2 alleges specific failure to address cl 3.74 ch B4 of Wollongong Development Control Plan 2009 - matters in the provision adequately addressed - Ground 2.3 alleges failure to have regard to objector evidence concerning “healthy food” - objector evidence appropriately considered - Ground 2 fails - Ground 3 proposed that the Commissioner had no evidence to support his conclusion that changes made to the proposed development were acceptable by failing to consider the likely impacts of the proposed changes - proper evidence upon which the Commissioner based his conclusion of acceptability of the changes - expert evidence on the relevant point supported the Commissioner’s conclusion as to acceptability of the changes - Ground 3 fails - failure on all three grounds requires dismissal of appeal COSTS - costs of s 56A appeals follow the event - Council ordered to pay the Company's costs as agreed or assessed
DEVELOPMENT APPLICATION – child care centre – whether streetscape of Proposed Development is compatible with character of the local area – whether Applicant’s proposed earthworks are acceptable - whether proposed stormwater management arrangements are acceptable – whether parking is acceptable
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new six storey mixed use development – amended plans – conciliation – agreement between the parties – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether a tree is on adjoining land – whether the obstruction is severe – application refused
APPEAL – development control order – stop use order – whether current use of the premises is authorised by earlier development consent – purpose of use approved by development consent – purpose of use currently carried out on the site – acoustic impact of current use – whether discretion to issue an order should be exercised
CIVIL ENFORCEMENT – ss 9.46(1) and 6.32 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – cl 145 of Environmental Planning and Assessment Regulation 2000 (NSW) – consistency of construction certificate and development consent – demolition works and construction of dwelling house – ss 4.2(1)(a) and 4.2(1)(b) of EP&A Act – carrying out of development otherwise than in accordance with the development consent – discretion – whether whole of construction certificate invalid or only that part inconsistent with development consent – adjourned for parties to form appropriate orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury – application refused
TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes; apprehension of additional damage to property; leaves, sticks, and other refuse from trees falling on applicants’ land; is genuine risk of injury foreseeable
DEVELOPMENT APPLICATION – centre-based childcare centre – flood prone land – childcare centres as an “unsuitable land use” in the site circumstances – appropriateness of adopted “Manning’s coefficient” or “n value” (roughness factor) in flood modelling – whether the proposed development would result in an unacceptable increase in flooding on-site or off-site – adequacy of proposed Flood Emergency Response Plan as responses to flood risk – appropriateness of “shelter in place” during flood events – applicability of clause 5.21 of standard instrument
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works – impact on the heritage significance of the heritage conservation area – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION— modification application for dwelling house development in R2 low density residential zone – heritage conservation area – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – appeal against condition of consent – alterations and additions to existing commercial building – whether proposed development exhibits design excellence – effect on heritage significance of heritage item – pedestrian amenity in City of Sydney
DEVELOPMENT APPLICATION – construction of three storey dual occupancy (attached), basement parking, landscaping and subdivision – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether the obstruction is severe – orders for pruning
VALUATION OF LAND - appeals against statutory valuations for two valuation years - major regional shopping centre - “highest and best” use - choice between hypothetical development schemes - valuation issues arising concerning the adopted hypothetical development scheme - question of whether, on appeal, a statutory valuation can be increased - unnecessary to resolve jurisdictional question concerning increase in statutory valuation - appeal upheld concerning each statutory valuation - revised valuations substituted for issued statutory valuations - costs reserved
DEVELOPMENT APPLICATION – residential flat building development – cl 4.6 written request – height of buildings – minimum landscaped area – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development in B2 Local Centre zone – residential apartment development – residential flat building – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – compensation for damage to pool – lack of evidence – orders for pruning
DEVELOPMENT APPEAL – conditions of consent – modification of development consent – consideration of objector submissions - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – alterations and additions to an existing hotel – construction of a four storey shop top housing development – heritage item – no contentions raised by the Respondent
DEVELOPMENT APPLICATION – strata subdivision - shoptop development with residential flat building – height development standard non-compliance – cl 4.6 written variation request – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – residential – alterations and additions to a dwelling – garage, swimming pool and cabana - heritage – acoustic attenuation - conciliation conference – agreement between the parties - orders
JUDICIAL REVIEW: whether deferred development consent condition imposing a 12 month time limit for compliance with conditions validly imposed by the council – condition invalid. STATUTORY CONSTRUCTION: principles of construction – where provisions of legislation contradictory– presumption against surplusage – presumption that provisions of legislation are to be construed harmoniously – use of extrinsic material to assist in the construction of legislation – whether drafting error in Covid-19 emergency measures legislation amending principal Act – statute read down to avoid inconsistency.
CIVIL PROCEDURE – Separate determination of question – Where appropriate – Class 3 application – Question of quantum of compensation payable – Whether applicants entitled to joint determination and award of compensation – Motion dismissed
INTERIM HERITAGE ORDER – appeal against the interim heritage order over part of the land – interim heritage order made by the council – the conditions of the Ministerial order authorising the council to make interim heritage orders are met – the part of the site not containing the dwelling is of local heritage significance
ENCROACHMENT - application pursuant to the Encroachment of Buildings Act 1922 (the Act) for order to remove encroaching structure - cross-claim seeking grant of easements to retain and use structure - whether there is a single structure or two separate structures built at different times - only evidence is photographic - examination of photographs reveals, on the balance of probabilities, two structures not one - finding necessitates rejection of cross-claim - consideration of whether encroachment satisfies definition of a “building” in the Act - encroachment satisfies the definition giving power to order its removal - removal ordered COSTS - costs follow the event - Respondents ordered to pay Applicant’s costs of the application and the cross-claim - earlier limited costs order in Respondents’ favour preserved
DEVELOPMENT APPLICATION: residential apartment development in R3 Medium Density Residential zone – residential flat building – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – demolition of existing dwelling and construction of a new dwelling and swimming pool – conciliation conference – agreement between the parties – orders
APPEAL – development application – alterations and additions to community facility and place of public worship - conciliation conference - agreement between the parties
TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent’s land - damage caused by fallen tree – compensation sought – risk of injury from falling palm fronds
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to property – consent already obtained to remove the tree – orders sought for pruning the tree – application granted
APPEALS — Procedure — Parties on appeal — Joinder — Appeal against Council’s deemed refusal of development application for residential flat building — Notice of Motion for Joinder by residents’ association — Notice of Motion dismissed
APPEAL - DEVELOPMENT CONTROL ORDER – restore works order – conciliation conference – agreement between the parties – parties agree to modified order – orders
DEVELOPMENT APPLICATION – dwelling house construction - flooding impact – proximity to riparian land with biodiversity values mapped – reliance on evacuation plan
CONTEMPT: sentencing for contempt – application by council for access to property for the purpose of inspection in order to finalise evidence – application opposed on the basis that council had inspected the property earlier and taken photographs – whether further evidence required and therefore access and inspection warranted – evidence required to ascertain present state of works on the property compared to state of works as at the time the statement of charge was filed. COSTS: whether council ought to be awarded its costs of the motions – costs follow the event in Class 4 and council was successful on the motion – in respect of the Class 1 proceedings it is fair and reasonable that the council be awarded its costs given the unreasonable conduct of the contemnor in respect of facilitating access to the property for the purpose of inspection.
APPEAL – appeal against Commissioner’s decision – refusal of development consent – mixed use development in Penrith City Centre – non-satisfaction of jurisdictional preconditions – overshadowing of public open space – construction of clause – whether public open space must be in Penrith City Council – whether development exhibits design excellence – relevant matters to be considered – architectural design competition to be held – whether views of Design Integrity Panel after competition held relevant matter – competition to be held in relation to the development – whether competition held in relation to the development on appeal
DEVELOPMENT APPLICATION — Alterations and additions to an existing dwelling – amended plans – conciliation conference – agreement between the parties – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to wall and driveway - whether damage to infrastructure is caused by the trees – compensation for damage – consideration of privacy.
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of views severe – balance between views and privacy – pruning and removal ordered
APPEAL – development control orders – stop use order – demolish works order – whether vehicle hoist is a building – whether development consent was required – whether use of the site requires development consent – characterisation of use
DEVELOPMENT APPLICATION – application seeking development consent for the use of an unauthorised building, use of the site as a landscaping material supplies business and erection of covered bulky store and erection of garage to be used in association with residential use – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – application seeking approval for the unlawful construction of two metal sheds marked as “B1” and “B2” on the architectural drawings – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – application seeking approval for the unlawful construction of the large southern shed known as the “Office, Storage, Workshop” – conciliation conference – agreement between the parties – orders
OFFENCES AND PENALTIES – sentence – liability of director for offence by corporation – executive liability offence – carrying on scheduled activity without environment protection licence – objective seriousness of offence – contrary to legislative objects and regulatory scheme – control over causes – offence in low range – subjective circumstances of offence – early guilty plea – lack of significant record of convictions – remorse – unlikely to reoffend – general deterrence – publication order – moiety of fine – costs OFFENCES AND PENALTIES – sentence – carrying on scheduled activity without environment protection licence – land-based extractive activity exceeding 30,000 tonnes – objective seriousness of offence – contrary to legislative objects and regulatory scheme – committed recklessly – control over causes – offence in the low-middle range – subjective circumstances of offender – early guilty plea – lack of significant record of convictions – remorse – general and specific deterrence – publication order – moiety of fine – costs
REVIEW: review of a decision of the Registrar to award costs in Class 2 proceedings – applicable legal principles – whether necessary to demonstrate error on the part of the Registrar – error not required – error by Registrar in the decision to award costs – decision set aside. COSTS: whether it is fair and reasonable to award costs in a Class 2 tree dispute – presumptive rule that there be no order as to costs unless fair and reasonable – whether respondent unreasonably rejected offers of settlement prior to commencement of proceedings – respondent engaged legal representative and expert arborist upon whose advise she relied – respondent made concessions during the course of the hearing – whether unreasonable to have made concessions – fact that Court rejected the evidence of her expert and that she was the unsuccessful party to the litigation did not make it fair and reasonable that costs be awarded against her – each party to bear their own costs of the proceedings, including the costs hearing before the Registrar and the review hearing.
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Whether decision-maker took into account mandatory relevant consideration — Consideration of the reasons given for original grant of development consent — Statutory construction of “the reasons given” ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Jurisdictional precondition to exercise of power — Whether decision-maker formed the required state of satisfaction — “Substantially the same development” test
PROSECUTION - charge of pollute waters - split in sewer rising main - Defendant relies on statutory defence pursuant to s 122 of the Protection of the Environment Operations Act 1997 (the POEO Act) - consideration of conditions of the Defendant’s environment protection licence (the EPL) - consideration of whether the facts, in conjunction with the EPL conditions, establish the statutory defence - statutory defence established - alternative defence of honest and reasonable mistake of fact also raised - alternative defence also established - Defendant to be found not guilty of rising main offence - Prosecutor’s application to consider findings on defences before entering any orders for acquittal - rising main offence proceedings adjourned to permit Prosecutor to consider findings PROSECUTION - charge of pollute waters - overflow of sewage pumping station caused during repair of split rising main - overflow of untreated sewage from pumping station into waterway - Defendant raises defence of necessity - Defendant proposes that defence is not confined to circumstances of immediate and irreparable harm to human health or life - expansive approach to defence of necessity rejected - Defendant relies on evidence establishing belief held by relevant employees of immediate and irreparable risk of harm to human health or life - evidence does not establish the existence of such a belief - defence of necessity not established - Defendant convicted of pumping station charge - matter adjourned to permit setting down of, and directions for preparation for, sentencing hearing PROSECUTION- charge of breach of EPL condition - alleged failure to maintain equipment - failure to divert sewage from pumping station serving the split rising main - charge that Defendant failed to maintain the valve that would have permitted the diversion of sewage - Defendant concedes failure to operate the valve but submits that valve had been maintained - Defendant presses “wrong charge” defence on the basis that the charge was founded on the wrong element in the condition of the Defendant’s EPL - evidence establishes operator error and not failure to maintain - Defendant found not guilty and acquitted
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether a tree with toxic properties is likely to cause injury – consent already obtained to remove two of three trees – compensation – Pt 2A application – neighbouring trees – obstruction of sunlight – whether trees are planted to form a hedge
DEVELOPMENT APPLICATION – childcare centre – amended plans and further information – conciliation conference - agreement reached between the parties – orders made
DEVELOPMENT APPLICATION – Torrens title subdivision – significant trees – conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R3 Medium Density Residential zone – agreement between parties – conciliation conference – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the Applicant made reasonable effort – neighbouring bamboo – Pt 2 application – damage to fence – whether fence needs replacing – whether bamboo must be removed – Pt 2A application – bamboo hedge – obstruction of views – whether the obstruction is severe – pruning done by the Respondent
DEVELOPMENT APPLICATION – existing petrol station seeking 24 hour operation – existing use rights – amended plans and further information – conciliation conference - agreement reached between the parties – orders made
DEVELOPMENT APPLICATION– proposed new dwelling attached to exiting dwelling – alterations to existing dwelling – subdivision – amended plans – agreement between the parties – orders made.
COSTS - application to vary costs orders made in decision on challenges to two subpoenas and a Notice to Produce - scope of subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time - conclusion on costs that partial success of opposing parties warranted no order for costs being made - party issuing subpoenas and Notice to Produce now seeks order that it have its costs of the challenge proceedings - presumption that costs follow the event - in the application to set aside the subpoena to Infrastructure NSW, an offer of compromise had been made to narrow the scope of what was required to be produced - no response to the offer from Infrastructure NSW - appropriate to vary the costs order concerning this subpoena - Company to have its costs of the application to set aside the Infrastructure NSW subpoena - Company entitled to one third of its costs of the challenge to this subpoena - no basis demonstrated as to why the result concerning the subpoena to the Department and the Notice to Produce to Sydney Metro should be disturbed - costs motion seeking variation to outcomes of Sydney Metro's challenges dismissed COSTS - costs of costs Notice of Motion - costs follow the events - no basis to depart from conventional position - apportionment of costs of costs motion - costs of costs motion apportioned based on the success/failure on the costs motion - Infrastructure NSW to pay portion of Company’s costs motion - Company to pay costs of Sydney Metro of costs motion
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – sewer pipe – no orders for compensation – orders to remove one tree
DEVELOPMENT APPLICATION – infill affordable housing in B4 zone – whether development is total development – whether must not refuse provision applies – traffic impacts – failure to provide car parking onsite
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring trees – adjoining land – whether the trees are planted to form a hedge – obstruction of views – application refused
COMPULSORY ACQUISITION – ss 55 and 56 of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – remitted to redetermine compensation based on Court of Appeal findings – legal and equitable term of lease – compensation to take into account risk of early termination
DEVELOPMENT APPLICATION – dwelling - stormwater management – amend conditions of consent - breach in height development standard – cl 4.6 request for variation of standard - conciliation conference conciliation conference – agreement between the parties – orders
EASEMENT – grant of easement over council owned land used for car park not reasonably necessary for the effective use of the Applicants’ land – Court satisfied that grant of easement not inconsistent with the public interest of use of the land to be benefitted – Court not satisfied that the owner of burdened land can be adequately compensated – Court not satisfied that reasonable attempts to obtain easement or one having the same effect made DEVELOPMENT APPLICATION – approval of centre-based childcare facility dependent on grant of easement for access over council owned land used as car park – access over council owned land prohibited development in SP2 zone – grant of development consent with deferred commencement condition not consistent with Mison principles
DEVELOPMENT APPLICATION – mixed use development in B1 Neighbourhood Centre zone – centre-based childcare facility – business premises – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether tree is likely to cause damage in the near future – likelihood of damage and risk outweighs s (12) considerations – incursion of bamboo – root barrier ordered
DEVELOPMENT APPLICATION – alterations and additions to item of local heritage significance – heritage conservation area – conciliation conference – agreement between parties – orders
CIVIL PROCEDURE – application for joinder where separate application previously dismissed – s 8.15(2) Environmental Planning and Assessment Act 1979 – whether issues raised would be sufficiently addressed absent joinder – application for joinder dismissed
COSTS – Party/Party – Specific court rules in relation to costs – Class 1 proceedings – Presumptive rule that each party pays its own costs – Notice of Motion for costs of Class 1 hearing before Commissioner of Court – Whether order for costs fair and reasonable – Conduct of parties leading up to and during hearing before Commissioner – Motion dismissed – Each party to pay its own costs JUDGMENTS AND ORDERS – Amending, varying and setting aside – Notice of Motion for costs brought 104 days after judgment of Commissioner of Court – Whether application brought out of time pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) or Court’s Practice Note
INTERIM HERITAGE ORDER: appeal against the making of an interim heritage order – assessing heritage significance – whether item is likely to be found of local heritage significance
JUDGMENTS AND ORDERS – Stay of execution – Stay of judgment and orders – Pending appeal – Notice of motion for stay of Commissioner’s judgment revoking interim heritage order – Interlocutory relief – Notice of motion granted
DEVELOPMENT APPLICATION – mixed use development – two residential towers comprising 263 apartments – 100 place child care centre – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – proposed flood mitigation works - whether proposed works are acceptable having regard to the matters in section 166C(1) of the Water Act 1912.
APPEAL – development application – grant of consent subject to conditions requiring changes to the design – conciliation conference – agreement reached – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – is there sufficient notice of lodgement of application – has applicant made reasonable effort to reach agreement - is the obstruction of sunlight and views severe - no entitlement to sunlight or views that were unavailable to applicant upon occupation of dwelling
TREES (DISPUTES BETWEEN NEIGHBOURS) – agreement between the parties – conciliation conference – orders – obstruction of view by Magnolia tree – does the tree form a hedge – damage to retaining wall caused by trees
DEVELOPMENT APPLICATION – heritage conservation – dwelling house development in R2 Low Density Residential zone – heritage conservation zone – conciliation conference – agreement between parties - orders
CIVIL PROCEDURE: urgent application for joinder in Class 1 appeal – applicable legal principles – whether issues sought to be raised by intervenor would be sufficiently addressed absent a contradiction – delay in bringing application for joinder – whether Commissioner should have regard to previous Class 4 consent orders and their alleged non-compliance in the Class 1 appeal – issues raised by intervenor would be either raised by the parties in their contentions or able to be dealt with by the intervenor by way of submissions – joinder refused.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to concrete slab, pavers and fence – roots exposed – are exposed roots a risk to safety
JUDICIAL REVIEW: whether complying development certificate validly granted by certifier – whether at the time it was granted the development was prohibited or permissible with consent in the relevant zone – whether “development application” in a savings provision in a local environmental plan included complying development certificates – complying development invalid because development prohibited in the zone at the time of grant. STATUTORY CONSTRUCTION: principles of construction of subordinate legislation, including environmental planning instruments – whether terms in subordinate legislation have same meaning as the principal Acts under which they are made – use of extrinsic material to construe subordinate legislation – presumption against retrospectivity – application of s 30(1)(b) and (c) of the Interpretation Act 1987 - whether right to apply for a complying development certificate under legislation prior to amendment a relevant right for the purpose of the Interpretation Act.
APPEAL – development application for the use of a relocatable shed at existing boatyard – structural integrity of shed – acoustic and air quality impacts –impact on land contamination – visual and heritage impacts – consistency with zone objectives APPEAL – development application for the mooring and use of a floating dry dock at existing boatyard – visual and landscape character impacts – statutory provisions recognising harbour as public asset of national and heritage significance to be protected for public good, for existing and future generations – public trust – intergenerational equity – unacceptable visual and landscape character impacts
CIVIL PROCEDURE — Separate determination of questions — Whether development application made, but not yet determined, on or before commencement of state environmental planning policy — Statutory interpretation — Proper construction of State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2(1)(a) — Word “determined” within savings provision means determination which finally disposed of the development application — Separate questions answered in the applicant’s favour — No order as to costs
COSTS – application for lump sum costs order – s 98(4)(c) of Civil Procedure Act 2005 (NSW) – relative responsibility of parties – proportion between issues litigated and costs claimed – complexity of proceedings – gross sum costs order appropriate
DEVELOPMENT APPLICATION – dual occupancy –contravention of minimum lot size for dual occupancy standard – whether sufficient environmental planning grounds – foreshore scenic protection area
CIVIL PROCEDURE – application for joinder – s 8.15(2) Environmental Planning and Assessment Act 1979 – whether issues raised would be sufficiently addressed absent joinder – application for joinder dismissed
DEVELOPMENT APPLICATION – development in heritage conservation area – dwelling house development in R2 Low Density Residential zone – view loss – whether adverse impact on amenity
INTERIM HERITAGE ORDER: whether an interim heritage order over two residential properties found not to reach the threshold for local heritage listing, should be revoked.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – Pt 2A application – neighbouring hedge – obstruction of views – whether the trees are planted so as to form a hedge – whether the obstruction is severe – privacy
SENTENCING – environment offence – s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – polluted waters – significant harm – practical measures available but not taken – harm or risk of harm foreseeable – no financial benefit gained – upper middle range of objective seriousness – contrition and remorse demonstrated – co-operation with regulatory authority – early plea of guilty – no prior convictions – specific deterrence not warranted – general deterrence warranted – fine not reduced due to capacity to pay pursuant to s 6 of Fines Act 1996 (NSW) – monetary penalty imposed – publication order – investigation costs – legal costs
CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre in breach of complying development certificate because operating as a shop – no impermissible shop use occurring in business zone CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre as a retail pharmacy in breach of occupation certificate permitting medical pharmacy
DEVELOPMENT APPLICATION: shop top housing development – heritage conservation – effect of proposed development on item of heritage significance – whether proposal exhibits design excellence – remediation of land
APPEAL – development application – clearing of land and construction of warehouses and self-storage units – conciliation conference – agreement reached – orders made
COSTS - Prosecutor charges each Defendants with a common charge in March 2019 - each Defendant successfully challenged the charge against it on the basis of it being duplicitous - Prosecutor granted leave to seek to amend to cure duplicity - several attempts by the Prosecutor to reparticularise the charge to cure duplicity - final version of the Prosecutor’s amended charge held to be (i) unknown to the law and (ii) patently duplicitous and (iii) latently duplicitous and (iv) constituted a fresh charge, being one sought to be relied upon after the expiry of the relevant statutory time limit - the charges against each Defendant were dismissed - each Defendant applied for costs of the entire proceedings pursuant to s 257D(1)(d) of the Criminal Procedure Act 1986 - Defendants proposed that there were exceptional circumstances arising from the conduct of the proceedings by the Prosecutor that warranted each Defendant having a costs order made in its favour for the entirety of the proceedings - exceptional circumstances established concerning the whole of the proceedings - appropriate to award costs to each Defendant for the entirety of the proceedings - costs order made COSTS - costs of costs proceedings usually follow the event - each costs’ Applicant entirely successful in the costs order sought - appropriate to make costs order in each Defendant's favour for the costs of the costs proceedings
APPEAL – development control orders – demolish works carried out partly on public land – cease use orders for outbuildings and principal dwellings – conciliation conference – agreement reached to modify orders – statutory requirements of the orders met – orders made
DEVELOPMENT APPLICATION – boarding house – non-compliant height development standard – cl 4.6 written request to vary development standard - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – centre-based childcare centre – carparking in front setback – defining local character – streetscape character – acoustic fencing
DEVELOPMENT APPLICATION – Sixty four (64) place centre-based childcare facility with basement parking – State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 – Streetscape character – Suitability of location – Impact on amenity of residents – Low Density Residential Zone – Whether the facility will be ‘well ventilated’
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees are situated on adjoining land, s7 not satisfied; jurisdiction not engaged; no powers to make orders; application refused
DEVELOPMENT APPEAL – residential – cl 4.6 written request to justify contravention of development standard of minimum lot size - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION: demolition and construction of a new residential flat building – amended plans – planning and urban design experts agree contentions are resolved - agreement between the parties – orders
LOCAL GOVERNMENT – Powers, functions and duties – Orders – Non-compliance with development control order – Collateral challenge in criminal proceedings – Whether development control order invalid – Whether in-ground swimming pool a “building” – Literal, contextual and purposive approaches to statutory construction – Whether development control order uncertain
APPEAL – appeal from acting commissioner’s judgment in tree dispute under s 56A of the Land and Environment Court Act – acting commissioner made order for tree pruning not removal of neighbour’s tree as sought – failure to accord procedural fairness established – no error of law in dismissing claim – no error of law in ordering inappropriate remedy – no error of law in court order for pruning of tree to be paid for by appellant to large extent – appeal upheld – exclusionary remitter order made