TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees are likely to cause damage or injury — who should pay for tree works — orders for tree removal and replanting
DEVELOPMENT APPLICATION — partial demolition of improvements and alterations and additions to existing dwelling — conciliation conference — amended plans and documents – agreement between the parties — orders made.
ABORIGINAL LAND RIGHTS – s 36 of Aboriginal Land Rights Act 1983 (NSW) – land occupied by golf club and used as golf course – whether land claimable Crown lands under s 36(1) of the Aboriginal Land Rights Act – whether land lawfully used or occupied – whether land included in reserve for public recreation – whether land included in lease – whether use or occupation of the land in furtherance of or incidental to reserve purpose of public recreation – lands vested in His Majesty at dates of claim
CIVIL ENFORCEMENT — ss 4.2 and 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) — where respondents carried out construction of planter boxes, a masonry retaining wall and a timber screen without development consent — whether, by operation of the Dividing Fences Act 1991 (NSW) and/or the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, development consent was required for the construction of planter boxes, a masonry retaining wall and a timber screen — whether development consent was obtained — presumption of regularity — whether the applicant was estopped from contending that development consent was required — discretion — declaration and orders — costs
ABORIGINAL LAND RIGHTS – s 36(1) of Aboriginal Land Rights Act 1983 (NSW) – land used as a carpark adjacent to courthouse – whether land claimable Crown lands – whether land vested in Her Majesty – claimed land registered in the name of the State of New South Wales – relationship between s 42 of Real Property Act 1900 (NSW) and s 43 of Public Works Act 1912 (NSW) – whether claimed land lawfully used or occupied within the meaning of s 36(1)(b) of ALRA – whether rights to use or occupy claimed land conferred by Court Security Act 2005 (NSW) – meaning of “court premises” in s 4 of Court Security Act – right of State of New South Wales through employees or agents of the NSW Police Force and Department of Communities and Justice to use or occupy Crown land – whether employees or agents of the NSW Police Force or Department of Communities and Justice can use or occupy Crown land without authorisation of Minister administering the Crown Land Management Act 2016 – appeal upheld
DEVELOPMENT CONTROL ORDER APPEAL –demolish and restore order – no appearance by Applicant – works not exempt – BCA compliance - change of use to office premises is development that is permissible with consent – revocation of restore order - substituted stop use order – modified demolish order - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A – High hedges – severe view obstruction – trees not on adjoining land at hearing but were upon application – jurisdiction based on application date – view obstruction not severe at hearing – however, the tree’s history and their growth habit matched the discrete circumstances of Steber v Job [2019] NSWLEC 1308 – orders made for pruning and ongoing maintenance
DEVELOPMENT APPLICATION — community title subdivision — tree removal — environmentally sensitive flora — infrastructure — conciliation conference — agreement between the parties — orders
DEVELOPMENT APPEAL – alterations and additions to a dwelling for single onsite car park – assessment of impact on nearby heritage items – streetscape – orders
COSTS – Class 4 proceedings – r 42.1 Uniform Civil Procedure Rules 2005 (NSW) – whether other order should be made as to the whole or any part of the costs – s 98(4)(c) Civil Procedure Act 2005 (NSW) – whether party to whom costs are to be paid entitled to specified gross sum instead of assessed costs
DEVELOPMENT APPLICATION – service station alterations and additions and signage – conciliation conference – agreement between the parties – orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — damage to dividing fence caused by neighbouring bamboo — orders to remedy and prevent damage — Pt 2A application — neighbouring bamboo hedge — obstruction of sunlight — whether the obstruction is severe — privacy and amenity — balancing of interests — orders for removal of a section of bamboo and ongoing maintenance of the remaining bamboo
TREES (NEIGHBOURS) — is the likelihood of injury to a person falling from a ladder when trying to prune a vine a likelihood caused by the vine; is the height test in s 14A(1)(b) to be applied to some future anticipated height of a tree; is the test of what forms a hedge subjective or subject to identifiable indicators; can creation of a view of vegetation that might predominantly be of various weed species warrant an order under Part 2A of the Trees Act; can a person who planted a tree and then subdivided the land — selling the allotment upon which the tree is located — subsequently complain that the tree severely obstructs his view.
DEVELOPMENT APPLICATION: demolition and construction of centre based childcare centre – amended plans and documents – contentions resolved by amendments and expert evidence – appeal upheld.
DEVELOPMENT APPLICATION AS AMENDED — residential flat building — affordable housing component — strategic context — site suitability — design verification statement — adequate arrangements made for stormwater drainage easement over adjacent property requiring tangible proof to constitute an arrangement as something “made” in the nature of “an understanding” between the parties.
APPEAL – development application – residential flat building – precinct in transition – development control plan abandonment – streetscape character response – tower above podium – reasonable design response to “borrowed” amenity
APPEAL – development application – farm gate premises – farm stay accommodation – permissibility – whether there will be a commercial farm – definition of commercial farm – meaning of primary production business – rural industry – definition of agricultural production business – whether brewery is an agricultural production business
DEVELOPMENT APPLICATION – construction of waterfront access stairs and waterfront structures – conciliation conference – agreement between the parties – orders
CIVIL ENFORCEMENT — failure to comply with an order given under s 124 of the Local Government Act 1993 (NSW) — declaration and orders to remedy breach — further time for compliance
DEVELOPMENT APPLICATION — application for subdivision and associated works — impact on scenic and landscape qualities of Mulgoa Valley — consideration of building envelopes — appeal upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage — consideration of the trees’ benefits — whether the tree should be removed
DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – residential flat development – affordable housing – cl 4.6 variation of height of buildings development standard – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – consent orders proposed – damage caused by repeated branch failure and root incursion – apprehension of further damage and risk of injury to persons – tree removal ordered
CONTEMPT: non-compliance with court order to dismantle attractions and rides on land – continued use of attractions and rides – admission by contemnor of continued disobedience with court order – applicable legal principles – guilty of contempt.
APPEAL – development application – multi dwelling development – removal of trees – design and planning measures incorporated to reduce urban heat island effects – satisfaction of cl 7.30(3) of Penrith Local Environmental Plan 2010
DEVELOPMENT APPLICATION – interpretation of provisions of the Warringah Local Environmental Plan 2000 – cll 56 and 58 and the B2 Oxford Falls Valley Desired Future Character Statement – consideration of “enhancement” of the natural landscape
PRACTICE AND PROCEDURE – contempt – application to inspect respondent’s property pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) – whether s 169 of the Evidence Act 1995 (NSW) applies – relationship between UCPR r 23.8 and s 169 of the Evidence Act – whether inspection for the purpose of providing updating evidence demonstrating contempt is continuing
MODIFICATION APPLICATION – Modification of a childcare centre – conciliation conference – agreement between the parties – amended plans and documents - orders made.
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — suckers or seedlings emerge on the applicant’s property — whether the tree has caused, is causing, or is likely to cause, damage — application refused
JUDICIAL REVIEW – development consent for dwelling house – compliance with maximum floor space ratio – provisions fixing different maximum floor space ratios – general and specific provisions – whether specific provision applied – application depending on identification of land in “Floor Space Ratio Map” – meaning of – whether filter layer applying specific provision a named map or part of Floor Space Ratio Map – specific provision applied – development complied with maximum floor space ratio fixed by specific provision – general provision displaced by specific provision
DEVELOPMENT APPLICATION – residential apartment building development – in-fill affordable housing – cl 4.6 written request – minimum lot size – height of buildings – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage or injury — damage to dividing fence — habitat hollows — orders for tree pruning
ENVIRONMENTAL OFFENCES: corporate defendants charged with the clearing of native vegetation across two properties – two corporate defendants charged as landholders – third corporate defendant is the entity that managed the farms – individual defendant is the director of the third corporate defendant and was charged with an executive liability offence. ENVIRONMENTAL OFFENCES: alleged clearing of native vegetation by the application of herbicide – subject land concerned two properties with a history of farming and cropping – whether prosecutor permitted to also rely on evidence of the mechanical clearing of native vegetation – elements of the offence – whether defendants cleared vegetation in the charge areas – whether the defendants cleared vegetation in the charge areas during the charge periods – whether defendants cleared native vegetation or whether the defendants cleared weeds or regrowth – whether corporate defendants caused or permitted the commission of an offence – prosecutor not able to prove beyond reasonable doubt that defendants cleared native vegetation in the charge areas during the charge period – defendants found not guilty – charges dismissed.
PRACTICE AND PROCEDURE – Class 4 judicial review proceedings challenging proposed activity for social housing – applications for order that in the event that applicant unsuccessful in the proceedings, the Court not make an order for costs against the applicant – whether proceedings are brought in the public interest – whether there is “something more” than the mere characterisation of the proceedings as being brought in the public interest – whether there are countervailing circumstances weighing against a departure from the ordinary costs rule in Class 4 proceedings – whether the applicant has a private interest in the proceedings – whether the claim appears arguable – notices of motion dismissed
PRACTICE AND PROCEDURE – Class 4 judicial review proceedings challenging proposed activity for social housing – admissibility of evidence – whether material before decision-maker – whether evidence otherwise relevant to ground of judicial review
APPEAL – development application – depot – existing character – desired future character - heavy industrial zone adjoining low density residential zone – height, bulk and scale –excessive building footprint - side setbacks – visual impact – orders
APPEAL – development control order – unauthorised structures – weight of evidence – authority to enter the site – consent needed to enter residential premises – no consent to enter – other evidence supports development control order – DCO issued
DEVELOPMENT APPLICATION: housing for seniors and people with a disability in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders
PRACTICE AND PROCEDURE — Notice of motion to set aside a notice to produce in part — Whether documents sought are apparently relevant — No evidence that notice to produce would amount to oppression
APPEAL –– construct and/or use a water supply work approval - amendment of approval – regulated application - conciliation conference – agreement between the parties – orders APPEAL – construct and/or use a water supply work and/or use water approval – amendment of approval – unregulated application - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION — application for subdivision and associated works — impact on scenic and landscape qualities of Mulgoa Valley — consideration of building envelopes — appeal upheld
DEVELOPMENT APPLICATION: semi-detached dwelling development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – damage to dwelling roof, car, and lights due to falling deadwood – apprehension of further damage and risk of injury – failure of respondent to exercise duty of care – pruning and compensation ordered
APPEAL – Modification application – modification of condition imposed on the grant of consent – conciliation conference – agreement between the parties – orders
CRIMINAL — Advance evidentiary rulings sought — whether proposed evidence relevant to the particulars of the charges — further issue of admissibility of records of interview — whether records of interview contain admissions as an exception to the hearsay rule
CONTEMPT – consent orders agreed between neighbours for construction of new brick boundary fence not complied with by applicant – whether multiple non-compliances established to be contempt of court orders – whether orders pursuant to r 40.8 UCPR should be made – costs
COSTS – whether costs thrown away should be ordered payable after decision to allow vacation of hearing dates has been determined – each party to pay own costs
DEVELOPMENT APPLICATION- demolition of existing dwelling and construction of a co-living development – conciliation conference – amended plans and documents – agreement between the parties – orders made.
SENTENCING – offences and penalties – failure to comply with court order – order to cause removal and disposal of asbestos waste – plea of guilty – non-compliance with court order due to impecuniosity – not intentional – no additional environmental harm proven – no practical measures to prevent harm beyond compliance with court order – no control to comply with court order due to impecuniosity – low objective seriousness – mitigating subjective factors – plea of guilty – limited means to pay fine – no order as to costs
APPEAL – development application – amending application – change of use to residential flat building – conciliation conference – agreement reached – orders made
CIVIL ENFORCEMENT — failure to comply with order given under the Local Government Act 1993 (NSW) to remove items on property — prohibited use of land — whether declarations should be made in the public interest in addition to enforcement orders — declarations and enforcement orders made
CIVIL ENFORCEMENT — interpretation of planning instruments — complying development — alleged inconsistency of planning instruments — telecommunications facility — heritage item — declaration of invalidity of complying development certificate
DEVELOPMENT APPLICATION — residential apartment building development — in-fill affordable housing — cl 4.6 written request — height of buildings — floor space ratio — agreement between the parties — orders
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — palms — whether trees have caused damage — whether trees are likely to cause damage or injury — whether trees should be removed — whether compensation should be ordered — orders for tree removal and compensation
MODIFICATION APPLICATION DIRECT TO THE COURT – modification to conditions of consent - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – demolition and construction of multi-unit housing – conciliation conference – amended plans and documents – agreement between the parties – orders made.
DEVELOPMENT APPLICATION — residential apartment development — residential flat building in R4 High Density Residential zone — affordable housing — objectives of the Apartment Design Guide are considered — easement for stormwater — owners consent
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 Squirrel Glider — application of the precautionary principle — treatment of interface of a subdivision with signification vegetation — amenity impact of lot orientation and setbacks — orders
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether tree has caused damage — orders for tree removal and replacing damaged section of boundary wall
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage or injury — damage to roof tiles — whether compensation should be ordered — orders for tree pruning
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 NOTICE OF MOTION – motion for dismissal pursuant to rr 13.4 and 14.28 of the UCPR – res judicata – issue estoppel – Anshun estoppel – whether proceedings frivolous and vexatious – whether no reasonable cause of action disclosed
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — trees have been removed — whether compensation should be ordered — application refused
DEVELOPMENT APPEAL – residential development – dual occupancy – minimum lot width development standard – Torrens title subdivision – secondary dwelling – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 – roof damage caused by falling deadwood – apprehension of further damage – consent orders proposed – pruning program ordered
PRACTICE AND PROCEDURE — Civil enforcement proceedings — Applicant sought leave to discontinue — Third respondent did not consent — Leave granted — Notice of discontinuance filed
LOCAL GOVERNMENT APPEAL — poultry orders — restriction on number of poultry on site — chickens and roosters — impacts on neighbours — nuisance — noise — legitimacy of complaints — due process — improper purpose
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — privet — whether the tree is likely to cause injury — order for tree removal
ENVIRONMENTAL OFFENCES: corporate defendants charged with the clearing of native vegetation across two properties – two corporate defendants charged as landholders – third corporate defendant is the entity that managed the farms – individual defendant is the director of the third corporate defendant and was charged with an executive liability offence. ENVIRONMENTAL OFFENCES: alleged clearing of native vegetation by the application of herbicide – subject land concerned two properties with a history of farming and cropping – whether prosecutor permitted to also rely on evidence of the mechanical clearing of native vegetation – elements of the offence – whether defendants cleared vegetation in the charge areas – whether the defendants cleared vegetation in the charge areas during the charge periods – whether defendants cleared native vegetation or whether the defendants cleared weeds or regrowth – whether corporate defendants caused or permitted the commission of an offence – prosecutor not able to prove beyond reasonable doubt that defendants cleared native vegetation in the charge areas during the charge period – defendants found not guilty – charges dismissed. ENVIRONMENTAL OFFENCES: executive liability offence – elements of the offence – whether prosecutor failed to demonstrate beyond reasonable doubt that the individual defendant knew or ought reasonably to have known that the offence was being committed and failed to take all reasonable steps to prevent or stop the commission of the offence – where individual defendant told pilot spraying aerial herbicide not to spray the timbered areas. STATUTORY CONSTRUCTION: meaning of “clearing” of native vegetation in the Local Land Services Act 2013. STATUTORY CONSTRUCTION: meaning of “reasonable steps” in s 13.6 of the Biodiversity Conservation Act 2016.
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — debris blocking a drain — whether trees are likely to cause damage — application refused
CRIMINAL SENTENCING — Contested hearing — penalty for offence of failure to maintain equipment in proper and efficient manner in contravention of licence — separate offence of failing to provide information and records — discharge of wastewater and sewage into residential property, sports field and Prospect Creek — pleas of guilty — dispute over issues of extent of actual harm to the environment and practical measures available to avoid or mitigate harm — principle of incontrovertibility — disagreement as to whether specific deterrence an appropriate sentencing factor — disagreements as to Environmental Service Order; investigation costs; professional costs; moiety; and publication order
DEVELOPMENT APPLICATION – mixed use development – co-living housing – retention and restoration of existing shopfronts – ground floor commercial premises – conciliation conference – agreement between the parties – orders made
DEVELOPMENT APPLICATION – Centre-based childcare facility – non-compliance with side building setback which results in an adverse impact on the landscaped setting of the adjoining heritage item
DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — cl 4.6 variation of height of buildings development standard — shop top housing — orders
DEVELOPMENT APPEAL — modification application — alterations and additions to existing dwelling — conciliation conference — agreement between the parties — orders
APPEALS – review of Registrar’s case management orders – valuation of land – appeal against Valuer General’s determination of objection to valuation – deficiencies in pleading of parties’ cases – appellant’s case unclearly identified grounds of objection – Valuer General’s case inappropriately asserted different valuation to valuation the subject of the objection – need for repleading of parties’ cases – appellant granted leave to replead its case – Valuer General needs to seek leave to advance positive case for different valuation
COSTS – unsuccessful applicant for interlocutory injunction ordered to pay costs of respondent – no public interest identified – usual rule that costs follow the event applied
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — obstruction of sunlight — whether the obstruction is severe — privacy — balancing of interests — orders for tree removal
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees should be removed — whether order can be made to remove soil — order for tree removal
DEVELOPMENT APPEAL — alterations and additions to an existing building — use as a pub — impact on the public domain — pedestrian amenity — design excellence — orders
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — obstruction of views — whether the obstruction is severe — privacy — landscape design — balancing of interests — orders for tree removal and maintenance of any replacement trees
ENVIRONMENT AND PLANNING — Civil enforcement — Interpretation of development consents and conditions — Lapsing of consent — Permissible development — Declaratory and injunctive relief
DEVELOPMENT APPLICATION — amendment to conditions of development consent — amended plans — conciliation conference — agreement between the parties — orders
DEVELOPMENT APPLICATION – alterations and additions to a warehouse building – construction of warehouse buildings – conciliation conference – agreement between the parties – orders
CRIME – appeals – appeal against conviction and sentence – failure to comply with a development control order s 9.37(1) of the Environment Planning and Assessment Act 1979 (NSW) – appeal against severity of sentence – s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
DEVELOPMENT APPLICATION — demolition works — use of existing structure — boat shed — conciliation conference — agreement between the parties — orders made.
CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 2 application — Tree dispute — Question regarding characterisation of hedge — Determining question separately from other issues not justified — Adjudication of separate question not just, quick or cheap
DEVELOPMENT APPEAL — affordable housing — variation to non-discretionary development standard — written request required — adequacy of written request — principles of Housing SEPP not relevant - variation to floor space ratio — setbacks — is the area in transition
CIVIL PROCEDURE — Parties — Joinder — Neighbouring property owner to development application — Joinder not necessary for all matters in dispute to be effectively and completely determined
DEVELOPMENT APPLICATION — residential apartment development — residential flat building in R3 Medium Density residential zone — Low and Mid Rise Housing — conciliation conference — agreement between parties — orders
TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees are likely to cause damage or injury — apportionment of costs of works — orders for tree removal and fencing works
DEVELOPMENT APPLICATION — Community titled subdivision — land stability — stormwater — flooding — ground water, surface water and impacts to the Endangered Ecological Community and coastal wetland
NOTICE OF MOTION – notice of motion seeking leave to modify building information certificate application – granted – application to amend a development application – whether amendments constitute a fresh application – scope of power to amend – change of specified purpose – dismissed – costs
COSTS: costs in Class 2 tree dispute under the Trees (Disputes Between Neighbours) Act 2006 – whether fair and reasonable to order that the respondent pay the applicants’ costs – applicable legal principles – applicants claiming disbursements only – success in the proceeding insufficient to warrant a costs order – initial conduct of respondent in responding to applicants’ correspondence and requests to remove tree did not justify the imposition of costs – applicants failed on some issues in the proceedings – application dismissed.