JUDGMENT AND ORDERS – application to vacate hearing dates – hearing on a separate question ordered on hearing dates – hearing dates not vacated – respondents to take all reasonable steps to have Class 1 appeal concerning modification application heard and determined expeditiously – respondents to pay the applicant’s costs of the motion
NOTICE TO PRODUCE – Notice of Motion to set aside Further Amended Notice to Produce – whether there was a legitimate forensic purpose – whether it was on the cards that the documents sought would materially assist the applicant’s case – balancing of privacy and confidentiality concerns, the relevance of the material sought and the timing of issuance of the Notice to Produce with the burden imposed
PRACTICE AND PROCEDURE – criminal proceedings commenced alleging breaches of s 120 of the Protection of the Environment Operations Act 1997 (NSW) – motions by defendants seeking orders that each summons be quashed, set aside or permanently stayed – whether summonses patently duplicitous – whether summonses latently duplicitous – summonses patently duplicitous
JUDICIAL REVIEW – application seeking declaratory relief in relation to decisions made by the Minister and Council to prepare, certify and adopt the Great Lakes Coastal Zone Management Plan – whether the applicant has standing – whether the impugned decisions were unreasonable – whether there was non-compliance with the Coastal Protection Act 1979 (NSW) and Guidelines for Preparing Coastal Zone Management Plans – whether there was a deficiency of information for the Great Lakes Coastal Zone Management Plan – whether there was a rational basis for the risk assessment in the Great Lakes Coastal Zone Management Plan – application dismissed
JUDICIAL REVIEW – notice of motion seeking leave to rely upon amended summons – amended summons challenged two additional decisions more than three months after each decision was made – leave to amend granted
JUDICIAL REVIEW – identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 being land identified by State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP)) of “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” not a jurisdictional fact
JUDICIAL REVIEW – identification of 100-metre proximity area around coastal wetlands not a disproportionate regulatory approach
JUDICIAL REVIEW – CM SEPP not invalid because Governor did not approve “Coastal Wetlands and Littoral Rainforests Area Map” at time of making CM SEPP
JUDICIAL REVIEW – refusal by Northern Regional Planning Panel of site compatibility certificate under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 due to operation of State Environmental Planning Policy (Coastal Management) 2018 – whether State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP) or State Environmental Planning Policy No 14 – Coastal Wetlands and State Environmental Planning Policy No 71 – Coastal Protection apply due to transitional provisions – whether proximity area to coastal wetlands within coastal wetlands and littoral rainforests area for purposes of CM SEPP
CIVIL ENFORCEMENT – unlawful installation and construction of an On-Site Sewage Management System in contravention of conditions of an approval granted under the Local Government Act 1993 (NSW) – unlawful continual operation of On-Site Sewage Management System in contravention of conditions of an approval granted under the Local Government Act 1993 (NSW) – whether appropriate to grant declaratory and consequential injunctive relief by consent – relief granted
NOTICE OF MOTION – whether leave should be granted to the applicant to rely upon an expert report – motion filed shortly before commencement of the hearing of the substantive proceedings – leave granted to the applicant to rely upon expert report – leave granted to the respondents to rely upon further expert evidence in reply
SENTENCE - environmental offence - breach of condition of Environment Protection Licence - Defendant operated a waste facility at a significantly greater annual volume than permitted - plea of guilty - Prosecutor asserts factors of aggravation - causing of substantial environmental harm not established - offence committed for financial gain conceded by Defendant - causing harm to human health not established - traffic impacts of truck-queuing and any consequences of trucks being untarped prior to entry to the site not demonstrated to constitute a factor of aggravation - offending conduct assessed as being at the top of the low range for such conduct - full 25% discount for guilty plea appropriate - penalty to be paid to the Environmental Trust - publication order required - appropriate penalty after discount for guilty plea is $90,000 - Defendant to pay Prosecutor's costs as agreed or assessed (but subject to opportunity to parties to seek some alternative costs order)
ENVIRONMENTAL OFFENCE – sentence – offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – offender directed the lopping of trees contrary to a tree preservation order – plea of not guilty – determination of appropriate penalty
ENVIRONMENTAL OFFENCES – defendant alleged to have procured an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – defendant alleged to have directed the lopping of trees contrary to tree preservation order
PROSECUTION – criminal trial – defendant pleaded not guilty to environmental offence – whether established beyond reasonable doubt that defendant procured lopping of trees contrary to tree preservation order
ENVIRONMENTAL OFFENCE – Sentence – Radiation Control Act – Radiation Control Regulation – transport of radioactive substance – non-compliance with security plans – plea of guilty – objective seriousness of the offence – harm includes remote events – monetary penalty imposed – principle of totality – no publication order
APPEAL - proposed residential flat building development - development in flood risk area - unless removed, flood risk precludes granting of development consent - Council refused development consent on the basis, inter alia, of flood risk - Class 1 merit appeal - Applicant supported use of a deferred commencement condition to resolve flood risk and render the proposed development approvable - Commissioner concluded that, having regard to the flood planning clause in the Wingecarribee Local Environmental Plan 2010, use of a deferred commencement condition for this purpose was not permissible - Commissioner refused development consent on this basis - Applicant alleges error of law in Commissioner's conclusion - Applicant pleads four grounds in support of this appeal pursuant to s 56A of the Land and Environment Court Act 1979 - all four grounds rely on the Applicant's interpretation of an element of the flood-planning clause - Applicant's interpretation rejected - appeal dismissed - Applicant to pay Respondents costs as agreed or assessed
COSTS - application by Applicant to vary and expand upon costs order proposed in primary judgment - application for indemnity costs based on non‑acceptance of offer of compromise - offer incapable of lawful implementation if accepted - not a valid offer - no basis to award indemnity costs - application for costs order against Second Respondent - no proper basis to make costs order against Second Respondent - submissions that costs for substituted performance application to implement Order (1) of primary judgment should not be on the indemnity basis and that charged elements were excessive - submissions rejected - costs of substituted performance application for implement Order (1) of primary judgment appropriate to be ordered on the indemnity basis - appropriate to make a gross sum costs order for these costs - gross sum costs order made - partial success for both parties in costs proceedings - appropriate that there be no order for costs of costs proceedings
COMPLYING DEVELOPMENT CERTIFICATE - solar voltaic array erected in R4 Large Lot Residential Zone - array erected relying on complying development certificate issued pursuant to State Environmental Planning Policy (Exempt and Complying Development) 2008 - policy not available to permit construction of the array - complying development certificate invalid - second complying development certificate issued - second complying development certificate relies on State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array rendered permissible in the R4 Zone despite being otherwise prohibited - validity of second complying development certificate - issue of whether State Environmental Planning Policy (Infrastructure) 2007 rendered solar voltaic array complying development - construction of provision of State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array complying development - second complying development certificate valid - summons dismissed
CRIMINAL OFFENCES: whether commencement of criminal proceedings time barred — onus of proof — proper construction of statutory time bar — whether prosecutor had to elect which time period applied to commencement of proceedings — meaning of “any act or omission constituting the offence” —proceedings commenced within time.
PROCEDURE – appeal against stop work order in Class 1 proceedings – unilateral assumption of nullity of development consent and invalidity of construction certificates by local council underpinning stop work order – all issues arising should be determined in Class 4 proceedings
SEPARATE QUESTION – proposed separate question not dispositive of proceedings – necessity for expert evidence on separate question – likelihood of appeal of any determination of separate question – no significant saving of time – separate question not appropriate
PROSECUTION - amendment of charges - charges held to be duplicitous - application to amend charges - application seeks to substitute multi-count charges for single count in each instance - application to reopen amendment application - Prosecutor makes application to reopen - application to rely on affidavit and supporting material - objection by Company - Company submits supporting material unlawfully obtained - taking Prosecutor's case at its highest, affidavit and supporting material would not assist in establishing a basis to permit multi-count amendment - application to reopen refused - consideration of whether multi-count amendment would effect injustice on the Company - multi-count amendment would be unjust - Prosecutor seeks single-count amendment in the alternative in each instance - single-count amendments not unjust - single-count amendments within power - single-count amendments permitted
COSTS - parties equally successful on applications to amend - no order for costs
ENVIRONMENTAL OFFENCE – protection of the Environment Operations Act – pollution of waters – breach of license – plea of guilty – discharge of treated sewage effluent into Perisher Creek – objective seriousness of the offence – prior convictions – discount for early guilty plea – assistance to authorities – monetary penalty imposed – principle of totality – publication order made
JUDICIAL REVIEW – validity of complying development certificate titled “Masterplan CDC” for land zoned industrial – whether proceedings statute barred – staged development cannot be subject of complying development certificate – development subject of Masterplan CDC impermissibly designated development – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development
JUDICIAL REVIEW – validity of two modifications of Masterplan CDC – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development
CIVIL ENFORCEMENT – deposition of fill without development consent – unauthorised deposition of fill in neighbouring council reserves – inadequate or no sediment and erosion control measures in place for fill deposition
CIVIL ENFORCEMENT – operation of resource recovery facility on land without development consent
CIVIL ENFORCEMENT – water pollution – fill and sediment deposited in creeks in neighbouring council reserves – respondent owner was occupier and arranged for fill to be placed
CIVIL ENFORCEMENT – substantial remedial orders sought – exercise of discretion whether to make declarations and remedial orders where substantial delay in commencement of enforcement proceedings by council
APPEAL - proposed secondary dwelling - compliance with minimum allotment size requirements - proposal permissible pursuant to cl 22(4)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 - proposal prohibited by Appendix 4, cl 4.1AC of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - both State Environmental Planning Policies contain paramountcy clauses - paramountcy clauses to identical effect - neither paramountcy clause can prevail - determining which provision is to apply based on general principles of statutory interpretation - consideration of hierarchy of instruments - consideration of specificity of provisions - consideration of timing of the making of the conflicting provisions - more restrictive provision is later in time and considered to be more specific - proposed development in breach of minimum allotment size development standard
DEVELOPMENT STANDARD - beneficial and facultative provision in applicable Precinct Plan permitting dispensation from applicable development standard - no application to seek dispensation from applicable development standard - all town planning issues otherwise resolved - appropriate to permit Applicant the opportunity to consider whether to apply for dispensation from compliance with development standard - self-executing order to dismiss the development appeal if Applicant does not apply to seek dispensation from compliance with breached development standard
CONTEMPT – order pursuant to the Trees (Disputes Between Neighbours) Act 2006 for pruning of a hedge – height below which the hedge was to be maintained specified in the order – hedge pruned to that maximum height but permitted to grow before further pruning took place – contempt wilful but not contumacious – conviction appropriate – consideration of relevant factors meant small fine appropriate – Respondent fined $500
COSTS – no rule that costs in contempt matters be ordered on the indemnity basis – contempt proceedings uphold the integrity of the Court’s orders – reasonable that costs be ordered on the indemnity basis – appropriate to make a gross sum costs order – gross sum costs order made for $47,126.
COSTS – motion by applicant seeking orders that each of the two motions filed by the respondent be dismissed and an order that the respondent pay the applicant’s costs in relation to the motions on an indemnity basis – whether costs should be awarded in the applicant’s favour – motion dismissed – no order for costs
APPEAL - proposed medium density residential development - impact of development on views - amendment to proposed development provides appropriate amelioration of view loss from one potentially impacted dwelling - view impacts from other potentially impacted dwellings acceptable - impact on critically endangered ecological community known as Eastern Suburbs Banksia Scrub - protection of connectivity of endangered community with other remnant vegetation - redesign of development to improve conductivity - rehabilitation of portion of the site to re-establish endangered ecological community - balancing present loss of endangered ecological community with future increase in area through re‑establishment on portion of the site - future protection of endangered ecological community by public positive covenant in favour of the Council requiring Revised Vegetation Management Plan and Fire Management Plan - future benefits for endangered ecological community outweigh immediate impact - revised development appropriate to be approved subject to settlement of relevant documents including public positive covenant in favour of the Council - directions given to permit preparation of settled plans and documents as a basis for giving of development consent.
JUDICIAL REVIEW – construction of condition of development consent granted in 2004 concerning amount of material that can be extracted from quarry – no ambiguity in development consent condition
JUDICIAL REVIEW – variation of environment protection licence based on legal error – variation set aside
APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld
MINERAL CLAIMS - dispute concerning opal mining on three Mineral Claims in the Lightning Ridge region - arrangement between Applicant and First Respondent to undertake mining activities - arrangement based on profit share of opal won - Applicant to contribute mining equipment and labour whilst First Respondent contributed Mineral Claims - First Respondent unilaterally terminates arrangement - characterisation of the arrangement - arrangement was not a partnership - dispute as to terms under which the arrangement operated - First Respondent's version of terms for the arrangement not accepted - First Respondent's termination of the arrangement unlawful - not practical to reinstate arrangement - appropriate remedy to transfer one Mineral Claim to the Applicant - First Respondent ordered to transfer Mineral Claim to the Applicant
MINERAL CLAIMS - First Respondent holder of two Mineral Claims - issue of whether arrangement between Applicant and First Respondent extended to mining both claims or merely the first claim upon which mining had commenced - purported sale of one Mineral Claim to Second Respondent - sale a sham - arrangement between Applicant and First Respondent encompassed mining of both Mineral Claims - appropriate to resolve the dispute between the Applicant and First Respondent on the basis that the First Respondent retained ownership of one Mineral Claim and beneficial ownership of the second Mineral Claim.
MINERAL CLAIMS - First Respondent blockades Applicant’s mining equipment in underground workings - equipment detained for ~ 327 days - detention arose as part of dispute over unlawful termination of mining arrangement - claim for damages for detention of equipment - Applicant’s equipment detained unlawfully by actions of the First Respondent - opal mining inherently speculative and no proper basis available to calculate compensation for unlawful detention of mining equipment - compensation claim dismissed
MINING EQUIPMENT - specialist equipment known as a Super Digger used for underground opal mining - Super Digger owned by the Applicant - desire of the First Respondent to have similar equipment constructed for his own purposes - necessity to have Applicant’s Super Digger measured for those purposes - dispute between the Applicant and First Respondent over costs of works undertaken to the Super Digger - Applicant's evidence preferred - First Respondent ordered to pay $10,000 to Applicant
EVIDENCE - evidentiary conflict between Applicant and First Respondent - limited corroborative evidence - First Respondent's evidence untruthful or unreliable in a number of respects - evidence of Applicant to be preferred over that of the First Respondent unless First Respondent's evidence independently satisfactorily corroborated
COSTS - although Applicant not entirely successful, no basis warranting apportionment of costs - Second Respondent (nominal owner of one transferred Mineral Claim) played no active part in proceedings - appropriate to order that First Respondent pay the Applicant’s costs as agreed or assessed unless some alternative costs order is sought within 14 days
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the first earlier proceedings (concerning Court orders made in 2015) related to accumulation of waste on residential premises - unsafe outbuilding on the property - and potential safety risks arising from unconstrained vegetation growing over the roof of the dwelling on the property - orders made in 2015 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out - order for waste removal exhausted - order for removal of unsafe outbuilding not satisfied - order for removal of vegetation partially satisfied - challenge to ongoing validity of unfulfilled orders - unfulfilled orders remain valid - order that the respondents refrain from keeping further waste on the property - clear from the site inspection that that order has been breached and there is presently a significant accumulation of waste on the property - no current order that would permit access to the property to rectify the breach - appropriate to provide an opportunity for the Council to seek a further access order to rectify breach - proceedings adjourned to provide Council with an opportunity to seek access orders
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the second earlier proceedings (concerning Court orders made in 2018) related to accumulation of waste on residential premises - Court orders made in 2018 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out in February 2019 - Council serves notices of intention to undertake further waste removal following additional accumulation of waste since February 2019 clean-up - notices based on asserted continuing operation of Order 22A of table to s 124 of the Local Government Act 1993 issued to the applicants on 22 November 2017 - was the 22A Order for waste removal exhausted? - terms of order were to remove waste within 28 days - the 22A Order did not require those to whom the order was issued to refrain from keeping waste on the premises - the 22A Order is exhausted - no basis for the Council to rely on the 22A Order for further waste removal activities - declaration appropriate and orders to restrain the Council from undertaking further clean-up activities in reliance on the Order 22A issued to the applicants on 22 November 2017
COSTS - costs reserved.
ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved
ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved.
PRACTICE AND PROCEDURE – notice of motion filed by the applicant seeking leave to re-open case after receiving evidence and hearing argument in relation to an earlier notice of motion filed by the applicant seeking urgent interlocutory relief – motion dismissed
ENVIRONMENTAL OFFENCES: plea of guilty by a company to offence of contravening a condition of its environment protection licence – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – use of and weight to be given to the good character of an environmental offender - examination of comparable cases – purpose of a publication order – manner and extent of publication notice – publication order made – monetary penalty imposed.
CIVIL ENFORCEMENT – use of land as a place of public worship – existing use – characterisation of use – place of public worship – whether use has been expanded, enlarged or intensified – enlargement of use
ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’
LAND AND ENVIRONMENT COURT – Jurisdiction and Powers – Class 4 – Heritage Act – Interim Heritage Order – statutory authorisation – local council – statutory construction – conditions of minister’s authority under Heritage Act – discretionary powers – invalidity
INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – threatened species – flood risk – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – motion dismissed
NOTICE OF MOTION – deemed refusal of application to modify development consent which provided for use of land as a brothel subject to a two-year trial period – modification sought a continuation of the use on a permanent basis – motion filed by applicant to strike out sole contention in respondent’s statement of facts and contentions and vacate conciliation conference listed – motion dismissed – conciliation conference listing vacated
PROSECUTION – plea of not guilty to charge of unlawful clearing of native vegetation – three pre-trial applications by Defendant – order to stay part of charge period as authorised officer aware of clearing earlier than stated in amended summons – order that part of charge period statute barred as evidence does not disclose continuing offence – order preventing reliance on admissions by Defendant in related Class 4 and Class 1 proceedings – no orders made
PROCEDURE: application to set aside subpoenas and a notice to produce—whether oppressive—whether lacking any legitimate forensic purpose—applicable legal principles—application dismissed.
EVIDENCE: whether a claim for legal professional privilege or without prejudice privilege is a proper basis to set aside subpoenas and a notice to produce—exceptions to claim of privilege to communications made to further an illegal purpose—loss of privilege where joint-retainer—loss of privilege by reason of waiver—privileges not established.
ORDERS - enforcement - discretion - balancing of factors as to whether appropriate to require compliance - undertakings offered by Respondent - undertakings appropriate to circumstances - discretion exercised not to enforce orders - summons dismissed - presumption that costs follow the event - no basis to depart from that presumption - costs ordered in favour of Respondent
JUDGMENTS AND ORDERS – exercise of liberty to apply to enforce earlier orders made giving effect to strata renewal plan – appointment of trustee to one lot where non-compliance by owner with requirement to execute contract of sale of lot – costs considered
APPEAL - appeal against Commissioner's refusal of development application for seniors living project - appeal confined to question of law - Commissioner dismissed the development appeal on the basis of failure to satisfy a precondition set by State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (the SEPP) - matter not raised in the Council’s contentions - Applicant proposed a condition of consent to satisfy requirement - Commissioner's request for further submissions did not request submissions as to whether a condition could satisfy the requirements of the SEPP - Commissioner dismissed the appeal without providing the parties with an opportunity to make submissions as to why a condition could provide a proper basis to satisfy the provision - Applicant complains of denial of procedural fairness in circumstances where, in earlier unrelated proceedings, the same Commissioner had accepted a condition of consent in near identical wording to the proposed condition to satisfy the same provision in the SEPP - procedural fairness denied to the Applicant - appeal upheld
DEVELOPMENT APPLICATION - approval of the proposed development required a site compatibility certificate - without a current site compatibility certificate, the proposed development was prohibited - the proposed development had been given a site compatibility certificate but it had expired as at the date of this appeal against the Commissioner's decision - no basis upon which the Court would have power utilising s 39(2) of the Land and Environment Court Act 1979 (the Court Act) to consider whether to issue a fresh site compatibility certificate - in the absence of a current site compatibility certificate, there is no development application capable of approval - remitter to Commissioner futile - appropriate course to exercise power pursuant to s 56A(2)(b) of the Court Act to determine the proceedings by refusal of development consent - Class 1 appeal dismissed and proposed development refused development consent.
JOINDER - Notice of Motion seeking setting aside of costs order made concerning costs thrown away as a result of ex parte application requiring vacation of conciliation conference process - no basis to disturb costs order for costs thrown away made against moving party seeking joinder - application for joinder successful - applicant for joinder seeks costs of hearing at which joinder was granted - basis for consideration of costs application - application for costs to be determined on the basis of application of Land and Environment Court Rules 2007 requiring that it be “fair and reasonable” to make costs order in favour of successful party - not fair and reasonable to make costs order in favour of successful applicant for joinder - costs application dismissed
COSTS - costs of Notice of Motion seeking costs orders - costs’ proceedings not subject to “fair and reasonable” test in Land and Environment Court Rules 2007 - costs of costs applications usually dealt with on the basis that costs follow the event - no basis to depart from that position in these proceedings - applicant for joinder ordered to pay costs as agreed or assessed of the Applicant and of the First Respondent of the costs Notice of Motion
CRIMINAL OFFENCES: whether entry of guilty pleas amenable to correction under slip rule – application of slip rule to criminal proceedings in Class 5 of the Court’s jurisdiction – scope of slip rule – entry of plea of guilty not amenable to correction under slip rule because it is not a judgment or order of the Court.
BIAS: whether the judge hearing the notice of motion ought recuse herself on the grounds of apprehended bias by reason of prejudgement – test for apprehended bias – whether application for recusal should be adjourned to allow the party making the application the opportunity to obtain the transcript – application for adjournment refused – application for recusal dismissed.
CIVIL ENFORCEMENT – failure to comply with an order issued under s 124 of the Local Government Act 1993 (NSW) to remove accumulations of articles from outside a residential premises – further time granted to enable the parties to agree to a list of items for removal divided into nominated areas with associated deadlines – proceedings adjourned for the making of final orders – final orders made
APPEAL – refusal of development consent for water bottling facility at greater rate than approved in existing operation in rural landscape zone – greatly increased traffic impact on amenity and safety – impact of water extraction on natural systems
APPEAL – refusal of development consent for water bottling facility at greater rate than existing operation in rural landscape zone – increased traffic impact on amenity and road safety – impact of water extraction on natural systems
APPEAL – development control order to stop use of and demolition of unlawful tanks and pipes and limit extraction of water – exercise of discretion under s 8.18 of Environmental Planning and Assessment Act 1979
LOCAL GOVERNMENT RATING - system of categorisation for rating purposes - applications for re‑categorisation from business to residential - Council approves re-categorisation from 1 July 2017 - each application sought an earlier (but different in each proceedings) effective date for the re-categorisation - appeals against the Council’s operative date for re‑categorisation - range of issues, including jurisdictional ones, raised by the Council - consideration of whether, taking each case for the relevant owning company at its highest on jurisdictional and legal issues, it was appropriate, is a matter of discretion, to award the extent of retrospectivity which would arise from the operative dates sought by each owning company - as a matter of discretion, not appropriate to order earlier operative date for each re-categorisation - each proceedings dismissed with costs reserved.
CIVIL ENFORCEMENT: construction of a large garage on a concrete slab in a suburban neighbourhood absent necessary consent – whether garage and slab should be demolished – consideration of discretionary factors to grant relief sought – declaratory relief and demolition ordered.
APPLICATION TO VACATE – application made on first scheduled hearing day – prior warning of need for timely application if to be made – no valid complaints concerning service of documents – no valid basis for application to vacate – application dismissed.
ENVIRONMENT AND PLANNING - Land and Environment Court - Class 3 - valuation - procedure - notice of motion - subpoena - objection to production of documents or things - legal professional privilege - dominant purpose - access granted to some documents
ENVIRONMENTAL OFFENCES – executive liability offence - person concerned in the management of a company which caused a place to be used as a waste facility without lawful authority contrary to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW)
SENTENCING – appropriate sentence for the offence – determination of the objective seriousness of the offence and subjective circumstances of the defendant – lower level of objective seriousness – consideration of s 6 of the Fines Act 1996 (NSW)
CRIMINAL OFFENCES: voir dire as to the admissibility of a record of interview in criminal proceedings – whether evidence inadmissible by reason of a failure of the council to advise the accused of his privilege against self-incrimination as required under statute – whether accused required to answer questions or whether interview voluntary.
EVIDENCE: whether record of interview was illegally or improperly obtained – whether admissions contained in record of interview should be excluded on discretionary grounds.
COSTS – applicant non-profit association unsuccessful in judicial review proceedings challenging approval of concept plan and stage 1 works for Sydney Football Stadium – proceedings in public interest – two grounds of review important in legal and/or environmental sense – no countervailing circumstances – departure from usual costs rule that costs follow the event warranted – each party to pay its own costs
COSTS – applicant local council challenging approval of concept plan and stage 1 works for Sydney Football Stadium – one ground alleging failure to consider design excellence unsuccessful – proceedings in public interest – important ground of review – no countervailing circumstances – departure from usual costs rule that costs follow the event warranted – each party to pay its own costs
ENVIRONMENTAL OFFENCES: breach of environmental protection license condition – plea of guilty – incorrect calculation of emission rate of methyl bromide and phosphine during fumigation – sentencing principles – determination of the objective seriousness of the offence – no actual environmental harm – low potential for harm to the environment and human health – subjective circumstances of the defendant – no prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs ordered.
ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – discretionary – civil procedure - adjournment – applicant change of solicitors and counsel – dictates of justice – interlocutory relief – best endeavours of applicant – motion granted
CONTEMPT - carry out development without consent - Class 4 proceedings leading to orders to demolish and remove unauthorised development - orders not complied with - contempt proceedings commenced - First Respondent found guilty of contempt - further compliance orders made requiring First Respondent to demolish and remove material within further period of time - sentencing hearing deferred to permit First Respondent to comply with further order - substituted performance order made in favour of the Applicant - substituted performance order mandated the Applicant to demolish and remove if First Respondent did not do so - First Respondent failed to comply within further period of time - Applicant failed to carry out mandated substituted performance requirement - First Respondent and Applicant both in breach of court orders - sentencing hearing for First Respondent - Applicant seeks order to extend the time for mandated substituted performance - extension granted - no participation by First Respondent in sentencing hearing - First Respondent completes demolition and removal of unauthorised structures - Applicant no longer presses that the First Respondent be punished for contempt - Applicant proposes that, other than as to costs, the Applicant’s contempt motion be dismissed
COSTS - appropriate to order that the First Respondent pay the Applicant’s costs on the ordinary basis up to and including the sentencing hearing together with those of the finalisation hearing - not appropriate to require the First Respondent to pay the costs of the two hearings required to address the failure of the Applicant to carry out the mandated substituted performance order - appropriateness of a gross sum costs order to finalise the proceedings - the First Respondent ordered to pay the Applicant’s costs in the gross sum of $23,083.80.
CONTEMPT - Class 4 proceedings for development without consent - matter referred to mediation - Consent Orders setting timetable for removal of waste material and demolition and removal of unauthorised dwelling - orders included provisions for substituted performance - no compliance with removal orders by Respondent - Respondent charged with contempt - Council undertakes substituted performance to clean up the site and remove the unauthorised dwelling - consideration of the Respondent's subjective circumstances - appropriate starting penalty a fine of $15,000 - Respondent's plea of guilty - appropriate to give 15% discount for plea - consideration of Respondent's financial circumstances - regard had to the extent of the Council’s costs to be ordered to be paid by the Respondent - requirement for the Respondent to reimburse the Council for the costs of the clean-up - appropriate to permit the Respondent 90 days in which to reimburse the Council the costs of the clean-up - Respondent fined $1,000.
COSTS - appropriate to require the Respondent to pay the Council’s costs of the contempt proceedings on the indemnity basis - consideration of time to pay - appropriate to permit the Respondent 90 days within which to pay the Council’s costs - costs order made as a gross sum order pursuant to s 98(4)(c) of the Civil Procedure Act 2005
SENTENCING – pleas of guilty to four charges of emission of offensive odour from WestConnex construction site at St Peters – odour from exposure of leachate as result of road project requirements following heavy rain – offensive odours lasting several hours throughout neighbouring residential areas – mitigating factors considered
ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure - notice of motion - extension of time – commencement of proceedings – judicial review – development consent – exercise of discretionary powers – public interest – leave granted
SEPARATE QUESTION: whether to order a separate question – legal principles to be applied – question if answered negatively would be entirely dispositive of the proceedings – delay in making the application – substantial savings in costs and time – separate question ordered – parties not entitled to cease preparing for final hearing pending determination of separate question thereby causing potential vacation of hearing dates.
ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers –Discretionary powers – stay of proceedings – temporary – Notice of Motion to extend stay of orders to enable State Significant Development (SSD) process to be completed – ongoing breach of planning and environment laws – importance of upholding planning and environment laws – impact on the community – impact upon employees and third parties – Notice of Motion dismissed
DEVELOPMENT APPLICATION – appeal against Council’s deemed refusal of development application for demolition of existing structures and construction of shop top housing and residential flat buildings above commercial premises over basement car parking – cl 4.6 written request seeking to exceed the height development standard – consideration of further material and amended plans – appeal upheld – development consent granted subject to conditions of consent
DEVELOPMENT APPLICATION - seniors living development - development proposed for the site of Waverley Bowling Club - site compatibility certificate issued rendering development permissible - most merit issues resolved by agreement between the experts resulting in significant amendments to the proposal - amended proposal not compliant with development standards for height and floor space ratio in Waverley Local Environmental Plan 2012 (the LEP) - issue of whether or not State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, renders it unnecessary for there to be a request pursuant to cl 4.6 of the LEP to dispense with compliance with those development standards - request pursuant to cl 4.6 not required - remaining merit issue concerned the proposed height of a seven storey building in the northwest corner of the site - merit consideration of the contextual appropriateness of this building - building as proposed not acceptable - building to be rendered acceptable by removal of one residential level and reduction of the footprint of the penultimate residential level - appropriate to grant development consent when agreed revised plans and conditions provided - directions to permit this to occur
NOTICE OF MOTION – compensation claim in relation to loss or damage arising from right of access across the boundary between land and a road being restricted and/or denied – motion filed by respondent seeking strike out and dismissal under rr 14.28 and 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – paragraphs from Points of Claim struck out
PRACTICE AND PROCEDURE – notice of motion seeking leave under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) to commence judicial review proceedings out of time and expedition if leave granted – leave to file Class 4 Summons out of time granted – proceedings set down for final hearing on 4 October 2019
APPEAL - refusal of application for approval of boarding house pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) - issue of whether manager’s private open space complied with the SEPP - Commissioner held that the SEPP mandated refusal for non-compliance - ground of appeal that the Commissioner misconstrued the obligation under the SEPP - Council concedes ground made out - ground is made out - Commissioner also refused the proposed development on the basis that it did not demonstrate design excellence as required by cl 7.7(3) of the Blacktown Local Environmental Plan 2015 - two grounds of appeal asserted that Commissioner failed to give reasons for conclusion concerning design excellence - Council concedes grounds made out - grounds are made out - complaint that Commissioner denied the applicant procedural fairness concerning both manager’s private open space and design excellence - Council concedes ground made out - ground is made out - application for an exclusionary remitter on the basis the Commissioner would not bring an open mind to the matters of the manager’s private open space and design excellence - no basis to complain that the Commissioner could not bring an open mind to the issue of the manager’s private open space - reasonable apprehension to conclude that the Commissioner would not bring an open mind to the issue of design excellence - appeal upheld - exclusionary remitter ordered.
COSTS - costs ordinarily follow the event in s 56A appeals - Appellant entitled to its costs - application by the Council for a certificate pursuant to s 6(1AA) of the Suitors’ Fund Act 1951 on the basis that the Council did not cause or contribute to the errors forming the basis for the successful appeal - appropriate to order that the Council have a certificate if otherwise entitled
PRACTICE AND PROCEDURE – application for determination of separate questions – appealing the making of an Interim Heritage Order by Council – whether Interim Heritage Order valid – whether Council restricted from issuing Interim Heritage Order in circumstances where an Interim Heritage Order was previously made and revoked – substantive proceedings set down for two day hearing – no obvious saving in terms of costs and time for ordering separate questions – application refused
CRIMINAL PROCEDURE: application to vacate a criminal trial for the third time – senior counsel ill – junior counsel returned brief upon senior counsel becoming unavailable for the hearing – no evidence of any attempt made to obtain alternative counsel – accused legally represented by solicitor – insufficient evidence of impecuniosity of accused – application refused.
ENVIRONMENTAL OFFENCES – sentence – offences under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) – breaches of licence condition – failure to operate a pump in a proper and efficient manner which caused contaminated wastewater from dams to be discharged into a creek – pleas of guilty – determination of appropriate penalties
INTERLOCUTORY INJUNCTION - matters requiring consideration - concession by relevant Respondents that there were serious issues to be tried - status of plans for which construction is being undertaken, but which were not the plans for which the relevant construction certificate was issued - process by which new plans were “approved” by certifier without modification to the existing construction certificate or the issuing of a new construction certificate - requirement for a voluntary planning agreement prior to the issue of a construction certificate - no voluntary planning agreement entered into but a construction certificate issued - need for protection of the integrity of the planning system - no functional evidence of the extent of financial impact on the First and Second Respondents if an injunction was to be issued - appropriate to issue an injunction restraining further construction until further order
MATTER REFERRED TO REGULATORY AUTHORITY - issues arising from the evidence concerning the appropriateness or otherwise of the action of the building certifier appointed for the proposed development - copy of this judgement and relevant exhibits referred to the President of the Building Professionals Board
SECOND MATTER REFERRED TO REGULATORY AUTHORITY - possible stamp duties matters arising out of the evidence concerning the purchase price of the development site - oral and written evidence given that the purchase price of the development site was $23 million - transfer certificate shows that the declared purchase price was approximately $9.9 million - initial suggestion by witness that the balance was to be accounted for by the transfer of residential units in the development (when completed) to the vendor of the development site - attempts by the witness to withdraw this statement and offer alternative explanations for the discrepancy in the stated purchase prices - copy of this judgement and relevant exhibit referred to the Chief Commissioner for State Revenue
JOINDER APPLICATION - application by neighbour to be joined as Second Respondent to Class 1 appeal to be dealt with pursuant to s 34AA of the Land and Environment Court Act 1979 - issue arising from contention by the Council not likely to be pressed during conciliation process - only substantive issue between the parties - appropriate to join neighbour as Second Respondent
ENVIRONMENTAL OFFENCE – sentence – offence under s 12 of the Native Vegetation Act 2003 (NSW) – native vegetation cleared from 528 hectares of land otherwise than in accordance with a development consent or a property vegetation plan – offence within middle range of objective seriousness – plea of guilty – determination of appropriate penalty
PRACTICE AND PROCEDURE - Notice of Motion seeking to invoke Slip Rule to permit orders that a moiety of the fines imposed in the primary decision be paid to the Applicant - application of Slip Rule - power to award a moiety - orders amended/added to order payment to the Council of half of each fine imposed on the Respondent
JUDICIAL REVIEW – challenge to grant of development consent by Central Sydney Planning Committee for podium building in the Sydney CBD – no failure in consideration of cl 4.6 application for variation of a floor space ratio development standard – no failure to consider various provisions of Sydney LEP – no failure to comply with notification requirements – no failure to consider the public interest per s 4.15(1)(e) of EPA Act – no failure to take into account cumulative impacts of multiple departures from Sydney LEP – summons dismissed
JUDICIAL REVIEW – challenge to validity of a Development Control Order issued to the landlord of premises – alleged unlawful works carried out at hotel premises – heritage considerations – denial of procedural fairness – whether removal of render on a wall to create a depiction of a flag is “development” – invalidity on the face of the Order – Wednesbury unreasonableness.
CIVIL ENFORCEMENT: declarations sought as to value of lots of land dedicated to or acquired by Council for public purposes – three lots of land transferred to Council pursuant to condition of development consent for a subdivision – determination of value of two of the lots of land – question of liability to pay compensation for the third – highest and best use – hypothetical development scenario – claims for stamp duty – undertaking of Council to pay compensation – construction of condition of development consent – alternative claims for relief discontinued.
ENVIRONMENTAL OFFENCES: sentencing – breach of condition of Environmental Protection Licence – waste recycling facility – waste in excess of prescribed limit received and processed at facility - plea of guilty– sentencing considerations- low to medium objective seriousness - offence committed negligently – no actual environmental harm –– no prior convictions – assistance to authorities – contrition and remorse – order to pay Prosecutor’s costs - order to pay penalty amount to the Environmental Trust – publication orders made.
OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused – clearing negligent – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence in low-middle range – subjective circumstances of the offender – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate fine – moiety of fine – costs
VALUATION OF LAND: Appeals against valuations by the Valuer General of a site occupied by a medical practice – subject premises one half of a single storey duplex – highest and best use – disputed potentialities – potential for site amalgamation with neighbouring properties – appeals allowed.
CIVIL PROCEDURE: application for the determination of a separate question – whether delay in the making of the application – Class 1 appeal to be heard imminently – separate question comprised gravamen of Class 1 appeal – no utility in determining separate question – no evidence of savings in time or costs if question determined separately – application refused – not fair or reasonable to make costs order.
DEVELOPMENT APPLICATION - proceedings arising on remitter from the Court of Appeal - proposed residential flat building in a precinct known as the Strathfield Triangle - proposed eight-storey development would breach the height of buildings development standard set by the City of Canada Bay Local Environmental Plan 2013 (the LEP) - neighbouring owner joined as Second Respondent to the proceedings - does proposed development satisfy applicable elements of cl 101 of State Environmental Planning Policy (Infrastructure) 2007 (the SEPP)? - proposed development fails to satisfy two separate elements in cl 101 of the SEPP, each failure preventing approval of the proposed development - should a request pursuant to cl 4.6 of the LEP for dispensation from compliance with the height of buildings development standard applicable to the site be granted? - cl 4.6 request does not demonstrate that the proposed development satisfies the first of the objectives for the height of buildings development standard and is to be refused on this basis - merit assessment of the proposed development - even if jurisdiction existed to permit merit assessment of the proposed development, the proposed development is unacceptable - proposed development refused - appeal dismissed
ENVIRONMENTAL OFFENCES: unlawful transport and disposal of waste – pleas of guilty – sentencing principles – application of De Simoni principle – relevance of offender’s state of mind where De Simoni applies – calculation of volume of waste deposited – actual environmental harm caused by the commission of the offence – potential environmental harm caused by commission of offences – offences committed intentionally – offences committed for financial gain – no prior convictions – no apology – cost of remediation substantial – appropriateness of extent of publication order – application of totality principle – monetary penalty imposed – remediation order made – publication order made.
CIVIL PROCEDURE: application for the determination of a separate question of law – question if resolved in favour of the council is entirely dispositive of the proceedings – delay in applying for the separate question – proceedings set down for two day hearing – substantial savings in terms of experts’ costs and legal fees if separate question resolved in favour of council – application granted.
CIVIL PROCEDURE: adjournment – application to vacate hearing dates in part-heard proceedings due to illness of one of the directors of the applicant – lengthy history of delay by applicant – applicant a corporate litigant in person – adequacy of medical evidence – capacity of remaining director of company to continue to run the proceedings if other director incapacitated – application to vacate reluctantly granted – consequential orders made.
PRACTICE AND PROCEDURE – application for separate question – residential development appeal – detached dual occupancy – access by shared right of way – whether consent of owners of right of way to development application is required – deciding question separately from other issues not justified
CIVIL ENFORCEMENT: Two premises used for warehousing and distribution – alleged breaches of conditions of historic development consents – construction of conditions of consent – concessions and admissions made by Respondents – rectification of past breaches – declaratory and injunctive relief declined, through lack of utility – Respondents ordered to pay Council’s costs of proceedings.
DEVELOPMENT APPLICATIONS – whether consent should be granted in respect of a Concept Development Application and a Stage 2 Development Application for the construction of a seniors housing development pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 on land zoned RE2 Private Recreation under the Randwick Local Environmental Plan 2012 – whether the size and scale of the proposed development is compatible with the local context – consideration of neighbourhood amenity and streetscape, design quality, design excellence and public interest – appeals upheld
JUDGMENT AND ORDERS – order to demolish and remove unlawful building – application to extend time in which to comply with order – demolition not commenced – applicant living in unlawful building – applicant injured and temporarily unable to commence demolition – order varied to extend time
COMPULSORY ACQUISITION: compensation payable for acquisition of two lots in St Peters – site used for landfilling and waste operations – hypothetical development concepts for highest and best use of Lot 2 – Discounted Cash Flow valuation methodology employed – claims for losses attributable to disturbance – claims for special value - claims based on agency – construction of s 59(1) Land Acquisition (Just Terms Compensation) Act.
ENVIRONMENTAL OFFENCES - two offences arising from a single pipe failure causing a spill of marine fuel oil into Gore Bay on Sydney Harbour - offences of water pollution and breach of an environment protection licence condition - guilty pleas entered at earliest opportunity - whether deficiencies in clean-up activities constitute a factor of aggravation - aggravation not established - extent of environmental harm - defendant’s subjective factors - licence breach offence more serious than water pollution offence - no need for specific deterrence - need for general deterrence - breaches to be characterised as being toward the top of the lower end of the range - principle of totality engaged as both offences arose from the same course of conduct – payments ordered to be made to the Environmental Trust
ENVIRONMENTAL OFFENCES - publication order - no dispute between the parties about the appropriateness of a publication order - disagreement as to terms of proposed notice - determination of appropriate terms - disagreement as to publications in which to publish - appropriate to require defendant’s conduct and results of prosecution to be drawn to a wide business audience - appropriate to include requirement to publish in the Australian Financial Review in addition to other agreed publications
ENVIRONMENTAL OFFENCE: pollution of waters – breach of environment protection license – plea of guilty – discharge of sewage effluent – sentencing principles – determination of the objective seriousness of the offence – extent of environmental harm – application of De Simoni principle – test for criminal negligence – whether criminally negligent – subjective circumstances of the defendant – prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs orders made.
NOTICE OF MOTION - application to rely on Amended Summons - application not opposed by active Respondents - leave granted - active Respondents granted leave to rely on Amended Points of Defence
NOTICE OF MOTION - application to remove Respondent - application to remove Premier of New South Wales as a respondent to the proceedings - were the rights and/or liabilities of the Premier engaged by the Applicant's Amended Summons - rights and/or liabilities of the Premier not called into question by the Amended Summons - was the Premier and otherwise necessary party to the proceedings - Premier not otherwise necessary party to the proceedings - Premier removed as a respondent to the proceedings
NOTICE OF MOTION - application to permit discovery - application for orders for discovery against the remaining active Respondents to the proceedings - question as to whether there were any matters genuinely in dispute arising from the Applicant's pleaded case that made discovery appropriate - concessions by active Respondents in Points of Defence limiting the nature of the matters in contest - proposed discovery not seeking to establish Applicant’s case as pleaded but seeking to establish whether there was any other basis upon which the Applicant could maintain a case - application for discovery a “fishing expedition”, and to be refused on this basis - question of whether the extent of the discovery sought was oppressive in light of the time and costs that would be necessary to respond to it - was the proposed discovery inhibiting of the just, quick and cheap resolution of the issues genuinely in dispute in the proceedings - breadth of discovery contrary to the objectives of the just, quick and cheap resolution of the issues genuinely in dispute in the proceedings - was the proposed discovery so broad as to encompass material sought to be discovered that could not possibly relate to the matters genuinely in dispute between the parties as pleaded in the Amended Summons - discovery sought too broad - three separate valid bases upon which discovery should be refused - motion dismissed
COSTS - no reason why costs should not follow the event - no costs appropriate for motion for leave to amend as no contest involved - Applicant (Respondent to Motion for removal of the Premier as a respondent) unsuccessful in resisting the Premier's removal - costs order appropriate on the removal motion - Applicant unsuccessful on application for discovery - no reason not to make costs order on discovery motion - two costs orders made
JUDICIAL REVIEW: validity of contributions plans – whether contributions plans exceeded permissible cap for monetary levies – whether contributions plans properly approved by council – whether contributions plans required review by Minister or IPART to be correctly approved by council – whether a failure to correctly approve contributions plans by council resulted in their invalidity – summons dismissed with costs.
COSTS: application for a protective (or maximum) costs order – applicable legal principles and relevant factors – whether matter in the public interest – whether costs proportional - unidirectional order sought – whether quantum of protective costs order sought enough – protective costs order made but amount increased.
OFFENCES AND PENALTIES – sentence – cutting trees without development consent – breaching condition of development consent to retain and protect trees – individual offender and his company – objective seriousness – low environmental harm – foreseeable risk of harm – practical measures to prevent harm – control over causes – offences of low objective seriousness – subjective circumstances of offenders – no prior convictions – prior good character – early guilty pleas – genuine remorse – assistance to authority – totality principle – adjustment of fines for multiple offences – s 10 order dismissing charge against individual offender – costs ordered
CONTEMPT: Disobedience of a series of orders of the Court to which the contemnor consented – pleas of guilty – failure to purge contempt, despite undertakings to the Court, and extensions of time – sequestration of the contemnor’s estate to ensure total compliance – fine – costs – indemnity costs.
OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused - clearing reckless – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence is low-middle range – subjective circumstances of offenders – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate individual fines – adjustment of fines for multiple offenders – director and company owned by director – reduction in individual fines – costs
APPEAL: appeal against a Commissioner’s decision on a question of law – Commissioner upheld an appeal against the refusal of a development application – imposition of s 94 contributions as a condition of consent – whether relevant contributions plans were correctly approved by the council – jurisdiction of Commissioner to determine whether contributions plans were correctly made in Class 1 proceedings – extent to which Commissioner was required to take judicial notice of and presume that the contributions plans were correctly approved – whether there was “evidence to the contrary” to rebut presumption that contribution plans properly made – Commissioner did not have jurisdiction to determine that contributions plans were not correctly made – whether new contributions condition should be ordered in lieu of remitter – appeal upheld with costs – matter remitted for rehearing before the Commissioner.
PRACTICE AND PROCEDURE – subpoena filed by defendant seeking production of draft reports prepared by expert retained by prosecutor – prosecutor claimed privilege over and objected to access being given to draft reports on the grounds of legal professional privilege – whether draft reports privileged – whether privilege waived – privilege claim upheld and access not granted
EVIDENCE – sentencing hearing for offence in breach of s 64(1) of the Protection of the Environment Operations Act 1997 – guilty plea entered – proposed exclusionary ruling – did Prosecutor’s written outline disclose intention to rely on evidence in breach of De Simoni principle – was proposed evidence unfairly prejudicial to Defendant – no breach of De Simoni principle – Defendant’s rights to raise future objections to Prosecutor’s evidence not constrained – proposed ruling rejected
DEVELOPMENT APPLICATION – whether land mapped “Biodiversity” in Ku-ring-gai Local Environmental Plan 2015 is “Environmentally sensitive land” within the meaning of Sch 1 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – whether proposed development in the public interest – appeal upheld
SEPARATE QUESTION - construction of statutory provision in Transport Administration Act 1988 potentially determinative of whether proceedings can be presently dealt with or whether they require to be postponed until the Sydney Metro line tunnel is actually constructed - separate question answered in the affirmative - affirmative answer to separate question does not require deferral of determination of one of the proceedings as the acquiring authority concedes the tunnel under one premises is sufficiently complete to engage the necessity for further consideration of that application - necessity for consideration of a second separate question concerning statutory construction of the Act - matter set down for directions for settlement of second separate question and pre-trial directions concerning it
APPEAL – appeal from Local Court – appeal against conviction for environmental offence – failure to comply with clean-up notice – validity of clean-up notice – preconditions to issue of clean-up notice – subjective suspicion of pollution incident and suspicion is reasonable – authority did not form subjective suspicion – any suspicion not reasonable in circumstances – clean-up notice invalid – non-compliance with clean-up notice not proven – conviction set aside
COSTS - Class 4 proceedings - consent orders - outcome achieved by the Applicant by the consent orders substantially in accordance with that sought in the initiating Summons - costs follow the event absent disentitling conduct - no disentitling conduct - costs order appropriate - consideration of whether gross sum order appropriate - gross sum order appropriate - costs ordered in gross sum of $6,000.
ENVIRONMENTAL OFFENCE: pollution of waters – plea of guilty – discharge of sediment laden water into a drain – sentencing principles – determination of the objective seriousness of the offence – extent of harm – whether the rule in Browne v Dunn applies in criminal proceedings – consideration of the subjective circumstances of the defendant – no prior convictions – discount for early guilty plea – assistance to authorities – examination of comparable cases – monetary penalty imposed – costs order made.
APPEAL – appeal from Local Court – appeal against conviction for environmental offence – carry out reclamation work without permit – construction of retaining wall and concrete boat ramp on water land – whether involved “reclamation work” – meaning of “reclamation work” – whether works proved to involve reclamation work
APPEAL – appeal against a Commissioner’s decision on a question of law – application to modify development consent – precondition that modified development be substantially the same development as originally approved development – Commissioner not satisfied that substantially the same development – whether misdirection as to test to be applied – whether failure to consider relevant matter – whether considered irrelevant matter – whether failure to consider and give reasons for principal contested issue – whether finding without or against evidence – no error on question of law established
MINING – mining lease – grant in breach of statutory provisions – agricultural land objection made to granting mining lease – objection not determined before mining lease granted – mining lease invalid – whether declaration of invalidity needed – costs – whether indemnity costs warranted
PRACTICE AND PROCEDURE – civil enforcement proceedings alleging use of premises contrary to Environmental Planning and Assessment Act 1979 (NSW) – successful mediation resulting in undertaking – summons dismissed
PRACTICE AND PROCEDURE – application for leave to rely on amended summons and amended points of claim – pleadings embarrassing as vague – essential facts necessary for claim to succeed not identified – leave to re-plead granted
ENVIRONMENTAL OFFENCES – sentencing for five special executive liability offences arising from provision of false information in quarterly reports and annual return required by conditions of environmental protection licence
JUDGMENT AND ORDERS – judgment in accordance with parties’ agreement reached at conciliation conference – application to reopen proceedings after judgment – application to set aside judgment – application to set aside parties’ agreement – ancillary jurisdiction of Land and Environment Court – no basis to set aside judgment established – notice of motion dismissed
ENVIRONMENTAL OFFENCES: defendant charged with the unlawful carrying out of bulk earthworks contrary to the conditions of a project approval – proper construction of the conditions of the project approval – whether works carried out pursuant to the Project Approval or some other pre-existing consent – whether earlier development consents permitting bulk earthworks obviated compliance with the conditions of the Project Approval.
APPEAL – Class 1 appeal from deemed refusal of modification application which sought to amend condition of development consent – condition provided for payment of local infrastructure contributions - parties reached agreement as to determination of contribution and modified wording of condition – appeal upheld
ENVIRONMENTAL OFFENCES – sentencing – provision of false or misleading information to regulator on five occasions – fraudulent behaviour of employees giving rise to offences unknown to company directors – order made under s 10A of Crimes (Sentencing Procedure) Act 1999
ENVIRONMENTAL OFFENCES – sentencing – provision of false or misleading information – response to s 193 notice issued by Prosecutor – fraudulent behaviour of employees giving rise to offence unknown to company directors – order made under s 10A of Crimes (Sentencing Procedure) Act 1999
COSTS – whether successful defendants in criminal proceedings entitled to costs orders against the prosecutor under s 257D(1) of the Criminal Procedure Act 1986 (NSW) – whether Land and Environment Court has power to award indemnity costs in criminal proceedings – defendants entitled to costs on the ordinary basis only in respect of the s 125(3A) Summonses – no power to award indemnity costs in these proceedings
CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove at least half of the 2,600 cubic metres of waste on the site by 31 December 2017 - no waste removed by that date - no waste removed by 31 March 2018 when second undertaking subsumed the effect of the undertaking to remove half the waste - serious criminal activity directed at the Respondent - impact on Respondent significant ameliorating factor - perpetrators arrested in early February 2018 - no reasonable excuse after that time for failure to remove waste - Respondent pleaded guilty but not at the earliest occasion - consideration of the Respondent's subjective circumstances - fine appropriate for breach of first undertaking - Respondent fined $5,400
CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove all of the waste from the site by 31 March 2018 - no waste removed by that date - Respondent relocated to Queensland - relocation said by Respondent to be on the advice of the New South Wales Police - evidence from nominated police officer that no such advice was given - Respondent continued to run a range of business interests while relocated in Queensland - Respondent visited Sydney during period of relocation - no steps taken to commence waste removal process until after commencement of contempt proceedings - waste removal processors supervised by the Respondent personally in order to minimise costs of removal - removal staged to avoid transport of wet material - substantial additional cost savings achieved - during period of waste removal activities, Respondent travelled overseas on business - consideration of Respondent’s subjective circumstances - plea of guilty but not on the earliest occasion - serious, wilful contempt by breach of undertaking to remove the entirety of the waste by 31 March 2018 - specific deterrence needed under the circumstances in addition to general deterrence - substantial fine warranted - Respondent find $72,000
COSTS - Applicant seeks costs on indemnity basis - Respondent proposes that costs should be on an ordinary basis - Applicant public authority seeking to enforce the planning law - Respondent's contempt serious and wilful - customary position that, in such circumstances, Applicant would be awarded costs on the indemnity basis - no valid reason to depart from that position - Respondent ordered to pay the Applicant's costs on the indemnity basis.
APPEAL – appeal against Commissioner’s judgment on a question of law – whether Commissioner erred in failing to provide reasons for dismissing the appeal – whether Commissioner erred in confining her assessment of the applicant’s environmental planning grounds to only that part of the cl 4.6 request so headed – appeal upheld – matter remitted to Commissioner
ENVIRONMENTAL OFFENCES – sentencing – clearing of native vegetation – significant environmental harm – clearing deliberate and for financial gain – early plea of guilty – cost of compliance with remediation order not extra-curial punishment taken into account on sentence
DEVELOPMENT APPEAL - non-compliance with development standard (height restriction) - request pursuant to cl 4.6 of local environmental to permit breach of the standard - assessment of whether the request satisfies the mandated tests - satisfaction of mandated tests a jurisdictional prerequisite to consideration of merits - cl 4.6 request inadequate in several respects - request refused - appeal dismissed
PRACTICE AND PROCEDURE – Notice of Motion seeking expedition of s 56A appeal against a Commissioner’s dismissal of an appeal against Council’s deemed refusal of a development consent – expedition sought due to imminent expiry of Site Compatibility Certificate – Notice of Motion and s 56A Summons filed on same date – expedition refused
JURISDICTION OF COURT: development not designated development – whether a right of appeal in Class 1 of the Court’s jurisdiction – whether proceedings should be dismissed for having no reasonable prospects of success in circumstances where no right of appeal exists – proceedings dismissed – no order for costs.
ENVIRONMENTAL OFFENCE: pollution of waters – plea of guilty – discharge of partially treated sewage effluent into a waterway in a national park – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – prior convictions –discount for early guilty plea – assistance to authorities – examination of comparable cases – monetary penalty imposed – costs order made.
COSTS - applicants unsuccessful in judicial review proceedings - whether departure from usual costs rule justified - whether litigation can be characterised as public interest litigation - whether additional circumstances exist - whether there are any countervailing considerations - public interest not established
COSTS - successful respondents seek award of costs on indemnity basis - offer of compromise - offer to forgo costs - whether offer truly a compromise - relevance of alleged “little or no prospect of success” - whether conduct of proceedings unreasonable - applicants ordered to pay indemnity costs since offer date
APPLICATION TO RELY ON AMMENDED PLANS - Applicant to rely on amended plans - no opposition by consent authority - leave granted - costs to be paid to consent of costs thrown away as a result of the amendment
APPLICATION TO BE JOINED AS A PARTY - right of Crown (Department of Education) to appear pursuant to s 64(1) of Land and Environment Court Act 1979 - application for joinder separate and in addition to right of appearance - intention to raise issue in public interest where consent authority not raising issue - public authority acting in public interest not an issue of protecting private interests - in the public interest that the Department of Education be joined - no delay to hearing - no additional expert evidence required - Department joined as Second Respondent
APPEAL – appeal against a Commissioner’s decision on question of law – refusal of development consent to alter approved building – contravention of floor space ratio development standard – clause 4.6 request seeking to justify contravention – Commissioner not satisfied request adequately addressed matters in cl 4.6(3) – whether misconstruction of development standard – whether applied wrong test under cl 4.6(4)(a)(i) or (ii) – whether misdirection in applying cl 4.6 to development standard – whether misdirection concerning lack of adverse amenity impacts – whether misdirection concerning environmental planning grounds – error not material – Commissioner’s decision not vitiated
APPEAL – appeal against Commissioner’s decision on questions of law – concept development application – demolition of existing building and approval of envelope of replacement building – issue of whether existing building of heritage significance – Commissioner found building not to be of heritage significance – Commissioner preferred one witness over another – Commissioner found adaptive reuse not economically viable – Commissioner accepted only witness as not contradicted – adequacy of reasons for findings – alleged irrationality of findings – whether denial of procedural fairness in making findings – delay in judgment – whether delay affected findings
LOCAL GOVERNMENT - closed council meeting - councillor expelled by Lord Mayor - expulsion was for committing act of disorder (for calling the Lord Mayor a “clown”) - was conduct disorderly - conduct disorderly - was expulsion by Lord Mayor without resolution of council valid - expulsion invalid - no utility in bare declaration - no relief granted
LOCAL GOVERNMENT - closed council meeting - councillor makes comments about external legal advisers - were comments an act of disorder - comments a breach of cl 256(1)(e) of the Local Government (General) Regulation 2005 and thus an act of disorder
LOCAL GOVERNMENT - closed council meeting - meeting dealing with personnel matter - resolution that councillors return confidential papers and notes - was resolution valid - resolution valid
LOCAL GOVERNMENT - council meeting - resolution that councillor apologise for words said at previous meeting and for failure to return confidential papers and notes – were elements concerning failure to return confidential papers and notes acts of disorder - - those elements not acts of disorder – three valid elements in resolution were acts of disorder - councillor declines to apologise or return confidential papers and notes - councillor expelled for not doing so - was expulsion valid - expulsion valid
LOCAL GOVERNMENT - council meeting - resolution that councillor be removed from committees - resolution adopted after councillor had been expelled from meeting - was councillor required to be afforded procedural fairness and natural justice before removal - removal part of political process of council and no procedural unfairness or denial of natural justice before removal - removal also sanctioned by s 47 of Interpretation Act 1987 - removal from committees valid
LOCAL GOVERNMENT - council meetings - councillor expelled by resolutions of council for ongoing failure to apologise for original act of disorder - power to reactivate requirement for apology remains ongoing - expulsions from subsequent meetings valid
COSTS - limited success by Applicant not sufficient to depart from presumption that costs follow the event - Applicant to pay Respondent’s costs on ordinary basis
JUDICIAL REVIEW – proposal for amalgamation of local government areas – Minister’s referral of proposal to Departmental Chief Executive for examination and report– inquiry required to be held – Chief Executive appoints Delegate to conduct inquiry – whether reasonable public notice given of the holding of inquiry – whether identification of locations of public inquiry sessions adequate – whether inquiry sessions needed to be held in each area proposed to be amalgamated – whether inquiry held in accordance with Act – whether examinations and reports on proposals in accordance with Act – whether affected councils denied procedural fairness by Delegate – publicly accessible material in support of proposal represented that KPMG analysis and modelling was independent – whether representations misleading – whether allegedly misleading representations invalidated statutory process of amalgamation – whether failure to provide all KPMG analysis and modelling material meant the council was denied procedural fairness
WORDS AND PHRASES – requirement for local government areas proposed to be amalgamated to be contiguous – term not defined in legislation – meaning of contiguous – requirement of contiguous areas to be touching – statutory provision deeming extension of local government areas below low-water mark in certain circumstances – areas deemed to be extended – areas therefore contiguous
JUDICIAL REVIEW – proposal for amalgamation of local government areas – Minister’s referral of proposal to Departmental Chief Executive for examination and report– inquiry required to be held – Chief Executive appoints Delegate to conduct inquiry – whether reasonable public notice given of the holding of inquiry – whether difference between state-wide published notice and locally published notice was a material defect in the requirement for reasonable public notice – whether identification of location of public inquiry sessions adequate – whether inquiry held in accordance with Act – whether examination and report on proposal in accordance with Act – whether the Delegate misdirected himself on matters of rating equity – whether the Delegate misdirected himself on the need to consider the impact of all residents and ratepayers (including on those of an area proposed to be excised) – whether an affected council denied procedural fairness by Delegate – review and comment on Delegate’s report by Boundaries Commission – whether review conducted in accordance with Act – whether affected council denied procedural fairness by Boundaries Commission – publicly accessible material in support of proposal represented that KPMG analysis and modelling was independent – whether representations misleading – whether allegedly misleading representations invalidated statutory process of amalgamation – whether failure to provide all KPMG analysis and modelling material meant the council was denied procedural fairness – exercise of discretion where no utility in taking action based on sole ground made out proceedings dismissed
COSTS – reservation of costs in circumstances where applicant is partially successful but no remedy appropriate
NOTICE OF MOTION – whether proceedings should be dismissed in whole pursuant to the grounds in r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) – whether orders sought by the applicant are justiciable in these proceedings – proceedings dismissed – no order for costs
COSTS – applicant unsuccessful in judicial review proceedings – whether proceedings brought in the public interest – whether departure from usual costs rule justified – applicant ordered to pay the costs of the first and second respondents
SENTENCE – charge of unlawful clearing of native vegetation – plea of guilty – consideration of potential aggravating factors – substantial environmental harm a factor of aggravation – clearing carried out for financial gain a second factor of aggravation – consideration of defendant’s subjective factors – defendant’s lack of insight into his offending conduct demonstrates lack of contrition and remorse – no likelihood of reoffending – other subjective factors favourable to defendant – agreed remediation plan - consideration of other potentially relevant prosecutions – appropriate starting penalty just below the middle of the range – plea of guilty entered – not entered at earliest opportunity but of significant utilitarian value – discount of 22.5% on starting penalty appropriate – fine of $348,750 imposed
APPEAL – appeal against Commissioner’s decision on questions of law – development application to enlarge, expand or intensify existing use – proposal to erect new dwelling and decommission existing dwelling – significant adverse impact on terrestrial biodiversity – uncertainty and inconsistency in applicant’s evidence – applicant requested Commissioner give amber light – Commissioner did not give amber light and refused development consent – whether denial of procedural fairness by not giving amber light – Commissioner found development breached DCP controls – whether denial of procedural fairness by not giving opportunity to provide alternative solutions to achieve objects of controls – LEP provision setting factual preconditions before consent can be granted – whether LEP provision derogated from incorporated provisions for existing use – whether misdirection as to derogation test – whether conflation of LEP provisions and DCP controls – error on question of law not established
PRACTICE AND PROCEDURE – criminal proceedings commenced alleging breaches of conditions of development consent – motions by defendant seeking striking out of amended summonses – whether amended summonses duplicitous – summonses duplicitous
JUDICIAL REVIEW – State environmental planning policy – amendment of policy to make low rise medium density housing complying development – decision of relevant authority not to consult with Chief Executive of Office of Environment and Heritage – opinion that policy not adversely affect critical habitat or threatened species, populations or ecological communities or their habitats – whether decision not to consult miscarried in law – whether briefing notes and reasons legally inaccurate – whether misdirection, failure to consider relevant matters or manifestly unreasonable decision – decision not shown to have miscarried in law
EVIDENCE: whether expert accounting reports should be admitted into evidence in proceedings in Class 3 of the Court’s jurisdiction where the rules of evidence do not apply – assertions and assumptions presented as established facts – reasoning not elucidated – conclusions and opinions stated absent explanation or foundational basis – intemperate language used – scandalous allegations made in respect of another expert and expert report – whether expert lacking in impartiality and independence – report rejected.
EVIDENCE: admissibility of an expert report where the rules of evidence do not apply – applicable legal principles – whether the expert report breached the Expert Code of Conduct and civil procedure rules of the Court – expert withdrew report but later relied on it in joint conferencing – no revised or supplementary report issued by expert – whether expert sufficiently disclosed financial materials upon which calculation of loss was based – notwithstanding deficiencies in expert report, report admitted into evidence – weight to be accorded to expert report a matter for the Court.
MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling
MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation
COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council  NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour
COSTS - interlocutory processes - failure to respond to Notice to Produce - necessity for subsequent interlocutory attendances - reasons for failure to produce - reasons given did not excuse failure to produce - extent to which costs orders appropriate to depart from ordinary position that a party dispossessed of an interest in land would not face costs order - appropriate for a costs order to be made against applicant for Notice to Produce and consequent unnecessary interlocutory attendances - costs orders appropriate
COSTS - consideration of one interlocutory attendance - extent to which an issue concerning the terms of a confidentiality agreement weighs in costs for a specific interlocutory attendance - not appropriate for full costs to be awarded for that attendance - 75% of costs awarded
COSTS - timing of payment of costs - not appropriate to order immediate payment - appropriate order to make the awarded costs the Respondent’s costs in the cause
PRACTICE & PROCEDURE – Class 2 appeal against order issued under Local Government Act 1993 requiring repair of collapsed retaining wall on public land and claim for compensation – application to amend Class 2 appeal – amended application allowed including transfer of proceedings from Class 2 to Class 3 – amendment of statement of facts and contentions not allowed
ENVIRONMENT AND PLANNING: Prosecutions for failing to disclose political donations – pleas of guilty entered – sentencing principles – totality in sentencing – moieties to the prosecutor – publication orders – principles to apply – costs.
COSTS - Class 1 merit appeal - application by successful party for a costs order - “fair and reasonable” test in the Land and Environment Court Rules 2007 - matters in favour of a costs order balanced by matters weighing against such an order - costs order refused - costs ordinarily follow the event on costs applications - whether purported Calderbank offer provided basis to award costs of costs application on an indemnity basis - no basis to depart from award of costs on an ordinary basis - Respondent awarded costs of costs motion – cap placed on the recoverable costs of photocopying
ENVIRONMENTAL OFFENCES – sentence – offences relating to damaging and removing vegetation in land reserved under the National Parks and Wildlife Act 1974 (NSW) - determination of the objective seriousness of the offences and subjective circumstances of the offender – offences at the low end of medium objective seriousness for offences of this kind - consideration of ss 6, 122 of the Fines Act 1996 (NSW) – costs ordered
EVIDENCE: leave sought by first and second respondents to rely upon an affidavit served very late during the course of the hearing – applicable legal principles – reasons given for the delay inadequate - matter to be adjourned part-heard for five months in any event – first and second respondents agreed to pay the costs of the application and any costs thrown away – no real prejudice suffered by the applicant if leave granted in all the circumstances – leave granted – first and second respondent to pay the costs of the application for leave, all of the costs occasioned by the grant of leave, and any costs thrown away, on an indemnity basis.
JUDICIAL REVIEW – planning proposal to make local environmental plan – amendment to plan to remove properties as listed heritage items – variation of planning proposal to retain and not remove a listed heritage item – whether denial of procedural fairness – whether failure to consider relevant matter – whether manifest unreasonableness.
APPLICATION TO VACATE HEARING - late application - pending development application - public safety risks - if hearing vacated for a period, no appropriate early dates available for deferred hearing - public safety matters not adequately addressed - application refused
CIVIL ENFORCEMENT – erection of fence – applicant claims that fence has been erected unlawfully – whether fence is exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – whether restrictive covenant is set aside by planning instruments
INJUNCTION: application for an extension of interim injunctive relief – legal principles to be applied – serious question to be tried – potential for real harm to the environment and human health – usual undertaking as to damages given – balance of convenience favours the granting of further interim relief.
APPEAL: appeal against conviction and sentence from Local Court – alleged breach of noise abatement direction – in the court below the prosecutor did not adduce sufficient evidence to prove beyond reasonable doubt the elements of the offence –offence not proved beyond reasonable doubt – appeal upheld and conviction and fine set aside.
COSTS: inadequacy of evidence adduced by the prosecutor in the Court to prove beyond reasonable doubt the elements of the offence – whether this constitutes exceptional circumstances sufficient to warrant a costs order in the appellant’s favour – whether appellant entitled to a costs order under the relevant legislation for travel expenses and interpreter fees – appellant not entitled to travel expenses but entitled to interpreter fees.
INJUNCTION: urgent ex parte application for interim injunctive relief – legal principles to be applied – appropriate to proceed on an ex parte basis – serious question to be tried – potential for real harm to the environment and human health – usual undertaking as to damages given – balance of convenience favours granting of interim injunction for limited period of duration.
JUDICIAL REVIEW - development consent issued for Wallarah 2 Coal Project - development consent issued by Planning Assessment Commission (PAC) Panel - Applicant challenges the validity of development consent on 10 pleaded grounds
JUDICIAL REVIEW - Grounds 1 to 3 together - whether consent invalid by reason of failure to consider downstream greenhouse gas emissions - whether consent invalid by reason of failure to consider cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 - whether consent invalid by reason of failure to consider principles of ecologically sustainable development - adequacy of PAC reasons concerning greenhouse gas emissions - adequacy of PAC consideration of ecologically sustainable development concerning greenhouse gas emissions - PAC’s Determination Report discloses proper consideration of downstream greenhouse gas emissions - no obligation on the PAC to impose conditions on the project to address downstream greenhouse gas emissions - no failure to give adequate consideration to ecologically sustainable development - Grounds 1 to 3 rejected
JUDICIAL REVIEW - alleged failure to consider the impacts of a future Central Coast water supply pipeline (the pipeline) - necessity for the pipeline would arise to provide compensatory water to the Central Coast water supply only after mining progresses to Longwall 6N and beyond - development consent granted by the PAC does not approve mining of Longwall 6N and beyond - route of the pipeline (if required) not certain, although two options identified over land owned by the mine or by public authorities - other potential pipeline routes possible over private land but not identified - not possible to identify with any precision any pipeline route capable of being assessed due to the uncertainty of either the necessity for such a pipeline or the location of a preferred route - separate future application required to be made for a pipeline if mining is proposed to continue into Longwall 6N and beyond - condition valid - Ground 4 rejected
JUDICIAL REVIEW - failure to consider flood impacts - ground pleaded on four bases, two of which were abandoned - alleged failure to consider risks to the livelihoods of private property owners or of such owners being forced to sell their properties - degree of particularity to which the PAC was required to assess issues - matters remaining pressed of too greater degree of particularity to be considered beyond the extent to which the PAC addressed flooding impacts - Ground 5 rejected
JUDICIAL REVIEW - error of fact in relation to flooding impacts - PAC comment that development proponent had agreed to acquire flood-affected properties where remediation or amelioration was not possible - PAC misled by assertion to this effect in departmental project assessment report - flooding impacts condition of consent addresses basis for landholders to seek compensation for flooding impacts but does not impose any requirement concerning property acquisition - error of fact did not mandate the PAC to address the erroneous finding in the flooding impacts condition of consent - flooding impacts condition of consent delegates to the Secretary resolution of any issues which might arise concerning flooding impact compensation - flooding impact compensation issues will arise to be considered on the particular facts and circumstances of any specific compensation claim pursuant to the condition - no uncertainty invalidating the condition as a consequence - Ground 6 rejected
JUDICIAL REVIEW - Grounds 7 and 8 not pressed
JUDICIAL REVIEW - alleged failure to consider the risk to private water supplies - two elements pleaded in support of the ground abandoned - alleged failure by the PAC to consider the two bases remained pressed - allegation that consideration of the matters had been impermissibly deferred to determination by the Secretary - PAC did consider the complained of matters - condition sets out the framework for affected landholders seeking to claim compensation - flooding impact compensation issues will arise to be considered on the particular facts and circumstances of any specific compensation claim pursuant to the condition - no uncertainty invalidating the condition as a consequence - Ground 9 rejected
JUDICIAL REVIEW - alleged invalidity of water supply compensation condition - pleading that the condition impermissibly constrained landowners rights to compensation pursuant to other statutory entitlements not pressed - allegation of absence of power to impose a water supply compensation condition - pleading of Wednesbury unreasonableness of compensation condition - consideration of power to impose condition - power existed to impose condition - no submissions made in support of Wednesbury “unreasonableness” assertion - condition said not to relate reasonably to the development (second Newbury test) - condition reasonably relates to the development - Ground 10 rejected
ENVIRONMENTAL OFFENCES – contravention of Minister’s direction – taking water during embargo – taking water when metering equipment not working – sentence – objective circumstances – undermining statutory object to provide for sustainable and integrated management of water sources – undermining statutory scheme regulating distribution, sharing and taking of water – harm or likely harm to environment not proven – control over causes of offences – two offences committed during water shortage – offence of taking water during embargo committed recklessly – unlikely to reoffend – offences not committed for financial gain – medium objective seriousness of offence of taking water during embargo – low objective seriousness of offences of taking water when metering equipment not working – subjective circumstances – no prior convictions – prior good character – late guilty plea – remorse for offences – assistance to authorities – totality principle – monetary penalties imposed – payment of costs
PRACTICE AND PROCEDURE: Notices of Motion by each party against the other seeking to set aside “disclosure documents” – application for leave to “narrow” some of the categories of documents sought – principles to be applied.
INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – injunction refused
ENVIRONMENT AND PLANNING – civil enforcement – whether development being carried out for a prohibited purpose – whether appropriate to grant declaratory and injunctive relief with consent – relief granted – whether appropriate to grant an order for costs in an agreed amount – order granted
ENVIRONMENTAL OFFENCE – sentence – guilty plea – carrying out development prior to compliance with deferred commencement condition of consent – felling of native trees and shrubs – objective seriousness of the offence – subjective circumstances of the defendant
PRACTICE AND PROCEDURE – criminal law – application by prosecutor to tender short reply to expert report
EVIDENCE – criminal law – prosecutor sought to tender comments on expert report – whether relevant – whether defendant unfairly prejudiced by tendering comments – tender allowed
ENVIRONMENTAL OFFENCES: plea of guilty by a director of a company to offence of operating a waste facility without lawful authority – sentencing principles – determination of the objective seriousness of the offence – consideration of the subjective circumstances of the defendant – examination of comparable cases – monetary penalty imposed.
Judicial review – challenge to Minister for Planning’s grant of development consent to concept development application including Stage 1 demolition of Sydney Football Stadium – no failure to comply with mandatory public exhibition period – no failure to comply with Sydney Local Environmental Plan 2012 concerning design excellence – no failure to comply with State Environmental Planning Policy 55 Remediation of Land