NSW Government Bulletin - Part 2: In the media, Practice and courts, Cases, Legislation - Constitutional & Administrative Law

In the media

New trial to encourage more women to enter construction
An Australian-first Culture Standard will be piloted at NSW construction sites to improve facilities, working conditions and boost the number of women in construction (7 September 2022). More...

Independent report backs floodplain harvesting models
An independent peer-reviewed report commissioned by the Murray Darling Basin Authority has confirmed the accuracy of the NSW Government modelling used for floodplain harvesting laws (8 September 2022). More..

NSW government delays delivering electric bus fleet by at least five years
The NSW government concedes a "bold goal" of transitioning Sydney buses from diesel to electric by 2030 is no longer possible – extending the timeline to reach net zero across the transport fleet (6 September 2022). More...

NSW government won't back stronger powers for health industry ombudsman to protect doctors and nurses
State government will support, or support in principle, 41 of the 44 recommendations of an inquiry into rural and remote healthcare – but won't back a mental health inquiry (1 September 2022). More...

NSW government to investigate federal minister's letter to Fair Work Commission
The New South Wales government is probing if the federal government may have tried to improperly influence the Fair Work Commission, as the state gears up for a showdown with the rail union in the tribunal on Tuesday (4 September 2022). More...

Practice and Courts

Supreme Court of NSW Court of Appeal – Decisions Reversed as at 9 September 2022. Read more here...

AAT Bulletin Issue No. 17/2022
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT's General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans' Appeals Divisions (5 September 2022). Read more here...

Published – articles, papers and reports

Southern Link Road corridor
Transport for NSW (TfNSW) seeks your feedback on the preferred alignment for the Southern Link Road corridor. Consultation is open from 25 August 2022 to 16 September 2022. Read more and have your say here.

Report no 57 - Portfolio Committee No. 2 - Health outcomes and access to health and hospital services in rural, regional and remote New South Wales
The committee examined a number of specific health services – including oncology, palliative care, allied health, other health and ambulance services – as well as the delivery of virtual care, otherwise known as telehealth. Overall, the evidence demonstrated that the services provided in rural, regional and remote locations do not always accord with community need. Read the report here.

Report - options to improve access to existing and alternate accommodation to address the social housing shortage
The inquiry heard that funding constraints limit the ability of the NSW Land and Housing Corporation to meet the demand for long-term social housing. Recent events such as floods, bushfires and COVID-19 have had an impact on many aspects of life in NSW and, unfortunately, have worsened the housing shortage. Housing stress has increased, and this has affected vulnerable groups in our community. The Committee heard that there is a shortage of long-term social housing in NSW, and the waiting list for social housing is growing. Read the report here.

Cases

The Trustee for MKD Architects Trust v Sutherland Shire Council [2022] NSWLEC 1487
DEVELOPMENT APPLICATION – residential flat building – amended plans – conciliation conference – agreement between the parties – orders
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15; Environmental Planning and Assessment Regulation 2000, cl 55; Land and Environment Court Act 1979, s 34; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Housing) 2021, cll 16, 17, 18, 19; State Environmental Planning Policy (Resilience and Hazards), cl 4.6; State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.99; State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development; Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.5, 4.6, 6.2, 6.4

Frost v Northern Beaches Council [2022] NSWSC 1214
TORTS – Private nuisance – Interference with use and enjoyment of land – Where very large boulder sits naturally atop cliff, two-thirds on private residential land and one-third on council land, but large portion of boulder overhangs the cliff face, suspended above neighbouring residence below – Where geotechnical report advises boulder will fall at an entirely unpredictable point in time, with catastrophic consequences of damage to property and life in residence below – Where owner of land below boulder advised by local council to vacate residence due to risk – Where owner of land below seeks mandatory injunction that owners of land on which boulder sits abate the nuisance by removing and/or securing boulder, as well as damages for losses associated with vacating residence.

TORTS – Private nuisance – Interference with use and enjoyment of land – Basis for liability – Nonfeasance – Whether boulder constitutes nuisance or only potentiality of nuisance – Despite not having fallen, boulder poses clear and present danger so threatening neighbouring property and residents as to render it uninhabitable from perspective of reasonable land-owner – Sufficient impact upon enjoyment of plaintiff's property to found claim in damages if defendants are responsible at law for the nuisance.

TORTS – Private nuisance – Scope of duty – Landowner in occupation who is aware (or ought to be) of hazardous condition arising naturally on their land which endangers neighbouring land or people on it has "measured duty of care" to take such steps as are reasonable in all the circumstances to prevent or minimise risk of injury or damage to neighbour, and no more than that – Magnitude of risk relevant but emphasis on ease and expense of abating risk, and ability of particular defendant to do so – Holding that in all of the circumstances, the scope of the defendants' duty does not extend to require them to undertake works to abate the nuisance – No breach of duty and no liability for damages – Declaration that plaintiff is entitled to access defendants' land to undertake reasonable works for abatement – Summons otherwise dismissed.

EQUITY – Equitable remedies – Injunctions – Mandatory injunctions – Quia timet injunctions – Injunctive relief sought exceeds that to which plaintiff is legally entitled because in all of circumstances, scope of defendants' duty does not oblige them to abate the nuisance alone – Summons dismissed.

Family Law Act 1975 (Cth), s 79; Law Reform (Miscellaneous Provision) Act 1946 (NSW), s 5(2)

Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 117
APPEAL – appeal against Commissioner's decision – refusal of development consent – mixed use development in Penrith City Centre – non-satisfaction of jurisdictional preconditions – overshadowing of public open space – construction of clause – whether public open space must be in Penrith City Council – whether development exhibits design excellence – relevant matters to be considered – architectural design competition to be held – whether views of Design Integrity Panel after competition held relevant matter – competition to be held in relation to the development – whether competition held in relation to the development on appeal.

Environmental Planning and Assessment Act 1979 (NSW) s 1.5; Interpretation Act 1987 (NSW) ss 3, 5, 34, 35; Land and Environment Court Act 1979 (NSW) s 56A; Penrith Local Environmental Plan 2010 cll 8.1, 8.2, 8.4, 8.7.

HB & B Property Pty Ltd v Parramatta City Council [2022] NSWLEC 1478
DEVELOPMENT APPLICATION: New Residential Care facility – conciliation conference - amended plans – agreement reached between the parties - orders made. Environment Planning and Assessment Act 1979 (NSW), ss 4.6, 8.7, 4.14, 4.15, 4.16; Environmental Planning and Assessment Regulation 2000 cl 55; Land and Environment Court Act 1979 (NSW), s 34; Parramatta (former the Hills) Local Environment Plan 2012 (NSW), cll 4.1, 4.2, 5.21, 7.2; State Environment Planning Policy (Housing for Seniors or People with a Disability) 2004 (NSW), cll 24, 25, 26, 28, 30, 40; State Environmental Planning Policy (Housing) 2021 sch 7; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (NSW); State Environmental Planning Policy No 55 (NSW) – Remediation of Land.

Confos v Lane Cove Municipal Council [2022] NSWLEC 1477
DEVELOPMENT APPLICATION – Alterations and additions to an existing dwelling – amended plans – conciliation conference – agreement between the parties – orders made

Civil Procedure Act 2005 (NSW) s 26; Environment Planning and Assessment Act 1979 (NSW) ss 4.15, 4.16, 8.7; Environmental Planning and Assessment Regulation 2000 cll 49, 55; Land and Environment Court Act 1979 (NSW), ss 34, 34AA; Lane Cover Local Environmental Plan 2009 (NSW) cll 2.7, 4.3, 4.4, 4.6, 6.1A; State Environmental Planning Policy (Biodiversity and Conservation) 2021 Pt 10.3, Div 2, CH 10, ss 10.2, 10.10, Schs 9-12; State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 (NSW); State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 2.11, 2.12, 4.6; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (NSW).

Zahra Family Day Care Pty Ltd v Secretary, Department of Education [2022] NSWCATAD 298
ADMINISTRATIVE LAW- Education and Care Services National Law – Operator approval – Breach of condition of approval – Objects and Principles of National Law – Children – Childcare Services –whether stay is desirable - interim stay.

Children (Education and Care Services) National Law; Children (Education and Care Services National Law Application) Act 2010 (NSW); Civil and Administrative Tribunal Act 2013.

Kouzi v Sutherland Shire Council [2022] NSWLEC 1463
DEVELOPMENT APPLICATION – childcare centre – amended plans and further information – conciliation conference – agreement reached between the parties – orders made.

Education and Care Services National Regulation regs 107, 108; Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15; Environmental Planning and Assessment Regulation 2000, cl 55; Land and Environment Court Act 1979, ss 34, 39; State Environment Planning Policy No 55- Remediation of Land; State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6; State Environmental Planning Policy (Transport and Infrastructure) 2021 s 3.22; Sutherland Shire Local Environmental Plan 2015 cl 6.4, 6.16, 6.18.

Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning [2002] NSWSC 1176
ADMINISTRATIVE LAW – orders in the nature of certiorari – operation of s 69 of the Supreme Court Act on determination of a Minister – construction of the Education Act and discretion of a Minister as to whether to recover financial assistance and the amount of financial assistance – engagement with clearly articulated argument – unreasonable or disproportionate response – mandatory considerations - operation of Limitation Act – when cause of action accrues – no legal error – no jurisdictional error.

An Act for the better Government of Her Majesty's Australian Colonies 1850, 13 & 14 Vic I, c 59; An act to make provision for the better Administration of Justice in the colony of Victoria 1852 (Vic); Australian Education Act 2013 (Cth); Civil and Administrative Tribunal Act 2013 (NSW), s 83; Commonwealth Constitution, ss73, 75; Corporations Act 2001 (Cth), s 9; Education Act 1990 (NSW), ss 4, 5, 6, 20A, 21, Pt 5, Pt 5A, Pt 6, Pt 7, 37, 46, 47, 50, 52, 54A, 55, 57A, 59, Pt 7 Div 3, 83B, 83BA, 83C, 83D, 83E, 83F, 83G, 83H, 83I, 83J, 83K, 83L; Limitation Act 1969 (NSW), ss 14, 55, 63; Supreme Court Act 1970 (NSW), ss 23, 63, 69, 91.

Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170
APPEALS – Procedural fairness – Denial of procedural fairness – Where primary judge alleged to have worn a brown suit and no tie – Whether failure of primary judge to wear a robe and wig a denial of procedural fairness or a breach of the Court Attire Policy – No denial of procedural fairness

APPEALS – Right of appeal – Relationship with judicial review – Where applicant sought leave to appeal from two decisions of the primary judge and judicial review of the same two decisions – Whether primary judge was exercising an administrative function in light of his Honour's omission to wear robes and a wig.

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Whether judicial review proceedings an abuse of process.

APPEALS – Leave to appeal – Principles governing – Public importance.

APPEALS – From exercise of discretion – Whether House v The King (1936) 55 CLR 499; [1936] HCA 40 type error disclosed by the primary judge.

Civil and Administrative Tribunal Act 2013 (NSW), ss 4(1)(d), 41, 80(2)(a), 83(1); Civil Procedure Act 2005 (NSW), ss 56 and 98(4)(c); Civil Procedure Regulation 2017 (NSW), ss 41, 80(2)(a) and 83(1), cl 11(1); Court Security Act 2005 (NSW), ss 4, 9, 9A and 9B; Government Information (Public Access) Act 2009 (NSW), ss 12(2)(e), 65(1), 68(1), 80(c), 80(j), 100, 101(1) and 125; Government Sector Employment Act 2013 (NSW); Privacy and Personal Information Protection Act 1998 (NSW); Uniform Civil Procedure Act 2005 (NSW), rr 1.12, 4.10(5)(b), 13.4(1), 36.15, 16.16, 36.16, 42.1, 49.19, 50.12, 51.10(1)(b) and 59.10; Vexatious Proceedings Act 2008 (NSW), s 7.

Croker v Health Care Complaints Commission [2022] NSWCATAD 294
ADMINISTRATIVE LAW-freedom of information- government information public access-complaint handling-excluded information-invalid application-Government Information (Public Access) Act 2009 (NSW)Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009 (NSW).

Legislation

Act Compilation- Commonwealth
A New Tax System (Australian Business Number) Act 1999 12/09/2022 – Act No. 84 of 1999 as amended.
National Health Reform Act 2011 30/08/2022 – Act No. 9 of 2011 as amended

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.

Australia: NSW Government Bulletin - Part 2: In the media, Practice and courts, Cases, Legislation

In the media

Practice and Courts

Published – articles, papers and reports

Cases

Legislation

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