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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Posted in development contributions | planning agreements | value capture, enforcement | compliance | Leave a comment

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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Coastal Reforms Transitional Provisions – Coastal Management SEPP

The coastal reforms comprising the State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP) and the Coastal Management Act 2016 (Act) commenced on 3 April 2018. These reforms repealed the Coastal Protection Act 1979 (Former Act). However, the Act and CM SEPP do not automatically apply to all actions taken in the coastal zone from that date. There are transitional provisions which need to be carefully considered. This article discusses the transitional provisions in the CM SEPP, and a recent Court decision on those provisions.

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Public Sector Agencies’ – Civil Liability for Child Abuse

On 26 October 2018 the NSW Parliament passed legislation to introduce a statutory duty on both public sector agencies and private organisations to prevent the abuse of children.  Continue reading

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Conciliation agreements – Commissioners must give reasons

A development consent granted by a Land and Environment Court Commissioner following a s34 conciliation conference has been set aside by the Court of Appeal because the Commissioner failed to give reasons evidencing her satisfaction as to the legal prerequisites to her power to grant the consent.

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