In the media
Planning controls not keeping pace with online holiday
rentals
Australia needs new planning tools to manage the rapid
growth in listings on Airbnb and other online holiday rental
platforms, according to a new study by researchers at The
University of Sydney. The study found that in some areas of coastal
Australia online listings of holiday lets far exceed existing
tourism accommodation (26 September 2018).
More...
NSW
Road maintenance goes mobile for council
Lake Macquarie's mobile software system is helping
optimise asset management processes, helping both on-field and
office staff manage roads more efficiently. The app forms part of
the local government's digital economy strategy in which staff
are exploring ways technology can improve connectivity between
communities and the council (27 September 2018).
More...
New federal targets a great start on recycling
solutions
LGNSW President Linda Scott said draft targets to reduce
total waste by 10% per capita and divert 80% from landfill were
important first steps in developing a comprehensive approach to a
growing problem of how to grow recycling (26 September 2018).
More...
Tomorrow's transit: hub creates transport
solutions
The NSW Government is partnering with technology
innovators to tackle Sydney's transport woes by fast-tracking
customer-focused apps. Experts say that congested roads causing bus
delays and overcrowded and delayed trains worsened by inadequate
infrastructure are plaguing NSW's transport network (25
September 2018).
More...
In practice and courts
Building Better Regions Fund: Round 3
Regional tourism and local jobs are front and centre of
the latest round of the Building Better Regions Fund, with regional
Australia set to share in $200 million for local infrastructure and
community-building projects. Applications will close on 15 November
2018. Eligibility information and lodging applications available here.
Building up and moving out: House of Representatives
Standing Committee on Infrastructure, Transport and Cities
This report asserts that the successful development of
both cities and regions is intrinsically linked. Regional
development needs to be seen as part of a broader pattern of
national development, with cities, towns and regions being
developed as part of an integrated whole. This demands a high level
of coordination in planning and governance by all levels of
government. Parliament of Australia, 17 September 2018. More...
Gazetted: National Class 3 Drought Assistance Dimension
Exemption Notice 2018 (No.1)
20/09/2-18 - This Notice exempts eligible vehicles from
complying with certain dimension requirements when transporting
specified commodities for consumption by livestock in declared
drought affected areas. This Notice expires five years after
commencement. More...
NSW
NSW Government acts on community concerns over bike
share schemes
Many councils have raised concerns about the amenity and safety of
dockless services. The
Impounding Amendment (Shared Bicycles and Other Devices) Bill
2018, which passed through Parliament on Wednesday, empowers
councils to impound or move bicycles without notice or issue a
removal notice. Where operators fail to respond, they will be
subject to a court-imposed penalty of up to $2,750 or a penalty
infringement notice up to $500 (26 September 2018)
New dates for Environmental Planning & Assessment
Act Updates
Councils, certifiers and other industry practitioners have
more time to implement some of the recent EP&A Act updates.
Changes affect new provisions for
building and subdivision certification,
Local Strategic Planning Statements for councils in the Greater
Sydney Region and
Community Participation Plans. There will be a number of
changes that will involve further design and consultation from mid
to late 2018 outlined here
Cases
NSW
PSEC Project Services Pty Ltd v Kiama Municipal
Council [2018] NSWLEC 1501
APPEAL – development application – residential
flat building – consent orders – objections raised by
residents – height, bulk and scale – streetscape
– amenity and safety – overshadowing – view loss
– car parking – capacity of laneway.
Gungor v Canterbury-Bankstown Council
[2018] NSWLEC 1500
DEVELOPMENT APPLICATION: Ashbury Heritage Conservation
Area – dual occupancy – respecting traditional
character of Ashbury while facilitating healthy renewal –
significance of localised erosion of heritage character.
Balnaves Foundation Pty Ltd v Minister for
Planning [2018] NSWLEC 152
JUDICIAL REVIEW: whether an extension of time within which
to commence judicial review proceedings was required –
applicant seeking to set aside condition of consent –
extension of time to commence proceedings required –
applicant was two years out of time – reason for delay was
due to the applicant misguidedly seeking to resolve dispute by a
Class 1 appeal – no evidence of intentional delay of use of
Class 1 proceedings to circumvent time limit within which to
commence judicial review proceedings – no prejudice to
parties – application not opposed – public interest
demonstrated – fairly arguable case – finely balanced
but time extended – applicant to pay respondents'
costs.
Cole v Pilowsky [2018] NSWLEC
1495
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges –
obstruction of sunlight – consent orders – one tree not
situated on adjoining land – one of respondents' two
trees removed – no jurisdiction for orders.
Cumberland Council v Tony Younan; Cumberland Council v
Ronney Oueik; Cumberland Council v H & M Renovations Pty
Ltd [2018] NSWLEC 145
ENVIRONMENTAL OFFENCES – defendants charged under s
125(1) of Environmental Planning and Assessment Act 1979
(NSW) – offence of carrying out development
without a construction certificate where a construction certificate
was required – alternative charge of aiding, abetting or
procuring carrying out of offence – whether alternative
charge available CRIMINAL LAW – hearing on separate questions
before matters proceed to trial – whether proceedings brought
out of time – when evidence of the offence was brought to the
attention of an investigations officer – whether Land and
Environment Court has power to hear proceedings brought in relation
to accessorial liability pursuant to common law principles.
Sydney Advantage Investments Pty Ltd v Deep River Group
Pty Ltd T/as Precise Planning [2018] NSWLEC
151
JUDICIAL REVIEW - application for extension of time to
commence proceedings - arguable case established - adequate
explanation for delay - balancing interests warrants granting
extension - extension granted 21 September 2018.
Snowy Monaro Regional Council v Tropic Asphalts Pty
Ltd [2018] NSWCCA 202
ENVIRONMENT AND PLANNING – Consent –
Conditions – Construction – condition required
development to be carried out substantially in accordance with a
statement of environmental effects – whether statement
imposed a limit on the maximum daily production of a plant
ENVIRONMENT AND PLANNING – Offences – Prosecutions
– Practice and procedure – charges laid for breach of
conditions imposing maximum daily limits on plant operations
without specifying particular day – whether charges bad for
duplicity.
Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No
4) [2018] NSWLEC
149
JUDICIAL REVIEW - requests for statements of reasons -
document provided by Council not a statement of reasons - document
provided by Department not a statement of reasons of the
Minister's Delegate - documents rejected JUDICIAL REVIEW -
making of amendment of local environmental plan - provision of
zoning map with application for gateway determination - complaint
no zoning map provided - indicative layout plan provided - held
plan provided sufficient detail to satisfy statutory provision - if
plan did not do so, failure did not vitiate process for seeking of
gateway determination - Ground 1 rejected JUDICIAL REVIEW -
allegation of defective air quality report as part of public
consultation process - ground seeks impermissible factual review of
report's conclusion - report's conclusion not manifestly
unreasonable - Ground 2 rejected JUDICIAL REVIEW - failure of
Council to consider report lodged concerning desirable curtilage of
items listed as local heritage items in LEP - holding out that
report would be considered - circumstances of holding out limited -
circumstances not satisfied - unnecessary to consider if power to
waive requirement for timings of lodgement of submissions -
community consultation process did not fail as a consequence of
non-consideration of report - Ground 3 rejected JUDICIAL REVIEW -
alleged failure to consider likelihood of state heritage listing of
expanded curtilage - no basis to believe OEH would have advised
expanded curtilage being considered - statutory heritage listing
process not commenced prior to making of LEP amendment - expanded
curtilage not necessarily in conflict with rezoning - three
separate reasons to reject Ground 4 - Ground 4 rejected COSTS -
multiple respondents - potential for public interest challenge
argument available to Applicant - costs reserved.
Webb v Port Stephens Council
[2018] NSWCATAP 224
APPEAL – ADMINISTRATIVE LAW – access to
information about consultations by Council about objections to
development applications – public interest considerations
against disclosure – reasons in McEwan decision apply to
important factor relied upon against disclosure – other
decisions that Council did not hold information sought – no
justification for leave to appeal such decisions.
Molluso v Le [2018] NSWCATOD
158
LOCAL GOVERNMENT – elections – application to
Tribunal to dismiss councillor for irregularity in manner of
election – councillor alleged not to have been a
"resident" of the ward at the time of election –
whether address on State electoral roll alleged not to be the
residential address of the councillor is an
"irregularity" for the purpose of s 329 of the Local
Government Act 1993 (NSW) – whether the
date of election to civic office under that section is the date of
the declaration of the poll – whether the entry of an
elector's address on the State electoral roll identifies the
person's "place of living" for the purpose of ss 266
and 269 of the Local Government Act: WORDS AND PHRASES
– "irregularity" – "resident"
– "place of living" – "date of the
person's election" to civic office – Local
Government Act 1993 (NSW), ss 266, 269,
379.
Johnston v Wollongong City Council
[2018] NSWLEC 1331
APPEAL – development application – dwelling on
headland – coastal processes – precedent – visual
impact of the development on a prominent headland.
Soligo v Fairfield City Council
[2018] NSWLEC 1484
DEVELOPMENT APPLICATION: subdivision –
non-compliance with LEP standard, whether cl 4.6 of FLEP is
satisfied.
Wilson v MidCoast Council [2018]
NSWLEC 1489
APPEAL: modified development consent granted for a service
station and convenience store; appeal against the terms of a
condition of consent requiring a levy contribution under s 94;
whether the formula used to calculate the monetary contribution for
a petrol station and convenience store should include a discount
for passing trade trips; whether there is power to modify the terms
of the condition; whether the condition is unreasonable in the
particular circumstances of the case.
Legislation
NSW
Environmental Planning Instruments
State
Environmental Planning Policy (Exempt and Complying Development
Codes) Amendment (Inland Code) 2018 (2018-569) —
published LW 28 September 2018
Non-Government – 21 September 2018
Environmental Planning and Assessment Amendment (Short-term Rental
Accommodation) Bill 2018
Bills passed by both Houses of Parliament – 21
September 2018
Strata Schemes Management Amendment (Building Defects Scheme) Bill
2018
Bills passed by both Houses of Parliament - 28 September
2018
Impounding Amendment (Shared Bicycles and Other Devices) Bill
2018
Empowers councils to impound or move bicycles without notice or
issue a removal notice. Where operators fail to respond, they will
be subject to a court-imposed penalty of up to $2,750 or a penalty
infringement notice up to $500 (26 September 2018)
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
