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Pollution can constitute ‘substantial damage’ and allow a purchaser to rescind
The Conveyancing Act 1919 (CA Act) and many contracts for the sale of land provide for circumstances where a party can rescind or terminate the contract prior to completion. One of those reasons is outlined in section 66L of the CA…
Council liable for reliance expenditures even where plaintiff went bust
Signing a contract – in this case, an agreement for lease of land at an airport – is a commitment by both parties to comply with the obligations set out in that document. Sometimes things do not go to plan…
Climate Change Policy and Action Plan finalised by the NSW EPA
On 20 January 2022, the NSW Environment Protection Authority (‘EPA‘) released its final Climate Change Policy and Action Plan. The policy and plan follow the landmark case of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC…
Court considers common law defences to water pollution charge under the POEO Act
A recent decision by the Land and Environment Court provides a useful example of the common law defences that may be raised against a charge of an environmental offence, as well as a good reminder of how difficult it can…
Planning reforms to facilitate ‘agritourism’ finalised and certain
The NSW Government has finalised a number of planning reforms to help facilitate tourism activities on existing commercial farms, intended to increase their financial resilience to natural disasters and other adverse events. The changes include a number of new exempt…
Commencement of the Public Spaces (Unattended Property) Act 2021 and Repeal of the Impounding Act 1993
On 1 November 2022, the Public Spaces (Unattended Property) Act 2021 (PSUP Act) commences (other than section 19) and will repeal the Impounding Act 1993. The introduction of the PSUP Act follows a comprehensive review of the Impounding Act 1993 in…
Auditor-General’s Report on the Effectiveness of the Biodiversity Offsets Scheme
On 30 August 2022, the New South Wales Auditor-General released a report on the Effectiveness on the Biodiversity Offsets Scheme (Audit) which has highlighted some important shortcomings in the implementation of the Biodiversity Offsets Scheme (BOS). The purpose of the…
Saving DAs – When is a development application ‘made’?
Many council’s local environmental plans (LEPs) include the model local clause 1.8A , which provides: 1.8A Savings provision relating to development applications [local] If a development application has been made before the commencement of this Plan in relation to land…
LEC reaffirms that development control orders must be unambiguous
Last week, the Land and Environment Court considered a challenge to the validity of a development control order in criminal proceedings. The decision serves as an important reminder for regulatory authorities when drafting development control orders (DCOs). In order to…
A Reminder: The Correct Approach to Calculating Gross Floor Area
A recent decision of the Land and Environment Court is a useful reminder as to how the definition of ‘gross floor area’ (GFA) in the Standard Instrument LEP operates, and what should properly be excluded when calculating GFA particularly when…
Court of Criminal Appeal confirms when a prosecution can be summarily dismissed
A recent decision by the NSW Court of Criminal Appeal (CCA) confirms that the Land and Environment Court (LEC) has the power to summarily dismiss a summary prosecution prior to final hearing when an essential condition of criminality cannot be…
What is “suitable vehicular access” where it involves neighbouring land?
In a recent decision of the Land and Environment Court, the phrase “suitable vehicular access” was considered in the context of a residential development that required access over neighbouring land. In the matter of Fitton v Central Coast Council, where…
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