APPEAL – activity approval for caravan park and camping ground operated on Crown land – impact on endangered ecological community from camping in southern precinct – whether approval consistent with ecologically sustainable development principles – objections to compliance with local government regulation requirements acceptable – approval to be granted subject to conditions including compliance with vegetation management plan
DEVELOPMENT APPLICATION – construction of shop top housing – conservation area – breach of height and FSR development standards – conciliation conference – agreement reached – orders made
PROSECUTION – sentencing for multiple (22) offences of possession and harming of bird eggs of protected and threatened species under National Parks and Wildlife Act 1974 – pleas of guilty – eggs in defendant’s possession collected over many years – not established beyond reasonable doubt that defendant aware that harm to and possession of eggs of threatened bird species – defendant aware that bird eggs in general could not be collected without a licence issued under the National Parks and Wildlife Act – high range of low objective seriousness – mitigating factors of age and health – custodial sentence not appropriate – community correction order made with place restriction condition preventing entry into national park, nature reserve, regional park, state conservation area and wilderness area for 14 months
DEVELOPMENT APPLICATION – child care centre – whether proposed passing bay on access driveway is acceptable – whether streetscape of Proposed Development is compatible with local area – Proposed Development unable to satisfy considerations in Childcare Planning Guideline
DEVELOPMENT APPEAL – Torrens title subdivision – vehicular access to battle axe lots – heritage interpretation – waste – weight given to evidence from party as an expert to the proceedings – orders
APPEAL – development application – subdivision – community title – threatened species – assessment guidelines – Green and Golden Bell Frog – endangered ecological communities – hollow bearing trees – water sensitive urban design (WSUD) – impacts on oyster leases – PFAS contamination – remediation – containment cell – adaptive management – community management statement
DEVELOPMENT CONTROL ORDERS – demolish works order – compliance order – building information certificate – conciliation conference – agreement between the parties – orders
APPEAL – development control order – stop works order – restore works order – earthworks – conciliation conference – agreement between the parties – orders
APPEAL – development application – in fill affordable housing under the SEPP – whether proposed development can be characterised as multi dwelling housing – the application of the Low Rise Housing Diversity Design Guide – compatibility with the character of the local area – setbacks – adequacy of private open space – solar access – density – visual privacy – amenity for future residents and neighbours
APPEAL – modification application – conciliation conference – agreement reached – breach of development standard – amendment to modification application – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree – damage to property – whether the tree caused damage – evidence – tree has been removed – compensation – acts or omissions of the parties – application refused
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – whether the trees are planted to form a hedge – obstruction of a view – overhanging branches – limitations for residents dealing with neighbouring trees
PROCEDURE – leave sought to rely on expert funeral industry evidence in judicial review proceedings – evidence of funeral industry consultant to inform characterisation of development consent for crematorium and cemetery reasonably necessary PROCEDURE – leave sought to rely on ecological evidence in judicial review proceedings – whether biodiversity development assessment report required in relation to development consent for crematorium and cemetery a question of jurisdictional fact – ecological evidence permitted
DEVELOPMENT APPLICATION: roof top terrace – whether the development exceeds the floor space ratio standard – whether the roof terrace will create unreasonable impacts for adjoining neighbours – the reasonableness of the terrace – appeal upheld
COSTS – discretion to award costs pursuant to r 42.1 of the Uniform Civil Procedure Rules – whether costs should be apportioned – applicant successful on first of three issues for determination – first issue for determination not clearly discrete issue in proceedings – usual order made
DEVELOPMENT APPLICATION – childcare centre – existing ground floor tenancy of shop-top housing development – whether the site is suitable for use as a childcare centre – impacts on adjoining neighbours and apartments within the housing development – whether the amenity of the proposed childcare centre is appropriate – appeal dismissed
PRACTICE AND PROCEDURE – Application for leave to be heard at conciliation conference or hearing under s 38(3) Land and Environment Court Act or as amicus curiae – Court’s power to permit non-party to participate in s 34 Conciliation Conference – Leave granted on terms to non-party to participate pursuant to s 38(2) – Unnecessary to determine amicus curiae
COMPULSORY ACQUISITION – compensation – assessment under s 55(f) Land Acquisition (Just Terms Compensation) Act 1991 – service station use – concurrent lessee – nature and scope of concurrent lessee’s interest – legal interest – right power or privilege over or in connection with the land – effect of contracts for fuel supply and sale on determination of compensation
ENVIRONMENTAL OFFENCES: defendant convicted of two offences of aiding, abetting, counselling, or procuring breaches of s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 – guilty plea – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the tree removal offence moderate to high – objective seriousness of the commission of the tree protection offence low to moderate – no prior convictions – remorse and contrition of limited weight – specific and general deterrence warranted – comparable cases.
DEVELOPMENT APPLICATION – mixed use development – written request to contravene height of building development standard – request upheld – whether adequate solar access provided to apartments – whether window plenums should be deleted – whether setbacks are acceptable
DEVELOPMENT APPLICATION – child care centre – impacts on two significant trees – adequacy of proposed offset plantings – potential impacts on neighbours – public interest
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision contrary to law — Statutory construction — Irrelevant and relevant considerations — Whether decision-maker formed the required states of satisfaction ADMINISTRATIVE LAW — Procedural fairness — Consideration of objection to development application
VALUATION OF LAND – appeal against land valuation for 1 July 2019 year under s 6A(1) Valuation of Land Act 1916 – comparable sales approach of Valuer-General’s expert valuer correct – land valuations in earlier years irrelevant – comparison of sales of improved properties in real estate market with land values irrelevant – applicant’s novel approach not accepted – appeal dismissed
DEVELOPMENT APPEAL – strata subdivision of existing dual occupancy – minimum lot size development standard – fragmentation – calculation of strata subdivision lot – owner’s consent – orders
APPEAL – appeal against Commissioner’s decision on a question of law – development contravened development standard – written request seeking to justify contravention – Commissioner not satisfied with written request or that development in public interest – whether misconstruction of objective of development standard – whether misconstruction of objective of the zone – whether constructive failure to consider written request – whether denial of procedural fairness by failure to warn that written request insufficient – only misconstruction of objective of zone established – error not vitiating
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – lilly pilly – obstruction of sunlight– whether the obstruction is severe – privacy – whether benefits of trees outweigh the obstruction – orders for removing some trees in the hedge
DEVELOPMENT APPLICATION – proposed warehouse – size and frequency of vehicles to attend warehouse facility – consideration of AS2890.2 concerning off street commercial vehicle facilities
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – branches near electricity service wire
DEVELOPMENT APPLICATION – seniors housing –residential care facility – streetscape character compatibility – neighbour impact – solar access for occupants – balancing impact and public benefit
ORDERS – injunctive orders – mandatory order to undertake works to protect from creek erosion – prohibitory order to restrain flows causing erosion – terms of orders
DEVELOPMENT APPEAL – Manufactured Home Estate – Permissibility – Innominate use – Site contamination – Biodiversity Development Assessment Report – avoidance, mitigation and offsetting of impacts on flora and fauna – adequacy of biodiversity assessment – intensity of development – visual impact – reasonableness of impacts arising from the development – character – public interest – appeal dismissed – development refused.
ENVIRONMENTAL OFFENCES: defendant convicted of three offences of breaching the Environmental Planning and Assessment Act 1979 – guilty pleas – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the tree removal offences moderate – objective seriousness of the commission of the tree protection offence low – no prior convictions – remorse and contrition demonstrated – specific and general deterrence warranted – application of parity principle by analogy – comparable cases.
DEVELOPMENT CONTROL ORDER – unauthorised addition to existing shop – consent required for the works – terms of amended order agreed between the parties – Court has power to modify order – circumstances required for the order exist – appeal upheld
DEVELOPMENT APPLICATION – heritage conservation area – residential apartment development in low density residential zone – existing use – whether compliance with development standard is unreasonable or unnecessary
MODIFICATION APPLICATION – dwelling house and garage – seeking to regularise work carried out otherwise than in accordance with consent – amendment to modification application which had been made directly to the Court – landscaping context of the site and adequacy of landscaping – whether concrete slab should be retained beneath proposed landscaping – whether construction of structures over easement for services should be approved
CIVIL PROCEDURE — Jurisdiction — Appeal against refusal of application to modify development consent — Whether Court has power to amend a modification application — Whether consent authority has power to amend a modification application under the EPA Act
DEVELOPMENT APPLICATION – alterations and additions to dwelling house – item of local heritage significance – conciliation conference – agreement between parties – orders
ENCROACHMENT OF BUILDINGS – vertical extension of cross-easement for support of the common party wall – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – illumination of existing rooftop sign on western elevation of the building – whether the proposed development is compatible with the existing and desired amenity and visual character of the area – whether the proposed development is unacceptable because of the impact of illuminating the existing sign
APPEAL - development application for dual occupancy (attached) over basement garage - deemed refusal - development permissible with consent in R2 Low Density Residential zone - proposed development generally compliant with building envelope controls - zone objective seeks consistency with desired future character of the area - non‑compliance with development control plan (DCP) - basement garage inconsistent with DCP control - excavation for garage also inconsistent with DCP control - dual occupancies (attached) near the proposed development define the desired future character of the streetscape - desired future streetscape does not include basement car‑parking - weight to be given to DCP controls - proposed development inconsistent with desired future character and DCP controls - proposed development unacceptable - development consent refused - appeal dismissed APPEAL - deemed refusal of application to strata subdivide proposed dual occupancy (attached) - proposed strata subdivision contingent on granting consent to proposed dual occupancy (attached) - proposed dual occupancy (attached) refused development consent - refusal renders strata title appeal futile - appeal dismissed
PROSECUTION – sentencing for offence of transport of waste to unauthorised location in environmentally sensitive location – aggravating matters of financial gain and organised criminal activity not established beyond reasonable doubt – mitigation matters include offer to remediate site – totality principal applied PROSECUTION – sentencing for offence of land pollution due to deposition of waste – aggravating matters of financial gain and organised criminal activity not established beyond reasonable doubt – mitigation matters include offer to remediate site – totality principal applied PROSECUTION –sentencing of occupier of place used as waste facility without lawful authority – aggravating matters of financial gain and organised criminal activity not established beyond reasonable doubt – mitigation matters include offer to remediate site – totality principal applied
DEVELOPMENT APPLICATION – boarding house development in R2 Low Density Residential zone – State Environmental Planning Policy (Affordable Rental Housing) 2008 – Penshurst Heritage Conservation Area – character of the local area – incursion into tree protection zone
DEVELOPMENT APPLICATION – alterations and additions to an existing building shop – use as a food and drinks premises – permissibility – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – residential – appeal against conditions of consent or terms of approval of modification application – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development – affordable rental housing – community infrastructure contributions – conciliation conference – agreement between parties – orders
BUILDING PRODUCT RECTIFICATION ORDERS – the existing development is an affected building within the meaning of the Building Products (Safety) Act 2017 – it is reasonably practicable to eliminate the safety risk posed by the banned external cladding by removing and replacing the cladding – mitigation measures proposed by the applicant do not adequately minimise the safety risk posed by the banned external cladding
DEVELOPMENT APPLICATION – Seniors living development – residential care facility – whether site compatibility certificate is properly made - whether requirements of site compatibility certificate are satisfied – whether Court can reply upon site compatibility certificate to grant consent – whether the character of the proposed development is compatible with the local environment and surrounding land uses – weight to North District Plan – public interest.
DEVELOPMENT APPLICATION – demolition of existing structures, retention of the existing jetty and construction of a new ramp and pontoon – consent orders – resident objectors
DEVELOPMENT APPLICATION – boarding house development – R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders
APPEAL – alterations and additions to a contributory building in a heritage conservation area – third-storey addition – breach of height and FSR development standards – character of the area – heritage character – adequacy of the request
DEVELOPMENT APPLICATION – use of unauthorised works being a retaining wall – visual amenity BUILDING INFORMATION CERTIFICATE – regularise unauthorised works – streetscape character – visual amenity – landscaping
DEVELOLPMENT APPLICATION – shop top housing development – calculation of the gross floor area in accordance with the definition – exceedance of the height of buildings development standard – desired future character
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees form a hedge – one of the trees is not planted to form a hedge – view obstruction – whether the view obstruction is severe – sunlight obstruction – whether sunlight obstruction is severe – balancing of issues – privacy – orders for pruning
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees form a hedge – trees do not severely obstruct sunlight to a window – one tree severely obstructs the view – orders for removing two trees in the hedge
PRACTICE AND PROCEDURE – parties – appeal by applicant for development consent for designated development – objectors – entitlement to be given notice of appeal – entitlement to be heard at hearing of appeal
ENVIRONMENT AND PLANNING — Environmental planning instruments — Prohibited uses — Undertaking prohibited development — Civil enforcement proceedings — Discretion to grant relief ENVIRONMENT AND PLANNING — Orders — Brothels — Failure to comply with requirements of order — Civil enforcement proceedings — Discretion to grant relief
JUDICIAL REVIEW - First Respondent granted complying development certificate by Sixth Respondent for “landscaping material supplies” on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - Council seeks declaration that the certificate is invalid - necessity for engineer’s certificate of structural stability a prerequisite mandated by cl 5A.27(3)(a) of State Environmental Planning Policy (Exempt And Complying Development Codes) 2008 - no engineer’s certificate provided to Sixth Respondent - first basis of invalidity established - evidence the certificate was not issued by Sixth Respondent but by another certifier purporting to issue the certificate in Sixth Respondent's name - further basis of invalidity of certificate established - First Respondent submits to the making of a declaration of invalidity of the certificate - certificate declared invalid JUDICIAL REVIEW - First Respondent granted second complying development certificate by Sixth Respondent for “warehouse and distribution centre” on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - certificate also authorises construction of roadworks on the properties owned by the Second to Fifth Respondents and on an adjacent property - no owner’s consent from the owner of the adjacent property provided to Sixth Respondent prior to the issuing of the second certificate - Council seeks declaration that the second certificate is invalid - owner’s consent required from the owners of all property where work is to be carried out - absence of owner’s consent for roadworks on land not owned by Second to Fifth Respondents renders second certificate invalid - First Respondent submits to making declaration of invalidity of second certificate - second certificate declared invalid DISCRETION - substantial volumes of fill placed by First Respondent relying on the first and/or second certificate - issues of relief on declarations of invalidity deferred to further hearing - directions made for further hearing
APPEAL – development application – residential flat building – breach of minimum lot size development standard – cl 4.6 – conciliation conference – agreement reached – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – whether the bamboo is planted to form a hedge – view obstruction – whether the view obstruction is severe – balancing of issues – privacy – burden of ongoing pruning orders – resolving the dispute – orders for removing bamboo
APPEAL – development application – residential flat building – breach of FSR development standard conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – mixed use development – affordable rental housing – community infrastructure contributions – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION – mixed use development – affordable rental housing – community infrastructure contributions – conciliation conference – agreement between parties – orders
MODIFICATION APPLICATION – seeking variation of contributions payable on approval of commercial and light industrial development – conciliation – agreement between the parties – orders
JUDICIAL REVIEW ‑ Minister grants development consent to Powerhouse Parramatta ‑ original development application proposes demolition of “Willow Grove” and “St George’s Terrace”, local heritage items listed in the Parramatta Local Environmental Plan 2011 ‑ development modified during environmental impact statement (EIS) submission and consideration process ‑ proposed demolition of “St George’s Terrace” abandoned ‑ final proposal envisages “Willow Grove” will be disassembled and re‑erected at another site ‑ North Parramatta Residents Action Group challenges validity of consent ‑ adequacy of EIS ‑ interaction between cl 7 of Sch 2 of the Environmental Planning and Assessment Regulation 2000 with the Secretary’s Environmental Assessment Requirements (SEARs) ‑ extent of requirement to examine feasible alternative sites ‑ extent of requirement to examine feasible alternative designs retaining “Willow Grove” ‑ whether EIS compliant with cl 7(1)(c) of the Regulation and with the SEARs ‑ if not compliant, was the EIS substantially compliant with the requirements of cl 7(1)(c) of the Regulation and with the SEARs - EIS substantially compliant ‑ Summons dismissed ‑ costs reserved
DEVELOPMENT APPLICATION – construction of residential flat buildings – height standard exceedance – request to vary standard – conciliation conference – agreement between the parties – orders
JUDICIAL REVIEW – Council exercise of power to carry out work the subject of an order s 129(1) LGA – validity of s 22A order issued under s 124 Local Government Act 1993 requiring removal of waste from residential premises – period for compliance with order under s 137 appropriate – no minimum statutory notice period to permit Council to exercise powers under s 678(1) – service of notice by letter sufficient – no requirement by Council to remove and store items of value – no anticipated breach by Council – no jurisdiction to determine allegation of discrimination
DEVELOPMENT APPLICATION – Torrens title subdivision into two lots – dual occupancy development on each resultant lot – insufficient site width – number of storeys – desired future character – poor internal amenity
DEVELOPMENT APPLICATION – proposed subdivision of existing residential lot – no demolition, construction or subdivision works proposed – whether the proposed development will have a detrimental impact on Bovington, a listed heritage item – whether the proposed development will have a detrimental impact on the Cremorne Heritage Conservation Area – variation to minimum lot size – whether the Applicants request to vary the lot size standard should be upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – not shown that applicants have suffered a loss for some damage – orders for fence repair – Part 2A application – obstruction of views – applicants have not lost views – Part 2A application refused
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to boundary fence – trees have caused damage – orders to remove two trees – orders to replace fence – reimbursement for half of survey cost – remainder of application dismissed
APPEAL – local government order 18 – keeping of cats on residential land – keeping of cats for domestic purpose – relevance of previous order pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 – role of policy adopted by Council pursuant to s 159 of the Local Government Act 1993 – offensive odour and offensive noise – annoyance to neighbours – orders
EVIDENCE: whether expert town planning and survey evidence should be permitted in judicial review proceedings where only declaratory relief claimed – whether expert town planning evidence necessary to demonstrate materiality of jurisdictional error – materiality conceded – whether expert survey evidence necessary to establish a jurisdictional fact – no error identified in survey material before the Council at the time it granted the consent – no error identified in the manner in which the Council considered the survey material before it – expert evidence not required. PROCEDURE: application to inspect land the subject of judicial review proceedings – whether inspection of land by town planner and surveyor required – power of the Court to order inspection of land – inspection not required because expert evidence not required.
TREES (DISPUTES BETWEEN NEIGHBOURS) – tree has caused damage – tree is likely to cause further damage – no suitable alternative to tree removal – orders for tree removal
MODIFICATION – Advertising signage – change from printed to digital signage – whether substantially the same development – amenity impact – character compatibility
MODIFICATION APPLICATION – State significant development – modification to increase truck movements and annual quarry product transport limit – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential use – purpose – development for part walls and part roof – CDC approved for alterations and additions – residual buildings demolished prior to DA BUILDING INFORMATION CERTIFICATE – waffle pod footings – relevant controls
ENVIRONMENT AND PLANNING – s 4.1 and 4.2 EP&A Act – development without development consent – whether deck is exempt development – deck exceeds nominated height in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 so is not exempt development – deck requires development consent. ENVIRONMENT AND PLANNING – development requiring consent – installation of stove – no requirement to obtain development consent. ENVIRONMENT AND PLANNING – s 4.3 EP&A Act – prohibited development – whether residential use was an ancillary use – residential use is a separate and independent use – caretaking activities do not alter characterisation of use. DISCRETION – s 9.46 EP&A Act – residential use of premises inconsistent with objectives of zone – regard to length of time applicant has been in residential occupation – regard to evidence of shortage of residential accommodation – operation of orders to be deferred for 12 month period.
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees are planted to form a hedge – obstruction of views – whether the obstruction is severe – application dismissed
DEVELOPMENT APPLICATION – boarding house – building height contravention – imminence and certainty of draft LEP – character compatibility – affect on development potential of adjoining land
MODIFICATION APPLICATION – whether design of proposed driveways is acceptable – whether driveway design retains a functional on street car parking space – whether loss of on street parking is acceptable – application of s 4.15(3A) of E&A Act
DEVELOPMENT APPLICATION – construction of a garage – potential amenity impacts – whether rear setback acceptable – whether car manoeuvrability is acceptable – application of s 4.15(3A) of EP&A Act
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – risk of damage and injury – building near existing tree – tree removal would be disproportionate to the risk – orders for pruning
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – whether trees are likely to cause damage – Part 2A application – obstruction of views and sunlight – orders for pruning
DEVELOPMENT APPLICATION – mixed use development – affordable rental housing – community infrastructure contributions – conciliation conference – agreement between parties – orders
APPEAL – subdivision – refusal of development consent – proposed subdivision inconsistent with development control plan – planned local street and bus route not provided – weight to be given to development control plan – insufficient justification for inconsistency with development control plan – no reasonable alternative solution proposed in development application – unacceptable impacts on endangered ecological community and koala feed trees
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a boarding house – site located in R3 Medium Density Residential zone – whether the proposed development exhibits design excellence
DEVELOPMENT APPLICATION – use of unauthorised works being a secondary dwelling and garage – consistency with character and context – visual privacy – bulk and scale – landscaping BUILDING INFORMATION CERTIFICATE – regularise unauthorised works and propose new works – bulk and scale – character – visual amenity
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage to a retaining wall – whether damage has been caused by the tree – whether previous orders would prevent investigation of damage
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – damage not demonstrated – risk of injury – one tree on a boundary – orders for pruning and inspection
ENVIRONMENTAL OFFENCES: defendant charged with water offences in four separate summonses – whether summonses bad for duplicity – whether it is duplicitous to plead two alternative offences in the one summons – whether it is duplicitous to plead alternative formulations of liability within the one summons – whether offending conduct comprises a single criminal enterprise – whether offences not known to law – whether summonses amenable to amendment – applicable legal principles – one summons bad for duplicity.
APPEAL - Applicant held an Environment Protection Licence (EPL) for a waste storage and resource recovery facility - was Environment Protection Authority (EPA) revoked the EPL when the facility no longer held valid development consent - the EPA attached conditions to the revoked EPL – conditions required removal of 6,860 cubic metres of waste by a specified date - the Applicant had lodged a $250,000 financial surety with the EPA - the Applicant requests variation of the revocation conditions to permit a staged release of the financial surety to fund removal of the waste - Applicant impecunious and unable to fund removal of the waste - the EPA rejects request - the Applicant commences proceedings challenging the refusal - EPA seeks dismissal of the proceedings on the basis that the Applicant’s request is not capable of appeal - request not an application giving rise to appealable decision - appeal dismissed NOTICE OF MOTION - Applicant’s EPL revoked in 2018 - the Applicant commences proceedings challenging the EPA’s revocation conditions - proceedings referred to a conciliation conference - conciliation conference results in agreement to amend the revocation conditions - revocation conditions required the Applicant to remove all remaining waste by 21 September 2019 - the conciliation agreement extended time for completion of removal of waste by three months - Applicant unable to finance removal of the waste - waste not removed as required - in February 2021, Applicant seeks extension of deadline for removal until September 2023 - EPA opposes extension on the basis that the Court has no power to approve it - held that there is power to approve the amendments - EPA opposes the extension on the basis of no realistic possibility that removal of the waste would be effected if time extended - consideration of the Applicant's financial circumstances - Applicant impecunious -consideration of possibility of improvement in the Applicant's financial circumstances - asserted improvement in the Applicant's financial circumstances speculative as to the nature, timing and quantum - no realistic prospect of change in Applicant’s financial circumstances permitting removal of the waste if extension of time granted - application for extension of time refused COSTS - EPA agrees not to seek costs in the financial surety release proceedings - EPA reserves its position with respect to costs concerning the time extension proceedings - no order for costs in the financial surety release proceedings - costs reserved in the time extension proceedings
DEVELOPMENT APPEAL – use of as built enclosed balconies as winter gardens – bulk and scale – heritage conservation area – Floor Space Ratio – cl 4.6 written request for development application for use – orders BUILDING INFORMATION CERTIFICATE APPEAL – notional assessment – orders
DEVELOPMENT CONSENT – appeal against conditions of consent and proposed additional works – alterations and additions to an existing building – local heritage item – impact on the heritage significance of the item
DEVELOPMENT APPLICATION – subdivision of existing lot into two lots – minimum lot size – proposed lots are undersized – consideration of clause 4.6 written request
DEVELOPMENT APPLICATION – Concept development application – mixed use development – consideration of public submissions – voluntary planning agreement – orders
DEVELOPMENT APPLICATION to create an additional suite on the roof level of an existing hotel – clause 4.6 – Development adjacent Items of Environmental Heritage - Design Excellence
DEVELOPMENT APPLICATION – alterations and additions to boarding house development – whether the proposed development will have an acceptable impact on the heritage significance of the heritage item
CIVIL ENFORCEMENT – no breach of Environmental Planning and Assessment Act 1979 (NSW) in operation of transitional group home without development consent – characterisation of purpose of activity at residential property in environmental living zone – transitional group home carried out on behalf of a public authority – summons dismissed
DEVELOPMENT APPLICATION – application seeking consent for the demolition of existing structures and the construction of a part five and part six-storey residential flat building – site isolation – whether proposed development isolates adjoining corner lot – the relevance of planning principles in the assessment process
COSTS - successful Applicant in Class 1 proceedings awarded costs on an ordinary basis as being “fair and reasonable” in light of the outcome of those proceedings - successful Applicant seeks costs order be made on the indemnity basis - consideration of settlement offers made - first offer lacked precision - second offer made on an “open offer” basis (and rejected) provides a proper foundation to award costs on the indemnity basis after the expiry of the offer - Respondent ordered to pay the Applicant's costs of the indemnity from the date of refusal of the Applicant’s second offer COSTS - complaint that two‑step approach in seeking a costs order on the indemnity basis was procedurally unfair - two‑step approach necessary to establish an outcome against which rejected offers could be measured - no procedural unfairness - costs of costs applications ordinarily follow the event - costs of costs applications usually awarded on the ordinary basis - no reason to depart from these positions - Respondent ordered to pay the Applicant's costs of the indemnity costs application as agreed or assessed
DEVELOPMENT APPLICATION – sex services premises – cl 4.6 variation to landscaped area – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – s 4.22 Concept Development Applications – Stage 1 development application – Sydney Harbour Catchment Strategic Foreshore Site – height exceedance – clause 4.6 written request – Sydney Harbour foreshore walk – cultural heritage significance – impact on heritage significance of item – adaptive reuse
DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
COMPULSORY ACQUISITION – compensation – assessment – s 55(f) Land Acquisition (Just Terms Compensation) Act 1991 – service station use – determination of value by reference to business earnings – determination of appropriate valuation approach – length of lease for purposes of hypothetical transaction – whether hypothetical purchaser is an independent or networked operator of service stations – date of public purpose manifesting impact on subject property COMPULSORY ACQUISITION – compensation – assessment – disturbance – legal fees – valuation costs
LOCAL GOVERNMENT – s 59A Local Government Act – Council works – sewerage work – whether new works are to “replace” existing works for s 59A(2) – construction of s 59A – proposed works are new works
DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – amended plans – conciliation conference – agreement between the parties – orders