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Does it matter whether a DA complies with the LEP?
It is usually thought that if a planning instrument such as an LEP contains a clause to the effect that “consent must not be granted unless…”, an application must either comply with the specified condition, or be granted a dispensation,…
UK Court declares overlooking can constitute private nuisance
The tort of nuisance provides common law protections for owners and users of land against substantial and unreasonable interference by others with their use and enjoyment of the land. This usually includes things like preventing neighbours from creating loud noises,…
Court clarifies when environmental prosecutions are commenced out of time
In a recent decision, the NSW Land and Environment Court considered the rules of statutory interpretation which apply to time limitations for the commencement of prosecutions under the National Parks and Wildlife Act 1974 (‘NPW Act‘) and the Biodiversity Conservation Act…
Challenging CDCs – Errors, time limits and the Court’s discretion
We previously blogged on the recent Court of Appeal decision in Ross v Lane [2022] NSWCA 235, in which the Court held that the application of SEPP 65 to a particular DA was not a “jurisdictional fact” capable of objective determination by…
Who decides what planning instruments apply to a DA?
In most cases, it is clear which environmental planning instruments apply to a given development application. This is because s 4.15(1)(a) mandates consideration of those planning instruments that ‘apply to the land to which the development application relates‘. Often, planning…
Federal Court confirms interpretation of the precautionary principle
The Federal Court of Australia in Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 has confirmed how the precautionary principle is to be interpreted and applied under the Environment Protection and Biodiversity Conservation Act…
Court considers when a DA is ‘not yet determined’ under the savings provisions of Housing SEPP
The meaning and effect of savings provisions in environmental planning instruments is often contentious. In many cases, the question of whether a particular application is “saved” has significant and meaningful consequences. A recent decision of the Land and Environment Court…
Existing uses – understanding the land being used
In any case involve existing use rights, one of the most critical issues is the extent of the land being used for the existing use. The determination of this issue is often a difficult exercise, requiring a detailed analysis of…
Revised Public-Private Partnership Guidelines Published by NSW OLG
On 7 March 2022, the Office of Local Government (‘OLG‘) released a new circular to councils regarding two new guidelines: the Public-Private Partnerships Guidelines (‘PPP Guidelines‘) and the Formation of Corporations and Entities (Section 358) Guideline. Although some interrelationship between two…
EPA ordered to develop policies and guidelines to protect environment from climate change
In a significant recent decision, the Land and Environment Court has ordered the NSW Environment Protection Authority (‘EPA‘) to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change. The case was brought by…
UPDATE – Telstra Payphone Cabinets NOT ‘low-impact facilities’
In April 2020, we blogged on a decision of a judge of the Federal Court which held that Telstra Corporation did not require development consent (or planning permission under the town planning laws of other states) to install about 1,800…
Planning Certificates – Scope of Councils’ Immunity from Liability Limited
In the recent decision of Lorenzato v Burwood Council [2020] NSWSC 1659 (‘Lorenzato‘), the Supreme Court considered the scope of the immunity from liability in negligence enjoyed by public authorities such as councils under various pieces of legislation. The Court…
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