DEVELOPMENT APPLICATION – multi-dwelling development – minimum lot size non-compliance – height non-compliance – cl 4.6 written request –conciliation conference – agreement between the parties – orders
COSTS – motion by applicant seeking orders that each of the two motions filed by the respondent be dismissed and an order that the respondent pay the applicant’s costs in relation to the motions on an indemnity basis – whether costs should be awarded in the applicant’s favour – motion dismissed – no order for costs
DEVELOPMENT APPLICANTION – removal and replacement of fence structures – conciliation conference – agreement between the parties – orders
NOTICE OF MOTION – application to amend the Court’s orders to allow for correct case name, parties name references and condition of consent – Uniform Civil Procedure Rules – rule 36.16(3A)
APPEAL - proposed medium density residential development - impact of development on views - amendment to proposed development provides appropriate amelioration of view loss from one potentially impacted dwelling - view impacts from other potentially impacted dwellings acceptable - impact on critically endangered ecological community known as Eastern Suburbs Banksia Scrub - protection of connectivity of endangered community with other remnant vegetation - redesign of development to improve conductivity - rehabilitation of portion of the site to re-establish endangered ecological community - balancing present loss of endangered ecological community with future increase in area through re‑establishment on portion of the site - future protection of endangered ecological community by public positive covenant in favour of the Council requiring Revised Vegetation Management Plan and Fire Management Plan - future benefits for endangered ecological community outweigh immediate impact - revised development appropriate to be approved subject to settlement of relevant documents including public positive covenant in favour of the Council - directions given to permit preparation of settled plans and documents as a basis for giving of development consent.
JUDICIAL REVIEW – construction of condition of development consent granted in 2004 concerning amount of material that can be extracted from quarry – no ambiguity in development consent condition
JUDICIAL REVIEW – variation of environment protection licence based on legal error – variation set aside
DEVELOPMENT APPLICATION – alterations and additions to an existing building listed as a local heritage item – change of use of the first floor to retail – impact on the heritage significance of the heritage item.
DEVELOPMENT APPLICATION – addition of a rear deck on the second floor of a terrace house – impact on the heritage significance of the heritage conservation area – impact on the amenity of the northern neighbour
APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld
MINERAL CLAIMS - dispute concerning opal mining on three Mineral Claims in the Lightning Ridge region - arrangement between Applicant and First Respondent to undertake mining activities - arrangement based on profit share of opal won - Applicant to contribute mining equipment and labour whilst First Respondent contributed Mineral Claims - First Respondent unilaterally terminates arrangement - characterisation of the arrangement - arrangement was not a partnership - dispute as to terms under which the arrangement operated - First Respondent's version of terms for the arrangement not accepted - First Respondent's termination of the arrangement unlawful - not practical to reinstate arrangement - appropriate remedy to transfer one Mineral Claim to the Applicant - First Respondent ordered to transfer Mineral Claim to the Applicant
MINERAL CLAIMS - First Respondent holder of two Mineral Claims - issue of whether arrangement between Applicant and First Respondent extended to mining both claims or merely the first claim upon which mining had commenced - purported sale of one Mineral Claim to Second Respondent - sale a sham - arrangement between Applicant and First Respondent encompassed mining of both Mineral Claims - appropriate to resolve the dispute between the Applicant and First Respondent on the basis that the First Respondent retained ownership of one Mineral Claim and beneficial ownership of the second Mineral Claim.
MINERAL CLAIMS - First Respondent blockades Applicant’s mining equipment in underground workings - equipment detained for ~ 327 days - detention arose as part of dispute over unlawful termination of mining arrangement - claim for damages for detention of equipment - Applicant’s equipment detained unlawfully by actions of the First Respondent - opal mining inherently speculative and no proper basis available to calculate compensation for unlawful detention of mining equipment - compensation claim dismissed
MINING EQUIPMENT - specialist equipment known as a Super Digger used for underground opal mining - Super Digger owned by the Applicant - desire of the First Respondent to have similar equipment constructed for his own purposes - necessity to have Applicant’s Super Digger measured for those purposes - dispute between the Applicant and First Respondent over costs of works undertaken to the Super Digger - Applicant's evidence preferred - First Respondent ordered to pay $10,000 to Applicant
EVIDENCE - evidentiary conflict between Applicant and First Respondent - limited corroborative evidence - First Respondent's evidence untruthful or unreliable in a number of respects - evidence of Applicant to be preferred over that of the First Respondent unless First Respondent's evidence independently satisfactorily corroborated
COSTS - although Applicant not entirely successful, no basis warranting apportionment of costs - Second Respondent (nominal owner of one transferred Mineral Claim) played no active part in proceedings - appropriate to order that First Respondent pay the Applicant’s costs as agreed or assessed unless some alternative costs order is sought within 14 days
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the first earlier proceedings (concerning Court orders made in 2015) related to accumulation of waste on residential premises - unsafe outbuilding on the property - and potential safety risks arising from unconstrained vegetation growing over the roof of the dwelling on the property - orders made in 2015 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out - order for waste removal exhausted - order for removal of unsafe outbuilding not satisfied - order for removal of vegetation partially satisfied - challenge to ongoing validity of unfulfilled orders - unfulfilled orders remain valid - order that the respondents refrain from keeping further waste on the property - clear from the site inspection that that order has been breached and there is presently a significant accumulation of waste on the property - no current order that would permit access to the property to rectify the breach - appropriate to provide an opportunity for the Council to seek a further access order to rectify breach - proceedings adjourned to provide Council with an opportunity to seek access orders
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the second earlier proceedings (concerning Court orders made in 2018) related to accumulation of waste on residential premises - Court orders made in 2018 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out in February 2019 - Council serves notices of intention to undertake further waste removal following additional accumulation of waste since February 2019 clean-up - notices based on asserted continuing operation of Order 22A of table to s 124 of the Local Government Act 1993 issued to the applicants on 22 November 2017 - was the 22A Order for waste removal exhausted? - terms of order were to remove waste within 28 days - the 22A Order did not require those to whom the order was issued to refrain from keeping waste on the premises - the 22A Order is exhausted - no basis for the Council to rely on the 22A Order for further waste removal activities - declaration appropriate and orders to restrain the Council from undertaking further clean-up activities in reliance on the Order 22A issued to the applicants on 22 November 2017
COSTS - costs reserved.
ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved
ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved.
DEVELOPMENT APPLICATION – multi-dwelling development – flood risk – reliance on evacuation plan with safe egress - tree protection plan – absence of root mapping – character and streetscape consistency
PRACTICE AND PROCEDURE – notice of motion filed by the applicant seeking leave to re-open case after receiving evidence and hearing argument in relation to an earlier notice of motion filed by the applicant seeking urgent interlocutory relief – motion dismissed
MODIFICATION APPLICATION – developer contributions – conditions require public road to be constructed over land dedicated as a laneway – agreed material public benefit – whether there is power to amend the contribution – basis for reducing contribution
ENVIRONMENTAL OFFENCES: plea of guilty by a company to offence of contravening a condition of its environment protection licence – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – use of and weight to be given to the good character of an environmental offender - examination of comparable cases – purpose of a publication order – manner and extent of publication notice – publication order made – monetary penalty imposed.
CIVIL ENFORCEMENT – use of land as a place of public worship – existing use – characterisation of use – place of public worship – whether use has been expanded, enlarged or intensified – enlargement of use
JUDICIAL REVIEW – validity of complying development certificate titled “Masterplan CDC” for land zoned industrial – whether proceedings statute barred – staged development cannot be subject of complying development certificate – development subject of Masterplan CDC impermissibly designated development – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development
JUDICIAL REVIEW – validity of two modifications of Masterplan CDC – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development
CIVIL ENFORCEMENT – deposition of fill without development consent – unauthorised deposition of fill in neighbouring council reserves – inadequate or no sediment and erosion control measures in place for fill deposition
CIVIL ENFORCEMENT – operation of resource recovery facility on land without development consent
CIVIL ENFORCEMENT – water pollution – fill and sediment deposited in creeks in neighbouring council reserves – respondent owner was occupier and arranged for fill to be placed
CIVIL ENFORCEMENT – substantial remedial orders sought – exercise of discretion whether to make declarations and remedial orders where substantial delay in commencement of enforcement proceedings by council
ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’
LAND AND ENVIRONMENT COURT – Jurisdiction and Powers – Class 4 – Heritage Act – Interim Heritage Order – statutory authorisation – local council – statutory construction – conditions of minister’s authority under Heritage Act – discretionary powers – invalidity
INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – threatened species – flood risk – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – motion dismissed
DEVELOPMENT APPLICATION – boarding house – whether the proposal is compatible with the character of the local area – the proposal does not meet the parking standard – overshadowing of adjoining property – impact on views across the site – amenity of boarding rooms – vicinity of heritage conservation areas and impact on setting – management of tandem car parking
NOTICE OF MOTION – deemed refusal of application to modify development consent which provided for use of land as a brothel subject to a two-year trial period – modification sought a continuation of the use on a permanent basis – motion filed by applicant to strike out sole contention in respondent’s statement of facts and contentions and vacate conciliation conference listed – motion dismissed – conciliation conference listing vacated
PROSECUTION – plea of not guilty to charge of unlawful clearing of native vegetation – three pre-trial applications by Defendant – order to stay part of charge period as authorised officer aware of clearing earlier than stated in amended summons – order that part of charge period statute barred as evidence does not disclose continuing offence – order preventing reliance on admissions by Defendant in related Class 4 and Class 1 proceedings – no orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – bamboo – obstruction of sunlight – the bamboo is not planted so as to form a hedge – other tree in the application is a single tree – Part 2A only applies to groups of two or more trees
PROCEDURE: application to set aside subpoenas and a notice to produce—whether oppressive—whether lacking any legitimate forensic purpose—applicable legal principles—application dismissed.
EVIDENCE: whether a claim for legal professional privilege or without prejudice privilege is a proper basis to set aside subpoenas and a notice to produce—exceptions to claim of privilege to communications made to further an illegal purpose—loss of privilege where joint-retainer—loss of privilege by reason of waiver—privileges not established.
DEVELOPMENT APPLICATION – whether the location of the site outside the area identified as a hazard risk from the Botany Industrial Park is suitable for residential intensification – (or where the Council “considers” the site to be located adjacent to Denison Street, a mapped Dangerous Goods Route and deemed to be within the identified area) – whether the site is suitable for multi dwelling development – the public interest
ORDERS - enforcement - discretion - balancing of factors as to whether appropriate to require compliance - undertakings offered by Respondent - undertakings appropriate to circumstances - discretion exercised not to enforce orders - summons dismissed - presumption that costs follow the event - no basis to depart from that presumption - costs ordered in favour of Respondent
JUDGMENTS AND ORDERS – exercise of liberty to apply to enforce earlier orders made giving effect to strata renewal plan – appointment of trustee to one lot where non-compliance by owner with requirement to execute contract of sale of lot – costs considered
DEVELOPMENT APPLICATION – construction of an industrial shed – whether the proposed development generally accords with the provisions of an indicative layout plan (ILP) in Camden Growth Centres DCP – suitability of the subject site for the proposed development – mitigation of potential contamination risks on the subject site – contributions payable under the provisions of s 7.11 of the EP&A Act – application of Camden Growth Centres Contributions Plan
DEVELOPMENT APPLICATION – boarding house – breach of LEP height and FSR standards – whether cl 4.6 written request required in light of cl 29(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 – desired character – height transition to adjacent development
APPEAL - appeal against Commissioner's refusal of development application for seniors living project - appeal confined to question of law - Commissioner dismissed the development appeal on the basis of failure to satisfy a precondition set by State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (the SEPP) - matter not raised in the Council’s contentions - Applicant proposed a condition of consent to satisfy requirement - Commissioner's request for further submissions did not request submissions as to whether a condition could satisfy the requirements of the SEPP - Commissioner dismissed the appeal without providing the parties with an opportunity to make submissions as to why a condition could provide a proper basis to satisfy the provision - Applicant complains of denial of procedural fairness in circumstances where, in earlier unrelated proceedings, the same Commissioner had accepted a condition of consent in near identical wording to the proposed condition to satisfy the same provision in the SEPP - procedural fairness denied to the Applicant - appeal upheld
DEVELOPMENT APPLICATION - approval of the proposed development required a site compatibility certificate - without a current site compatibility certificate, the proposed development was prohibited - the proposed development had been given a site compatibility certificate but it had expired as at the date of this appeal against the Commissioner's decision - no basis upon which the Court would have power utilising s 39(2) of the Land and Environment Court Act 1979 (the Court Act) to consider whether to issue a fresh site compatibility certificate - in the absence of a current site compatibility certificate, there is no development application capable of approval - remitter to Commissioner futile - appropriate course to exercise power pursuant to s 56A(2)(b) of the Court Act to determine the proceedings by refusal of development consent - Class 1 appeal dismissed and proposed development refused development consent.
JOINDER - Notice of Motion seeking setting aside of costs order made concerning costs thrown away as a result of ex parte application requiring vacation of conciliation conference process - no basis to disturb costs order for costs thrown away made against moving party seeking joinder - application for joinder successful - applicant for joinder seeks costs of hearing at which joinder was granted - basis for consideration of costs application - application for costs to be determined on the basis of application of Land and Environment Court Rules 2007 requiring that it be “fair and reasonable” to make costs order in favour of successful party - not fair and reasonable to make costs order in favour of successful applicant for joinder - costs application dismissed
COSTS - costs of Notice of Motion seeking costs orders - costs’ proceedings not subject to “fair and reasonable” test in Land and Environment Court Rules 2007 - costs of costs applications usually dealt with on the basis that costs follow the event - no basis to depart from that position in these proceedings - applicant for joinder ordered to pay costs as agreed or assessed of the Applicant and of the First Respondent of the costs Notice of Motion
CRIMINAL OFFENCES: whether entry of guilty pleas amenable to correction under slip rule – application of slip rule to criminal proceedings in Class 5 of the Court’s jurisdiction – scope of slip rule – entry of plea of guilty not amenable to correction under slip rule because it is not a judgment or order of the Court.
BIAS: whether the judge hearing the notice of motion ought recuse herself on the grounds of apprehended bias by reason of prejudgement – test for apprehended bias – whether application for recusal should be adjourned to allow the party making the application the opportunity to obtain the transcript – application for adjournment refused – application for recusal dismissed.
CRIMINAL OFFENCES: whether commencement of criminal proceedings time barred — onus of proof — proper construction of statutory time bar — whether prosecutor had to elect which time period applied to commencement of proceedings — meaning of “any act or omission constituting the offence” —proceedings commenced within time.
DEVELOPMENT APPLICATION – dwelling alterations and additions including additional storey – whether compliant with LEP development standards of wall height and FSR – whether clause 4.6 written requests required – side setback non-compliances – bulk and scale – view impacts – privacy impacts – streetscape impacts – whether adjournment should be allowed for clause 4.6 request – request for ‘amber light’ consideration
CIVIL ENFORCEMENT – failure to comply with an order issued under s 124 of the Local Government Act 1993 (NSW) to remove accumulations of articles from outside a residential premises – further time granted to enable the parties to agree to a list of items for removal divided into nominated areas with associated deadlines – proceedings adjourned for the making of final orders – final orders made
APPEAL – refusal of development consent for water bottling facility at greater rate than approved in existing operation in rural landscape zone – greatly increased traffic impact on amenity and safety – impact of water extraction on natural systems
APPEAL – refusal of development consent for water bottling facility at greater rate than existing operation in rural landscape zone – increased traffic impact on amenity and road safety – impact of water extraction on natural systems
APPEAL – development control order to stop use of and demolition of unlawful tanks and pipes and limit extraction of water – exercise of discretion under s 8.18 of Environmental Planning and Assessment Act 1979
DEVELOPMENT APPLICATION – seniors housing development – calculation of the rear 25% setback on an irregularly shaped parcel of land – whether the built form of the proposal maintains reasonable neighbourhood amenity and appropriate residential character
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – debris – television antenna and fence damaged – sewer blocked – structural damage to dwelling – compensation sought – lack of evidence regarding causation – orders for pruning
LOCAL GOVERNMENT RATING - system of categorisation for rating purposes - applications for re‑categorisation from business to residential - Council approves re-categorisation from 1 July 2017 - each application sought an earlier (but different in each proceedings) effective date for the re-categorisation - appeals against the Council’s operative date for re‑categorisation - range of issues, including jurisdictional ones, raised by the Council - consideration of whether, taking each case for the relevant owning company at its highest on jurisdictional and legal issues, it was appropriate, is a matter of discretion, to award the extent of retrospectivity which would arise from the operative dates sought by each owning company - as a matter of discretion, not appropriate to order earlier operative date for each re-categorisation - each proceedings dismissed with costs reserved.
CIVIL ENFORCEMENT: construction of a large garage on a concrete slab in a suburban neighbourhood absent necessary consent – whether garage and slab should be demolished – consideration of discretionary factors to grant relief sought – declaratory relief and demolition ordered.
APPLICATION TO VACATE – application made on first scheduled hearing day – prior warning of need for timely application if to be made – no valid complaints concerning service of documents – no valid basis for application to vacate – application dismissed.
DEVELOPMENT APPLICATION – site compatibility certificate – seniors housing – provisions of services – access to community services and recreation facilities – residential aged care – primary production small lots zone
LAND AND ENVIRONMENT COURT – jurisdiction and power – issue of a construction certificate – approval under section 138 of the Roads Act 1993 – refusal by Roads and Maritime Services to grant concurrence – statutory interpretation of section 39 of the Land and Environment Court Act 1979
ENVIRONMENT AND PLANNING - Land and Environment Court - Class 3 - valuation - procedure - notice of motion - subpoena - objection to production of documents or things - legal professional privilege - dominant purpose - access granted to some documents
ENVIRONMENTAL OFFENCES – executive liability offence - person concerned in the management of a company which caused a place to be used as a waste facility without lawful authority contrary to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW)
SENTENCING – appropriate sentence for the offence – determination of the objective seriousness of the offence and subjective circumstances of the defendant – lower level of objective seriousness – consideration of s 6 of the Fines Act 1996 (NSW)
DEVELOPMENT APPLICATION – Residential subdivision – variation to lot size control sought – whether compliance with the control is unreasonable or unnecessary – sufficiency of environmental planning grounds to justify variation – appeal dismissed
CRIMINAL OFFENCES: voir dire as to the admissibility of a record of interview in criminal proceedings – whether evidence inadmissible by reason of a failure of the council to advise the accused of his privilege against self-incrimination as required under statute – whether accused required to answer questions or whether interview voluntary.
EVIDENCE: whether record of interview was illegally or improperly obtained – whether admissions contained in record of interview should be excluded on discretionary grounds.
DEVELOPMENT APPLICATION –expansion of seniors housing development – serviced self-care housing – suitability of the site for the development – certainty of road works in North Creek Road – provision of safe sight distance at new intersection – site compatibility certificate – priority oyster aquaculture area – impact of development on adjoining neighbours – mosquito management – impacts on ecology – public interest – appeal upheld
APPEAL – development application – farm stay accommodation – dwelling house – rural development – permissibility of farm stay accommodation – aboriginal cultural heritage impacts unknown – bulk and scale of the development – scale and siting of principal dwelling – large dwelling on side of the ridge – whether conspicuous in the landscape – whether protects and maintains scenic rural landscapes and low density residential character
COSTS – applicant non-profit association unsuccessful in judicial review proceedings challenging approval of concept plan and stage 1 works for Sydney Football Stadium – proceedings in public interest – two grounds of review important in legal and/or environmental sense – no countervailing circumstances – departure from usual costs rule that costs follow the event warranted – each party to pay its own costs
COSTS – applicant local council challenging approval of concept plan and stage 1 works for Sydney Football Stadium – one ground alleging failure to consider design excellence unsuccessful – proceedings in public interest – important ground of review – no countervailing circumstances – departure from usual costs rule that costs follow the event warranted – each party to pay its own costs
TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of the land – damage – fig trees planted near boundary – trees are restricting use of the land – whether trees are causing damage to the applicant’s property
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – application concerns two hedges on two neighbouring properties – bamboo – obstruction of view – whether the trees are severely obstructing a view – privacy – whether the view was available to the applicant before the hedge grew
ENVIRONMENTAL OFFENCES: breach of environmental protection license condition – plea of guilty – incorrect calculation of emission rate of methyl bromide and phosphine during fumigation – sentencing principles – determination of the objective seriousness of the offence – no actual environmental harm – low potential for harm to the environment and human health – subjective circumstances of the defendant – no prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs ordered.
ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – discretionary – civil procedure - adjournment – applicant change of solicitors and counsel – dictates of justice – interlocutory relief – best endeavours of applicant – motion granted
CONTEMPT - carry out development without consent - Class 4 proceedings leading to orders to demolish and remove unauthorised development - orders not complied with - contempt proceedings commenced - First Respondent found guilty of contempt - further compliance orders made requiring First Respondent to demolish and remove material within further period of time - sentencing hearing deferred to permit First Respondent to comply with further order - substituted performance order made in favour of the Applicant - substituted performance order mandated the Applicant to demolish and remove if First Respondent did not do so - First Respondent failed to comply within further period of time - Applicant failed to carry out mandated substituted performance requirement - First Respondent and Applicant both in breach of court orders - sentencing hearing for First Respondent - Applicant seeks order to extend the time for mandated substituted performance - extension granted - no participation by First Respondent in sentencing hearing - First Respondent completes demolition and removal of unauthorised structures - Applicant no longer presses that the First Respondent be punished for contempt - Applicant proposes that, other than as to costs, the Applicant’s contempt motion be dismissed
COSTS - appropriate to order that the First Respondent pay the Applicant’s costs on the ordinary basis up to and including the sentencing hearing together with those of the finalisation hearing - not appropriate to require the First Respondent to pay the costs of the two hearings required to address the failure of the Applicant to carry out the mandated substituted performance order - appropriateness of a gross sum costs order to finalise the proceedings - the First Respondent ordered to pay the Applicant’s costs in the gross sum of $23,083.80.
CONTEMPT - Class 4 proceedings for development without consent - matter referred to mediation - Consent Orders setting timetable for removal of waste material and demolition and removal of unauthorised dwelling - orders included provisions for substituted performance - no compliance with removal orders by Respondent - Respondent charged with contempt - Council undertakes substituted performance to clean up the site and remove the unauthorised dwelling - consideration of the Respondent's subjective circumstances - appropriate starting penalty a fine of $15,000 - Respondent's plea of guilty - appropriate to give 15% discount for plea - consideration of Respondent's financial circumstances - regard had to the extent of the Council’s costs to be ordered to be paid by the Respondent - requirement for the Respondent to reimburse the Council for the costs of the clean-up - appropriate to permit the Respondent 90 days in which to reimburse the Council the costs of the clean-up - Respondent fined $1,000.
COSTS - appropriate to require the Respondent to pay the Council’s costs of the contempt proceedings on the indemnity basis - consideration of time to pay - appropriate to permit the Respondent 90 days within which to pay the Council’s costs - costs order made as a gross sum order pursuant to s 98(4)(c) of the Civil Procedure Act 2005
SENTENCING – pleas of guilty to four charges of emission of offensive odour from WestConnex construction site at St Peters – odour from exposure of leachate as result of road project requirements following heavy rain – offensive odours lasting several hours throughout neighbouring residential areas – mitigating factors considered
APPEAL – modification application – deletion of deferred commencement conditions that require easement for drainage over downstream property – stormwater design proposes drainage to street frontage – adequacy of proposed stormwater design – development control plan provisions – whether flexibility should be afforded when standards in the development control plan are not met
ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure - notice of motion - extension of time – commencement of proceedings – judicial review – development consent – exercise of discretionary powers – public interest – leave granted
SEPARATE QUESTION: whether to order a separate question – legal principles to be applied – question if answered negatively would be entirely dispositive of the proceedings – delay in making the application – substantial savings in costs and time – separate question ordered – parties not entitled to cease preparing for final hearing pending determination of separate question thereby causing potential vacation of hearing dates.
ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers –Discretionary powers – stay of proceedings – temporary – Notice of Motion to extend stay of orders to enable State Significant Development (SSD) process to be completed – ongoing breach of planning and environment laws – importance of upholding planning and environment laws – impact on the community – impact upon employees and third parties – Notice of Motion dismissed
DEVELOPMENT APPLICATION – appeal against Council’s deemed refusal of development application for demolition of existing structures and construction of shop top housing and residential flat buildings above commercial premises over basement car parking – cl 4.6 written request seeking to exceed the height development standard – consideration of further material and amended plans – appeal upheld – development consent granted subject to conditions of consent
DEVELOPMENT APPLICATION – alterations and additions including an additional level to a development for which consent has been granted but has not yet been constructed – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards have not demonstrated that compliance with the development standards is unreasonable or unnecessary to justify the contravention.
DEVELOPMENT APPLICATION - seniors living development - development proposed for the site of Waverley Bowling Club - site compatibility certificate issued rendering development permissible - most merit issues resolved by agreement between the experts resulting in significant amendments to the proposal - amended proposal not compliant with development standards for height and floor space ratio in Waverley Local Environmental Plan 2012 (the LEP) - issue of whether or not State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, renders it unnecessary for there to be a request pursuant to cl 4.6 of the LEP to dispense with compliance with those development standards - request pursuant to cl 4.6 not required - remaining merit issue concerned the proposed height of a seven storey building in the northwest corner of the site - merit consideration of the contextual appropriateness of this building - building as proposed not acceptable - building to be rendered acceptable by removal of one residential level and reduction of the footprint of the penultimate residential level - appropriate to grant development consent when agreed revised plans and conditions provided - directions to permit this to occur