COMPULSORY ACQUISITION – objection to compensation – determination of public purpose – highest and best use – disturbance – determination of compensation
APPEAL – appeal against Commissioner’s decision – residential subdivision – plan of subdivision marks a lot as “public reserve” – development consent not granted to dedication of lot as public reserve – later dedication on registration of plan – no error on question of law in granting consent to subdivision – two minimum lot size development standards – one for community title subdivision – another for dual occupancy subdivision – whether inconsistent – whether principle that specific provision prevails over general provision applies – misconstruction of provisions – floor space ratio development standard – application on facts – no error on question of law
CIVIL ENFORCEMENT — s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) — Alleged breach of Development Control Order — Council ordered demolition of structure — Safety risk of structure — Failure to obtain development consent NOTICE OF MOTION — Applicant seeking to amend Summons and Points of Claim
PRACTICE AND PROCEDURE — Land and Environment Court — Application to vacate hearing dates — Court’s discretion to review registrar’s decision — Change in circumstances and late application raised by applicant — Where Council has not marshalled evidence in anticipation of matters now raised by applicant — Where Council not responsible for applicant’s position — Consideration of interests of justice — Hearing dates vacated
PROCEDURAL RULINGS – Environment and Planning – offences – s 60N of the Local Land Services Act 2013 (NSW) – s 12 of the Native Vegetation Act 2003 (NSW) – objection to admissibility of certificate under s 60F(5) of the Local Land Services Act 2013 (NSW) – whether certifier had delegation to issue the certificate – whether the certificate was validly issued – objection dismissed
OFFENCES AND PENALTIES – sentence by Local Court – appeal against sentence – offence of failing to comply with development control order – development control order largely outside power – non-compliance with potentially invalid order of low objective seriousness – no environmental harm, foreseeability of harm or practical measures to prevent harm – offence deliberate but not for financial gain – mitigating factors
ADMINISTRATIVE LAW — Judicial review — Development consent and conditions imposed by local government authority — Whether decision to approve modification application was invalid — Five grounds of review — Lapse of consent — Consideration of acoustic and noise impacts as an essential matter — Forming state of satisfaction that development was substantially the same — Satisfaction reasonably open or not — Lawfulness in part of condition — Relief in amended summons granted
SENTENCE — Offences against s 64(1) and s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) — Objective seriousness of the offences — Offences caused actual and potential environmental harm — Subjective circumstances — Totality principle applies — Fines imposed — Offender ordered to pay prosecutor’s costs — Offender ordered to publish notices and to pay a portion of the monetary penalty to NSW National Parks and Wildlife Service
JUDICIAL REVIEW – challenge to stop work order –extension of time to file judicial review proceedings under Uniform Civil Procedure Rules 2005 (NSW) r 59.10 granted – remaining judicial review ground in amended summons not established on balance of probabilities.
APPEAL — Appeal against Council’s deemed refusal of development consent for proposed supermarket development — Whether there is noncompliance with planning controls in relation to urban design and landscaping — Effect of building design and appearance and streetscape setback issues on satisfaction of controls — Appeal upheld and consent granted subject to conditions
CIVIL ENFORCEMENT – development in breach of condition of development consent – use of land for carparking without development consent – civil enforcement – ss 4.2 and 9.46 of the Environmental Planning and Assessment Act 1979 (NSW) – orders and declarations
COSTS – application for costs in Class 2 Trees (Disputes Between Neighbours) Act 2006 (NSW) proceedings – s 98(1) Civil Procedure Act 2005 (NSW) – r 3.7 Land and Environment Court Rules 2007 (NSW) – presumption against an order for costs – whether costs are fair and reasonable – each party to bear their own costs
SENTENCING — environmental offences — s 128(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) — air pollution — guilty plea — environmental services order — publication order made
CRIMINAL PROCEDURE – defendants’ notices of motion alleging multiple private prosecutions are an abuse of process upheld – stay ordered CRIMINAL PROCEDURE – prosecutor’s notices of motion alleging defendants’ notices of motion an abuse of process dismissed
PRACTICE AND PROCEDURE – Notice of Motion to vacate hearing – failure to comply with the Court’s directions to file and serve evidence – ss 56, 57 and 58 Civil Procedure Act 2005 (NSW) – hearing date vacated – condition for vacation guillotine order for service of evidence and costs – costs
ENVIRONMENTAL OFFENCES: case management for summary criminal proceedings – prosecution disclosure – purpose of Div 2A of the Criminal Procedure Act 1986 - scope of duty of prosecutor under s 247J of that Act – obligation to serve separate s 247J notice for each charge – level of detail required by prosecutor in s 247J notice – whether prosecutor must identify specific portions of the information and documents it has disclosed to effect compliance with s 247J – where prosecutor relying on body of evidence in respect of multiple charges arising from the same factual matrix.
COSTS — Discontinuance — Refusal to discontinue — Where applicant on a notice of motion acted reasonably and incurred costs due to respondent on the motion acting unreasonably — Application for costs of applicant on the motion to be paid on an indemnity basis — Where Class 1 proceedings by respondent on the motion are struck out and dismissed — Orders made that respondent on the motion pay costs of applicant on the motion not on an indemnity basis
LAND LAW — strata title — strata renewal plan for redevelopment — Strata Schemes Development Act 2015 (NSW) — one dissenting owner not a party to the proceedings — strata renewal plan given effect
COMPULSORY ACQUISITION: proper characterisation of the public purpose – whether council empowered to acquire land for the public purpose of precinct land release for housing – whether council empowered to acquire land for the purpose of the provision of trunk drainage infrastructure – public purpose that of the provision of drainage channel and Green and Golden Bell Frog habitat – applicable principles in determining the public purpose – determination of the underlying hypothetical zoning of the acquired land – zoning is both E2 Environmental R2 Low Density – valuation methodology – direct comparison approach – whether betterment – calculation of market value – disturbance – respondent to pay the applicant’s costs.
PROSECUTION – sentencing – plea of guilty to breach of condition of development consent for locating unapproved silt cells in quarry development – commission of offence not intentional – no environmental harm – low objective seriousness – application for s 10 order under Crimes (Sentencing Procedure) Act 1999 (NSW) refused – mitigating factors – publication order made PROSECUTION – sentencing – plea of guilty to breach of condition of development consent for bringing material onto site – commission of offence not intentional – no environmental harm – application for s 10 order under Crimes (Sentencing Procedure) Act 1999 (NSW) refused – low objective seriousness – mitigating factors – publication order made
APPEAL – appeal on question of law – misconstruction of statutory provision – Commissioner’s decision to refuse development consent for demolition and erection of new residential flat buildings – contravention of building height development standard – written request seeking to justify contravention – Commissioner not satisfied that development is consistent with zone objectives – misconstruction of zone objectives – misunderstanding and misapplication of principles of statutory interpretation APPEAL – appeal on question of law – denial of procedural fairness – Commissioner decided appeal on issues not contested by the parties - consent orders – Commissioner’s findings of social impacts and negative environmental effects of development not in issue – denial of procedural fairness by failing to give parties notice and opportunity to be heard
PROCEDURE: application to transfer proceedings to the Supreme Court of New South Wales from the Land and Environment Court – legal principles – no reason to transfer proceedings – Land and Environment Court has jurisdiction to hear the matter – Land and Environment Court has power to grant the relief sought – Land and Environment Court, as a specialist environment and planning court, best placed to determine the issues raised by the proceedings – transfer would be inefficient and unjust to the applicants given that a final hearing date has been allocated and the applicants have filed and served all of their evidence. PROCEDURE: application for a stay of proceedings pending transfer to the Supreme Court of New South Wales – legal principles – stay not warranted.
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Costs — Tree dispute — Whether order for costs fair and reasonable — No order as to costs
JUDICIAL REVIEW — whether the consent authority had power to impose a condition requiring an affordable housing contribution — operation of ss 4.17(1)(h) and 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) — construction of cl 15A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) — whether invalid condition — whether the condition can be severed from the development consent
EVIDENCE – Class 3 proceedings – admissibility of expert reports – experts not available for cross-examination – material prejudice – reports not admitted
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Tree dispute — Whether proceedings should be dismissed due to no reasonable cause of action in application under the Trees (Disputes Between Neighbours) Act 2006 (NSW) STATUTORY INTERPRETATION — s 4(4) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) — Whether application can be brought after tree has been removed
NOTICE OF MOTION – stay of order pursuant to s 124 of the Local Government Act 1993 (NSW) pending outcome of appeal – request for referral to Pro Bono Panel
CRIMINAL – sentencing for offence of failure to maintain equipment in proper and efficient manner – plea of guilty – discharge of untreated sewage into stormwater drain from pipe – minimal environmental harm established – prior convictions aggravating – mitigating factors – payment to Environmental Trust ordered – publication order made
SENTENCE — Three offences against s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) — Objective seriousness of the offences — Offences caused potential environmental harm — Subjective circumstances — Totality principle applies — Fines imposed — Offender ordered to pay prosecutor’s costs as agreed or assessed — Offender ordered to publish notices
PROCEDURAL RULINGS – objections to evidence – evidence refers to communications made in s 10A of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) period and s 34 Land and Environment Court Act 1979 (NSW) conciliation conference – rulings made
EVIDENCE: application by prosecutor for leave to reopen after close of defence case – prosecutor seeks to tender a recording of an ROI already in evidence but whose accuracy is now challenged by the defendants - applicable legal principles – whether unfair to allow reopening – very special circumstances exist to warrant the exercise of the discretion to grant leave to reopen.
JUDICIAL REVIEW – no basis for application of Hardiman principle to establish apprehension of bias by a local council determining second development application
CIVIL ENFORCEMENT – alleged failure to comply with order made pursuant to s 124 of the Local Government Act 1993 (NSW) – ex parte hearing – Council seeks civil enforcement orders in relation to grass and weeds – orders made
LAND LAW — strata title — strata plan — proposed variations to strata renewal plan for redevelopment — whether proposed variation is of a minor nature that does not affect the plan in any substantial way — s 182 of the Strata Schemes Development Act 2015 (NSW) — whether proposed variation to the proposed sale price of a lot is “just and equitable in all the circumstances” — cl 36 of the Strata Schemes Development Regulation 2016 (NSW)
COSTS — Where summons was summarily dismissed and struck out and costs reserved — Discontinuance of proceedings — Costs orders — Whether costs should be assessed instead of exercising Court’s discretion to award gross sum costs order
EVIDENCE: late service of expert reports by prosecutor – prejudice to the defendants if prosecutor permitted to tender the reports – prejudice to prosecutor if tender refused – relevance of reports – tender rejected.
PRACTICE AND PROCEDURE – notice of motion – leave to adduce expert evidence – failure to comply with the Court’s directions – applicant’s inexcusable delay in filing evidence – ss 56, 57 and 58 Civil Procedure Act 2005 – Uniform Civil Procedure Rules 2005 – prejudice to applicant – leave granted – indemnity costs
APPEAL – s 56A appeal of acting commissioner decision refusing part of Trees (Disputes Between Neighbours) Act 2006 application for pruning of various trees
ADMINISTRATIVE LAW — Judicial review — Decision authorised or not — Irrelevant and relevant considerations — Statutory construction ADMINISTRATIVE LAW — Bias rule — Actual or apprehended — Apprehended ENVIRONMENT AND PLANNING — Water — Licences — Access licences — Where applicants’ share entitlement for access to water is reduced by decision made using new hydrologic computer model
SENTENCING – environmental offences – s 4.2(1)(b) Environmental Planning and Assessment Act 1979 – development otherwise than in accordance with a development consent – strict liability offence – objective seriousness – heritage impacts – subjective circumstances – consistency in decision making – legal costs – determination of sentence – totality – publication order
SENTENCE — Environmental offences — Offences under s 12(1) of the Native Vegetation Act 2003 (NSW) — Clearing of native vegetation without consent — Substantial harm caused for land converted to cropland — Clearing of the remainder area of land caused low harm — Foreseeable risk of environmental harm — Offences committed for financial gain — State of mind in committing offences reckless and negligent — Objective seriousness near the mid to low range of seriousness — Subjective circumstances of the defendants — Previous good character — No remorse demonstrated — Guilty pleas — Need for both specific and general deterrence — Determination of appropriate penalties — Fines imposed with moiety to prosecutor — Orders as to costs
APPEAL – s 56A Land and Environment Court Act 1979 (NSW) appeal – refusal of concept development application for large urban release area by commissioner – permissible scope of assessment of concept proposal made under s 4.22 of the Environmental Planning and Assessment Act 1979 (NSW) – whether concept development application for subdivision – error in application of statutory definition of designated State public infrastructure – error in finding that clause in relevant local environmental plan should be applied in the merit assessment considerations – finding of uncertainty of location of stormwater diversion channel not unlawful – no errors of law in assessment of impacts of concept proposal on wetlands – refusal to grant development consent subject to Grampian conditions permissible – to the extent that errors of law established by appellants these were not vitiating in light of overall judgment
CRIMINAL – sentencing for breach of condition of environment protection licence – early guilty plea – failure to maintain rising main in proper and efficient manner – relevance of financial crisis of amalgamated council and appointment of administrator to objective seriousness of offence considered – extent of environmental harm – application of s 10, s 10A of Criminal (Sentencing Procedure) Act 1999 not appropriate – mitigating circumstances considered – order for restoration project made – penalty imposed – publication order made CRIMINAL – sentencing for water pollution offence arising from operation of sewerage system – early guilty plea
INTERLOCUTORY APPLICATION: application for interim injunctive relief in Class 4 judicial review proceedings – legal principles – whether proceedings brought out of time - whether a serious question to be tried – no serious question to be tried - balance of convenience against granting interim injunction – application dismissed – costs reserved – no evidence that proceedings brought in the public interest warranting a different costs order.
COMPLUSORY ACQUISTION – assessment of compensation for acquired land under Land Acquisition (Just Terms Compensation) Act 1991 – claim for reinstatement value under s 56(3) – factual preconditions of reinstatement not made out – particular purpose for which acquired land was used a detention basin – Council failed to demonstrate genuine intention to use other land for such a purpose – alternative claim for market value under s 56(1) – valuation methodology based on comparable sales – ‘heavily constrained’ sites deemed most appropriate – adjustments made – parties agreed as to disturbance under ss 55(d) and 59
OFFENCES AND PENALTIES – sentence – aiding, abetting, counselling or procuring another person to commit an offence – offence of carrying out development otherwise than in accordance with development consent – alteration and additions to a dwelling house – objective seriousness of offences – nature of offending – intention an element of secondary participation in offence – not aggravating factor – no harm to environment – no foreseeability of harm – no practical measures to prevent harm – full control over causes of offences – offences not committed for financial gain – low objective seriousness – subjective circumstances of offenders – early guilty plea – remorse – no prior convictions – good character – unlikelihood of reoffending – general deterrence – review of appropriate penalties – totality of sentences – substantial overlap between offences – close relationship between corporate and individual offenders – fines reduced – no additional orders appropriate – application of fines when recovered – process for – costs
CRIMINAL – sentencing – pleas of guilty to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation by contractor – extent of environmental harm disputed CRIMINAL – sentencing – pleas of guilty to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation by sub-contractor – extent of environmental harm disputed – capacity to pay fine - extra curial punishment – impact of publication order
ENVIRONMENTAL OFFENCES: directors of a company which caused a place to be used as a hazardous waste facility without lawful authority – executive liability – pleas of guilty – factors to take into account in determining sentence – whether offenders committed offences intentionally or recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable –practical measures to reduce harm – control over commission of offences – contrition and remorse –good character and likelihood of reoffending – whether offences committed for financial gain – whether offences committed without regard for public safety – capacity to pay fine – comparable cases – monetary penalty imposed – moiety ordered – publication orders made – costs ordered.
ENVIRONMENT AND PLANNING — Development application — No development consent for amusement park structures and attractions — Certain structures and attractions to be dismantled
PROCEDURE – serious question to be tried and balance of convenience favours grant of interlocutory orders to local council to prevent short-term rental of buildings in remote location – commencement of bushfire season considered
PRACTICE AND PROCEDURE — Application for substituted service of first respondent in Class 4 proceedings — whether Court should exercise its discretion to make order for substituted service —motion for substituted service granted — no orders for substituted service made in respect of second respondent because second respondent located overseas.
PROCEDURE: joinder of corporate entity as respondent to compulsory acquisition proceedings – putative respondent deemed to have accepted compensation offered by Valuer-General – effect of deemed acceptance on compensation being claimed by applicants - basis of power of Court to order joinder – whether statutory discretion permissive or a power coupled with a duty – whether upon the Court being satisfied that a person who claims to have had or who may have had an interest in the subject land as at the date of acquisition the Court must join that person as a party – third party had an interest in fee simple in the land as at the date of the acquisition – joinder ordered. STATUTORY INTERPRETATION: whether properly construed the words “may order” in a statutory power permitting the Court to join additional parties to the proceedings gives rise to a permissive discretion or whether it gives rise to a power coupled with a duty – applicable principles of construction – power coupled with a duty.
PRACTICE AND PROCEDURE — claim of public interest immunity over Cabinet documents — ss 130 and 131 of the Evidence Act 1995 (NSW) — the Court’s inspection of the documents subject of the claim
SENTENCING — Environmental offences — Offences under s 12 of the Native Vegetation Act 2003 (NSW) — Offences under s 60N of the Local Land Services Act 2013 (NSW) — Clearing of native vegetation without consent — Substantial harm caused — Foreseeable risk of environmental harm — Practical measures to prevent risk of harm — Full control over the cause of offences — Offences committed for financial gain — State of mind in committing offences — Objective seriousness near the mid to high range of seriousness — Subjective circumstances of the defendants — Previous good character — No remorse demonstrated — Defendants pleaded not guilty — Need for both specific and general deterrence — Determination of appropriate penalties — Fines imposed with moiety to prosecutor — Orders as to costs
COSTS — r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) — applicant in dismissed proceedings to pay the respondent’s costs unless otherwise ordered — applicant seeks an “otherwise order” — no order as to costs COSTS — costs of costs hearing — costs ordinarily follow the event — no order as to costs
CONTEMPT – orders for removal of unused vehicles and other waste materials – respondents failed to purge contempt despite attempts – respondents convicted of contempt – costs awarded on usual basis
ABORIGINAL LAND RIGHTS: whether the land was claimable Crown lands as at the date of the claim – whether land was divisible for the purpose of the claim – whether the land was used as at the date of the claim – whether the land was occupied as at the date of the claim – whether the land was lawfully used as at the date of the claim – whether the land was lawfully occupied as at the date of the claim – relevant legal principles – appeal upheld in part.
ENVIRONMENTAL LAW – waste storage – storage of waste tyres in enclosed storage units at storage facilities – whether scheduled activity requiring licence – whether pollution of land – order to remedy or restrain breach – whether includes payment of compensation to third party
COSTS – public interest litigation – unsuccessful civil enforcement proceedings to remedy breach of statutory requirement for review of environment protection licence – whether costs order should be made – whether proceedings brought in the public interest – whether countervailing considerations – no order as to costs
PRACTICE AND PROCEDURE — Notice of motion to dismiss summons seeking appeal in Land and Environment Court which was filed out of time — Notice of motion granted APPEAL — Severity appeal against sentence in Local Court in relation to an environmental offence — Application for leave to appeal lodged more than three months after date of conviction — Whether Court has power to grant leave — Section 33(2) of the Crimes (Appeal and Review) Act 2001 (NSW) — No power to grant leave — Appeal dismissed
ENVIRONMENTAL OFFENCES: breach of licence – failure to deal with material in a proper and efficient manner causing air pollution – failure to notify relevant authorities immediately after becoming aware of pollution incident – negligent disposal of waste in a manner that harmed or was likely to harm the environment – pleas of guilty – factors to take into account in determining sentence – state of mind of offender at the time of the commission of the offences – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender took practical measures to reduce harm – whether offender had control over commission of the offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – costs ordered.
PRACTICE AND PROCEDURE – notice of motion – “working out” orders sought in relation to Commissioner’s orders concerning pruning or removal of trees – orders beyond the scope of “working out” orders – motion dismissed with costs
CRIME – environmental offences – vicarious liability – offences under ss 120(1) and 142A(1) of the Protection of the Environmental Operations Act 1997 (NSW) – prohibition of pollution of water and land – diesel spill – applicable sentencing principles – ss 3A, 21A and 22 of Crimes (Sentencing and Procedure Act 1999 (NSW) – objective seriousness of offence – aggravated by nature and seriousness of the harm to environment – strict liability – cause of spill – subjective circumstances of offender – early guilty plea – specific and general deterrence – consistency in sentencing – appropriate sentence – totality principle
EVIDENCE — relevance — probative value — danger of unfair prejudice — Latent duplicity objections — objections to purported expert report — compliance with the Expert Witness Code of Conduct — whether there is lack of impartiality SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — failure to comply with a prevention notice — waste — real risk of environmental harm — objectively very serious — good character — remorse — publication order — moiety SENTENCING — environmental offences — s 169A of the Protection of the Environment Operations Act 1997 (NSW) — executive liability offence — guilty plea — objectively serious — good character — remorse — publication order — moiety — totality SENTENCING — environmental offences — s 97 of the Protection of the Environment Operations Act 1997 (NSW) — real risk of environmental harm —objectively very serious — good character — remorse — publication order — moiety — totality
COSTS – whether costs payable by applicant following discontinuance of Class 1 appeal after hearing commenced – application of no discouragement principle – no costs order made
CONTEMPT – plea of guilty to charge of contempt for failing to comply with court order made by consent requiring production of waste classification report within specified timeframe – contempt wilful –contempt not purged – indemnity costs ordered CONTEMPT – plea of guilty to charge of contempt for failing to comply with court order made by consent requiring production of waste classification report within specified timeframe – contempt less serious – contempt not purged
COSTS – Application for costs in relation to Class 1 proceedings – r 3.7 of the Land and Environment Court Rules 2007 (NSW) – whether fair and reasonable that costs order be made – unreasonableness alleged in bringing proceedings – unreasonableness not made out – application for costs in relation to suppression orders – unreasonableness made out – costs of current motion – mixed result – each party bear their own costs
ENVIRONMENT AND PLANNING — Offences — failure to comply with condition of environment protection licence — defendant charged under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) — condition to carry out licensed activities in a competent manner — meaning of “competent manner” — construction of condition of environment protection licence — meaning of “licensed activity” ENVIRONMENT AND PLANNING — Offences — defendant charged under s 140(1) of the Protection of the Environment Operations Act 1997 (NSW) — emission of noise — meaning of “proper and efficient manner”
PRACTICE AND PROCEDURE — application to strike out proceedings — whether proceedings brought within time — s 8.10 of the Environmental Planning and Assessment Act 1979 (NSW) — whether outcome of review is a confirmation or change of the determination or decision — s 8.4 of the Environment Planning and Assessment Act 1979 (NSW) COSTS — whether it is fair and reasonable to make an order for costs — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — no order as to costs
JUDICIAL REVIEW — Challenge to the grant of a development consent by the Independent Planning Commission (‘Commission’) for an extension of an existing coal mine — Whether failure to consider mandatory considerations — Whether failure to consider specific conditions aimed at minimising to the greatest extent possible greenhouse gas emissions — Whether failure to consider cl 2.20(1) of the State Environmental Planning Policy (Resources and Energy) 2021 — Whether failure to assess downstream (Scope 3) emissions — Whether failure to consider likely impacts of downstream (Scope 3) emissions — Whether engaged in irrational or illogical form of reasoning when proceeding on the basis that “accounting” of Scope 3 emissions will be undertaken by the downstream consumer country — Whether failure to consider likely impacts of Scope 3 emissions in its assessment of public interest — Whether engaged in illogical or irrational form of reasoning when stating that, without the conditions that have been imposed on the development consent, the development proposal would warrant refusal — Whether conditions imposed were merely hypothetical — Whether failure to consider submissions in relation to climate change impacts — Whether misconstruction of s 4.63(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) when determining what would have been carried out but for the surrender of the existing consent — Whether deferred or delegated consideration of impact of proposed development on newly discovered species of lizard — Whether failure to adhere to standard of reasonableness when assessing air quality impact and social impact — Amended summons dismissed
ADMINISTRATIVE LAW — Judicial review — Office of Local Government — Ministerial decision — Local government — Liverpool City Council — Procedural fairness — Bias or apprehended bias — Improper purpose — Jurisdictional error affecting later decisions under the Local Government Act 1993 (NSW) — Interim report — Public inquiry — Amended summons dismissed
CIVIL PROCEDURE — Subpoena to attend and give evidence — Application to set aside — Legitimate forensic purpose — Apparent relevance — A subpoena will be an abuse of process if it is not issued for a legitimate forensic purpose — Subpoena set aside
NOTICE OF MOTION — Civil procedure — Extension of time to commence judicial review proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) — Summons filed 10 years after relevant decision made — Mosman Municipal Council decision to impose condition on development consent — Public interest raised
PRACTICE AND PROCEDURE — Notice of Motion to set aside a notice to produce — Whether there was a legitimate forensic purpose — Whether documents sought are apparently relevant — Whether documents sought to be produced will materially assist in relation to an identified issue — No evidence that notice to produce would amount to oppression
NOTICE OF MOTION – Whether hearing dates in Class 4 proceedings should be vacated until Class 1 proceedings determined – Notice of motion granted with Class 1 proceedings expedited
COSTS: costs application where no final relief determined or granted only interlocutory relief – separate Class 2 proceedings in respect of similar subject matter commenced by first respondent rendered Class 4 proceedings otiose – interlocutory relief sought in Supreme Court and this Court due to jurisdictional constraints – Supreme Court proceedings transferred to this Court – what is the event in respect of the Class 4 proceedings – whether the event was the determination by Douglas AC in the Class 2 proceedings – whether the orders made in the Class 2 proceedings constitute a supervening event – applicable legal principles - whether applicant’s entitlement to costs beyond those attributable to the initial grant of interlocutory relief properly arose in the Class 2 proceedings and should be sought in those proceedings where different costs considerations apply – effect of applicant’s letters of compromise – effect of parties’ Calderbank offers - respondents to pay the applicant’s costs of the Class 4 proceedings.
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environment protection licence – plea of guilty – factors to take into account in determining sentence – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce the harm – whether offender demonstrated contrition and remorse – comparable cases – whether a restoration order appropriate – application of totality principle - monetary penalty imposed – moiety order – publication order – costs ordered.
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environmental protection licence – failure to store waste in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether offender committed offences recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – whether offences committed without regard for public safety – whether offender has capacity to pay fine – comparable cases – application of totality principle – monetary penalty imposed – moiety order – publication order – costs ordered.
ENVIRONMENTAL OFFENCES: failure to comply with court order to remediate land by removing waste from premises – plea of guilty – factors to take into account in determining sentence – whether environmental harm – actual and potential environmental harm –presence of asbestos in the environment – whether harm foreseeable – whether offender could have taken practical measures to reduce harm – whether offender had control over commission of offence – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – capacity to pay – comparable cases – monetary penalty imposed – moiety order – publication order – costs.
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environmental protection licence – failure to store waste in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether offender committed offences recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – whether offences committed without regard for public safety – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – costs ordered.
PRACTICE AND PROCEDURE – Notice of Motion seeking summary dismissal of judicial review proceedings – r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – majority of grounds of judicial review proceedings failed to disclose a reasonable cause of action – leave granted to re-plead one paragraph of Summons
SENTENCING – environmental crime – offences against ss 342(1)(a) and 343(1) of Water Management Act 2000 – damaging or interfering with any work owed or under control of irrigation corporation – taking water from water supply work without authorisation – objective seriousness of offences – sentencing principles – general and specific deterrence – totality – jurisdictional limit of the Local Court – order for moiety against s 122 of Fines Act 1996
PRACTICE AND PROCEDURE – Notice of Motion seeking to vary orders relating to fines imposed in respect of offences under the Water Management Act 2000 (NSW) – r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) – r 5.2(2)(h) of the Land and Environment Court Rules 2007 (NSW) – relevant error capable of amendment – variation of orders in exercise of discretion
ENVIRONMENT AND PLANNING — Practice and procedure — Judicial review proceedings transferred from the Supreme Court of NSW to the Land and Environment Court of NSW — Whether judicial review proceedings transferred from the Supreme Court of NSW should be heard with the merits review proceedings commenced in the Land and Environment Court of NSW — Merits review proceedings to be heard together with judicial review proceedings in the Land and Environment Court of NSW
LAND LAW — Strata title — Strata Renewal Plan — Application for joinder — s 181(6) of the Strata Schemes Development Act 2015 (NSW) — r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) — joinder granted COSTS — costs reserved
COSTS – award of costs to applicant council in interlocutory proceedings following unsuccessful notice of motion seeking to change terms of undertaking by respondents
SENTENCING – civil contempt arising from breach of court orders – sentencing following plea of not guilty – fine imposed – indemnity costs ordered –gross sum costs ordered – orders for substituted performance made
JUDICIAL REVIEW: validity of election to Local Aboriginal Land Council – administrative error resulted in candidate being left off the ballot – councillor elected unopposed – challenge to election result not brought within time – whether Court has discretion to extend time – whether challenge time barred – whether Court has the power to grant the relief sought, including declaring invalid the disputed return – whether Court should exercise its discretion and grant the relief sought – materiality of inadvertent administrative error – application dismissed. STATUTORY CONSTRUCTION: construction of time limitation within which to challenge election results – whether provision to be construed as affording the Court a discretion to extend time – whether any other provision permits Court to extend time – neither text, context nor purpose supports a construction affording the Court a discretion to extend time to bring challenge.
COMPULSORY ACQUISITION – Compensation to be paid in respect of leasehold interest over three areas of parkland that are Crown Land to the Crown land manager – Section 2.24 of Crown Land Management Act 2016 – Claim under s 2.24(3)(b) of CLM Act – Competing valuation methodologies applied to loss attributable to the reduction in public benefit from loss of public open space arising from acquisition – Recreational value – Claim under s 2.24(3)(d) rejected – Claim under s 2.24(3)(e) for disturbance under section 59(1)(f) of Land Acquisition (Just Terms Compensation) Act 1991 – Costs of reinstatement rejected
JUDICIAL REVIEW — Judicial review — Judicial review of council decision — Class 4 — Whether there had been a failure to consider mandatory matters — Whether failure to consider environmental planning instrument — Wingecarribee Local Environmental Plan 2010 — Flood planning issues — Whether failure to consider public submissions — Whether the Court should grant conditional validity pursuant to s 25B of the Land and Environment Court Act 1979 (NSW) — Development consent invalid due to a failure to consider environmental planning instrument
APPEAL — Appeal on a question of law — Appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) — Appeal against a Commissioner’s decision — Whether Commissioner was satisfied that adequate arrangements had been made for suitable vehicular access when required — The fact that there was an existing application to obtain an easement cannot amount to an arrangement — Proceedings remitted back to Commissioner for consideration
PRACTICE AND PROCEDURE – Notice of Motion – Leave sought for production of documents – Leave sought by Applicant to amend its Further Amended Summons – Unexplained delay where hearing dates for substantive proceedings already fixed – Purpose of case management – s 56 of the Civil Procedure Act 2005 – New matters raised as opposed to particularisation of existing claims – Leave sought to transfer proceedings – s 149B(1) of Civil Procedure Act 2005 – Application declined – Amended Notice of Motion, save for directions and specific amendments, dismissed
VALUATION OF LAND — appeals against land valuations by Valuer-General — s 6A of Valuation of Land Act 1916 (NSW) — highest and best use — comparable sales and adjustments — appeal upheld
SENTENCING – early pleas of guilty by landowner to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation – strict liability offences – forestry operation undertaken by contractors – extent of environmental harm significant – mitigating circumstances – assistance to authorities in voluntary reporting of unlawful activities – restoration order made
CRIMINAL – practice and procedure – charge of failing to comply with development consent conditions by breach of s 9.51 Environment Planning and Assessment Act 1979 (NSW) – whether amended summons patently duplicitous
TREE DISPUTE – Appeal against Commissioner’s decision – trees severely obstructing view from dwelling on adjoining land – trees pruned before hearing – state of trees to be assessed – whether assessment of degree of obstruction limited to state of trees on day of hearing – whether likely state of trees and obstruction can be assessed – order to prune all trees in hedge – whether order should be limited to trees causing severe obstruction – whether procedural fairness denied
JUDICIAL REVIEW: validity of modification development consent – whether the development modified substantially the same – applicable legal principles – development as modified not substantially the same development – respondents restrained from acting upon the modified development consent. COSTS: whether respondents to pay the applicant’s costs where respondents filed submitting appearances – applicable legal principles – costs order made against consent authority up to the date of filing submitting appearance.
PROCEDURE – application by non-government organisation a local environment centre to participate as amicus curiae in sentencing hearing for native vegetation offences
NOTICE OF MOTION — application for dismissal of claims — r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — frivolous and vexatious proceedings — no reasonable cause of action disclosed COSTS — r 3.7 of the Land and Environment Court Rules 2007 (NSW) — whether fair and reasonable to make a costs order COSTS — r 4.2 of the Land and Environment Court Rules 2007 (NSW) — whether public interest litigation — countervailing considerations
PROCEDURE – claim for compensation following compulsory acquisition and rescission of acquisition of interest in land pursuant to s 70 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – claim for public interest immunity over Cabinet documents
CIVIL PROCEDURE — Parties — Joinder — Neighbouring property owner to development application — Joinder not necessary for all matters in dispute to be effectively and completely determined CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Determining separate question not justified
APPEAL – land valuation appeals – whether land values of multiple lots in Strathfield triangle too high – comparable sales selection in light of agreed valuation method – adjustment of comparable sales
ENVIRONMENTAL OFFENCES: breach of conditions of Integrated Forestry Operations Approval – conducting unlawful harvesting in environmentally significant areas – pleas of guilty – appropriate sentence – whether environmental harm – whether harm substantial – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – professional costs ordered – investigation costs refused.
ENVIRONMENT AND PLANNING – Consent development application – concept proposal for residential subdivision and detailed proposal for first stage – prior unauthorised works for different subdivision – whether development consent can be granted to amend and use some unauthorised works – mapped coastal wetlands on land – subdivision of whole land but not part of land mapped coastal wetlands – whether development is designated development – applicable environmental planning instrument – current instrument provides for designated development – whether accrued right for application of former instrument – impact on Koala – whether land is a potential koala habitat or a core koala habitat – no development on either habitat – impact on Wallum Froglet – no development in habitat – impact on littoral rainforest – whether sufficient buffer width to protect – use of neighbouring land for native title rights – impact on – whether sufficient buffer to protect – Aboriginal cultural heritage sites – cultural landscape, midden and burial site – impact on – development will not diminish cultural landscape – no development on midden or burial site ENVIRONMENTAL PLANNING INSTRUMENTS – saving and transitional provisions – development application lodged under former instruments - former instruments had savings provisions – current instruments do not have saving provisions – operation of Interpretation Act – whether saves accrued right to have development application determined under former instruments
PROCEDURE – review of senior deputy registrar’s decision to allow expert planning evidence dismissed – no error of law established – no procedural unfairness established
JUDICIAL REVIEW – whether development consent has lapsed – whether evidence establishes physical commencement – whether declaration appropriate where no contradictor
COSTS – application for gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in certain amount – sufficient material before court to enable gross sum costs order to be made – circumstances of substantive civil enforcement proceeding justify making a gross sum costs order
JUDICIAL REVIEW: decision to approve forestry operational plans – whether compliance with principles of ecological sustainable forestry management a mandatory precondition or consideration – whether satisfaction of principles of ecological sustainable forestry management a jurisdictional fact – whether compliance with the conditions of the Coastal Integrated Forestry Operations Approval 2018 a mandatory consideration – whether respondent obliged to consult applicant on planned forestry operations – whether applicant denied procedural fairness – materiality
CIVIL PROCEDURE — subpoena — objection to production of documents on basis of legal professional privilege – onus of proof of legal professional privilege on party claiming it – claim for legal professional privilege dismissed
ENVIRONMENT AND PLANNING – Environment protection licence – statutory requirement for review of licence – separate statutory requirement to consider matters in licence review – proceedings brought to remedy breach of statutory requirement to consider matters – privative clause precluding proceedings for failure to comply with requirement for licence review – whether proceedings precluded – consideration of whether licence holder fit and proper person – whether inference to be drawn from licence review record that matter not considered – considerations of impact of pollution and practical measures to mitigate pollution and environmental harm – whether inference to be drawn from licence review record that matters not considered.
ENVIRONMENT AND PLANNING — Consent — Validity — whether directions given by the Minister for Planning are invalid — whether there was a reasonable apprehension of bias — directions not invalid ENVIRONMENT AND PLANNING — Development application — Validity — whether the approval of the modification application is invalid — approval of the modification application not invalid ENVIRONMENT AND PLANNING — Consent — Conditions — whether the third respondent failed to comply with conditions 3 and 4 of the modified development consent — no relief granted COSTS — order that the applicant pay the third respondent’s costs
ENVIRONMENT AND PLANNING – Class 1 appeal – appeal against the deemed refusal of amended development application seeking change of use of land – suitability of site – s 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 – risk to safety of users of site posed by Commonwealth explosive ordnance facility not sufficient for site to be deemed unsuitable – “likely impacts” of development – s 4.15(1)(b) of the EP&A Act – impact of site on Commonwealth facility not made out – application granted, subject to conditions
COSTS – tree dispute – no discouragement principle applied – no unreasonable behaviour in conduct of proceedings – improper purpose not established – no costs order made
COSTS – whether fair and reasonable to award costs under r 3.7 Land and Environment Court Rules in favour of respondent following unsuccessful tree dispute application – presumptive rule that each party pays their own costs – whether unreasonable circumstances justify costs order
COSTS — successful applicant should receive costs — r 6.11 of the Uniform Civil Procedure Rules 2005 (NSW) — submitting appearance without the words “save as to costs” — effect of late submitting appearance — apportionment of costs between respondents — order for costs to be paid in equal shares COSTS — first and second respondents seek costs of costs hearing — order that respondents pay the costs of the hearing costs as agreed or assessed
APPEAL – appeal on questions of law – Commissioner’s decision to refuse development consent for development in a heritage conservation area – effect of development on heritage significance of area concerned – building to be demolished assessed in DCP as detracting and non-contributory element – Commissioner found assessment incorrect – whether asked wrong question – whether failed to consider relevant matter – error not established
PRACTICE AND PROCEDURE – multiple defendants’ notices of motion seeking orders that summonses be quashed and dismissed upheld – prosecutor’s notice of motion seeking to amend summonses does not arise and dismissed in any event – costs awarded to defendants under s 257C of Criminal Procedure Act
SENTENCING – Defendant guilty of three offences against of s 91I(2) of the Water Management Act 2000 (NSW) – objective seriousness low – strict liability – no environmental harm – subjective circumstances – totality principle – fine imposed – publication order – moiety
NOTICE OF MOTION – leave sought to adduce expert evidence – leave opposed on the basis of misuse of commercially sensitive or confidential information – risk not a real or sensible possibility – leave granted
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
CRIMINAL – practice and procedure– multiple charges of breaches of s 64 of Protection of the Environment Operations Act 1997 (NSW) – whether summons patently duplicitous – whether summons latently duplicitous and uncertain
APPEAL – land valuation appeal – whether land value of small lot in Mascot too high – whether highest and best use of land boarding house or mixed use – proximity to Mascot Towers affected selection of highest and best use APPEAL – land valuation appeal – whether land value of lot in Mascot too high – whether highest and best use of land boarding house or mixed use – impact of Mascot Towers on development of property
ENVIRONMENTAL OFFENCES: pollution of waters – breach of licence – failure to obtain approval for discharge of wastewater in contravention of an environmental protection licence – failure to monitor volume of liquids discharged into water in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether there was environmental harm – actual environmental harm – whether harm foreseeable – whether offender could have taken practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – comparable cases – application of totality principle – monetary penalty imposed – financial penalty payable to environmental trust – publication order – costs ordered.
ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — validity of direction 7 of the varied clean-up notice — whether there was a connection between direction 7 and the pollution incident the subject of the varied clean-up notice — whether the prosecutor held reasonable suspicion of pollution incident — whether the prosecutor was the appropriate regulatory authority — construction of ss 212C and 212D of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 7 of clean-up notice — defence of reasonable excuse ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 10 of varied clean-up notice — defence of reasonable excuse ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 102 of the Protection of the Environment Operations Act 1997 (NSW) — whether the giving of the prohibition notice was warranted under s 101(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) — construction of ss 101 and 102 of the Protection of the Environment Operations Act 1997 (NSW) —failure to comply with prohibition notice —definition of cease — definition of keeping — definition of storing — defence of reasonable excuse
OFFENCES AND PENALTIES – Sentence – clearing of native vegetation in rural area without approval – objective seriousness of offence – clearing premediated and planned – negligent in first tranche of clearing and reckless in second tranche of clearing – failure to comply with Development Control Order, Stop Work Order and Remediation Order – substantial environmental harm caused – foreseeable risk of environmental harm – practical measures to prevent risk of harm – full control over cause of offence – medium objective seriousness near lower end of mid-range of seriousness – subjective circumstances – no prior convictions – prior good character – unlikely to reoffend – limited remorse demonstrated – early guilty plea – Local Court’s jurisdictional limit for a fine disproportionate to objective seriousness of offence committed – limited financial information on means to pay disclosed – fine and costs order.
MINING – remittal requiring the provision of reasons – determination of compensation for non-financial losses – s 265(3) of Mining Act 1992 – compensation for management decisions – compensation determined on an hourly rate basis relative to time spent making relevant decisions – compensation for impact on land – “additional assessment” under s 276 of Mining Act 1992
ENVIRONMENTAL OFFENCES: whether summonses statute barred because evidence of the alleged offence first came to the attention of any relevant authorised officer more than three years prior to the date upon which the proceedings were commenced – legal principles – who was a relevant authorised officer – whether evidence that came to the attention of a person prior to the person being appointed as an authorised officer is relevant – whether mere suspicion or belief sufficient – prosecutions commenced within time.
CIVIL PROCEDURE – review of senior deputy registrar’s decision not to permit expert report to be adduced in Class 3 compensation appeal – whether in interests of justice to set aside decision
ENVIRONMENT AND PLANNING – Appeal against decision of Commissioner – Development of bush fire prone land – Asset Protection Zone on development site and adjoining council land – compliance with APZ requirements in Planning for Bush Fire Protection (PBP) – performance criterion for provision of APZ on adjoining land in perpetuity – no acceptable or alternative solution proposed – misdirection as to PBP - asking wrong question and not asking right question - misdirection as to Council proposed conditions
COSTS – partial costs of respondent council not payable following discontinuance of Class 1 appeal by applicant – no discouragement principle considered – costs of costs motion considered
CONTEMPT – finding of contempt made arising from failure to comply with court orders requiring removal of large number of cars and other items from premises within specified timeframe – frustration of subsequent attempts to comply with court orders not relevant to finding that contempt committed
CIVIL ENFORCEMENT: development without consent – whether declaratory relief should be granted – whether demolition or other remediation should be ordered.
CRIMINAL PROCEDURE – case management of prosecutor’s evidence in contested criminal trials – whether leave to rely on amended s 247E notice and additional affidavit and new expert reports should be given nine months after trial dates set – exercise of discretion to refuse leave to rely on new expert reports
CONTEMPT — notice of motion seeking civil contempt conviction — charge of failure to comply with two court orders made pursuant to the Trees (Disputes Between Neighbours) Act 2006 (NSW) — ex parte hearing SENTENCE — contempt — failure to comply with court orders — lower end of seriousness — fine imposed — ex parte hearing COSTS — whether the applicant should be awarded costs in respect of the contempt proceedings — no order as to costs
ABORIGINAL LAND RIGHTS: whether some or all of the claimed land was “claimable Crown lands” within the meaning of the Aboriginal Land Rights Act 1983 as at the date of the claims – whether the claimed land was lawfully used or occupied for the purposes of s 36(1)(b) of the Act – effect of dedication for “public schooling purposes” – meaning of “lawfully” used or occupied – claimed land not lawfully used or occupied – whether the claimed land was needed or likely to be needed for the essential public purpose of education pursuant to s 36(1)(c) of the Act – whether the provision of education by a private provider an essential public purpose – whether a decision to sell the land to a private education provider who has continuously used the land to deliver courses precluded a finding that the claimed land was needed for an essential public purpose – land not claimable Crown land for the purpose of s 36(1) of the Act.
CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression
COMPULSORY ACQUISITION – Objection to compensation for compulsory acquisition pursuant to s 66 of Land Acquisition (Just Terms Compensation) Act 1991 – determination of public purpose within s 56(1)(a) – relevant purpose broadly construed to include the Western Sydney Infrastructure Plan, the Western Sydney Airport and attendant economic opportunities – rezoning of land integral to public purpose – statutory disregard pursuant to s 56(1)(a) – determination of market value of land – compensation for injurious affection – claim for disturbance – costs
COSTS – whether costs determination should be stayed pending appeal – whether costs should follow the event – whether public interest litigation – no order as to costs.
COSTS: whether costs follow the event when a respondent surrenders to the orders sought by an applicant in the originating process – whether conduct of the applicants was unreasonable thereby warranting a departure from the usual costs order – whether applicants’ failure to notify the first respondent prior to commencing proceedings was unreasonable conduct warranting a different costs order – whether applicants’ failure to personally serve the first respondent with the originating process was unreasonable conduct warranting a different costs order – whether the applicants’ rejection of an offer to settle the proceedings on the same terms as the relief that they ultimately obtained absent an order as to costs was unreasonable – effect of filing of a submitting appearance by the second respondent on costs – applicable legal principles.
INTERLOCUTORY APPLICATION – injunction – forestry operations – civil enforcement proceedings – integrated forestry operations approval under Part 5B of the Forestry Act 2012 (NSW) – standing to sue – whether the common law test for standing applies in civil enforcement proceedings – serious question to be tried – balance of convenience.
JUDICIAL REVIEW: validity of complying development certificate in respect of works to a boatshed – boatshed on Crown land – no landowner’s consent obtained prior to issue of certificate – whether declaration of invalidity should be made – absence of contradictor – utility of declaration – declaration made – certifier filed submitting appearance save as to costs – consequential procedural orders made in relation to foreshadowed costs hearing.
CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – second proceedings litigating same cause of action and issues – abuse of process – effect of judgment in first proceedings – res judicata – issue estoppel – Anshun estoppel
CIVIL PROCEDURE – review of deputy registrar’s decision pursuant to r 49.19 of Uniform Civil Procedure Rules 2005 (NSW) – deputy registrar’s decision set aside and notice of motion re-determined – orders seeking leave to rely on amended plans not made
APPEAL – question of law – Commissioner’s decision to modify development consent – precondition to power to modify consent – whether modified development substantially the same development as originally approved development – whether error in chain of reasoning – whether error that no change in critical elements of development – whether error in adopting expert’s approach that no change in consequences of development – no error of law established
SENTENCE: occupier of landfill charged with emission of offensive odour – plea of guilty – odour affected local residents over a three month period – substantial environmental harm caused – multiple victims – harm reasonably foreseeable – practical measures available to avoid or mitigate the harm – objectively serious – subjective factors – moiety ordered – environmental services order – publication order made – notice to residents ordered.
INTERLOCUTORY APPLICATION: application for interim injunctive relief – no serious question to be tried – excessive delay in bringing application for injunctive relief and in commencing judicial review proceedings – whether proceedings brought in the public interest – whether the applicant should pay the respondents’ costs of the application.
PRACTICE AND PROCEDURE – construction and operation of s 8.5(7) of Environmental Planning and Assessment Act 1979 (NSW) enabling withdrawal of Class 1 appeal following grant of development consent as result of review – joinder of third party has no effect on application of section to applicant and consent authority
CIVIL PROCEDURE — time — extension of time to commence proceedings — r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ENVIRONMENT AND PLANNING — consent — conditions — construction — whether condition C.1(d) of the modified development consent prohibits excavation within the area previously identified as the ‘cellar’ level ENVIRONMENT AND PLANNING — consent — conditions — s 19(1)(b) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) — whether the relevant building work plans and specifications in the construction certificate are consistent with the modified development consent ADMINISTRATIVE LAW — ground of review other than procedural fairness — unreasonableness — jurisdictional error — whether it was legally unreasonable for the certifier to determine the relevant building work plans and specifications were consistent with the modified development consent — whether legal unreasonableness leads to invalidity of all or part of the construction certificate
VALUATION OF LAND – appeals against land valuations by Valuer-General – s 6A(1) of Valuation of Land Act 1916 (NSW) – limited relevant comparable sales
CIVIL ENFORCEMENT – multiple breaches of Environmental Planning and Assessment Act 1979 (NSW) established in relation to building of dwelling – failure to comply with development consent and construction certificate – failure to comply with stop work order issued under the Environmental Planning and Assessment Act 1979 (NSW) – failure to comply with compliance order issued under the Environmental Planning and Assessment Act 1979 (NSW) – exercise of discretion to make declarations of breaches of Environmental Planning and Assessment Act 1979 (NSW) and consequential orders requiring demolition and construction in compliance with development consent and construction certificate – costs
CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 1 application — Question regarding characterisation of development and permissibility — Determining question separately from other issues not justified — Adjudication of separate question not just, quick or cheap
ENVIRONMENT AND PLANNING – Judicial review of development consent of State Significant development – alleged that the consent authority failed to consider environmental impact of transmission line – material jurisdictional error – question as to whether the transmission line formed “part of a single proposed development” – s 4.38 of Environmental Planning and Assessment Act 1979 – provision to be construed in terms of context and purpose – environmental impacts of transmission line – s 4.15(1)(b) of Environmental Planning and Assessment Act 1979 – lack of certainty as to route of transmission line precluded a finding as to “likely impacts” – no error in respect of mandatory relevant considerations
COSTS — Costs assessment — Determination — Self-represented litigant — Class 7 proceedings APPEAL — Appeal against conviction in Local Court wrongly commenced — Conviction in Local Court annulled during proceedings in the Land and Environment Court — Appeal discontinued — Orders made that applicant pay 60% of respondent’s costs including costs of the application for costs
APPEAL – s 56A appeal from decision of acting commissioner on question of law in finding that applicant company a fit and proper person under Protection of the Environment Operations Act 1997 (NSW) – no failure to consider matter not identified to acting commissioner at hearing – no failure to consider correct statutory test – no failure to consider specific paragraphs of judgment in separate criminal case – attribution of weight to relevant factors by acting commissioner not reviewable under statutory scheme – decision not legally unreasonable – appeal dismissed
APPEAL – appeal of acting commissioner’s decision under Trees (Disputes between Neighbours) Act 2006 (NSW) – no error of law in determination that four palm trees did not form a hedge – appeal dismissed
SEPARATE QUESTION: whether consent authority precluded from granting consent to a concept development application in circumstances where clauses concerning the number of lots and the density of the development could not be complied with by the proponent at that stage – what was the “development” in respect of which the consent DA sought consent – whether provision in planning instrument concerning density control is a development standard or a control – whether if the density control is a development standard the consent authority can grant consent to the concept development application.
JURISDICTION – partial strike out of Class 2 application as court lacks jurisdiction to consider breach of duty of care to provide support for land under s 177 of the Conveyancing Act 1919 (NSW) PRACTICE AND PROCEDURE – premature application for compensation under s 181 of Local Government Act 1993 (NSW) struck out PRACTICE AND PROCEDURE – no transfer of proceeding to Supreme Court of NSW
COSTS – costs order made in Respondent’s favour in interlocutory proceeding in compensation for compulsory acquisition claim under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – costs in interlocutory proceedings not payable on indemnity basis
PRACTICE AND PROCEDURE – interlocutory application – notice of motion for injunctive relief – restrain applicant from accepting offer of compensation under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) – serious question to be tried – balance of convenience
CRIME – Environmental Offences – Offences under ss 120(1) and 142A(1) of the Protection of the Environmental Operations Act 1997 (NSW) – prohibition of pollution of water and land – diesel spill – applicable sentencing principles under Crimes (Sentencing and Procedure Act 1999 (NSW) – objective seriousness of offence – offence aggravated by nature and seriousness of the harm to the environment – strict liability – conduct unintentional – subjective circumstances of offender – remorse – early guilty plea – consistency in sentencing – limited capacity to pay fine – s 6 of Fines Act 1996 (NSW) – appropriate sentence – discount in fine for each offence
CRIMINAL APPEAL – Environmental Offences – Liability of Councils and directors – special executive liability – s 169(1) of Protection of the Environment Operations Act 1997 (NSW) – statutory construction – construction of “to and in respect of”– whether such an expression is to be read disjunctively or conjunctively – ordinary and grammatical meaning of “and” is conjunctive – assistance of extrinsic material – s 220(4) of Local Government Act 1993 (NSW) – costs limitations imposed upon lower courts
ENVIRONMENT AND PLANNING – consent –duration or lapsing of development consent – breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW) – prohibited development – declarations and injunctive relief – stay of injunctive relief
JUDICIAL REVIEW: validity of consent for change of use of land – whether change of use constitutes development where no erection of a dwelling occurs – the meaning of “carrying out development” – change of use from dwelling and secondary dwelling to dual occupancy – change of use is development – Council had the power to grant the consent.
COSTS — Criminal proceedings — Application by the defendants for costs under s 257D of the Criminal Procedure Act 1986 (NSW) after summons dismissed — Whether prosecutor’s investigation of alleged offences was unreasonable — Whether the commencement of the proceedings was unreasonable — Whether the prosecutor acted improperly — Whether there are exceptional circumstances otherwise warranting an order for costs — Application dismissed
COMPULSORY ACQUISITION – market value of acquired land – underlying zoning at acquisition date low density residential – numerous constraints on development of land for 26-lot subdivision in mind of hypothetical purchaser – river on land with need to obtain approval to pipe and traffic access and topography constraints affect consideration of risk in valuation process – relatively risk free 7-lot subdivision should be valued – disputed comparable sales adjustments considered – disturbance claim that actual use of land for land banking accepted
JUDICIAL REVIEW – amendment of a plan of management for a national park – statutory requirement for consideration of relevant matters – when matters required to be considered – who required to consider matters – whether matters considered at required time and by required person
CIVIL PROCEDURE — Notice of Motion seeking summary dismissal or strike out of proceedings — Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28 — No reasonable cause of action disclosed — Summons dismissed PRACTICE AND PROCEDURE — Leave granted to replead a limited number of claims
CIVIL ENFORCEMENT – s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) – where respondents carried out earthworks, erection of a building and driveway works without consent – orders made requiring demolition of works and restoration of land – s 23 of the Land and Environment Court Act 1979 (NSW) – r 40.8 of the Uniform Civil Procedure Rules – orders made permitting the Council to carry out works if respondents fail to comply with orders
JUDICIAL REVIEW – Complying Development Certificate (CDC) issued for construction of group homes and attached garage – cll 8 and 20 of Sch 2 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) – whether development met building articulation and location of fill requirements – CDC was not complying development under cl 64(1)(d) of the Housing SEPP – cl 1.18(e) of State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (Code SEPP) – whether consent was required for modification of driveway under s 138 of the Roads Act 1993 (NSW) – no work proposed for driveway
SENTENCE – contempt – failure to comply with court orders – no appearance from respondent – wilful contempt – upper end of objective seriousness – fine imposed – periodic fine imposed until contempt purged
COSTS — Whether successful appellant in an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) should be awarded costs — Costs should follow the event — Apportionment appropriate