In the media
NSW government to withdraw and repay more than 23,000 fines issued during the COVID-19 pandemic
The NSW government will withdraw and repay more than 23,000 fines issued during the COVID-19 pandemic after receiving fresh legal advice. In 2022, Revenue NSW withdrew more than 36,000 penalty notices because the NSW Commissioner of Fines Administration found that those penalty notices did not comply with the Fines Act. The commissioner found the penalty notices did not sufficiently detail the description of the offence committed (26 November 2024). Read more here.
Appointment of Rachel McCallum as NSW Electoral Commissioner
Ms McCallum brings a distinguished background in public administration and law, with significant experience in electoral matters. She has served as the NSW Information Commissioner and Chief Executive Officer of the Information and Privacy Commission NSW, and previously held senior roles at the NSW Electoral Commission, including as Acting Electoral Commissioner (27 November 2024). Read more here.
NSW govt establishes new digital procurement guidelines
The NSW government has established new procurement guidelines to make it easier for agencies to work with technology companies and move towards off-the-shelf products. Instead of being forced down rigid tender pathways which have to specify a solution, the updated procurement rules allow agencies to identify, test and buy products to deliver smarter and faster services. The state government claimed the Test & Buy Innovation guidelines support agencies to access suitable digital solutions to address community need (28 November 2024). Read more here.
Residential development overhaul coming to NSW
The NSW Government has announced the establishment of a new state-led approval pathway for major residential housing projects, as well as a process for rezonings – neither having to be approved by councils, cutting approval times and speeding up the delivery of new homes. This reform will come into effect in early 2025 following a "short and sharp" consultation with stakeholders. This will be available for new housing developments above an estimated development cost of $60 million (on average 100 or more homes) in Greater Sydney and a cost of approximately $30 million (on average 40 or more homes) in regional NSW (20 November 2024). Read more here.
In practice and courts
Magistrates to be called judges under historic change to Local Court Act
NSW Local Court magistrates will be known as judges under amendments to the Local Court Act 2007 designed to reflect the seriousness and volume of work done in this jurisdiction. This will more appropriately reflect the jurisdiction's vital role in the state's justice system (20 November 2024). Read more here.
Re-issued Practice Note SC GEN 23 – Use of Generative Artificial Intelligence
On 21 November 2024, the Supreme Court of NSW issued Practice Note SC GEN 23, governing the use of generative AI in relation to court documents. The Court has also issued an accompanying guideline to judges in respect of the use of generative AI in writing judgments (21 November 2024). Read more here.
Publications
NSW Skills Plan 2024–28: Building Skills and Shaping Success
The NSW Department of Education's strategic plan for skills sets out a vision for the NSW skills system to support all people to participate in vocational education and training (VET) that drives economic and wellbeing outcomes for individuals, industry, and communities. The plan focuses on critical skills areas highlighting industries with long-standing shortages including construction, digital and cyber, and net zero and energy transition (3 December 2024). Access the Plan here.
Our Reconciliation Action Plan
The NSW Ministry of Health maintains a Reflect Reconciliation Action Plan (RAP) endorsed by Reconciliation Australia. The RAP vision for reconciliation is for Aboriginal and Torres Strait Islander people to live and work in a reconciled Australia where Aboriginal and Torres Strait Islander people and communities have positive and holistic health and wellbeing outcomes. The RAP marks an important step in our commitment to reconciliation and the celebration of Aboriginal and Torres Strait Islander culture and knowledge. Access the Plan here.
NSW Voluntary Assisted Dying Board - Annual Report 2023–24
The first annual report of the NSW Voluntary Assisted Dying Board (the published 29 November 2024 provides an overview of voluntary assisted dying in NSW from 28 November 2023 to 30 June 2024. Access the Report here.
Have your say – Homes for NSW discussion paper
Homes NSW has prepared a discussion paper to inform planning for a better social housing and homelessness system in NSW. The discussion paper outlines the issues and challenges impacting the non-market housing and homelessness system. It sets out draft priorities and opportunities for reform. This is an opportunity to work with Homes NSW to deliver better outcomes for people seeking housing and homelessness support in NSW. The consultation period is open until 20 December 2024. Access the discussion paper and survey here.
Have your say – Heritage NSW standard exemptions
Under the standard exemptions, certain activities or works may be exempt from a Heritage Act permit if it complies with the relevant standards. The standard exemptions currently include a range of activities or work that have little to no impact on the item's heritage significance and support its ongoing management such as maintenance, painting or installing a fire alarm. Survey submission will be collected until 31 January 2025. Access the survey here.
Have your say – Draft Aboriginal Fishing Regulation
The NSW Government is progressing a key election commitment, with a draft regulation to support Aboriginal people fishing for cultural purposes now open for public consultation. The draft Fisheries Management (General) Amendment (Aboriginal Cultural Fishing) Regulation 2024 (draft regulation) aims to support Aboriginal people and communities to fish for cultural purposes within a sustainable fisheries framework. The consultation period ends on 16 February 2025. Access the survey here.
Have your say – NSW Survey Marks Database and Mobile App Update
DCS Spatial Services is updating NSW's Survey Control Information Management System (SCIMS) and is seeking feedback. Since the year 2000, SCIMS has stored and delivered permanent survey mark coordinates and associated meta data. There have been upgrades to how the surveying and spatial industry access and use this information over this time but it is now due for a major overhaul. Technology platforms, new ways of using data and additional datasets have led to DCS Spatial Services seeking your advice on the features of a new database and method of both accessing and providing data for NSW's Survey Control Network. Survey submission will be collected until 8 December 2024. Access the survey here.
Cases
Environment Protection Authority v Sydney
Water Corporation [2024] NSWLEC 130
CRIMINAL – sentencing for offence of failure to maintain
equipment in proper and efficient manner – plea of guilty
– discharge of untreated sewage into stormwater drain from
pipe – minimal environmental harm established – prior
convictions aggravating – mitigating factors – payment
to Environmental Trust ordered – publication order
made.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23;
Criminal Procedure Act 1986 (NSW), s 257B; Fines Act 1996 (NSW), s
6; Protection of the Environment Operations Act 1997 (NSW), ss 3,
64, 241, 244, 250, Sch 6.
Grand Rozelle Pty Ltd v Transport for NSW (No
3) [2024] NSWLEC 129
PRACTICE AND PROCEDURE – claim of public interest immunity
over Cabinet documents – ss 130 and 131 of the Evidence Act
1995 (NSW) – the Court's inspection of the documents
subject of the claim.
Evidence Act 1995 (NSW) ss 130, 131A, 133; Land Acquisition (Just
Terms Compensation) Act 1991 (NSW) s 70.
Secretary, Department of Planning, Industry
and Environment v Ronald Lewis Greentree and Auen Grain Pty
Ltd [2024] NSWLEC 131
SENTENCING – Environmental offences – Offences under s
12 of the Native Vegetation Act 2003 (NSW) – Offences under s
60N of the Local Land Services Act 2013 (NSW) – Clearing of
native vegetation without consent – Substantial harm caused
– Foreseeable risk of environmental harm – Practical
measures to prevent risk of harm – Full control over the
cause of offences – Offences committed for financial gain
– State of mind in committing offences – Objective
seriousness near the mid to high range of seriousness –
Subjective circumstances of the defendants – Previous good
character – No remorse demonstrated – Defendants
pleaded not guilty – Need for both specific and general
deterrence – Determination of appropriate penalties –
Fines imposed with moiety to prosecutor – Orders as to
costs.
Biodiversity Conversation Act 2016 (NSW), s 13.12; Crimes
(Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1, ss 3A, 17, 21A;
Criminal Procedure Act 1986 (NSW), s 257B; Environment Protection
and Biodiversity Conservation Act 1999 (Cth); Environmental
Planning and Assessment Act 1979 (NSW), s 126; Fines Act 1996
(NSW), ss 6, 122; Local Land Services Act 2013 (NSW), ss 3, 60N;
Native Vegetation Act 2003 (NSW), ss 3, 12; Protection of the
Environment Administration Act 1991 (NSW), s 6; Threatened Species
Conservation Act 1995 (NSW).
Bowie Ferris Investments Pty Ltd v Woollahra
Municipal Council [2024] NSWLEC 1774
APPEAL – development application – change of use from
the existing hotel use to a retail and commercial use –
adverse impact on heritage significance of the local heritage item
(The Village Inn) and the Paddington Conservation Area –
social impact on the locality – public interest.
Environmental Planning and Assessment Act 1979, ss 1.5, 4.15, 8.7;
Environmental Planning and Assessment Regulation 2021; State
Environmental Planning Policy (Biodiversity and Conservation) 2021,
Pt 6.2; State Environmental Planning Policy (Industry and
Employment) 2021, Pts 3.1, 3.2; Sch 5; Woollahra Local
Environmental Plan 2014, cll 1.2, 2.2, 4.3, 4.4, 4.6, 5.10, 5.21;
Sch 5 Pt 1.
Hau v South Eastern Sydney Local Health
District [2024] NSWCATAD 359
ADMINISTRATIVE LAW – administrative review – Government
information - whether overriding public interest against disclosure
- confidential information – information provided in
confidence.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Freedom of Information Act
1982 (Cth); Government Information (Public Access) Act 2009 (NSW);
Health Records and Information Privacy Act 2002 (NSW); Privacy and
Personal Information Protection Act 1998 (NSW).
State of New South Wales v Meredith
[2024] NSWCA 287
APPEALS – leave to appeal – decision involving a matter
of practice and procedure – orders setting aside subpoena and
Notice to Produce served by the applicant – where applicant
has failed to identify a principle of general application or a
question of public importance or any substantial injustice –
where leave to appeal is refused.
Civil Procedure Act 2005 (NSW), s 56, Pt 10; Law Enforcement
(Powers and Responsibilities) Act 2002 (NSW).
SafeWork NSW v Twin Connect Pty Ltd
[2024] NSWDC 568
CRIMINAL LAW – prosecution – work health and safety
– duty of person undertaking business – duty of
employer – risk of death or serious injury – injury to
worker.
SENTENCING – objective seriousness – deterrence –
aggravating factors – mitigating factors – capacity to
pay a fine.
SENTENCING PRINCIPLES – no record of previous convictions
– good prospects of rehabilitation – remorse –
plea of guilty – assistance to law enforcement
authorities.
Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Work Health
and Safety Act 2011 (NSW).
SafeWork NSW v Modco Homes Pty Ltd [2024]
NSWDC 565
CRIMINAL LAW – prosecution – work health and safety-
duty of persons undertaking business – risk of death or
serious injury – maximum penalty.
SENTENCE – objective seriousness – mitigating factors
– aggravating factors – plea of guilty –
appropriate discount for the utility of the plea – general
deterrence – specific deterrence – remorse and
contrition – maximum penalties.
COSTS – prosecutor's costs.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22; Fines
Act 1996 (NSW), s 122; Work Health and Safety Act 2011 (NSW), ss 3,
19, 31, 32, 35, 37, 38, 39.
Tsirekas v Independent Commission Against
Corruption [2024] NSWSC 1514
ADMINISTRATIVE LAW – judicial review of serious corrupt
conduct findings made by Independent Commission Against Corruption
– where the person who presided over the hearings did not
write the Report – Report not materially affected by errors
of law on the basis of apprehended bias where the asserted bias was
of a person who was not a decision maker – Report did not
involve a denial of procedural fairness where the Commission made
credibility findings based on its own assessment of evidence.
Independent Commission Against Corruption Act 1988 (NSW); Royal
Commissions Act 1923 (NSW).
Deerubbin Local Aboriginal Land Council v
Minister Administering the Crown Land Management Act ("Mt
Irvine Claim") [2024] NSWLEC 127
ABORIGINAL LAND RIGHTS: whether the land was claimable Crown lands
as at the date of the claim – whether land was divisible for
the purpose of the claim – whether the land was used as at
the date of the claim – whether the land was occupied as at
the date of the claim – whether the land was lawfully used as
at the date of the claim – whether the land was lawfully
occupied as at the date of the claim – relevant legal
principles – appeal upheld in part.
Aboriginal Land Rights Act 1983, s 36; Crown Lands Act 1884, ss
101, 104; Crown Lands Act 1989, ss 3(2), 6, 92, 93, 100, 121A, 124,
Pt 5, Sch 8, cl 4(3); Crown Lands Consolidation Act 1913, ss 2,
3(b), 28, 29, 37Q; Public Trust Act 1897; Real Property Act 1900, s
13J; Sunday Entertainment Act 1966; Theatres and Public Halls Act
1908.
XYZ Services Pty Limited v Inner West
Council [2024] NSWLEC 1765
APPEAL – development application – demolition of
building within a heritage conservation area – effect of
demolition on heritage significance – contravention of
limited development on foreshore area controls – whether
foreshore area controls a development standard – land
subdivision – two detached dwellings – uncertainty
regarding "slither of land" immediate to site and subject
to possessory title claim – whether owners consent needed
– contravention of development control plan provisions
– implications of proposed works contrary to building line
covenant.
Environmental Planning and Assessment Act 1979, ss 1.4, 3.43, 8.7;
Inner West Local Environmental Plan 2022, cll 4.6, 5.10, 6.5, Pts
2, 4, 5, Sch 5; State Environmental Planning Policy (Biodiversity
and Conservation) 2021, s 6.28; State Environmental Planning Policy
(Resilience and Hazards) 2021.
Gregory v Secretary, Department of
Education [2024] NSWCATAD 353
ADMINISTRATIVE LAW – administrative review - government
information - access application – enforceable right to
access government information – conclusive presumption of an
overriding public interest against disclosure – legal
professional privilege - public interest considerations against
disclosure – public interest considerations in favour of
disclosure – balance - personal information.
ADMINISTRATIVE LAW – reviewable decision - correct and
preferable decision - Civil and Administrative Tribunal.
Vortex Developments Pty Ltd trading as Plannex
Environmental Planning v The Council of the Municipality of
Kiama [2024] NSWLEC 1755
APPEAL – livestock processing industry – abattoir
– designated development – permissibility –
adequacy of environmental impact statement – traffic impacts
– impacts from flooding and stormwater – biosecurity
– wastewater management – cumulative impacts.
Environmental Planning and Assessment Act 1979, ss 4.10, 4.12,
4.15, 4.16, 4.47, 8.7. 8.12, 9.22; Land and Environment Court Act
1979, s 39; Water Management Act 2000, Ch 3, Pt 3, ss 91, 91E;
Biosecurity (National Livestock Identification System) Regulation
2017, cl 45; Environmental Planning and Assessment Regulation 2000,
Sch 3 cl 22, Sch 2 cl 3, Sch 2 cl 7; Environmental Planning and
Assessment Regulation 2021, Sch 6 Part 1 cl 3; Kiama Local
Environmental Plan 2011, cll 2.5, 5.21, 6.2, 6.3, 6.5, Sch 1 cl 7;
Standard Instrument (Local Environmental Plans) Order 2006, cl 8;
State Environmental Planning Policy (Resilience and Hazards) 2021,
s 4.6, Ch 3; Uniform Civil Procedure Rules 2005, r 34; Water
Management (General) Regulation 2018, cl 42, Sch 4 Pt 2 cl 31.
JS Architects Pty Ltd v Randwick City
Council [2024] NSWLEC 1756
DEVELOPMENT APPLICATION – subdivision of dual
occupancy(attached) – permissible lot size.
Environmental Planning and Assessment Act 1979, ss 1.5, 4.15, 4.16,
4.18, 6.2, 8.7, 8.10; Interpretation Act 1987, s 68; Land and
Environment Court Act 1979, ss 17, 39; Real Property Act 1900, s
12F; Strata Schemes Development Act 2015, s 4, 6, 9; Environmental
Planning and Assessment Regulation 2021, s 23; Randwick Local
Environmental Plan 2012, cll 2.6, 4.1, 4.1A, 4.1C, 6.10.
Jeray v Information and Privacy
Commission [2024] NSWCATAP 239
GOVERNMENT INFORMATION – access to information about
intervention decisions of Information Commissioner – excluded
information and invalid access application under Government
Information (Public Access) Act 2009 (NSW).
ADMINISTRATIVE LAW – effect of s 42 of Government Information
(Information Commissioner) Act 2009 (NSW) on administrative review
jurisdiction of NSW Civil and Administrative Tribunal over
decisions of Information and Privacy Commission.
PRACTICE AND PROCEDURE – correct respondent in administrative
review proceedings.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Act 2013 (NSW); Civil and Administrative Tribunal
Rules 2014 (NSW); Constitution Act 1902 (NSW); Government
Information (Information Commissioner) Act 2009 (NSW); Government
Information (Public Access) (Consequential Amendments and Repeal)
Bill 2009 (NSW); Government Information (Public Access) Act 2009
(NSW); Government Sector Employment Act 2013 (NSW); Health Care
Complaints Act 1993 (NSW); Independent Commission Against
Corruption Act 1988 (NSW); Interpretation Act 1987 (NSW); Judicial
Officers Act 1986 (NSW); Ombudsman Act 1974 (NSW); Ombudsman
(Amendment) Act 1983 (NSW); Privacy and Government Information
Legislation Amendment Act 2010 (NSW); Privacy and Personal
Information Protection Act 1998 (NSW); Public Sector Employment and
Management Act 2002 (NSW).
RRS Holdings Aust Pty Ltd ATF RRS Holdings
Trust v Chief Commissioner of State Revenue [2024] NSWCATAD
352
TAXES AND DUTIES – Surcharge land tax – applicant holds
land on trust – discretionary trust – amendment to
trust deed – interpretation of deed – whether the
"no amendment requirement" in s5D(3)(b) of the Land Tax
Act 1956 (NSW) was satisfied.
Administrative Decisions Review Act 1997 (NSW); Duties Act 1997
(NSW); Foreign Acquisitions and Takeovers Act 1975 (Cth); Land Tax
Act 1956 (NSW); State Revenue Legislation Further Amendment Act
2020 (NSW); Taxation Administration Act 1996 (NSW); Trustee Act NSW
1925 (NSW).
Petersham High Pty Ltd v Inner West Council [2024] NSWLEC
1749
DEVELOPMENT APPLICATION – Co-living housing in R2 Low Density
Residential zone – alterations and additions to heritage item
– whether permissible development – heritage
conservation – landscaped area – maximum number of
rooms exceeded.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Land
and Environment Court Act 1979, s 39; Inner West Local
Environmental Plan 2022, cll 4.3, 4.4, 4.6, 5.10, 6.3, 6.12; State
Environmental Planning Policy (Housing) 2021, ss 67, 68, 69; State
Environmental Planning Policy (Resilience and Hazards) 2021, s
4.6.
Elith v Ku-ring-gai Council [2024] NSWLEC
1757
Appeal against refusal of permission for tree removal –
Leyland Cypress competing with Turpentine tree – no current
indications of negative impacts – negative impacts unlikely
in the mid-term future – appeal dismissed.
Biosecurity Act 2015; Electricity Supply Act 1995; Environmental
Planning and Assessment Act 1979; Land and Environment Court Act
1979, s 39; Roads Act 1993; Rural Fires Act 1997; Ku-ring-gai Local
Environmental Plan 2015; State Environmental Planning Policy
(Biodiversity and Conservation) 2021, ss 2.2, 2.6, 2.7, 2.9, 2.11,
2.12, Pts 2.3, 3; Uniform Civil Procedures Rules 2005.
Smith v Commissioner of Police, NSW Police
Force [2024] NSWCATAD 350
ADMINISTRATIVE REVIEW – licensing – firearms licensing
– revocation of licence – continuous and responsible
control over firearms – contrary to the public interest
– fit and proper person – association.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW);
Firearms Regulation 2017 (NSW).
Environment Protection Authority v Fair
[2024] NSWLEC 124
ENVIRONMENTAL LAW – waste storage – storage of waste
tyres in enclosed storage units at storage facilities –
whether scheduled activity requiring licence – whether
pollution of land – order to remedy or restrain breach
– whether includes payment of compensation to third
party
Land and Environment Court Act 1979 (NSW), s 20; Protection of the
Environment Operations Act 1997 (NSW), s 48, 142A, Schedule 1,
Dictionary; Protection of the Environment Operations (General)
Regulation 2022 (NSW), cl 133.
Brokers Property Holdings Pty Ltd v MidCoast
Council [2024] NSWLEC 122
PRACTICE AND PROCEDURE – notice of motion to dismiss summons
seeking appeal in Land and Environment Court which was filed out of
time – notice of motion granted.
APPEAL – severity appeal against sentence in Local Court in
relation to an environmental offence — application for leave
to appeal lodged more than three months after date of conviction
– whether Court has power to grant leave – section
33(2) of the Crimes (Appeal and Review) Act 2001 (NSW) – no
power to grant leave – appeal dismissed.
Crimes (Appeal and Review) Act 2001, ss 31, 33, 34, 36; Environmental Planning and Assessment Act 1979 (NSW).
Legislation
Proclamations commencing Acts
Equality Legislation Amendment (LGBTIQA+) Act 2024 No 71 (2024-599) – published LW 29 November 2024
Regulations and other miscellaneous instruments
Electoral Funding (Adjustable Amounts) (Administrative Funding) Notice 2024 (2024-600) – published LW 29 November 2024
Energy and Utilities Administration Amendment (Abolition of Net Zero Board) Regulation 2024 (2024-601) – published LW 29 November 2024
Environmental Planning and Assessment Amendment (Hornsby Transport Oriented Development Precinct) Regulation 2024 (2024-588) – published LW 27 November 2024
Environmental Planning and Assessment Amendment (Macquarie Park Transport Oriented Development Precinct) Regulation 2024 (2024-589) – published LW 27 November 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-602) – published LW 29 November 2024
Health Legislation Amendment (Fees) Regulation 2024 (2024-598) – published LW 27 November 2024
Law Enforcement (Powers and Responsibilities) Amendment (Hand-held Scanners) Regulation 2024 (2024-603) – published LW 29 November 2024
Marine Pollution Amendment Regulation 2024 (2024-604) – published LW 29 November 2024
Personal Injury Commission (Amendment No 3) Rule 2024 (2024-587) – published LW 25 November 2024
Surveying and Spatial Information Regulation 2024 (2024-605) – published LW 29 November 2024
Water Management (General) Amendment (Fire Fighting Exemptions) Regulation 2024 (2024-606) – published LW 29 November 2024
Environmental Planning Instruments
Canada Bay Local Environmental Plan (Housing) (Map Amendment No 1) (2024-590) – published LW 27 November 2024
Muswellbrook Local Environmental Plan 2009 (Amendment No 21) (2024-607) – published LW 29 November 2024
Orange Local Environmental Plan 2011 (Amendment No 40) (2024-608) – published LW 29 November 2024
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous) 2024 (2024-609) – published LW 29 November 2024
State Environmental Planning Policy Amendment (Bankstown Transport Oriented Development Precinct) 2024 (2024-591) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Bella Vista and Kellyville Transport Oriented Development Precincts) 2024 (2024-592) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Crows Nest Transport Oriented Development Precinct) 2024 (2024-593) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Exemptions) 2024 (2024-594) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Homebush Transport Oriented Development Precinct) 2024 (2024-595) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Hornsby Transport Oriented Development Precinct) 2024 (2024-596) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Macquarie Park Transport Oriented Development Precinct) 2024 (2024-597) – published LW 27 November 2024
Wollongong Local Environmental Plan 2009 (Map Amendment No 8) (2024-610) – published LW 29 November 2024
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.
