In the media
Graeme Samuel to lead environment review
The Federal Government has commenced a once in a decade
review of Australia's environmental law to tackle green tape
and deliver greater certainty to business groups, farmers and
environmental organisations (29 October 2019).
More...
NSW
'Liveable and loveable': A new approach to
planning for Sydney
It sounds wishy-washy, but the Loveable City concept is
designed to encourage better urban planning (01 November 2019).
More...
Climate impacts from NSW mines - a local problem
requiring a local solution
The NSW Planning Minister introduced a bill into
Parliament that, if passed, will significantly limit the powers of
planning approval bodies in NSW to address the climate change
impacts of new coal mining projects (31 October 2019). More...
47 experts urge NSW Government to defend NSW law and
climate
47 scientists and experts have signed an open letter
urging the NSW Government not to overrule NSW laws that require
climate change impacts to be considered in the assessment of new
coal mines (30 October 2019).
More...
The next Barangaroo': Dramatic makeover of Central
to hide train lines
The redevelopment of land and "unfriendly railway
tracks" around Central Station will be the state's largest
urban renewal project (27 October 2019).
More...
Emissions legislation 'retrograde' and 'pure
politics'
The New South Wales Government has introduced legislation
to prevent the regulation of greenhouse gas emissions from
Australian coal burned overseas. The move came just days after the
Government launched a review of the Independent Planning Commission
(25 October 2019). More...
NSW building reforms 'step one of 100' to
restore confidence in sector
The government's long-anticipated building industry
reforms will provide "zero" help to owners of existing
faulty buildings in NSW, lawyers say (24 October 2019).
More...
Barangaroo remediation
The EPA has surrendered the Environment Protection Licence
held by Infrastructure NSW for the remediation work at Barangaroo
which has been underway since 2010 (23 October 2019).
More...
In practice and courts
Independent review of the Harbour Trust
The Sydney Harbour Federation Trust (the Harbour
Trust) was established in 2001. Its role is to
rehabilitate prominent former Defence sites on Sydney Harbour and
open them for public access as per the Sydney Harbour Federation
Trust Act 2001 (30 October 2019).
More...
The second independent review of the EPBC Act commenced
on 29 October 2019
The review will be led by Professor Graeme Samuel AC,
supported by a panel of experts. A report will be presented to the
Minister for the Environment within 12 months of commencement of
the review (28 October 2019). More...
NGER: Amendments to the National Greenhouse and Energy
Reporting Regulations and Auditor Instrument
On 22 October 2019, amendments came into force under the
National Greenhouse and Energy Regulations 2008 (the Regulations)
and the National Greenhouse and Energy Reporting (Auditor
Registration) Instrument 2019. Amendments to the
Regulations will not impact NGER reports due on Thursday, 31
October 2019.
Visit the
Audit Hub for more information on changes to the Audit
Framework (24 October 2019).
More...
Announcements, Draft Policies and Plans released 2019
NSW
NSW Fair Trading: Part 6 of the EP&A Act postponed
until 1 December 2019
The Part 6 provisions of the Environmental Planning and
Assessment Act have been postponed and will now start on 1 December
2019. This delay will allow time for the sector to adjust to the
regulatory changes that have been progressing around fire safety
and the Building and Development Certifiers Act 2018.
More...
State Environmental Planning Policy (Exempt and
Complying Development Codes) 2008 deferred
The Low Rise Medium Density Housing Code
has been amended to extend for a further short
period, until 31 October 2019. For landowners, pending
recommendations of the review, landowners in deferred council areas
will not be able to use the Code to lodge a complying development
application for dual occupancies, manor houses or terraces until 1
November 2019 (or 1 July 2020 in the City of Ryde).
More...
Queensland
Reef protection Bill passed by Parliament
The
Environment Protection (Great Barrier Reef Protection Measures) and
Other Legislation Amendment Bill 2019 was passed on 19
September 2019 with the new Reef protection regulations proposed to
come into effect on1 December 2019and rolled out over the next
three years.
Learn more about the new Reef regulations including the
draft standards for agriculture and what it means for new,
expanded or intensified industrial activities with sediment or
nutrient releases, and find out about the support and new funding
available.
Stage2 changes
Stage 2 commences on 1 July 2019 andintroduces the
remaining waste-related ERAs.
The information sheet
Fees for new waste environmentally relevant activities
(ERAs) details the new fees that applyfor
waste-related ERAs from the first anniversary day after 15 November
2019 or the next anniversary day ifthe environmental authority is
amended before 15 November 2019.
North Queensland Regional Plan
The
draft NQ Regional Plan is a 25 year strategic, statutory
planning document for the local government areas of Burdekin,
Charter Towers, Hinchinbrook, Palm Island and Townsville.
Consultation on the draft document closes on 22 November 2019. More...
Prosecution Bulletins
A selection of the department's enforcement actions
are summarised in prosecution bulletins outlining the facts and
outcomes of finalised prosecutions (October 2019).
More...
Cases
NSW
Agar Developers Pty Ltd v Woollahra Municipal
Council [2019] NSWLEC
1505
DEVELOPMENT APPLICATION – residential apartment
development – retention of mature trees – protection of
trees – stormwater drainage – desired future character
of Bellevue Hill North Precinct
Nielsen v Wingecarribee Shire Council
[2019] NSWLEC 1529
COSTS – judicial review proceedings –
principles governing exercise of discretion to order costs –
costs order made
Icon Construction Group Pty Ltd v Georges River
Council [2019] NSWLEC
1517
MODIFICATION APPLICATION – remove one level of
basement car parking and reduce the total number of off street car
parking spaces from 70 to 56 – conciliation conference
– agreement between the parties
Boyce v Inner West Council [2019]
NSWLEC 1521
DEVELOPMENT APPLICATION – boarding house –
breach of LEP height and FSR standards – whether cl 4.6
written request required in light of cl 29(4) of the State
Environmental Planning Policy (Affordable Rental Housing) 2009
– desired character – height transition to adjacent
development
Chief Executive of the Office of Environment and
Heritage v Somerville [2019] NSWLEC
155
CRIMINAL OFFENCES – whether commencement of criminal
proceedings time barred – onus of proof – construction
of statutory time – 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
Application by the Owners – Strata Plan No 61299
(No 2) [2019] NSWLEC
154
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
Zhiva Living Dural Pty Limited v Hornsby Shire Council
(No 3) [2019] NSWLEC
152
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
Byron Shire Council v Ardill Payne &
Partners [2019] NSWLEC
153
ENVIRONMENT AND PLANNING - Land and Environment Court
– practice and procedure – extension of time for appeal
– UCPR 50.3 - exercise of discretion – leave
granted
Grant Barnes, Chief Regulatory Officer, Natural
Resources Access Regulator v O'Haire
[2019] NSWLEC 158
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
Thomas v Randwick City Council (No 3)
[2019] NSWLEC 161
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
S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd
t/as Planners North (ABN 56 291 496 553) v Northern Regional
Planning Panel [2019] NSWLEC
156
PROCEDURE – leave to re-open case when judgment
reserved and rely on amended summons refused
Poletto v Mosman Council [2019]
NSWLEC 1513
DEVELOPMENT APPLICATION – dwelling alterations and
additions including additional storey – whether compliant
with LEP development standards of wall height and FSR –
whether clause 4.6 written requests required – side setback
non-compliances – bulk and scale – view impacts –
privacy impacts – streetscape impacts – whether
adjournment should be allowed for clause 4.6 request –
request for 'amber light' consideration
Fuller v Inner West Council
[2019] NSWLEC 1506
DEVELOPMENT APPLICATION – subdivision of one lot
into two – whether subdivision is consistent with existing
subdivision pattern
Saha Builders Pty Ltd v Ku-ring-gai
Council [2019] NSWLEC
1497
DEVELOPMENT APPLICATION – seniors housing
development – calculation of the rear 25 per cent setback on
an irregularly shaped parcel of land – whether the built form
of the proposal maintains reasonable neighbourhood amenity and
appropriate residential character
Northern Beaches Council v Tolucy Pty Ltd
[2019] NSWLEC 151
ENVIRONMENT AND PLANNING – Land and Environment
Court – practice and procedure – time for 56A appeal
– extension of time – exercise of discretion –
leave granted
Queensland
Cadmium Holding FW Pty Ltd v Gold Coast City
Council [2019] QPEC
51
PLANNING AND ENVIRONMENT – APPEAL – where
appeal against refusal of a development application seeking
approval for 111 townhouses – whether proposed development is
consistent with the preferred and intended settlement pattern
– whether proposed development is an appropriate land use
– whether the proposed development is an appropriate density
– whether the development application should be approved in
the exercise of the planning discretion. Planning Act 2016 Qld ss45
and 60; Planning and Environment Court Act 2016 Qld ss43 and 45
Irvine v Brisbane City Council [2019]
QPEC 50
PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of development application for demolition of a
dwelling house constructed in 1946 or earlier ASSESSMENT –
COMPLIANCE WITH THE PLANNING SCHEME – exercise of discretion
pursuant to s 60(2) of the Planning Act 2016 (Qld); Legislation
cited; Planning Act 2016 Qld; Planning and Environment Court Act
2016 Qld
Annandale v Cairns Regional Council
[2019] QPEC 49
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION
– DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS
AND AGREEMENTS – DECLARATORY PROCEEDING – where the
applicant's material change of use approval had lapsed –
where the period of approval was extended on two earlier occasions
– where the applicant failed to make an application to extend
the currency period of the approval before the lapse – where
the planning scheme's treatment of the bushfire risk assessment
of the land had changed since the approval was given –
whether the Court should excuse the failure to make an extension
application – whether the material change of use approval
should be revived and extended – where the respondent does
not oppose the application. Planning Act 2016 Qld s86; Planning and
Environment Court Act 2016 Qld ss11, 37, 76, 81; Sustainable
Planning Act 2009 Qld
Legislation
?Commonwealth
Environment
Protection and Biodiversity Conservation (Jabiru Town Plan)
Approval 2019
30/10/2019 - This approval is a town planning scheme for
the town of Jabiru in Kakadu National Park. This instrument was
made under subregulation 11.10(2) of the Environment Protection and
Biodiversity Regulations 2000 for the purposes of sections 388 and
389 of the Environment Protection and Biodiversity Conservation Act
1999 and subsection 8.2.7 of the Kakadu National Park Management
Plan 2016-2026.
NSW
National
Greenhouse and Energy Reporting (Auditor Registration) Instrument
2019
23/10/2019 - This instrument revokes the National
Greenhouse and Energy Reporting (Auditor Registration) Instrument
2018 and sets out the knowledge, qualifications and experience
requirements to be met by applicants for registration as greenhouse
and energy auditors.
Bills introduced Government – 25 October
2019
Better Regulation Legislation Amendment Bill 2019
Design and Building Practitioners Bill 2019
Environmental Planning and Assessment Amendment (Territorial
Limits) Bill 2019
Non-Government – 25 October 2019
Central Coast Drinking Water Catchments Protection Bill
2019
Bills revised following amendment in Committee –
25 October 2019
Water Supply (Critical Needs) Bill 2019
Bills revised following amendment in Committee –
25 October 2019
Right to Farm Bill 2019
Environmental Planning Instruments
State
Environmental Planning Policy (Exempt and Complying Development
Codes) Amendment (Low Rise Medium Density Housing Code) (No 2)
2019 (2019-519) – published LW 25 October 2019
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.