DEVELOPMENT APPLICATION: centre based child care facility in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders
APPEAL – modification application – scope of modification confined over the course of the appeal proceedings – parties agree contentions have been resolved
APPEAL – development application – subdivision of land and construction of dual occupancies – conciliation conference – agreement reached – orders made
COMPULSORY ACQUISITION – objection to the amount of compensation offered by the Respondent – conciliation conference – agreement between the parties – orders
PRACTICE AND PROCEDURE — extension of time — exercise of discretion to grant extension of time — length of delay – reasons for delay — extent of prejudice – prospect of success on appeal
APPEAL – development application – existing concrete batching plant – proposed increase in production volumes – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees have caused, or are causing, damage to applicant’s property; do s (12) considerations outweigh impact of damage
COSTS – award of costs following successful civil enforcement proceedings by local council in relation to carrying out agricultural industry without development consent in breach of Environment Planning and Assessment Act 1979 (NSW) – notice of motion seeking costs not premature – costs follow the event being breach of Environment Planning and Assessment Act 1979 (NSW) – local council as the successful party entitled to award of costs – rejection of Calderbank offer does not justify award of indemnity costs
DEVELOPMENT APPLICATION – alterations and additions to mixed use development in B2 Local Centre zone – conciliation conference – agreement between parties – orders
COSTS – tree dispute – whether costs of proceedings fair and reasonable – whether unreasonable conduct in circumstances leading up to litigation – whether acted unreasonably in conduct of proceedings – costs order made for costs of proceedings and successful motion for costs
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to garden edging – apprehension of further damage and of injury – leaves and bracts falling onto veranda roof and gutters
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges removed before hearing – apprehension of hedge recurring – balance between sunlight and privacy – are trees causing damage to applicant’s property
APPEALS – Defendant pleaded guilty in the Local Court to three offences in breach of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (the Regulation) – guilty pleas entered at earliest opportunity – offences arose out of the Defendant fraudulently claiming refunds pursuant to the Regulation for containers for which refunds had previously been claimed by others – Defendant’s offending conduct found by the Local Court to be in the mid-range – offences were committed for financial gain – penalty of $15,000 imposed by the Local Court for each offence – Prosecutor’s appeal against sentences imposed – Prosecutor complains Local Court sentencing process miscarried as sentences were manifestly inadequate – held Local Court sentencing process miscarried as sentences were manifestly inadequate – Prosecutor’s appeals upheld – appropriate to resentenced Defendant – sentencing limit of $110,000 for each offence in the Local Court – no comparable sentencing information available as these were the first offences charged for breaches of the Regulation – appropriate starting penalty for each offence of $72,000 – Defendant entitled to 25% discount for early guilty pleas – Prosecutor accepts that all three offences arose from a single course of offending conduct – appropriate to adjust the overall penalties to reflect totality and accumulation of penalties to be imposed on the Defendant – Defendant resentenced – Defendant ordered to pay the Prosecutor's costs of the appeal as agreed or assessed – Prosecutor seeks moiety of penalties – appropriate to order moiety of penalties (50%) to be paid to the Prosecutor
APPEAL – development control order – stop use order – demolish works order – restore works order – unauthorised structures – importation of fill – flood prone land – environmental harm – conciliation conference – agreement between the parties – compliance orders
DEVELOPMENT APPLICATION – demolition and construction of childcare centre – amended development application – agreement between the parties – orders made
DEVELOPMENT APPLICATION – demolition and construction of a residential flat building – amended plans and documents – agreement between the parties – orders made
DEVELOPMENT APPLICATION – conciliation conference – construction of residential dwelling – Clause 4.6 request -- agreement between the parties – orders
PRACTICE AND PROCEDURE – application to trial judge to certify recusal decision as a proper one for determination on appeal – whether recusal decision is an “interlocutory judgment or order” within meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for stay of proceedings pending determination of appeal of recusal decision to the Court of Criminal Appeal – applications dismissed.
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – fence damage caused by neighbouring tree – Pt 2A application – whether the trees are planted so as to form a hedge – obstruction of sunlight and views – orders for pruning
DEVELOPMENT APPLICATION – residential flat building within R4 High Density Residential zone – residential apartment development – conciliation conference – agreement between parties – orders
MISCELLANEOUS APPEAL – Building Information Certificate – garage at front of dwelling house – conciliation conference - agreement between the parties - orders
DEVELOPMENT APPLICATION – mixed use – boarding house – cl 4.6 written request – height variation - conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between parties - orders
COMPULSORY ACQUISITION – claim for compensation for compulsory acquisition of freehold interest in land – determination of market value based on rate applied to portion of acquired property COMPULSORY ACQUISITION – claim for compensation for compulsory acquisition of leasehold interest in land – determination of market value based on rate applied to portion of acquired land – relocation costs payable for fit-out at new premises payable as disturbance – rent differential for temporary sites needed for relocation of business payable as disturbance
DEVELOPMENT APPEAL – residential development - alterations and additions –construction of a swimming pool in the foreshore area – conciliation conference – agreement between the parties - orders
COURTS AND JUDGES – bias – application for recusal – apprehension of bias – attendance of person in chambers during trial – part heard trial – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide – “unconsciously compromised” – application dismissed.
APPEAL – modification of development consent – part constructed residential flat building – building construction - consent orders hearing – public participation
MODIFICATION APPLICATION – conciliation conference – adaptive re-use of warehouse building – construction of residential flat buildings – agreement between the parties – orders
DEVELOPMENT APPLICATION – State significant development – increased throughput for metal recovery and recycling facility – acoustic walls – noise impacts on residential and non-residential receivers – project noise trigger levels – operational hours – operational noise limits – noise performance monitoring – need for real time monitoring – flooding implications of noise walls – air quality monitoring –ongoing function of Secretary of the Department of Planning and Environment – structural aspects of consent document – extensive disagreement on consent conditions
DEVELOPMENT APPLICATION – conciliation conference – alterations and additions – Sydney Turpentine Ironbark Forest – agreement between the parties – orders
DEVELOPMENT APPLICATION – fruit shop with existing use rights – wastewater and stormwater management considerations – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – changes to condition requiring the carrying out of intersection works – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – construction of a new attached dwellings – appropriate stormwater management – conciliation conference conciliation conference – agreement between the parties – orders
PROCEDURE – order for access for expert to obtain evidence on neighbour’s land in contempt proceedings refused – whether application of privilege against self-exposure to penalty applies.
Judicial Review — Orders previously made in Class 4 proceedings for conditional validity of development consent — Declaration as to validity now sought under s 25C of the Land and Environment Court Act 1979 (NSW) — Statutory construction of the scheme for validating consent — Court orders substantially complied with — Declarations made — Costs reserved
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is hedge severely obstructing sunlight to a window of a dwelling – are trees causing damage to applicants’ property – do s 12 considerations outweigh impact of damage
DEVELOPMENT APPLICATION – residential apartment development in R4 High Density Residential zone – flood planning – conciliation conference – agreement between parties – orders
PRACTICE AND PROCEDURE – contempt of Court – ex parte sentencing hearing – service effected on contemnor – whether there is an application to set aside the judgment and orders of the Court finding the respondent guilty of contempt – principles in relation to setting aside, or varying, a judgment order after it has been entered - discretionary power of the Court to set aside an undefended judgment
COMPULSORY ACQUISITION ‑ claim for compensation ‑ resumption of leasehold interest ‑ 18 advertising billboards owned by claimant ‑ billboards located on road between international and domestic terminals at Sydney Airport ‑ compensation claim for hypothetical digitisation of signs prior to date of acquisition ‑ no legal basis for a claim ‑ if wrong, contingent determination of number of signs which might have been digitised ‑ two signs would have been digitised COMPULSORY ACQUISITION ‑ method to be used for calculating value of leasehold interest ‑ discounted cashflow method appropriate basis of calculation ‑ determination of input factors for such calculation COMPULSORY ACQUISITION ‑ claim for “Digital advantage” ‑ “Digital advantage” claim separate from “Halo effect” claim ‑ no proper evidentiary basis for “Digital advantage” advantage claim ‑ claim rejected COMPULSORY ACQUISITION ‑ claim for “Halo effect” ‑ “Halo effect” said to arise because of claimant's ability to market billboards in combination at multiple airport locations in other cities ‑ no proper evidentiary basis for claim ‑ claim mere assertion ‑ claim rejected COMPULSORY ACQUISITION ‑ claim for fees of forensic accountant ‑ fees claimed pursuant to s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 ‑ fees said to be incurred as part of providing legal advice to claimant ‑ fees properly claimed - reimbursement of claimed fees to be ordered. DIRECTIONS ‑ matter adjourned to permit the parties to consider the findings and calculate compensation based on them and to bring in orders to reflect the determined outcomes
DEVELOPMENT APPEAL – demolition of existing swelling house – excavation & construction new dwelling house –- Innisfallen Castle Estate -conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – multi-dwelling housing development – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
DEVELOPMENT APPEAL – residential flat building – contravention of the height of building development standard – interface with zone and interface with height of building – character – hierarchy of town centre – orders
DEVELOPMENT APPEAL – conditions of consent for three separate appeals concerning the modification of a concept approval and stages one and two development applications.
DEVELOPMENT APPEAL – residential development – new seawall – alterations and additions to timber deck – works below mean high water mark – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – single storey dwelling house – refusal – s34AA – no agreement reached between the parties – development application modified to include flood refuge in attic – Court requested changes to draft conditions – amended conditions provided
PRACTICE AND PROCEDURE — Notice of motion to further amend an amended application — Where amendment not prejudicial to respondents — Notice of motion granted
DEVELOPMENT APPLICATION – subdivision, building works and tree removal – amended plans and information – agreement reached between the parties – orders made
DEVELOPMENT APPLICATION – construction of a secondary dwelling – conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – change of use of residence to place of worship – flooding impact and reliance on evacuation plan – effectiveness of stormwater design
JUDICIAL REVIEW – Uniform Civil Procedure Rules r 59.10(3) – leave granted to extend time for commencement of proceedings – Environmental Planning and Assessment Act 1979 (NSW) s 4.16(3) – whether Council had power to impose deferred commencement condition upon modification – modification of development consent is not grant of development consent – declaration made that modification of development consent invalid
DEVELOPMENT APPLICATION – demolition of an existing residential flat building and construction of a new residential flat building – amended application – conciliation conference – agreement between the parties – orders
MODIFICATION APPLICATION – residential apartment development – modification of penthouse apartment - whether substantially the same – conciliation conference – agreement between parties - orders
DEVELOPMENT APPLICATION – consent sought for land subdivision, tree removal, construction and dedication of public roads – amended plans – agreement between the parties – orders made
DEVELOPMENT APPLICATION – demolition and construction of a two-storey centre based childcare centre – amended plans – agreement between the parties – orders made.
COSTS — Notice of motion to strike out or summarily dismiss certain contentions of a statement of facts and contentions in Class 1 appeal proceedings — Whether an order for costs is fair and reasonable — No order as to costs
DEVELOPMENT APPLICATION – staged development with concept proposal and first stage works – concept plan – establish a conservation area and future development footprint – assessed potential ecological and hydrological impact – threatened species impact assessment – insufficient satisfactory arrangements for designated State public infrastructure
TREES (DISPUTES BETWEEN NEIGHBOURS) – were the trees planted to form a hedge - do the trees form a hedge – are views severely obstructed – balancing of interests
APPEAL – Building Information Certificate – action required before Building Information Certificate can be issued – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – pine needles falling onto roof and gutters – fence damage from tree roots – orders made
DEVELOPMENT APPLICATION – demolition of existing structures and construction of a two storey multi dwelling housing development – amended plans – agreement between the parties - orders
APPEAL – occupation certificate for vehicle repair station – occupation certificate for part of development – conciliation conference – agreement reached – orders made
PRACTICE AND PROCEDURE – application to transfer proceedings to the Supreme Court of New South Wales – application to strike out claims for relief which the Court does not have jurisdiction to grant – whether leave to commence out of time is required under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) – notices issued to attorneys-general under s 78B of the Judiciary Act 1903 (Cth) – whether s 71 of the Land and Environment Court Act 1979 (NSW) excludes transfer of environmental or planning claims to the Supreme Court – discretion to transfer the proceedings to the Supreme Court – pendent jurisdiction of the Land and Environment Court – ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) – whether claim for an “implied easement” is ancillary to the planning claim – power to grant easement relief under s 40 of the Land and Environment Court Act 1979 (NSW)
CIVIL ENFORCEMENT ‑ importation and placement of 15,000 cubic metres of asbestos‑contaminated waste ‑ Applicant seeks order for removal and remediation ‑ Respondent seeks six‑month adjournment to obtain development consent ‑ development prohibited ‑ adjournment refused ‑ site mapped as high‑risk flood‑prone land ‑ high risk to the environment ‑ no discretionary basis to refuse proposed remediation order ‑ declaration appropriate to be made ‑ remediation orders made CIVIL ENFORCEMENT ‑ storage of more than 150 vehicles on flood‑prone land ‑ activity prohibited ‑ Applicant seeks order requiring removal of vehicles ‑ Respondent seeks six‑month adjournment to obtain development consent ‑ no functional residence on the land ‑ vehicle storage activities incapable of characterisation as either “home occupation” or “home industry” even if there was a functional and occupied residence on the land ‑ no basis upon which vehicle storage activities could be approved ‑ consent not possible ‑ storage of vehicles on flood‑prone land risks downstream water pollution ‑ high risk to the environment ‑ appropriate to order the removal of vehicles ‑ Applicant accepts that up to nine vehicles could be stored on the land for repair or restoration ‑ no reason to refuse removal order ‑ appropriate to order removal of vehicles ‑ removal order made COSTS ‑ Applicant seeks costs of proceedings ‑ costs conventionally follow the event ‑ no disentitling conduct by Applicant ‑ Respondent ordered to pay Applicant's costs as agreed or assessed
BUILDING INFORMATION CERTIFICATE AND DEVELOPMENT APPLICATION – gazebo building for patron dining at a restaurant – no onsite car parking – traffic impacts – whether development consent is required for the use of the whole of the site as the Complying Development Certificate authorising the existing restaurant cannot authorise more than 50 seats – whether the Building Information Certificate application is too narrow and would not remedy all unauthorised works at the site – whether the use, capacity and environmental effects of the proposal are uncertain – whether the premises satisfies the requirements of the Building Code of Australia
DEVELOPMENT APPLICATION: installation of telecommunications facility in C3 Environmental Management zone – conciliation conference – agreement between parties – orders
MODIFICATION APPLICATION – modification of approved centre based child care centre by increase in child place numbers – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL ‑ proposed residential apartment building in R4 zone at interface with R2 zone ‑ steeply sloping topography ‑ development site at the top of the slope ‑ visual impact on immediately adjacent residences ‑ visual impact on immediately adjacent residences unacceptable ‑ setback from site of adjacent approved boarding house in R4 zone ‑ setback from site of adjacent approved boarding house in R4 zone unacceptable ‑ extent of proposed excavation adjacent to boarding‑house site combined with reduced setback inadequate for proposed landscaping ‑ proposed landscaping adjacent to boarding‑house site combined with extent of excavation results in unacceptable amenity impacts on a number of proposed apartments ‑ multiple separate reasons to refuse development consent ‑ appeal dismissed ‑ development consent refused
DEVELOPMENT APPLICATION – construction of new semi detached dwellings on approved subdivided lots – amended plans – experts agreed issues resolved – agreement reached – orders made
DEVELOPMENT APPLICATION – demolition of existing structures - construction new dwelling and in-ground swimming pool - conciliation conference – agreement reached – orders made
Encroachment — Application for transfer of land by encroaching owner — Exercise of discretion under Encroachment of Buildings Act 1922 (NSW), s 3(3) — Encroaching structure located in a heritage conservation area — Whether the encroachment should be removed
TREES (DISPUTES BETWEEN NEIGHBOURS) – current and future damage to property claimed – no likely damage in near future – high hedges – severe obstruction of sunlight to windows claimed – obstruction of sunlight to one window is severe
APPEAL – development application – alterations and additions to existing commercial/retail development – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL – modification of development consent – whether substantially the same – character - height of building – design and amenity - orders
JUDICIAL REVIEW – council determination to construct synthetic grass playing field and stormwater mitigation - s 5.5 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – no failure of duty to inquire under s 5.5 – admissibility of expert evidence – construction of s 171A(4) of Environmental Planning and Assessment Regulation 2021 (NSW) – s 5.7 of EP&A Act – whether activity will significantly affect the environment – no failure to comply with s 5.7 – whether delegation duly exercised in approving the activity – summons dismissed
DEVELOPMENT APPLICATION — mixed use development in B2 Local Centre zone – residential apartment development – conciliation conference – agreement between parties – orders
DEVELOPMENT APPLICATION – construction of new 80-place child care centre – conciliation conference – amended plans and information – agreement between the parties – orders made
APPLICATION – application to modify a development consent granted by the Court – residential flat building – conciliation conference – agreement reached – orders made
DEVELOPMENT APPEAL – residential flat building– variation to height of building development standard – site isolation - conciliation conference – agreement between parties – orders
APPEAL – development application – Torrens title subdivision and retention of heritage item – conciliation conference – agreement reached – orders made
DEVELOPMENT APPLICATION – demolition and proposed Torrens title subdivision – whether the request to vary the lot size should be upheld – whether there are sufficient environmental planning grounds to justify the variation sought – appeal dismissed
DEVELOPMENT APPLICATION – mixed use development including a child care centre and commercial premises – conciliation conference – agreement between the parties – orders
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – retaining wall – whether tree removal is required – orders for tree removal and fencing works
DEVELOPMENT APPLICATION – Council delays assessment of development application – refusal – s34AA conciliation conference – no agreement –proposed construction of single storey 4 bedroom dwelling – proposed development is permissible with consent and subject to conditions under RU1 zoning – land is flood prone – agricultural use of land – flood mounds – Flood Certificate applicable when development application made was not current – second Flood Certificate issued shortly before hearing –change to characterisation of land to High Hazard Floodway from High Hazard Flood Storage – amendment to application to include flood refuge in attic of proposed dwelling above Probable Maximum Flood (PMF) level – Port Stephens Local Environmental Plan 2013 cl 7.3 repealed without savings provision – cl 5.21 does not apply to application – Port Stephens Development Control Plan (PSDCP) provisions apply – PSDCP to be applied with flexibility – performance based conditions can be applied – risk management – risk minimisation – access road has low point which becomes unpassable by vehicles when flood depth exceeds about 2.5m AHD – consequences for evacuation – Flood Emergency Response Plan (FERP) – occupants of proposed dwelling will be required to follow FERP – FERP requires that occupants evacuate when flood warning issued – is sufficient warning given – role of State Emergency Service (SES) – Evacuation Orders could be made – flash flooding – flooding from Hunter River – flood events immediately following hearing – conditions
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – damage to retaining wall and boundary fence – whether orders can be made regarding the respondent’s property – Pt 2 application no longer pressed – Pt 2A application – obstruction of sunlight – whether the obstruction is severe – whether all trees in the hedge should be pruned
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether the obstruction is severe – whether the applicants have lost a view – impacts of tree pruning on privacy – whether orders should be made
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling to create an attached dual occupancy development – conciliation conference – agreement between the parties - orders
DEVELOPMENT APPLICATION – demolition of existing building and construction of a four-storey residential flat building – strata subdivision – contentions resolved – consent orders
Interim Heritage Orders – likelihood on further investigation to enable local heritage listing – harm – Complying Development Certificates for demolition withdrawn
DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – whether adequate provision for disposal of stormwater
DEVELOPMENT APPLICATION – Torrens title subdivision – construction of dwellings – engineering considerations - conciliation conference conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between the parties – orders
APPEAL – Modification application – modification of condition imposed on the grant of a modification – conciliation conference – agreement between the parties – orders
SENTENCE – contempt – guilty plea – failure to comply with consent orders – contempt not purged – principles of sentencing – serious contempt in relation to fire safety – whether the contemnor was aware of Court orders – reason for contempt – appointment of strata managing agent pursuant to s 237 of the Strata Schemes Management Act 2015 (NSW)
DEVELOPMENT APPEAL – demolition of existing structures – boarding house – justification of contravention of height of building development standard - conciliation conference – agreement between the parties - orders
CIVIL PROCEDURE — Notices of Motion seeking summary dismissal or strike out of proceedings — Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28 — Whether reasonable causes of action disclosed — No reasonable causes of action disclosed
DEVELOPMENT APPEAL – residential development – demolition – construction of new dwelling – reasonable view sharing – conciliation conference – agreement between the parties –- orders