Australia: Environment & Planning Update for NSW: December 2013

Planning Bill update

The long-awaited Planning Bill has not yet been passed by the NSW Parliament. The Upper House moved numerous amendments to the Bill, including removal of core reforms such as the introduction of code assessment. The NSW Government did not accept the amendments and has deferred debate until Parliament sits again next year. The NSW Government has announced that it will undertake further consultation before reconsidering the Bill in 2014.

Crown Lands Amendment

On 27 November 2013, the Crown Lands Amendment (Multiple Land Use) Act 2013 (CL Act Amendment) was passed and commenced. The CL Act Amendment aims to ensure that a secondary interest (a lease, licence, permit, easement or right-of-way) may be granted over a Crown reserve.

The CL Act Amendment addresses concerns raised about the legal validity of tenures granted over Crown reserves after the decision of the NSW Court of Appeal in Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2012) 194 LGERA 1. In that case, the Court upheld a decision of the NSW Land and Environment Court that Crown land reserved from sale for the purpose of "public recreation" was claimable Crown Land under the Aboriginal Land Rights Act 1989. In doing so, the Court of Appeal determined that an existing grazing licence over the land was unlawful because the scope of the power to grant the grazing licence was limited by the terms of the reservation and the licence was inconsistent or incompatible with the reservation.

The CL Act Amendment inserts a new section 34AA into the Crown Lands Act 1989 (CL Act), which provides that the Minister's power to grant a lease, licence, permit or easement (a secondary interest) over Crown Land is not limited by the reservation of that land under the CL Act. The Minister must, however, form the opinion that the use or occupation of the Crown reserve will not be likely to materially harm its use or occupation for the reserved purpose. That section also makes it clear that a secondary interest does not need to be for a public purpose and can be inconsistent or incompatible with the purpose of the reservation.

The amendments to the CL Act also:

  • provide for "validation" by the Minister of invalid secondary interests granted before the amendments (section 34AA(4) and (5))
  • limit challenges to the validity of secondary interests in Crown reserves until the Minister has been given notice of the alleged invalidity (section 35A)
  • extends the powers of the Minister to grant and validate secondary interests to a reserve trust (section 102B), and
  • extends the application of section 34AA retrospectively so that it applies to a secondary interest granted before that section began, and it is presumed that the Minister formed the required opinion that the use or occupation would not be likely to materially harm its use or occupation for the reserved purpose (clause 58, Part 7, Schedule 8).

These amendments to the CL Act will be important for councils that have been appointed as reserve trust managers over Crown reserves and for any other councils, developers or property owners that have leases, licences, easements or permits over Crown reserves.

Enforcement of provisions of the Swimming Pools Act

Lismore City Council v Hamshaw [2013] NSWLEC 204 and Lismore City Council v Hamshaw (No 2) [2013] NSWLEC 205

In the case of Lismore City Council v Hamshaw, the Council commenced proceedings against the Respondents for failing to comply with directions given under section 23 of the Swimming Pools Act 1992. In particular, the Respondents had failed to erect fencing separating the dwelling from the swimming pool and failed to comply with the Australian Standard for doors and windows opening directly to the swimming pool.

A building approval was granted for the construction of the swimming pool in 1985. The building approval contained conditions requiring fencing of the pool. On inspection, the Council found that an approved awning or patio on the property had been enclosed so that it provided an additional room to the existing dwelling with windows and doors facing the swimming pool. No fence had been constructed between the dwelling and the swimming pool.

The Council relied on sections 7 and 8 of the Swimming Pools Act that set out certain requirements for outdoor swimming pools. Section 30 of that Act provides that proceedings may brought in the Land and Environment Court for an order to remedy or restrain a breach of the Act. In the proceedings, the Council filed a number of affidavits regarding inspections of the property and attempts by it to require compliance (by issuing notices and directions) with sections 7 and 8 of the Swimming Pools Act, which in turn required compliance with the Australian Standards.

The Court was ultimately satisfied that a number of breaches of the Swimming Pools Act had occurred and made orders requiring the identified breaches of the Act to be remedied or restrained. Initially, the Court declined to make orders as drafted by the Council as those orders generally required compliance with the standards and left room for later debate as to whether they had been satisfied. The Court required the Council to specifically identify the work required to provide a fence or child-resistant barrier protecting the swimming pool, for two reasons:

"First, it is necessary that an order of the Court be capable of observance by the party upon whom an obligation is imposed without the necessity to apply for any further direction. Second, precision is required so that in the event of non-compliance and contempt proceedings are brought to secure compliance with the order, the extent of contempt, if any, can readily be determined."

The Court also determined that, despite the Swimming Pools Act requiring compliance with an earlier standard for pools constructed before 1 August 1990, the Court had broad powers to require compliance with the more recent standard, particularly where issues of child safety arise and where, as in this case, the breaches involved were "far from technical". The Council was directed to draft orders requiring specific works to ensure compliance with section 7 of the Swimming Pools Act and the current standard.

In addition to the orders to carry out the necessary works, the Respondents were ordered to pay the Council's costs.

The Court determined that it had no power by reference to the provisions of the Swimming Pools Act to make an order authorising the Council to carry out the necessary works if the Respondents failed to comply with the Court's orders.
Lismore City Council v Hamshaw is one of a few cases where the provisions of the Swimming Pools Act have been considered by the Land & Environment Court. Given the new requirements for registration and inspection of swimming pools and the recent number of drowning incidents in private swimming pools, enforcement of these provisions is important. Councils should also consider their potential exposure to liability in the event that breaches of the Swimming Pools Act are detected and enforcement action, such as the action taken in this case, is not progressed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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