APPEAL – appeal on questions of law from decision of Commissioner dismissing appeal of refusal of modification application of court approved development consent – no vitiating material error in approach to precondition that modification must be substantially the same as original development – no error of law demonstrated by reference to case law
CIVIL PROCEDURE — Injunction — Urgent injunction sought to restrain councillors from voting on Council motion — Removal of Chief Executive Officer — Reasons for grant and extension of injunctive relief
CRIME – environmental offences – s 7 Pesticides Act 1999 – s 10 Pesticides Act 1999 – negligent use of a pesticide in a manner that injured another person – use of a pesticide in a manner that injured another person – definition of “store” within “use” – whether defendant stored the pesticide – whether store contains an element of “future use” – was the conduct criminally negligent – where charge particularises actual injury rather than likelihood of harm – risk turns on degree of accessibility – defendant held to use the pesticide – criminal negligence not found
DEVELOPMENT APPLICATION – Alterations and additions to a contributory building – impact on the significance of the heritage conservation area – reasonableness of solar access impact to adjoining property – appeal upheld
DEVELOPMENT APPEAL – remitted matter – alterations and additions to approved dwelling that has commenced including change in use – exceedance of the height of building development standard – meaning of existing ground level – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards – excavation – consent orders sought
APPEAL – modification application – modification to a condition of consent that requires intersection upgrade to be completed prior to any occupation certificate – wording sought to be amended to allow issue of interim occupation certificate – application made pursuant to s 4.55(1A) – the power to modify under s 4.55(1A) can only be exercised if the modification has minimal environmental impact – whether evidence establishes minimal environmental impact
PROCEDURE: application to vacate hearings dates due to non-compliance by expert town planners with orders for the filing of their joint report – matter raises complex planning issues – expert valuers require joint town planning report to complete their evidence – prejudice to both parties by non-compliance of town planners with orders – hearing vacated – costs reserved to be determined at a specially fixed hearing.
CIVIL ENFORCEMENT– residential development likely to have significant impact on threatened species – requirement for species impact statement with development application – no species impact statement provided with development application – development consent invalid
CIVIL ENFORCEMENT – breach of Heritage Act 1977 arising from excavation of potential relic – exculpating circumstances
CIVIL ENFORCEMENT – earthworks and roadworks authorised under construction certificate not inconsistent with development consent
DEVELOPMENT APPLICATION – retention and conservation of a cottage identified as a local heritage item and construction of a residential flat building – exceedance of the height of buildings development standard
DEVELOPMENT APPLICATION – for the use of an awning addition attached to an outbuilding – floor area/area – overdevelopment – dominance in the streetscape or rural setting – visual prominence – cumulative impact – land use conflicts – amenity and public interest
BUILDING INFORMATION CERTIFICATE – approval for a partially built awning attached to an outbuilding
COSTS – applicant successful in principal judgment – respondents filed submitting appearances in principal hearing – effect of submitting appearances – submitting appearance is only one circumstance and is not alone determinative – each respondent contributed to making of errors – no disentitling conduct from applicant – offers to settle proceedings – question of reasonableness of not resolving the proceedings – general rule that costs follow the event
MODIFICATION APPLICATION – whether the modified development is substantially the same pursuant to s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 as the original development for which development consent was granted – whether the number of additional dwellings proposed is excessive
CIVIL PROCEDURE — Injunction — Urgent injunction sought to restrain councillors from voting on Council motion — Removal of Chief Executive Officer — Balance of convenience where Council meeting is imminent — Injunctive relief granted
PRACTICE AND PROCEDURE - two criminal proceedings commenced alleging the Defendant in each breached s 125(1) of the Environmental Planning and Assessment Act 1979 - motions by Defendants seeking orders that each Summons be quashed, set aside or permanently stayed - whether Summonses patently duplicitous - whether Summonses latently duplicitous - Summonses patently duplicitous - Prosecutor given the opportunity to consider seeking leave to amend in each instance.
DEVELOPMENT APPLICATION – Demolition of an existing residential flat building and partial demolition of two semi-detached dwellings – construction of new residential flat building – parties agreed – public objections – appeal upheld
SENTENCE - charge of unlawful clearing of native vegetation - defendant in land clearing business - plea of guilty - consideration of potential aggravating factors - substantial environmental harm not established - clearing carried out for financial gain - consideration of defendant’s subjective factors - lack of contrition and remorse - need for both specific and general deterrence - consideration of penalties imposed in other potentially relevant prosecutions - appropriate starting penalty to be at upper end of lower range - appropriate starting penalty $100,000 - plea of guilty entered - plea entered at earliest reasonable opportunity - discount of 25% on starting penalty allowed to reflect utilitarian value of plea - fine of $75,000 imposed
COSTS: application for costs by successful party on a voir dire determining claims for privilege over documents produced by compulsory process – whether costs in the cause is the default costs order – whether the court should order otherwise – voir dire raised a discrete and separate issue – voir dire finally determined substantive rights – costs awarded to successful party.
CIVIL PROCEDURE – notice of motion – application to set aside subpoena – whether a legitimate forensic purpose – proceedings relate to amenity impacts of adjoining properties – orders sought rely on assessment of amenity impact – respondent entitled to test applicant’s amenity impact evidence – notice of motion dismissed – access granted
ENVIRONMENT AND PLANNING — Consent — Construction of use approved by order of the Court — Whether approval for “roof sign” is a “roof or sky advertisement” or a “building identification sign” under State Environmental Planning Policy No 64 – Advertising and Signage — Roof or sky advertisement
ESTOPPEL — Issue estoppel — Whether issue fundamental — Finding made by Commissioner of the Land and Environment Court — Issue estoppel and abuse of process not made out
JOINDER – application for joinder – statutory power to order joinder under s 8.15 Environmental Planning and Assessment Act 1979 – issues proposed to be raised by applicant for joinder sufficiently addressed – public interest – joinder refused
DEVELOPMENT APPLICATION - proceedings arising on remitter from the Court of Appeal - proposed residential flat building in a precinct known as the Strathfield Triangle - proposed eight-storey development would breach the height of buildings development standard set by the City of Canada Bay Local Environmental Plan 2013 (the LEP) - neighbouring owner joined as Second Respondent to the proceedings - does proposed development satisfy applicable elements of cl 101 of State Environmental Planning Policy (Infrastructure) 2007 (the SEPP)? - proposed development fails to satisfy two separate elements in cl 101 of the SEPP, each failure preventing approval of the proposed development - should a request pursuant to cl 4.6 of the LEP for dispensation from compliance with the height of buildings development standard applicable to the site be granted? - cl 4.6 request does not demonstrate that the proposed development satisfies the first of the objectives for the height of buildings development standard and is to be refused on this basis - merit assessment of the proposed development - even if jurisdiction existed to permit merit assessment of the proposed development, the proposed development is unacceptable - proposed development refused - appeal dismissed
DEVELOPMENT APPLICATION – alterations and additions to the rear of a contributory item within a conservation area – adaptive reuse of the item as boutique hotel – impact of the bulk and scale of the development on the rear laneway and adjoining properties within the conservation area assessed – number of storeys breach control in development control plan – height of building not in breach of development standard in local environmental plan – design excellence considered
PROCEDURE: application to set aside three subpoenas issued by a council on the grounds of oppression and a lack of forensic purpose – parties resolved issues in dispute concerning two of the three subpoenas prior to the hearing – application at the hearing by the council to amend the schedule of the subpoena – application allowed – whether amended subpoena lacked forensic purpose - whether amended subpoena oppressive – application dismissed – whether inspection should be subject to a confidentiality order – no exception circumstances or particular reasons warranting the making of such an order.
COSTS: application to set aside subpoena – subpoena amended at hearing to narrow its scope – amendment foreshadowed earlier prior to hearing – dispute concerning confidentiality of documents to be produced necessitated extra day of hearing – costs are costs in the cause.
COSTS: application to set aside notice to produce settled prior to hearing – claim for legal professional privilege made in respect of documents produced – redacted documents provided to settle dispute – costs are costs in the cause.
PROCEDURE – separate determination of question – question of law – right to appeal against rejection of development application – no right to appeal – appeal dismissed
STATUTORY INTERPRETATION – ss 8.2, 8.6, 8.7 Environmental Planning and Assessment Act 1979 – whether “decision” and “determination” of consent authority are distinct terms – decision is distinct from determination – rejection of development application is a decision – approval and refusal are determinations – decision to reject is not a decision subject to appeal that the Division so provides – s 8.7 right to appeal limited to determinations
JOINDER - application for judicial review of a determination by the Independent Planning Commission to refuse State Significant Development consent to a proposed coal mine - joinder application by non-party pursuant to r 6.27 of the Uniform Civil Procedure Rules 2005 - whether appropriate to join opponent of the proposed mine as a party to the judicial review proceedings - application for joinder on the basis that it is necessary for the determination of all matters in dispute in the proceedings that the joinder applicant be joined as a contradictor - present sole respondent (the Commission) has filed a submitting appearance - applicant for joinder played a substantial role in opposing the proposed coal mine for which the applicant for judicial review sought State Significant Development consent - necessity for an active contradictor - desirability of permitting joinder on the basis of public interest issues arising from grounds pleaded in support of judicial review proceedings - whether participation as amicus curiae should be considered - applicant for joinder expressly disavows participation as amicus - not appropriate to consider possibility of participation as an amicus - appropriate to order joinder in the public interest - joinder ordered
COSTS - judicial review applicant seeks protective costs order if applicant for joinder joined as a party - consideration of cases cited in support of the making of such a protective costs order - cases cited do not provide support for a protective costs order as the facts and circumstances of the two cases cited are irrelevant to the present circumstances - protective costs order refused.
COSTS - joinder applicant seeks costs of joinder proceedings - presumption that costs follow the event - joinder applicant successful in joinder application - applicant in judicial review proceedings ordered to pay the costs of the applicant for joinder of the joinder proceedings
APPEAL – appeal against a Commissioner’s decision on questions of law – decision to grant deferred commencement consent for seniors housing – road, civil and infrastructure works needed but not part of development application – whether likely impacts of the development – whether failure to consider likely impacts – precondition to grant of consent – provision of water and sewer services – whether precondition satisfied – access way to seniors housing development – characterisation of use of access way – impact on oyster aquaculture – whether failure to consider – precondition to grant of consent – acid sulfate soils management plan for proposed works – plan submitted for some but not all proposed works – whether precondition satisfied – precondition to grant of consent – significant impact on biophysical, hydrological and ecological matters – whether failure to consider
COSTS – applicant seeks order for dismissal of proceedings and costs – default costs order under Uniform Civil Procedure Rules 2005 that applicant pay costs unless otherwise order made - no unreasonable behaviour by respondent justifying an otherwise order – no capitulation by respondent justifying otherwise order
EVIDENCE: Verde Terra parties object to affidavits, including expert evidence, filed and served by Central Coast Council after hearing adjourned part-heard – whether late affidavits fell within the scope of an order permitting further evidence to be filed by the Council “in response to” affidavits filed by Verde Terra parties - whether in the alternative leave ought to be granted to the Council to rely on the affidavits – whether leave would cause forensic disadvantage to Verde Terra parties – whether leave would cause further expense and necessitate additional hearing time - objection upheld, leave denied.
APPEAL – prosecution – appeals against severity of sentences imposed by the Local Court in four offences of carrying out development in breach of the Environmental Planning and Assessment Act 1979 at a residential property
EVIDENCE - affidavit material evidence from both parties relied upon for the purposes of costs application - affidavit material not read during substantive hearing - application for restriction on use pursuant to s 136 of the Evidence Act 1995 - restriction appropriate as affidavit material not tested in substantive hearing - restriction ordered (see )
COSTS - First Respondent successful in substantive proceedings - First Respondent now seeks costs on the indemnity basis - First Respondent succeeded on different basis to that initially advanced for it - not appropriate to exercise discretion to depart from the position that costs follow the event as agreed or assessed
COSTS - First Respondent’s indemnity costs application unsuccessful - costs of costs applications follow the event - First Respondent to pay the Applicant’s costs of the costs application as agreed or assessed
APPEAL – modification application – development constructed contrary to development consent – modification seeks to incorporate the development as constructed in addition to proposed works – whether substantially the same – whether communal open area location and size was a material element of the original development – traffic and parking impacts
CRIMINAL PROCEDURE — Subpoena — Application to set aside — Legitimate forensic purpose — Documents sought relating to monetary benefits order — Application to set aside dismissed
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Judgments and orders — Monetary benefits order
DEVELOPMENT APPLICATION – caravan park – whether proposed development is compatible with character of local area – whether location and character make site particularly suitable for a caravan park – whether necessary facilities and services are reasonably available and accessible to future occupants of caravan park – consideration of road widths – consideration of contamination of site
JUDICIAL REVIEW – no failure by local council to consider properly its development application for truck wash facility – no failure to consider development application for truck wash facility as designated development
DEVELOPMENT APPLICATION – multi dwelling housing – design quality – design evaluation – landscape character – streetscape – significant tree loss – building setback – building separation – privacy – private open space – site constraints – internal character – flexibility in the application of development control plan standards
SENTENCE - environmental offence - breach of condition of Environment Protection Licence - Defendant operated a waste facility at a significantly greater annual volume than permitted - plea of guilty - Prosecutor asserts factors of aggravation - causing of substantial environmental harm not established - offence committed for financial gain conceded by Defendant - causing harm to human health not established - traffic impacts of truck-queuing and any consequences of trucks being untarped prior to entry to the site not demonstrated to constitute a factor of aggravation - offending conduct assessed as being at the top of the low range for such conduct - full 25% discount for guilty plea appropriate - penalty to be paid to the Environmental Trust - publication order required - appropriate penalty after discount for guilty plea is $90,000 - Defendant to pay Prosecutor's costs as agreed or assessed (but subject to opportunity to parties to seek some alternative costs order)
APPEAL – development application – mixed use development with community housing – inconsistency between instruments concerning percentage of residential use in a business zone – conciliation conference – agreement reached
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property by tree roots – respondent has agreed to remove the tree – applicant seeks compensation for damage – whether the respondent could have prevented damage – whether the respondent should pay compensation
COSTS – exercise of discretion to award costs to successful applicant where two defendants – no award of costs made where no costs claim specified in amended summons joining party – no award of costs against party who filed submitting appearance as contradictor
APPEAL – s 97 Protection of the Environment Operation Act 1997 – appeal from Local Court – s 31 Crimes (Appeal and Review) Act 2001 – appeal against failure to comply with Prevention Notice – construction of Prevention Notice – whether council held reasonable suspicion an activity was being carried on in an environmentally unsatisfactory manner – validity of s 96 Prevention Notice – whether appellant was “occupier” of premises – definition of control
CONTEMPT - failure to obey orders of the Court to cease the use of two unauthorised secondary dwellings - failure to obey orders of the Court to demolish two unauthorised secondary dwellings - the alleged contemnor has taken no part in the proceedings - the alleged contemnor did not attend contempt hearing - Council demonstrates all relevant procedural steps have been drawn to the attention of the alleged contemnor - appropriate to order arrest of the alleged contemnor to have her brought before the Court - arrest ordered
CIVIL ENFORCEMENT - Respondent ordered by Council to cease providing food and shelter to multiple stray cats - order made to remedy environmental impact on neighbours of odour of cat faeces and urine - Respondent fails to obey order - evidence that proceedings drawn to attention of Respondent psychiatric certificate concerning Respondent did not provide a proper basis for adjourning the proceedings - consideration of the proper basis to make court orders requiring compliance - Respondent’s premises subject to contract for sale - appropriate to provide opportunity for purchaser to seek to be joined to proceedings if desired - limited substituted performance order in favour of the Council appropriate - orders made
COSTS - costs should follow the event - Council’s actual costs of the order of $20,000 - preferable to make a gross sum costs order - appropriate basis is 65% to 75% of actual costs - Council proposes gross sum order in amount of $13,000 - Respondent ordered to pay the Council’s costs in the gross sum of $13,000
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – risk of injury – boundary tree – whether the tree is principally on the respondents’ land – shared ownership of the tree – whether tree removal is required – respondents’ property is for sale
DEVELOPMENT APPLICATION – boarding house – retail and commercial space – amenity – character – FSR and height standard non-compliance – cl 4.6 variation request - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – subdivision – jurisdictional issue – should development application have also been for erection of dwelling houses – additional permitted uses – is “and” in Schedule 1 clause 1 of the Snowy River Local Environmental Plan 2013 conjunctive – visual impact and scenic quality – weight to be given to draft bushfire prone map – weight to be given to presence of a Critically Endangered Ecological Community – local occurrence avoidance of impacts –to what extent does the application seek to avoid, minimise or ameliorate impacts on biodiversity -are amelioration measures practical, enforceable and effective – was a Species Impact Statement required
DEVELOPMENT APPLICATION – construction of a two storey warehouse including landscaping works and at-grade parking for 96 cars and use as a distribution centre – no expert evidence filed by applicant – no owners consent for works to provide vehicular access to the site on adjoining property – the proposal is designated development – insufficient information to determine whether the land is contaminated – leave refused to amend the application
ACCESS TO DOCUMENTS - proposed consent orders - no valid consent from one party - Land and Environment Court policy on access to documents - documents within Court’s policy provided to access applicant - issue of access to other documents stood over
DEVELOPMENT APPLICATION – subdivision into 3 lots to reflect uses in different zones – further subdivision of residential land for attached dwellings on Torrens title lots – required road reserve width – impacts of roads, paths and temporary basin in RE1 (recreational) land – requirement for turning circles on incomplete roads – treatment of interface lots
ENVIRONMENT AND PLANNING — Water — Offences — Unauthorised taking of water – Offences against s 91G(2) of the Water Management Act 2000 (NSW) – Defendants alleged to have taken water without lawful permission – Pleas of not guilty
ENVIRONMENT AND PLANNING — Rivers — Licences, authorities, permits – content of water use approvals
ENVIRONMENT AND PLANNING — Water — Water management plans — Challenges to water management plans
ADMINISTRATIVE LAW — Privative clause — time limitation
ENVIRONMENTAL OFFENCES: alleged clearing of native vegetation – application to set aside summonses on the grounds that the charges were statute barred – proper construction of phrases “evidence of the alleged offence” that “first came to the attention of an authorised officer” – whether evidence of all of the elements of the offence required to come to the attention of the authorised officer – whether evidence of all of the particulars of the alleged offence required to come to the attention of the authorised officer – whether evidence of the alleged offence the subject of one charge evidence of the alleged offences the subject of the remaining charges – whether possibility of evidence of the charge coming to the attention of the authorised officer sufficient – notices of motion dismissed – summonses filed within time.
JUDICIAL REVIEW - Council development project -assessment pursuant to Part 5 of the Environmental Planning And Assessment Act 1979 - meaning of requirement that potential environmental impact be assessed “to the fullest extent possible” - phrase means “to the fullest extent reasonably possible” - was the test satisfied by the Council's General Manager’s assessment before determining to approve the proposal - merits of General Manager’s assessment not to be reviewed - General Manager’s assessment satisfied the test - Ground 1 rejected
JUDICIAL REVIEW - no environmental impact statement prepared - was environmental impact statement required - was requirement for an environmental impact statement a jurisdictional fact - effect of 2015 legislative changes - if jurisdictional fact, was the Council project “likely to significantly affect the environment” - appropriate to commenced by factual examination - consideration of expert traffic evidence - conclusion that project was not likely to significantly affect the environment - unnecessary to consider legal issues as evidentiary basis for challenge not made out - Ground 2 rejected
JUDICIAL REVIEW - Council project for a cycleway - was the route of the proposed cycleway uncertain so as to affect the validity of the General Manager’s approval - no uncertainty as to route of cycleway - Ground 3 rejected
COSTS - costs ordinarily follow the event in judicial review proceedings - no reason to depart from usual position - Applicant to pay the Respondent’s costs as agreed or assessed.
MODIFICATION APPLICATION: extension to operating hours of Palm Beach Golf Club alfresco area – Club has existing use rights – noise impacts for neighbours – compliance with the Industrial Noise Policy – whether assessment and conditions should apply to entire clubhouse and what conditions should apply – objections and support from neighbouring properties
DEVELOPMENT APPLICATION – proposal for subdivision and concept plan for industrial development
PRACTICE AND PROCEDURE – Adjournment application – further evidence proposed – applicant on notice of the issue sought to be addressed by that further evidence – guiding principle for just quick and cheap resolution of proceedings – adjournment refused
DEVELOPMENT APPLICATION – construction of a boarding house – height of proposed development – whether cl 4.6 written request to vary the height development standard in Local Environment Plan is required – whether consolidation of lots is required
LAND LAW – easements – imposition of easements by Court – s 88K of the Conveyancing Act 1919 (NSW) – whether easements fall within s 88K jurisdiction – whether proposed easements are capable of legally comprising easements – whether grant of easements is reasonably necessary for effective use of land – onus of proof – whether onus shifts if prima face case established – whether easements should regularise the status quo – impact on servient tenement – whether impact is lessened if passive use of land
APPEAL – development application – existing hotel – heritage item – application to extend trading area on 20 occasions each year with associated structures and storage – impact on significance of heritage item – whether sufficient information provided
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – whether the trees have caused damage – whether the trees are likely to cause damage – benefits of the trees – whether the trees can be retained – tree removal ordered
DEVELOPMENT APPLICATION – subdivision – same or similar to earlier application and appeal – whether abuse of process – nomination in development control plan as school site – whether development control plan should be given little or no weight – strategic provision of education facilities in the area – consideration of future population – application of the development control plan – whether site should remain available for future school
COSTS - application for indemnity costs - principal proceedings settled by consent with costs reserved - costs application based on letters said to be Calderbank offers - process of exchange of offers and counter offers - offers included terms not capable of resulting in orders of the court to be effected - no proper basis for making costs order on basis of refusal of offers - costs application dismissed
COSTS OF COSTS APPLICATION - ordinarily costs of costs application will follow the event unless otherwise ordered - failure of solicitor for costs Respondents to address alleged Calderbank offers - costs application dismissed on basis not dealt with by costs Respondents’ solicitor - appropriate to “otherwise order” pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 - no order for costs of the costs application
INTERESTED PARTY - consideration of basis to permit an interested party to be heard - party to be heard pursuant to discretion given by s 38(2) of Land and Environment Court Act 1979 - no need to determine what might be the extent of the rights of an interested party to be heard pursuant to s 8.12(3) of the Environmental Planning and Assessment Act 1979
ENVIRONMENT AND PLANNING – construction of development consents and construction certificates – development without development consent – scope and purpose of statutory regime – over excavation of subject site – validity of construction certificates – whether construction certificate was validly modified – whether development was carried out otherwise than in accordance with the construction certificate – development without consent – public notification of voluntary planning agreement – occupation certificates – discretion and relief
DEVELOPMENT APPLICATION – construction of a five storey mixed-use development over basement parking – exceedance of the height of buildings development standard – conciliation conference – agreement between the parties.
MODIFICATION APPLICATION – increase the number of boarding house rooms – delete one basement level and provide eight car parking spaces of which one is accessible and seven are in car stackers – conciliation conference – agreement between the parties.
APPEAL – development application – seniors living – whether adequate written evidence of compliance with requirements for access to facilities and services – bus service not available on weekends – whether cl 4.6 request adequate – whether consistent with objectives – issues of site compatibility
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a six-storey residential flat building containing two basement levels of parking – in proximity to the de Freitas Wetland –floor space ratio (FSR) development standard – construction and interpretation of cl 4.4A of Fairfield Local Environmental Plan 2013 – determine which FSR applies – appropriateness of built form – bulk and scale – public interest