COMPULSORY ACQUISITION — compensation — assessment under s 55(a) Land Acquisition (Just Terms Compensation) Act 1991 — adjoining owner premium — real material potentiality of acquired land in hands of adjoining owner — increase in market value — COMPULSORY ACQUISITION — compensation — assessment under s 55(f) Land Acquisition (Just Terms Compensation) Act 1991 — increase or decrease in value of adjoining land by reason of public purpose — injurious affection claim concerning disruption to access, dust impacts and stigma — betterment claim concerning traffic efficiencies — decrease in value of adjoining land held by reason of injurious affection claim relating to disruption to access
JUDICIAL REVIEW – decision to grant development consent to gas project – greenhouse gas (GHG) emissions of project – comparison of GHG emissions advantage of gas over coal – whether misconstruction or failure to consider impacts of project – statutory requirement to consider imposing condition of consent minimising GHG emissions – whether GHG emissions include downstream emissions – condition not imposed as downstream emissions outside direct control of proponent – whether misconstruction of statutory requirement – whether decision legally unreasonable – project gas to be transported to market by pipeline – pipeline not part of gas project – whether impacts of pipeline are impacts of gas project – whether failure to consider impacts of gas project
JUDICIAL REVIEW – decision of the Natural Resources Access Regulator to give official caution – alleged breach of Water Management Act 2000 – function to give official caution conferred by Natural Resources Access Regulator Act 2017 and Fines Act 1996 – jurisdiction of Land and Environment Court to review decision to give official caution – transfer of proceedings to Supreme Court
CIVIL PROCEDURE — notice of motion — application to amend development application — cl 55 Environmental Planning and Assessment Regulation 2000 — discretion — s 39 Land and Environment Court Act 1979 — application to have application considered a concept development application — s 4.22 of Environmental Planning and Assessment Act 1979 — change proposed by amendment significant — insufficient particulars included in application — notice of motion dismissed
LAND LAW — Easements — Creation of easements — Creation by order of the Court — Imposition pursuant to s 40 of the Land and Environment Court Act 1979 (NSW) and s 88K of the Conveyancing Act 1919 (NSW) — Easement for drainage — Whether reasonably necessary for the effective use or development of land
VALUATION — Compulsory acquisition — Before and after valuation method — Highest and best use as a manufactured home estate — Hydrological and ecological constraints on development — Market value — Severance — Injurious affection — Disturbance
EVIDENCE - mobile phone seized pursuant to search warrant - data on mobile phone protected by passcode - statutory notice requiring provision of passcode to Prosecutor - objection by Defendant to provision of passcode - objection prevents passcode being used as evidence against Defendant - Notice of Motion seeking advance ruling that evidence obtained from the mobile phone after using the passcode is inadmissible - question of whether s 212 of the Protection of the Environment Operations Act 1997 provides similar protection to information obtained from the mobile phone by using the passcode - s 212 specifically removes protection from self‑incrimination by evidence derivatively obtained by use of the passcode - use of derivatively obtained information capable of being evidence against the Defendant - preliminary ruling to reject evidence as inadmissible refused
ENVIRONMENT AND PLANNING — development application — validity of consent — cl 6.3 of Campbelltown Local Environment Plan 2015 — whether development control plan provided for a staging plan — not essential or necessary that staging provides for multiple stages and sequencing — discretion not lead to invalidity of consent ENVIRONMENT AND PLANNING — extension of time for commencing proceedings — whether extension should be granted under r 59.10 of Uniform Civil Procedure Rules 2005 — adequate explanation for delay — particular interest in challenging decision — potential prejudice to persons and public interest — leave not granted for extension ENVIRONMENT AND PLANNING — development application — validity of consent — application of ss 8.3 and 8.4 of Biodiversity Conservation Act 2016 — whether biodiversity certification operated such that cl 10 of State Environmental Planning Policy (Koala Habitat Protection) 2020 had no operative effect on consent — effect of Biodiversity Certification – cl 10 State Environmental Planning Policy (Koala Habitat Protection) 2020 not a mandatory consideration — leave to further amend summons refused — summons dismissed
PLANNING AND ENVIRONMENT – application to modify development consent – amendment of – amendment responsive to Commissioner’s preliminary decision – agreement to amendment – whether appropriate – costs thrown away by amendment – whether appropriate to order
ADMINISTRATIVE LAW – judicial review – failure of council to comply with precondition in local environmental plan in granting development consent for a dwelling on rural zoned land less than 100 ha in area an error of law – no entitlement to build a dwelling on under sized lot in rural landscape zone –development consent invalid
JUDICIAL REVIEW – public duty – failure to perform – duty to develop environmental quality objectives, guidelines and policies to ensure environment protection – meaning and content of duty – discretion in performing duty – controls on the exercise of discretion – duty requires the development of objectives, guidelines and policies to ensure environment protection from climate change – breach of duty - mandamus to compel performance of duty
COSTS - Applicant commences Class 4 proceedings seeking declaratory relief - proceedings concerned application of cl 4.1A of the Randwick Local Environmental Plan 2012 to nominated development proposal plans - Applicant subsequently amends relief - amended relief seeks abstract judicial advice concerning cl 4.1A - not appropriate to give judicial advice sought – related Class 1 proceedings based on cl 4.1A fail because design merit proceedings fail - Class 4 proceedings dismissed - no reason to depart from presumption that costs follow the event - Applicant to pay Respondent's costs of Class 4 proceedings - Applicant to pay Respondent's costs of Class 4 costs consideration
COSTS - Class 1 strata subdivision appeal - strata subdivision appeal contingent on successful outcome in Class 1 dual occupancy (attached) development appeal - development appeal unsuccessful - strata subdivision appeal necessarily dismissed as a consequence - Respondent applies for costs of day of strata subdivision appeal addressing jurisdictional issues - no determination of jurisdictional issues - inappropriate to conduct hypothetical determination of jurisdictional issues in strata subdivision appeal - no basis to award Respondent costs for jurisdictional hearing day. COSTS - costs of costs applications in Class 1 ordinarily follow the event - no basis to depart from that principle - Respondent pay Applicant’s costs of Class 1 costs application
TREE DISPUTE - application to amend relief sought - application not opposed - leave to amend granted TREE DISPUTE - application for leave to issue subpoenas - application to validate, nunc pro tunc, two subpoenas issued in error - low threshold for leave to issue subpoenas - leave granted - return date before Registrar set for all subpoenas TREE DISPUTE - Applicant serves Notice to Produce to the Court on Second Respondent - application to set aside Notice to Produce - legal principles requiring test of apparent relevance to be applied - consideration of categories of documents listed in Notice to Produce - some categories not opposed - some opposed categories permitted - some opposed categories permitted in part - some opposed categories rejected - modified list of documents to be produced determined - Second Respondent self-represented - Second Respondent presently located in Queensland - impact of COVID-19 travel restrictions on ability to comply with the Notice to Produce - appropriate to have regard to travel restrictions in setting date for compliance with Notice to Produce - matter set down for four‑day hearing commencing in mid-November 2021- appropriate to allow longer time for production - modified list of documents ordered to be produced to the Court by the end of October 2021
COMPULSORY ACQUISITION – compensation – assessment under s 55(a) Land Acquisition (Just Terms Compensation) Act 1991– determination of market value – whether zoning a consequence of public purpose to be disregarded – rezoning unlikely absent public purpose – rezoning for residential use unlikely – no impact on market value COMPULSORY ACQUISITION – compensation – assessment – disturbance – legal fees – stamp duty – mortgage costs
COMPULSORY ACQUISITION – compensation – assessment – disturbance – whether applicant has a compensable interest in land – arrangement between registered proprietors and company granting company bare license or permission to occupy land – registered proprietors are sole directors and shareholders of company – not a right, power or privilege over, or in connection with land – interest not capable of alienation by way of sale or transfer
CRIMINAL – appeal against the severity of sentence in Local Court for offence of carrying out development without consent – exercise of sentencing discretion to make s 10(1)(a) order in light of appellant’s circumstances – appeal upheld
NOTICE TO PRODUCE - Class 1 appeal against deemed refusal of development application - Applicant serves Notice to Produce to the Court on the Respondent - Respondent owns land adjacent to the Applicant's development site - Development Control Plan (DCP) contains provisions concerning site consolidation - provisions identify the development site and the Respondent's land is desirable to be amalgamated - Applicant seeks documents concerning any past negotiations concerning the sale of the Respondent's land - Applicant also seeks production of documents concerning process leading to adoption of the DCP - Respondent seeks to have the Notice to Produce to the Court set aside on the basis that no legitimate forensic purpose has been established for either element - forensic purpose established the documents concerning past negotiations - paragraph permitted to stand - no forensic purpose established the documents concerning the process for adoption of the DCP - paragraph struck out
PROCEDURE – compensation for mine subsidence claim – application by coal mine proprietor for joinder as a party – whether ought to be joined as a party – whether necessary to be joined as a party – first time such application has been considered under Coal Mine Subsidence Compensation Act 2017
CRIMINAL – appeal against conviction in local court of causing injury with pesticide use – individual exposed to diazinon from macadamia farm while driving on public road – new evidence of pharmacologist allowed in appeal – exposure and injury proved beyond reasonable doubt – conviction appeal dismissed
COMPULSORY ACQUISITION – compensation for partial acquisition of business zoned land – piecemeal approach to valuation based on comparable sales agreed methodology of valuers – adjustment for protected trees on acquired land warranted – adjustments for location, vehicle access considered
ENVIRONMENTAL OFFENCES: corporate defendants plead guilty to offences against the Mining Act 1992 – imposition of appropriate sentence – applicable sentencing principles – whether offences committed negligently – degree of environmental harm caused by the commission of the offences – whether substantial harm to the environment caused by the commission of the offences – whether assistance provided to authorities – whether power exists to order the payment of the prosecutor’s investigation costs – whether the ordering of a moiety appropriate – application of totality principle – comparable cases – publication order.
PRACTICE AND PROCEDURE – Leave to rely on amended statement of facts and contentions – leave to amend would not cause undue delay – leave granted EVIDENCE – Appointment of single party quantity surveying expert – determination of appropriate expert
APPEAL – appeal against Commissioner’s decision on a question of law – application to modify development consent by amending condition – condition requiring payment of monetary contribution – condition alleged to be unreasonable – dedication of land and provision of material public benefit required by consent – failure to accept as offset to monetary contributions – whether mischaracterisation of source of power – whether misdirection as to relevant considerations – whether benefits required by consent not relevant to unreasonableness – whether error in considering policy of contributions plan – no error established
JUDICIAL REVIEW – construction of garage on council owned land approved by local council as consent authority – applicant for garage development and local council as consent authority unaware that construction on council owned land when development application approved – absence of consent of council jurisdictional as development application not valid – proceedings commenced more than three months after public notice of grant of development consent – operation of s 101 Environmental Planning and Assessment Act 1979 bar to proceedings – Hickman principles satisfied – exercise of discretion to extend time under UCPR r 59.10 – exercise of discretion to grant relief
COMPULSORY ACQUISITION – council land used for golf driving range business acquired – compensation claim by leaseholder/operator of business – claim for disturbance for business relocation under s 59(1)(c) of the Land Acquisition (Just Terms Compensation) Act 1991 – claim dismissed COMPULSORY ACQUISITION – alternative claim for business reinstatement under s 56(3) of the Land Acquisition (Just Terms Compensation) Act 1991 as market value – claim dismissed COMPULSORY ACQUISITION – alternative claim of special value for leasehold interest acquired – claim dismissed
ENVIRONMENT AND PLANNING — Offences — Sentencing — Development without consent — Failure to comply with development control order SENTENCING — Relevant factors on sentence — Aggravating factors — Mitigating factors — Determination of the objective seriousness of the offence and subjective circumstances of the defendant — Nature of offence — Extent of harm — State of mind — Plea of guilty — Remorse — Deterrence — Totality
PROCEDURE – notice of motion seeking leave to rely on engineering and other evidence pursuant to Uniform Civil Procedure Rules 2005 r 31.19 to prepare scoping study for reinstatement of partially developed site PROCEDURE – order for access to site for experts sought pursuant to Uniform Civil Procedure Rules 2005 r 23.8(1)
APPEAL – activity approval for caravan park and camping ground operated on Crown land – impact on endangered ecological community from camping in southern precinct – whether approval consistent with ecologically sustainable development principles – objections to compliance with local government regulation requirements acceptable – approval to be granted subject to conditions including compliance with vegetation management plan
PROSECUTION – sentencing for multiple (22) offences of possession and harming of bird eggs of protected and threatened species under National Parks and Wildlife Act 1974 – pleas of guilty – eggs in defendant’s possession collected over many years – not established beyond reasonable doubt that defendant aware that harm to and possession of eggs of threatened bird species – defendant aware that bird eggs in general could not be collected without a licence issued under the National Parks and Wildlife Act – high range of low objective seriousness – mitigating factors of age and health – custodial sentence not appropriate – community correction order made with place restriction condition preventing entry into national park, nature reserve, regional park, state conservation area and wilderness area for 14 months
PROCEDURE – leave sought to rely on expert funeral industry evidence in judicial review proceedings – evidence of funeral industry consultant to inform characterisation of development consent for crematorium and cemetery reasonably necessary PROCEDURE – leave sought to rely on ecological evidence in judicial review proceedings – whether biodiversity development assessment report required in relation to development consent for crematorium and cemetery a question of jurisdictional fact – ecological evidence permitted
COSTS – discretion to award costs pursuant to r 42.1 of the Uniform Civil Procedure Rules – whether costs should be apportioned – applicant successful on first of three issues for determination – first issue for determination not clearly discrete issue in proceedings – usual order made
PRACTICE AND PROCEDURE – Application for leave to be heard at conciliation conference or hearing under s 38(3) Land and Environment Court Act or as amicus curiae – Court’s power to permit non-party to participate in s 34 Conciliation Conference – Leave granted on terms to non-party to participate pursuant to s 38(2) – Unnecessary to determine amicus curiae
COMPULSORY ACQUISITION – compensation – assessment under s 55(f) Land Acquisition (Just Terms Compensation) Act 1991 – service station use – concurrent lessee – nature and scope of concurrent lessee’s interest – legal interest – right power or privilege over or in connection with the land – effect of contracts for fuel supply and sale on determination of compensation
ENVIRONMENTAL OFFENCES: defendant convicted of two offences of aiding, abetting, counselling, or procuring breaches of s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 – guilty plea – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the tree removal offence moderate to high – objective seriousness of the commission of the tree protection offence low to moderate – no prior convictions – remorse and contrition of limited weight – specific and general deterrence warranted – comparable cases.
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision contrary to law — Statutory construction — Irrelevant and relevant considerations — Whether decision-maker formed the required states of satisfaction ADMINISTRATIVE LAW — Procedural fairness — Consideration of objection to development application
VALUATION OF LAND – appeal against land valuation for 1 July 2019 year under s 6A(1) Valuation of Land Act 1916 – comparable sales approach of Valuer-General’s expert valuer correct – land valuations in earlier years irrelevant – comparison of sales of improved properties in real estate market with land values irrelevant – applicant’s novel approach not accepted – appeal dismissed
APPEAL – appeal against Commissioner’s decision on a question of law – development contravened development standard – written request seeking to justify contravention – Commissioner not satisfied with written request or that development in public interest – whether misconstruction of objective of development standard – whether misconstruction of objective of the zone – whether constructive failure to consider written request – whether denial of procedural fairness by failure to warn that written request insufficient – only misconstruction of objective of zone established – error not vitiating
ENVIRONMENTAL OFFENCES: defendant convicted of three offences of breaching the Environmental Planning and Assessment Act 1979 – guilty pleas – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the tree removal offences moderate – objective seriousness of the commission of the tree protection offence low – no prior convictions – remorse and contrition demonstrated – specific and general deterrence warranted – application of parity principle by analogy – comparable cases.
CIVIL PROCEDURE — Jurisdiction — Appeal against refusal of application to modify development consent — Whether Court has power to amend a modification application — Whether consent authority has power to amend a modification application under the EPA Act
APPEAL - development application for dual occupancy (attached) over basement garage - deemed refusal - development permissible with consent in R2 Low Density Residential zone - proposed development generally compliant with building envelope controls - zone objective seeks consistency with desired future character of the area - non‑compliance with development control plan (DCP) - basement garage inconsistent with DCP control - excavation for garage also inconsistent with DCP control - dual occupancies (attached) near the proposed development define the desired future character of the streetscape - desired future streetscape does not include basement car‑parking - weight to be given to DCP controls - proposed development inconsistent with desired future character and DCP controls - proposed development unacceptable - development consent refused - appeal dismissed APPEAL - deemed refusal of application to strata subdivide proposed dual occupancy (attached) - proposed strata subdivision contingent on granting consent to proposed dual occupancy (attached) - proposed dual occupancy (attached) refused development consent - refusal renders strata title appeal futile - appeal dismissed
PROSECUTION – sentencing for offence of transport of waste to unauthorised location in environmentally sensitive location – aggravating matters of financial gain and organised criminal activity not established beyond reasonable doubt – mitigation matters include offer to remediate site – totality principal applied PROSECUTION – sentencing for offence of land pollution due to deposition of waste – aggravating matters of financial gain and organised criminal activity not established beyond reasonable doubt – mitigation matters include offer to remediate site – totality principal applied PROSECUTION –sentencing of occupier of place used as waste facility without lawful authority – aggravating matters of financial gain and organised criminal activity not established beyond reasonable doubt – mitigation matters include offer to remediate site – totality principal applied
PRACTICE AND PROCEDURE – parties – appeal by applicant for development consent for designated development – objectors – entitlement to be given notice of appeal – entitlement to be heard at hearing of appeal
ENVIRONMENT AND PLANNING — Environmental planning instruments — Prohibited uses — Undertaking prohibited development — Civil enforcement proceedings — Discretion to grant relief ENVIRONMENT AND PLANNING — Orders — Brothels — Failure to comply with requirements of order — Civil enforcement proceedings — Discretion to grant relief
JUDICIAL REVIEW - First Respondent granted complying development certificate by Sixth Respondent for “landscaping material supplies” on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - Council seeks declaration that the certificate is invalid - necessity for engineer’s certificate of structural stability a prerequisite mandated by cl 5A.27(3)(a) of State Environmental Planning Policy (Exempt And Complying Development Codes) 2008 - no engineer’s certificate provided to Sixth Respondent - first basis of invalidity established - evidence the certificate was not issued by Sixth Respondent but by another certifier purporting to issue the certificate in Sixth Respondent's name - further basis of invalidity of certificate established - First Respondent submits to the making of a declaration of invalidity of the certificate - certificate declared invalid JUDICIAL REVIEW - First Respondent granted second complying development certificate by Sixth Respondent for “warehouse and distribution centre” on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - certificate also authorises construction of roadworks on the properties owned by the Second to Fifth Respondents and on an adjacent property - no owner’s consent from the owner of the adjacent property provided to Sixth Respondent prior to the issuing of the second certificate - Council seeks declaration that the second certificate is invalid - owner’s consent required from the owners of all property where work is to be carried out - absence of owner’s consent for roadworks on land not owned by Second to Fifth Respondents renders second certificate invalid - First Respondent submits to making declaration of invalidity of second certificate - second certificate declared invalid DISCRETION - substantial volumes of fill placed by First Respondent relying on the first and/or second certificate - issues of relief on declarations of invalidity deferred to further hearing - directions made for further hearing
JUDICIAL REVIEW ‑ Minister grants development consent to Powerhouse Parramatta ‑ original development application proposes demolition of “Willow Grove” and “St George’s Terrace”, local heritage items listed in the Parramatta Local Environmental Plan 2011 ‑ development modified during environmental impact statement (EIS) submission and consideration process ‑ proposed demolition of “St George’s Terrace” abandoned ‑ final proposal envisages “Willow Grove” will be disassembled and re‑erected at another site ‑ North Parramatta Residents Action Group challenges validity of consent ‑ adequacy of EIS ‑ interaction between cl 7 of Sch 2 of the Environmental Planning and Assessment Regulation 2000 with the Secretary’s Environmental Assessment Requirements (SEARs) ‑ extent of requirement to examine feasible alternative sites ‑ extent of requirement to examine feasible alternative designs retaining “Willow Grove” ‑ whether EIS compliant with cl 7(1)(c) of the Regulation and with the SEARs ‑ if not compliant, was the EIS substantially compliant with the requirements of cl 7(1)(c) of the Regulation and with the SEARs - EIS substantially compliant ‑ Summons dismissed ‑ costs reserved
JUDICIAL REVIEW – Council exercise of power to carry out work the subject of an order s 129(1) LGA – validity of s 22A order issued under s 124 Local Government Act 1993 requiring removal of waste from residential premises – period for compliance with order under s 137 appropriate – no minimum statutory notice period to permit Council to exercise powers under s 678(1) – service of notice by letter sufficient – no requirement by Council to remove and store items of value – no anticipated breach by Council – no jurisdiction to determine allegation of discrimination
EVIDENCE: whether expert town planning and survey evidence should be permitted in judicial review proceedings where only declaratory relief claimed – whether expert town planning evidence necessary to demonstrate materiality of jurisdictional error – materiality conceded – whether expert survey evidence necessary to establish a jurisdictional fact – no error identified in survey material before the Council at the time it granted the consent – no error identified in the manner in which the Council considered the survey material before it – expert evidence not required. PROCEDURE: application to inspect land the subject of judicial review proceedings – whether inspection of land by town planner and surveyor required – power of the Court to order inspection of land – inspection not required because expert evidence not required.
ENVIRONMENT AND PLANNING – s 4.1 and 4.2 EP&A Act – development without development consent – whether deck is exempt development – deck exceeds nominated height in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 so is not exempt development – deck requires development consent. ENVIRONMENT AND PLANNING – development requiring consent – installation of stove – no requirement to obtain development consent. ENVIRONMENT AND PLANNING – s 4.3 EP&A Act – prohibited development – whether residential use was an ancillary use – residential use is a separate and independent use – caretaking activities do not alter characterisation of use. DISCRETION – s 9.46 EP&A Act – residential use of premises inconsistent with objectives of zone – regard to length of time applicant has been in residential occupation – regard to evidence of shortage of residential accommodation – operation of orders to be deferred for 12 month period.
APPEAL – subdivision – refusal of development consent – proposed subdivision inconsistent with development control plan – planned local street and bus route not provided – weight to be given to development control plan – insufficient justification for inconsistency with development control plan – no reasonable alternative solution proposed in development application – unacceptable impacts on endangered ecological community and koala feed trees
ENVIRONMENTAL OFFENCES: defendant charged with water offences in four separate summonses – whether summonses bad for duplicity – whether it is duplicitous to plead two alternative offences in the one summons – whether it is duplicitous to plead alternative formulations of liability within the one summons – whether offending conduct comprises a single criminal enterprise – whether offences not known to law – whether summonses amenable to amendment – applicable legal principles – one summons bad for duplicity.
APPEAL - Applicant held an Environment Protection Licence (EPL) for a waste storage and resource recovery facility - was Environment Protection Authority (EPA) revoked the EPL when the facility no longer held valid development consent - the EPA attached conditions to the revoked EPL – conditions required removal of 6,860 cubic metres of waste by a specified date - the Applicant had lodged a $250,000 financial surety with the EPA - the Applicant requests variation of the revocation conditions to permit a staged release of the financial surety to fund removal of the waste - Applicant impecunious and unable to fund removal of the waste - the EPA rejects request - the Applicant commences proceedings challenging the refusal - EPA seeks dismissal of the proceedings on the basis that the Applicant’s request is not capable of appeal - request not an application giving rise to appealable decision - appeal dismissed NOTICE OF MOTION - Applicant’s EPL revoked in 2018 - the Applicant commences proceedings challenging the EPA’s revocation conditions - proceedings referred to a conciliation conference - conciliation conference results in agreement to amend the revocation conditions - revocation conditions required the Applicant to remove all remaining waste by 21 September 2019 - the conciliation agreement extended time for completion of removal of waste by three months - Applicant unable to finance removal of the waste - waste not removed as required - in February 2021, Applicant seeks extension of deadline for removal until September 2023 - EPA opposes extension on the basis that the Court has no power to approve it - held that there is power to approve the amendments - EPA opposes the extension on the basis of no realistic possibility that removal of the waste would be effected if time extended - consideration of the Applicant's financial circumstances - Applicant impecunious -consideration of possibility of improvement in the Applicant's financial circumstances - asserted improvement in the Applicant's financial circumstances speculative as to the nature, timing and quantum - no realistic prospect of change in Applicant’s financial circumstances permitting removal of the waste if extension of time granted - application for extension of time refused COSTS - EPA agrees not to seek costs in the financial surety release proceedings - EPA reserves its position with respect to costs concerning the time extension proceedings - no order for costs in the financial surety release proceedings - costs reserved in the time extension proceedings
CIVIL ENFORCEMENT – no breach of Environmental Planning and Assessment Act 1979 (NSW) in operation of transitional group home without development consent – characterisation of purpose of activity at residential property in environmental living zone – transitional group home carried out on behalf of a public authority – summons dismissed
COSTS - successful Applicant in Class 1 proceedings awarded costs on an ordinary basis as being “fair and reasonable” in light of the outcome of those proceedings - successful Applicant seeks costs order be made on the indemnity basis - consideration of settlement offers made - first offer lacked precision - second offer made on an “open offer” basis (and rejected) provides a proper foundation to award costs on the indemnity basis after the expiry of the offer - Respondent ordered to pay the Applicant's costs of the indemnity from the date of refusal of the Applicant’s second offer COSTS - complaint that two‑step approach in seeking a costs order on the indemnity basis was procedurally unfair - two‑step approach necessary to establish an outcome against which rejected offers could be measured - no procedural unfairness - costs of costs applications ordinarily follow the event - costs of costs applications usually awarded on the ordinary basis - no reason to depart from these positions - Respondent ordered to pay the Applicant's costs of the indemnity costs application as agreed or assessed
COMPULSORY ACQUISITION – compensation – assessment – s 55(f) Land Acquisition (Just Terms Compensation) Act 1991 – service station use – determination of value by reference to business earnings – determination of appropriate valuation approach – length of lease for purposes of hypothetical transaction – whether hypothetical purchaser is an independent or networked operator of service stations – date of public purpose manifesting impact on subject property COMPULSORY ACQUISITION – compensation – assessment – disturbance – legal fees – valuation costs
SENTENCING – s 64 Protection of the Environment Operations Act 1997 – objective seriousness – strict liability offence – offence caused by actions of contractor – adequate practical measures taken by Defendant – limited subjective factors – additional penalties – publication order not appropriate
ENVIRONMENTAL OFFENCES: interlocutory finding that summons duplicitous – no formal orders entered at request of prosecutor – whether question of law ought to be submitted to Court of Criminal Appeal by way of stated case pursuant to s 5AE of the Criminal Appeal Act 1912 or whether more appropriate to seek leave to appeal or certification under s 5F(3) of that Act – meaning of “question of law” in s 5AE of Criminal Appeal Act 1912 – draft question of law for submission on stated case not a proper “question of law” for the purpose of s 5AE – formal orders entered and matter certified for appeal.
ENVIRONMENT AND PLANNING – offences – failure to comply with condition of environmental protection licence – s 64 Protection of the Environment Operations Act 1997 – condition to maintain in a proper and efficient condition – meaning of “maintain” – plant preserved in a state that is able to perform the function it was designed to perform – designed to contain ammonia – circuit is integrated, not comprising of separate components– guilty of the charge
COMPULSORY ACQUISITION OF LAND - Valuer General determines market value of acquired land - acquired land subject of contract for sale -Valuer General apportions market value between vendor and contracted purchaser - contract to purchase contingent on simultaneous settlement of two other purchases by interests related to purchaser of the acquired land - deed between the three vendors and the three purchasers requiring that all purchases be settled at the same time - purchasers would have been unable to settle at the same time - determination of the value of the equitable estate of the purchaser of the acquired land - value of the equitable estate of the purchaser of the acquired land is “Nil” CROSS‑CLAIM - Valuer General's apportionment of compensation for market value fails to account for necessity for simultaneous settlement of three purchases - acquiring authority pays compensation to purchaser for market value of equitable interest based on Valuer General's determination - acquiring authority cross‑claims to recover amount paid for equitable interest as the market value of the equitable interest is “Nil” - no opposition from purchaser to acquiring authority's cross‑claim - jurisdiction and power of Land and Environment Court to order repayment - purchaser ordered to repay acquiring authority the amount paid in reliance on the Valuer General's determination of the purchaser’s equitable interest in the acquired property COMPULSORY ACQUISITION OF LAND - claim for compensation of an equivalent payment to stamp duty for the value of a replacement property - three compulsory acquisitions by the acquiring authority - each acquired property part of a common set of business interests - claim for stamp duty equivalent payment based on s 59(1)(d) of the Land Acquisition (Just Terms Compensation) Act 1992 - claims founded on asserted possible relocation of business of holding land - earlier finding (undisturbed on appeal) that none of the dispossessed owning entities was undertaking any actual use of the relevant acquired land - consideration of whether compensation entitlement arose when no actual use of the acquired land - held that actual use of the acquired land a necessary prerequisite for the award of stamp duty equivalent compensation – stamp duty compensation claims rejected
ENVIRONMENTAL OFFENCES: offender convicted of two charges of unlawful development and one charge of procuring unlawful development – guilty plea – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the offences low to moderate – no prior convictions – remorse and contrition demonstrated – specific and general deterrence warranted – comparable cases.
PROCEDURE - challenge to validity of development consent for event - application for interlocutory injunction to restrain event - event to take place before final hearing - Applicant does not offer usual undertaking - arguable grounds for challenge assumed - balance of convenience - minimal (at its highest) evidence of any potential adverse impacts from holding the event - adverse impacts of transitory nature if occurring -significant adverse economic impact on local community if event cancelled - significant adverse social impact on thousands of participants registered to take part in the event - adverse economic impacts on event promoter and other service providers to the event - balance of convenience against granting injunction - injunction refused COSTS - presumption that costs follow the event in Class 4 litigation - Applicant relies on public interest exception to resist making of costs order - Applicant incorporated three weeks prior to commencement of proceedings - only evidence of public interest nature of Applicant are assertions by its director - documentary evidence does not support conclusion the Applicant is a not-for-profit entity - taking the position for the Applicant at its highest and assuming characterisation as public interest litigation, nothing demonstrating “something more” than mere characterisation as public interest litigation - Applicant ordered to pay the Second Respondent’s costs
COMPULSORY ACQUISITION - Respondent acquires land for public recreation purposes - land zoned R2 Low Density Residential prior to rezoning for public recreation - land compulsorily acquired from each Applicant after successful hardship applications - Applicants dissatisfied with Valuer General’s compensation determinations - Applicants commence proceedings seeking higher compensation - dispute as to whether Valuer General’s future land zoning basis for compensation is correct - Applicants contend future zoning would be R4 High Density Residential - Respondent contends zoning would remain R2 Low Density Residential - Consent Orders in related Supreme Court proceedings resulted in advance payments to each Applicant - advance payments significantly less than 90% of the compensation determination made by the Valuer General in each instance - each Applicant now seeks an order requiring the Respondent to make an additional payment to bring the total advance payment to 90% of the Valuer General's compensation determination - Respondent contends in each proceeding that the Valuer General's compensation determination is too high and that 90% of the Valuer General's determination would exceed the amount that will be the outcome in each proceeding - Respondent has paid $5 million into its legal representatives’ trust account to protect each Applicant's compensation position but resists paying additional advance payment amounts direct to each Applicant - Respondent proposes continuation of the trust account regime which had been established pursuant to this Supreme Court proceedings’ Consent Orders - consideration of the statutory regime in the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act) concerning advance payments - Applicants submit there is no power to withhold advance payments as proposed by the Respondent - held that there is no discretionary power to withhold the statutorily mandated advance payments - held that there is power to order the Respondent to make the additional advance payments sought - additional advance payments ordered to be made DISCRETION - appropriate to consider issues of discretion on a contingent basis - statutory regime in the Land Acquisition Act for recovery of monies when advance payments exceed the quantum of compensation determined by the Court - consideration of whether Respondent has an arguable case in support of its future zoning position - held Respondent has an arguable case in support of its future zoning position - nature of the financial information concerning each of the Applicants - necessity to evaluate evidence as to whether each applicant would be able to repay any overpayment of monies made as advance payments - taking into account the advance payment already made to Mr Azizi, no basis to conclude he would not be able to make any required repayment - if power to maintain Respondent’s trust account regime, it would not be appropriate to exercise it in Mr Azizi’s proceeding - taking into account the advance payment already made to Alnox Pty Ltd, there is a proper basis to conclude Alnox Pty Ltd would not be able to make any required repayment - if power to maintain Respondent’s trust account regime, it would be appropriate to exercise it in the Alnox Pty Ltd proceeding COSTS - costs follow the event in Class 3 compensation proceedings - both Applicants succeed in obtaining orders sought in the relevant Notice of Motion - Respondent ordered to pay Applicant’s costs of the relevant Notice of Motion
PROCEDURE: application to set aside a subpoena issued in compensation for compulsory acquisition proceedings in civil jurisdiction of the Court – whether a legitimate forensic purpose established by the party seeking production and access to the documents – correct test to be applied in civil proceedings – subpoena valid – claim of public interest immunity – principles to be applied – claim of public interest immunity rejected.
ENVIRONMENTAL OFFENCES: defendant charged with pollute waters offence and breach of licence offence in separate summonses – whether summonses should be set aside on the grounds of duplicity – alternatively whether the prosecutor should be required to elect to seek leave to amend the summonses to avoid the duplicity – applicable legal principles – whether the activity the subject of the offences constitutes a continuing offence – whether the activity the subject of the offences constitutes a single criminal enterprise – proper construction of condition O2.1(a) of licence – whether a duty imposed upon licensee to ensure compliance with condition O2.1(a) – whether person who contravened condition of licence clearly identified in the breach licence offence summons – pollute waters offence duplicitous – breach of licence offence not duplicitous – breach of licence offence known to law – breach of licence offence not time barred.
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Appeal proceedings futile where notices the subject of appeal revoked APPEALS — Procedure — Time limits — Out of time
COSTS – unsuccessful applicant in Class 4 proceedings seeking variation of usual costs order on basis that public interest litigation – vacancy in civic office of counsellor following absence from three consecutive council meetings – “something more” identified in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280;  NSWLEC 59 not demonstrated – usual costs order made
PRACTICE AND PROCEDURE - earlier charges (identical for each Defendant) found to be defective - Prosecutor provided with the opportunity to replead the charge - Prosecutor seeks to rely on an Amended Summons against each Defendant - Defendants oppose the proposed repleaded charge - several further iterations of a repleaded charge proposed by the Prosecutor (including during the hearing) - Prosecutor seeks and is granted leave during the course of the hearing to rely on a final version of a proposed Amended Summons - Defendants attack the final version of the proposed Amended Summons on a number of discrete bases - the first complaint was that the proposed Amended Summons seeks to plead a charge not known to the law - held that the proposed Amended Summons pleads a charge not known to the law - the second complaint was that the charge in the proposed Amended Summons is patently duplicitous - held that the charge in the proposed Amended Summons is patently duplicitous - the third complaint was that the charge in the proposed Amended Summons is latently duplicitous - held that the charge in the proposed Amended Summons is latently duplicitous - the fourth complaint was that the charge in the proposed Amended Summons is a fresh charge laid after the expiry of the relevant statutory limitation period - held that the charge in the proposed Amended Summons did constitute a fresh charge sought to be laid, impermissibly, after the expiry of the relevant statutory limitation period - the fifth complaint was that the charge in the proposed Amended Summons is impermissibly uncertain - held that the charge in the proposed Amended Summons is impermissibly uncertain - each of these five defects separately warrants refusal of leave being granted to the Prosecutor to rely upon the proposed Amended Summons - not appropriate to provide the Prosecutor with any further opportunity to seek to replead - proceedings to be dismissed - costs reserved.
PRACTICE AND PROCEDURE - application by the Respondent for a determination of the terms of an alleged settlement of the proceedings - whether the parties had agreed to the terms of a settlement resolving the proceedings so as to enable the use of s 73 of the Civil Procedure Act 2005 to permit determination of the terms of the settlement - requirement that any settlement resolve all issues in dispute between the parties - all issues in dispute between the parties not resolved - no settlement to which the statutory provision could be applied AMENDMENT APPLICATION - application to rely on proposed Amended Summons and proposed Amended Points of Claim - outstanding merit issue resolved as a consequence of Respondent giving undertaking to the Court to the effect of the order sought by the Applicant in its proposed Amended Summons - all merit issues resolved as a consequence of the undertaking - whether to permit amendment nonetheless - terms of settlement between the parties of merit issues arising as the direct consequence of the proposal to amend - although amendment not strictly necessary, leave to amend appropriate to be granted in order to provide proper contextual framework for resolution of the proceedings - application for leave to amend granted - proceedings discontinued by consent on the basis of the Amended Summons and Amended Points of Claim. COSTS - Applicant seeks an order following discontinuance of the proceedings - whether the Respondent effectively capitulated on the issues in the proceedings without the necessity for determination of any merit matters - whether there was any unreasonable conduct on behalf of the Respondent - Respondent capitulated without the necessity for any determination of merit matters - not necessary to consider whether Respondent acted unreasonably - appropriate to order the Respondent to pay the Applicant's costs of the proceedings - appropriateness of a gross sum costs order - gross sum costs order not opposed - order that the Respondent pay the Applicant's costs in the gross sum of $120,000.
APPEALS — Leave to appeal — Application for leave to appeal after time for appeal expired — Length of delay — Reasons for delay — Arguable case — s 38 of the Valuation of Land Act 1916 (NSW) — Leave granted
APPEAL – refusal of development application for self-storage unit facility – satisfaction of statutory conditions to grant of consent – resolution of contentions regarding traffic management and pedestrian safety, flooding and stormwater, urban design and visual impact, biodiversity management and impact on trees
ENVIRONMENT AND PLANNING – existing use rights – whether existing use of premises as a hotel extends to the first floor outdoor terrace ENVIRONMENT AND PLANNING – characterisation of existing use – s 4.65 EP&A Act – use defined by reference to Liquor Act 1912 – whole of building used for purposes of a hotel ENVIRONMENT AND PLANNING – continuation of existing use – construction of s 4.66(2)(b) EP&A Act – extent to which area was actually physically lawfully used prior to date use prohibited ENVIRONMENT AND PLANNING – enlargement expansion or intensification or an existing use – s 4.66(2)(c) – ordinary meaning – extent of hotel use prior to date use prohibited
APPEAL – appeal against conviction in Local Court for offence of wilful delay of authorised officer in taking and removing samples – locking gates preventing officer from leaving premises in car was wilful delay of an officer in carrying out their duties – conviction appeal dismissed APPEAL – appeal against sentence in Local Court for wilful delay of authorised officer in taking and removing samples – sentencing appeal dismissed
ENVIRONMENTAL OFFENCES: offender convicted of three charges of unlawfully carrying out bulk earthworks contrary to the conditions of a project approval and one charge of commencing works without a construction certificate – determination and composition of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – weight to be applied to partial expert witness – state of mind of offender at the time of the commission of the offences – De Simoni principle – objective seriousness of the commission of the offences low to moderate – defendant had a prior conviction for an environmental offence – whether defendant able to express contrition and remorse in the absence of guilty pleas – specific and general deterrence warranted – comparable cases – whether the defendant ought to pay the prosecutor’s costs – whether the Court ought to order that the charges be dismissed – whether the Court ought to convict the defendant but impose no penalty – application of the totality principle – whether the Court ought to make a publication order – defendant convicted and fined in respect of all four offences – publication order made.
COSTS - Class 1 merit appeal - application by successful party for a costs order - “fair and reasonable” test in the Land and Environment Court Rules 2007 - matters in favour of a costs order balanced by matters weighing against such an order - costs order refused - costs ordinarily follow the event on costs applications - whether purported Calderbank offer provided basis to award costs of costs application on an indemnity basis - no basis to depart from award of costs on an ordinary basis - Respondent awarded costs of costs motion – cap placed on the recoverable costs of photocopying
CIVIL PROCEDURE — Judgments and orders — Amending, varying and setting aside — Correction under slip rule — Uniform Civil Procedure Rules — Rule 36.16 JUDGMENTS AND ORDERS — Application for stay of operation COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion
CIVIL ENFORCEMENT – discharge of treated effluent from sewage treatment plant into creek – erosion of bank of creek – whether breach of planning or environmental laws – approval under Part 3A of Environmental Planning and Assessment Act 1979 – approval condition that proponent comply with statement of commitments – commitment not to cause degradation of bed or bank stability of creek – effect of statement of commitments – commitment breached – whether erosion is pollution of land – no land pollution established – condition of operating licence for sewage treatment plant to meet objectives of Sydney Water Act 1994 – effect of principal objectives and special objectives – no breach of operating licence TORTS – duty of care in relation to support for land under s 177 of the Conveyancing Act 1919 – whether bank erosion removed support – breach of duty of care – defence under s 43A of Civil Liability Act 2002 not established – defence of statutory authority not established – nuisance action not maintainable
ENVIRONMENT AND PLANNING — Offences — Water pollution — Sentencing — Plea of guilty — Discharge of sewage — Determination of objective seriousness of offence — Extent of environmental harm — Prior sewage discharge not the subject of charge — Subjective circumstances of offender — Prior convictions for environmental offences
COSTS – prosecutor should not be ordered to pay costs as provided for by s 257D of Criminal Procedure Act 1986 following dismissal of charges – proceedings not conducted improperly or unreasonably – investigation not conducted improperly or unreasonably – proceedings not initiated without reasonable cause – no exceptional circumstances justifying award of costs
STATUTORY CONSTRUCTION: whether objectors to designated development where consent was refused are entitled to be given notice of the appeal – proper interpretation of phrase “in respect of which the objector has a right of appeal under this Division”. JOINDER: whether objector should be joined as a party to the appeal – whether objector able to raise any issue that should be considered but will not likely be sufficiently addressed in the appeal absent joinder – whether joinder is in the interest of justice or is in the public interest – objector joined.
PROSECUTION – finalisation of sentence for two offences of knowingly supply false and misleading information about waste contrary to s 144AA(2) of the Protection of the Environment Operations Act 1997 – intensive correction order made in lieu of terms of imprisonment – community service work condition imposed – publication order made – order that prosecutor’s costs paid by defendant made
REVIEW OF REGISTRAR’S DECISION - unavailability of counsel for the Applicant - matter set down for hearing on a date when the Applicant’s counsel was not available - reason for unavailability of counsel not given to Assistant Registrar - Applicant’s counsel not available as undertaking a two-week hearing in the Federal Court on a pro bono basis - matter of policy appropriate to support barristers undertaking pro bono briefs - no prejudice to Applicant or Respondent if hearing delayed - appropriate to vacate hearing date set by the Assistant Registrar - new hearing date convenient to counsel for both parties allocated
ADJOURNMENT - application by Second Respondent to Class 4 proceedings to adjourn pending lodgement and determination of a modification application to an existing development consent - modification said to resolve flooding and other issues matters of complaint by the Applicant in the Class 4 proceedings - prejudice to Applicant if Class 4 proceedings significantly delayed by adjournment - expert evidence from drainage engineers for Applicant and Second Respondent - evidence from both drainage engineers unsatisfactory - appropriate to vacate hearing dates for end March 2021 - appropriate to grant adjournment to permit consideration of modification application - also appropriate to relist Class 4 proceedings in May 2021 for hearing if determination of the modification application has not resolved the matters in dispute - partial success by each party on the adjournment application - appropriate that each party bear its own costs of the adjournment application
ENVIRONMENT AND PLANNING – Appeal - Development application – Shoalhaven Local Environmental Plan 2014 – Statutory construction – Application of clause 4.2B – Relationship between clause 4.2B and clause 4.E ENVIRONMENT AND PLANNING – Land and Environment Court – Practice and procedure – Time for 56A appeal – Extension of time – Exercise of discretion – Leave granted
CIVIL ENFORCEMENT - Applicant commences proceedings against neighbours in Local Court seeking noise abatement order pursuant to the Protection of the Environment Operations Act 1997 - COVID‑19 pandemic intervenes - likely finalisation time in the Local Court extends significantly - Applicant commences Class 4 proceedings concerning acoustic impact of hot water heater and two air‑conditioning units on neighbours’ residential property - expert acoustic evidence filed and served by the Applicant - application for interim injunctive relief - limited interim injunctive relief granted with no order for costs - application seeking stay of Local Court proceedings dismissed by consent with no order for costs - Respondents nominate acoustic expert who is unqualified - Respondents granted leave to replace unqualified acoustic expert with a qualified expert - hot water heater replaced with acoustic compliant one - joint expert acoustic report reveals agreement that the air-conditioning units breach acoustic standards for exempt development - ameliorative acoustic works achieve compliance certification - Class 4 proceedings discontinued with costs reserved COSTS - presumption in Uniform Civil Procedure Rules 2005 that plaintiff in discontinued proceedings will pay respondent’s costs of those proceedings unless otherwise ordered - Applicant seeks order for costs of Class 4 proceedings - application based on the proposition that the practical outcome obtained by the Applicant amounted to capitulation by Respondents - joint expert acoustic report reveals disagreement as to whether the air-conditioning units are audible in a habitable room (the bedroom) of the Applicant’s dwelling - audibility of the air-conditioning units in the bedroom of the Applicant’s dwelling necessary to be established for the purpose of element of relief sought in the proceedings - outcome did not amount to effective capitulation on all matters in contention - inappropriate to undertake hypothetical merit assessment on matter where the acoustic experts were not in agreement - even if appropriate, no basis upon which to do so - not appropriate to make costs order in Applicant's favour COSTS - Respondents concede, during hearing, that it would be appropriate to order that the parties each bear their own costs of the proceedings - appropriate to so order with the intention that each party bear their own costs of the proceedings COSTS - costs of costs applications in Class 4 proceedings ordinarily follow the event - no basis to depart from this position - Applicant to pay the Respondents’ costs of the costs application as agreed or assessed
ENVIRONMENT AND PLANNING – Land and Environment Court – review of Registrar’s directions – r 49.20 Uniform Civil Procedure Rules 2005 – exercise of discretion – venue for hearing and request for documents – motion dismissed COSTS – r 3.72(2) Land and Environment Court Rules 2007 – insufficient basis for costs application – no order made
OFFENCES AND PENALTIES – sentence – carrying out development in breach of development consent – waste facility – condition limiting quantity of waste received per year – waste received exceeded limit – low objective seriousness – no environmental harm – no recklessness or negligence proven – limited but unknown financial gain – no foreseeability or practical measures to prevent harm – control over causes of offence – subjective circumstances of offender – no prior convictions – early plea of guilty – remorse for offence not proven – limited assistance to authorities – fine – moiety of fine – publication order – costs order
COSTS - appeal pursuant to s 30 of the Heritage Act 1977 against the making of an interim heritage order by the Respondent - consideration of the question of whether the Ministerial Order investing the Respondent with power to make interim heritage orders - Ministerial Order mandated jurisdictional prerequisites to be satisfied prior to the power to make any interim heritage order being available to the Respondent - jurisdictional prerequisite in Sch 2(2)(d) of the Ministerial Order not satisfied - Respondent had no power to make the interim heritage order against which the Applicant had appealed - agreement between the parties that the Class 1 proceedings were appropriate to be discontinued - dispute as to costs of the proceedings upon discontinuance - Applicant applies for costs order in its favour upon discontinuance - r 3.7(2) of the Land and Environment Court Rules 2007 applies permitting costs to be awarded only if “fair and reasonable” to do so - invalidity of interim heritage order, because a jurisdictional prerequisite was not satisfied, engaged r 3.7(3)(f)(i) - appropriate to order that the Respondent pay the Applicant's costs of the Class 1 proceedings - costs to be paid as agreed or assessed. COSTS - costs of costs applications in Class 1 proceedings ordinarily follow the event - no basis to depart from this position - Respondent to pay the Applicant's costs of its costs application (excluding costs of nominated excessive photocopying) as agreed or assessed
DEVELOPMENT APPEAL - application to rely on further amended plans and additional reports - consideration of whether the scope of the proposed amendments breached reg 55 of the Environmental Planning and Assessment Regulation 2000 - Applicant agrees to remove contentious aspects of proposed amendments - Applicant undertakes to lodge a separate development application with the Respondent for the removed contentious aspects of proposed amendments - revised proposed amended plans and reports permissible - consideration of whether lateness of amendments causes prejudice to the Respondent requiring vacation of hearing dates - Respondent not so prejudiced so as to require vacation of hearing dates - leave to amend granted and revised pre-trial directions made
ENVIRONMENTAL OFFENCES: sewerage overflow – breach of environment protection licence condition – failure to comply with clean-up notice – pleas of guilty – determination of appropriate sentence – whether failure to comply with clean-up notice a continuing offence – extent of harm caused by the commission of the offences – whether the offences committed negligently or recklessly – whether the De Simoni principle applies – subjective circumstances of the offender – prior convictions for environmental offences – monetary penalty imposed – part of monetary penalty imposed to be paid to council for environmental project – moiety ordered – publication order made.
INTERLOCUTORY APPLICATION - Prosecutor seeks to have proposed questions of law submitted to the Court of Criminal Appeal - no trial judge appointed for hearing of the charge (and four related charges) - whether application premature - meaning of words “the judge hearing the proceedings” in s 5AE(1) of the Criminal Appeal Act 1912 - application premature - Notice of Motion dismissed
ENVIRONMENT AND PLANNING – development application – boarding house – appeal against refusal of application – whether development is a dwelling – housing density standard – low intensity, low impact use development – development application is consistent with desired future character statement – variations to standards approved subject to conditions
ENVIRONMENT AND PLANNING — Orders — Where respondent imported fill, engaged in earthworks, constructed hardstand areas and used land for storage or as a warehouse or distribution facility without development consent — Breaches admitted — Whether order for cessation of use, removal of fill and restoration of premises to prior ground level is appropriate — Whether suspension of injunctive relief ought to be granted ENVIRONMENT AND PLANNING — Environmental planning instruments — Prohibited uses — Whether the zoning provisions for unzoned land under a state environmental planning policy are inconsistent with the zoning provisions of a local environmental plan
APPEAL: whether condition of consent imposing contributions should be modified – contributions calculated by reference to “gross floor area” of development – proper construction of term “gross floor area” – proper construction of exemption in subparagraph (h) of definition of “gross floor area” – whether corridors accessing unloading and loading spaces exempt from calculation of “gross floor area” – corridors exempt – whether utility in modifying condition because contributions already paid – utility in modifying the condition– consent neither exhausted nor spent – appeal allowed – condition modified.
EXEMPT DEVELOPMENT - change of use of premises - change in mix of building classes pursuant to Building Code of Australia (BCA) - consideration of provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) as the tests for whether change of use constituted exempt development - necessity for new use to satisfy requirements of the SEPP not only when the change of use occurred but on a continuing basis - changes in building classification not a barrier to change of use being exempt development - SEPP set fire safety requirements that must be satisfied - fire safety requirements not satisfied at the time of change of use and continue to remain unsatisfied - new use was not and is not exempt development - requirement that new use be compliant with hours of operation condition in any development consent for earlier use - consideration of whether a statement by an employee of the present operator constituted an adducible admission demonstrating that the hours of operation breached the condition of the earlier development consent - statement satisfies requirements of s 87 of the Evidence Act 1995 (NSW) so as to constitute an admission - changed use operating in breach of hours of operation condition of prior development consent - second basis for concluding that the change of use was not exempt development at the time of the hearing - new use requires development consent to be permitted to continue - declarations and orders appropriate DISCRETION - tenanted premises used as tyre storage facility - consideration of whether tenant’s tyre storage activities should be permitted to continue in order to permit lodgement of a development application to regularise this use of the premises- appropriate to provide an opportunity to seek development consent to permit continuation of present use - necessity for interim and ongoing fire safety improvements - orders provide for implementation of remedial works agreed to by fire safety experts - orders also provide for additional interim fire safety measures pending determination of development application - appropriate to suspend order requiring cessation of present use pending determination of development application to regularise the present use FIRE SAFETY ORDER - Fire Safety Order served on the owner of the premises - remedial fire safety works proposed by the order differ from those agreed as necessary by the fire safety experts in the proceedings - appropriate to make a declaration that the owner of the premises had not complied with the terms of the Fire Safety Order - because fire safety upgrade works and interim fire safety operational arrangements to be imposed by orders in these proceedings, appropriate to direct that the Council discharge the Fire Safety Order with which the owner has not complied COSTS - Council successful in seeking declaration that the change of use was not exempt development - Council successful in obtaining orders for a range of agreed remedial fire safety works and interim fire safety operational conditions pending determination of a development application to continue the use - costs to follow the event - costs to be ordered jointly and severally against the tenant and the owner of the premises
DEVELOPMENT APPLICATION - application to install moveable glazing enclosure at the uppermost level of a building - application refused by the Council - review of Council's refusal results in further refusal - compliance with requirements of the Woollahra Development Control Plan 2015 - necessity for cl 4.6 request for dispensation from compliance with height of buildings control - consistency with streetscape and desired future character - extent of visibility from various locations in the public domain - if the proposal is acceptable on general merit bases, request for dispensation from compliance for the height of buildings development standard should be assumed - present northern façade of the prominent building highly visible from the public domain - present northern façade of the building symmetrical - two balcony enclosures approved in 2001 under different planning controls - 2001 balcony enclosures did not impact on the symmetry of the northern façade of the building - proposed development has unacceptable visual impact and impact on the desired future character of the locality - appeal dismissed and proposed development refused consent
MERITS APPEAL – separate questions of law –proposed subdivision of neighbourhood lot prohibited by local environmental plan as exceeds permitted average lot size – neighbourhood lot a resulting lot under local environmental plan and subdivision cannot be granted under local environmental plan
INJUNCTIVE ORDERS – breach of planning law – declarations of breach – whether mandatory injunctive orders also needed COSTS – judicial review of council decisions – success on some but not all grounds of review – whether partial costs order justified
JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent for new coal mine – state significant development – construction and application of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 in assessment of greenhouse gas impacts of new coal mine – no failure to refer project to Minister for Regional Water for advice as required by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requirements in considering impacts on water resources – no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternative sources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed
INTERLOCUTORY ORDERS – prosecution for offences – contravention of conditions of revocation of licence – pleas of guilty – sentence hearing yet to be fixed – application for adjournment of proceedings to allow for actions to mitigate environmental harm caused by commission of offences – adjournment granted
CIVIL PROCEDURE – subpoena – objection to production of documents – client legal privilege – section 41(3) Land Acquisition (Just Terms Compensations) Act 1991 – whether Valuer-General is entitled to protection afforded by legal privilege – Valuer-General is entitled to such protection – relevant documents are privileged – no implied waiver of privilege
COSTS: application for costs in Class 2 tree matter – presumptive rule that each party pays their own costs unless fair and reasonable to otherwise order – whether fair and reasonable to order that the unsuccessful applicants pay costs – whether unreasonable not to excavate to determine the cause of damage – whether unreasonable for the applicants to rely on expert evidence stating that the tree was to blame for the damage – whether the applicants acted reasonably in attempting to reach agreement with the respondents – merely because the Acting Commissioner did not accept the expert evidence of the applicants did not make their commencement and conduct of the proceedings unreasonable – application for costs dismissed.
ENVIRONMENT AND PLANNING – appeal – development application – whether the development is prohibited development – the sign is a business identification sign – Part 3 of State Environmental Planning Policy No 64 does not apply – the development does not result in a projection higher than the sun access plane – the existing building height is in breach of the height control however the proposed development does not exceed the existing height – the development is not prohibited ENVIRONMENT AND PLANNING – appeal – development application – whether the development should be refused on merit – development satisfies criteria specified in schedule 1 to State Environmental Planning Policy No 64 – compatible with character of the area – heritage significance not diminished to sufficiently adverse extent – development improves quality and amenity of public domain – development displays design excellence – only one sign approved as per section 126.96.36.199(7) of the development control plan
JUDICIAL REVIEW – complying development certificate (CDC) – tenancy fitout as a pizza shop – shop in strata-titled building – works required in common property to make pizza shop functional – land on which development to be carried out – whether lot only or also common property – whether owner’s consent of Owners Corporation needed for application – whether sham application if no works proposed in common property – type of complying development – internal building alteration and/or change of use of premises – construction of application as to development proposed – if change of use, whether complied with criteria for specified complying development and development standards – need for notice from water utility before CDC issued – notice not obtained – need for food and drink premises to comply with AS 4674-200 – works on lot will not comply – if internal building alteration, whether complied with criteria for specified complying development – need for building to have consent for use – CDC will give consent for use – need for inspection of site of development before CDC issued – inspection and record of inspection non-compliant with regulatory requirements – works on common property without consent – relief – declarations and injunctions granted
INTERLOCUTORY APPLICATION: application to restrain Council from upgrading sporting fields – whether consent needed to carry out upgrade – whether environmental impact statement required – whether undertaking not to demolish specific heritage items sufficient – whether upgrade remediation works requiring consent – whether plans of management breached by upgrade – whether future use of park after upgrade inconsistent with active recreation use under plans of management – whether irreparable harm to trees by upgrade – adverse dust, sedimentation, contamination and stormwater impacts if upgrade did not proceed - balance of convenience favoured the Council – interim relief refused.
JOINDER - application by community group to be joined as Second Respondent to Class 1 appeal prior to holding of conciliation conference - joinder applicant seeks to raise three jurisdictional matters and two merit matters - merit matters adequately addressed by conventional pre-conciliation objector submission process - jurisdictional complaints not embraced by Council - merit matters do not warrant joinder - jurisdictional matters cumulatively warrant joinder - community group joined as Second Respondent
CRIME — Appeal and review — Appeal from Local Court to Land and Environment Court — By prosecutor on a question of law alone — Whether error in construction of a condition of development consent — Whether question of law alone — Whether vitiating error
COSTS - Applicant discontinues Class 1 merit appeal on the basis Respondent’s costs are reserved - Respondent applies for costs order for the whole proceedings on three bases - first basis was that it was “fair and reasonable”, pursuant to r 3.7(3)(f) of the Land and Environment Court Rules 2007 (the Court Rules) to make such an order as the Applicant's merit proceedings were “doomed to fail” - Applicant’s modification application sought a mixture of changes addressing, in part, contributions levied by the Council for drainage works (and paid to the Council) and, in part, merit matters concerning conditions of development consent - Respondent raises merit matters in the original Statement of Facts And Contentions and additional merit matters in an Amended Statement of Facts And Contentions - not appropriate to contemplate undertaking a hypothetical merit assessment, contrary to Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622;  HCA 6 (Lai Qin) - even if appropriate to contemplate a hypothetical merit assessment, there was no evidentiary basis to do so with respect to merit matters pleaded by the Respondent - whether the central issues in the proceedings were legal issues - significant issues in the proceedings were legal ones but there were also significant merit issues pleaded by the Respondent as impediments to the application - r 3.7(3)(a) of the Court Rules not a basis for making a costs order in favour of the Respondent - third basis was that discontinuance was “an effective surrender” - failure of Applicant to explain discontinuance - additional merit matter pleaded by the Respondent in its amended contentions - no basis to conclude that discontinuance was an effective surrender without undertaking hypothetical trial of the merit matters pleaded by the Respondent in its contentions (including its amended contentions) - not appropriate to undertake such a hypothetical merit assessment contrary to Lai Qin - not appropriate to conclude that the Applicant had effectively surrendered - no general costs order appropriate COSTS - Respondent proposes limited costs order in two parts, if unsuccessful in general, costs application - Respondent seeks costs of preparation for, and hearing of, Notice of Motion to vacate conciliation conference - Notice of Motion not confined to vacation of conciliation conference as Respondent also sought leave to rely upon Amended Statement of Facts And Contentions - no dilatory conduct on behalf of Applicant in timing of agreement to vacation of conciliation conference - no basis for alternative costs order concerning Notice of Motion preparation and hearing - Respondent also seeks costs associated with evidence preparation between hearing timetabling and Applicant’s discontinuance - timetabling of evidence preparation directions made – the evidence in preparation included expert evidence addressing merit matters pleaded by the Respondent - conventional pretrial process for Class 1 merit appeal - no basis for second element of alternative costs order - no alternative costs order appropriate COSTS - costs of costs applications usually follow the event - if unsuccessful in primary costs applications, Respondent seeks exclusionary costs order with respect to evidence provided by the Applicant's legal representatives - proper basis for provision of documentary evidence by Applicant's legal representatives - no basis to make any general exclusionary costs order concerning evidence by Applicant's legal representatives - some elements of one exhibit involved unnecessary photocopying - costs of unnecessary photocopying excluded from costs order in favour of the Applicant for the costs application
PROCEDURE: application for a stay of a prevention notice pending the outcome of Class 1 proceedings – applicable principles for the granting of a stay – arguable cause of action – balance of convenience favours granting of stay subject to conditions.
INTERLOCUTORY ORDERS – stay of development control order – development carried out not in accordance with development consent – stop work order – appeal against order – stay of order to allow limited works – partial stay granted on conditions
CIVIL ENFORCEMENT - use of a caravan as a dwelling where such use is prohibited - use of a portable toilet in conjunction with the caravan without having approval as a wastewater management system - failure to obey an order to clean up unhealthy and hazardous vegetation - Respondent (owner of the site including the caravan and the portable toilet) presently in India - Respondent served with all relevant papers - Respondent indicates that he did not wish to take part in the hearing - Council seeks leave to rely on an Amended Summons - Amended Summons transmitted electronically to the Respondent with the opportunity provided to address the amendments - no reply from the Respondent - hearing proceeded on an ex parte basis - declarations as sought in the Amended Summons appropriate to be made - orders appropriate to be made to require cessation of use of the caravan as a dwelling, removal of the portable toilet from the site and cleaning up the unhealthy vegetation on the site - substituted performance order made to permit the Council to carry out the necessary activities after the expiry of 21 days from the end of the period of time permitted to the Respondent to comply with the orders - declarations and orders made COSTS - costs in Class 4 proceedings ordinarily follow the event - the matters contained in the Amended Summons did not substantially depart from those in the Summons originally commencing the proceedings - the event (being the outcome of the proceedings) was substantially that which had been sought by the Council in the original Summons - appropriate to order that the Respondent pay the Council’s costs
PROSECUTION – sentencing individual defendant for two charges of knowingly supply false and misleading information about asbestos waste disposal – location of asbestos waste unknown – aggravating factors of financial gain, committed with no regard for public safety, planned criminal activity – high level of objective seriousness – subjective matters considered – totality principle considered where gaol time served for related fraud offences PROSECUTION – sentencing company defendant for two charges of knowingly supply false and misleading information about asbestos waste disposal – location of asbestos waste unknown – aggravating factors of financial gain, committed with no regard for public safety, planned criminal activity –no participation by defendant at any stage of proceedings – no subjective matters to consider – totality principle considered
APPEAL: appeal against sentence – pleas of guilty entered in the court below – construction of large shed without consent – prohibited use of the land as a truck depot – no actual or potential environmental harm other than to integrity of planning regime – mental state of the offender at the time of the commission of the offences – criminal negligence or recklessness – capacity to pay a fine – application of totality principle – appeal allowed – no order as to costs.
ENVIRONMENT AND PLANNING — Land and Environment Court — Appeal against decision of Commissioner — Whether applicant was denied procedural fairness — Whether Commissioner erred in concluding that further structural engineering detail was required — Whether Commissioner failed to consider relevant matters
CRIMINAL – appeal from conviction in Local Court for tree clearing in breach of development consent for subdivision – more than one development consent in force for same lot – prosecutor proves beyond reasonable doubt that trees cleared in breach of development consent for subdivision – alternative hypothesis that manufactured home estate development consent relied on by defendant for clearing of trees not proven on balance of probabilities – appeal dismissed
APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner concerning an order issued pursuant to s 124 of the Local Government Act 1992 - Appellant becomes bankrupt after commencing the appeal - effect of s 60 of the Bankruptcy Act 1966 (Cth) - Council solicitors seek views of bankruptcy trustees - bankruptcy trustees advise they did not intend to prosecute or discontinue the proceedings - bankruptcy trustees’ position triggers the operation of s 60(3) of the Bankruptcy Act deeming that the proceedings are abandoned - meaning of “action” for the purposes of the provision - whether the fact that the appeal has been commenced in circumstances where the applicant is a trustee of real property with no claimed personal interest in the trust property falls within the scope of an “action” for the purposes of s 60 - scope of the term “action” is to be construed as encompassing these appeal proceedings - whether granting an extension of time within which to commence an appeal causes the appeal to be deemed to have commenced from the date upon which the extension is granted - extension merely legitimises the validity of the appeal and does not alter the date of its commencement - whether the proceedings are saved because they fall within the scope of s 60(4) of the Bankruptcy Act - proceedings not saved by s 60(4) of the Bankruptcy Act - necessary consequence of the operation of ss 60(2) and (3) of the Bankruptcy Act is dismissal of the appeal COSTS - costs ordinarily appropriate to be ordered when proceedings dismissed as a consequence of the operation of s 60 of the Bankruptcy Act - such costs, if ordered, are to be personal to the bankrupt and not provable as a debt in the bankruptcy - Council expressly disclaims seeking any order for costs in these proceedings - costs not to be ordered
EVIDENCE - admissibility - exceptions to the hearsay rule provided by s 87(1)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) - alleged admission - whether alleged admission was made with authority for the purposes of s 87(1)(b) of the Evidence Act - alleged admission not made with authority - whether alleged admission was made within the scope of the maker’s employment for the purposes of s 87(1)(b) of the Evidence Act - alleged admission not made within the scope of the maker’s employment - alleged admission not an admission able to be relied upon because neither limb of s 87(1)(b) of the Evidence Act satisfied - evidence rejected - consequential rejection of further evidence that was contingent on acceptance of rejected “admission"
JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) – whether decisions authorise use of land – purpose of use of land – whether for recreation area – whether development consent required – whether development for purposes of recreation area on a public reserve under the control of or vested in the council – whether continuance of a use of land for a lawful purpose – whether enlargement, expansion or intensification of use – whether use abandoned – whether use unlawfully commenced – development consent not required for use – no breach of Part 4 of EPA Act JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 5 of EPA Act – whether council decisions approve an activity – duty to examine and take into account environmental impact of activity – whether council breached duty in approving dog on-leash activity – duty to obtain, examine and consider EIS for activity likely to significantly affect environment – whether council breached duty in approving dog off-leash activity and dog on-leash activity – whether each activity likely to significantly affect the environment – breaches of Part 5 of EPA Act
CIVIL PROCEDURE – parties – joinder – where s 34 agreement has been reached – issues to be considered in the determination of s 34 – whether issues disclose a reasonable cause of action – whether issues would be sufficiently addressed absent joinder as per s 8.15 Environmental Planning and Assessment Act 1979 – public interest – joinder granted – joinder results in intervenor being allowed to raise merit considerations
ENVIRONMENTAL OFFENCES: sentence – unlawful taking of water – plea of guilty – factors to take into account in determining sentence – environmental harm – offences committed deliberately and for financial gain – no contrition or remorse demonstrated – extra curial punishment – totality principle applied – monetary penalty imposed – publication order made – costs ordered.
CONTEMPT – charge of failure to comply with court order requiring pruning of three trees at specified time of year to specified height – plea of not guilty – civil contempt of no pruning of trees at required time established – overall circumstances suggest no conviction should be recorded or penalty ordered – applicants’ costs payable by respondent
PROSECUTION – sentencing – pollution of waters – plea of guilty – flushing of sewage effluent in national park – sewage overflow not subject of charge –assessment of environmental harm does not include sewage overflow – failure to implement recommendations for manual clean-up before flushing – practical measures to avoid harm not taken – high range of low objective seriousness – prior convictions an aggravating factor – discount for early guilty plea – likelihood of re-offending low – defendant of good corporate character – remorse demonstrated PROSECUTION – sentencing – breach of condition of environment protection licence – plea of guilty –failure to take all reasonable and feasible actions as soon as practicable to minimise impact of sewage overflow not subject of charge – failure to properly clean up sewage over three week period – no aggravating state of mind due to application of De Simoni principle – high range of low objective seriousness – discount for early guilty plea – likelihood of re-offending low – defendant of good corporate character – remorse demonstrated
EVIDENCE - Notice of Motion by the Applicant for leave to file and serve expert evidence in Class 4 proceedings - insufficiently precise identification of propositions/questions proposed to be subject of the expert evidence - refinement of areas of proposed expert evidence - need to ensure expert evidence had relevance to the alleged impacts on New South Wales - leave granted for filing and serving expert evidence from nominated expert on specified propositions/questions - position of Respondent to consider seeking leave for expert evidence in reply preserved
CIVIL PROCEDURE – parties – joinder – second joinder application by same intervenors – s 8.15(2) Environmental Planning and Assessment Act 1979 – no material change in circumstances or evidence – bringing of a second joinder application is an abuse of process – s 8.15(2) not satisfied as issues have been sufficiently raised – application dismissed
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Land and Environment Court — Whether proceedings brought in the public interest — Where applicant additionally sought costs in relation to interlocutory matters and discrete issues in the proceedings — Whether applicant should bear more than one set of costs
LOCAL GOVERNMENT – s 672 Local Government Act 1993 – failure to comply with an order – premises not in a safe and healthy condition – premises in an unsightly condition – council granted power to do all things necessary to give effect to the order – orders deferred for 28 days COSTS – usual order as to costs – exclusion of costs associated with joinder of the Second Respondent
EVIDENCE: voir dire on admissibility of documentary evidence during trial — whether document protected by negotiation privilege — scope of privilege and exceptions to privilege — privilege applies — tender rejected.
INTERIM INJUNCTION - proposed demolition of a bridge listed as an item of local heritage in a local environmental plan - whether the bridge constitutes a “relic” as defined in the Heritage Act 1977 (the Heritage Act) - imminent demolition of the bridge unless an interim injunction is issued - question as to whether or not the Applicant has a reasonably arguable case that demolition of the bridge would result in a breach of the Heritage Act - consideration of the basis upon which it was said that such a breach might arise - no reasonably arguable case established - injunction refused COSTS - costs in Class 4 proceedings usually follow the event - no discussion of costs during the course of the hearing - contingent costs order made requiring the unsuccessful Applicant to pay the First Respondent’s costs as agreed or assessed unless a party seeks to be heard to propose some alternative costs order
PROSECUTION - prosecutions commenced by three Summonses against each of a corporate and an individual defendant - individual Defendant prosecuted under special executive liability provision of the Protection of the Environment Operations Act 1997 for the offending conduct of the corporate Defendant - “not guilty” pleas entered by each Defendant to each charge - Prosecutor agrees not to pursue Summons alleging Tier 1 offence by each Defendant - each Defendant then pleads guilty to the two remaining Tier 2 charges laid against that Defendant - sentencing hearing held PENALTIES - corporate Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentences of $40,000 and $90,000 - plea of guilty not entered at earliest opportunity but of more than minor utilitarian value - discount of 10% on starting penalties - impact of imposition of order for payment of Prosecutor’s costs - consideration of totality and accumulation of penalties - total fine of $105,000 imposed PENALTIES - individual Defendant to be convicted -guilty plea entered to two remaining charges - need to provide for both specific and general deterrence - indicative starting sentence of $12,000 and $27,000 - discount of 10% for the guilty pleas - impact of imposition of order for payment of Prosecutor’s costs - consideration of totality and accumulation of penalties - total fines of $28,000 imposed PUBLICATION ORDER - Prosecutor seeks publication order - Prosecutor proposes publication in Afloat Magazine, Daily Telegraph and the Manly Daily publications - Defendants resist the making of any publication order - appropriate to make a publication order - notice to be published ordered in Plain English terms, terms differing from those sought by the Prosecutor - appropriate to order publication of notice in Afloat Magazine, and the Manly Daily but not in the Daily Telegraph - method of specification of effecting publication in newspaper now only published online - publication order expressly created by the Protection of the Environment Operations Act 1997 as being in addition to, and not in substitution for, any element of the appropriate penalty to be imposed on each Defendant - not appropriate to reduce the penalty imposed on each Defendant as a consequence of making a publication order
DEVELOPMENT APPLICATION – residential flat buildings – jurisdictional preconditions to grant of consent – satisfaction of preconditions – traffic generated by development – whether traffic management works required to prevent illegal manoeuvres – whether development not to be approved until traffic management works constructed
APPEAL: whether Court has jurisdiction to hear the applicant’s claim – applicable legal principles in the exercise of the power to summarily dismiss proceedings – whether claim discloses reasonable cause of action – Court does not have jurisdiction – no reasonable cause of action disclosed in application – proceedings summarily dismissed – no costs order made because applicant encouraged to file proceedings in the Court.
SENTENCE - four charges - plea of guilty by corporation to a single rolled-up charge of unlawful construction and use of a water supply work without holding an approval for that work - remaining charges against the corporation and the charge against the individual defendant to be dismissed - consideration of potential aggravating factors - whether offending conduct was carried out for financial gain - consideration of defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to defendant - need for general deterrence - consideration of other potentially relevant prosecutions - appropriate starting penalty at the top of the low range for such conduct - plea of guilty not entered at earliest opportunity but of more than minor utilitarian value - discount of 10% on starting penalty appropriate - fine of $252,000 imposed
EVIDENCE: affidavits filed but not read in earlier but related proceedings sought to be tendered in later proceedings – whether the affidavits relevant to issues in dispute in later proceedings – scope of Harman undertaking to affidavit prepared pursuant to a court ordered timetable – whether the undertaking ought to be released – affidavits not relevant – Harman principle does not apply but if it did then the undertaking is released – leave refused to tender affidavits.
PROCEDURE: application for expedition to preserve the status quo of the dispute – issued raised by the summons not speculative – no interim relief sought – no demolition or other remedial relief sought in the summons – no other development impacted by the outcome of the proceedings – matter would take longer than one day to hear to finality – limited hearing days available due to COVID-19 backlog – no public interest in matter being heard expeditiously that was not present in most planning cases – proponent not concerned with any potential liability to third party purchasers arising out of the proceedings – expedition refused.
SUBPOENA - application to set aside subpoena issued to Roads and Maritime Services - whether the issuing of a subpoena to a third party when that party has also been issued a statutory notice to produce the same documents constitutes an abuse of process - consideration of whether the decision of the High Court in Environment Protection Authority v Caltex Refining Co Pty Limited  HCA 74; (1993) CLR 477 applies by analogy - appropriate to apply the High Court’s decision by analogy - issue of subpoena not an abuse of process - application to set subpoena aside as abuse of process rejected SUBPOENA - subpoena said to be invalid as founded on documents unlawfully obtained via notice pursuant to s 119J of the Environmental Planning and Assessment Act 1979 - consideration of bases potentially available for the valid issuing of a notice pursuant to s 119J - s 119J notice validly issued - subpoena validly issued on this basis - second basis for issuing subpoena founded on information provided to a council officer by an employee of the Defendant during the course of a site inspection - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - third basis for issuing subpoena founded on information provided to a council officer by an employee of Roads and Maritime Services - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - fourth basis for issuing subpoena founded on documents obtained pursuant to an application to Roads and Maritime Services under the Government Information (Public Access) Act 2009 - information provided was sufficient basis to issue the subpoena - subpoena validly issued on this basis - application to set subpoena aside as abuse of process rejected on these bases SUBPOENA - application to restrict documents to be produced pursuant to subpoena to those documents relating only to the Defendant’s activities on the dates nominated in each charge - Prosecutor has given required notice that it intends to rely on coincidence and tendency evidence arising from documents relating to the Defendant’s activities on the other dates for which documents have been sought - not appropriate to restrict access to documents to limited dates - whether broader range of documents should be admitted at trial for coincidence or tendency purposes a matter for trial judge - documents to be produced to Prosecutor in satisfaction of subpoena not to be limited to dates nominated in the two charges
ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station paddock lawfully used and/or occupied at date of claim in 2010 ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station paddock lawfully used and/or occupied at date of claim in 2016 ABORIGINAL LAND RIGHTS – claim of Crown land – whether Helensburgh police station residence lawfully occupied at date of claim in 2016
APPEAL – appeal against a Commissioner’s decision on questions of law – shoptop housing development contravened height and FSR development standards – decision to grant development consent – objectives of height and FSR development standards – consistency with desired future character of neighbourhood or area – whether misconstruction of “desired future character” – whether to be construed by reference to Woollahra Development Control Plan 2015 (WDCP) – whether approved adjoining development that contravened development standards an irrelevant consideration – whether misconstruction of desired future character provisions in WDCP – whether misdirection in assessing consistency with objective (d) of height development standard to minimise visual intrusion– whether failure to give adequate reasons for satisfaction required by cl 4.6(3) of Woollahra Local Environmental Plan (WLEP) – whether misconstruction of control C3 in s D5.6.2 of WDCP to design for first floor commercial use – no errors of law established
CIVIL ENFORCEMENT – erection and use of caravans, tents and other structures – development prohibited – development control order to cease use and remove unauthorised structures – failure to comply – breaches of Environmental Planning and Assessment Act 1979 – declaratory and injunctive relief
CRIMINAL PROCEDURE — Trial — Application to vacate hearing dates — Prosecutor failed to prepare expert material in time for the trial — Defendant agrees to vacation of the hearing dates — Whether appropriate to vacate
CIVIL ENFORCEMENT - failure to comply with clean-up orders made pursuant to s 124 of the Local Government Act 1993 - premises in an unhealthy and unsafe condition - owner of premises ordered to clean them up within 60 days - substitute performance order appropriate if premises not cleaned up as ordered COSTS - Council seeks gross sum costs order - appropriate that gross sum costs order be made - property owner ordered to pay Council’s costs in the gross sum of $8,500 within 28 days
SEPARATE QUESTION: civil enforcement – whether the construction of a drainage line, culvert and channel were carried out contrary to approval by reason of their location – issues narrowed upon tender of further revised works as executed plan – construction contrary to stage 3 consent and stage 3 roads and drainage construction certificate – construction contrary to controlled activity approvals – separate questions answered in favour of the council – respondents to pay applicant’s costs.
CRIMINAL PROCEDURE – stay of proceedings – admissions made in class 4 civil enforcement proceedings – criminal proceedings commenced after conclusions of class 4 proceedings – whether use of admissions in criminal proceedings is a breach of the accusatorial principle – whether admissions were made under compulsion – whether admissions were necessary to the defendant’s class 4 defence
CIVIL PROCEDURE – parties – joinder – r 6.27 Uniform Civil Procedure Rules 2015 – s 8.15(2) Environmental Planning and Assessment Act 1979 – whether issues raised would be sufficiently addressed absent joinder where s 34(3) Land and Environment Court Act agreement is made – sufficient material before the Court
JOINDER - appeal by Toplace against deemed refusal of an application to modify a condition of development consent - application by the Council to join two further developers with projects in the immediate vicinity of the Toplace development project - all three projects are located at an intersection in Rosebery - intersection requires upgrading - the appealed condition in the Toplace development consent requires the upgrading of the intersection prior to the issue of any occupation certificate for the Toplace development - the amendment sought by Toplace would only require such upgrading prior to the issuing of a Final Occupation Certificate for the Toplace development - whether joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 available - Joinder pursuant to s 8.15(2) not available - whether joinder pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 appropriate - Toplace’s proposed modification has potential to impact directly on the interests of the two developers proposed to be joined - joinder appropriate - joinder ordered MEDIATION - matter potentially amenable to commercial resolution - mediation appropriate in light of joinder - mediation to be ordered
ENVIRONMENT AND PLANNING — Consent — Works allegedly undertaken otherwise than in accordance with development consent — Previous direction of the Court required the question of breach to be heard and determined separately from any other question including the appropriate remedy and relief
COSTS – unsuccessful applicant in judicial review challenge to development consent for truck wash facility where local council the proponent opposes costs order in favour of successful respondent council – whether public interest litigation
COSTS – costs in appeal from Local Court – s 70 Crimes (Appeal and Review) Act 2001 – Council on notice appellant may not be guilty – Council unreasonably failed to investigate relevant matter – appellant awarded costs
APPEAL – appeal against Commissioner’s decision on questions of law – refusal of development consent to concept development application – design excellence clause – whether applies to concept proposals – whether Commissioner misconstrued or misapplied design excellence clause – whether Commissioner misconstrued or misapplied FSR development standard – whether Commissioner failed to consider relevant consideration – potential social benefits of concept proposals as an aspect of public interest – whether denial of procedural fairness – no grounds of appeal established
COSTS – criminal proceedings – withdrawal of summons by prosecutor – legislative amendment to no longer make statutory breach an offence – defendant application for costs – costs not to be awarded against prosecutor except in certain circumstances – whether legislative amendment an exceptional circumstance “relating to the conduct of proceedings by the prosecutor” – costs not ordered
CONTEMPT - orders made in Class 4 proceedings requiring removal of unauthorised development on flood-prone land - orders required removal of masonry front fence (Order (3)) and removal of substantial additions to dwelling house (Order (5)) - three months allowed for compliance with Order (3) and 12 months for compliance with Order (5) - single rolled-up charge laid by Council for non-compliance with Orders (3) and (5) - failure to achieve full compliance with Order (3) within the time allowed by the order but significant compliance achieved - complete compliance with Order (3) achieved by commencement of contempt proceedings - limited compliance with Order (5) by the commencement of these contempt proceedings - consideration of circumstances of Respondent in assessment of appropriate starting penalty - discount for earliest reasonable acknowledgment of guilt - appropriate penalty before consideration of s 6 of the Fines Act 1996 matters found to be $12,000 - consideration of capacity to pay (s 6(a)) and other relevant personal circumstance (s 6(b)) mandates significant moderation of penalty to be imposed - respondent convicted of contempt and fined $3,000 COSTS - Council seeks its costs on the ordinary basis - part of time of hearing wasted as a consequence of Council having failed to provide proof that the orders had been brought to the Respondent’s attention - part of proceedings concerning Order (3) lacking in proper evidentiary foundation - excessive photocopying - provision of material to the Court but not to the Respondent - provision of unnecessary material to the Court - Council’s costs to be discounted to reflect inappropriate matters
CIVIL ENFORCEMENT – contempt – court order to demolish illegal garage and concrete slab – failure to comply – contempt proven – contempt wilful – ongoing harm to amenity of area – punishment of fine – punishment suspended if garage and concrete slab demolished in three months – order for substituted performance – council directed to demolish garage and concrete slab if contemnor fails to do so – indemnity costs
APPEAL - appeal against Commissioner’s decision on questions of law – whether misconstruction of the proposed development and land on which it was to be carried out– whether the species impact statement failed to comply with Chief Executive’s requirements – whether misconstruction and misapplication of cl 7.6 of Liverpool Local Environmental Plan (LLEP) – whether misconstruction of term ‘environmentally sensitive area’ in cl 7.31 LLEP – whether failure to give reasons – whether denial of procedural fairness – whether misconstruction and misapplication of fifth control in Liverpool Development Control Plan – whether misapplication of statutory test in s 4.15(3A) of the Environmental Planning and Assessment Act 1979 – whether failure to consider proposed offsets through purchase of biodiversity credits from registered biobank sites – no errors of law
COSTS - application for costs of complete Class 1 merit proceedings - Applicant in merit proceedings unsuccessful on jurisdictional as well as merit grounds - whether failure on jurisdictional grounds provided a basis for concluding that it was fair and reasonable to award costs to the opposing party who successfully pressed the jurisdictional grounds - Applicant on notice as a consequence of Court of Appeal proceedings of two of the jurisdictional grounds said to be bars to approval of the Applicant’s proposed development - basis for pursuing the merit appeal unarguable on two foreshadowed jurisdictional grounds - general costs application in Class 1 merit proceedings appropriately brought - fair and reasonable to Second Respondent its costs for the whole proceedings - Applicant to pay Second Respondent’s costs of the Class 1 proceedings COSTS - application for costs thrown away by Second Respondent as a consequence of amendments to the proposed development that were not minor - Second Respondent took lead role before the Acting Registrar on the issue of whether the proposed amendments were minor - appropriate that the Second Respondent receive its costs thrown away as a consequence of those amendments COSTS - costs of the costs application - costs ordinarily follow the event for costs applications in Class 1 merit proceedings - appropriate that the costs Applicant be awarded its costs of the costs application
EVIDENCE: voir dire on admissibility of documentary evidence during trial — voir dire on access to documents produced under subpoena and notice to produce — at what stage the common law or the Evidence Act applies— whether documents protected by legal professional privilege — whether documents protected by without prejudice privilege — whether privileges waived or lost at common law or under the Evidence Act — privileges maintained.
ENVIRONMENT AND PLANNING – environment protection licence – premises-based scheduled activity – pet food manufacture – whether scheduled activity of “general animal products production” – meaning of – activity does not require slaughter of animals to occur in the plant on the premises – activity does require manufacture of products derived from activity of slaughtering animals – applicant’s pet food manufacturing not “general animal products production”
PROSECUTION – three charges of failure of occupier to operate or operate properly water metering equipment not proved beyond reasonable doubt PROSECUTION – three charges of failure of farm manager to operate or operate properly water metering equipment not proved beyond reasonable doubt
APPEAL - appeal against Commissioner’s judgment on questions of law (Grounds 1 to 4 - the bushfire grounds) - whether the Commissioner prejudged bushfire matters required to be considered by virtue of cl 27(2)(h) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) (Ground 1) - in the alternative, whether the Commissioner failed to consider relevant matters required by cl 27(2)(h) of the SEPP (Ground 2) - whether the Commissioner denied the Council procedural fairness by accepting bushfire evidence from the Company only and not giving the Council the opportunity to be heard concerning it (Ground 3) - whether the Commissioner failed to give reasons for granting approval despite insufficient evidence on bushfire issues (Ground 4) - Ground 1 upheld rendering it unnecessary to determine Ground 2 - Ground 3 not established - Ground 4 upheld APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 5) - whether the Commissioner failed to address relevant mandated matters concerning (i) access to facilities and services vis appropriate pedestrian and public transport facilities and (ii) failed to consider relevant contextual building design matters - (i) dealt with through subsequent ground - complaint in (ii) not established - Ground 5 rejected APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 6) - whether the Commissioner erred in concluding he could be satisfied, on the basis of written evidence, that required services would be available to residents of the self-care units - consideration of what might constitute satisfactory written evidence - no error established - Ground 6 rejected APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 7) - whether the Commissioner erred in concluding that required minibuses would be available from the time the first occupants of the development took up residence - meaning of words in a condition of consent that buses be available for “the life of the development” – “life of the development” can only commence with issuing of an occupation certificate - residents not permitted to occupy prior to such a certificate - buses therefore required to be available from time first residents take up occupation - Ground 7 rejected APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 8) - whether the Commissioner adequately considered matters of character and contextual fit of the proposed development in its locality - whether the Commissioner inappropriately relied on the Site Compatibility Certificate in lieu of undertaking the assessment mandated by s 4.15 of the Environmental Planning and Assessment Act 1979 - no error disclosed - Ground 8 rejected APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 9) - whether the Commissioner misapplied test in cl 26 of the SEPP - Commissioner’s conclusion based on acceptance of the evidence of the Respondent’s expert town planner on the underlying objective of the clause - evidence not challenged by Council’s expert - position consistent with the formulation of the underlying objective of the clause adopted the Senior Commissioner in an earlier case - this issue not pressed by Council in submissions to the Commissioner - Ground 9 rejected APPEAL - appeal against Commissioner’s judgment on questions of law (Ground 10) - whether the Commissioner erred in concluding that the specific provisions of cl 43 of the SEPP ousted the general provisions of cl 26 - both clauses capable of satisfaction - cl 4.6 process in Warringah Local Environmental Plan 2011 provides mechanism for seeking to avoid compliance with the general provisions - cl 26 not ousted - Ground 10 upheld REMITTER - should the appeal be remitted or should it be dismissed - if remitted, should remitter be exclusionary - appeal should not be dismissed - appeal is against Commissioner’s decision to grant consent to proposed development - approach adopted by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd  NSWLEC 41 appropriate to be followed and matter remitted not dismissed - finding in Ground 1 warrants exclusionary remitter COSTS - presumption that costs follow the event - Council successful in appeal but not on the majority of grounds pleaded - costs to follow the event unless Respondent seeks to be heard to propose some alternative costs order
PROCEDURE– judicial review challenge to order issued under s 124 of Local Government Act 1993 requiring waste removal from private property – notice of motion by respondent local council seeking leave to be excused from undertaking to Court not to execute order – alternatively earlier hearing date sought – vacation of hearing date and relisting on earlier hearing date due to public health and safety concerns – leave to be excused from undertaking to Court not pressed
APPLICATION FOR INJUNCTION – application for interlocutory and final relief – application to restrain the demolition of a building owned by the State – summons and supporting affidavit disclose no possible cause of action maintainable in the Land and Environment Court – proceedings dismissed