TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent’s land – leaves and small sticks falling onto applicant’s land – maintenance burden – is there genuine risk of injury
APPEAL - appeal against Commissioner’s decision in Class 1 proceedings - local environmental plan requires development on site to exhibit design excellence - the plan sets criteria for assessment of design excellence - plan also makes provision requiring a “competitive design process” - the plan also permits dispensation to be given from requirement for a “competitive design process” - Commissioner concludes proposed development demonstrates design excellence - Commissioner exercises discretion to dispense with “competitive design process” ‑ consideration of whether Commissioner’s exercise of discretion miscarried - no error in Commissioner’s exercise of discretion to dispense with “competitive design process” - appeal dismissed - Applicant ordered to pay Respondent's costs of the appeal
APPEAL ‑ proposed amendment to concept development approval ‑ Council raises jurisdictional and merit issues ‑ Applicant and the Council reach agreement on merit issues ‑ Applicant proposes method to resolve jurisdictional issue ‑ Council accents jurisdictional issue resolved ‑ application to dispense with compliance with maximum building height ‑ consideration of tests set by the cl 4.6 of the Hills Local Environmental Plan 2012 (the LEP) ‑ tests satisfied ‑ dispensation from compliance with maximum building height granted ‑ proposed consent orders ‑ necessary satisfaction on Council's jurisdictional contention found ‑ establishment of satisfaction with cl 4.6 tests ‑ appropriate to give effect to proposed consent orders ‑ orders made modifying concept development approval APPEAL ‑ development application for construction of development to give effect to concept development approval ‑ development application contingent on modification of concept approval ‑ concept approval modified ‑ certificate pursuant to cl 4(17)(5) of the Environmental Planning and Assessment Regulation 2000 provided ‑ other necessary documents provided ‑ cl 4.6 request granted ‑ cl 9.5(4) matters considered - development consent granted subject to conditions
APPEAL – s 56A of Land and Environment Court Act 1979 (NSW) – cl 6.21 of the Sydney Local Environmental Plan – proper construction of design excellence clause – whether Commissioner failed to have regard to mandatory requirements – cl 55 of Environmental Planning and Assessment Regulation – whether error of law in granting consent to amended DA where DA not lawfully amended – lack of owner’s consent at time unamended DA determined – whether Commissioner failed to give adequate reasons – appeal allowed and remitted to Commissioner – Respondent to pay costs
DEVELOPMENT APPLICATION: residential apartment development in R1 General Residential zone – conciliation conference – agreement between parties - orders
APPEAL – development application – multi dwelling housing – compliance with minimum lot size development standard – whether consistent with the objective of the standard – whether bulk and scale appropriate for the site in its context
JUDICIAL REVIEW ‑ Ground 1 ‑ Council grants development consent for proposed motel ‑ development consent incorporates approval under the Local Government Act 1993 (the Local Government Act) to install multi‑room accommodation modular units transported to the site to provide accommodation for the motel ‑ whether modular units are “movable dwellings” as defined by the Local Government Act ‑ modular units not “movable dwellings” ‑ modular units are “buildings” requiring approval pursuant to the Environmental Planning and Assessment Act 1979 (the EPA Act) ‑ no approval given for “buildings” pursuant to the EPA Act ‑ development consent invalid on this ground JUDICIAL REVIEW ‑ Ground 2 ‑ provision in local environmental plan sets three criteria mandated to be satisfied for stormwater disposal from the site ‑ consent authority considered and was satisfied as to one of the three mandatory provisions ‑ no evidence the consent authority considered two of the mandatory provisions ‑ required state of satisfaction not demonstrated concerning two mandatory stormwater criteria ‑ failure to consider and reach required state of satisfaction of mandated criteria renders development consent invalid ‑ appropriate to make declaration development consent invalid on this ground JUDICIAL REVIEW ‑ Ground 3 ‑ local environmental plan requires that consent authority be satisfied as to availability of services ‑ requirement that services are or will be available ‑ satisfaction of the deferred commencement condition ensures mandated service (access to sewer for effluent disposal) will be available for issue of construction/occupation certificate ‑ consent authority imposes deferred condition of consent ‑ deferred commencement condition permits consent authority to reach mandated conclusion that sewage service will be available ‑ mandatory prerequisite satisfied - challenge based on availability of sewage services rejected DISCRETION ‑ parties agree questions of relief to be deferred to future hearing if invalidity established - directions to be given to set date of and timetable for separate hearing on relief as a result of invalidity of development consent COSTS - costs to be addressed at hearing on exercise of discretion
DEVELOPMENT APPLICATION — Residential flat building in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – conciliation conference – Clause 4.6 request – height of buildings development standard – agreement between the parties – orders
DEVELOPMENT APPEAL – residential development demolition and construction on new dwelling – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – heritage conservation area – conciliation conference – agreement between the parties - orders
COMPULSORY ACQUISITION – compensation – construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 – determination of market value – decrease in land value caused by public purpose – advised of acquisition 12 months prior to acquisition – applicant ceased progress of construction – construction work not undertaken to be disregarded – determination of market value on basis work had continued – valuation methodology COMPULSORY ACQUISITION – compensation – assessment under s 59 of Land Acquisition (Just Terms Compensation) Act 1991 – disturbance – claim for multiple valuation reports – stamp duty – actual use of land – claim upheld under s 59(1)(f)
DEVELOPMENT APPLICATION: residential flat building in R4 High Density Residential zone – whether proposed development exhibits design excellence – satisfactory arrangements for designated state infrastructure – public submissions are considered
DEVELOPMENT APPLICATIONS – two development applications associated with regionally significant mixed use development – site specific planning controls – early works development application for demolition, tree removal, site establishment works – main works development application for demolition, excavation, remediation, construction including adaptive reuse of existing industrial buildings and three new buildings and new open space areas – design excellence – need for balconies within proposed studios and one-bedroom apartments – visual massing of new building and whether appropriate transition to adjacent low density residential development – lay objections
PRACTICE AND PROCEDURE – notice of motion – set aside notices to produce – forensic purpose – relevance to the issues in dispute – whether the notices to produce are oppressive – complying development certificate – landowner’s consent
DEVELOPMENT APPEAL – modification application – substantially the same as development approved – subdivision – conciliation conference – agreement between the parties - orders
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of sunlight to a window – balancing views and privacy – no genuine damage as a result of hedge
DEVELOPMENT APPLICATION: alterations and additions to dwelling house in R2 Low Residential Density zone – conciliation conference – agreement between parties – orders
ENCROACHMENT – ss 2, 3 and 4 of Encroachment of Buildings Act 1922 (NSW) – characterisation of encroaching owner and adjacent owner – Applicant encroaching owner – relief not available – discretion not exercised – application dismissed
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
CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Notice of motion to vary Registrar’s decision to refuse leave to adduce expert town planning evidence — Principles on review of a Registrar’s decision — Whether in the interests of justice to vary decision — Material change in circumstances — Motion granted
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – obstruction of view – requirement of hedge to be at least 2.5 metres tall – pruning of hedge prior to hearing – whether the trees are severely obstructing a view – whether the obstruction must be present on the day of the hearing – evidence of view obstruction – orders for removal of bamboo
SENTENCING – environmental offence – guilty plea – contravene bore extraction limit condition of approval – water access licence – person other than the licence holder – water supply work and water use approval – objects of the Water Management Act 2000 (NSW) – water management principles –maximum penalty – objective circumstances – inadvertent and not deliberate breach – whether offence committed for financial gain – impact on other persons’ water rights – market value of water lost, misused or unlawfully taken – extent of harm caused or likely to be caused to the environment – reasonable foreseeability – control over causes that gave rise to the offence – whether offence committed during a severe water shortage – subjective circumstances – remorse shown by the offender – early plea of guilty – assistance to authorities – good character and no prior convictions – not likely to reoffend – principles of sentencing – proportionality – general deterrence – specific deterrence – denunciation and retribution – consistency in sentencing – comparable sentences – whether the offence should have been prosecuted in the Local Court – maximum penalty for the same offence in the Local Court – capacity to pay fine – payment of share of fine to prosecutor – penalty imposed – publication order
APPEAL – modification application – internal and external alterations to a seniors living development – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – mixed use development in B4 Mixed Use zone – residential apartment development – whether exhibits design excellence – whether community infrastructure is included – flood evacuation – whether variation to sun access development standard is justified -
APPEAL – development application – boarding house – breach of height development standard – question of whether a clause 4.6 request is required – whether local environmental plan is inconsistent with the state environmental planning policy – whether proposed development complies with the permitted floor space ratio – whether design is compatible with the character of the local area - amenity of boarding rooms
COSTS — Application by second respondent for costs in Class 4 proceedings — Second respondent joined to the proceedings by applicant — Where proceedings resolved without a determination on the merits — Where applicant and second respondent achieved in substance the desired result — Where fair and reasonable to make a costs order — Partial costs order made
APPEAL – development application – Torrens title subdivision of land into two lots and construction of dwelling houses and secondary dwellings – conciliation conference – agreement reached – orders made
MODIFICATION APPLICATION – amendments to approved shop top housing – potential view and amenity impacts to adjoining properties – amended plans – agreement between the parties – orders made.
INTERLOCUTORY ORDERS – stay of development control order – stop use – use not in accordance with development consent –– appeal against order – stay of order to allow limited use – partial stay granted
CRIMINAL APPEAL: penalty appeal against fines imposed by Local Court for the commission of two water pollution offences caused by failure to properly implement soil erosion and sediment controls – prosecutor conceded that fines imposed not warranted – pleas of guilty entered below – appeal by way of rehearing – appropriate sentence to be imposed – pleas of guilty entered below – offences committed recklessly – limited environmental harm caused by the commission of the offences – low objective seriousness – no prior convictions – genuine expression of remorse – specific deterrence warranted – application of totality principle – appeal upheld and lesser fine imposed. COSTS: who should pay the costs of the successful appeal – principles to be applied – each party to pay their own costs – costs order below undisturbed.
DEVELOPMENT APPLICATION – development for the purposes of shop top housing – Parramatta Road corridor – variation to floor space ratio sought – voluntary planning agreement proposed – compatibility of the development with the desired future character – precondition to the grant of consent not satisfied – appeal dismissed
DEVELOPMENT APPEAL – masonry wall – boundary fence –insufficient information to assess the development application – merit assessment - impact on views – privacy - orders BUILDING INFORMATION CERTIFICATE APPEAL – insufficient information to assess the application – notional merit assessment - orders DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – masonry wall – stop work order – estoppel - orders
COSTS — Self-represented respondents — Application for costs in Class 4 proceedings — Where proceedings resolved without a determination on the merits — Where applicant did not act unreasonably in the commencement and maintenance of proceedings — Where applicant in substance succeeded, and would have succeeded in any event — Orders made that respondents pay 75% of applicant’s costs
MODIFICATION APPLICATION: modification application for residential flat building in R2 Medium density residential zone – conciliation conference – agreement between parties - orders
DEVELOPMENT APPEAL – vegetation clearing – construction of dual occupancy – earthworks - conciliation conference – agreement between the parties - orders
APPEAL – development application – alterations and additions to a former cinema for the purpose of retail, commercial and shop top housing – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION: change of use – residential apartment development – mixed use development – FSR standard is exceeded - heritage conservation area – street frontage height
INJUNCTION – ex parte application – serious question to be tried – balance of convenience – fill material contaminated with asbestos – prohibited development – interlocutory orders made
COMPULSORY ACQUISITION: flood prone vacant land acquired by the council for the public purpose of stormwater harvesting project – land constrained by easements and affected by traffic noise – highest and best use of the land is for rural-residential development – limited comparable sales evidence – adoption of hypothetical development approach –application of statutory disregard – claim that stormwater harvesting project either unfeasible or illegal irrelevant to proceedings – limited weight placed on valuation evidence of applicant because it was decades old and because no adjustments were made to comparable sales – no other valuation evidence provided by applicant – no town planning evidence relied upon by applicant – Court relied upon the town planning and valuation evidence provided by the respondent to calculate the compensation payable for the acquisition of the land.
DEVELOPMENT APPLICATION –alterations and additions to existing attached dwellings – parking space in front setback with landscaping - conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – food and drinks premises (McDonald’s) – site suitability – amenity impacts upon the neighbourhood – traffic and pedestrian safety
CIVIL ENFORCEMENT- failure to comply with order issued by local council under Local Government Act requiring clean-up of residential property due to unsafe and unhealthy condition – declaration of failure to comply with LG order made – consequential orders made including that council can undertake work if LG order not complied with in 30 days – costs order made in favour of council
REMOVAL APPLICATION ‑ Applicant applies for consent for designated development ‑ submitter lodges objection ‑ Applicant appeals to Court against deemed refusal of development application ‑ submitter notifies Registrar exercising right to be a party to the proceedings ‑ Registrar records submitter as Second Respondent to Applicant's appeal ‑ Applicant files Notice of Motion seeking to have Second Respondent removed ‑ Applicant alleges notification to Registrar made after the expiry of the permitted statutory time period for such notification ‑ two possible dates when Council might be taken to have notified the submitter of the Applicant's appeal ‑ Applicant relies on earlier date for the commencement of the statutory period ‑ submitter relies on the later date for the commencement of the statutory period ‑ position advanced by the Applicant correct ‑ submitter’s notification to the Registrar made after the expiry of the statutory period ‑ administrative action taken by Registrar based on (incorrect) assumption conveyed by submitter ‑ appropriate to remove the submitter as the Second Respondent to the proceedings. JOINDER APPLICATION ‑ submitter applies to be joined as party to the proceedings ‑ submitter advances ten contentions proposed to be raised if joined ‑ consideration of whether any of the submitter’s proposed contentions raise matters which would otherwise not be sufficiently addressed - consideration of Council’s contentions ‑ submitter’s contentions different from those raised by the Council - one of the submitter’s contentions potentially warrants joinder as a party ‑ Applicant raises discretionary issues against joinder - Applicant's discretionary issues do not warrant rejection of joinder application ‑ submitter joined as Second Respondent based on identified contention ‑ once joined, submitter is a party for all purposes ‑ joinder ordered COSTS ‑ Applicant seeks order for costs of successful motion to remove submitter ‑ Council takes active role in supporting the submitter’s case resisting removal ‑ Applicant opposes submitter’s application to be joined ‑ appropriate costs outcome that each party bear their own costs of the hearing of the two motions unless some alternative costs order sought within 14 days of the date of the dispositive orders resolving the two Notices of Motion
TREES (DISPUTES BETWEEN NEIGHBOURS) – branches overhanging roof of dwelling – apprehension of damage and injury – leaves falling onto roof, gutters and hard surfaces – mould – unreasonable maintenance burden
CIVIL PROCEDURE — Applications seeking summary dismissal or strike out of proceedings — Application to file judicial review out of time — Jurisdictional error not established — Motion granted in that summons dismissed — PRACTICE AND PROCEDURE — leave granted to further amend summons clarifying civil enforcement claims
PRACTICE AND PROCEDURE — Notices of motion — Leave for application to rely upon amended summons granted — Notices of motion otherwise withdrawn and dismissed
DEVELOPMENT APPLICATION: proposed residential flat development – interpretation of ‘site area’ for the purpose of determining applicable development standards – whether the proposed variation to the height and floor space development standard should be granted – appeal dismissed
DEVELOPMENT APPEAL – mixed use development – boarding house – variation to height of building development standard – conciliation conference – agreement between parties – orders
DEVELOPMENT APPEAL – child care centre – construction of new acoustic roof structure over outdoor play area - conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – conciliation conference – dwelling house – clause 4.6 request to vary the height standard – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – whether the trees severely obstruct sunlight to a window – sunlight obstruction to courtyard not within Pt 2A jurisdiction – other issues cannot be dealt with under Pt 2A
CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre in breach of complying development certificate because operating as a shop – no impermissible shop use occurring in business zone CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre as a retail pharmacy in breach of occupation certificate permitting medical pharmacy
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – whether the tree is likely to cause injury – who should pay for tree removal – actions of the applicant contributed to the death of the tree
INTERLOCUTORY INJUNCTION – principles applicable to interlocutory applications – no serious question to be tried – balance of convenience – whether there is risk of irreparable harm – the preservation of the status quo – prejudice to third parties – public interest – no undertaking as to damages – delay in making application – application dismissed – costs in the cause
DEVELOPMENT APPLICATION – consent sought for works only (not land use) on two sites – emplacement of fill on contaminated land –– proximity of sites to Lake Illawarra – coastal protection classification of sites – category 1 remediation – statutory provisions under State Environmental Planning Policy (Resilience and Hazards) 2021: s 4.10 restricting refusal powers for category 1 remediation works; s 4.14 requiring remediation work to be carried out in accordance with relevant guidelines – adequacy of detailed site investigation with respect to relevant guidelines – adequacy of remediation action plan with respect to relevant guidelines – remediation with respect to surface pathway of contaminants and airborne contaminants provides significant improvements to existing setting – whether statistical methods correctly applied to demonstrate site groundwater meets background groundwater contamination levels - flawed application of statistical methods – whether further cleaning up of groundwater required under relevant guidelines - unconvincing arguments in regard to remediation “best practical means” under relevant guidelines – inadequate responses to groundwater contamination under relevant guidelines – filling of flood prone land – permissible flood impacts under development control plan do not apply to land fill works as a development type – development control plan provisions restricting filling within the floodplain do apply and are breached - flexible application of development control plan
APPEAL – development application – residential flat building – breach of height development standard – potential breach of FSR development standard – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – shop top housing development – height of building contravention – whether written request demonstrates sufficient environmental planning grounds to justify the contravention
APPEAL – development application – specialised retail premises, food and drink premises and health services facilities – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL – shop top housing development – residential flat building – variation to height of building development standard – conciliation conference – agreement between parties – orders
SENTENCE ‑ charge of pollute waters ‑ overflow of sewage pumping station caused during repair of split rising main ‑ overflow of untreated sewage from pumping station into waterway ‑ Defendant convicted after trial on “not guilty” plea ‑ consideration of the extent of the environmental harm caused by the offending conduct - the offending conduct to be characterised as being toward but not at the lowest end of the low range of offending conduct - consideration of the appropriate starting penalty - a proposal that portion of the appropriate starting penalty be diverted to a local environmental project in the vicinity of the location where the pollution incident occurred - appropriate to order funding contribution for the environmental project - appropriate to order publication of a notice in the Daily Telegraph for educative and deterrence purposes - appropriate to order letter of apology signed by the Defendant's Managing Director to occupants of residences potentially adversely impacted by the additional pollution for which the Defendant has been convicted - no valid reason why the Defendant should not be ordered to pay the Prosecutor's costs of the proceedings with any dispute as to how those costs were to be disentangled from the overall costs of the liability proceedings to be addressed through a conventional costs assessment process - total monetary penalty of $200,000 of which $45,000 is to be paid to Fairfield City Council as a contribution toward the cost of the Quest Avenue Vegetation Swale Project proposed to be undertaken by that Council - a moiety of the residue of the financial penalty (being 50% of $155,000) to be paid to the Prosecutor pursuant to s 122 (2) of the Fines Act 1996
PROSECUTIONS - multiple charges laid pursuant to the National Parks and Wildlife Act 1974 and the Biodiversity Conservation Act 2016 (together the charge‑founding statutes) - charges required to be laid within two years of alleged offending conduct becoming known to an authorised officer - challenges to whether charges were laid prior to the expiry of the two‑year limitation period - two separate bases advanced by the Defendant as to why the prosecutions were commenced out of time - first basis that the day knowledge of the offending conduct coming to the attention of an authorised officer to be counted in the two‑year limitation period - second basis (if the first basis failed) was that the two-year time period expired on a Saturday and that the provisions of s 36(2) of the Interpretation Act 1987 (the Interpretation Act) were not available to the Prosecutor to extend the time for commencement of the prosecutions until the next available working day - question whether two-year limitation period included the day when the authorised officer became aware of the alleged offending conduct or whether that day was excluded from the two-year period - Defendant proposes that the day was included - inclusion of the day would mean that all the prosecutions were commenced out of time - day the authorised officer became aware of the alleged offending conduct not to be counted in the two-year period - consideration of whether the relevant provisions in the charge‑founding statutes ousted the operation of the Interpretation Act provision – time‑extending provision of the Interpretation Act not ousted - prosecutions all commenced within time - Defendant’s Notice of Motion dismissed
SENTENCE ‑ Defendant charged with three offences pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 (the POEO Act) for transmitting information concerning waste during the course of dealing with waste where the information was false or misleading in a material respect and the Defendant knew that it was false or misleading ‑ Defendant also charged with one offence pursuant to s 144AA(1) of the POEO Act of transmitting information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect ‑ Defendant pleads guilty to all four charges after eight day trial ‑ charges against Defendant’s sole director withdrawn ‑ consideration of objective factors concerning the Defendant's offending conduct ‑ consideration of the Defendant's subjective factors ‑ appropriate starting penalties for each s 144AA(2) offence of $330,000 ‑ appropriate starting penalty for single offence under s 144AA(1) of $165,000 ‑ consideration of appropriate discount for guilty pleas ‑ guilty pleas made late but not so late as to disentitle Defendant to some discount for the utilitarian value of the pleas ‑ appropriate discount to be applied to each penalty of 10% ‑ consideration of totality and accumulation of penalties where offences arose from a single course of conduct ‑ appropriate to moderate the penalties for the second and subsequent offences ‑ Prosecutor seeks publication order ‑ Defendant opposes making of publication order ‑ appropriate to make publication order ‑ Prosecutor seeks moiety of penalties imposed ‑ moiety order not opposed by Defendant ‑ moiety of penalties ordered to be paid to the Prosecutor ‑ total penalty imposed on Defendant of $943,650 COSTS ‑ Prosecutor seeks order for costs ‑ order for costs not opposed by Defendant ‑ Defendant ordered to pay the Prosecutor's costs of the proceedings against the Defendant as agreed or assessed
DEVELOPMENT APPLICATION – proposed pet resort – whether acoustic impacts are acceptable – whether ecology impacts are acceptable – consideration of Applicant’s plan of management - conditions of consent.
APPEAL – development control order –structure erected without required development consent – demolish works order – conciliation conference – agreement – modified order
DEVELOPMENT APPEAL – demolition – residential flat building – view sharing – height of building – conciliation conference - agreement between the parties - orders
ENVIRONMENTAL OFFENCES: taking of water without a properly operating water meter – construction and use of a water supply work without a water supply work approval – plea of guilty – factors to take into account in determining sentence – whether environmental harm – actual and substantial harm to the regulatory scheme – whether offences committed knowingly and to what extent – whether offences committed recklessly – whether offender in control of the causes of the offences – whether offences committed for financial gain – contrition and remorse demonstrated to a limited extent – totality principle applied – comparable cases – whether an order pursuant to s 353B(c) of the Water Management Act 2000 appropriate – monetary penalty imposed – publication order – costs ordered
DEVELOPMENT APPLICATION – use of existing building as farm building – building erected without development consent – no building information certificate
TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to roof and retaining wall – are there viable alternatives to tree removal – do benefits from trees exceed the imperative to remove them
DEVELOPMENT APPLICATION –mixed use - shop top housing - boarding house - breach in height development standards – cl 4.6 request for variation of standards - conciliation conference conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight – whether the obstruction is to a window – if no window Court has no jurisdiction
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling - breach in minimum floor space ratio and height development standards – cl 4.6 request for variation of standards - conciliation conference conciliation conference – agreement between the parties – orders
Development Application –– demolition of existing garage and construction of a two-storey building in the rear yard of the existing dwelling house – amenity impacts on neighbours, conservation area.
DEVELOPMENT APPLICATION – seniors housing development in R2 Low Density Residential zone – heritage conservation area – heritage significance of local heritage item – earthworks – whether deferral of essential matter
DEVELOPMENT APPLICATIONS – two adjoining sites – a proposed boarding house on each site – do the proposed development exhibit design excellence – are the proposed developments compatible with the character of the locality – are the likely impacts of the proposed development on adjoining properties acceptable – is the amenity of the proposed boarding houses acceptable – appeals upheld.
DEVELOPMENT APPLICATION – demolition of existing dual occupancy and erection of new dwelling house – bulk and scale – non-compliance with building envelope control in development control plan
DEVELOPMENT APPLICATION – amendments to deferred commencement condition of existing consent – rooftop terrace with accessible lift – acoustic and visual privacy amenity considerations
DEVELOPMENT APPLICATION – application for the construction of semi-detached dwellings and Torrens title subdivision – application properly characterised as dual occupancy (attached) development and Torrens title subdivision because the development is on one lot of land – prohibition of Torrens title subdivision that would create separate titles for each of the two dwellings resulting from a dual occupancy development
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight – jurisdiction of Act does not extend to obstruction of sunlight in back yard
DEVELOPMENT APPLICATION – childcare centre – flooding impact and reliance on modelling – appropriateness of mitigation design – consideration of site suitability due to flooding impact
DEVELOPMENT APPLICATION – reuse of existing locally listed heritage item – restoration and conservation works proposed – development application seeks to utilise heritage incentives clause for permissibility of the proposed use – planning and heritage matters agreed by experts – what are the works for which consent are sought – what is the land to which the development relates – does the applicant have owners consent for that land – does the proposed development provide adequate water management – does the stormwater management system include all reasonable measures to avoid adverse impacts on adjoining land – appeal dismissed.
DEVELOPMENT APPLICATION: consent sought for demolition and construction of a multi dwelling residential development – whether the development is consistent with the development control plan requirements for parking and internal dwelling design – whether the design of the development is compatible with the existing or desired future character of the neighbourhood – whether the proposed driveways and garages dominate the streetscape presentation of the development – appeal upheld
APPEAL – development application – construction of a swimming pool seaward of the coastal building line – coastal erosion – whether it will increase the risk of beach erosion – definition of beach erosion – whether it will impact coastal management
DEVELOPMENT APPLICATION – educational establishment – proposed increased student numbers – whether proposed parking and student collection and drop-off arrangements are acceptable – Proposed Development unable to satisfy are potential noise impacts of proposal acceptable
APPEAL – development application – boarding house development – sufficiency of onsite parking – exercise of discretion to approve a fewer number of car spaces
TREE PERMIT APPLICATION – application to remove trees – whether removal of trees is justified – consideration of damage to property – consideration of conditions of consent.
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to roofs and sewer - leaves, fruit and small sticks falling onto roofs and yard – tree was there first
APPEAL – development application – five-storey commercial development in commercial centre – bulk and scale – contravention of height and floor space ratio development standards – adequacy of the written requests – whether sufficient environmental planning grounds – whether the requests have demonstrated compliance is unreasonable or unnecessary
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – risk of damage and injury – reasonable action to mitigate the risk – ownership of boundary trees – orders for pruning – orders for survey
DEVELOPMENT APPLICATION – proposed pet resort – whether acoustic impacts are acceptable – whether ecology impacts are acceptable – consideration of Applicant’s plan of management - conditions of consent.
ENVIRONMENT AND PLANNING – Offences – Prosecutions – Six events of clearing native vegetation in contravention of s 12 of the Native Vegetation Act 2003 – Two events of clearing native vegetation in contravention of s 60N of the Local Land Services Act 2013 – 32 summons – Trial – Whether “clearing” – Whether “native vegetation” – Whether each defendant responsible for the clearing – Consideration of statutory defences – Mr Greentree and Auen Grain Pty Ltd found guilty – Proceedings listed to obtain sentence hearing date – Mr Harris and Merrywinebone Pty Ltd found not guilty – Summons stood over for entry of final orders
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a seniors housing development – amended plans – agreement between the parties – orders made
DEVELOPMENT APPLICATION- demolition of existing boarding house, construction of new multi dwelling housing – amended plans and additional information – agreement between the parties – orders made.
DEVELOPMENT APPLICATION – subdivision of land – bushfire prone land – potential impacts on biodiversity – potential impact on squirrel glider habitat – creation of wildlife corridor – whether Applicant’s BDAR is acceptable – whether Applicant’s proposed wildlife corridor is acceptable – consideration of proposed conditions of consent.
DEVELOPMENT APPLICATION – proposed service station– whether potential noise impacts are acceptable – whether potential impacts concerning character, visual and streetscape are acceptable – consideration of conditions of consent – directions concerning facilitation of site access – consent in the public interest.
DEVELOPMENT APPLICATION – subdivision of land – bushfire prone land – potential impacts on biodiversity – potential impact on squirrel glider habitat – creation of wildlife corridor – whether Applicant’s BDAR is acceptable – whether Applicant’s proposed wildlife corridor is acceptable – consideration of proposed conditions of consent.
DEVELOPMENT APPLICATION – Torrens title subdivision – dryland salinity and groundwater management – lot design and landscaping relevant to site constraints - conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION: alterations and additions to dwelling in C4 Environmental Living zone – whether consistent with character – streetscape character - visual privacy – scenic protection area – swimming pool forward of building line
DEVELOPMENT APPLICATION – Torrens title subdivision – flooding management – lot design and relevant to site constraints - conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION: subdivision of land – dwelling house development in R1 General Residential zone – heritage conservation area – conciliation conference – agreement between parties - orders
APPEAL – development application – boarding house – whether site is within an accessible area – definition of walking distance – whether walking across a park meets definition – whether site is suitable for the development – whether there is any requirement to consider distance to public transport and other facilities
APPEAL – modification application – changes to materials and finishes on a consent for alterations and additions to a terrace – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – Additions and alterations to an existing barn – conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION — mixed use development in B2 Local Centre zone – design quality of residential apartment development – traffic impacts – whether ongoing operation of a classified road will be adversely affected by the development