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).
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.
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.
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.
"Amber Light" decisions in Class 1 Planning Appeals
Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19.
In this case the Court determined an appeal from a decision by a Commissioner to uphold a Class 1 appeal and to grant consent for development at Pymble including, inter alia, the demolition of existing buildings and the construction of a new building for the purposes of hardware and building supplies.
In considering this issue, the Court sets out a useful overview of the scope of the "Amber Light Approach" and the circumstances in which it may be applied in Class 1 Planning Appeals.
SEPP 55 - Application to Planning Proposals & Gateway Determinations
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186.
In this case, the NSW Land and Environment Court considered the application of Clause 6 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55):
- to the preparation of a Planning Proposal; and
- to the making of a Gateway determination.
The Court found that the Clause 6 of SEPP 55 was not engaged (and so did not need to be complied with) in the making of either decision under challenge.
Is a private road a "building"?
Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147.
In this case, the NSW Land and Environment Court considered whether a private road constitutes a "building" for the purposes of the EP&A Act the construction of which requires authorisation under a construction certificate.
Applying the 3 characteristics of "structures" identified by Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56, the Court found that the road did constitute a "structure" (and therefore a "building").
4Nature litigation - Parliament to overturn decision of Court of Appeal
On 9 October 2017, the NSW Minister for Energy and Utilities announced that legislation would be introduced to overturn the decision of the NSW Court of Appeal in 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191.
Moorebank Intermodal Terminal - Objector appeal - Standing of objector to bring appeal
Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning [2017] NSWLEC 115
The NSW Land and Environment Court has dismissed a challenge by a project proponent (Qube,) who is the Second Respondent in the proceedings, to the standing of the Applicant to bring the proceedings.
The proceedings involve an "objector appeal" brought in relation to an SSD consent granted for the Moorebank Intermodal Precinct East – Stage 1 project.
The Applicant/Objector, Residents Against Intermodal Development Moorebank Inc (RAIDM Inc), is an incorporated body. However, at the time it made its objection to the development, it was an unincorporated association known as Residents Against Intermodal Development Moorebank (RAID Moorebank).
In reaching its decision, the Court considered the scope of persons permitted to bring an objection to development under Section 79(5) and 98(1) of the EP&A Act and the effect of Clause 2(1)(b) of Schedule 2 of the Associations Incorporation Act 2009 (which provides that, upon the incorporation of an unincorporated association, its rights and liabilities vest in the incorporated body).
Modification of Part 3A Concept Approval to exclude land - Excluded landowner's consent not required
Platform Project Services Pty Ltd v Minister for Planning [2017] NSWLEC 102
The NSW Land and Environment Court has confirmed that, where it is proposed to modify a Part 3A project approval to exclude land, it is not necessary to obtain consent from the owner of the excluded land.
EP&A Act – Amended to establish Local Planning Panels
The EP&A Act had been amended to require Councils within the Greater Sydney Region and the City of Wollongong to establish a Local Planning Panel. Other Councils may do so on a voluntary basis. In areas where a panel is established, Councillors will no longer exercise any Council planning functions.
EP&A Act – Special procedures for staged development – Amendments in response to Bay Simmer case
The special procedures concerning staged development applications in the EP&A Act have been amended in response to the Court of Appeal's decision in the Bay Simmer case.
4Nature successfully challenges Centennial Springvale SSD consent
4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191
The Court of Appeal has upheld 4Nature's appeal from a decision of the Land and Environment Court to dismiss its challenge to the SSD consent granted for the continued operation of the Centennial Springvale mine.
The case turned upon the correct interpretation of the requirement, contained in Clause 10 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, that the consent authority be satisfied that the development would have a neutral or beneficial effect on water quality.
Applications for SEARs where only part of development is SSD
Besmaw Pty Limited v Secretary, Department of Planning and Environment [2017] NSWLEC 74
An important decision on the scope of the Secretary's discretion to refuse to issue SEARs for SSD with substantial non-SSD components "not sufficiently related to" SSD components.