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
Regulation and other miscellaneous instruments
Public
Holidays Amendment (National Day of Mourning for Queen Elizabeth
II) Order 2022 – published LW 13 September 2022.
Conveyancing
(General) Amendment (Transport Asset Holding Entity of New South
Wales and Landcom) Regulation 2022 – published LW 9
September 2022.
Environmental
Planning and Assessment Amendment (Parramatta City Centre
Development Levy) Regulation 2022 – published LW 9
September 2022.
Environmental
Planning and Assessment Amendment (Waratah Super Battery
Project—Munmorah) Order 2022 –published LW 9
September 2022.
Water
Sharing Plan for the Macquarie-Bogan Unregulated Rivers Water
Sources Amendment Order 2022 – published LW 9 September
2022.
Treasurer's
Direction TD22-27 - Amendment to TD 21-04 – published LW
2 September 2022.
Water
Sharing Plan for the Murray Alluvial Groundwater Sources Amendment
Order 2022 – published LW 2 September 2022.
Explosives
Amendment (Exemptions) Regulation 2022 – published LW 2
September 2022.
Environmental
Planning and Assessment Amendment (Notice Requirements) Regulation
2022 – published LW 2 September 2022.
Biosecurity
Order (Permitted Activities) Amendment Order 2022 (No 2)
– published LW 2 September 2022.
Associations
Incorporation Regulation 2022 – published LW 31 August
2022.
Building
and Construction Industry Long Service Payments Regulation 2022
– published LW 31 August 2022.
Independent
Pricing and Regulatory Tribunal Regulation 2022 –
published LW 31 August 2022.
Subordinate
Legislation (Postponement of Repeal) Order (No 2) 2022 –
published LW 31 August 2022.
Surveillance
Devices Regulation 2022 – published LW 31 August
2022.
Environmental
Planning and Assessment Amendment (Sustainable Buildings)
Regulation 2022 – published LW 29 August 2022.
Environmental Planning Instruments
Burwood
Local Environmental Plan 2012 (Amendment No 23) –
published LW 9 September 2022.
Campbelltown
Local Environmental Plan 2015 (Map Amendment No 8) –
published LW 9 September 2022.
Cessnock
Local Environmental Plan 2011 (Map Amendment No 3) –
published LW 9 September 2022.
Maitland
Local Environmental Plan 2011 (Map Amendment No 3) –
published LW 9 September 2022.
Mosman
Local Environmental Plan 2012 (Amendment No 12) –
published LW 9 September 2022.
Parkes
Local Environmental Plan 2012 (Amendment No 7) –
published LW 9 September 2022.
Shellharbour
Local Environmental Plan 2013 (Amendment No 26) –
published LW 9 September 2022.
Sydney
Local Environmental Plan 2012 (Map Amendment No 1) –
published LW 2 September 2022.
The
Hills Local Environmental Plan 2019 (Map Amendment No 1)
– published LW 2 September 2022.
Tweed
Local Environmental Plan 2014 (Map Amendment No 1) –
published LW 2 September 2022.
Woollahra
Local Environmental Plan 2014 (Amendment No 25) –
published LW 2 September 2022.
Campbelltown
Local Environmental Plan 2015 (Map Amendment No 7) –
published LW 2 September 2022.
State
Environmental Planning Policy (Exempt and Complying Development
Codes) Amendment (Change of Use) 2022 – published 1
September 2022.
State
Environmental Planning Policy Amendment (Inner West) 2022
– published LW 31 August 2022.
State
Environmental Planning Policy (Sustainable Buildings) 2022
– published LW 29 August 2022.
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
Blog Article Contentuced by Government
High
Speed Rail Authority Bill 2022 – 8 September 2022.
Financial
Services Compensation Scheme of Last Resort Levy (Collection) Bill
2022 – 8 September 2022.
Treasury
Laws Amendment (2022 Measures No. 3) Bill 2022 – 8
September 2022.
Income
Tax Amendment (Labour Mobility Program) Bill 2022 – 8
September 2022.
Foreign
Acquisitions and Takeovers Fees Imposition Amendment Bill 2022
– 8 September 2022.
Financial
Services Compensation Scheme of Last Resort Levy Bill 2022
– 8 September 2022.
Financial
Sector Reform Bill 2022 – 8 September 2022.
Financial
Accountability Regime Bill 2022 – 8 September 2022.
Counter-Terrorism
Legislation Amendment (AFP Powers and Other Matters) Bill 2022
– 8 September 2022.
Atomic
Energy Amendment (Mine Rehabilitation and Closure) Bill 2022
– 8 September 2022.
Parliamentary
Privileges Amendment (Royal Commission Response) Bill 2022
– 7 September 2022.
Emergency
Response Fund Amendment (Disaster Ready Fund) Bill 2022 –
7 September 2022.
National
Health Amendment (General Co-payment) Bill 2022 – 7
September 2022.
Social
Services and Other Legislation Amendment (Incentivising Pensioners
to Downsize) Bill 2022 – 7 September 2022.
Environment
Protection and Biodiversity Conservation Amendment (Climate
Trigger) Bill 2022 [No. 2] – 5 September 2022.
Environment
Protection and Biodiversity Conservation Amendment (Climate
Trigger) Bill 2022 – 5 September 2022.
Anti-Money
Laundering and Counter-Terrorism Financing Amendment (Making
Gambling Business Accountable) Bill 2022 – 5 September
2022.
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.