COSTS – public interest litigation – judicial review – upgrade of sporting fields in heritage-listed park – proceedings unsuccessful – whether proceedings brought in the public interest – whether unreasonable conduct of litigation – interlocutory application extended unreasonably – no order as to costs except for part of interlocutory application
DEVELOPMENT APPLICATION – alterations and additions to an existing building – use for retail tenancy at ground level and a boarding house – conciliation conference – amended application – agreement between the parties – orders
DEVELOPMENT APPLICATION – prospective use of the site for the purposes of a dwelling house, including the use of the building and structures erected on the land and alterations and additions to modify the approved dwelling including remedial works – significant departure from floor space ratio development standard – correct calculation of FSR and gross floor area – amended cl 4.6 written request to vary the floor space ratio (FSR) development standard BUILDING INFORMATION CERTIFICATE – application to retain ‘unauthorised’ works undertaken not in accordance with existing development consent – final outcome dependent on the outcome of the development application appeal – appeal dismissed DEVELOPMENT CONTROL ORDER – stop work order made pursuant to s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 – final outcome dependent on the outcome of the development application appeal – appeal dismissed – stop work order will continue to remain in force until a construction certificate is issued
DEVELOPMENT APPLICATION – demolition of existing buildings, and the construction and use of a service station and food and drink premises with associated landscaping and ancillary works - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – infill affordable housing in B4 zone – whether development is total development – whether must not refuse provision applies – traffic impacts – failure to provide car parking onsite
APPEAL – appeal against Commissioner’s decision –building erected without consent – demolish works order – Commissioner modified order – whether order given in breach of required process – whether order justified on the evidence – whether Commissioner’s modification of order involved error of law
DEVELOPMENT APPLICATION – semi detached dwellings – Torrens title subdivision of land – contentions resolved – consideration of objector submissions – Respondent does not oppose grant of consent – conditions agreed.
EVIDENCE - Prosecutor serves tendency notice on Defendant pursuant to s 97 of the Evidence Act 1995 - tendency said to be based on text messages obtained from Defendant’s mobile phone - text messages arranged by Prosecutor into 16 message conversations - message conversations divided by Prosecutor into two groups - first group said by Prosecutor to evidence dishonesty by Defendant - second group said by Prosecutor to lead to inference of dishonesty by the Defendant - Defendant seeks rejection of tendency as being pleaded at too great a level of generality - tendency not pleaded at too great a level of generality - Defendant seeks exclusion of groups of message conversations as not demonstrating pleaded tendency - some (but not all) groups of message conversations proposed to be relied upon to demonstrate dishonesty ruled admissible for tendency purposes - all groups of message conversations said to infer dishonesty ruled inadmissible for tendency purposes
EVIDENCE - Defendant charged with three offences pursuant to s 144AA(2) and one offence pursuant to s 144AA(1) of the Protection of the Environment Operations Act 1997 - alleged conduct was supplying information about waste to another person in the course of dealing with the waste where that information was false or misleading in a material respect - prosecutions based on e‑mails sent by employees of the Defendant - conduct of employees said to be imputed to the Defendant - e‑mails said to have attached documents that were “false or misleading in a material respect” - for s 144AA(2) offences, the information supplied is required to be known to be false or misleading in a material respect - for the s 144AA(1) offence, the information supplied is merely required to be false or misleading in a material respect - charges pursuant to s 144AA(2) can give rise to conviction pursuant to s 144AA(1) if element of knowledge is not established by virtue of s 144AA(2A) - Prosecutor serves tendency notice on Defendant pursuant to s 97 of the Evidence Act 1995 (NSW) - application pursuant to s 192A of the Evidence Act 1995 (NSW) for an advance ruling on admissibility of “asserted tendency” - tendency said to be based on e‑mails sent by a different employee of the Defendant - e‑mails each said to have attached a document that supplied information about waste to another person in the course of dealing with the waste where that information was false or misleading in a material respect - requirement to give notice of intention to rely on tendency evidence - no contest proper notice was given - Prosecutor’s case that evidence of the “asserted tendency" has significant probative value - Prosecutor’s case on “significant probative value” to be taken at its highest - evidence of “asserted tendency” has significant probative value - question of whether the probative value of the “asserted tendency” evidence outweighs “the danger of unfair prejudice” to the Defendant - probative value of the “asserted tendency” evidence does outweigh the danger of unfair prejudice to the Defendant - Prosecutor granted advance evidentiary ruling that the tendency evidence is admissible - use of tendency evidence limited to exclude use for proving knowledge of falsity for charges pursuant to s 144AA(2)
EVIDENCE - Prosecutor serves Defendants with text or WhatsApp conversations obtained from the mobile phone of Mr Sami Allam - messages grouped in seventeen categories of message conversations - Prosecutor identifies the matter for which each group of message conversations is said to demonstrate - some message conversations proposed to be relied upon in more than one category identified by the Prosecutor - some messages proposed to be relied upon by the Prosecutor for hearsay purposes - advance rulings sought by the Defendants pursuant to s 192A of the Evidence Act 1995 (NSW) concerning admissibility of the text messages and WhatsApp conversations - if admissible, Defendants seek restrictions on the use of the messages - agreement between Prosecutor and Defendants on the terms of Consent Orders concerning the majority of the categories identified by the Prosecutor - Consent Orders made concerning the agreed categories - agreement between the Prosecutor and the Defendants concerning proposed hearsay uses - Consent Orders made concerning proposed hearsay uses - admissibility rulings made concerning text and/or WhatsApp message proposed to be relied upon in disputed categories
DEVELOPMENT APPLICATION – waste or resource transfer station and ancillary works – suitability of a particular road in providing road access to the development – conciliation conference – agreement between the parties – orders
PROCEDURE: application for expedition – application for injunctive relief – application for removal of indoor ducted air conditioning unit – application for dismissal – legal principles – failure to join all necessary parties to the proceedings – no jurisdiction to determine claims – no reasonable causes of action disclosed – expedition refused – proceedings dismissed.
DEVELOPMENT CONTROL ORDER – appeal against a development control order to demolish works – heritage conservation area – remove and replace unsympathetic and contemporary front door and remove unsympathetic external architrave around the first floor French doors on the primary façade of the terrace
SENTENCING – offence under Radiation Control Act of failing to ensure regulated material not in possession of person with appropriate license – accidental disposal of PET scanner with radiation source – late plea of guilty SENTENCING – offence under Radiation Control Regulation of disposing of regulated material without consent of Environment Protection Authority – accidental disposal of PET scanner with radiation source at tip – late plea of guilty
SENTENCING – environment offences – ss 91(5), 97, 120(1), 211(1), 169(1) and 169(A) of Protection of the Environment Operations Act 1997 – failure to comply with prevention notice – pollution of waters – failure to comply with clean-up notice – failure to provide information and records – strict liability offences – extent of harm caused or likely to be caused – reasons for committing offences – reasonable foreseeability of harm – control over causes – guilty pleas – specific deterrence – discount for totality – capacity to pay – publication order made – order for a moiety – fines imposed
DEVELOPMENT APPLICATION – substantial alterations and additions to an existing shop top housing development to provide four new studio apartments above two ground floor commercial tenancies and construction of a new rear garage – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling to construct a new double garage and room over – local heritage item – conciliation conference – agreement between the parties – orders
DEVELOPMENT CONTROL ORDER – appeal against a development control order directing the applicant to stop using the premises for the purpose of a recreation facility (indoor) – premises being used as a fitness gymnasium operated for the purposes of gain – no development consent – prohibited use – extension of the period time to comply with the Order subject to terms
DEVELOPMENT APPLICATION – dual occupancy detached, access via right of way – whether the essential services required for the development are available – whether adequate arrangements have been made to make suitable vehicular access available – whether the precondition for essential services is met – development consent refused.
ENVIRONMENTAL OFFENCES: taking of water otherwise than in accordance with a water access licence – taking of water without an operating water meter – Form 1 offence taken into account – plea of guilty – factors to take into account in determining sentence – whether environmental harm – actual harm to the regulatory scheme – whether offences committed for financial gain – whether offences committed recklessly – contrition and remorse demonstrated – totality principle applied – comparable cases – whether s 10A Crimes (Sentencing Procedure) Act 1999 order appropriate – monetary penalty imposed – publication order – costs ordered.
CIVIL ENFORCEMENT: whether consent orders made and entered in 2014 can be set aside on the grounds of illegality, improper purpose or contrary to public policy – whether the Court had jurisdiction to make the orders – construction of consent orders – construction of development consent – whether variations to environment protection licence issued by EPA modified the development consent – application of doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process – whether the Court has statutory or implied power to set aside the consent orders – whether as an exercise of its discretion the Court ought to set aside consent orders – delay – detriment, including to third parties – consent orders not set aside – agreement procuring consent orders not void or voidable for illegality – whether further development consent required to carry out the works the subject of consent orders – no further development consent required – whether development the subject of consent constitutes “development (whether existing or approved)” within the meaning of cl 35 of Sch 3 of the Environmental Planning and Assessment Regulation – meaning of “development (whether existing or approved)” – utility of granting declaratory relief – declaratory relief granted. JUDICIAL REVIEW: whether variations made by the EPA to an environment protection licence were invalid – whether doctrines of estoppel, res judicata and abuse of process applied to a party not the subject of earlier related proceedings – meaning of “(other than on the initiative of the EPA)” – variations not on the initiative of the EPA but on the initiative of the licence holder – no power to issue the variations because no development consent for the works the subject of the variations as required – variations invalid – whether invalid variations can be severed – invalid variations severed.
ORDERS: application made by parties to amend final orders pursuant to a liberty to restore granted for this purpose – scope of liberty granted – whether negative declaration ought to be made rather than dismissal of prayer for relief or dismissal of remainder of summons – whether Council ought to be permitted to resile from concession and seek orders setting aside variations to an environment protection licence found, on a contingent basis, to be invalid – orders amended to dismiss remainder of summons – Council not permitted to resile from position it took during the hearing.
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Land and Environment Court — Whether proceedings brought in public interest — Whether applicant should bear more than one set of costs — Costs of substantive proceedings
SUBPOENAS - application to set aside as no apparent relevance beyond speculation said to be demonstrated - two subpoenas proposed to be set aside - Applicant files Amended Points of Claim - documents sought in subpoenas generally apparently relevant beyond mere speculation to matter pleaded in the Amended Points of Claim - one subpoena contains a provision not apparently relevant to pleaded matter - provision to be deleted from that subpoena - no temporal limitation in the subpoenas - open-ended subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time NOTICE TO PRODUCE - application to set aside Notice to Produce - procedural basis for issuing Notice to Produce changed without objection by substituting Notice to Produce during the course of the hearing - Applicant files Amended Points of Claim - documents sought in Notice to Produce generally apparently relevant beyond mere speculation to matter pleaded in the Amended Points of Claim - Notice to Produce contains a provision not apparently relevant to pleaded matter - provision to be deleted from Notice to Produce - no temporal limitation in Notice to Produce - open-ended Notice to Produce not appropriate - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time COSTS - partial success in set-aside applications by deletion of some classes of documents and imposition of temporal limitation - applications to set aside otherwise unsuccessful - partial success of opposing parties warrants no order for costs being made.
COSTS - compulsory acquisition of land - land acquired by Council to add to public open space - Valuer General determines compensation on hypothetical development potential as medium density housing - dispossessed owners contend for higher valuation based on high density residential potential - Council contends for lower valuation based on existing low density residential zoning - held Valuer General's determination too high but not to the extent sought by Council - less intense medium density development appropriate development potential - claim for stamp duty equivalent compensation - claim rejected - Council contends for less than maximum compensation for Disadvantage resulting from relocation - maximum statutory compensation for Disadvantage resulting from relocation awarded - mixed overall outcome of the proceedings - no unreasonable conduct by dispossessed owners - overall result for dispossessed owners significantly better than that proposed by the Council - Council to pay Applicants’ costs of the proceedings COSTS - costs of costs proceedings follow the event - Council to pay Applicants’ costs of costs proceedings
DEVELOPMENT APPLICATION – whether the locally listed heritage item should be demolished to allow construction of a 75-place childcare centre –whether proposed development unsuitable for the site – management of acoustic and air quality impacts
DEVELOPMENT APPLICATION – subdivision of one lot into two lots – demolition of existing structures – minimum lot width numerical control in Part 6 of the Hornsby Development Control Plan 2013 does not apply to a battle-axe lot – impact on the heritage significance of the Becroft-Cheltenham Heritage Conservation Area
DEVELOPMENT APPLICATION – subdivision of land – whether Subject Site contains core koala habitat – whether potential impacts on frog habitat are acceptable – whether design of road access is acceptable
DEVELOPMENT APPLICATION – demolition works – construction of a Seniors Living Development – reliance on new plans – cl 4.6 variation in height limit – location of Asset Protection Zones – access to Sydney Water land – impacts on adjacent bushland – effects on aquatic environment and biota of Curl Curl Creek – conditions to address off-site impacts.
SENTENCING – pleas of guilty to three offences of supply of misleading information in a material respect about waste in the course of dealing with waste – defendant already sentenced for overlapping fraud offence under Crimes Act – potential for significant environmental harm as asbestos waste delivered to rural property – early plea of guilty – limited other mitigating circumstances SENTENCING – plea of guilty to land pollution offence – deposition of asbestos and other waste on rural property unbeknownst to land holder who expected clean fill to be supplied – actual harm to the environment caused – potential for significant environmental harm – early guilty plea – limited other mitigating circumstances
SENTENCING – plea of guilty to charge of water pollution resulting from spill of industrial solvent into stormwater system and Molonglo River due to valve failure – no aggravating factors – actual environmental harm caused – medium level of objective seriousness – mitigating factors – early guilty plea – contrition SENTENCING – plea of guilty to charge of water pollution from spill of industrial solvent into stormwater and Molonglo River – second spill occurred after attempted clean-up of original spill – no aggravating factors – actual environmental harm caused – medium level of objective seriousness – mitigating factors – early guilty plea – contrition SENTENCING – plea of guilty to charge of failing to immediately notify water pollution incident – notification of EPA within four hours of becoming aware that spill of industrial solvent had entered stormwater system – low level of objective seriousness – no aggravating factors – early plea of guilty
ENVIRONMENTAL OFFENCES – Sentence – Carrying out controlled activities on waterfront land without approval – Harm to waterfront land – Determination of objective seriousness – Extent of environmental harm – Moderate range of objective seriousness – Determination of subjective seriousness – Pleas of guilty – Restoration and prevention order – Determination of appropriate penalties
DEVELOPMENT CONTROL ORDERS – unauthorised structures (decks (two) and pergola) erected in hotel beer garden – breach of noise condition in earlier consent – future use of structures – consent orders made in four appeals – conciliation conference in two appeals – agreements reached – orders made – no power to make an order as to costs BUILDING INFORMATION CERTIFICATE APPLICATIONS – unauthorised structures (decks (two) and pergola) erected in hotel beer garden – breach of noise condition in earlier consent – future use of structures – consent orders made in four appeals – conciliation conference in two appeals – agreements reached – orders made – no power to make an order as to costs DEVELOPMENT APPLICATIONS – unauthorised structures (decks (two) and pergola) erected in hotel beer garden – breach of noise condition in earlier consent – future use of structures – consent orders made in four appeals – conciliation conference in two appeals – agreements reached – orders made – no power to make an order as to costs
APPEAL – development application – garage to dwelling – conciliation conference – agreement reached – condition requiring changes to materials and finishes – condition requiring reduction in height of wall – orders made
DEVELOPMENT APPLICATION – shop top housing – building height contravention – heritage conservation – internal amenity – whether land dedication via planning agreement or restrictive covenant more appropriate for necessary widening of pathway, objecting submissions
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge causing obstruction of sunlight – second application – whether there has been a material change in circumstances – whether the trees have grown since the earlier application – whether the sunlight obstruction is severe – respondent has signed a contract to sell their property since the second application was made – purchasers of the respondent’s property unaware of these proceedings – orders for purchaser to be served with the application – opportunity for the purchaser of the respondent’s property to be heard
CONTEMPT – notice of motion seeking contempt conviction, penalty and costs – charge of failure to comply with court order requiring pruning of three trees at specified time of year to specified height – failure to comply with terms of orders within time required found – overall circumstances suggest no conviction should be recorded or penalty ordered – notice of motion dismissed – costs
ENVIRONMENTAL OFFENCE – pollution of waters – discharge of sediment laden water into a creek – discharge of expanded polystyrene beads into a creek – plea of guilty – sentencing principles – determination of the objective seriousness of the offence – extent of harm – whether extreme rainfall events reasonably foreseeable – consideration of the subjective circumstances of the defendant – one prior conviction – discount for early guilty plea – assistance to authorities – examination of comparable cases – monetary penalty – publication order – costs order made.
DEVELOPMENT APPLICATION – multi dwelling housing – stormwater management – applicant unable to secure owner’s consent from the adjacent property required for the creation of a drainage easement over the site prior to hearing – whether the Court should impose a deferred commencement condition requiring the applicant obtain a drainage easement over adjoining land before development consent is operative
DEVELOPMENT APPLICATIONS – two development applications subject to an approved concept development application – early works development application for demolition, excavation and remediation – detailed design development application for eight mixed use buildings and associated works – impacts on amenity enjoyed by Sydney Park users – impacts on Sydney Park natural ecosystems – site suitability – compatibility with nearby 24 hour industrial operations – design excellence
DEVELOPMENT APPLICATION – Dual occupancy development – site planning and form of dual occupancy – whether the excavation proposed is acceptable – sufficiency of evidence – site suitability – character.
APPEAL – development application – mixed use building containing self-storage and industrial units – proposed development exceeds height development standard – clause 4.6 request – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL – residential modification application – deletion of condition of consent requiring deletion of terrace roof and columns – reasons given for original consent – view loss - orders BUILDING INFORMATION CERTIFICATE APPEAL - terrace roof structure – notional development assessment - public interest - orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – risk of damage to property – Pt 2A application – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe – privacy and other benefits of the trees
ENVIRONMENTAL OFFENCE – removal of trees –charge of development without consent – guilty plea – sentencing principles – substantial actual and likely environmental harm caused by the commission of the offence – state of the mind of the defendant at the time of the commission of the offence – whether defendant was criminally negligent – objective seriousness of the commission of the offence moderate to low – no prior convictions – genuine remorse and contrition demonstrated – specific and general deterrence warranted – insufficient evidence of claimed impecuniosity – comparable cases – fine imposed – costs ordered.
SENTENCE - Defendant pleads guilty to charge of breach condition of development consent - condition imposed limited daily production capacity on mobile asphalt plant - Defendant deliberately understated production rate in development application - understatement avoided necessity for environmental impact statement - understatement avoided necessity for increased environmental scrutiny of the proposed development - harm to integrity of the planning system - deliberate breach a first aggravating factor - breach part of organised criminal enterprise - second aggravating factor - breach committed for financial gain - third aggravating factor - Defendant with limited positive subjective factors - no contrition or remorse - no previous convictions - maximum penalty for offence $1,100,000 - offending conduct above the middle of the middle range of seriousness - fine of $600,000 appropriate indicative sentence - discount for guilty plea - plea not at the earliest opportunity - discount of 10% for guilty plea - fine of $540,000 appropriate SENTENCE - Defendant pleads guilty to charge of breach condition of development consent - condition of development consent limited the number of truck movements on any one day - harm to integrity of the planning system - deliberate breach an aggravating factor - breach committed for financial gain - breach part of organised criminal enterprise - second aggravating factor - breach committed for financial gain - third aggravating factor - Defendant with limited positive subjective factors - no contrition or remorse - no previous convictions - maximum penalty for offence $1,100,000 - offending conduct in the middle of the low range of seriousness - no previous convictions - maximum penalty $1,100,000 - appropriate starting penalty $120,000 - discount for guilty plea - guilty plea not at the earliest opportunity- discount of 10% for guilty plea - fine of $98,000 appropriate TOTALITY AND ACCUMULATION - both offences arise out of same development consent - breaches arise from satisfying single asphalt supply contract - appropriate to moderate total penalty - fine for less egregious offence moderated to $60,000 - total penalty imposed of $600,000
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicant has lost access to views – privacy and other benefits of the trees – application refused
ENVIRONMENTAL OFFENCES: sentence – unlawful taking of water – plea of guilty – factors to take into account in determining sentence – environmental harm – offences committed deliberately and for financial gain – no contrition or remorse demonstrated – extra curial punishment – totality principle applied – monetary penalty imposed – publication order made – costs ordered.
ENVIRONMENTAL OFFENCE: pollution of waters – breach of environment protection license – plea of guilty – discharge of sewage effluent – sentencing principles – determination of the objective seriousness of the offence – extent of environmental harm – application of De Simoni principle – test for criminal negligence – whether criminally negligent – subjective circumstances of the defendant – prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs orders made.
ENVIRONMENTAL OFFENCE: pollution of waters – plea of guilty – discharge of sediment laden water into a drain – sentencing principles – determination of the objective seriousness of the offence – extent of harm – whether the rule in Browne v Dunn applies in criminal proceedings – consideration of the subjective circumstances of the defendant – no prior convictions – discount for early guilty plea – assistance to authorities – examination of comparable cases – monetary penalty imposed – costs order made.
APPEAL – development application – subdivision of land – Torrens title subdivision and community title subdivision – Penrith Lakes Scheme – adequacy of flood evacuation measures – all contentions resolved
SENTENCING – environment offences – s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) – supplying information on waste known to be false or misleading – no actual harm – likely foreseeability of harm – no financial gain or other advantage – control over causes of offending conduct – high end of the mid-range of objective seriousness – no real contrition or remorse – co-operation with regulatory authority – early pleas of guilty – no prior convictions – monetary penalty and publication order made
PRACTICE AND PROCEDURE – discontinuance of proceedings – appeal against development control order – discontinuance by consent on terms – terms unrelated to proceedings – terms that discontinuing party comply with later development control order not the subject of the appeal – application to vary terms of later development control order – no application to set aside discontinuance – no power to vary terms of later development control order until discontinuance set aside – no power to vary terms of later development control order not the subject of the appeal – no utility in setting aside discontinuance
PRACTICE AND PROCEDURE — Notice of Motion to set aside notice to produce — whether appropriate to require production where no disclosure order made pursuant to s 247E of Protection of Environment Operations Act 1997 (NSW) — s 219(2) of Protection of the Environment Operations Act 1997 (NSW) — abuse of process or lack of prima facie case — whether documents sought in notice to produce required for purposes of hearing — relevance of documents sought — reasonableness of request — Notice of Motion to set aside notice to produce dismissed — Notice of Motion to vacate previous orders and require compliance with notice to produce granted
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – trees damaging the applicant’s property and the common boundary fence – Pt 2A application concerning obstruction of sunlight – sunlight obstruction is severe – orders for tree removal – height restriction for future hedge plants
TREES (DISPUTES BETWEEN NEIGHBOURS) – Is the tree causing damage to the applicant’s sewer pipes – is the tree likely to cause such damage in the near future – does the tree present a genuine risk requiring mitigation – is tree removal an appropriate intervention – do benefits from tree exceed the imperative to intervene
APPEAL – development application – place of public worship – directions made in earlier decision for Plan of Management, Traffic Management Plan and conditions to be updated – directions complied with – final orders made
COSTS – discretion to award costs pursuant to r 42.1 of the Uniform Civil Procedure Rules – whether costs should be apportioned – applicant partly successful on issues for determination – issues discrete and separable – consideration of time taken and merit of claims – costs apportioned
DEVELOPMENT CONSENT - Applicants seek declaration consent has not lapsed - construction work undertaken prior to expiry of lapsing period - development proposed to be undertaken in stages - condition of development consent imposed precondition to issuing of construction certificate - question of whether precondition required satisfaction prior to issuing the construction certificate for the stage where the conditioned activity would occur - submitting appearance by the Respondent - construction certificate for works relied upon as preventing lapsing did not satisfy precondition - document approved by Respondent disclosed precondition would be satisfied prior to construction certificate for second stage - no objection raised by Respondent - held precondition required to be satisfied by the stage encompassing the relevant activity - appropriate to declare that consent had not lapsed - declaration made
TREE DISPUTE – tree dispute application heard and dismissed in February 2021 – second tree dispute application made in December 2021 after large branch falls from tree – respondents seek strike out of second tree dispute application as abuse of process – changed circumstances since first application – fresh application not an abuse of process – strike out application dismissed
MODIFICATION APPLICATION – modification of the Minister’s approval – whether the Court has power pursuant to s 34(3)(a) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the terms of the parties’ section 34 agreement – statutory construction of (former) s 75W of the Environmental Planning and Assessment Act 1979 – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – hard rock quarry – modification to allow importation, storing, blending and sales of electric arc furnace slags, cement fibre board and ash with the existing quarry products – dispute about conditions imposed by Council on approval of application – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – partial demolition of existing dwelling and constriction of a boarding house – whether the development impacts the heritage significance of the item – whether the development is compatible with the character of the locality – whether the maximum building height standard is exceeded – whether the maximum floor space ratio is exceeded – whether the written request to vary the FSR standard satisfies the preconditions – appeal dismissed.
SENTENCE - charge of removing a tree without consent when consent was required - plea of “guilty” by Defendant - agreed facts for sentencing purposes - submissions by the Prosecutor that the Defendant had acted recklessly withdrawn - no factors of aggravation engaged - consideration of potential aggravating factors - consideration of Defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward the bottom of the low range for such conduct - plea of “guilty” entered at earliest opportunity - discount of 25% on appropriate starting penalty - submission that the Defendant should be dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1995 without the recording of a conviction - proposed utilisation of s 10 not opposed by the Prosecutor - Defendant’s fear that recording a conviction would impact on her family's ability to relocate overseas - power to order payment for environmental purposes pursuant to s 250(1)(e) of the Protection of the Environment Act 1997 - appropriate to utilise s 10 of the Crimes (Sentencing Procedure) Act 1995 and not enter a conviction - appropriate to order making of a donation for environmental purposes of an amount equal to the penalty appropriate if the Defendant had been convicted - Defendant found guilty but not convicted - Defendant ordered to pay National Trust of Australia (NSW) $15,000 for bushland restoration works - Defendant’s family financial circumstances make extended time for payment appropriate - Defendant required to make payment within 90 days - Defendant ordered to pay the Prosecutor's costs as agreed or assessed.
MODIFICATION APPLICATION – concept development application – mixed use development –strategic community planning and infrastructure provisioning – impacts on amenity enjoyed by Sydney Park users – impacts on Sydney Park natural ecosystems – site suitability – compatibility with nearby 24 hour industrial operations – design excellence
JUDICIAL REVIEW – determinations to upgrade sports fields in heritage-listed park – whether development consent required – consent required for demolition of a building or heritage item – whether “demolition” – development for purpose of recreation area may be carried out without consent – whether development for that purpose – duty to assess environmental impact of activity – assessment of heritage impacts – whether miscarried – modification of activity – whether assessment of modified activity or only modifications
JUDICIAL REVIEW: whether modification approval invalid because of absence of delegation to grant council officer approval – no delegation – approval made absent power to do so and therefore invalid – whether appropriate to grant declaratory relief in circumstances where parties consent to declaration being made – whether a proper contradictor – declaration made – second respondent to pay applicant’s and first respondent’s costs.
VALUATION — Compulsory acquisition — Market value — Residential subdivision — Amenity protection — Extent of likely physical treatment of boundaries adjacent public purpose — Valuation methodology — Likely profit and risk margin and internal rate of return adopted under hypothetical development method
CONTEMPT – Civil contempt – Breach of orders – Guilty plea – Multiple counts – Continued use of premises for prohibited purpose of vehicle sales and hire premises – Wilful contempt – Sentencing factors – Commercial conduct – Consistency in sentencing – Fine imposed for each count – Costs as agreed
COSTS – interest on costs – application to vary interest payable – application made after order for costs entered – whether application out of time – no power to vary interest payable – discretionary refusal to vary interest payable
DEVELOPMENT APPLICATION: substantial demolition of existing building, construction of a twenty-storey boarding house, ground floor retail, ancillary facilities – variation to floor space ratio standard – whether the variation request should be upheld – whether the amenity of the communal spaces is acceptable – are the boarding room facilities adequate – is the information supporting the development application sufficient – landowners consent – directions.
APPEAL – development application – two-lot subdivision – no works or use proposed – one lot landlocked – whether defined form of legal access should be provided as part of subdivision – whether adequate traffic assessment
DEVELOPMENT APPEAL – residential flat building – contravention of maximum building height development standard – bulk and scale – flood planning - apartment design principles – view loss – bicycle parking – waste management - orders
DEVELOPMENT APPLICATION – subdivision of land – whether Applicant’s requests to vary development standards under SEPP 1 should be upheld – whether Subject Site contains core koala habitat – whether potential impacts on frog habitat are acceptable – whether potential biodiversity impacts, including proposed tree removal, are acceptable – whether design of road access to industrial land is acceptable – whether all jurisdictional requirements are satisfied – consideration of conditions
DEVELOPMENT APPLICATION – residential apartment development – building envelope – building height contravention – external wall height – side boundary setback – visual impact – foreshore scenic protection area – excavation implications – mobility parking space impact and response
DEVELOPMENT APPLICATION – mixed use development – amendment of application – characterisation of use as shop top housing – flooding – contravention of height of building control – reliability of parking stacker
ENVIRONMENT AND PLANNING — Development application — State significant development — development application refused — application to amend development application — whether consent authority’s function to agree to an amendment exhausted — whether sufficient particulars to indicate nature of changed development — particulars sufficient — leave to amend allowed COSTS — Class 1 proceedings — whether respondents entitled to costs thrown away as a result of the amendment application — whether fair and reasonable to award costs in favour of parties other than consent authority — second and third respondents not awarded costs
BUILDING INFORMATION CERTIFICATES – development without consent – six dwellings – BASIX affected development – non-compliance with the Building Code of Australia – non-compliance with the floor space ratio development standard and planning controls – inadequate stormwater disposal
DEVELOPMENT APPLICATION – Impact of proposed development on State heritage item – Bourketown Heritage Conservation Area – adaptive reuse of water reservoir – centre-based child care facility - child care planning guidelines -