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In practice and courts
AAT Bulletin Issue No.5/2023
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 (13 March 2023). Read more
here.
Decisions Reserved
The Court of Appeal maintains a list of matters before the
Court for which judgment is reserved (17 March 2023). Read more
here.
Publications – articles, papers and reports
NSW Government expands building industry reforms
To better protect homeowners and workers, the NSW
government has expanded its building industry reforms to include
“buildings where people live and work including shared
accommodation, hostels, boarding houses and residential aged
care”. Read the article
here.
NSW kickstarts decarbonisation and circular design in
infrastructure (NSW)
The cost of carbon in future NSW Government infrastructure
projects will be measured in business cases to drive down emissions
and costs in NSW. Read the notice
here.
Cases
The Council
of the City of Sydney v Emag Apartments Pty Limited
[2023] NSWLEC 23
APPEAL – s 56A of Land and Environment Court
Act 1979 (NSW) – cl 6.21 of the Sydney Local
Environmental Plan – proper construction of design excellence
clause – whether Commissioner failed to have regard to
mandatory requirements – cl 55 of
Environmental Planning and Assessment Regulation – whether
error of law in granting consent to amended DA where DA not
lawfully amended – lack of owner’s consent at time
unamended DA determined – whether Commissioner failed to give
adequate reasons – appeal allowed and remitted to
Commissioner – respondent to pay costs.
Environmental Planning and Assessment Act 1979 (NSW); Land and
Environment Court Act 1979 (NSW); Environmental Planning and
Assessment Amendment (Planning Portal) Regulation 2020 (NSW);
Environmental Planning and Assessment Regulation 2000 (NSW);
Environmental Planning and Assessment Regulation 2021 (NSW).
Randwick
Council v Fusion Developments Pty Ltd [2023]
NSWLEC 19
APPEAL – appeal against Commissioner’s decision
in Class 1 proceedings – local environmental plan requires
development on site to exhibit design excellence – the plan
sets criteria for assessment of design excellence – plan also
makes provision requiring a “competitive design process”
– the plan also permits dispensation to be given from
requirement for a “competitive design process” –
Commissioner concludes proposed development demonstrates design
excellence – Commissioner exercises discretion to dispense
with “competitive design process” – consideration
of whether Commissioner’s exercise of discretion miscarried
– no error in Commissioner’s exercise of discretion to
dispense with “competitive design process” – appeal
dismissed – Applicant ordered to pay Respondent’s costs
of the appeal.
Environmental Planning and
Assessment Act 1979; Land and Environment Court
Act 1979; Land and
Environment Court Rules 2007; Randwick Local Environmental
Plan 2012.
Developer
Entity Pty Ltd v Strathfield Municipal Council
[2023] NSWLEC 1118
APPEAL – development application – multi
dwelling housing – compliance with minimum lot size
development standard – whether consistent with the objective
of the standard – whether bulk and scale appropriate for the
site in its context.
Environmental Planning and Assessment Act 1979; Strathfield Local
Environmental Plan 2012.
Ogilvie v
Rovest Holdings Pty Ltd [2023] NSWLEC
17
JUDICIAL REVIEW – Ground 1 – Council grants
development consent for proposed motel – development consent
incorporates approval under the Local Government Act 1993
(the Local Government
Act) to install multi-room accommodation modular units
transported to the site to provide accommodation for the motel
– whether modular units are “movable dwellings” as
defined by the Local
Government Act – modular units not “movable
dwellings” – modular units are “buildings”
requiring approval pursuant to the Environmental Planning and
Assessment Act 1979 (the EPA Act) – no
approval given for “buildings” pursuant to the EPA Act –
development consent invalid on this ground.
JUDICIAL REVIEW – ground 2 – provision in local
environmental plan sets three criteria mandated to be satisfied for
stormwater disposal from the site –consent authority
considered and was satisfied as to one of the three mandatory
provisions – no evidence the consent authority considered two
of the mandatory provisions – required state of satisfaction not
demonstrated concerning two mandatory stormwater criteria –
failure to consider and reach required state of satisfaction of
mandated criteria renders development consent invalid –
appropriate to make declaration development consent invalid on this
ground.
JUDICIAL REVIEW – ground 3 – local environmental plan
requires that consent authority be satisfied as to availability of
services – requirement that services are or will be available
– satisfaction of the deferred commencement condition ensures
mandated service (access to sewer for effluent disposal) will be
available for issue of construction/occupation certificate –
consent authority imposes deferred condition of consent – deferred
commencement condition permits consent authority to reach mandated
conclusion that sewage service will be available – mandatory
prerequisite satisfied – challenge based on availability of
sewage services rejected.
DISCRETION – parties agree questions of relief to be deferred
to future hearing if invalidity established – directions to
be given to set date of and timetable for separate hearing on
relief as a result of invalidity of development consent.
COSTS – costs to be addressed at hearing on exercise of
discretion.
Blayney Local Environmental Plan 2012; Environmental Planning and
Assessment Act 1979; Local Government Act 1919; Local Government
Act 1993; Local Government (Manufactured Home Estates, Caravan
Parks, Camping Grounds and Moveable Dwellings) Regulation 2005;
Local Government (Manufactured Home Estates, Caravan Parks, Camping
Grounds and Moveable Dwellings) Regulation 2021.
GFM Investment Group Pty Ltd in its capacity as Trustee
for GFM Home Trust Subtrust No. 7 v Inner West
Council [2023] NSWLEC
1112
DEVELOPMENT APPLICATIONS – two development
applications associated with regionally significant mixed use
development – site specific planning controls – early
works development application for demolition, tree removal, site
establishment works – main works development application for
demolition, excavation, remediation, construction including
adaptive reuse of existing industrial buildings and three new
buildings and new open space areas – design excellence
– need for balconies within proposed studios and one-bedroom
apartments – visual massing of new building and whether
appropriate transition to adjacent low density residential
development – lay objections.
Contaminated Land Management Act 1997; Environmental Planning and
Assessment Act 1979; Inner West Local Environmental Plan 2022; Land
and Environment Court Act 1979; Marrickville Local Environmental
Plan 2011; State Environmental Planning Policy (Affordable Rental
Housing) 2009; State Environmental Planning Policy (Resilience and
Hazards) 2021; State Environmental Planning Policy (Transport and
Infrastructure) 2021.
Sixjay Newport Pty Ltd v Northern Beaches
Council [2023] NSWLEC
1109
DEVELOPMENT APPLICATION – residential flat building
– consistency with character – existing use
rights.
Environmental Planning and Assessment Act 1979; Environmental
Planning and Assessment Regulation 2000; Pittwater Local
Environmental Plan 2014; State Environmental Planning Policy
(Resilience and Hazards) 2021; State Environmental Planning Policy
No. 65 – Design Quality of Residential Apartment
Development.
Awelf Construction Pty Ltd v City of Parramatta
Council [2023] NSWLEC
1108
DEVELOPMENT APPLICATION: residential flat building in R4
High Density Residential zone – whether proposed development
exhibits design excellence – satisfactory arrangements for
designated state infrastructure – public submissions are
considered.
Architects Act 2003; Environmental Planning and Assessment Act
1979; Environmental Planning and Assessment Regulation 2000;
Parramatta Local Environmental Plan 2011; State Environmental
Planning Policy (Biodiversity and Conservation) 2021; State
Environmental Planning Policy (Building Sustainability Index:
BASIX) 2004; State Environmental Planning Policy (Resilience and
Hazards) 2021; State Environmental Planning Policy No 65 –
Design Quality of Residential Apartment Development; Water
Management Act 2000.
Legislation
Regulations and other miscellaneous instruments
Heavy
Vehicle (Vehicle Standards) National Amendment Regulation 2023
– published LW 17 March 2023
Environmental planning instruments
Ku-ring-gai
Local Environmental Plan 2015 (Amendment No 33) –
published LW 17 March 2023
Port
Macquarie-Hastings Local Environmental Plan 2011 (Map Amendment No
3) – published LW 17 March 2023
Cabonne
Local Environmental Plan 2012 (Map Amendment No 1) –
published LW 10 March 2023
Coffs
Harbour Local Environmental Plan 2013 (Amendment No 30) –
published LW 10 March 2023
Cumberland
Local Environmental Plan 2021 (Map Amendment No 3) –
published LW 10 March 2023
Commonwealth legislation
Family
Law Act 1975 17/03/2023 – Act No. 53 of 1975 as
amended
Fair
Work (Registered Organisations) Act 2009 14/03/2023 – Act
No. 86 of 1988 as amended
Fair
Work Act 2009 10/03/2023 – Act No. 28 of 2009 as
amended
DisabilityCare
Australia Fund Act 2013 10/03/2023 – Act No. 37 of 2013
as amended
Medical
Research Future Fund Act 2015 09/03/2023 – Act No. 116 of
2015 as amended
Future
Drought Fund Act 2019 09/03/2023 – Act No. 55 of 2019 as
amended
Bills Introduced
Fair Work
Amendment (Right to Disconnect) Bill 2023 21 March 2023
Education
Legislation Amendment (Startup Year and Other Measures) Bill
2023 10 March 2023
Ending
Native Forest Logging Bill 2023 09 March 2023
Improving
Access to Medicinal Cannabis Bill 2023 09 March 2023
National
Health Amendment (Effect of Prosecution – Approved Pharmacist
Corporations) Bill 2023 09 March 2023
National
Vocational Education and Training Regulator (Data Streamlining)
Amendment Bill 2023 09 March 2023
Social
Security (Administration) Amendment (Income Management Reform) Bill
2023 09 March 2023
Treasury
Laws Amendment (Financial Services Compensation Scheme of Last
Resort) Bill 2023 09 March 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.
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