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Taking enforcement action? Make sure you have identified the correct perpetrator
Before taking enforcement action, it is critical for the enforcement agency to identify the correct perpetrator. A failure to do so may result in the validity of the enforcement action being successfully challenged or defeated. This issue regularly arises in…
Reclassifying community land – is it effective to permit its sale?
Note: Since this article was published, this case is now undergoing appeal. We will keep you informed of any developments. Introduction With some exceptions, land owned and controlled by local Councils, can generally be described as public land. Such land…
Court of Criminal Appeal considers when an environmental prosecution is time barred
A recent decision by the NSW Court of Criminal Appeal (‘CCA‘) confirms the principles of statutory interpretation and construction that apply to time limitations when commencing prosecutions under the National Parks and Wildlife Act 1974 (‘NPW Act’) and the Biodiversity…
An expanded notion of the duty to undertake an REF (Review of Environmental Factors) under Division 5.1 of the EPA Act?
Before carrying out or approving an activity under Division 5.1 of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘), determining authorities are required to consider the environmental impacts of the activity. This is commonly referred to as a review of…
Easements by prescription: What Constitutes Permission by a Servient Landowner?
In the recent NSW Supreme Court decision of Maloney v Putu Pty Ltd [2023] NSWSC 1148, the Court granted an easement by prescription over the defendant’s land to formalise the plaintiff’s right to use an access road which the plaintiff,…
Guidelines on the Withdrawal of Development Applications: meaningful response to the affordability crisis?
New South Wales, and indeed Australia more broadly, is in the midst of a housing affordability crisis. Successive state governments have pursued a range of changes and reforms to boost housing supply and affordability in NSW and, in that context,…
New approach to calculating fees for development as ‘estimated development costs’ – commencing 4 March 2024
The NSW government recently introduced a new approach to development costs in response to the Independent Commission Against Corruption’s Operation Dasha report, which recommended changes to improve transparency and reduce the risk of corruption. The Environmental Planning and Assessment Amendment…
How much ‘disturbance’ is required before compensation is payable when land is compulsorily acquired?
Given the significant number of public infrastructure construction projects at all levels of government – and particularly with large projects such as Sydney Metro, Western Sydney Airport, and WestConnex – the law regarding the compulsory acquisition of rights and interests…
Reminder: The modification of a development consent is not the ‘grant of a development consent’
The power of a consent authority to modify a development consent is set out at sections 4.55 (for modification of consents generally) and 4.56 (for modification of consents granted by the Court) of the Environmental Planning and Assessment Act 1979…
ALERT: Reforms to Clause 4.6 Exceptions to Development Standards – commencing 1 November 2023
On 15 September 2023, the NSW Government published a package of amendments that will change the operation of clause 4.6 across all local environmental plans. The changes will commence on 1 November 2023 and follow consultation in 2021 by the…
Findings of the Independent Review of the Biodiversity Conservation Act 2016
On 24 August 2023, an Independent Review of the Biodiversity Conservation Act 2016 (BC Act) was tabled in Parliament (Review) and significantly, found that the BC Act: is not meeting its primary purpose of maintaining a healthy, productive and resilient…
NSW Housing and Productivity Contributions Implementation
On 25 August 2023, the NSW Department of Planning and Environment released the draft Environmental Planning and Assessment (Housing and Productivity Contribution) Order 2023 (Ministerial order) to give effect to the introduction of the Housing and Productivity Contribution (HPC). The…
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