Australia: Local Government News – 10 October 2018

Last Updated: 11 October 2018
Article by Gerard Timbs, Jenny Humphris, Joseph Monaghan and Peter Holt
Most Read Contributor in Australia, September 2018

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.

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Gerard Timbs
Peter Holt
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