DEVELOPMENT CONTROL ORDER – power to issue an order – completion or non-completion of Stage 1 works – development consent conditions – impacts on amenity of residents – period for compliance
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – exceedance of development standards for height and floor space ratio
DEVELOPMENT APPLICATION – boarding house –size of development – compatibility with character of local area – amenity impacts for neighbours –objections – public interest
MODIFICATION APPLICATION – conciliation conference – agreement between the parties – development carried out not in accordance with development consent – development control order – appeal against order – building information certificate application – appeal against refusal to issue building information certificate
DEVELOPMENT APPLICATION – childcare centre – compliance of the development with childcare regulations – whether the acoustic impact of the development is reasonable – constraints of the proposed plan of management – sufficiency of indoor and outdoor unencumbered play space – amenity of outdoor play areas – suitability of the site for the development
APPEAL – Swimming Pool child resistant barrier exemption – pool constructed prior to 1990 – impracticable or unreasonable – physical nature of the premises – orders
DEVELOPMENT APPLICATION – residential flat building – development standard contravention – minimum lot size for residential flat buildings – desired future character – bulk and scale – amenity impacts
DEVELOPMENT APPLICATION – attached dwellings – Torrens title subdivision – whether the subdivision is consistent with existing subdivision pattern – streetscape and design – built form and character
APPEAL – development application – adequacy of onsite parking – whether parking credit should apply – no parking provided for café use – availability of on-street parking – adequacy of carpark design
ENVIRONMENT AND PLANNING – development application – boarding house – appeal against refusal of application – whether development is a dwelling – housing density standard – low intensity, low impact use development – development application is consistent with desired future character statement – variations to standards approved subject to conditions
ENVIRONMENT AND PLANNING — Orders — Where respondent imported fill, engaged in earthworks, constructed hardstand areas and used land for storage or as a warehouse or distribution facility without development consent — Breaches admitted — Whether order for cessation of use, removal of fill and restoration of premises to prior ground level is appropriate — Whether suspension of injunctive relief ought to be granted ENVIRONMENT AND PLANNING — Environmental planning instruments — Prohibited uses — Whether the zoning provisions for unzoned land under a state environmental planning policy are inconsistent with the zoning provisions of a local environmental plan
DEVELOPMENT APPLICATION – Child care centre – overdevelopment – car parking shortfall – vehicle safety and sightline concerns – adequacy of basement design – landscaping of setbacks – amenity for neighbours – resident objections – public interest
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – residential apartment development – residential flat building – Marsden Park Precinct – conciliation conference – agreement between the parties – orders
APPEAL – development – demolition of existing residence – construction of new residence and swimming pool – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION – boarding house – initial development in precinct up-zoned from low density to high density residential – design excellence – relationship with public reserve – street activation – relationship with adjacent site and its future development prospects
APPEAL – development application – place of public worship – headlight glare – whether there is an acoustic impact – adequacy of assessment of calculated noise levels – assessment does not incorporate certain factors – whether the residents will be exposed to unreasonable noise
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring trees – whether the damaged property (a retaining wall) is on the boundary – the trees have been removed – orders no longer sought for a retaining wall
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of views severe in this context – other contributions to view obstruction – future considerations not relevant
NOTICE OF MOTION – application to reopen hearing after judgment reserved – interests of justice – additional cost and delay – little probative value of new evidence APPEAL – building information certificate appeal – appeal against development control order – unauthorised deck constructed – relevance of development control plan provisions – notional development application – relevance of the impacts of structure to the exercise of discretion in determining the appeals – town planning impacts – impacts on management of stormwater on site – impacts of stormwater flow from deck
MODIFICATION APPLICATION – variation of contributions levied on development consent for large subdivision – comity between decision makers – scope and meaning of “unreasonable” in s 7.13(3) of Environmental Planning and Assessment Act – operation of the scheme of the power to impose contributions – whether a credit or offset should be allowed for material public benefit when the material public benefit is provided as a condition of the development consent – whether on the merits a credit or offset should be allowed – operation of the Contributions Cap
DEVELOPMENT CONTROL ORDER – requires demolition of retaining wall, shed, external timber stairs – amended plans – whether there is an unreasonable impact on stormwater flow – agreed amended Development Control Order proposed BUILDING INFORMATION CERTIFICATE – additional information required now provided – amended scope – orders
APPEAL: whether condition of consent imposing contributions should be modified – contributions calculated by reference to “gross floor area” of development – proper construction of term “gross floor area” – proper construction of exemption in subparagraph (h) of definition of “gross floor area” – whether corridors accessing unloading and loading spaces exempt from calculation of “gross floor area” – corridors exempt – whether utility in modifying condition because contributions already paid – utility in modifying the condition– consent neither exhausted nor spent – appeal allowed – condition modified.
DEVELOPMENT APPEAL – residential flat building – clause 4.6 request for height of building – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development – Canterbury Road frontage – variation to minimum lot width control – desired future character – whether the development is acceptable on merit – appeal upheld
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction sunlight – whether the obstruction is severe – orders for removing the hedge
Appeal against refusal of permission for tree removal – tree listed as Significant by Council – tree is over mature – is the tree close to death – does the tree pose an unacceptable risk
EXEMPT DEVELOPMENT - change of use of premises - change in mix of building classes pursuant to Building Code of Australia (BCA) - consideration of provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) as the tests for whether change of use constituted exempt development - necessity for new use to satisfy requirements of the SEPP not only when the change of use occurred but on a continuing basis - changes in building classification not a barrier to change of use being exempt development - SEPP set fire safety requirements that must be satisfied - fire safety requirements not satisfied at the time of change of use and continue to remain unsatisfied - new use was not and is not exempt development - requirement that new use be compliant with hours of operation condition in any development consent for earlier use - consideration of whether a statement by an employee of the present operator constituted an adducible admission demonstrating that the hours of operation breached the condition of the earlier development consent - statement satisfies requirements of s 87 of the Evidence Act 1995 (NSW) so as to constitute an admission - changed use operating in breach of hours of operation condition of prior development consent - second basis for concluding that the change of use was not exempt development at the time of the hearing - new use requires development consent to be permitted to continue - declarations and orders appropriate DISCRETION - tenanted premises used as tyre storage facility - consideration of whether tenant’s tyre storage activities should be permitted to continue in order to permit lodgement of a development application to regularise this use of the premises- appropriate to provide an opportunity to seek development consent to permit continuation of present use - necessity for interim and ongoing fire safety improvements - orders provide for implementation of remedial works agreed to by fire safety experts - orders also provide for additional interim fire safety measures pending determination of development application - appropriate to suspend order requiring cessation of present use pending determination of development application to regularise the present use FIRE SAFETY ORDER - Fire Safety Order served on the owner of the premises - remedial fire safety works proposed by the order differ from those agreed as necessary by the fire safety experts in the proceedings - appropriate to make a declaration that the owner of the premises had not complied with the terms of the Fire Safety Order - because fire safety upgrade works and interim fire safety operational arrangements to be imposed by orders in these proceedings, appropriate to direct that the Council discharge the Fire Safety Order with which the owner has not complied COSTS - Council successful in seeking declaration that the change of use was not exempt development - Council successful in obtaining orders for a range of agreed remedial fire safety works and interim fire safety operational conditions pending determination of a development application to continue the use - costs to follow the event - costs to be ordered jointly and severally against the tenant and the owner of the premises
DEVELOPMENT APPLICATION - application to install moveable glazing enclosure at the uppermost level of a building - application refused by the Council - review of Council's refusal results in further refusal - compliance with requirements of the Woollahra Development Control Plan 2015 - necessity for cl 4.6 request for dispensation from compliance with height of buildings control - consistency with streetscape and desired future character - extent of visibility from various locations in the public domain - if the proposal is acceptable on general merit bases, request for dispensation from compliance for the height of buildings development standard should be assumed - present northern façade of the prominent building highly visible from the public domain - present northern façade of the building symmetrical - two balcony enclosures approved in 2001 under different planning controls - 2001 balcony enclosures did not impact on the symmetry of the northern façade of the building - proposed development has unacceptable visual impact and impact on the desired future character of the locality - appeal dismissed and proposed development refused consent
DEVELOPMENT APPPLICATION – childcare centre – character of the area – sufficiency of outdoor play area – impact on large tree – insufficient detail – resident concerns including traffic and parking
MERITS APPEAL – separate questions of law –proposed subdivision of neighbourhood lot prohibited by local environmental plan as exceeds permitted average lot size – neighbourhood lot a resulting lot under local environmental plan and subdivision cannot be granted under local environmental plan
CRIMINAL – preliminary hearing of collateral attack on validity of notice issued under s 191 of the Protection of the Environment Operations Act 1997 seeking records and information – notice invalid
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the neighbouring tree caused damage – sewer pipes – whether the tree must be removed – orders for root pruning
APPEAL – change of use and internal alterations for purpose of dual occupancy – dwelling approved as complying development – application made for affordable housing pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 – breach of minimum road frontage for dual occupancy developments – adequacy of cl 4.6 request – whether compatible with character of local area – breach of local planning controls for setbacks and hardstand areas – public interest in allowing the development
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a retaining wall – whether the retaining wall is on the common boundary – who is responsible for the retaining wall – whether the wall must be replaced – whether consent is required to replace the wall – whether the tree must be removed – whether a paling fence must be replaced – who should pay the costs of the works
INJUNCTIVE ORDERS – breach of planning law – declarations of breach – whether mandatory injunctive orders also needed COSTS – judicial review of council decisions – success on some but not all grounds of review – whether partial costs order justified
DEVELOPMENT APPLICATION – housing for older people or people with a disability – building height – setbacks – desired future character – streetscape – visual impact
JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent for new coal mine – state significant development – construction and application of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 in assessment of greenhouse gas impacts of new coal mine – no failure to refer project to Minister for Regional Water for advice as required by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requirements in considering impacts on water resources – no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternative sources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed
INTERLOCUTORY ORDERS – prosecution for offences – contravention of conditions of revocation of licence – pleas of guilty – sentence hearing yet to be fixed – application for adjournment of proceedings to allow for actions to mitigate environmental harm caused by commission of offences – adjournment granted
DEVELOPMENT APPLICATION – subdivision and dwelling house development – cl 4.6 variation to height – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – New garage at front to replace existing garage at rear – semi-detached pair – controls preference rear garages – loss of verge street tree – proposal will increase onsite open space and landscaping – streetscape impacts – application of s 4.15(3A) of the EPA Act – precedent
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of views – whether the obstruction is severe – privacy and other benefits – burden of ongoing maintenance – orders run with the land
CIVIL PROCEDURE – subpoena – objection to production of documents – client legal privilege – section 41(3) Land Acquisition (Just Terms Compensations) Act 1991 – whether Valuer-General is entitled to protection afforded by legal privilege – Valuer-General is entitled to such protection – relevant documents are privileged – no implied waiver of privilege
COMPULSORY ACQUISITION OF LAND – acquisition resulting in denial of services to residue lot, compensation, easement for services – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – alterations and additions to an existing residential dwelling plus new carport and studio – excavation – consistency with character and streetscape – scenic quality – tree retention and protection – solar access
DEVELOPMENT APPLICATION – multi-dwelling development – application of setback controls in development control plan – adequacy of private open space – potential overshadowing impacts – proposed development does not provide a reasonable alternative solution to achieve objectives of controls
DEVELOPMENT APPLICATION – alterations and additions to a dwelling house – State Environmental Planning Policy (Affordable Rental Housing) – Division 7 Group homes
DEVELOPMENT APPLICATION: State Environmental Planning Policy (Affordable Rental Housing) 2009 – boarding house development - heritage significance – cultural significance – interim heritage order – on site car parking provision
COSTS: application for costs in Class 2 tree matter – presumptive rule that each party pays their own costs unless fair and reasonable to otherwise order – whether fair and reasonable to order that the unsuccessful applicants pay costs – whether unreasonable not to excavate to determine the cause of damage – whether unreasonable for the applicants to rely on expert evidence stating that the tree was to blame for the damage – whether the applicants acted reasonably in attempting to reach agreement with the respondents – merely because the Acting Commissioner did not accept the expert evidence of the applicants did not make their commencement and conduct of the proceedings unreasonable – application for costs dismissed.
ENVIRONMENT AND PLANNING – appeal – development application – whether the development is prohibited development – the sign is a business identification sign – Part 3 of State Environmental Planning Policy No 64 does not apply – the development does not result in a projection higher than the sun access plane – the existing building height is in breach of the height control however the proposed development does not exceed the existing height – the development is not prohibited ENVIRONMENT AND PLANNING – appeal – development application – whether the development should be refused on merit – development satisfies criteria specified in schedule 1 to State Environmental Planning Policy No 64 – compatible with character of the area – heritage significance not diminished to sufficiently adverse extent – development improves quality and amenity of public domain – development displays design excellence – only one sign approved as per section 3.16.5.2(7) of the development control plan
JUDICIAL REVIEW – complying development certificate (CDC) – tenancy fitout as a pizza shop – shop in strata-titled building – works required in common property to make pizza shop functional – land on which development to be carried out – whether lot only or also common property – whether owner’s consent of Owners Corporation needed for application – whether sham application if no works proposed in common property – type of complying development – internal building alteration and/or change of use of premises – construction of application as to development proposed – if change of use, whether complied with criteria for specified complying development and development standards – need for notice from water utility before CDC issued – notice not obtained – need for food and drink premises to comply with AS 4674-200 – works on lot will not comply – if internal building alteration, whether complied with criteria for specified complying development – need for building to have consent for use – CDC will give consent for use – need for inspection of site of development before CDC issued – inspection and record of inspection non-compliant with regulatory requirements – works on common property without consent – relief – declarations and injunctions granted
DEVELOPMENT APPLICATION– residential flat building – Redfern Heritage Conservation area – mixed use development – conciliation conference – agreement between parties – orders
INTERLOCUTORY APPLICATION: application to restrain Council from upgrading sporting fields – whether consent needed to carry out upgrade – whether environmental impact statement required – whether undertaking not to demolish specific heritage items sufficient – whether upgrade remediation works requiring consent – whether plans of management breached by upgrade – whether future use of park after upgrade inconsistent with active recreation use under plans of management – whether irreparable harm to trees by upgrade – adverse dust, sedimentation, contamination and stormwater impacts if upgrade did not proceed - balance of convenience favoured the Council – interim relief refused.
DEVELOPMENT APPEAL – boarding house development – R4 High Density Residential zone – whether compatible with the character of the local area – site isolation – clause 4.6 written request – exceedance of height control
DEVELOPMENT APPEAL: boarding house development – R4 High Density Residential zone – whether compatible with the character of the local area – site isolation – traffic impacts in the locality
MODIFICATION APPLICATION – conditions relating to outside areas of an existing residential development – conciliation conference – agreement between the parties – orders
APPEALS – two development applications – change of use of outbuildings to secondary dwellings – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION — alterations and additions to an existing building – local heritage item – existing dwelling is in ruinous condition – impact on the heritage significance of the local heritage item – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – the temporary roof over the existing dwelling installed for weather protection is not part of the building for the purpose of the assessment of the proposed development
DEVELOPMENT APPLICATION – demolition of two boarding houses and one residential flat building – erection of a part three, part four storey residential flat building with basement parking – conciliation conference – agreement between the parties – orders
JOINDER - application by community group to be joined as Second Respondent to Class 1 appeal prior to holding of conciliation conference - joinder applicant seeks to raise three jurisdictional matters and two merit matters - merit matters adequately addressed by conventional pre-conciliation objector submission process - jurisdictional complaints not embraced by Council - merit matters do not warrant joinder - jurisdictional matters cumulatively warrant joinder - community group joined as Second Respondent
APPEAL – application to remove vegetation (a Lilly Pilly) – appeal against refusal of application – heritage conservation area – whether the tree has damaged property – whether the tree needs to be removed to remedy or prevent damage – proposed conditions – whether a root barrier is required – replacement planting
BUILDING INFORMATION CERTIFICATE – application for building information certificate – actions required before building information certificate could be issued – consent orders
APPEAL – development control order – modify the development control order under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 – site used as a manufactured home estate or seniors living development – structures on site constructed without approval
CRIME — Appeal and review — Appeal from Local Court to Land and Environment Court — By prosecutor on a question of law alone — Whether error in construction of a condition of development consent — Whether question of law alone — Whether vitiating error
COSTS - Applicant discontinues Class 1 merit appeal on the basis Respondent’s costs are reserved - Respondent applies for costs order for the whole proceedings on three bases - first basis was that it was “fair and reasonable”, pursuant to r 3.7(3)(f) of the Land and Environment Court Rules 2007 (the Court Rules) to make such an order as the Applicant's merit proceedings were “doomed to fail” - Applicant’s modification application sought a mixture of changes addressing, in part, contributions levied by the Council for drainage works (and paid to the Council) and, in part, merit matters concerning conditions of development consent - Respondent raises merit matters in the original Statement of Facts And Contentions and additional merit matters in an Amended Statement of Facts And Contentions - not appropriate to contemplate undertaking a hypothetical merit assessment, contrary to Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin) - even if appropriate to contemplate a hypothetical merit assessment, there was no evidentiary basis to do so with respect to merit matters pleaded by the Respondent - whether the central issues in the proceedings were legal issues - significant issues in the proceedings were legal ones but there were also significant merit issues pleaded by the Respondent as impediments to the application - r 3.7(3)(a) of the Court Rules not a basis for making a costs order in favour of the Respondent - third basis was that discontinuance was “an effective surrender” - failure of Applicant to explain discontinuance - additional merit matter pleaded by the Respondent in its amended contentions - no basis to conclude that discontinuance was an effective surrender without undertaking hypothetical trial of the merit matters pleaded by the Respondent in its contentions (including its amended contentions) - not appropriate to undertake such a hypothetical merit assessment contrary to Lai Qin - not appropriate to conclude that the Applicant had effectively surrendered - no general costs order appropriate COSTS - Respondent proposes limited costs order in two parts, if unsuccessful in general, costs application - Respondent seeks costs of preparation for, and hearing of, Notice of Motion to vacate conciliation conference - Notice of Motion not confined to vacation of conciliation conference as Respondent also sought leave to rely upon Amended Statement of Facts And Contentions - no dilatory conduct on behalf of Applicant in timing of agreement to vacation of conciliation conference - no basis for alternative costs order concerning Notice of Motion preparation and hearing - Respondent also seeks costs associated with evidence preparation between hearing timetabling and Applicant’s discontinuance - timetabling of evidence preparation directions made – the evidence in preparation included expert evidence addressing merit matters pleaded by the Respondent - conventional pretrial process for Class 1 merit appeal - no basis for second element of alternative costs order - no alternative costs order appropriate COSTS - costs of costs applications usually follow the event - if unsuccessful in primary costs applications, Respondent seeks exclusionary costs order with respect to evidence provided by the Applicant's legal representatives - proper basis for provision of documentary evidence by Applicant's legal representatives - no basis to make any general exclusionary costs order concerning evidence by Applicant's legal representatives - some elements of one exhibit involved unnecessary photocopying - costs of unnecessary photocopying excluded from costs order in favour of the Applicant for the costs application
APPEAL – development application – off-site stormwater drainage works required – whether sufficient information to consider impacts of the development – design concerns – number of boarding rooms
PROCEDURE: application for a stay of a prevention notice pending the outcome of Class 1 proceedings – applicable principles for the granting of a stay – arguable cause of action – balance of convenience favours granting of stay subject to conditions.
DEVELOPMENT APPLICATION – heritage significance of local heritage item – heritage conservation area – Bowral Heritage Conservation Area – seniors living development – likely environmental impacts on both the natural and built environment
DEVELOPMENT APPLICATION – residential flat building – orderly development – whether the securing of property-related rights, using easements over adjoining land, should provide the same assistance as site consolidation – interpretation of “site area” and implications for development standards – interpretation of “significant development” for the purposes of site area calculations – interpretation of controls to prevent “double dipping” in relation to floor space – biodiversity protection – Blue Gum High Forest – interpretation of whether potentially adverse environmental impact cannot be avoided – overshadowing – significance of compliance with a design guidance measure vs design criteria under the Apartment Design Guide – interpretation of “neighbouring properties” under the Apartment Design Guide – the need to consider design alternatives in instances of overshadowing –contravention of floor space ratio control
DEVELOPMENT APPLICATION – demolition, re-subdivision – variation to minimum lot size – new dwelling house – amended plans – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders – Staged development – Bingara Gorge Estate – Section 4.24 of the Environmental Planning and Assessment Act 1979 – development application in respect of the site consistent with the consent for the concept proposal
INTERLOCUTORY ORDERS – stay of development control order – development carried out not in accordance with development consent – stop work order – appeal against order – stay of order to allow limited works – partial stay granted on conditions
CIVIL ENFORCEMENT - use of a caravan as a dwelling where such use is prohibited - use of a portable toilet in conjunction with the caravan without having approval as a wastewater management system - failure to obey an order to clean up unhealthy and hazardous vegetation - Respondent (owner of the site including the caravan and the portable toilet) presently in India - Respondent served with all relevant papers - Respondent indicates that he did not wish to take part in the hearing - Council seeks leave to rely on an Amended Summons - Amended Summons transmitted electronically to the Respondent with the opportunity provided to address the amendments - no reply from the Respondent - hearing proceeded on an ex parte basis - declarations as sought in the Amended Summons appropriate to be made - orders appropriate to be made to require cessation of use of the caravan as a dwelling, removal of the portable toilet from the site and cleaning up the unhealthy vegetation on the site - substituted performance order made to permit the Council to carry out the necessary activities after the expiry of 21 days from the end of the period of time permitted to the Respondent to comply with the orders - declarations and orders made COSTS - costs in Class 4 proceedings ordinarily follow the event - the matters contained in the Amended Summons did not substantially depart from those in the Summons originally commencing the proceedings - the event (being the outcome of the proceedings) was substantially that which had been sought by the Council in the original Summons - appropriate to order that the Respondent pay the Council’s costs
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – orders made previously – replacement of hedge – new plantings – obstruction of views – whether the obstruction is severe –– orders for pruning – orders for removal
PROSECUTION – sentencing individual defendant for two charges of knowingly supply false and misleading information about asbestos waste disposal – location of asbestos waste unknown – aggravating factors of financial gain, committed with no regard for public safety, planned criminal activity – high level of objective seriousness – subjective matters considered – totality principle considered where gaol time served for related fraud offences PROSECUTION – sentencing company defendant for two charges of knowingly supply false and misleading information about asbestos waste disposal – location of asbestos waste unknown – aggravating factors of financial gain, committed with no regard for public safety, planned criminal activity –no participation by defendant at any stage of proceedings – no subjective matters to consider – totality principle considered
APPEAL: appeal against sentence – pleas of guilty entered in the court below – construction of large shed without consent – prohibited use of the land as a truck depot – no actual or potential environmental harm other than to integrity of planning regime – mental state of the offender at the time of the commission of the offences – criminal negligence or recklessness – capacity to pay a fine – application of totality principle – appeal allowed – no order as to costs.
ENVIRONMENT AND PLANNING — Land and Environment Court — Appeal against decision of Commissioner — Whether applicant was denied procedural fairness — Whether Commissioner erred in concluding that further structural engineering detail was required — Whether Commissioner failed to consider relevant matters
CRIMINAL – appeal from conviction in Local Court for tree clearing in breach of development consent for subdivision – more than one development consent in force for same lot – prosecutor proves beyond reasonable doubt that trees cleared in breach of development consent for subdivision – alternative hypothesis that manufactured home estate development consent relied on by defendant for clearing of trees not proven on balance of probabilities – appeal dismissed
APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner concerning an order issued pursuant to s 124 of the Local Government Act 1992 - Appellant becomes bankrupt after commencing the appeal - effect of s 60 of the Bankruptcy Act 1966 (Cth) - Council solicitors seek views of bankruptcy trustees - bankruptcy trustees advise they did not intend to prosecute or discontinue the proceedings - bankruptcy trustees’ position triggers the operation of s 60(3) of the Bankruptcy Act deeming that the proceedings are abandoned - meaning of “action” for the purposes of the provision - whether the fact that the appeal has been commenced in circumstances where the applicant is a trustee of real property with no claimed personal interest in the trust property falls within the scope of an “action” for the purposes of s 60 - scope of the term “action” is to be construed as encompassing these appeal proceedings - whether granting an extension of time within which to commence an appeal causes the appeal to be deemed to have commenced from the date upon which the extension is granted - extension merely legitimises the validity of the appeal and does not alter the date of its commencement - whether the proceedings are saved because they fall within the scope of s 60(4) of the Bankruptcy Act - proceedings not saved by s 60(4) of the Bankruptcy Act - necessary consequence of the operation of ss 60(2) and (3) of the Bankruptcy Act is dismissal of the appeal COSTS - costs ordinarily appropriate to be ordered when proceedings dismissed as a consequence of the operation of s 60 of the Bankruptcy Act - such costs, if ordered, are to be personal to the bankrupt and not provable as a debt in the bankruptcy - Council expressly disclaims seeking any order for costs in these proceedings - costs not to be ordered
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) 2009 – boarding house development – character of the local area – owners consent
DEVELOPMENT APPLICATION – Wahroonga heritage conservation area – modification application – whether minimal environmental impacts – front fence and gates
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring tree – whether the tree has damaged the fence – whether the tree is likely to cause damage or injury – implications of proposed development – orders for pruning
DEVELOPMENT APPPLICATION – funeral home in R4 zone – proper characterisation – whether mortuary activities prohibited or ancillary – whether provision limiting area of business premises to no more than 100 sqm is a prohibition or development standard – cl 4.6 objection – whether application of the standard is unreasonable or unnecessary – whether the objectives of the standard and of the zone are met
EVIDENCE - admissibility - exceptions to the hearsay rule provided by s 87(1)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) - alleged admission - whether alleged admission was made with authority for the purposes of s 87(1)(b) of the Evidence Act - alleged admission not made with authority - whether alleged admission was made within the scope of the maker’s employment for the purposes of s 87(1)(b) of the Evidence Act - alleged admission not made within the scope of the maker’s employment - alleged admission not an admission able to be relied upon because neither limb of s 87(1)(b) of the Evidence Act satisfied - evidence rejected - consequential rejection of further evidence that was contingent on acceptance of rejected “admission"
DEVELOPMENT APPLICATION – vehicle hire or sales premises – legal status of applicants – whether application is a “sham” – whether satisfaction under SEPP 55 as to potentially contaminated land – whether arrangements for the disposal and management of sewage satisfy cl 7.9 Wyong Local Environmental Plan – whether sufficient information about number and nature of vehicle movements – whether access from a classified road (Pacific Highway) is appropriate – whether there is sufficient information to grant the application