In the media
Chair of NSW parliamentary inquiry into impacts of metal
mining on human health flags integrity concerns
The chair of a parliamentary inquiry into the impacts of
metal mining on human health is worried about its integrity after
the majority of its committee members blocked the appearance of
"highly relevant" witnesses. The inquiry is investigating
the current and potential impacts of gold, silver, lead and zinc
mining on human health, land, air and water quality (26 October
2023). Read more here.
First Nations take legal action over alleged lack of
consultation on Fracture Rock Water Resource Plan
A confederation of 20 First Nations groups has launched a
legal challenge against the federal government, alleging it failed
to meet its legal requirements to engage and consult with
Indigenous groups before approving a water resource plan. The
Murray Lower Darling Rivers Indigenous Nations (MLDRIN) group
claims members of affected nations were not appropriately consulted
on matters including cultural, social, and spiritual aspects tied
to water resources (26 October 2023). Read more here.
National Skills Agreement supporting NSW journey to net
zero
Following the signing of the National Skills Agreement the
NSW Government is continuing to bolster its commitment to reskill
NSW and transform the economy to net zero with TAFE NSW launching 8
new micro skills related to renewables. The 5- year National Skills
Agreement (NSA) will deliver a Commonwealth investment of up to
$3.8 billion into the skills and training sector in NSW, supporting
the Minns Labor government's commitment to rebuild TAFE and
training in NSW. This includes the NSW Government's strategy to
secure the reliable supply of clean and affordable renewable
energy, funding skills training in renewable energy and technology
sector (23 October 2023). Read more here.
In practice and court
AAT Bulletin No. 21/2023
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 (23 October 2023). Read more here.
Federal Court Practice Note – Schemes of
Arrangement (GPN-SOA)
The Chief Justice of the Federal Court of Australia has
issued a new Practice Note which implements the Practice Note
– Harmonisation in schemes of arrangement as developed
by the Committee for the Harmonisation of Rules of the Council of
Chief Justices of Australia and New Zealand. The Practice Note is
effective from 13 October 2023. Read the Practice Note here.
Land and Environment Court of NSW – Judicial
Newsletter Volume 15 Issue 3
The Land and Environment Court of NSW's
(NSWLEC) Judicial Newsletter is a quarterly
publication containing Court News, Judgements from the United
Kingdom, the Supreme Court of the Northern Territory, NSW Court of
Appeal, Supreme Court of NSW and the NSWLEC, and relevant
legislative changes made between 6 March 2023 and 10 September 2023
(5 October 2023). Read more here.
Publications
Bus Industry Taskforce Directions for On-Street Transit
White Paper
The white paper, released at the Western Sydney Bus
Symposium on 25 October 2023, outlines the key challenges and
identifies a way forward in delivering a more equitable provision
of bus services for passengers in Western Sydney and across NSW.
The white paper identifies 5 key moves to transform bus services
across the state (25 October 2023). Read the On-Street Transit
White Paper here. Read the media release here.
New Development Application withdrawal guidelines for
councils to boost housing supply
The Office of Local Government's new 23-12 Guidelines
on the withdrawal of development applications (the
guidelines) will help address the State's
housing shortfall to ensure that the development application
(DA) process is not delaying the pipeline of
housing projects across NSW. Under the new guidelines, Councils
will be required to accelerate DA assessment timeframes and not
request unnecessary information (5 October 2023). Read the
guidelines here.
Cases
Dexus Funds Management Limited v The Council of
the City of Sydney [2023] NSWLEC 1637
DEVELOPMENT APLPICATION – building signage – whether
sign is a building identification sign – heritage
conservation – effect of proposed development on local
heritage significance – whether a significant tenant.
Environmental Planning and Assessment Act 1979, s 8.7; Standard
Instrument (Local Environmental Plans) Order 2006; State
Environmental Planning Policy (Industry and Employment) 2021, Ch 3
ss 3.1 3.2, 3.6, Pt 3.3 ss 3.7, 3.11 3.19, Sch 5; State
Environmental Planning Policy (No 64) – Advertising and
Signage; Sydney Local Environmental Plan 2012, cll 5.10, 6.21C, Sch
5 cll 1, 2, 3, 4, 5.
Gearin v Commissioner for Fair Trading
[2023] NSWCATOD 155
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL
DECISION-MAKER – decision to cancel registration as a
certifiers pursuant to section 48 of the Building Professionals
Certifiers Act 2018 (NSW)
PRACTICE AND PROCEDURE – INTERLOCUTORY ORDER – interim
decision – factors relevant to exercise of the power to make
the interim decision under section 60 of the Administrative Decisions Review Act 1997 (NSW)
– interlocutory decision to take effect retrospectively
– stay.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Civil and Administrative
Tribunal Rules 2014 (NSW); Building and Development Certifiers Act
2018; Building Professionals Act 2005 (NSW); Environment Planning
and Assessment Regulation 2000 (NSW).
Dibb v Transport for NSW [2023] NSWLEC
114
COMPULSORY ACQUISITION – market value of acquired land
– underlying zoning at acquisition date low density
residential – numerous constraints on development of land for
26-lot subdivision in mind of hypothetical purchaser – river
on land with need to obtain approval to pipe and traffic access and
topography constraints affect consideration of risk in valuation
process – relatively risk free 7-lot subdivision should be
valued – disputed comparable sales adjustments considered
– disturbance claim that actual use of land for land banking
accepted.
Coffs Harbour Local Environmental Plan 2013 (NSW), cl 7.6, Land Use
Table; Coffs Harbour City Local Environmental Plan 2000 (NSW);
Interpretation Act 1987 (NSW), s 33; Land Acquisition (Just Terms
Compensation) Act 1991 (NSW), ss 42, 54, 55, 56, 59, 61, 66; Local
Government Act 1993 (NSW); North Coast Regional Environmental Plan
1998, cl 38; Rivers and Foreshores Improvement Act 1948 (NSW), s 2;
Valuation of Land Act 1916 (NSW), s 6A; Water Management Act 2000
(NSW), ss 91, 91E, Dictionary; Water Management (General)
Regulation 2018 (NSW), reg 3, Sch 2.
Karakaya v Commissioner of Police, NSW Police
Force [2023] NSWCATAD 282
ADMINISTRATIVE LAW – administrative review – Government
Information – whether there is an overriding public interest
consideration against disclosure – balancing the public
interest.
Administrative Decisions Review Act 1997 Government Information
(Public Access) Act 2009; Police Regulation 2015; Privacy and
Personal Information Protection Act 1998.
Rikkone v NSW Ombudsman TAFE NSW [2023]
NSWCATAD 278
Administrative Law – administrative review – Civil and
Administrative Tribunal – no jurisdiction to administratively
review decisions made under the Technical and Further Education
Commission Act 1990.
Anti-Discrimination – Civil and Administrative Tribunal
– no jurisdiction to consider complaint without a referral
under s 95 of the Anti-Discrimination Act 1977.
Administrative Decisions Review Act 1997; Anti-Discrimination Act
1977; Civil and Administrative Tribunal Act 2013; Technical and
Further Education Commission Act 1990.
Application for Crown Employees (Office of the
Director of Public Prosecutions, Flexible Working Hours) Award
2022 [2023] NSWIRComm 1106
EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise
agreements – approval and creation – application for
new award – forfeiture of "flex hours" by lawyers
working in the Office of the Director of Public Prosecutions
– consideration of the circumstances in which the lawyers
work – consideration of extent of "flex hours"
forfeiture – whether proposed award would be effective to
prevent forfeiture – consideration of other issues arising
– whether intervention of Commission warranted.
Industrial Relations Act 1996 s 10.
Chrystal v Commissioner of Police, NSW Police
Force (No 2) [2023] NSWIRComm 1108
EMPLOYMENT AND INDUSTRIAL LAW – Police – removal
– failure to comply with direction requiring vaccination
against COVID-19 – lawful direction – direction does
not need to be reasonable – whether direction complied with
by not performing duties – late raising of arguments by
Applicant contrary to procedure set out in s 181F(1) – Whether direction contravened
no extra claims clause in Police Award – validity of
delegation of discretion to grant exemption from requirement to be
vaccinated – reasonableness of denial of request for
exemption – Conduct contrary to s 7 of Police Act 1990 (NSW),
reg 8 of Police Regulation 2015 (NSW), s 28 of the Work Health
and Safety Act 2011 (NSW) and NSW Police Force Code of Conduct and
Ethics – applicant went on recreation leave the day after
deadline for first dose of vaccine and a week later, until date of
removal, was certified as unfit to work – applicant has not
discharged onus – application dismissed.
Industrial Relations Act 1996 (NSW) s 163, 357 and 359;
Interpretation Act 1987 (NSW), ss 3 and 49; Police Act 1990 (NSW),
ss 6, 7, 31, 181D, 181E,181F,181G and 201; Police Regulation 2015
(NSW), reg 8; Work Health and Safety Act 2011 (NSW), s 28.
Darmanin v Hornsby Shire Council [2023]
NSWIRComm 1107
EMPLOYMENT AND INDUSTRIAL LAW – termination – statutory
rights – unfair dismissal – employee dismissed for
failure to comply with employer's requirement to be vaccinated
against COVID-19-whether the requirement to become vaccinated
against COVID-19 was a lawful and reasonable direction- whether
dismissal otherwise harsh, unreasonable or unjust.
Industrial Relations Act 1996 (NSW); Work Health and Safety Act
2011 (NSW).
Vanderstock v Victoria [2023] HCA
30
Constitutional law (Cth) – duties of excise – exclusive
power of Commonwealth Parliament – scope and operation of s
90 of Constitution – where s 7(1) of Zero and Low
Emission Vehicle Distance-based Charge Act 2021 (Vic)
("ZLEV Charge Act") purported to oblige registered
operator of zero or low emissions vehicle ("ZLEV") to pay
charge for use of ZLEV on "specified roads" ("ZLEV
charge") – where "specified roads" defined to
include all roads in Victoria and elsewhere in Australia over which
public has right of way – Where ZLEV charge a debt due by
registered operator to Victoria – where question of law
stated for opinion of Full Court as to whether s 7(1) of ZLEV Charge
Act invalid for imposing duty of excise within meaning of s 90 of Constitution – whether ZLEV charge
properly characterised as tax on goods – whether definition
of duty of excise stated in Capital
Duplicators Pty Ltd v Australian Capital Territory [No 2]
(1993) 178 CLR 561 and Ha v New
South Wales (1997) 189 CLR 465 as tax on
production, manufacture, sale or distribution of goods exhaustive
or descriptive – where application for leave to reopen Capital
Duplicators [No 2] and Ha refused – whether inland tax on goods
imposed at stage of consumption answers description of duty of
excise – whether Dickenson's Arcade Pty Ltd v
Tasmania (1974) 130 CLR 177 should be reopened and
overruled.
Words and phrases – "affect goods as articles of
commerce", "articles of commerce", "close
relation to goods", "commodities",
"constitutional fact", "consumer",
"consumption", "consumption tax",
"criterion of liability", "dealing in goods",
"direct tax", "distance-based charge",
"distribution", "duty of customs", "duty
of excise", "electric vehicle", "excise",
"exclusive power", "imposts on goods",
"incidence of tax", "indirect tax",
"inland tax on goods", "manufacture",
"markets in goods", "natural tendency",
"point of consumption", "point of receipt by the
consumer", "price of goods", "production",
"sales tax", "stage of consumption",
"stream of production and distribution", "tax on
commodities", "tax on consumption", "tax on
distribution", "tax on goods", "tax on
manufacture", "tax on production", "tax on sale
of goods", "tendency to depress demand for goods",
"trading tax", "zero or low emissions
vehicle".
Constitution, ss 51(ii), 51(iii), 53, 55, 86, 87, 88, 90, 92, 93,
109; Road Safety Act 1986 (Vic), s 3; Zero and Low Emission Vehicle
Distance-based Charge Act 2021 (Vic), ss 3, 6, 7, 8, 9, 10, 11, 15,
18, 19.
Bailey v Commissioner of Police, NSW Police
Force [2023] NSWCATAD 275
ADMINISTRATIVE LAW – administrative review – Government
information – whether overriding public interest against
disclosure - confidential information – expectation of
confidentiality.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative
Tribunal Act 2013 (NSW); Freedom of Information Act 1982 (Cth);
Freedom of Information Act 1992 (WA); Government Information
(Public Access) Act 2009 (NSW); Information Act 2002 (NT); Police
Act 1990 (NSW); State Records Act 1998 (NSW).
O'Brien v Commissioner of Police, NSW
Police Force [2023] NSWCATAD 272
ADMINISTRATIVE REVIEW – application for firearms licence
– whether not in the public interest for applicant to hold a
licence – whether applicant has a mental illness –
whether false and misleading information provided to the
Commissioner – genuine belief of applicant.
Administrative Decisions Review Act 1997; Civil and Administrative
Tribunal Act 2013; Firearms Act 1996.
Lawler v NSW Education Standards Authority
[2023] NSWCATAD 273
ADMINISTRATIVE LAW – Education Act – home schooling
– registration – whether part-time home schooling
registration permitted – whether requirements in key learning
areas satisfied.
Civil and Administrative Tribunal Act 2013; Administrative
Decisions Review Act 1997; Education Act 1990 (NSW).
Granville Hotel Operations Pty Ltd v
Independent Liquor and Gaming Authority [2023] NSWCA
248
ADMINISTRATIVE LAW – statutory construction – relevant
considerations – Gaming Machines Act 2001 (NSW) ss 39-40
– Application for reduction of mandatory shutdown period
– Whether Authority misconstrued Ministerial Guideline
– whether the term "venues" in the Ministerial
Guideline encompassed the singular – Whether Authority was
wrong to reject application.
STATUTORY INTERPRETATION – Interpretation Act 1987 (NSW) s
8(c) – whether the Interpretation Act applies to Ministerial
Guideline – interplay between common law rules on statutory
interpretation and drafters of legislative instruments –
courts drawing inferences as to likely intentions of drafters
– whether the plural encompasses the singular.
Companies Act 1961 (NSW); Environmental Planning and Assessment Act
1979 (NSW); Gaming and Liquor Administration Act 2007 (NSW) s 6;
Gaming Machines Act 2001 (NSW) ss 3, 4, 7, 39-42, 205; Gaming
Machines Amendment (Shutdown Periods) Act 2003 (NSW); Gaming
Machines Regulation 2010; Gaming Machines Regulation 2019;
Interpretation Act 1987 (NSW) ss 3, 5, 7, 8, 31, 33, 34;
Subordinate Legislation Act 1989 (NSW) s 7; Unlawful Gambling Act
1998 (NSW) s 7(f).
Wilson v Commissioner of Police, NSW Police
Force [2023] NSWCATAD 271
ADMINISTRATIVE REVIEW – firearms – confidentiality
– non-publication – public interest.
Civil and Administrative Tribunal Act 2013; Administrative
Decisions Review Act 1997.
Clift v Commissioner of Police, NSW Police
Force [2023] NSWCATAD 269
Administrative Law – Firearms Act – firearms licence
– revocation of licence – conditional release order
– safe storage requirements.
Civil and Administrative Tribunal Act 2013; Administrative
Decisions Review Act 1997; Firearms Act 1996.
Belkheir v Director of Public Prosecutions
(NSW) [2023] NSWSC 1233
ADMINISTRATIVE LAW – judicial review of Local Court orders
– committal proceedings in the Local Court pursuant to Part 2
of Chapter 3 of the Criminal Procedure Act – delay in police
investigation of criminal allegations – issue of delay in the
progress of committal proceedings – whether brief of evidence
is compliant with the Criminal Procedure Act – whether
extension of time to file charge certificate was validly granted
– undesirability of interfering in criminal proceedings by
separate claims – futility of claim - summons
dismissed.
Crimes Act 1900 (NSW); Criminal Procedure Act 1986 (NSW); Director
of Public Prosecutions Act 1986 (NSW).
YFA v Secretary, NSW Ministry of Health
[2023] NSWCATAP 285
HUMAN RIGHTS – disability discrimination – whether the
Secretary, NSW Ministry of Health is a qualifying 'authority or
body' within the meaning of s 49J(1) of the Anti-Discrimination
Act 1977 (NSW) in respect of private health facilities.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative
Tribunal Act 2013 (NSW); Health Services Act 1997 (NSW); Public
Health Act 1991 (NSW) (repealed); Public Health Act 2010 (NSW);
Private Health Facilities Act 2007 (NSW); Private Health Facilities
Regulation 2017 (NSW).
Roxburgh v Secretary, Department of Education
NSW [2023] NSWCATAD 266
HUMAN RIGHTS – interim order – s105 Anti-Discrimination Act 1977 – status quo
– balance of convenience – abandonment of employment
policy – no irreputable damage – preservation of
rights.
Anti-Discrimination Act 1977.
oOh!media Fly Pty Limited v Transport for NSW
(No 2) [2023] NSWLEC 112
COMPULSORY ACQUISITION – first instance judgment delivered
– parties provided agreed list of questions for determination
in first instance hearing – 217 page judgment delivered
addressing all agreed questions – answers to be incorporated
in agreed Excel spreadsheet to derive quantum of compensation
– Applicant considers additional issue should be determined
in light of findings – informal application to hear and
determine new issue – issue not raised in Applicant's
case – issue sought to be raised inconsistent with
Applicant's case at first instance hearing – preliminary
forensic accounting advice tendered – advice from each
party's expert shows extensive further evidence required
– matter now sought to be agitated arises from conventional
application of long settled and recently applied High Court
authority – informal application for further hearing
refused.
INTEREST – answers provided to agreed questions resulted in
compensation outcome less than that determined by the Valuer
General – obligation on Applicant to repay monies to
Respondent – Respondent seeks order that Applicant pay
post-judgment interest on money to be repaid – order for
post-judgment interest discretionary – not appropriate to
exercise discretion to order payment of interest by dispossessed
Applicant – order for payment of interest rejected.
COSTS – respondent seeks order for costs of informal
application seeking further hearing arising from the first instance
decision – costs a matter of discretion – not
appropriate to order dispossessed Applicant to pay costs of
informal application – application for costs rejected.
CONFIDENTIAL INFORMATION PROTECTION – applicant seeks orders
for redaction of confidential information in first instance
judgment – no opposition to redaction orders –
redactions ordered to be made.
Civil Procedure Act 2005, ss 98(1), 101; Land and Environment Court
Act 1979, ss 38(2) and 39.
LW & EBR Peeck & Sons Pty Ltd v
Regional Growth NSW Development Corporation [2023] NSWLEC
1617
COMPULSORY ACQUISITION – objection to the amount of
compensation offered by the respondent – conciliation
conference – agreement between the parties –
orders.
Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55,
56, 59, 66; Land and Environment Court Act 1979, s 34.
Australian Salaried Medical Officers'
Federation (NSW) v Health Secretary in respect of South Wester
Sydney Local Health District [2023] NSWIRComm 1105
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise
agreements – dispute resolution – interpretation
– office accommodation – reasonably necessary.
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations
Commission – procedure and powers – arbitration.
Health Administration Act 1982 s 8; Health Service Act 1997 s 126B;
Industrial Relations Act 1996, ss 6, 130, 135, 136, 137, 139, 146,
175; Work Health and Safety Act 2011 ss 47, 48, 49.
Aidan Llewellyn trading as the Trustee for the
House of Llewellyn v the State of New South Wales [2023] NSWSC
1250
MORTGAGES AND SECURITIES – whether registered and
authenticated birth certificate a security – "full faith
and credit" - Summary dismissal of claim.
The Constitution (Cth).
Saunders Civilbuild Pty Ltd v SafeWork New
South Wales [2023] NSWCCA 261
APPEALS – appeal against conviction – nature of appeal
- failure to establish any of the three grounds of appeal - appeal
is dismissed – conviction sustained.
EMPLOYMENT AND INDUSTRIAL – prosecution – work health
and safety – relevant principles – duty of persons
undertaking business – duty of employers – risk of
death or serious injury – death of worker – s 19(1) of
the Workplace Health and Safety Act 2011 (NSW) – elements of
offences – reasonable practicability – Baiada –
written instructions – training – supervision -
relevance of post-incident conduct – essential facts –
safe work procedures and methods – written instructions and
directions – whether safe work methods and procedures were
reasonably practicable – omissions.
CRIMINAL LAW – appeal – work health and safety –
exposing employee to risk of death or serious injury –
conviction sustained.
EVIDENCE – communication with deceased persons –
rejection of evidence when it is illogical, unreliable or
contradictory to a large body of alternative evidence –
Landmark Roofing – accepting parts but not all
evidence.
Coal Mines Act 1911 (UK); Crimes Act 1958 (Vic); Criminal Appeal
Act 2012 (NSW), s 5AA(1)(a); Health and Safety in Employment Act
1992 (NZ); Metalliferous Mines General Regulations 1938 (UK);
Occupational Health & Safety Act 2004 (Vic); Occupational
Safety and Health Act 1984 (WA); Work Health and Safety Act 2022
(NSW), s 155; Work Health and Safety (National Uniform Legislation)
Act 2011 (NT); Workplace Health and Safety Act 2011 (NSW), ss 19,
32, 155.
Blanc Black Projects Pty Limited v Willoughby
City Council (No 2) [2023] NSWLEC 1621
DEVELOPMENT APPLICATION – remitted matter – residential
flat building – condition requiring payment of affordable
housing contribution.
Environmental Planning and Assessment Act 1979, ss 4.17, 7.11,
7.32, 8.7; Land and Environment Court Act 1979, s 56A; State
Environmental Planning Policy No 70 – Affordable Housing
(Revised Schemes), cll 3, 6, 7, 8, 9, 10, Sch 2, Principle 1;
Willoughby Local Environmental Plan 1995; Willoughby Local
Environmental Plan 2012, cll 1.8A, 4.3, 4.6, 6.8; Willoughby Local
Environmental Plan 2012 (Amendment No 34).
Ferguson v Shoalhaven City Council [2023]
NSWCATAD 276
HUMAN RIGHTS – Racial Discrimination –
victimisation.
Anti-Discrimination Act, 1977 (NSW).
Verde Terra Pty Ltd v Central Coast Council;
Central Coast Council v Environment Protection Authority (No
11) [2023] NSWLEC 110
COSTS: determination of the 'event' – whether costs
should be apportioned – whether costs payable on an indemnity
basis on the basis of Calderbank offers – whether costs
payable on an indemnity basis on the basis of abuse of process
– legal principles – costs apportioned – costs
payable on an ordinary basis only.
Civil Procedure Act 2005, ss 56, 98; Protection of the Environment
Operations Act 1997, s 50(2); Uniform Civil Procedure Rules 2005,
rr 1.5, 42.1, 42.5, Sch 1.
Chau v Georges River Council [2023]
NSWLEC 1619
DEVELOPMENT APPLICATION – mixed use – boarding house
– clause 4.6 – breach to height of buildings –
design excellence – heritage – streetscape –
amenity.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.11,
8.15; Environmental Planning and Assessment Regulation 2000, cll
55, 64; Georges River Local Environmental Plan 2021, cll 4.3, 4.6,
6.10; Land and Environment Court Act 1979, s 39; Standard
Instrument (Local Environmental Plans); Amendment (Land Use Zones)
Order 2022; State Environmental Planning Policy (Affordable Rental
Housing) 2009; State Environmental Planning Policy (Biodiversity
and Conservation) 2021; State Environmental Planning Policy
(Housing) 2021, Sch 7A; State Environmental Planning Policy
(Resilience and Hazards) 2021; State Environmental Planning Policy
(Transport and Infrastructure) 2021.
Mathew Massasso t/as Five Dock Pharmacy v
Sydney Metro [2023] NSWLEC 115
COMPENSATION – compulsory acquisition of leasehold interest
in shop premises – claim for loss of profit rent allegedly
lost for the remainder of the term of the lease renewal options
– consideration of market rent – no difference between
passing rent and market rent established – profit rent claim
fails.
COMPENSATION – compulsory acquisition of leasehold interest
in shop premises – claim for relocation of retail pharmacy
business – substantial demolition and
construction/reconstruction and structural alterations to
relocation premises – whether structural alteration costs
appropriate to be borne by Applicant and reimbursed by acquiring
authority – costs of demolition and
construction/reconstruction appropriate to be regarded as
landlord's costs – claim rejected.
COMPENSATION – claim for cost of buying out existing tenants
in order to render demolition and construction/reconstruction
activities possible – cost of buying out existing tenants
appropriate to be regarded as landlord's expenses – claim
for reimbursement of cost of buying out existing tenants
rejected.
COMPENSATION – claim for costs of fit-out of new premises
– new premises fitted-out not only in compliance with
regulatory requirements but also to best contemporary pharmacy
practice – were costs of fit-out reasonably incurred and thus
compensable – costs of fit-out reasonably incurred –
Applicant entitled to reimbursement for costs of fit-out.
COMPENSATION – claim for differential in rental between that
paid at the acquired premises and that paid at the relocation
premises – rent at relocation premises higher than that at
acquired premises - claim based on full term of lease assuming
exercise of multiple renewal options - relocation premises larger
than acquired premises rate per square metre at relocation premises
lower than that at acquired premises – rent comparison
appropriate on rate per square metre – no basis for claim
– differential rent claim rejected.
COMPENSATION – claim for reimbursement for double rental paid
at the acquired premises and that paid at the relocation premises
– claim based on time including time for demolition and
construction/reconstruction works – not appropriate to order
reimbursement for rent paid during period whilst landlord's
works were being undertaken – appropriate to allow nominal
three-month rent-free period for fit-out works as provided for in
the lease– claim for reimbursement of double rental
rejected.
COMPENSATION – compulsory acquisition of leasehold interest
in shop premises – claim for temporary business losses
– losses said to arise as a consequence of this favourably
located new premises – whether loss occasioned by ongoing
gradual decline of business – claim not established.
COMPENSATION – compulsory acquisition of leasehold interest
in shop premises – claim for long-term loss of profit as a
consequence of non-establishment of proposed nearby medical Centre
– site of proposed medical Centre also resumed for public
purpose – assumptions underpinning claim of increased
business from medical centre not established – claim rejected
– claim rejected.
COSTS – claims arising from compulsory acquisition of
leasehold interest in retail premises – although
significantly unsuccessful, Applicant's case not completely
unarguable or hopeless – appropriate acquiring authority pays
costs of Applicant on ordinary basis.
Civil Procedure Act 2005; Health Practitioner Regulation 2016
(NSW); Land Acquisition (Just Terms Compensation) Act 1991; Uniform
Civil Procedure Rules 2005.
Legislation
In force
Criminal Legislation Amendment (Knife Crimes) Act
2023 No 12 – commenced 23 October 2023
State Insurance and Care Governance Amendment
(ICNSW Governance) Act 2023 No 33 – assented to 24
October 2023
Radiation Control Amendment Act 2023 No 30
– assented to 24 October 2023
Mining Amendment (Mineral Claims – Opal) Act
2023 No 29 – assented to 24 October 2023
Passed by both Houses
Revenue, Mining and Energy Legislation Amendment
Bill 2023 – passed 19 October 2023
Justice Legislation Amendment (Miscellaneous) Bill
2023 – passed 19 October 2023
Health Legislation Amendment (Miscellaneous) Bill
2023 – passed 18 October 2023
Water Recycling and Processing Corporation
(Authorised Transaction) Amendment Bill 2023 – passed 18
October 2023
Statute Law (Miscellaneous Provisions) Bill (No 2)
2023 – passed 18 October 2023
Defamation Amendment Bill 2023 – passed
17 October 2023
Government Bills
24-Hour Economy Commissioner Bill 2023 –
introduced LC 19 October 2023
24-Hour Economy Legislation Amendment (Vibrancy
Reforms) Bill 2023 – introduced LC 19 October 2023
Biosecurity Amendment (Independent Biosecurity
Commissioner) Bill 2023 – introduced LC 19 October
2023
Building Legislation Amendment Bill 2023
– passed LC 19 October 2023
Centennial Park and Moore Park Trust Amendment
(Car Parking) Bill 2023 – amended in LA, introduced LC
for concurrence 19 October 2023
Centennial Park and Moore Park Trust Amendment
(Public Transport) Bill 2023 – introduced LC 17 October
2023
Crime and Criminal Procedure Legislation Amendment
Bill 2023 – introduced LA 18 October 2023
Emergency Services Legislation Amendment Bill
2023 – amended in LC and referred to LA 19 October
2023
Jury Amendment Bill 2023 – introduced LC
19 October 2023
Road Transport Legislation Amendment (Automated
Seatbelt Enforcement) Bill 2023 – introduced LA 18
October 2023
Sheriff and Court Security Amendment Bill 2023
– introduced LA 18 October 2023
Strata Legislation Amendment Bill 2023 –
passed LC 19 October 2023
Non-government Bills
Prevention of Cruelty to Animals Amendment
(Independent Office of Animal Welfare) Bill 2023 –
introduced LC 18 October 2023
Surveillance Devices Amendment (Public Interest
Exemptions) Bill 2023 – introduced LC 11 October 2023
Regulations and miscellaneous instruments
Criminal Procedure Amendment (Penalty Notice)
Regulation 2023 (SI 529) – commenced 23 October
2023
Regional Development Amendment (Advisory Council)
Regulation 2023 (SI 575) – LW 20 October 2023
Environmental Planning Instruments
Yass Valley Local Environmental Plan 2013
(Amendment No 18) (2023 EPI 580) – LW 20 October
2023
Lake Macquarie Local Environmental Plan 2014
(Amendment No 50) (2023 EPI 577) – LW 20 October
2023
Griffith Local Environmental Plan 2014 (Amendment
No 7) (2023 EPI 576) – LW 20 October 2023
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.
