Penalties and powers to investigate environmental crimes in NSW will be boosted by the biggest reform of environmental legislation by the NSW Parliament in decades.
Environmental Offences - Court makes orders under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999
On 29 September 2023 the Land and Environment Court handed down its decision in Natural Resources Access Regulator v Kimber; Natural Resources Access Regulator v Kimber [2023] NSWLEC 101.
In this case the Court considered what sentences ought to be imposed upon two individuals who each pleaded guilty to offences under section 60B of the Water Management Act 2000 (WM Act).
For one of the first times ever in a case involving offences under the WM Act, the Court ordered that the charges against each defendant be dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) without proceeding to conviction.
Deemed refusal of DAs: Expiry of special COVID-19 provisions
The appeal period for an actual or deemed refusal for an application for development consent has reverted from 12 months back to 6 months following the expiry, on 25 March 2022, of the “prescribed period” introduced by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (COVID Act).
TransGrid HumeLink Project: Proposed compulsory acquisition of land
TransGrid is planning a new project called HumeLink which involves the construction of a new 500kV electricity transmission line which will carry electricity from “new generation” sources, including the expanded Snowy Hydro Scheme, and which will connect Wagga Wagga, Bannaby and Maragle.
The carrying out of the Project is anticipated to require the compulsory acquisition of land including the creation of easements over land.
ARTC Inland Rail Project: Proposed compulsory acquisition of land
The Australian Rail Track Corporation (ARTC) is in the process of constructing a new 1,700KM freight rail network connecting Melbourne and Brisbane via regional Victoria, New South Wales and Queensland.
Land in NSW will be acquired on behalf of ARTC by Transport for NSW under the processes set out in the Land Acquisition (Just Terms Compensation) Act 1991. Among other things, this legislation determines how compensation is awarded for any acquisition (where compensation cannot be agreed).
Western Harbour Tunnel and Beaches Link Project: Proposed compulsory acquisition of land
The NSW government has embarked on an approximately $14 billion scheme to build underground motorways connecting greater Sydney. This project will consist of a Western Harbour Tunnel and Warringah Freeway Upgrade in addition to a Northern Beaches Link and Gore Hill Freeway Connection.
The Western Harbour Tunnel will stretch from the Warringah Freeway at Cammeray, across Sydney Harbour, to the WestConnex interchange at Rozelle. This development is expected to reach completion by 2026.
The acquisition of land will be carried out under the processes set out in the Land Acquisition (Just Terms Compensation) Act 1991. Among other things, this legislation determines how compensation is awarded for any acquisition (where compensation cannot be agreed).
When will the Land and Environment Court order a prosecutor to pay the costs of a successful appellant?
What has happened?
A recent decision in the Land and Environment Court (Hossein Yamini v The Council of the City of Sydney (No. 2) [2020] NSWLEC 120) provides useful guidance on when the Court will order a prosecutor to pay the costs of a successful appellant against a conviction under the POEO Act.
Update on Land and Environment Court Pandemic Arrangements
What has happened?
The Land and Environment Court continues to develop updated policies and arrangements during the COVID-19 pandemic and now foreshadows a staged return to face to face hearings, conciliation conferences and mediation.
On 1 July 2020, the Court issued a policy to provide guidance on court attendances during COVID-19 times, replacing an earlier March policy.
Case Update: Is a private road a "building"?
In November 2017, we reported on the decision in Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147 (Louisiana Properties).
In that case, the NSW Land and Environment Court held that a private road forming part of the subject matter of those proceedings was a ‘building’ for the purposes of the environment.
On 24 October 2018, the NSW Court of Appeal overturned this finding. Its reasons for so doing are briefly summarised in this case note.
Sydney Metro West: Proposed compulsory acquisition of properties to construct the project
In October 2019, the NSW State Government announced that the construction of the Sydney Metro West project will commence in early 2020. The Metro West is the third stage of the city’s metro rail network.
The state government will acquire approximately 93 businesses and 23 residential properties to build the project.
Coffs Harbour Bypass Project: Proposed compulsory acquisition of properties to construct the project
Compensation for Extinguishment of Native Title Rights
On 13 March 2019, the High Court of Australia handed down its decision in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7.
Two key issues considered in the case were (at [2]):
“how the objective economic value of the affected native title rights and interests is to be ascertained”; and
“how the Claim Group's sense of loss of traditional attachment to the land or connection to country is to be reflected in the award of compensation”.
Considering the impacts of coal mining on climate change - Lessons from Gloucester Resources case
Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
In this judgment, handed down on 8 February 2019, the Chief Judge of the NSW Land and Environment Court dismissed an appeal by Gloucester Resources Limited against a decision by the Minister for Planning to refuse to grant development consent for its Rocky Hill Coal Project.
In dismissing the appeal, the Court held that the Project would have significant direct and indirect adverse impacts which would outweigh its potential benefits.
One of the adverse impacts considered by the Court related to the potential impacts of the Project on climate change due the emission of greenhouse gases (GHG).
This includes GHG emitted both directly and indirectly by by the Project. The lengthy written judgment handed down by the Court provides clear guidance as to how the emissions of GHG should be evaluated in the broader context of evaluating the overall merits of a proposed development.
Political Donations: an important reminder about disclosure obligations when making planning applications or public submissions
There have been several recent decisions in the Land and Environment Court in which companies have been convicted for failing to disclose political donations and gifts when making relevant planning applications.
This article provides a brief overview of the key issues which need to be considered when determining whether particular political donations need to be disclosed.
Judicial Review - Commencing appeal following expiry of appeal period - Applicable principles
Wingecarribee Shire Council v Uri Turgeman [2018] NSWLEC 146.
In this case, the NSW Land and Environment Court upheld an application by the applicant Council to extend the normal 3 month appeal period for commencing judicial review proceedings imposed under Rule 59.10(1) of the UCPR.
In so doing, the Court exercised the discretion to extend the appeal period conferred on it by Rule 59.10(2). This case provides a useful summary of the key principles that will be considered by a Court when determining how to exercise this discretion.
In so doing, the Court has provided a useful overview of the approach it will take to analysing each of the following 4 preconditions prescribed under s 88K which must be satisfied before an easement will be granted:
Steele Law joined by new Director and renamed "Bick & Steele"
Section 88K Easements - A reminder of the applicable principles
ATB Morton Pty Ltd v Community Association DP270447 (No 2) [2018] NSWLEC 87.
In this case, the NSW Land and Environment Court decided to grant an easement in response to an application made under s 88K of the Conveyancing Act 1919.
In so doing, the Court has provided a useful overview of the approach it will take to analysing each of the following 4 preconditions prescribed under s 88K which must be satisfied before an easement will be granted:
the easement must be reasonably necessary for the effective use or development of other land that will have the benefit of the easement;
the use of the land having the benefit of the easement must not be inconsistent with the public interest;
the owner of the land to be burdened by the easement and each other person having an estate or interest in that land ... must be able to be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement; and
all reasonable attempts must have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
Desane case - Westconnex - Court halts compulsory acquisition of land
Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553.
In this case, the NSW Supreme Court upheld a challenge to the validity of a Proposed Acquisition Notice (PAN) issued by RMS to a landholder (Desane) because the PAN:
deviated impermissibly from the approved form;
did not specify the public purpose of the acquisition; and
was issued for a purpose not authorised under the Roads Act 1993.
New Coastal Management Framework for NSW
The coastal management framework for NSW has changed. The Coastal Management Act 2016 has been amended and the Coastal Protection Act 1979 has been repealed.
The development controls and approval pathway for coastal development are now found in a new Coastal Management SEPP with certain consequential changes also having been made to the Infrastructure SEPP.
EP&A Act - Substantial Amendments
On 1 March 2018, the Environmental Planning and Assessment Act 1979 was substantially amended in what has been described by the NSW Government as the "biggest overhaul to the Act in 40 years".
Along with numerous substantive changes, the Act has also been completely renumbered.
To support these changes, the NSW Department of Planning & Environment has produced two essential resources which should be reviewed by anyone wishing to understand the scope and import of the amendments to the Act:
- a Guide to the updated Act which highlights the key changes made to each Part of the Act; and
- a Sections Guide which lists frequently used sections of the pre-amendment Act alongside their new section numbers in the amended Act.
For further information on these amendments and thepotential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.