There goes the (amenity of the) neighbourhood….

Consent authorities regularly impose a condition on development consents to the effect that the development approved must be conducted in a manner so as not to interfere with the amenity of the neighbourhood.  The Court recently provided guidance on the obligation imposed by the terms of such a condition and the analysis that should be undertaken to ascertain whether the condition has been breached.

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The Meaning of ‘Land’

Two recent Land and Environment Court decisions have considered what constituted the land on which a heritage item is situated, and what constituted the land on which an extractive industry was being carried out. The cases remind us that the Court will not consider land by reference to one Torrens title lot, but will have regard to the scope and purpose of statutory provisions.

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UPDATE – New Model Code of Conduct and Procedures & Model Code of Meeting Practice Prescribed

On 14 December 2018 the Model Code of Meeting Practice for Local Councils, 2018 Model Code of Conduct and 2018 Procedures for the Administration of the Model Code of Conduct were prescribed. Council’s previous codes are saved until 14 June 2019. After then, they will be of no effect to the extent they are inconsistent with the model codes.

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A ‘Road’ is not a ‘Building’

In the recent case of Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240, the NSW Court of Appeal held that the construction of a road did not constitute the erection of a building, and as a result did not require a construction certificate.

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Overview of Proposed 2018 Native Title Reforms

In November 2018, the Commonwealth Attorney-General’s Department and the Minister for Indigenous Affairs released exposure draft legislation which proposed reforms to the native title system under the Native Title Act 1993 (Cth). The two exposure drafts, the Native Title Amendment Bill 2018 (‘Amendment Bill‘) and the Registered Native title Bodies Corporate Legislation Amendment Regulations 2018 (‘2018 Regulations‘) are currently on exhibition for public comment. Continue reading

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When are extrinsic documents incorporated into a development consent

An issue which frequently arises in interpreting development consents is whether extrinsic documents may be taken into account. The general principle that consents are ‘stand alone’ documents, is subject to rules about when they do in fact incorporate other documents by express reference or necessary implication.

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Securities for enforcement of planning agreement and consent obligations

The Department of Planning and Environment has indicated that it is updating its policies and procedures for the safekeeping, release and monitoring of financial securities for enforcement of obligations under  conditions of development consent and planning agreements (PA’s). It has also informed the NSW Audit Office that it is developing the new policies and procedures.

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ICAC – new guidelines for direct negotiations

The NSW Independent Commission Against Corruption has published new guidelines for public sector organisations ‘Direct negotiations: guidelines for managing risks‘ (‘2018 Guidelines‘).

The 2018 Guidelines replace the guidelines published by the Commission in 2006 (‘2006 Guidelines‘).

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Complying development certificate for dwelling found invalid for lack of retaining wall certification

The Building Professionals Board (‘BPB‘) recently investigated a complying development certificate (‘CDC‘) issued by an accredited certifier for the erection of a dwelling.  The CDC was issued without an engineer’s certificate for a retaining wall to support the excavation for the concrete slab. The BPB concluded that the CDC was issued inappropriately as the development did not comply with the relevant prescribed development standards in that regard.

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Protective (or maximum) costs orders in the LEC

The power of the Land and Environment Court to make protective (or maximum) costs orders – orders which cap the costs that may be recovered by a party from another in litigation  – was considered by Pepper J in the recent case of Nerringillah Community Association Inc v Laundry Number Pty Ltd [2018] NSWLEC 157. Continue reading

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