APPEAL – development application – orderly development of land, staged Torrens title subdivision, possible future road widening, integrated development
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether the tree has caused damage – whether the tree must be removed – who should pay the cost of removing the tree – whether the applicants should be compensated for property damage
ENVIRONMENT AND PLANNING — Practice and procedure — Judicial review proceedings transferred from the Supreme Court of NSW to the Land and Environment Court of NSW — Whether judicial review proceedings transferred from the Supreme Court of NSW should be heard with the merits review proceedings commenced in the Land and Environment Court of NSW — Merits review proceedings to be heard together with judicial review proceedings in the Land and Environment Court of NSW
APPEAL – development application – transitional group home – drug and alcohol rehabilitation facility – relationship to existing approved tourist accommodation – social impact concerns – conflicting land use concerns – zone objective consistency – lay objections – trial period
DEVELOPMENT APPLICATION: residential apartment development – residential flat building in R1 General Residential zone – conciliation conference – agreement between parties - orders
LAND LAW — Strata title — Strata Renewal Plan — Application for joinder — s 181(6) of the Strata Schemes Development Act 2015 (NSW) — r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) — joinder granted COSTS — costs reserved
COSTS – award of costs to applicant council in interlocutory proceedings following unsuccessful notice of motion seeking to change terms of undertaking by respondents
DEVELOPMENT APPLICATION – semi-detached residential dwellings – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a residential flat building – exceedance of the height of buildings standard – exceedance of the floor space ratio standard – amenity of adjoining properties
SENTENCING – civil contempt arising from breach of court orders – sentencing following plea of not guilty – fine imposed – indemnity costs ordered –gross sum costs ordered – orders for substituted performance made
JUDICIAL REVIEW: validity of election to Local Aboriginal Land Council – administrative error resulted in candidate being left off the ballot – councillor elected unopposed – challenge to election result not brought within time – whether Court has discretion to extend time – whether challenge time barred – whether Court has the power to grant the relief sought, including declaring invalid the disputed return – whether Court should exercise its discretion and grant the relief sought – materiality of inadvertent administrative error – application dismissed. STATUTORY CONSTRUCTION: construction of time limitation within which to challenge election results – whether provision to be construed as affording the Court a discretion to extend time – whether any other provision permits Court to extend time – neither text, context nor purpose supports a construction affording the Court a discretion to extend time to bring challenge.
APPEAL – development application – subdivision of land creating 15 Torrens title lots, construction of three dual occupancies and 15 attached dwellings and associated site works – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION: alterations and additions to a residential dwelling – conciliation conference – amended plans – agreement between the parties – orders made.
APPEAL – development application – construction of a 94-place centre-based childcare facility with associated carparking, landscaping and ancillary works – conciliation conference – agreement between the parties – orders
ENVIRONMENT AND PLANNING — Offences — failure to comply with condition of environment protection licence — defendant charged under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) — condition to carry out licensed activities in a competent manner — meaning of “competent manner” — construction of condition of environment protection licence — meaning of “licensed activity” ENVIRONMENT AND PLANNING — Offences — defendant charged under s 140(1) of the Protection of the Environment Operations Act 1997 (NSW) — emission of noise — meaning of “proper and efficient manner”
COMPULSORY ACQUISITION – Compensation to be paid in respect of leasehold interest over three areas of parkland that are Crown Land to the Crown land manager – Section 2.24 of Crown Land Management Act 2016 – Claim under s 2.24(3)(b) of CLM Act – Competing valuation methodologies applied to loss attributable to the reduction in public benefit from loss of public open space arising from acquisition – Recreational value – Claim under s 2.24(3)(d) rejected – Claim under s 2.24(3)(e) for disturbance under section 59(1)(f) of Land Acquisition (Just Terms Compensation) Act 1991 – Costs of reinstatement rejected
JUDICIAL REVIEW — Judicial review — Judicial review of council decision — Class 4 — Whether there had been a failure to consider mandatory matters — Whether failure to consider environmental planning instrument — Wingecarribee Local Environmental Plan 2010 — Flood planning issues — Whether failure to consider public submissions — Whether the Court should grant conditional validity pursuant to s 25B of the Land and Environment Court Act 1979 (NSW) — Development consent invalid due to a failure to consider environmental planning instrument
APPEAL – development application – development consent sought for the demolition of existing structures, removal of two trees and construction of a 2-storey dwelling house with a double garage, swimming pool and associated landscaping – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – child care centre – compliant development - traffic and pedestrian safety – deferred commencement condition sought by council regarding pedestrian refuge – expert evidence – orders
APPEAL – modification application – modification of vehicular access provisions to approved dwelling and detached garage – environmentally sensitive land – whether approval under s 138 of the Roads Act 1993 already given – vehicular access construction responsibility – vehicular access maintenance responsibility – whether Council responsible for removal of vegetation in road reservation for vehicular access – whether Council responsible for removal of vegetation in road reservation for bushfire safety purposes
DEVELOPMENT APPLICATION: residential apartment development in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – damage to concrete strip and terracotta pipes proven – leaves, small sticks, and tree seedlings in gutters – reasonable maintenance
TREES (DISPUTES BETWEEN NEIGHBOURS) –application seeks orders by consent – whether the Court can and should make the consent orders – damage caused by neighbouring trees – risk of damage and injury – whether tree removal is required to repair damage and to prevent further damage or prevent injury – whether orders can be made to repair property on the respondent’s land – orders for tree pruning
MODIFICATION APPLICATION – s 4.55(8) application to the Court to modify a development consent granted by the Court – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential towers above an existing podium – the proposal does not exhibit design excellence – inadequate side setbacks and building separation – inadequate solar access – detrimental internal amenity impacts
DEVELOPMENT APPLICATION – demolition and construction of a two storey 86-place childcare centre – conciliation conference – agreement between the parties – orders made.
APPEAL — Appeal on a question of law — Appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) — Appeal against a Commissioner’s decision — Whether Commissioner was satisfied that adequate arrangements had been made for suitable vehicular access when required — The fact that there was an existing application to obtain an easement cannot amount to an arrangement — Proceedings remitted back to Commissioner for consideration
APPEAL – development application – shop top housing – residential apartment building development – partial demolition – heritage conservation – desired future character – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether the application was served on the respondent – whether neighbouring trees have caused damage – property maintenance – application refused
DEVELOPMENT APPLICATION – alterations and additions to covert five dwellings to three dwellings – multi-dwelling housing is a prohibited use in the R2 Low Density Residential zone under the Wingecarribee Local Environmental Plan 2010 – the use of the site is an existing use within the meaning of s 4.65 of the Environmental Planning and Assessment Act 1979
PRACTICE AND PROCEDURE – Notice of Motion – Leave sought for production of documents – Leave sought by Applicant to amend its Further Amended Summons – Unexplained delay where hearing dates for substantive proceedings already fixed – Purpose of case management – s 56 of the Civil Procedure Act 2005 – New matters raised as opposed to particularisation of existing claims – Leave sought to transfer proceedings – s 149B(1) of Civil Procedure Act 2005 – Application declined – Amended Notice of Motion, save for directions and specific amendments, dismissed
APPEAL – development application – alterations and additions to existing development consent granted by the Land and Environment Court via an agreement under s 34 of the Land and Environment Court Act 1979 – contravention of height of buildings development standard in cl 4.3 of the Canada Bay Local Environmental Plan 2013 (LEP) – contravention of dwelling mix development standard in cl 6.11 of the LEP – clause 4.6 written requests to justify the contraventions of the development standards in cll 4.3 and 6.11 of the LEP – relevance of withdrawn planning proposal – reservation of part of the site for a laneway to be dedicated or acquired – issue as to whether it has been abandoned
DEVELOPMENT APPLICATION: alterations and additions and construction of site structures, pool and landscape works – site has existing consent approving construction and use of a private recreation facility (a roadway) – determination of disputed conditions – appeal upheld.
DEVELOPMENT APPEAL – demolition of derelict commercial building – construction new shop top housing development – conciliation conference – agreement between the parties - orders
APPLICATION – modification application made directly to the Court – residential flat building – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – dual occupancy development in R2 zone – conciliation conference – agreement between the parties – cl 4.6 written request-minimum lot size - orders
APPEAL – development application – multi dwelling housing – bushfire risk – determination of appropriate vegetation formation for asset protection zone calculations – steep site gradients and accessibility of urban fire appliances – visual impacts – aboriginal cultural heritage impacts – scale of excavation and earthworks – construction stage impacts on local residential amenity
DEVELOPMENT APPLICATION – Torrens title subdivision - strata subdivision – subdivision is not change of use – residential flat building – separate heritage building –subdivision pattern – subdivision and development standards – orderly and economic development – FSR
DEVELOPMENT APPEAL – Class 1 – modification of conditions of consent – amendment to conditions of consent for a caravan park – flood and fire risk – social impact on residents – time to make site compliant – caravan park residential site agreements and regulation of caravan parks – end of useful asset life – certainty – orders LOCAL GOVERNMENT ACT APPROVAL APPEAL – Class 2 – authority to operate a caravan park – conditions of approval – orders
APPEAL – development application - construction of a 100-place centre based child care facility – conciliation conference – agreement between the parties – orders
APPEAL – development application – construction of a co-living housing development with ground floor retail and a single basement level for parking – conciliation conference – agreement between the parties – orders
APPEAL – development application - alterations and additions to an approved residential flat building – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to dwelling roof and fence – claim of tree risk – s 12 considerations – trees make significant ecosystem and biodiversity contributions
DEVELOPMENT APPLICATION – housing for seniors and people with a disability – independent living – amended plans – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION: change of use from ground floor commercial tenancy to a residential dwelling and minor alterations and additions; whether the apartment has an acceptable level of internal amenity; impact on the public domain.
DEVELOPMENT APPLICATION: residential flat building; exception to the height of buildings development standard; privacy and overlooking; waste collection; flooding.
DEVELOPMENT APPLICATIONS: recreation camp and access road; no legal access to the site; bush fire safety; ecological impacts; whether there is owner’s consent for works required beyond the site for bush fire safety; whether the caretaker’s accommodation is a separate and independent use.
DEVELOPMENT APPLICATIONS: recreation camp and access road; no legal access to the site; bush fire safety; ecological impacts; whether there is owner’s consent for works required beyond the site for bush fire safety; whether the caretaker’s accommodation is a separate and independent use.
DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – conciliation conference – construction of a pub, hotel, mixed-use building and residential flay building – agreement between the parties – orders
DEVELOPMENT APPEAL – alterations and additions to existing garden centre – construction of office building – classified road – heritage –visual impact – development adjacent to National Park - orders
DEVELOPMENT APPLICATION: warehouse or distribution centre in IN1 General Industrial under State Environmental Planning Policy (Transport and Infrastructure) 2021 – conciliation conference – agreement between parties – orders
APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – Bush Fire Safety Authority (BFSA) – requirement to maintain site as an Inner Protection Area (IPA) – Vegetation Management Plan (VMP) – revision of VMP – protection of environment during construction phase of subdivision – future individual lots to meet IPA requirements – are building envelopes to be levelled and batters provided prior to sale – public positive covenant under s 88E of the Conveyancing Act 1919 – conditions – Council to approve the revised VMP
DEVELOPMENT APPLICATION – Alterations and additions to an existing dwelling – conciliation conference – amended plans – agreement between the parties – orders made
DEVELOPMENT APPEAL – residential development – justification of minimum lot size for dwelling house development standard – bushfire protection measures and performance solution for access to firefighters – whether there is insufficient information to determine the development application – certainty of condition of consent – orders
DEVELOPMENT APPLICATION – conciliation conference – swimming pool in front setback – Heritage Conservation Area – agreement between the parties – orders
JOINDER – application for joinder – statutory tests – issues proposed to be raised by applicant for joinder – interest of justice – public interest – exercise of discretion – whether a Double Bay Marina order is appropriate – costs – application for joinder dismissed
ADMINISTRATIVE LAW — Judicial review — Office of Local Government — Ministerial decision — Local government — Liverpool City Council — Procedural fairness — Bias or apprehended bias — Improper purpose — Jurisdictional error affecting later decisions under the Local Government Act 1993 (NSW) — Interim report — Public inquiry — Amended summons dismissed
DEVELOPMENT CONSENT– use – drop-off and collection point – storage of recycling items - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPEAL – demolition and construction new dwelling house and pool – steep land – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – approved mixed use including a hotel development – modifications to the consent including changes to the internal layouts of the ground and basement levels and changes to conditions of consent – conciliation conference – agreement between the parties – orders
APPEAL – development application – mixed use development – commercial premises with shop top housing – conciliation conference – agreement reached – orders made
VALUATION OF LAND — appeals against land valuations by Valuer-General — s 6A of Valuation of Land Act 1916 (NSW) — highest and best use — comparable sales and adjustments — appeal upheld
APPEAL – development application – dwelling house – breach of building height development standard – breach of floor space ratio development standard conciliation conference – agreement reached – orders made
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused or are likely to cause damage – pruning ordered – Pt 2A application – neighbouring cypress hedge – obstruction of sunlight and views – whether the obstruction is severe – Pt 2A application refused
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees are severely obstructing sunlight to windows in service rooms – s 14F considerations important
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – whether the applicant has contributed to death of the tree – who should pay for tree works – orders for tree removal
ENVIRONMENTAL OFFENCES: failure to comply with court order to remediate land by removing waste from premises – plea of guilty – factors to take into account in determining sentence – whether environmental harm – actual and potential environmental harm –presence of asbestos in the environment – whether harm foreseeable – whether offender could have taken practical measures to reduce harm – whether offender had control over commission of offence – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – capacity to pay – comparable cases – monetary penalty imposed – moiety order – publication order – costs.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring hedge – not all trees are part of the hedge – obstruction of sunlight and views – whether the obstruction is severe – relevant history – balancing of interests – Pt 2A application refused
SENTENCING – early pleas of guilty by landowner to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation – strict liability offences – forestry operation undertaken by contractors – extent of environmental harm significant – mitigating circumstances – assistance to authorities in voluntary reporting of unlawful activities – restoration order made
DEVELOPMENT APPLICATION – part 4 storey and part 5 storey mixed use development including co-living – integrated development – conciliation conference – agreement between the parties – orders
CRIMINAL – practice and procedure – charge of failing to comply with development consent conditions by breach of s 9.51 Environment Planning and Assessment Act 1979 (NSW) – whether amended summons patently duplicitous
DEVELOPMENT APPEAL – multi dwelling housing stormwater and flood planning – justification of contravention of height of building development standard – conciliation conference – agreement between the parties - orders
TREE DISPUTE – Appeal against Commissioner’s decision – trees severely obstructing view from dwelling on adjoining land – trees pruned before hearing – state of trees to be assessed – whether assessment of degree of obstruction limited to state of trees on day of hearing – whether likely state of trees and obstruction can be assessed – order to prune all trees in hedge – whether order should be limited to trees causing severe obstruction – whether procedural fairness denied
DEVELOPMENT APPLICATION: commercial premises in E1 Local Centre – likely impacts of development – whether car parking credits apply to the site – whether car parking arrangements are acceptable
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – tree debris falling onto roof and gutters – fence damage from tree roots – orders made
JUDICIAL REVIEW: validity of modification development consent – whether the development modified substantially the same – applicable legal principles – development as modified not substantially the same development – respondents restrained from acting upon the modified development consent. COSTS: whether respondents to pay the applicant’s costs where respondents filed submitting appearances – applicable legal principles – costs order made against consent authority up to the date of filing submitting appearance.
JUDICIAL REVIEW — Challenge to the grant of a development consent by the Independent Planning Commission (‘Commission’) for an extension of an existing coal mine — Whether failure to consider mandatory considerations — Whether failure to consider specific conditions aimed at minimising to the greatest extent possible greenhouse gas emissions — Whether failure to consider cl 2.20(1) of the State Environmental Planning Policy (Resources and Energy) 2021 — Whether failure to assess downstream (Scope 3) emissions — Whether failure to consider likely impacts of downstream (Scope 3) emissions — Whether engaged in irrational or illogical form of reasoning when proceeding on the basis that “accounting” of Scope 3 emissions will be undertaken by the downstream consumer country — Whether failure to consider likely impacts of Scope 3 emissions in its assessment of public interest — Whether engaged in illogical or irrational form of reasoning when stating that, without the conditions that have been imposed on the development consent, the development proposal would warrant refusal — Whether conditions imposed were merely hypothetical — Whether failure to consider submissions in relation to climate change impacts — Whether misconstruction of s 4.63(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) when determining what would have been carried out but for the surrender of the existing consent — Whether deferred or delegated consideration of impact of proposed development on newly discovered species of lizard — Whether failure to adhere to standard of reasonableness when assessing air quality impact and social impact — Amended summons dismissed
PROCEDURE – application by non-government organisation a local environment centre to participate as amicus curiae in sentencing hearing for native vegetation offences
NOTICE OF MOTION — application for dismissal of claims — r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — frivolous and vexatious proceedings — no reasonable cause of action disclosed COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order COSTS — r 4.2 of the Land and Environment Court Rules 2007 (NSW) — whether public interest litigation — countervailing considerations
DEVELOPMENT APPLICATION – use of existing structures – conciliation conference – amended plans- agreement between the parties – orders made DEVELOPMENT CONTROL ORDER – stop use order – demolish works order- conciliation conference – additional information provided – agreement between the parties – development control order to be revoked – orders made.
DEVELOPMENT APPEAL – residential development - alterations and additions – heritage – flood planning – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – semi-detached residential dwellings – cl 4.6 written request – height of buildings – minimum lot size – agreement between the parties – orders
APPEAL – modification application – modification of a development consent granted by the Court – conciliation conference – agreement reached – orders made
APPEAL – development application – residential flat building – breach of height development standard – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION: Alterations and additions to existing dwelling in Haberfield heritage conservation area – variation to development standard - whether the proposed development will have an unacceptable adverse impact on the conservation area – should the controls in the development control plan be varied – appeal upheld
PROCEDURE – claim for compensation following compulsory acquisition and rescission of acquisition of interest in land pursuant to s 70 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – claim for public interest immunity over Cabinet documents
APPEAL – MODIFICATION – modification of consent for gym – hours - parking and plan of management – conciliation conference – agreement reached – orders made