ABORIGINAL LAND RIGHTS: whether some or all of the claimed land was “claimable Crown lands” within the meaning of the Aboriginal Land Rights Act 1983 as at the date of the claims – whether the claimed land was lawfully used or occupied for the purposes of s 36(1)(b) of the Act – effect of dedication for “public schooling purposes” – meaning of “lawfully” used or occupied – claimed land not lawfully used or occupied – whether the claimed land was needed or likely to be needed for the essential public purpose of education pursuant to s 36(1)(c) of the Act – whether the provision of education by a private provider an essential public purpose – whether a decision to sell the land to a private education provider who has continuously used the land to deliver courses precluded a finding that the claimed land was needed for an essential public purpose – land not claimable Crown land for the purpose of s 36(1) of the Act.
CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression
COMPULSORY ACQUISITION – Objection to compensation for compulsory acquisition pursuant to s 66 of Land Acquisition (Just Terms Compensation) Act 1991 – determination of public purpose within s 56(1)(a) – relevant purpose broadly construed to include the Western Sydney Infrastructure Plan, the Western Sydney Airport and attendant economic opportunities – rezoning of land integral to public purpose – statutory disregard pursuant to s 56(1)(a) – determination of market value of land – compensation for injurious affection – claim for disturbance – costs
COSTS – whether costs determination should be stayed pending appeal – whether costs should follow the event – whether public interest litigation – no order as to costs.
COSTS: whether costs follow the event when a respondent surrenders to the orders sought by an applicant in the originating process – whether conduct of the applicants was unreasonable thereby warranting a departure from the usual costs order – whether applicants’ failure to notify the first respondent prior to commencing proceedings was unreasonable conduct warranting a different costs order – whether applicants’ failure to personally serve the first respondent with the originating process was unreasonable conduct warranting a different costs order – whether the applicants’ rejection of an offer to settle the proceedings on the same terms as the relief that they ultimately obtained absent an order as to costs was unreasonable – effect of filing of a submitting appearance by the second respondent on costs – applicable legal principles.
INTERLOCUTORY APPLICATION – injunction – forestry operations – civil enforcement proceedings – integrated forestry operations approval under Part 5B of the Forestry Act 2012 (NSW) – standing to sue – whether the common law test for standing applies in civil enforcement proceedings – serious question to be tried – balance of convenience.
JUDICIAL REVIEW: validity of complying development certificate in respect of works to a boatshed – boatshed on Crown land – no landowner’s consent obtained prior to issue of certificate – whether declaration of invalidity should be made – absence of contradictor – utility of declaration – declaration made – certifier filed submitting appearance save as to costs – consequential procedural orders made in relation to foreshadowed costs hearing.
CIVIL PROCEDURE – Summary disposal – dismissal of proceedings – second proceedings litigating same cause of action and issues – abuse of process – effect of judgment in first proceedings – res judicata – issue estoppel – Anshun estoppel
CIVIL PROCEDURE – review of deputy registrar’s decision pursuant to r 49.19 of Uniform Civil Procedure Rules 2005 (NSW) – deputy registrar’s decision set aside and notice of motion re-determined – orders seeking leave to rely on amended plans not made
APPEAL – question of law – Commissioner’s decision to modify development consent – precondition to power to modify consent – whether modified development substantially the same development as originally approved development – whether error in chain of reasoning – whether error that no change in critical elements of development – whether error in adopting expert’s approach that no change in consequences of development – no error of law established
SENTENCE: occupier of landfill charged with emission of offensive odour – plea of guilty – odour affected local residents over a three month period – substantial environmental harm caused – multiple victims – harm reasonably foreseeable – practical measures available to avoid or mitigate the harm – objectively serious – subjective factors – moiety ordered – environmental services order – publication order made – notice to residents ordered.
INTERLOCUTORY APPLICATION: application for interim injunctive relief – no serious question to be tried – excessive delay in bringing application for injunctive relief and in commencing judicial review proceedings – whether proceedings brought in the public interest – whether the applicant should pay the respondents’ costs of the application.
PRACTICE AND PROCEDURE – construction and operation of s 8.5(7) of Environmental Planning and Assessment Act 1979 (NSW) enabling withdrawal of Class 1 appeal following grant of development consent as result of review – joinder of third party has no effect on application of section to applicant and consent authority
CIVIL PROCEDURE — time — extension of time to commence proceedings — r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ENVIRONMENT AND PLANNING — consent — conditions — construction — whether condition C.1(d) of the modified development consent prohibits excavation within the area previously identified as the ‘cellar’ level ENVIRONMENT AND PLANNING — consent — conditions — s 19(1)(b) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) — whether the relevant building work plans and specifications in the construction certificate are consistent with the modified development consent ADMINISTRATIVE LAW — ground of review other than procedural fairness — unreasonableness — jurisdictional error — whether it was legally unreasonable for the certifier to determine the relevant building work plans and specifications were consistent with the modified development consent — whether legal unreasonableness leads to invalidity of all or part of the construction certificate
VALUATION OF LAND – appeals against land valuations by Valuer-General – s 6A(1) of Valuation of Land Act 1916 (NSW) – limited relevant comparable sales
SENTENCING – environmental crime – offences against ss 342(1)(a) and 343(1) of Water Management Act 2000 – damaging or interfering with any work owed or under control of irrigation corporation – taking water from water supply work without authorisation – objective seriousness of offences – sentencing principles – general and specific deterrence – totality – jurisdictional limit of the Local Court – order for moiety against s 122 of Fines Act 1996
CIVIL ENFORCEMENT – multiple breaches of Environmental Planning and Assessment Act 1979 (NSW) established in relation to building of dwelling – failure to comply with development consent and construction certificate – failure to comply with stop work order issued under the Environmental Planning and Assessment Act 1979 (NSW) – failure to comply with compliance order issued under the Environmental Planning and Assessment Act 1979 (NSW) – exercise of discretion to make declarations of breaches of Environmental Planning and Assessment Act 1979 (NSW) and consequential orders requiring demolition and construction in compliance with development consent and construction certificate – costs
CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 1 application — Question regarding characterisation of development and permissibility — Determining question separately from other issues not justified — Adjudication of separate question not just, quick or cheap
ENVIRONMENT AND PLANNING – Judicial review of development consent of State Significant development – alleged that the consent authority failed to consider environmental impact of transmission line – material jurisdictional error – question as to whether the transmission line formed “part of a single proposed development” – s 4.38 of Environmental Planning and Assessment Act 1979 – provision to be construed in terms of context and purpose – environmental impacts of transmission line – s 4.15(1)(b) of Environmental Planning and Assessment Act 1979 – lack of certainty as to route of transmission line precluded a finding as to “likely impacts” – no error in respect of mandatory relevant considerations
COSTS — Costs assessment — Determination — Self-represented litigant — Class 7 proceedings APPEAL — Appeal against conviction in Local Court wrongly commenced — Conviction in Local Court annulled during proceedings in the Land and Environment Court — Appeal discontinued — Orders made that applicant pay 60% of respondent’s costs including costs of the application for costs
APPEAL – s 56A appeal from decision of acting commissioner on question of law in finding that applicant company a fit and proper person under Protection of the Environment Operations Act 1997 (NSW) – no failure to consider matter not identified to acting commissioner at hearing – no failure to consider correct statutory test – no failure to consider specific paragraphs of judgment in separate criminal case – attribution of weight to relevant factors by acting commissioner not reviewable under statutory scheme – decision not legally unreasonable – appeal dismissed
APPEAL – appeal of acting commissioner’s decision under Trees (Disputes between Neighbours) Act 2006 (NSW) – no error of law in determination that four palm trees did not form a hedge – appeal dismissed
SEPARATE QUESTION: whether consent authority precluded from granting consent to a concept development application in circumstances where clauses concerning the number of lots and the density of the development could not be complied with by the proponent at that stage – what was the “development” in respect of which the consent DA sought consent – whether provision in planning instrument concerning density control is a development standard or a control – whether if the density control is a development standard the consent authority can grant consent to the concept development application.
JURISDICTION – partial strike out of Class 2 application as court lacks jurisdiction to consider breach of duty of care to provide support for land under s 177 of the Conveyancing Act 1919 (NSW) PRACTICE AND PROCEDURE – premature application for compensation under s 181 of Local Government Act 1993 (NSW) struck out PRACTICE AND PROCEDURE – no transfer of proceeding to Supreme Court of NSW
COSTS – costs order made in Respondent’s favour in interlocutory proceeding in compensation for compulsory acquisition claim under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – costs in interlocutory proceedings not payable on indemnity basis
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environmental protection licence – failure to store waste in contravention of an environmental protection licence – pleas of guilty – factors to take into account in determining sentence – whether offender committed offences recklessly – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – whether offences committed for financial gain – whether offences committed without regard for public safety – whether offender has capacity to pay fine – comparable cases – application of totality principle – monetary penalty imposed – moiety order – publication order – costs ordered.
PRACTICE AND PROCEDURE – interlocutory application – notice of motion for injunctive relief – restrain applicant from accepting offer of compensation under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) – serious question to be tried – balance of convenience
CRIME – Environmental Offences – Offences under ss 120(1) and 142A(1) of the Protection of the Environmental Operations Act 1997 (NSW) – prohibition of pollution of water and land – diesel spill – applicable sentencing principles under Crimes (Sentencing and Procedure Act 1999 (NSW) – objective seriousness of offence – offence aggravated by nature and seriousness of the harm to the environment – strict liability – conduct unintentional – subjective circumstances of offender – remorse – early guilty plea – consistency in sentencing – limited capacity to pay fine – s 6 of Fines Act 1996 (NSW) – appropriate sentence – discount in fine for each offence
CRIMINAL APPEAL – Environmental Offences – Liability of Councils and directors – special executive liability – s 169(1) of Protection of the Environment Operations Act 1997 (NSW) – statutory construction – construction of “to and in respect of”– whether such an expression is to be read disjunctively or conjunctively – ordinary and grammatical meaning of “and” is conjunctive – assistance of extrinsic material – s 220(4) of Local Government Act 1993 (NSW) – costs limitations imposed upon lower courts
ENVIRONMENT AND PLANNING – consent –duration or lapsing of development consent – breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW) – prohibited development – declarations and injunctive relief – stay of injunctive relief
JUDICIAL REVIEW: validity of consent for change of use of land – whether change of use constitutes development where no erection of a dwelling occurs – the meaning of “carrying out development” – change of use from dwelling and secondary dwelling to dual occupancy – change of use is development – Council had the power to grant the consent.
COSTS — Criminal proceedings — Application by the defendants for costs under s 257D of the Criminal Procedure Act 1986 (NSW) after summons dismissed — Whether prosecutor’s investigation of alleged offences was unreasonable — Whether the commencement of the proceedings was unreasonable — Whether the prosecutor acted improperly — Whether there are exceptional circumstances otherwise warranting an order for costs — Application dismissed
COMPULSORY ACQUISITION – market value of acquired land – underlying zoning at acquisition date low density residential – numerous constraints on development of land for 26-lot subdivision in mind of hypothetical purchaser – river on land with need to obtain approval to pipe and traffic access and topography constraints affect consideration of risk in valuation process – relatively risk free 7-lot subdivision should be valued – disputed comparable sales adjustments considered – disturbance claim that actual use of land for land banking accepted
JUDICIAL REVIEW – amendment of a plan of management for a national park – statutory requirement for consideration of relevant matters – when matters required to be considered – who required to consider matters – whether matters considered at required time and by required person
CIVIL PROCEDURE — Notice of Motion seeking summary dismissal or strike out of proceedings — Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28 — No reasonable cause of action disclosed — Summons dismissed PRACTICE AND PROCEDURE — Leave granted to replead a limited number of claims
CIVIL ENFORCEMENT – s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) – where respondents carried out earthworks, erection of a building and driveway works without consent – orders made requiring demolition of works and restoration of land – s 23 of the Land and Environment Court Act 1979 (NSW) – r 40.8 of the Uniform Civil Procedure Rules – orders made permitting the Council to carry out works if respondents fail to comply with orders
JUDICIAL REVIEW – Complying Development Certificate (CDC) issued for construction of group homes and attached garage – cll 8 and 20 of Sch 2 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) – whether development met building articulation and location of fill requirements – CDC was not complying development under cl 64(1)(d) of the Housing SEPP – cl 1.18(e) of State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (Code SEPP) – whether consent was required for modification of driveway under s 138 of the Roads Act 1993 (NSW) – no work proposed for driveway
SENTENCE – contempt – failure to comply with court orders – no appearance from respondent – wilful contempt – upper end of objective seriousness – fine imposed – periodic fine imposed until contempt purged
COSTS — Whether successful appellant in an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) should be awarded costs — Costs should follow the event — Apportionment appropriate
NOTICE OF MOTION – adjournment pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) or stay of proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) – dictates of justice – matter to proceed to final hearing – motion dismissed.
CRIMINAL PROCEDURE – preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 (NSW) – separate question – charges against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – whether the Court should hear and determine the separate questions – whether summonses allege offences known to law – whether the summonses ought be dismissed – meaning of “waters” – meaning of “water pollution” or “pollution of waters” – whether the separate questions are questions of fact
ENVIRONMENTAL OFFENCES: pleas of guilty to six offences concerning the supply of false or misleading information about waste – applicable sentencing principles – whether offences committed intentionally – environmental harm caused by the commission of the offences – whether offences were committed for financial gain – whether maximum discount to be awarded for early pleas of guilty – publication order made – fines imposed.
JUDICIAL REVIEW – development consent granted for State significant development pursuant to s 4.38 of the Environmental Planning and Assessment Act 1979 (NSW) – development consent granted in relation to Crown land – consent not obtained from the Minister administering the Crown Land Management Act 2016 (NSW) on behalf of the Crown – whether jurisdictional error – whether reliance on cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) obviated the need for consent prescribed by s 2.23 of the Crown Land Management Act 2016 (NSW) – statutory construction – whether the Court should grant conditional validity pursuant to s 25B of the Land and Environment Court Act 1979 (NSW) – whether failure to obtain owner’s consent is a “technical breach”
COSTS – appeal against deemed refusal of biodiversity conservation licence applications - appeal upheld and licences granted – applicant seeks costs – proceedings in Class 1 of Court’s jurisdiction – no order as to costs unless fair and reasonable in the circumstances – whether the respondent acted unreasonably in the proceedings or circumstances leading up to the commencement of the proceedings – whether the respondent pursued claims that did not have reasonable prospects of success – whether the applicant engaged in disentitling conduct – fair and reasonable to make an order for the costs of the proceedings
SENTENCING – environmental offence – s 12 of the Native Vegetative Act 2003 (NSW) – clearing native vegetation – significant actual and likely harm caused to the environment – reasonable foreseeability of harm – whether offence carried out as planned criminal activity and for financial gain – high mid-range of objective seriousness – no real contrition or remorse – prior convictions – whether defendant suffered extra-curial punishment – specific deterrence not warranted – fine not reduced due to capacity to pay pursuant to s 6 of the Fines Act 1996 (NSW) – monetary penalty imposed – legal costs
JUDICIAL REVIEW – charge for sewerage services – resolution making charge – rate notice levying charge – whether charge made on land parcel or premises on land parcel – amount of charge – how determined – whether determined differing amounts for same charge – whether short separate name needed for amount of charge if not differing amounts – land parcel jointly owned by the Crown – whether Crown exemption from charges as well as rates – extension of time to commence proceedings.
APPEAL – appeal on questions of law – Commissioner’s decision to refuse permit for tree removal – tree in heritage conservation area – development consent required to remove tree – tree of a listed species in development control plan – permit required to remove tree – whether development consent or permit required in circumstances – whether misconstruction of development control plan – application of incorrect development control plan – whether error material
ABORIGINAL LAND RIGHTS: whether a special purpose lease over the claimed land that expired in 1996 ceased to be in force as at the date of the claim – whether the land was “claimable Crown lands” within the meaning of the Aboriginal Land Rights Act 1983 – whether the land was lawfully occupied for the purposes of s 36(1)(b) of that Act – meaning of “lawfully occupied” in that Act – whether there was actual occupation of the claimed land – whether lawful occupation is required to be lawful under the Crown lands legislation or whether some other form of lawful occupation suffices for the purposes of s 36(1)(b) – whether land used unlawfully can nevertheless be lawfully occupied – whether the claimed land was the subject of a lease saved by cl 8 of Sch 4 of that Act and therefore not claimable Crown land – the special lease had ceased to be in force and was not protected by cl 8 of Sch 4 of that Act – the claimed land was not actually occupied as at the claim date – the claimed land was not lawfully occupied because it was subject to an interest not authorised under the Crown lands statutory regime – the claimed land was “claimable Crown lands” and was not deemed to be otherwise by operation of cl 8 of Sch 4 of that Act.
COMPULSORY ACQUISITION — Assessment of amount of compensation owed under ss 55(a) and (d) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — Characterisation of public purpose — Whether zoning is a consequence of public purpose and is to be disregarded — Rezoning for residential use likely absent public purpose — Highest and best use as a two-lot development — Determination of market value — Preference for valuation evidence contemporaneous to the date of acquisition
SUBPOENA TO PRODUCE – prosecutor claim of legal professional privilege – Evidence Act 1995 (NSW) ss 118 and 119 – communications in relation to investigations of offences on subject land in earlier proceedings – communications between departmental officers – lawyer and client in governmental departments – the Court’s inspection of documents subject of privilege claim
ENVIRONMENTAL OFFENCES – no case to answer application – whether prosecutor adduced evidence capable of supporting verdict of guilty – application dismissed
ENVIRONMENTAL OFFENCES – ss 60C(1)(b), 60C(2), 91I(2) and 91H(2) of the Water Management Act – plea of not guilty – circumstantial evidence – whether defendant took water otherwise than in accordance with access licence – crop water requirements of cotton farm – available rainwater – stored water availability – whether defendant took water while metering equipment was not operating properly – the meaning of “not operating properly” – no honest and reasonable mistake of fact
PRACTICE AND PROCEDURE – application for stay of development control order – whether there is an arguable case – balance of convenience – demolition works not authorised by development consent
PRACTICE AND PROCEDURE – whether to expedite matter for hearing – power to refer matter for mediation – NSW Land Registry Services (LRS) boundary determination pending
OFFENCES AND PENALTIES – sentence – conspiring to supply information about waste knowing it to be false or misleading – false waste delivery dockets – objective seriousness of offence – contrary to legislative objects and regulatory scheme – potential environmental harm – practical measures to prevent foreseeable harm – control over causes – offence in lower end of mid-range – subjective circumstances of offender – earlier guilty plea – no previous convictions – good character – some assistance to authorities – remorse – unlikely to re-offend – publication order
OFFENCES AND PENALTIES – sentence – unlawful transportation of waste – pollution of land – unlawful disposal of asbestos waste – supply of false information about waste – false waste delivery dockets – objective seriousness of offence – contrary to legislative objects and regulatory scheme – potential environmental harm – practical measures to prevent foreseeable harm – control over causes – offences in lower and mid-range – subjective circumstances of offender – early guilty plea – no previous convictions – good character – some assistance to authorities – remorse – unlikely to re-offend – publication order
JUDICIAL REVIEW – decision to approve operational plans – forestry operations – jurisdiction and justiciability of grounds of review in relation to integrated forestry operations approval – standing to sue under s 69ZA of the Forestry Act 2012 (NSW) – common law test of standing to sue – special interest – admissibility of expert evidence in judicial review proceedings – whether compliance with the conditions of the Coastal Integrated Forestry Operations Approval 2018 a mandatory consideration – whether principles of ecologically sustainable forestry management a mandatory precondition or consideration – whether site specific operating conditions a mandatory precondition or consideration
COSTS — Class 3 proceedings — Discretion under Encroachment of Buildings Act 1922 (NSW) — General rule costs should follow the event — Whether usual costs rule is just in the circumstances where offers of compromise were made — Whether reasonable for parties to reject offers — Whether indemnity costs order should be made — Impecuniosity of party — Unsuccessful applicant to pay 50 per cent of respondent’s costs of primary proceedings
COMPULSORY ACQUISITION ‑ claim for compensation ‑ resumption of leasehold interest ‑ 18 advertising billboards owned by claimant ‑ billboards located on road between international and domestic terminals at Sydney Airport ‑ compensation claim for hypothetical digitisation of signs prior to date of acquisition ‑ no legal basis for a claim ‑ if wrong, contingent determination of number of signs which might have been digitised ‑ two signs would have been digitised COMPULSORY ACQUISITION ‑ method to be used for calculating value of leasehold interest ‑ discounted cashflow method appropriate basis of calculation ‑ determination of input factors for such calculation COMPULSORY ACQUISITION ‑ claim for “Digital advantage” ‑ “Digital advantage” claim separate from “Halo effect” claim ‑ no proper evidentiary basis for “Digital advantage” advantage claim ‑ claim rejected COMPULSORY ACQUISITION ‑ claim for “Halo effect” ‑ “Halo effect” said to arise because of claimant's ability to market billboards in combination at multiple airport locations in other cities ‑ no proper evidentiary basis for claim ‑ claim mere assertion ‑ claim rejected COMPULSORY ACQUISITION ‑ claim for fees of forensic accountant ‑ fees claimed pursuant to s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 ‑ fees said to be incurred as part of providing legal advice to claimant ‑ fees properly claimed - reimbursement of claimed fees to be ordered DIRECTIONS ‑ matter adjourned to permit the parties to consider the findings and calculate compensation based on them and to bring in orders to reflect the determined outcomes
APPEAL – question of law – Commissioner’s decision to refuse consent to remediation works – misconstruction of applicable statutory instrument – misdirection by consideration of non-applicable statute – no error of law in wrong findings of fact.
Costs – strata renewal plan – application for an order giving effect to – discontinuance of proceedings – statutory provision that owners corporation pay dissenting owner’s costs – otherwise order for costs sought
SENTENCING – ss 91B, 142A(1), 169(1) and 169A of the Protection of the Environment Operations Act 1997 (NSW) – pollution of land – unlawful storage of waste tyres – failure to comply with clean-up notice – executive liability – no evidence of actual harm – potential harm foreseeable – middle range objective seriousness – contrition and remorse not demonstrated – assistance with regulatory authority – early plea of guilty – general deterrence warranted – specific deterrence not warranted – fine reduced due to capacity to pay pursuant to s 6 of Fines Act 1996 (NSW) – monetary penalty and publication order made – order for a moiety
ENVIRONMENTAL OFFENCES — Defendant charged under s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) — Plea of guilty not entered — Prosecution case agreed to be circumstantial — Whether the prosecutor has established the defendant guilty of the offences beyond reasonable doubt
SUBPOENA – Prosecutor serves subpoena to produce on Defendant – subpoena lists documents sought – Defendant files Notice of Motion seeking to have the subpoena set aside – Defendant seeks to have subpoena set aside on the basis that the documents all result from voluntary environmental audits – Prosecutor provided with the documents subject to a confidentiality undertaking for the purposes of this set-aside application – application made on the basis that the documents are protected documents within the scope of s 181(1) of the Protection of the Environment Operations Act 1997 (POEO Act) – Prosecutor proposes that for documents to have been produced as a consequence of a voluntary environmental audit, the process and purpose to constitute such an audit should comply, generally, with ISO19011: 2018 – Defendant submits process for a voluntary environmental audit, understood in its proper statutory context within Part 6 of the POEO Act, did not need to mimic requirements of ISO19011 – Defendant says documents were produced for the sole purpose of environmental audits – Prosecutor’s approach to the concept of voluntary environmental audit too narrow and prescriptive – Defendant’s approach is appropriate basis upon which to consider each of the documents set out – examination of the individual documents establishes that all but two were created for the sole purpose of voluntary environmental audits – two documents (being logs describing pipe cam footage) were not documents on their face which were produced for the sole purpose of a voluntary environmental audit – subpoena set aside with respect to the protected documents – Defendant ordered to produce the two pipe cam log documents and any associated documents and video footage to the Prosecutor
JUDICIAL REVIEW ‑ challenge to development consent for adaptive reuse of an existing commercial building, adding an additional level ‑ conversion to mixed‑use development with shop top housing ‑ development consent challenged on six separate grounds ‑ whether challenge to development consent commenced within statutory time limit ‑ challenge commenced within time limit ‑ if not within in time limit, whether challenge within Hickman principles of exceptions to compliance with time limits ‑ challenge within second of the Hickman principles JUDICIAL REVIEW ‑ Ground 1 ‑ ground alleges approved development breaches height of building development standard set by Willoughby Local Environmental Plan 2012 (the LEP) ‑ request pursuant to cl 4.6 of the LEP to permit non‑compliance with the development standard ‑ Planning Panel approved request to permit non‑compliance but on the basis that required modification of the development for which consent had been sought ‑ three tests in cl 4.6 of the LEP required to be applied to the proposed development for which application had been made ‑ Planning Panel did not misapply the tests in cl 4.6 of the LEP ‑ granting of dispensation for non‑compliance of the Height of Building Development Standard valid ‑ Ground 1 fails JUDICIAL REVIEW ‑ Ground 2 ‑ LEP requires that the western street frontage of the site be activated ‑ majority of the western street frontage proposed to be screening of ground level car parking ‑ consideration of extent to which activated street frontage required ‑ consideration of whether requirement for activated street frontage is a development standard ‑ held requirement for activated Street frontage is a development standard amenable to a dispensation request pursuant to cl 4.6 of the LEP ‑ no dispensation request made with the development application ‑ without a dispensation request satisfying cl 4.6 of the LEP, failure to satisfy the requirement for an activated street frontage on the western boundary of the site rendered development prohibited ‑ Planning Panel failed to give proper consideration to requirement for activated street frontage on western boundary of the site – consideration of matters of discretion - ground 2 upheld but, as a matter of discretion, relief refused JUDICIAL REVIEW ‑ Ground 3 ‑ ground proposes shop top housing must be directly vertically above ground floor commercial premises ‑ all dwellings above ground floor commercial premises ‑ proposed dwellings not all directly vertically above ground floor commercial premises ‑ definition of shop top housing does not require vertical alignment above ground floor commercial premises ‑ Ground 3 fails JUDICIAL REVIEW ‑ Ground 4 ‑ ground alleges breach of floor space ratio (FSR) permitted by development standard in the LEP ‑ calculation of FSR by application of gross floor area (GFA) to area of the site ‑ dispute as to areas to be included in GFA for FSR calculation ‑ consideration of the definition of basement in the LEP ‑ correct calculation of the FSR discloses no breach of development standard – Ground 4 fails JUDICIAL REVIEW ‑ Grounds 5 and 6 ‑ grounds alleges Planning Panel failed to consider requirements of cl 7 of State Environmental Planning Policy 55 ‑ Remediation of Land (the SEPP) ‑ Applicant gives evidence of knowledge of alleged contamination of the site coming to his attention in 1995 ‑ Applicant fails to disclose alleged contamination in submission to Council objecting to proposed development ‑ no adequate explanation of failure to disclose alleged contamination - Applicant developer of adjacent site to the east ‑ assuming basis for Grounds 5 and 6 made out (a matter not necessary to determine), proper exercise of discretion would require no declaration or orders appropriate arising from these grounds – no relief appropriate COSTS – Applicant failed on three grounds – Applicant succeeds on one ground but obtains no relief as a matter of discretion – Applicant obtains no relief on two further grounds addressed on the assumption that the grounds are made out (it not being necessary to determine if they were made out) – costs ordinarily follow the event – the event is Applicant's failure to obtain any relief – costs are discretionary – apportionment of costs – apportionment appropriate to reflect Applicant's establishment of one ground even though relief was not appropriate – Applicant to pay 80% of Respondents costs
VALUATION OF LAND – appeal against valuations by Valuer General – s 6A of Valuation of Land Act 1916 (NSW) – determination of unimproved land value – comparable sales and adjustments – appeal dismissed
ABORIGINAL LAND RIGHTS – s 36(1)(b) of Aboriginal Land Rights Act 1983 (NSW) – whether land claimable Crown land – claimed land leased to Surf Life Saving Sydney – whether part of claimed land was lawfully used or occupied – claim limited to open space curtilage area surrounding building – whether claimed land should be treated as single unit of separate divisible areas – appeal upheld
COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for loss of profit rent allegedly lost for the remainder of the term of the lease renewal options – consideration of market rent – no difference between passing rent and market rent established – profit rent claim fails COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for relocation of retail pharmacy business – substantial demolition and construction/reconstruction and structural alterations to relocation premises – whether structural alteration costs appropriate to be borne by Applicant and reimbursed by acquiring authority – costs of demolition and construction/reconstruction appropriate to be regarded as landlord’s costs – claim rejected COMPENSATION – claim for cost of buying out existing tenants in order to render demolition and construction/reconstruction activities possible – cost of buying out existing tenants appropriate to be regarded as landlord’s expenses – claim for reimbursement of cost of buying out existing tenants rejected COMPENSATION – claim for costs of fit-out of new premises – new premises fitted-out not only in compliance with regulatory requirements but also to best contemporary pharmacy practice – were costs of fit-out reasonably incurred and thus compensable – costs of fit-out reasonably incurred – Applicant entitled to reimbursement for costs of fit-out COMPENSATION – claim for differential in rental between that paid at the acquired premises and that paid at the relocation premises – rent at relocation premises higher than that at acquired premises - claim based on full term of lease assuming exercise of multiple renewal options - relocation premises larger than acquired premises rate per square metre at relocation premises lower than that at acquired premises – rent comparison appropriate on rate per square metre – no basis for claim – differential rent claim rejected COMPENSATION – claim for reimbursement for double rental paid at the acquired premises and that paid at the relocation premises – claim based on time including time for demolition and construction/reconstruction works – not appropriate to order reimbursement for rent paid during period whilst landlord’s works were being undertaken – appropriate to allow nominal three-month rent-free period for fit-out works as provided for in the lease– claim for reimbursement of double rental rejected COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for temporary business losses – losses said to arise as a consequence of this favourably located new premises – whether loss occasioned by ongoing gradual decline of business – claim not established. COMPENSATION – compulsory acquisition of leasehold interest in shop premises – claim for long-term loss of profit as a consequence of non-establishment of proposed nearby medical Centre – site of proposed medical Centre also resumed for public purpose – assumptions underpinning claim of increased business from medical centre not established – claim rejected – claim rejected COSTS – claims arising from compulsory acquisition of leasehold interest in retail premises – although significantly unsuccessful, Applicant's case not completely unarguable or hopeless – appropriate acquiring authority pays costs of Applicant on ordinary basis
COSTS — party/party — successful applicant should receive all costs – respondent who filed submitting appearance not liable for costs – respondent council liable for applicant’s costs
COMPULSORY ACQUISITION – first instance judgment delivered – parties provided agreed list of questions for determination in first instance hearing – 217 page judgment delivered addressing all agreed questions – answers to be incorporated in agreed Excel spreadsheet to derive quantum of compensation – Applicant considers additional issue should be determined in light of findings – informal application to hear and determine new issue – issue not raised in Applicant's case – issue sought to be raised inconsistent with Applicant's case at first instance hearing – preliminary forensic accounting advice tendered – advice from each party’s expert shows extensive further evidence required – matter now sought to be agitated arises from conventional application of long settled and recently applied High Court authority – informal application for further hearing refused INTEREST – answers provided to agreed questions resulted in compensation outcome less than that determined by the Valuer General – obligation on Applicant to repay monies to Respondent – Respondent seeks order that Applicant pay post-judgment interest on money to be repaid – order for post-judgment interest discretionary – not appropriate to exercise discretion to order payment of interest by dispossessed Applicant – order for payment of interest rejected. COSTS – Respondent seeks order for costs of informal application seeking further hearing arising from the first instance decision – costs a matter of discretion – not appropriate to order dispossessed Applicant to pay costs of informal application – application for costs rejected CONFIDENTIAL INFORMATION PROTECTION – Applicant seeks orders for redaction of confidential information in first instance judgment – no opposition to redaction orders – redactions ordered to be made
COSTS: determination of the ‘event’ – whether costs should be apportioned – whether costs payable on an indemnity basis on the basis of Calderbank offers – whether costs payable on an indemnity basis on the basis of abuse of process – legal principles – costs apportioned – costs payable on an ordinary basis only.
PRACTICE AND PROCEDURE – multiple defendants’ notices of motion seeking orders that summonses be quashed and dismissed upheld – prosecutor’s notice of motion seeking to amend summonses does not arise and dismissed in any event – costs awarded to defendants under s 257C of Criminal Procedure Act
COMPULSORY ACQUISITION – determination of compensation – land compulsorily acquired on the Sydney Harbour foreshore at McMahons Point – necessity to determine the public purpose for which the land was acquired –public purpose to be disregarded for the purposes of assessing compensation – the Applicants propose that the public purpose was the creation of a foreshore park identified in 1948 and incorporated in the County of Cumberland Planning Scheme Ordinance 1951– Applicants propose underlying zoning at the date of acquisition was R3 Medium Density Residential after disregarding the public purpose – the Ministerial Corporation's position is that the acquisition was for the purpose of completing the already existing open space reserve surrounding the site – Ministerial Corporation proposes underlying zoning at the date of acquisition was B1 after disregarding the public purpose – public purpose was that advanced by the Ministerial Corporation – resultant underlying zone is B1 Neighbourhood Centre at the date of acquisition VALUATION – valuation of site on an underlying zoning of B1 Neighbourhood Centre – consideration of the extent of a hypothetical B1 development on the site – hypothetical development of three storeys with one ground floor commercial level with basement and a single level apartment above – hypothetical purchaser an owner/occupier not a developer looking to construct the hypothetical development and on‑sell it – consideration of value of commercial component – consideration of value of residential component – two-level hypothetical B1 development subject of quantity surveying evidence – necessity to derive a value after consideration of valuation and quantity surveying costing – necessity to make allowance for risk of obtaining development – valuation of acquired property on B1 underlying zoning basis to be derived from applying nominated adjustments to the valuation analysis of a three-level shop top housing development – directions given for calculating outcome VALUATION – contingent R3 valuation undertaken as a precaution if B1 Neighbourhood Centre incorrect underlying zoning – comparable sales method appropriate basis for valuation assessment –expert valuers consider multiple potential comparable sales – consideration of whether sales were truly comparable – only one sale truly comparable – analysis and adjustment of comparable sale results in valuation of acquired property on R3 underlying zoning basis of $17,200,000 DISBURSEMENTS – dispute as to limited range of disbursements made in support of preparation of Applicants case – disbursements made for the purposes of enabling legal advice to be given to the Applicants – disbursements to be reimbursed pursuant to s59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 COSTS – consideration of costs entitlement of dispossessed owners – dispossessed owners’ case not advanced unreasonably or in a fashion causing unnecessary expense – dispossessed owners entitled to costs, even if resultant B1 development less than Valuer General's determination
CIVIL ENFORCEMENT: whether consent orders made and entered in 2014 can be set aside on the grounds of illegality, improper purpose or contrary to public policy – whether the Court had jurisdiction to make the orders – construction of consent orders – construction of development consent – whether variations to environment protection licence issued by EPA modified the development consent – application of doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process – whether the Court has statutory or implied power to set aside the consent orders – whether as an exercise of its discretion the Court ought to set aside consent orders – delay – detriment, including to third parties – consent orders not set aside – agreement procuring consent orders not void or voidable for illegality – whether further development consent required to carry out the works the subject of consent orders – no further development consent required – whether development the subject of consent constitutes “development (whether existing or approved)” within the meaning of cl 35 of Sch 3 of the Environmental Planning and Assessment Regulation – meaning of “development (whether existing or approved)” – utility of granting declaratory relief – declaratory relief granted. JUDICIAL REVIEW: whether variations made by the EPA to an environment protection licence were invalid – whether doctrines of estoppel, res judicata and abuse of process applied to a party not the subject of earlier related proceedings – meaning of “(other than on the initiative of the EPA)” – variations not on the initiative of the EPA but on the initiative of the licence holder – no power to issue the variations because no development consent for the works the subject of the variations as required – variations invalid – whether invalid variations can be severed – invalid variations severed.
COSTS – compensation claim for compulsory acquisition of substratum for railway tunnels – preliminary issue whether compensation claim barred by provision of Transport Administration Act 1988 – Applicant succeeds on preliminary point at first instance – Respondent successful on appeal on preliminary point – remitter to determine costs at first instance – Applicant proposes it be awarded costs at first instance – Respondent had made what it described as a Calderbank offer prior to first instance hearing – Respondent proposes Applicant should pay Respondent's costs up to the expiry of the Calderbank offer on the ordinary basis and on the indemnity basis thereafter – Respondent's fallback position that there be no order for costs at first instance – Respondent’s offer required effective capitulation of Applicant – offer not proper Calderbank offer – Applicant’s non-acceptance of offer also reasonable – need to preserve earlier costs outcomes in preliminary proceedings – Respondent to pay Applicant’s costs of first instance hearing and of the costs’ consideration other than those costs subject to earlier costs orders
CIVIL ENFORCEMENT – injunctive relief – neighbour dispute – development consent – trespass or damage to dividing fence property – interference with paperback tree on property – undertaking as to damages – referral to mediation – mediation unsuccessful – parties seek directions setting the matter down for hearing.
COSTS — Exercise of discretion to award costs in Class 4 judicial review proceedings — Whether the making of an order under s 25B for conditional validity of a development consent is the event costs should follow — Whether costs should be apportioned in circumstances — Whether a consent authority should be exempted from costs by reason of its submitting appearance COSTS — Interlocutory process — Exercise of discretion to award costs in relation to an application under s 25C of the Land and Environment Court Act 1979 (NSW) — Where the orders are opposed
SENTENCE – prosecution for development undertaken without approval of consent authority – development comprised construction of an additional level (a four bedroom penthouse) on a six storey residential apartment tower – builder prosecuted for construction – builder obtains benefit of continuity of engagement of workforce by not seeking consent for the additional level – additional level removes sole element of communal open space designated for future residents of that tower in the development – financial gain for builder a factor of aggravation – damage to the regulatory system of land use planning – offending conduct deliberate – maximum penalty for offending conduct $2 million – no prior convictions – limited assistance to prosecutor – necessity for specific and general deterrence – appropriate starting penalty $90,000 – early guilty plea – 25% discount on penalty appropriate – power to order diversion of portion of appropriate penalty for environmental purpose – diversion order of $15,000 made – builder fined $60,000 –publication order not opposed – publication order made – modification application to regularise additional level as a two bedroom apartment subsequently approved – implementation of modification required SENTENCE – prosecution for development undertaken without approval of consent authority – development comprised construction of an additional level (a four bedroom penthouse) on a six storey residential apartment tower – developer prosecuted for aiding and abetting construction – developer obtains benefit of the additional apartment– additional level constructed on shorter element of approved two tower development – additional level removes sole element of communal open space designated for future residents of that tower in the development – financial gain for developer a factor of aggravation – damage to the regulatory system of land use planning – offending conduct deliberate – maximum penalty for offending conduct $2 million – no prior convictions – limited assistance to Prosecutor – necessity for specific and general deterrence – appropriate starting penalty $120,000 – early guilty plea – 25% discount on penalty appropriate – power to order diversion of portion of appropriate penalty for environmental purpose – diversion order of $15,000 made – developer fined $75,000 – publication order not opposed – publication order made – modification application to regularise additional level as a two bedroom apartment subsequently approved – implementation of modification required
CIVIL ENFORCEMENT – complying development certificate – development control order – whether complying development – construction of “draft heritage item” in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) JUDICIAL REVIEW – planning proposal – gateway determination – unreasonableness and issue estoppel – whether conditions of gateway determination complied with – mandatory public exhibition period – community consultation – substantial or strict compliance with conditions of gateway determination – alleged invalidity of cl 1.5 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
CIVIL ENFORCEMENT – on 31 March 2021, the Applicant serves a clean-up order on an owner of a property – clean-up order results from police notification that premises were used as a clandestine drug laboratory – owner of the property required to effect clean-up by 15 April 2021 – no appeal against the terms of the order – the owner has not carried out the mandated clean-up operation as required by the order – Class 4 civil enforcement proceedings commenced against the owner of the property (First Respondent) seeking court orders for compliance with the clean-up requirements – co-owner of the property joined as Second Respondent – relief sought by the Applicant amended to encompass both owners of the property – no appearance by either respondent at the hearing – Applicant proves service of Amended Summons, Court Book and Evidence Book on each respondent – evidence establishes proper basis for making original order against the First Respondent – evidence establishes that the clean-up order has not been complied with by the First Respondent – no clean-up order served on the Second Respondent – absence of clean-up order being served on the Second Respondent removes basis for making orders against the Second Respondent – failure to comply with the clean-up order by the First Respondent and the evidentiary basis founding that order (with the continuing failure to comply with it) provides a proper basis to make the declaration and orders sought by the Applicant against the First Respondent – declaration and orders made against the First Respondent – Amended Summons dismissed to the extent it sought orders against the Second Respondent COSTS – costs ordinarily follow the event in Class 4 proceedings – no valid basis upon which the Second Respondent was joined to the proceedings and orders sought against him – appropriate to exclude costs of joinder application and amendment to the summons from the costs order to be made against the First Respondent – no costs order to be made against Second Respondent – First Respondent ordered to pay the Applicant's costs (other than the costs associated with the application for joinder of the Second Respondent and the application to rely on the Amended Summons seeking orders including orders against the Second Respondent) as agreed or assessed
SENTENCING – plea of guilty to contravention of term of access licence – very low objective seriousness – no moral culpability - no actual or likely environmental harm – no impact on another person’s rights – application of s 10(1) Crimes (Sentencing Procedure) Act 1999 (NSW) considered SENTENCING – plea of guilty to taking water contrary to term of access licence – very low objective seriousness – no moral culpability - no actual or likely environmental harm – no impact on another person’s rights – application of s 10(1) Crimes (Sentencing Procedure) Act 1999 (NSW) considered
PRACTICE AND PROCEDURE — extension of time — exercise of discretion to grant extension of time — length of delay – reasons for delay — extent of prejudice – prospect of success on appeal
COSTS – award of costs following successful civil enforcement proceedings by local council in relation to carrying out agricultural industry without development consent in breach of Environment Planning and Assessment Act 1979 (NSW) – notice of motion seeking costs not premature – costs follow the event being breach of Environment Planning and Assessment Act 1979 (NSW) – local council as the successful party entitled to award of costs – rejection of Calderbank offer does not justify award of indemnity costs
APPEALS – Defendant pleaded guilty in the Local Court to three offences in breach of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (the Regulation) – guilty pleas entered at earliest opportunity – offences arose out of the Defendant fraudulently claiming refunds pursuant to the Regulation for containers for which refunds had previously been claimed by others – Defendant’s offending conduct found by the Local Court to be in the mid-range – offences were committed for financial gain – penalty of $15,000 imposed by the Local Court for each offence – Prosecutor’s appeal against sentences imposed – Prosecutor complains Local Court sentencing process miscarried as sentences were manifestly inadequate – held Local Court sentencing process miscarried as sentences were manifestly inadequate – Prosecutor’s appeals upheld – appropriate to resentenced Defendant – sentencing limit of $110,000 for each offence in the Local Court – no comparable sentencing information available as these were the first offences charged for breaches of the Regulation – appropriate starting penalty for each offence of $72,000 – Defendant entitled to 25% discount for early guilty pleas – Prosecutor accepts that all three offences arose from a single course of offending conduct – appropriate to adjust the overall penalties to reflect totality and accumulation of penalties to be imposed on the Defendant – Defendant resentenced – Defendant ordered to pay the Prosecutor's costs of the appeal as agreed or assessed – Prosecutor seeks moiety of penalties – appropriate to order moiety of penalties (50%) to be paid to the Prosecutor
PRACTICE AND PROCEDURE – application to trial judge to certify recusal decision as a proper one for determination on appeal – whether recusal decision is an “interlocutory judgment or order” within meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for stay of proceedings pending determination of appeal of recusal decision to the Court of Criminal Appeal – applications dismissed.
COMPULSORY ACQUISITION – claim for compensation for compulsory acquisition of freehold interest in land – determination of market value based on rate applied to portion of acquired property COMPULSORY ACQUISITION – claim for compensation for compulsory acquisition of leasehold interest in land – determination of market value based on rate applied to portion of acquired land – relocation costs payable for fit-out at new premises payable as disturbance – rent differential for temporary sites needed for relocation of business payable as disturbance
COURTS AND JUDGES – bias – application for recusal – apprehension of bias – attendance of person in chambers during trial – part heard trial – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide – “unconsciously compromised” – application dismissed.
PROCEDURE – order for access for expert to obtain evidence on neighbour’s land in contempt proceedings refused – whether application of privilege against self-exposure to penalty applies.
Judicial Review — Orders previously made in Class 4 proceedings for conditional validity of development consent — Declaration as to validity now sought under s 25C of the Land and Environment Court Act 1979 (NSW) — Statutory construction of the scheme for validating consent — Court orders substantially complied with — Declarations made — Costs reserved
PRACTICE AND PROCEDURE – contempt of Court – ex parte sentencing hearing – service effected on contemnor – whether there is an application to set aside the judgment and orders of the Court finding the respondent guilty of contempt – principles in relation to setting aside, or varying, a judgment order after it has been entered - discretionary power of the Court to set aside an undefended judgment
PRACTICE AND PROCEDURE — Notice of motion to further amend an amended application — Where amendment not prejudicial to respondents — Notice of motion granted
JUDICIAL REVIEW – Uniform Civil Procedure Rules r 59.10(3) – leave granted to extend time for commencement of proceedings – Environmental Planning and Assessment Act 1979 (NSW) s 4.16(3) – whether Council had power to impose deferred commencement condition upon modification – modification of development consent is not grant of development consent – declaration made that modification of development consent invalid
COSTS — Notice of motion to strike out or summarily dismiss certain contentions of a statement of facts and contentions in Class 1 appeal proceedings — Whether an order for costs is fair and reasonable — No order as to costs
PRACTICE AND PROCEDURE – application to transfer proceedings to the Supreme Court of New South Wales – application to strike out claims for relief which the Court does not have jurisdiction to grant – whether leave to commence out of time is required under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) – notices issued to attorneys-general under s 78B of the Judiciary Act 1903 (Cth) – whether s 71 of the Land and Environment Court Act 1979 (NSW) excludes transfer of environmental or planning claims to the Supreme Court – discretion to transfer the proceedings to the Supreme Court – pendent jurisdiction of the Land and Environment Court – ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) – whether claim for an “implied easement” is ancillary to the planning claim – power to grant easement relief under s 40 of the Land and Environment Court Act 1979 (NSW)
CIVIL ENFORCEMENT ‑ importation and placement of 15,000 cubic metres of asbestos‑contaminated waste ‑ Applicant seeks order for removal and remediation ‑ Respondent seeks six‑month adjournment to obtain development consent ‑ development prohibited ‑ adjournment refused ‑ site mapped as high‑risk flood‑prone land ‑ high risk to the environment ‑ no discretionary basis to refuse proposed remediation order ‑ declaration appropriate to be made ‑ remediation orders made CIVIL ENFORCEMENT ‑ storage of more than 150 vehicles on flood‑prone land ‑ activity prohibited ‑ Applicant seeks order requiring removal of vehicles ‑ Respondent seeks six‑month adjournment to obtain development consent ‑ no functional residence on the land ‑ vehicle storage activities incapable of characterisation as either “home occupation” or “home industry” even if there was a functional and occupied residence on the land ‑ no basis upon which vehicle storage activities could be approved ‑ consent not possible ‑ storage of vehicles on flood‑prone land risks downstream water pollution ‑ high risk to the environment ‑ appropriate to order the removal of vehicles ‑ Applicant accepts that up to nine vehicles could be stored on the land for repair or restoration ‑ no reason to refuse removal order ‑ appropriate to order removal of vehicles ‑ removal order made COSTS ‑ Applicant seeks costs of proceedings ‑ costs conventionally follow the event ‑ no disentitling conduct by Applicant ‑ Respondent ordered to pay Applicant's costs as agreed or assessed
DEVELOPMENT APPEAL ‑ proposed residential apartment building in R4 zone at interface with R2 zone ‑ steeply sloping topography ‑ development site at the top of the slope ‑ visual impact on immediately adjacent residences ‑ visual impact on immediately adjacent residences unacceptable ‑ setback from site of adjacent approved boarding house in R4 zone ‑ setback from site of adjacent approved boarding house in R4 zone unacceptable ‑ extent of proposed excavation adjacent to boarding‑house site combined with reduced setback inadequate for proposed landscaping ‑ proposed landscaping adjacent to boarding‑house site combined with extent of excavation results in unacceptable amenity impacts on a number of proposed apartments ‑ multiple separate reasons to refuse development consent ‑ appeal dismissed ‑ development consent refused
Encroachment — Application for transfer of land by encroaching owner — Exercise of discretion under Encroachment of Buildings Act 1922 (NSW), s 3(3) — Encroaching structure located in a heritage conservation area — Whether the encroachment should be removed
JUDICIAL REVIEW – council determination to construct synthetic grass playing field and stormwater mitigation - s 5.5 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – no failure of duty to inquire under s 5.5 – admissibility of expert evidence – construction of s 171A(4) of Environmental Planning and Assessment Regulation 2021 (NSW) – s 5.7 of EP&A Act – whether activity will significantly affect the environment – no failure to comply with s 5.7 – whether delegation duly exercised in approving the activity – summons dismissed
SENTENCE – contempt – guilty plea – failure to comply with consent orders – contempt not purged – principles of sentencing – serious contempt in relation to fire safety – whether the contemnor was aware of Court orders – reason for contempt – appointment of strata managing agent pursuant to s 237 of the Strata Schemes Management Act 2015 (NSW)
CIVIL PROCEDURE — Notices of Motion seeking summary dismissal or strike out of proceedings — Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28 — Whether reasonable causes of action disclosed — No reasonable causes of action disclosed
CIVIL ENFORCEMENT – application of Part 4 of Environmental Planning and Assessment Act 1979 (NSW) – whether existing use of allowing dogs off-leash on public beach intensified such that development consent required CIVIL ENFORCEMENT – application of Part 5 of Environmental Planning and Assessment Act 1979 (NSW) to resolution to vary arrangements allowing dogs off-leash on public beach permitting an activity – no review of environmental factors prepared as required when resolution made by council – review of environment factors subsequently prepared - whether relief should be granted
COSTS — Application for protective costs order limiting costs recoverable by either party — Judicial review of a decision to adopt an amendment to a provision of a national park management plan — Factors to consider in making protective costs order — Whether litigation brought in the public interest — Protective costs order made
DEVELOPMENT CONSENT ‑ declaration sought that consent had commenced by virtue of s 4.53(4) of the Environmental Planning and Assessment Act 1979 (the EPA Act) ‑ works relied upon as causing commencement were geotechnical borehole drilling ‑ conditions of consent required preparation of traffic management plan prior to the commencement of any works ‑ consideration of whether condition required to be satisfied, prior to the carrying out of the works sought to be relied upon as constituting commencement ‑ satisfaction of the traffic management plan condition required to be effected prior to the carrying out of any works, including the works relied upon for the purposes of s 4.53(4) of the EPA Act ‑ application for declaration that the development consent has commenced dismissed
JUDICIAL REVIEW – challenge to grant of development consent for subdivision in rural area which created undersized lot with a dwelling entitlement transferred as part of boundary adjustment – council failed to form requisite state of satisfaction that potential for land use conflict will not be increased as a result of the subdivision – whether council resolution to approve subdivision and delegate imposition of standard conditions to CEO offended rule against indivisibility of function
SENTENCING – pollution of land – transportation of waste – offences against ss 142A(1) and 143(1) of the Protection of the Environment Operations Act 1997 (NSW) – guilty plea – self-represented defendant – defendant’s departure from statement of agreed facts – allegation of procedural unfairness –asbestos waste – importation of fill material not in accordance with waste classification certificates – allegation of recklessness – relevance of state of mind to offences against ss 142A(1) and 143(1) of the Protection of the Environment Operations Act 1997 – medium to high objective seriousness – prior criminality – offences committed for financial gain – planned or organised activity – no remorse shown by offender – need for specific deterrence – discount for plea of guilty on the first day of the trial – discount for totality principle
CONTEMPT: contempt for non-compliance with orders to remove unauthorised structures from land and to pay costs – proceedings heard ex parte – contempt proven – costs reserved.
CIVIL ENFORCEMENT – whether use of site for purpose of rural industry requiring development consent in rural zone for which no development consent – whether use of site for purpose of intensive plant agriculture or extensive agriculture in rural zone for which no development consent required - characterisation of activities of making, bottling and packaging of products on site using hemp plants grown on site CIVIL ENFORCEMENT – farm buildings not exempt development as fail to comply with specified separation distance and fail to comply with ridgeline control in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) CIVIL ENFORCEMENT – declarations of unlawful use of land and buildings made – orders postponed until outcome of two Class 1 appeals known
PRACTICE AND PROCEDURE – Notice of Motion to set aside part of notice to produce – proceedings relate to underlying zoning of acquired land – applicant sought documents from Class 1 proceedings of nearby land – whether flooding has the capacity to affect acquired land – legitimate forensic purpose – apparent relevance – Notice of Motion dismissed – access granted – costs
COSTS — Costs orders on successful motions to strike out proceedings sought against litigant in person — General rule that costs follow the event — Whether departure from usual costs rule justified — Whether litigation can be characterised as public interest litigation — Whether indemnity costs orders should be made — Whether more than one set of costs should be ordered
CONTEMPT: sentencing for contempt – breach of court orders – contempt ongoing – type of contempt – technical and wilful contempt – reason for contempt – awareness of consequences – whether environmental harm occasioned by contempt – early plea of guilty – some remorse demonstrated – good character – costs incurred taken into consideration – comparable cases – how to dispose of proceedings when contempt cannot be fully purged – monetary penalty imposed.
JUDICIAL REVIEW – s 155 of Mining Act 1992 (NSW) – remitter from Court of Appeal – scope of remitter – remitted to consider and determine the question of quantification of the compensation payable
ENVIRONMENTAL OFFENCES: private prosecution - defendants charged with multiple offences concerning the transport and deposit of waste material containing asbestos on land – whether summonses should be permanently stayed or struck out on the ground that the charges were commenced out of time – proper construction of phrases “evidence of the alleged offence” that first came to the attention of “any relevant authorised officer” – when evidence of the acts or omissions constituting some of the offences came to the attention of the relevant authorised officer –what constitutes a “continuing offence” – pollution of land offence not a continuing offence in these proceedings – except for summons charging defendant with the unlawful disposal of asbestos waste the summonses must be dismissed by reason of being time barred.
SENTENCING – environmental offences – s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – guilty plea – pollution of waters – mid-range of objective seriousness – large volume of sewage overflow – harm caused to the environment – subjective circumstances – prior convictions for environmental offences – good character – likelihood of reoffending – even-handedness in sentencing – appropriate penalty – publication order.
JUDICIAL REVIEW – challenge to the grant of development consent by the Independent Planning Commission (IPC) for an extension to an Underground Mine – whether the decision was legally unreasonable – whether interim findings were legally necessary to enable the IPC to make a legally reasonable decision – whether the statutory context required interim findings to be expressly made by the IPC – whether an inference should be drawn that the IPC’s assessment of impacts of the Extension Project could not be within the range of possible lawful outcomes as an exercise of power – whether Extension Project was in the public interest – Summons dismissed
DISCRETION ‑ development consent found to be invalid on two separate bases ‑ consideration of what should be the consequences ‑ Applicant for declaration of invalidity accepts that an opportunity to rectify the defects found by seeking a Building Information Certificate for the structures and development consent for the use appropriate ‑ First Respondent has lodged applications for these with the Second Respondent ‑ declaration of invalidity made ‑ orders made to provide for pathway to rectification of invalidity ‑ contingent order made for demolition but order suspended until approvals obtained ‑ if approval is obtained, demolition order discharged ‑ if approval is unable to be obtained, demolition required COSTS ‑ Applicant seeks costs of proceedings on ordinary basis ‑ no dispute as to Applicant’s costs entitlement ‑ First Respondent proposes that it, and Second Respondent, should be jointly liable for Applicant’s costs ‑ Second Respondent opposes imposition of any costs liability on it ‑ Second Respondent also proposes that, if costs liability is to be imposed on Second Respondent, costs should be apportioned ‑ Second Respondent had filed submitting appearance save as to costs ‑ consideration of responsibility for causes of invalidity ‑ Second Respondent solely responsible for one cause of invalidity ‑ Second Respondent independently considered the first cause of invalidity not relying solely on materials submitted by the First Respondent ‑ appropriate to make costs order that First and Second Respondents be jointly liable for the Applicant’s costs of the primary proceedings COSTS ‑ costs of supplementary hearings on discretion ‑ supplementary hearings solely as a result of First Respondent seeking variation to proposed dispositive orders ‑ Second Respondent plays no part in supplementary discretion hearings ‑ not appropriate that Second Respondent bears any of the Applicant's costs of the supplementary discretion hearings ‑ First Respondent to pay the Applicant's costs of the supplementary discretion hearings
QUESTION OF LAW – applications for summary dismissal of Class 1 proceedings - grant of floodplain harvesting (regulated river) access licence for lesser amount of unit shares of water than sought by landholder not a refusal of access licence – allocation of unit shares of water in floodplain harvesting (regulated river) access licence not a discretionary condition - Court lacks jurisdiction to determine purported Class 1 appeal made pursuant to s 368(1) of Water Management Act 2000 (NSW) – statutory construction of s 368(1) of Water Management Act 2000 (NSW) – costs order made in favour of successful respondent as legal issue determinative of proceedings not requiring assessment of merits
JUDICIAL REVIEW ‑ Ground 1 ‑ Council grants development consent for proposed motel ‑ development consent incorporates approval under the Local Government Act 1993 (the Local Government Act) to install multi‑room accommodation modular units transported to the site to provide accommodation for the motel ‑ whether modular units are “movable dwellings” as defined by the Local Government Act ‑ modular units not “movable dwellings” ‑ modular units are “buildings” requiring approval pursuant to the Environmental Planning and Assessment Act 1979 (the EPA Act) ‑ no approval given for “buildings” pursuant to the EPA Act ‑ development consent invalid on this ground JUDICIAL REVIEW ‑ Ground 2 ‑ provision in local environmental plan sets three criteria mandated to be satisfied for stormwater disposal from the site ‑ consent authority considered and was satisfied as to one of the three mandatory provisions ‑ no evidence the consent authority considered two of the mandatory provisions ‑ required state of satisfaction not demonstrated concerning two mandatory stormwater criteria ‑ failure to consider and reach required state of satisfaction of mandated criteria renders development consent invalid ‑ appropriate to make declaration development consent invalid on this ground JUDICIAL REVIEW ‑ Ground 3 ‑ local environmental plan requires that consent authority be satisfied as to availability of services ‑ requirement that services are or will be available ‑ satisfaction of the deferred commencement condition ensures mandated service (access to sewer for effluent disposal) will be available for issue of construction/occupation certificate ‑ consent authority imposes deferred condition of consent ‑ deferred commencement condition permits consent authority to reach mandated conclusion that sewage service will be available ‑ mandatory prerequisite satisfied - challenge based on availability of sewage services rejected DISCRETION ‑ parties agree questions of relief to be deferred to future hearing if invalidity established - directions to be given to set date of and timetable for separate hearing on relief as a result of invalidity of development consent COSTS - costs to be addressed at hearing on exercise of discretion
COSTS – whether costs should follow the event – allegation of disentitling conduct – model litigant obligations of Council – whether ordinary litigation – whether costs for loss attributable to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW) apply to Class 4 proceedings
PRACTICE AND PROCEDURE – interlocutory relief – interlocutory injunction – serious question to be tried – balance of convenience – undertaking as to damages – development control order to stop demolition works – whether dwelling is a draft heritage item – interlocutory relief granted.
JUDICIAL REVIEW – development consent granted – integrated development – general terms of approval granted – environmental protection licence application deemed to be refused – whether refusal lawful – whether Environment Protection Authority (EPA) obliged to issue licence – whether question of fit and proper person lawfully considered after grant of general terms – statutory interpretation – whether s 4.50(1) of the Environmental Planning and Assessment Act 1979 (NSW) overrides Chapter 3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) – s 7(2)(a) POEO Act – utility of relief – EPA power to revoke licence once granted – appeal dismissed
Judicial review – Aboriginal land claim – Minister’s decision to grant claim - claimable Crown lands - whether land claimed was lawfully used or occupied – land leased and subleased – whether sublessee’s use of land lawful – whether Minister misconstrued statutory provision or lease in deciding use not lawful – lessee’s submissions objecting to land claim – whether Minister owed lessee procedural fairness to consider submissions – whether Minister shown to have failed to do so
ENVIRONMENTAL OFFENCES: application to set aside summonses on the grounds that they were defective because they did not identify the precise dates of the alleged acts of unlawful clearing – whether some of the alleged acts of unlawful clearing time barred – whether the offence a continuing offence – whether if defective the summonses could be amended – whether amendment unjust – summonses not defective – summonses able to be amended.
COSTS ‑ successful appeal pursuant to s 56A of the Land and Environment Court Act 1979 ‑ appeal successful on the grounds not advanced before primary decision‑maker ‑ appeal grounds advanced and argued alleging error on behalf of the primary decision‑maker rejected ‑ majority of originally pleaded grounds abandoned ‑ ordered that there be no order for costs unless a party sought a variation to that position ‑ Applicant proposes variation to the effect that the Respondent pays the Applicant’s costs of the appeal ‑ proposed variation to be dealt with on the basis of written submissions ‑ written submissions provided for Applicant and Respondent ‑ Applicant also provides “reply” submissions that advance a completely new basis without leave or notice ‑ written submissions (including “reply” submissions) considered ‑ no basis to depart from original costs determination - application to vary original costs determination dismissed ‑ no order sought for consideration of costs’ variation application ‑ no order for the costs of the costs’ variation application
QUESTION OF LAW – chair of local planning panel not appointed by Minister administering Environmental Planning and Assessment Act 1979 (NSW) as approved independent person – validity of decision of planning panel to refuse development consent upheld in light of s 52(1) of Interpretation Act 1987 (NSW) – no contrary intention in Environmental Planning and Assessment Act 1979 (NSW) to exclude application of s 52(1) of Interpretation Act 1987 (NSW) in circumstances of case
COSTS – successful applicant in judicial review proceedings entitled to costs in absence of disentitling conduct – liability for costs of respondents who filed submitting appearance – consent authority liable to pay costs – beneficiary of development consent declared invalid not subject to costs order in circumstances of case
PRACTICE AND PROCEDURE – Notice of Motion to set aside part of Notice to Produce – documents lack forensic purpose – relevance of documents sought – paragraph 1 of Notice to Produce set aside
CIVIL ENFORCEMENT – s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) – where respondent carried out erection of retaining wall otherwise than in accordance with development consent – declaration made to ensure strict and full compliance with terms of development consent
JUDICIAL REVIEW: development standard – maximum building height – whether provision a development standard – whether jurisdictional preconditions met for the grant of development consent – whether requests for variation of development standard properly made – statutory construction – whether decision-maker formed the requisite state of satisfaction in granting consent.
COSTS - costs of stay application pending consideration of whether to appeal principal decision - stay granted - stay expired by effluxion of time with no appeal commenced - costs ordinarily follow the event ‑ no reason to “otherwise order” - Respondent ordered to pay Applicant’s costs of stay application and of costs application
JUDICIAL REVIEW – regulation – whether in excess of regulation-making power – regulation for or with respect to matters prescribed – whether inconsistent with primary statute or other statute – regulation prohibits certain activity except at certain places and in certain circumstances – whether inconsistent with permissive licensing scheme to grant licence for activity at any premises – regulation creates offence for carrying out activity – whether inconsistent with primary statute permitting activity – regulation requires refusal of licence for activity prohibited by regulation – whether inconsistent with other statute that precludes refusal of activity in certain circumstances – other statute prevails over regulation in event of inconsistency – regulation not invalid.
COMPULSORY ACQUISITION – compensation – construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 – determination of market value – decrease in land value caused by public purpose – advised of acquisition 12 months prior to acquisition – applicant ceased progress of construction – construction work not undertaken to be disregarded – determination of market value on basis work had continued – valuation methodology COMPULSORY ACQUISITION – compensation – assessment under s 59 of Land Acquisition (Just Terms Compensation) Act 1991 – disturbance – claim for multiple valuation reports – stamp duty – actual use of land – claim upheld under s 59(1)(f)
APPEAL — Section 56A of the Land and Environment Court Act 1979 (NSW) — Appeal against a Commissioner’s decision to refuse the imposition of an affordable housing condition when determining a development application in a Class 1 appeal — Whether the Commissioner misconstrued the applicable legislative scheme — Application of s 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) — Application of cl 6.8 of the Willoughby Local Environmental Plan 2012 and cl 10 of the State Environmental Planning Policy No 70—Affordable Housing (Revised Scheme) — Consideration of the Newbury tests in the context of the statutory provision — Errors of law found — Appeal upheld — Remitter order made
ADMINISTRATIVE LAW - review by Court of validity of complying development certificate pursuant to s 4.31 of Environmental Planning and Assessment Act 1979 (NSW) - extraneous communications cannot be used to construe complying development certificate - as complying development certificate does not identify purpose of use of shed permissibility under local environmental plan unknown – car park use prohibited - shed not ancillary to dwelling house – declaration of invalidity made JUDICIAL REVIEW – certifier’s decision that shed complying development unreasonable – complying development certificate lacks finality and is uncertain as architectural and engineering plans conflict on key matter – complying development certificate invalid because not issued with mandatory conditions required by State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
CIVIL ENFORCEMENT – unlawful erection of concrete walls without development consent – demolish works order not complied with – development consent granted for partial demolition of walls – development consent not complied with – breach of EPA Act and demolish works order found – appropriate remedy for breach – demolish walls in accordance with development consent.
ENVIRONMENTAL OFFENCES: carrying out development contrary to consent – unlawful transportation or depositing of waste – pleas of guilty – sentencing principles – extent of environmental harm – state of mind during the commission of the offences – whether state of mind of project manager could be attributed to company – totality principle applied – comparable cases – fine imposed – publication order made.
CIVIL ENFORCEMENT – compulsory acquisition of land – proposed acquisition notice – alleged breach of ss 186, 187 and 188 of the Local Government Act – whether authorised purpose of acquisition – public purpose – saleable development – licensed venue – premature acquisition – bare statement of public purpose – whether approval of Minister for Local Government is valid – whether Council misled the Minister as to public purpose – whether Council meeting in closed session ignored objection – period of negotiation under s 10A of the Land Acquisition (Just Terms Compensation) Act 1991(NSW)
ADMINISTRATIVE LAW – judicial review – planning proposal to amend Bega Valley Local Environmental Plan 2013 (NSW) – extension of time to commence proceedings under r 59.10(2) UCPR – Gateway Determination subject to conditions – decision to endorse planning proposal – decision to approve revised planning proposal – meaning of planning proposal – Minister’s power to make Gateway Determination under s 56 EPA Act – whether decision is ultra vires – whether relevant considerations taken into account – whether time for complying with condition of Gateway Decision renders planning proposal ultra vires – whether denial of procedural fairness
EASEMENT – grant of development consent by court for medium density residential development with stormwater to drain under public road to neighbouring private land – variation from approved development in volume of stormwater to be discharged – s 40(1)(a) applies despite need to vary development consent – exercise of discretion to find joinder of relevant parties not necessary – easement in pipe under public road does benefit applicant’s land - easement reasonably necessary for use of applicant’s land for medium density residential development – use of land not inconsistent with the public interest – appropriate compensation can be paid to servient tenement – exercise of discretion to make an easement with some variation of terms
LOCAL GOVERNMENT — Legal proceedings — Judicial review — Judicial review of council decision — Class 4 — Whether Council’s delegate had authority to determine the development application — Construction of the applicable instruments of delegation and sub-delegation and Council’s policy — Whether there had been a failure to consider mandatory matters and/or a constructive failure to determine the development application — Construction of development consent — Whether certain documents had been incorporated — Order made under s 25B(1)(b) of the Land and Environment Court Act 1979 (NSW) for further steps to be taken to validate consent
CIVIL ENFORCEMENT – s 9.46 of Environmental Planning and Assessment Act 1979 (NSW) – where first and second respondent filed submitting appearances – whether complying development certificate (CDC) is invalid – invalid CDC cannot be modified – declaration that CDC and modified CDC are invalid COSTS – indemnity costs – whether conduct of first and second respondent was reasonable – first respondent to pay costs on indemnity basis
CRIMINAL PROCEDURE – inquiry into fitness to stand trial – application of common law Presser Test – whether Defendant’s mental illness results in him being unable to participate in fair trial – expert evidence – assessment of Defendant’s cognitive capabilities – Defendant fit to stand trial
ENVIRONMENTAL OFFENCE: sentence – taking water contrary to a water approval – principles to be applied – offence inadvertently committed – harm occasioned by commission of the offence – whether offence could have been prosecuted in the Local Court – whether parity principle applies – fine – moiety – publication order – whether defendant ought to be named in notice – costs.
CONTEMPT OF COURT – sentence – plea of guilty- wilful contempt in failing to comply with development control order over lengthy period – contrition and remorse accepted – fine imposed – imposition of periodic fine suspended to provide final opportunity to purge contempt
JUDICIAL REVIEW – declaration – development consent has not lapsed – whether tree removal was construction work relating to the development consent – submitting appearance by Council – declaration where there is no proper contradictor COSTS – whether submitting appearance prevents costs order – whether costs should follow the event
VALUATION OF LAND – appeal against valuations by Valuer General – s 6A(1) of Valuation of Land Act 1916 (NSW) – valuation methodology – highest and best use for development of a ski resort – comparable sales and adjustments – impact of National Parks and Wildlife Act 1974 (NSW) – appeal allowed
ENVIRONMENTAL OFFENCES: plea of guilty to five offences concerning the unlawful extraction of water – applicable sentencing principles – whether offences committed intentionally, recklessly or inadvertently – environmental harm caused by the commission of the offences – whether proceedings could have been commenced in the Local Court – whether defendant suffered extra curial punishment by reason of adverse publicity – whether totality principle applies – whether parity principle applies – whether publication order should be made naming the defendant.
CIVIL ENFORCEMENT: whether Court has jurisdiction to grant declaratory relief in the terms sought in the summons – no jurisdiction to make declaration – whether the Court has jurisdiction to enforce a sentencing order of another court – no jurisdiction to compel compliance with order made by the Local Court – summons dismissed.
PRACTICE AND PROCEDURE – Pre-trial mention – Whether leave should be granted for agent to appear in Class 5 proceedings – Direction to seek pro bono legal assistance – Defendant seeks to vacate trial dates on ground of mental unfitness – Statutory test of fitness to stand trial not applicable – Common law test of fitness to stand trial – Fitness inquiry ordered – Fitness inquiry to be heard by separate judge of this Court – Pre-trial directions made in the event that the defendant is found fit for trial.
APPEAL ‑ Council issues Stop Use Order to Applicant requiring cessation of use of premises as a waste or resource transfer station ‑ Applicant appeals against imposition of the order ‑ existing development consent for use of the premises as a foundry ‑ Applicant contends that its use of the premises for recovery of metal and other materials falls within the use permitted by the foundry development consent ‑ Commissioner upholds Council's characterisation as a waste or resource transfer station ‑ Commissioner rejects Applicant's characterisation of its use ‑ Commissioner dismisses the appeal against the order, modifying its terms and ordering cessation of the Applicant's use within 28 days ‑ Applicant commences appeal pursuant to s 56A of the Land and Environment Court Act 1979 ‑ appeal based on five grounds said to reflect errors of law by the Commissioner ‑ operation of Stop Use Order stayed until determination of the Applicant's appeal ‑ at hearing of the appeal, the Applicant abandons three of the five grounds originally pleaded but seeks leave to add an additional ground asserting a further error of law on behalf of the Commissioner ‑ leave to rely on proposed added ground not opposed by the Council ‑ leave granted ‑Ground 1 alleges Commissioner wrongly construed 1979 development consent on too narrow a basis ‑ Commissioner committed no error in construing 1979 development consent ‑ Ground 1 fails ‑ new Ground 1A alleges inaccurate delineation of geographic scope of Stop Use Order renders it invalid ‑ scope of Stop Use Order can only apply to premises lawfully occupied by the Applicant ‑ Ground 1A fails - Grounds 2, 3 and 4 not pressed ‑ Ground 5 pleads that the material processed by the applicant was not waste ‑ the basis of this ground not raised before the Commissioner in the fashion advanced on appeal ‑ Council did not oppose determination of the ground ‑ material processed by the Applicant on the site not waste ‑ Ground 5 established ‑ appeal upheld ‑ Stop Use Order set aside. COSTS ‑ presumption costs follow the event in s 56A appeals ‑ ability to depart from presumption in appropriate circumstances - appropriate to depart from presumption as Applicant successful on basis not argued before the Commissioner ‑ no order for costs of the appeal unless some different costs order sought within 14 days of decision - if different costs order sought, determination to be on written submissions
CIVIL PROCEDURE — Registrars — Review of Registrar’s decision to grant joinder under s 8.15(2)(b)(ii) of the Environmental Planning and Assessment Act 1979 (NSW) in Class 1 appeal proceedings — whether in the public interest or in the interests of justice to grant joinder — where appropriate to exercise the Court’s discretion to vary and limit the Registrar’s decision — limited joinder upheld
CIVIL ENFORCEMENT – amount of compensation payable for land transferred to local council in 2007 pursuant to condition of development consent – condition requires compensation to be determined in accordance with Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – identification of public purpose – decrease in value of land transferred to local council as result of public purpose – hypothetical purchaser likely to consider hypothetical residential subdivision would be approved – appropriate valuation methodology – compensation awarded in amount sought by applicant
SEPARATE QUESTION ‑ Class 1 merit appeal ‑ application for determination concerning provisions of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) as to when a development application submitted through the NSW Planning Portal is to be regarded as “made” ‑ when the development application was to be taken as “made” determinative of whether a repealed State Environmental Planning Policy or its replacement State Environmental Planning Policy applied to the proposed development ‑ consideration of provisions of the Regulation - development application not “made” until lodged on NSW Planning Portal ‑ requirement that application fee be paid prior to development application being taken to be lodged ‑ fee not paid by date of repeal and replacement ‑ development application not preserved by savings provision in replacement State Environmental Planning Policy ‑ development application to be determined pursuant to State Environmental Planning Policy (Housing) 2021
SENTENCING — environmental offence — offences under s 91G(2) of the Water Management Act 2000 (NSW) — water taken in breach of approval condition — low range of objective seriousness — defendants pleaded not guilty — control over the cause of the offence — subjective circumstances of the defendants — need for both specific and general deterrence — determination of appropriate penalties — fines imposed with moiety to prosecutor — publication order made — orders as to costs
JUDICIAL REVIEW – public duty – no failure of NPWS to comply with duty in plan of management for Mimosa Rocks National Park – statutory construction of plan of management – no failure of duty to maintain two roads identified for public access – no requirement for NPWS to enable access to mean high water mark – summons dismissed CIVIL ENFORCEMENT – no failure of NPWS to comply with duty in plan of management for Mimosa Rocks National Park – statutory construction of plan of management – summons dismissed
PROSECUTION - apprehension of bias - application to trial judge to disqualify herself on grounds of apprehended bias – prior adverse credit finding made against defendant in unrelated proceedings -sentencing of defendant in light of criminal history undertaken - order for disqualification made
CIVIL ENFORCEMENT ‑ swimming pool fence significantly non‑compliant with the requirements of Swimming Pools Act 1992 and its regulations - property significantly neglected ‑ pool fence not childproof ‑ risk to public safety ‑ in 2021, Council orders rectification of defective swimming pool safety fence ‑ property owners failed to comply ‑ in 2022, Council commences civil enforcement action ‑ failure to rectify fencing in response to the commencement of civil enforcement action ‑ Council seeks orders for compliance ‑ Council also seeks substituted performance order to permit filling in of swimming pool if fencing not rectified by owners ‑ no appearance by owners at any interlocutory hearing ‑ substituted service orders made ‑ no appearance by owners at final hearing ‑ inspection of property on day of final hearing ‑ photographs taken and tendered ‑ oral evidence by telephone from inspecting officer ‑ photographs disclose unsafe nature of fencing ‑ photographs show property unkempt and vegetation which would permit climbing and access to pool area even if compliant fencing installed ‑ appropriate to order owners to install compliant fencing and remove vegetation within nominated time period ‑ appropriate to make substituted performance order to permit filling in of pool if continuing non‑compliance ‑ orders made COSTS ‑ costs conventionally follow the event ‑ no reason to depart from conventional position ‑ owners ordered to pay Council's costs of the proceedings
APPEAL - Appeal against the refusal of application for a construction certificate ‑ Acting Commissioner holds that development consent proposed to found the construction certificate had lapsed ‑ Applicant challenges Acting Commissioner’s conclusion as wrong at law ‑ Acting Commissioner concluded that contamination testing did not satisfy a condition of the development consent because the testing had not been carried out by the then owner of the site for the purposes of satisfying the development consent - carrying out contamination testing in satisfaction of the condition of the development consent relied upon by the Applicant as demonstrating the development consent had not lapsed ‑ condition required that contamination testing be undertaken ‑ purpose for which the relevant contamination testing was carried out ‑ carrying out of contamination testing which complied with the terms of the development consent condition as a matter of fact, in its scope sufficient to satisfy the condition no matter by whom and why that testing was carried out - appeal upheld ‑ directions given to permit construction certificate to be uploaded to the Planning Portal and the making of orders to finalise the proceedings COSTS ‑ costs in s 56A appeals follow the event - Respondent ordered to pay the Applicant's costs of the appeal
JUDICIAL REVIEW – challenge to approval of telecommunications tower – failure of consent authority to be satisfied of matters required under cl 4.6 of Gosford Local Environment Plan 2014 in considering application to vary cl 4.5 height of building development standard
PRACTICE AND PROCEDURE – judicial review proceedings – evidence – application under r 31.19 UCPR to adduce expert evidence at trial – reasonably required to resolve the proceedings – grounds of manifest or legal unreasonableness.
APPEAL - appeal against Commissioner’s decision in Class 1 proceedings - local environmental plan requires development on site to exhibit design excellence - the plan sets criteria for assessment of design excellence - plan also makes provision requiring a “competitive design process” - the plan also permits dispensation to be given from requirement for a “competitive design process” - Commissioner concludes proposed development demonstrates design excellence - Commissioner exercises discretion to dispense with “competitive design process” ‑ consideration of whether Commissioner’s exercise of discretion miscarried - no error in Commissioner’s exercise of discretion to dispense with “competitive design process” - appeal dismissed - Applicant ordered to pay Respondent's costs of the appeal
APPEAL ‑ proposed amendment to concept development approval ‑ Council raises jurisdictional and merit issues ‑ Applicant and the Council reach agreement on merit issues ‑ Applicant proposes method to resolve jurisdictional issue ‑ Council accents jurisdictional issue resolved ‑ application to dispense with compliance with maximum building height ‑ consideration of tests set by the cl 4.6 of the Hills Local Environmental Plan 2012 (the LEP) ‑ tests satisfied ‑ dispensation from compliance with maximum building height granted ‑ proposed consent orders ‑ necessary satisfaction on Council's jurisdictional contention found ‑ establishment of satisfaction with cl 4.6 tests ‑ appropriate to give effect to proposed consent orders ‑ orders made modifying concept development approval APPEAL ‑ development application for construction of development to give effect to concept development approval ‑ development application contingent on modification of concept approval ‑ concept approval modified ‑ certificate pursuant to cl 4(17)(5) of the Environmental Planning and Assessment Regulation 2000 provided ‑ other necessary documents provided ‑ cl 4.6 request granted ‑ cl 9.5(4) matters considered - development consent granted subject to conditions
APPEAL – s 56A of Land and Environment Court Act 1979 (NSW) – cl 6.21 of the Sydney Local Environmental Plan – proper construction of design excellence clause – whether Commissioner failed to have regard to mandatory requirements – cl 55 of Environmental Planning and Assessment Regulation – whether error of law in granting consent to amended DA where DA not lawfully amended – lack of owner’s consent at time unamended DA determined – whether Commissioner failed to give adequate reasons – appeal allowed and remitted to Commissioner – Respondent to pay costs
PRACTICE AND PROCEDURE – notice of motion – set aside notices to produce – forensic purpose – relevance to the issues in dispute – whether the notices to produce are oppressive – complying development certificate – landowner’s consent
ENCROACHMENT – ss 2, 3 and 4 of Encroachment of Buildings Act 1922 (NSW) – characterisation of encroaching owner and adjacent owner – Applicant encroaching owner – relief not available – discretion not exercised – application dismissed
CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Notice of motion to vary Registrar’s decision to refuse leave to adduce expert town planning evidence — Principles on review of a Registrar’s decision — Whether in the interests of justice to vary decision — Material change in circumstances — Motion granted
SENTENCING – environmental offence – guilty plea – contravene bore extraction limit condition of approval – water access licence – person other than the licence holder – water supply work and water use approval – objects of the Water Management Act 2000 (NSW) – water management principles –maximum penalty – objective circumstances – inadvertent and not deliberate breach – whether offence committed for financial gain – impact on other persons’ water rights – market value of water lost, misused or unlawfully taken – extent of harm caused or likely to be caused to the environment – reasonable foreseeability – control over causes that gave rise to the offence – whether offence committed during a severe water shortage – subjective circumstances – remorse shown by the offender – early plea of guilty – assistance to authorities – good character and no prior convictions – not likely to reoffend – principles of sentencing – proportionality – general deterrence – specific deterrence – denunciation and retribution – consistency in sentencing – comparable sentences – whether the offence should have been prosecuted in the Local Court – maximum penalty for the same offence in the Local Court – capacity to pay fine – payment of share of fine to prosecutor – penalty imposed – publication order
COSTS — Application by second respondent for costs in Class 4 proceedings — Second respondent joined to the proceedings by applicant — Where proceedings resolved without a determination on the merits — Where applicant and second respondent achieved in substance the desired result — Where fair and reasonable to make a costs order — Partial costs order made
INTERLOCUTORY ORDERS – stay of development control order – stop use – use not in accordance with development consent –– appeal against order – stay of order to allow limited use – partial stay granted
CRIMINAL APPEAL: penalty appeal against fines imposed by Local Court for the commission of two water pollution offences caused by failure to properly implement soil erosion and sediment controls – prosecutor conceded that fines imposed not warranted – pleas of guilty entered below – appeal by way of rehearing – appropriate sentence to be imposed – pleas of guilty entered below – offences committed recklessly – limited environmental harm caused by the commission of the offences – low objective seriousness – no prior convictions – genuine expression of remorse – specific deterrence warranted – application of totality principle – appeal upheld and lesser fine imposed. COSTS: who should pay the costs of the successful appeal – principles to be applied – each party to pay their own costs – costs order below undisturbed.
COSTS — Self-represented respondents — Application for costs in Class 4 proceedings — Where proceedings resolved without a determination on the merits — Where applicant did not act unreasonably in the commencement and maintenance of proceedings — Where applicant in substance succeeded, and would have succeeded in any event — Orders made that respondents pay 75% of applicant’s costs
INJUNCTION – ex parte application – serious question to be tried – balance of convenience – fill material contaminated with asbestos – prohibited development – interlocutory orders made
COMPULSORY ACQUISITION: flood prone vacant land acquired by the council for the public purpose of stormwater harvesting project – land constrained by easements and affected by traffic noise – highest and best use of the land is for rural-residential development – limited comparable sales evidence – adoption of hypothetical development approach –application of statutory disregard – claim that stormwater harvesting project either unfeasible or illegal irrelevant to proceedings – limited weight placed on valuation evidence of applicant because it was decades old and because no adjustments were made to comparable sales – no other valuation evidence provided by applicant – no town planning evidence relied upon by applicant – Court relied upon the town planning and valuation evidence provided by the respondent to calculate the compensation payable for the acquisition of the land.
CIVIL ENFORCEMENT- failure to comply with order issued by local council under Local Government Act requiring clean-up of residential property due to unsafe and unhealthy condition – declaration of failure to comply with LG order made – consequential orders made including that council can undertake work if LG order not complied with in 30 days – costs order made in favour of council
REMOVAL APPLICATION ‑ Applicant applies for consent for designated development ‑ submitter lodges objection ‑ Applicant appeals to Court against deemed refusal of development application ‑ submitter notifies Registrar exercising right to be a party to the proceedings ‑ Registrar records submitter as Second Respondent to Applicant's appeal ‑ Applicant files Notice of Motion seeking to have Second Respondent removed ‑ Applicant alleges notification to Registrar made after the expiry of the permitted statutory time period for such notification ‑ two possible dates when Council might be taken to have notified the submitter of the Applicant's appeal ‑ Applicant relies on earlier date for the commencement of the statutory period ‑ submitter relies on the later date for the commencement of the statutory period ‑ position advanced by the Applicant correct ‑ submitter’s notification to the Registrar made after the expiry of the statutory period ‑ administrative action taken by Registrar based on (incorrect) assumption conveyed by submitter ‑ appropriate to remove the submitter as the Second Respondent to the proceedings. JOINDER APPLICATION ‑ submitter applies to be joined as party to the proceedings ‑ submitter advances ten contentions proposed to be raised if joined ‑ consideration of whether any of the submitter’s proposed contentions raise matters which would otherwise not be sufficiently addressed - consideration of Council’s contentions ‑ submitter’s contentions different from those raised by the Council - one of the submitter’s contentions potentially warrants joinder as a party ‑ Applicant raises discretionary issues against joinder - Applicant's discretionary issues do not warrant rejection of joinder application ‑ submitter joined as Second Respondent based on identified contention ‑ once joined, submitter is a party for all purposes ‑ joinder ordered COSTS ‑ Applicant seeks order for costs of successful motion to remove submitter ‑ Council takes active role in supporting the submitter’s case resisting removal ‑ Applicant opposes submitter’s application to be joined ‑ appropriate costs outcome that each party bear their own costs of the hearing of the two motions unless some alternative costs order sought within 14 days of the date of the dispositive orders resolving the two Notices of Motion
CIVIL PROCEDURE — Applications seeking summary dismissal or strike out of proceedings — Application to file judicial review out of time — Jurisdictional error not established — Motion granted in that summons dismissed — PRACTICE AND PROCEDURE — leave granted to further amend summons clarifying civil enforcement claims
PRACTICE AND PROCEDURE — Notices of motion — Leave for application to rely upon amended summons granted — Notices of motion otherwise withdrawn and dismissed
CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre in breach of complying development certificate because operating as a shop – no impermissible shop use occurring in business zone CIVIL ENFORCEMENT – whether operation of pharmacy in medical centre as a retail pharmacy in breach of occupation certificate permitting medical pharmacy
INTERLOCUTORY INJUNCTION – principles applicable to interlocutory applications – no serious question to be tried – balance of convenience – whether there is risk of irreparable harm – the preservation of the status quo – prejudice to third parties – public interest – no undertaking as to damages – delay in making application – application dismissed – costs in the cause
SENTENCE ‑ charge of pollute waters ‑ overflow of sewage pumping station caused during repair of split rising main ‑ overflow of untreated sewage from pumping station into waterway ‑ Defendant convicted after trial on “not guilty” plea ‑ consideration of the extent of the environmental harm caused by the offending conduct - the offending conduct to be characterised as being toward but not at the lowest end of the low range of offending conduct - consideration of the appropriate starting penalty - a proposal that portion of the appropriate starting penalty be diverted to a local environmental project in the vicinity of the location where the pollution incident occurred - appropriate to order funding contribution for the environmental project - appropriate to order publication of a notice in the Daily Telegraph for educative and deterrence purposes - appropriate to order letter of apology signed by the Defendant's Managing Director to occupants of residences potentially adversely impacted by the additional pollution for which the Defendant has been convicted - no valid reason why the Defendant should not be ordered to pay the Prosecutor's costs of the proceedings with any dispute as to how those costs were to be disentangled from the overall costs of the liability proceedings to be addressed through a conventional costs assessment process - total monetary penalty of $200,000 of which $45,000 is to be paid to Fairfield City Council as a contribution toward the cost of the Quest Avenue Vegetation Swale Project proposed to be undertaken by that Council - a moiety of the residue of the financial penalty (being 50% of $155,000) to be paid to the Prosecutor pursuant to s 122 (2) of the Fines Act 1996
PROSECUTIONS - multiple charges laid pursuant to the National Parks and Wildlife Act 1974 and the Biodiversity Conservation Act 2016 (together the charge‑founding statutes) - charges required to be laid within two years of alleged offending conduct becoming known to an authorised officer - challenges to whether charges were laid prior to the expiry of the two‑year limitation period - two separate bases advanced by the Defendant as to why the prosecutions were commenced out of time - first basis that the day knowledge of the offending conduct coming to the attention of an authorised officer to be counted in the two‑year limitation period - second basis (if the first basis failed) was that the two-year time period expired on a Saturday and that the provisions of s 36(2) of the Interpretation Act 1987 (the Interpretation Act) were not available to the Prosecutor to extend the time for commencement of the prosecutions until the next available working day - question whether two-year limitation period included the day when the authorised officer became aware of the alleged offending conduct or whether that day was excluded from the two-year period - Defendant proposes that the day was included - inclusion of the day would mean that all the prosecutions were commenced out of time - day the authorised officer became aware of the alleged offending conduct not to be counted in the two-year period - consideration of whether the relevant provisions in the charge‑founding statutes ousted the operation of the Interpretation Act provision – time‑extending provision of the Interpretation Act not ousted - prosecutions all commenced within time - Defendant’s Notice of Motion dismissed
SENTENCE ‑ Defendant charged with three offences pursuant to s 144AA(2) of the Protection of the Environment Operations Act 1997 (the POEO Act) for transmitting information concerning waste during the course of dealing with waste where the information was false or misleading in a material respect and the Defendant knew that it was false or misleading ‑ Defendant also charged with one offence pursuant to s 144AA(1) of the POEO Act of transmitting information concerning waste during the course of dealing with waste where that information was false or misleading in a material respect ‑ Defendant pleads guilty to all four charges after eight day trial ‑ charges against Defendant’s sole director withdrawn ‑ consideration of objective factors concerning the Defendant's offending conduct ‑ consideration of the Defendant's subjective factors ‑ appropriate starting penalties for each s 144AA(2) offence of $330,000 ‑ appropriate starting penalty for single offence under s 144AA(1) of $165,000 ‑ consideration of appropriate discount for guilty pleas ‑ guilty pleas made late but not so late as to disentitle Defendant to some discount for the utilitarian value of the pleas ‑ appropriate discount to be applied to each penalty of 10% ‑ consideration of totality and accumulation of penalties where offences arose from a single course of conduct ‑ appropriate to moderate the penalties for the second and subsequent offences ‑ Prosecutor seeks publication order ‑ Defendant opposes making of publication order ‑ appropriate to make publication order ‑ Prosecutor seeks moiety of penalties imposed ‑ moiety order not opposed by Defendant ‑ moiety of penalties ordered to be paid to the Prosecutor ‑ total penalty imposed on Defendant of $943,650 COSTS ‑ Prosecutor seeks order for costs ‑ order for costs not opposed by Defendant ‑ Defendant ordered to pay the Prosecutor's costs of the proceedings against the Defendant as agreed or assessed
ENVIRONMENTAL OFFENCES: taking of water without a properly operating water meter – construction and use of a water supply work without a water supply work approval – plea of guilty – factors to take into account in determining sentence – whether environmental harm – actual and substantial harm to the regulatory scheme – whether offences committed knowingly and to what extent – whether offences committed recklessly – whether offender in control of the causes of the offences – whether offences committed for financial gain – contrition and remorse demonstrated to a limited extent – totality principle applied – comparable cases – whether an order pursuant to s 353B(c) of the Water Management Act 2000 appropriate – monetary penalty imposed – publication order – costs ordered
ENVIRONMENT AND PLANNING – Offences – Prosecutions – Six events of clearing native vegetation in contravention of s 12 of the Native Vegetation Act 2003 – Two events of clearing native vegetation in contravention of s 60N of the Local Land Services Act 2013 – 32 summons – Trial – Whether “clearing” – Whether “native vegetation” – Whether each defendant responsible for the clearing – Consideration of statutory defences – Mr Greentree and Auen Grain Pty Ltd found guilty – Proceedings listed to obtain sentence hearing date – Mr Harris and Merrywinebone Pty Ltd found not guilty – Summons stood over for entry of final orders
Review of Registrar’s decision – UCPR 49.19(1) – competency of Class 1 appeal where no development application attached – Appeal – not incompetent – failure to comply with request and direction to lodge development application – proceedings dismissed warranted – alternative power – s 61 of the CP Act – UCPR 12.7 – motion dismissed
SENTENCE - failure of Defendant to comply with Management Direction given pursuant to the Contaminated Land Management Act 1997 (CLM Act) - failure to comply for 352 days - compliance triggered by commencement of prosecution - plea of guilty - plea not entered on earliest occasion - was Defendant responsible for the contamination - Defendant responsible for contamination so higher maximum penalty attracted - maximum available penalty for the primary offending conduct $1 million - appropriate starting penalty of $200,000 - additional daily penalty of $66,000 available to be imposed - wilful failure to comply with Management Direction under CLM Act for lengthy period warrants imposition of a daily penalty ‑ daily penalty of $500 appropriate - daily penalty totals $176,000 - total starting penalty $376,000 GUILTY PLEA - discount to be given for late entry of guilty plea - 10% discount appropriate - penalties of $180,000 and $158,400 after discounts for guilty pleas TOTALITY AND ACCUMULATION - consideration of appropriateness of total penalty - total penalty appropriate to be moderated ‑ total daily penalty adjusted to $140,000 ‑ total penalties imposed of $320,000 COSTS - appropriate to order Defendant to pay Prosecutor's costs - Defendant ordered to pay Prosecutor's costs as agreed or assessed MOIETY - Prosecutor seeks order for payment of moiety (50%) of the penalty to it - payment of a moiety appropriate - Defendant ordered to pay Prosecutor 50% of each of the penalties imposed
PRACTICE AND PROCEDURE – criminal proceedings – orders sought by Prosecutor to set aside part of subpoena – whether lack of relevance or oppression – Prosecutor’s ongoing duty of disclosure – subpoena to be amended