whiteacre-legal

Easements by Prescription in NSW

Thu, 02 Apr 2026 03:22:32 GMT

Introduction

Long and uninterrupted use of another person’s land can, in some cases, give rise to what is known as an “easement by prescription” in NSW.

An easement by prescription is a property right acquired through long and uninterrupted use of another person's land — not by formal grant, agreement or statute. It is one of the older doctrines in Australian property law, rooted in common law principles that predate the Torrens title system, yet it remains very much alive in New South Wales.

This article examines the legal foundation of easements by prescription in NSW, the requirements that must be satisfied, the critical distinction between 'permission' and mere 'toleration', the recent Supreme Court decision in Maloney v Putu Pty Ltd [2023] NSWSC 1148, and the process by which a prescriptive easement can be formally registered.

The Legal Basis for Prescriptive Easements in NSW

Prescriptive easements in NSW are founded on the common law doctrine of the lost modern grant .

The doctrine proceeds on a legal fiction: where land has been used openly and continuously as of right for at least 20 years, the law presumes that a formal grant of the easement was once made but has since been lost. The foundation in NSW lies in the High Court's early decision in Delohery v Permanent Trustee Co of NSW (1904), which confirmed the doctrine's application in Australian jurisdictions. It has subsequently been affirmed in numerous NSW decisions, including the Court of Appeal's important judgment in Dobbie v Davidson (1991) 23 NSWLR 625.

Key Principle: An easement by prescription arises where enjoyment of the right has been ' as of right ' — meaning without force, without secrecy, and without permission — for an uninterrupted period of at least 20 years. The requirement that the easement was enjoyed “as of right” is an important one and is to be distinguished from use of the neighbouring land with consent of the adjoining owner or in secret.

It is important to note some limitations unique to NSW. Easements of light (the right to receive natural light) cannot be created by prescription after a prescribed date, and any such easements that may have previously existed have been retrospectively abolished. Prescriptive easements remain available, however, for positive rights — most notably rights of way and access.

Prescriptive Easements and the Torrens System

New South Wales uses a system of title by registration called the Torrens system. The Torrens system uses a centralized, government-backed register to provide secure, conclusive, and indefeasible evidence of ownership. It simplifies property transfers by replacing traditional, complex paper deeds with a single Certificate of Title.

The interaction between prescriptive easements and the Torrens title system has generated significant legal debate in NSW. The indefeasibility principle at the heart of Torrens — that a registered proprietor takes title free of prior interests not recorded on the register — sits in tension with rights that arise from unregistered use and that do not appear on the register.

In NSW, the accepted position is that a prescriptive easement is enforceable against the servient landowner who was registered during the period of use, on the basis of an in personam exception to indefeasibility. The prescriptive right binds the person who allowed the use, through principles of unconscionability or personal obligation. Whether such an easement automatically binds a subsequent purchaser of the servient land is more complex and depends on the circumstances of that purchaser's acquisition.

This is one reason why formalising a prescriptive easement through a court order and subsequent registration is highly desirable: once recorded on the title, the easement is enforceable against all parties.

The Requirements for Establishing a Prescriptive Easement

To successfully claim an easement by prescription in NSW, the claimant must satisfy each of the following elements:

1. Enjoyment 'as of right'

The use must have been without force, without secrecy, and without permission. This three-part formula is the cornerstone of any prescriptive easement claim:

Without force: The use must not have been gained or maintained by violence, physical compulsion, or in the face of active resistance by the landowner. Persistent objection by the servient owner will defeat the claim.
Without secrecy: The use must be open and visible, not concealed or clandestine. The servient owner must have had actual knowledge, constructive knowledge, or at least the means of knowledge of the use.
Without permission: This is the element most frequently contested. Use made with the permission of the servient owner cannot ripen into a prescriptive right, regardless of how long it continues. The distinction between permission and mere toleration is critical and is examined in detail below.

2. Continuity for at least 20 years

The use must be continuous and uninterrupted for a minimum period of 20 years. There is no fixed requirement as to frequency of use, but the use must be sufficiently regular that a reasonable person would understand that a right is being asserted rather than mere occasional access being enjoyed. The 20-year period need not immediately predate the application to court — under the doctrine of lost modern grant, any 20-year period of qualifying use may suffice.

Crucially, interruption by the servient owner — such as the erection of a fence or locked gate — may restart the clock, and any period during which the dominant and servient tenements were in common ownership cannot count toward the 20-year period.

3. Use must be capable of being the subject of an easement

The right claimed must be one that is capable of being granted as an easement — it must benefit a dominant tenement, accommodate and serve that tenement, and the dominant and servient tenements must be occupied by different persons. A right that could not have been lawfully granted by deed cannot be acquired by prescription.

4. The servient owner must have had knowledge (or the means of knowledge)

The acquiescence of the servient owner is a necessary element. That owner must have known, or had reasonable means of knowing, that the use was occurring. The law will not fix a landowner with the burden of an easement they had no opportunity to detect or resist.

The Critical Distinction: Permission vs Toleration

The most practically significant and frequently litigated element of a prescriptive easement claim is the question of whether the use was 'by permission' or 'as of right'. This distinction can be deceptively subtle.

The controlling principle was articulated by the NSW Court of Appeal in Dobbie v Davidson (1991) 23 NSWLR 625. Kirby P identified a non-exhaustive list of factors the Court considers in assessing whether use has been as of right or by permission:

The length of time over which the conduct has been peacefully followed;
The persistence of the conduct despite changes of ownership of the dominant and servient tenements;
The variety and number of persons who have made use of the claimed right of way;
The absence of physical impediments or obstructions to the use; and
The knowledge of the use by the owners of the servient tenement and their failure to attempt to forbid, limit or control it.

The NSW Court of Appeal's subsequent decision in Arcidiacono v The Owners – Strata Plan No 17719 [2020] NSWCA 269 reinforced the key principle: the Court must determine whether the servient owner consented to the use, or merely tolerated it. Toleration as a matter of 'good neighbourliness' is not inconsistent with a prescriptive easement — and indeed this was central to the outcome in Maloney v Putu Pty Ltd .

Critical distinction: A servient landowner who knows of the use, does nothing to stop it, and is generally neighbourly about it has likely tolerated the use — which is consistent with prescription. A landowner who expressly authorises or grants permission for the use has consented, which defeats any prescriptive claim.

Express permission must be assessed objectively, not merely by reference to the servient owner's private or subjective intentions. Even use of the word 'permission' in conversation or evidence will not automatically be determinative if, viewed objectively, the conduct was more consistent with toleration or acquiescence than with a consensual grant.

Case Law: Maloney v Putu Pty Ltd [2023] NSWSC 1148

Background

The 2023 decision of Peden J in the NSW Supreme Court provides an excellent recent illustration of these principles in practice. The plaintiff was the registered proprietor of 'Portland Head Farm' in Ebenezer, NSW. The only vehicular access to his property crossed over land comprising three lots — one owned by Hawkesbury City Council (which raised no objection), one whose proprietors could not be located, and Lot 119 which was owned by the first defendant, Putu Pty Ltd, and subsequently transferred to the third defendant.

The plaintiff, his father and their various invitees — including guests, farm managers, tradespeople, suppliers, livestock transporters and emergency services — had used the access road for more than 20 years as the sole vehicular access to the farm. Historical mapping evidence suggested the access road had existed since approximately 1803.

The Issues

The two central issues before the Court were:

Whether express permission had been granted in a conversation in 1978 between the parties; and
If not, whether the use, while perhaps initially tolerated as a neighbourly indulgence, had over time taken on the character of a right.

The Court's Findings

On the question of express permission, Peden J assessed the evidence objectively. She found that the plaintiff's use was more consistent with use as of right, noting several telling factors:

The plaintiff had spoken to third parties about his 'right to use the road', reflecting his own understanding that he held a legal entitlement — not a licence dependent on goodwill;
The access road had been used extensively by a large number of persons over many years;
The plaintiff had instructed farm managers to grade and maintain the road at his expense;
When the defendant placed a gate across the access road after purchasing Lot 119, the plaintiff removed it — and the defendant did not replace it after a conversation in which the plaintiff asserted his right to use the road. Peden J drew the inference that the defendant did not intend to prevent access once she had heard the plaintiff assert his entitlement;
The defendant's own words to her real estate agent — that 'there's a private road which runs through our property [which] is an access road and has always been used by the owners of Portland Head Farm' — conveyed the flavour of an entitlement as of right rather than a permissive arrangement.

On the 'neighbourly toleration' question, the Court acknowledged that the defendant had given evidence that she had 'agreed' to the plaintiff's use because she was 'a firm believer of helping out your neighbour'. However, Peden J found that this could not amount to the grant of permission, because at no point had the defendant asserted any basis to prevent the use, and she had never in fact prevented it. The words of permission were, in substance, the words of good neighbourliness — which the law of prescription treats as consistent with the acquisition of a right, not as a bar to it.

The Court granted the easement by prescription over Lot 119. It declined to make the same order in respect of Lot 118 because the registered proprietors of that lot had not been joined as parties to the proceedings — an important practical reminder about joinder requirements.

Key Takeaways from Maloney

Whether use has been 'by permission' is a question of fact, assessed objectively against all of the evidence — not simply by reference to words used.
Statements consistent with good neighbourliness, or failures to actively resist use, do not constitute permission.
A servient owner's failure to take action to prevent access — even after becoming aware of it — will weigh strongly in favour of a finding of use as of right.
All persons with a registered interest in the burdened land must be joined as defendants in any proceedings.

Formalising and Registering a Prescriptive Easement in NSW

The acquisition of a prescriptive easement by long user gives rise to an equitable right. To make that right enforceable against successors in title and fully effective under the Torrens system, it must be recognised by a court order and then formally registered on the Torrens Register.

Step 1: Obtain a Court Order

The dominant landowner must commence proceedings in the NSW Supreme Court seeking a declaration that the prescriptive easement exists. All registered proprietors of the servient land must be joined as defendants. The applicant will need to file evidence — typically statutory declarations and supporting material — demonstrating that each element of the claim (20 years of continuous, open use as of right without force, secrecy or permission) is satisfied.

Step 2: Prepare the Deposited Plan

Once a court order is made, a Deposited Plan must be prepared by a registered surveyor showing the site of the easement. The plan must comply with the NSW Registrar-General's Guidelines and the technical requirements applicable to easements in deposited plans. The easement must be defined with sufficient precision — its location, width and nature must be identifiable on the plan.

Step 3: Lodge with NSW Land Registry Services

The court order and the deposited plan are lodged with NSW Land Registry Services for registration. On registration, the easement is noted on the folios of both the dominant and servient tenements. From that point, the right is enforceable against all subsequent owners of the servient land.

Conclusion

Easements by prescription remain a live and practically significant part of NSW property law. The doctrine of lost modern grant provides a pathway for dominant landowners to formalise access rights that have been exercised openly for 20 years or more — but only where that use has been genuinely 'as of right' rather than permissive.

The 2023 decision in Maloney v Putu Pty Ltd is a useful recent illustration of the principles at work. It reinforces that the distinction between permission and toleration will be assessed objectively and in context, and that good-neighbourly attitudes — however sincere — will not automatically defeat a prescriptive claim.

For any landowner or practitioner navigating a potential prescriptive easement — whether seeking to establish one or to resist a claim — early legal advice and prompt action are essential.

The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Rejection of Development Applications in NSW: Understanding Your Rights

Thu, 19 Mar 2026 05:58:14 GMT

The number of development applications that are rejected prior to assessment has risen noticeably since mandatory online lodgement via the NSW Planning Portal was introduced.

Local councils are increasingly employing two mechanisms to reduce the number of applications under assessment. The first is outright rejection — returning applications on the stated basis that required documents or information are missing. The second is more passive but equally damaging: not issuing an invoice for assessment fees, leaving the application suspended in a state where it cannot be formally lodged and cannot advance.

Both mechanisms carry real consequences for applicants. A development application ( DA ) that is rejected or that has not been formally lodged attracts no assessment obligations from the consent authority, no appeal rights in the Land and Environment Court of NSW ( LEC ), and no protection against planning controls that may change in the interim.

This article sets out the legal rules that govern pre-lodgement rejection, explains why invoice delay can be just as harmful as outright rejection, and identifies the avenues available to applicants who find themselves in this position.

The legal rules governing pre-lodgement rejection

Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EP&A Reg ) outlines the circumstances in which a consent authority can reject a DA at the pre-lodgement stage. The provision is deliberately narrow. A council may only exercise this power:

on one of the specific grounds set out in section 39(1)(a) to (f) of the EP&A Reg; and
within 14 days of receiving the DA via the NSW Planning Portal.

The mirror provisions for modification applications are found at section 114(1)(a) to (d) of the EP&A Reg.

Any rejection that falls outside this framework — whether because it is issued after the 14-day period has elapsed, or because it relies on grounds not found in the EP&A Reg — is legally invalid. It is an exercise of power the council simply does not have, and is open to challenge in Class 4 of the LEC's jurisdiction.

The grounds on which rejection is permitted

Section 39(1) of the EP&A Reg provides:

(1) A consent authority may reject a development application within 14 days after receiving the application if —

(a) the application is illegible or unclear about the development consent sought, or

(b) the application does not contain the information and documents that are required by — (i) the approved form, or (ii) the Act or this Regulation, or

(c) for an application for State significant development — the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or

(d) for an application for integrated development — the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or

(e) for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 — the application is not accompanied by a report, or

(f) for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW — the application is not accompanied by a statement.

The reference in section 39(1)(b)(i) to the 'approved form' relates to the form approved by the Planning Secretary and published on the NSW Planning Portal, as defined in Schedule 7 of the EP&A Reg. The relevant document at the date of this article is the Department of Planning and Environment's Application Requirements (March 2022).

Essentially, the permissible grounds for rejecting a standard DA are that it is illegible or unclear, that it omits material required by the approved form, or that it omits material expressly required by the EP&A Act or EP&A Reg.

One point warrants emphasis above all others: a council cannot reject a DA at the pre-lodgement stage on matters of merit. Councils occasionally attempt to return applications because their preliminary view is that the application will not be approved, or because the plans appear to involve non-compliances. This is not a lawful basis for rejection. The pre-lodgement gateway exists only to verify that the prescribed documents and information have been provided. Consideration of the merits — under the framework in section 4.15(1) of the EP&A Act — is reserved for the assessment stage, which begins only after lodgement. A merit-based rejection will almost invariably be susceptible to challenge.

The 14-day window and the problem of invoice delay

A council's power to reject a DA or modification at the pre-lodgement stage expires 14 days after the application is received via the NSW Planning Portal. A rejection notified after that point is legally invalid. We have observed councils purporting to reject applications well outside the 14-day window, sometimes by weeks or months, and in our experience applicants rarely challenge this.

A separate but equally serious problem arises where a council does not reject the DA — but also does not issue an invoice for assessment fees. The NSW Court of Appeal and the LEC have now clearly held that a DA is only formally 'lodged' once the invoice has been issued and the fee paid: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 ; Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 . Because a DA is only formally 'lodged' once the invoice has been issued and the fee paid, a council that withholds the invoice can hold an application in permanent limbo without ever technically rejecting it.

The same rule applies to modification applications by virtue of section 99(4) of the EP&A Reg.

An application that has not been lodged in this sense cannot proceed to assessment, generates no appeal rights, and remains exposed to any change in applicable planning controls that occurs after submission. The stakes could not be higher, as the facts of Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 ( Hinkler ) demonstrate.

In Hinkler, the applicant uploaded a DA for a mixed-use development incorporating affordable housing to the NSW Planning Portal on 22 October 2021. No invoice was issued by the council until 2 December 2021 — five weeks after submission. During that window, on 26 November 2021, the SEPP ( Affordable Rental Housing ) 2009 ( SEPP ARH ) was replaced by the SEPP ( Housing ) 2021 ( SEPP Housing ). A savings provision in the SEPP Housing preserved rights for DAs already 'made' before its commencement. Had the invoice been issued and paid before 26 November 2021, the applicant would have been entitled to rely on the former SEPP ARH. Because it was not, the Court of Appeal held the DA was not 'made' in time, and the applicant was required to satisfy the more demanding requirements of the new SEPP Housing.

At paragraph [159], Preston CJ (of LEC) noted that a council's failure to issue an invoice within a reasonable time may constitute a breach of statutory duty, and that an applicant in that position may seek an order of mandamus compelling the council to fulfil its obligation.

Options available to applicants

Applicants faced with an unlawful rejection or an unreasonable invoice delay have genuine legal options.

Internal review under section 8.2 of the EP&A Act allows a council to reconsider its own decision. Supported by clear written submissions identifying why the rejection was not authorised by the EP&A Reg, this process can produce a faster and less costly resolution than litigation — particularly where the council's position appears to rest on a misreading of the application rather than a deliberate strategy.

Judicial review is available in Class 4 of the LEC where a jurisdictional error can be established. Depending on the circumstances, an applicant may seek:

certiorari to quash the rejection decision;
mandamus to compel the council to accept the application and issue an invoice; and
declaratory relief confirming that the rejection was unlawful.

If your DA or modification application has been rejected on questionable grounds, rejected outside the 14-day window, or if an invoice has not been issued within a reasonable period, we recommend seeking legal advice without delay. The consequences of inaction — including exposure to changed planning controls — can be irreversible.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

The Law of Private Nuisance in NSW and the Impact of Hunt Leather v Transport for NSW [2025] HCA 53

Fri, 27 Feb 2026 05:12:35 GMT

Part 1: The Law of Private Nuisance in NSW

What is Private Nuisance?

Private nuisance is a common law tort that protects landowners from substantial and unreasonable interference with their use and enjoyment of land. Unlike public nuisance — which affects the broader community — private nuisance is concerned with protecting the rights of individual landowners against interference caused by neighbouring activities. The tort does not require any physical entry onto the plaintiff's land. Interference caused by noise, vibration, dust, fumes, noxious odours, or prolonged obstruction of access can all found a nuisance claim, provided the interference is sufficiently serious.

At its core, private nuisance seeks to balance two competing interests: the right of a landowner to enjoy their property without undue disturbance, and the freedom of a neighbouring landowner to use their land for legitimate purposes.

Key Elements of a Private Nuisance Claim

To succeed in a claim for private nuisance, a plaintiff must establish two key elements. First, there must be a substantial interference with the plaintiff's ordinary use and enjoyment of their land. Trivial or fleeting disruptions will not meet this threshold. The interference must be something that a person of ordinary habits and sensibilities, taking into account the surrounding environment and circumstances would find genuinely disruptive to their normal use of property. Second, that interference must be attributable to the defendant's use of land or activities that affect the plaintiff's land.

The concept of 'substantial interference' is assessed objectively, having regard to the locality in which the land is situated and the reasonable expectations of persons using land in that area. Courts will consider the nature, duration, frequency, and intensity of the interference when determining whether it crosses the necessary threshold. A person who operates a business in Sydney's CBD, for example, must tolerate a greater degree of noise and disruption from nearby commercial activities than a homeowner in a quiet suburban street.

How Private Nuisance Differs from Negligence

Private nuisance is frequently conflated with the tort of negligence, but the two are conceptually and practically distinct. In negligence, the central question is whether the defendant failed to exercise reasonable care — the focus is on the defendant's conduct. In private nuisance, the focus is on the nature of the interference with the plaintiff's land, not the manner in which the defendant behaved. A defendant who has exercised all reasonable care and skill, and who cannot be criticised for the way in which it conducted its activities, may nonetheless be liable in private nuisance if the interference with the plaintiff's land is found to be unreasonable.

This distinction has significant practical consequences for plaintiffs. It means that landowners and business operators who suffer interference with their properties are not required to identify and prove a specific act of carelessness on the part of the defendant. The question is whether the interference itself was unreasonable — and whether the defendant can demonstrate a lawful justification for it.

The Locality Principle

NSW courts apply a locality principle in assessing private nuisance claims. The reasonable expectations of ordinary landowners differ depending on whether property is located in a quiet residential area, a busy commercial precinct, or an established industrial zone. The standard applied is that of a person of ordinary habits and sensibilities living in the relevant locality, not an unusually sensitive plaintiff whose discomfort results from a pre-existing vulnerability.

Defences Available to Defendants

Several defences may be available to a defendant in a private nuisance claim. The most commonly invoked — particularly in the context of public infrastructure — is the defence of statutory authority. Where legislation authorises a public authority to carry out works that would otherwise constitute a nuisance, the authority may escape liability on the basis that the interference was an inevitable consequence of exercising its statutory powers. A common example is roadworks where a statutory authority, typically a Council is authorized by legislation to carry out roadworks that may impact on private land. However, the defence is not unlimited. To succeed, the defendant must establish both that the statutory power authorised the relevant interference and that the power was exercised in a manner that reasonably minimised the impact on affected landowners. A statutory power to build, without more, does not authorise every form of disruption that results from the way in which construction is carried out.

Other recognised defences include prescription — where the nuisance has continued openly for 20 years without objection — and consent. These defences are narrowly applied and will rarely excuse substantial ongoing interference.

Remedies for Successful Plaintiffs

A successful plaintiff in a private nuisance action may seek two principal forms of relief. Damages may be awarded to compensate for losses suffered as a result of the interference, including loss of use and enjoyment of land, diminution in property value, and losses to a business operated from the affected premises. In some cases, consequential economic losses arising from the interference may also be recoverable. An injunction may be available to restrain the defendant from continuing the nuisance, though courts exercise discretion in granting injunctive relief and will consider whether damages would be an adequate remedy and where the balance of convenience lies.

Why Private Nuisance Matters for NSW Landowners

Private nuisance remains one of the most valuable legal tools available to NSW landowners and business operators who suffer interference with their properties. It does not require proof that the defendant was careless. It does not require physical entry onto the plaintiff's land. And it is not dependent on any specific statutory compensation scheme. This combination of features makes private nuisance particularly relevant for those affected by large-scale construction projects, infrastructure works, and industrial or commercial activities in proximity to their premises. The High Court's decision in Hunt Leather v Transport for NSW [2025] HCA 53 has confirmed and clarified the legal principles that govern such claims — and in doing so, has strengthened the position of aggrieved landowners considerably.

Part 2: Hunt Leather v Transport for NSW [2025] HCA 53 — Case Summary

Background and Facts

The case arose from the construction of the Sydney Light Rail project — a major infrastructure undertaking in the Sydney CBD, connecting Circular Quay with Randwick and Kensington. Transport for NSW ( TfNSW ) was the statutory authority responsible for the design and delivery of the project.

The plaintiffs, including Hunt Leather Pty Ltd, were proprietors of businesses located along the construction route. They brought representative proceedings seeking damages against TfNSW in private nuisance, alleging that TfNSW's construction activities caused substantial interference with their businesses through noise, dust, vibrations, and impediments to access. The central complaint was not merely that construction was disruptive, but that it extended far beyond the timeframes set out in TfNSW's Initial Delivery Program ( IDP ) — the document that notified affected businesses of the anticipated duration of construction in each stage or 'fee zone.' The delays were substantially caused by the unexpected discovery of underground utilities along the construction route, which had not been identified or accounted for when the IDP was prepared.

The Trial Decision

At first instance in the NSW Supreme Court, the trial judge found TfNSW liable in private nuisance. The judge held that the delays which caused construction to extend beyond the IDP periods amounted to unreasonable interference with the plaintiffs' enjoyment of their properties. Critically, the trial judge rejected TfNSW's submission that it had exercised reasonable care in planning the works and that this was sufficient to defeat the claim. The judge accepted that reasonableness in nuisance is assessed by reference to the nature of the interference — not the conduct of the defendant.

The NSW Court of Appeal

TfNSW appealed, and the NSW Court of Appeal overturned the trial judge's findings. The Court of Appeal concluded that the plaintiffs had failed to establish that the interference was unreasonable. In the Court's view, the IDP could not be treated as a reliable benchmark for assessing the reasonableness of the interference, because it made no allowance for contingencies such as inclement weather or the discovery of underground utilities. The Court also held that the plaintiffs had failed to establish what pre-construction investigations TfNSW could reasonably have undertaken, whether those investigations would have been feasible, how long they would have taken, and whether they too might have constituted a substantial interference with the plaintiffs' land. In the absence of that evidence, the plaintiffs could not demonstrate that the construction exceeded a reasonable timeframe.

The Court of Appeal went further, stating that it could not be the law that construction authorised by statute becomes actionable nuisance simply because it takes longer than scheduled. This observation reflected significant judicial caution about the prospect of imposing nuisance liability on public infrastructure projects that experience ordinary construction delays.

The High Court Decision

The High Court allowed the plaintiffs' appeal and upheld the trial judge's finding. In doing so, the Court provided the most authoritative and comprehensive statement of the principles governing private nuisance to emerge from an Australian appellate court in many years. The lead judgment was delivered by Justices Gordon and Edelman, with the Chief Justice and other members of the Court providing separate concurring judgments.

Substantial Interference — The starting point for any nuisance claim is whether there has been a substantial interference with the plaintiff's ordinary enjoyment of land. This threshold must be established by the plaintiff and is assessed objectively by reference to the locality and the reasonable expectations of persons using land in that area. The High Court confirmed that this element was clearly established on the facts: the prolonged occupation of fee zones, far beyond what was contemplated in the IDP, plainly constituted a substantial interference with the plaintiffs' use and enjoyment of their properties.

Common and Ordinary Use — Once substantial interference is established, the onus shifts to the defendant to justify it. The first question is whether the defendant's use of land was 'common and ordinary' for that locality. This is assessed with regard to the objectively reasonable expectations for land use in the relevant area. The Court emphasised that 'common and ordinary' does not mean 'performed with reasonable care.' The inquiry is about the nature of the use itself — whether it is the kind of use that landowners in that locality could reasonably expect from their neighbours — not about the standard of care with which it is carried out.

Conveniently Done — Even if a defendant's use of land is found to be common and ordinary, it may still constitute nuisance unless the defendant can establish that the interference was 'conveniently done.' This test requires the defendant to demonstrate that it took reasonable steps to minimise the extent of the interference with the plaintiff's enjoyment of land. As Justices Gordon and Edelman explained, this requires consideration not merely of the convenience of the defendant, but also the convenience of the plaintiff. A defendant cannot point to its own operational preferences, financial constraints, or project management decisions to justify an extended and substantial interference with a neighbouring landowner's use of their property.

Burden of Proof — The High Court confirmed the allocation of the burden of proof with clarity. The plaintiff bears the legal onus of establishing substantial interference with the common and ordinary use of their land. Once that is established, the onus shifts to the defendant to prove — by way of defence — that its use of land was common and ordinary and was conveniently done. The plaintiff also has an evidentiary onus to identify the respects in which the defendant's conduct was not conveniently done, but is not required to prove a detailed counterfactual about what the defendant could have done differently and with what result.

No Counterfactual Required — One of the most important aspects of the High Court's decision is its rejection of the Court of Appeal's finding that the plaintiffs were required to establish what steps TfNSW could and should have taken prior to and during construction to reduce the interference, and to prove that those steps would have made a material difference. The High Court held that this requirement imposed an unrealistic and disproportionate evidential burden on plaintiffs who are unlikely to have access to the defendant's internal planning records, operational data, and project management decisions.

Statutory Authority Defence

TfNSW argued that it was immune from liability on the basis that the Sydney Light Rail was authorised by legislation. The High Court upheld the Supreme Courts' rejection of this defence. The Court confirmed that statutory authority requires the defendant to establish that the interference was an inevitable consequence of the exercise of the statutory power — not merely that the project as a whole was authorised by statute. Because the prolonged delays that caused the interference resulted from TfNSW's own planning decisions and choices, rather than from the inherent nature of the authorised works, the interference was not inevitable. The statutory authority defence therefore failed.

Section 43A of the Civil Liability Act 2002 (NSW)

TfNSW also relied on s 43A of the Civil Liability Act 2002 (NSW), which attenuates the standard of care applicable to public authorities exercising special statutory powers. The High Court unanimously confirmed that s 43A does not operate as a standalone defence, but rather adjusts the applicable standard of care. More importantly, the Court held that s 43A did not apply on the facts because the planning and procurement of the project did not involve the exercise of a 'special statutory power' within the meaning of the provision.

Outcome

Although the Justices reached different conclusions on the question of whether TfNSW's use of land was 'common and ordinary,' they were unanimous in finding that TfNSW's construction was not 'conveniently done.' TfNSW was accordingly held liable to the plaintiffs in private nuisance, and the trial judge's award of damages was reinstated.

Part 3: Implications for Private Nuisance Law in NSW

Nuisance and Negligence Are Distinct

The High Court's most enduring contribution in Hunt Leather is the unequivocal confirmation that private nuisance and negligence are distinct torts governed by different principles. For plaintiffs, this is of profound practical significance. A landowner or business operator who suffers substantial interference with the use and enjoyment of their property is not required to prove that the interfering party was careless, that a duty of care was owed, or that the defendant breached any applicable standard of reasonable conduct. The question in nuisance is whether the interference itself was unreasonable — not whether the defendant's behaviour was unreasonable. This distinction opens the door to liability even where the defendant has done everything that could reasonably be expected of a careful and diligent operator.

A Stronger Position for Affected Landowners

For NSW landowners and business operators, Hunt Leather provides a clearer and more accessible legal framework for pursuing private nuisance claims arising from construction and infrastructure works. The rejection of the counterfactual requirement — which would have compelled plaintiffs to mount a detailed expert case about how the defendant's project planning should have been conducted — removes a significant practical obstacle. Affected parties need only identify the respects in which the defendant's use of land was not conveniently done. Once that evidentiary case is made, the burden falls squarely on the defendant to justify the interference.

This is a more workable framework for landowners and business operators who will often lack access to the defendant's internal planning documents, programming schedules, and operational decision-making. It recognises that the plaintiff is not in a position to know the full detail of how the defendant managed its project.

Obligations for Statutory Authorities and Project Proponents

The decision carries important and practical implications for statutory authorities responsible for infrastructure and construction projects, as well as for their contractors and project managers. The mere fact that works are authorised by statute will not protect an authority from liability in private nuisance. To successfully invoke the statutory authority defence, the authority must demonstrate that the interference with neighbouring landowners was an inevitable consequence of exercising its statutory powers — and that those powers were exercised diligently and expediently and with proper consideration for the interests of affected parties.

Where delays and disruptions result from the authority's own planning choices — inadequate pre-construction investigations, unrealistic programming or poor risk management — the statutory authority defence will not provide protection. Authorities and contractors must invest seriously in thorough pre-construction investigations, realistic and contingency-aware programming, and active management of construction impacts on neighbouring properties and businesses. Where extended works or delays are unavoidable, authorities should be in a position to demonstrate the specific steps taken to minimise the impact on affected parties.

The 'Conveniently Done' Standard

The High Court's articulation of the 'conveniently done' standard will be a focal point of future private nuisance litigation. The test is a demanding one. It requires defendants to demonstrate not merely that their chosen approach to construction was operationally convenient or cost-effective for them, but that it gave proper and genuine consideration to the impact on neighbouring landowners. The interests of the plaintiff must be weighed alongside the interests of the defendant in assessing whether the interference was conveniently done.

In practice, this means that authorities and project proponents should document their impact mitigation efforts from the earliest stages of a project. Evidence of proactive engagement with affected businesses, meaningful adjustment of construction sequences to reduce impacts, and genuine consideration of alternative approaches will all be relevant to establishing that the interference was conveniently done. Defendants who cannot point to such measures will face significant exposure.

Conclusion

Hunt Leather v Transport for NSW [2025] HCA 53 is the most significant development in the law of private nuisance in Australia in recent decades. By authoritatively clarifying the framework for establishing and defending nuisance claims, and by firmly distinguishing the tort from negligence, the High Court has provided both plaintiffs and defendants with a clearer understanding of their legal rights and obligations.

For landowners and business operators in NSW, the decision confirms that private nuisance is a robust and accessible legal remedy — one that provides genuine protection where the use and enjoyment of land is substantially and unjustifiably disrupted by the activities of others. For statutory authorities, infrastructure proponents, and their contractors, it is a clear signal that thorough planning, realistic programming, and genuine impact mitigation are not merely good practice — they are legal imperatives.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

No Right of Appeal Against Council Rejection of Development Applications in NSW

Fri, 20 Feb 2026 06:29:56 GMT

Introduction

Until recently, uncertainty existed around whether a council's rejection of a development application, could be appealed to the NSW Land and Environment Court ( LEC ). That uncertainty was resolved by the decision in Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42 (Johnson Property Group) in which the LEC held that there is no right of appeal against a council's decision to reject a development application.

There is a very big difference between a refusal to accept a development application and determination of that development application by way of refusal.

The decision in Johnson Property Group explore this the critical distinction between procedural "rejection" and substantive "determination."

The Legislative Framework

The EPA Act appeal structure

Section 8.1 of the Environmental Planning and Assessment Act ( EPA Act ) defines "appeal" as referring to appeals to the LEC under Divisions 8.3, 8.4, 8.5, and 8.6. This definition is important because it confines the scope of appellate rights to those expressly provided within these divisions in the EPA Act.

Section 8.6: The gateway provision

Section 8.6(1) operates as the gateway provision for all appeal rights within Division 8.3, providing that:

"A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is ( if this Division so provides ) subject to appeal to the Court under this Division."

[our emphasis]

For this provision to confer a right of appeal, three essential conditions must be satisfied:

There must be a decision of a consent authority under Part 4.
That decision must relate to a development consent or an application for development consent.
The Division must expressly provide a right to appeal.

The critical phrase "if this Division so provides” in s 8.6 (1) makes it clear that for appeal rights to exist, they must be found somewhere in Division 8.3.

Section 8.6(2) provides that "a decision subject to appeal includes a decision made after a review under Division 8.2." Johnson Property Group clarified that this subsection does not independently create appeal rights for all decisions subject to internal review. Instead, it operates to extend existing appeal rights to decisions made on review.

Power to reject development application

Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EPA Reg ) grants councils a discretionary power to reject a development application within 14 days of receiving it. The grounds for rejection are specified in section 39(1) of the EPA Reg and include circumstances where the development application:

Is illegible or unclear as to the development being sought.
Does not contain required information on documents specified in the Approved Form.
Seeks consent for development that is prohibited.
Is substantially the same as a development application previously refused and circumstances have not changed.

Critically, section 39(2) of the EPA Reg provides that an application "is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review."

Internal Review Rights

Section 244 of the EPA Reg provides for an internal review of a decision to reject a development application. The application for review must be made within 14 days of receiving written notice of the council's rejection decision. This internal review mechanism allows the council to reconsider its decision administratively, but it does not confer a right of appeal to the LEC.

Section 8.2(1)(c) of the EPA Act specifically provides for review of "a decision of a consent authority to reject and not determine an application for development consent." This express reference to “rejection” reinforces the statutory distinction between rejection and determination of a development application.

There matters were considered by the LEC in Johnson Property Group.

The factual background

The Johnson case arose from straightforward but instructive circumstances. The applicant lodged a development application for the construction of cycleways and intersection improvement works. The works were to be located on both privately held land and public road reserves.

The applicant provided owner's consent for all privately held land within the site. However, it did not provide owner's consent for the public roads, which were owned by the Council. On 9 October 2019, the Council rejected the development application on the sole basis that owner's consent had not been provided for all land to which the development application related.

The applicant sought internal review under section 8.2(1)(c), which the Council refused. The applicant then commenced class 1 appeal proceedings in the LEC, seeking an order that the Council accept, assess and determine the development application.

The applicant's arguments

The applicant advanced two primary arguments in support of its appeal right:

First, the applicant contended that section 8.6(2) created an independent right of appeal. The rejection decision was subject to internal review under section 8.2(1)(c). Section 8.6(2) expressly states that "a decision subject to appeal includes a decision made after a review under Division 8.2"; therefore, any decision made on review must be appellable.

Second, the applicant argued that section 8.7(1) applied because the rejection of the development application constituted a "determination” of the application within the meaning of that section. The applicant submitted there was no warrant in the statutory language to draw a meaningful distinction between "decision" and "determination" such that rejections would be excluded from the right to appeal.

The applicant also relied heavily on the earlier decision of Parkes v Byron Shire Council (2003) 129 LGERA 156 ( Parkes ), in which Lloyd J held that a rejection decision attracted a right of appeal. The applicant acknowledged that the statutory provisions had changed since Parkes, but submitted that the amendments only reinforced the position arrived at in that case.

Additionally, the applicant argued that even if there was no appeal right, the Council had acted beyond its power in rejecting the development application. The argument was that because owner's consent had been provided for some (but not all) of the land, and because the missing consent related to land owned by the Council itself, the development application should have been assessed. The applicant noted that if the development application had been assessed and determined, the Court could have granted the missing owner's consent under section 39(2) of the Land and Environment Court Act 1979 during any subsequent class 1 appeal.

The Council's response

The Council's primary submission was straightforward: on a proper construction of sections 8.6(1) and 8.7(1) of the EPA Act, appeal rights are limited to "determinations" under section 4.16, not to "decisions" to reject. This distinction is critical because:

A determination is made pursuant to section 4.16 to either refuse or approve a development application following assessment on the merits.
A rejection is a procedural decision that operates such that the development application is taken never to have been made s 39 (2) EPA Reg.

The Council submitted that this legislative intent to limit appeals to determinations is evident from the different language used throughout the EPA Act:

Division 4.3 consistently uses the term "determination" with respect to the final substantive decision of the consent authority after considering the merits of an application.
Division 8.2 (reviews) makes a clear distinction between determinations that are subject to review and decisions that are subject to review—rejection is referred to as a "decision," while approval or refusal is referred to as a "determination".
Division 8.3 (appeals), while using "decisions" in headings, limits substantive appeal rights to determinations as specified in section 8.7(1).

Regarding section 8.6(2), the Council argued that this provision does not independently confer appeal rights for all decisions made on review. Rather, it operates to clarify that where an appeal right exists in relation to a particular type of decision, that right continues to apply even if the decision has been subject to internal review. In other words, it extends existing appeal rights to reviewed decisions; it does not create new appeal rights.

The Council also contended that the decision in Parkes was wrongly decided and should not be followed, as it failed to properly analyse the statutory scheme and relied primarily on the Court's powers under section 39(2) of the LEC Act without first establishing that an appeal right existed.

Does section 8.6 confer an appeal right?

Justice Duggan undertook a careful and systematic analysis of the statutory provisions, ultimately concluding that there is no right of appeal against the rejection of a development application.

Her Honour began by examining whether the rejection decision satisfied the three requirements of section 8.6(1):

Requirement 1: A decision under Part 4

The Court found this requirement was satisfied. The power to reject a development application derives from s 39(1) of the EPA Reg (then cl 51 of the Environmental Planning and Assessment Regulation 2000 ), which is made pursuant to section 4.12 of the EPA Act (which governs applications for development consent). The decision to reject is therefore a decision made under Part 4. This construction was reinforced by section 8.2(1)(c), which expressly provides for review of rejection decisions and describes them as decisions under Part 4.

Requirement 2: Relating to an application for development consent

This requirement was also satisfied. Section 8.6(1) refers to decisions "in relation to an application for development consent," which is broader than the defined term "development application." The rejection of a development application clearly relates to an application for development consent, even though it prevents that application from being determined.

Requirement 3: The Division must provide for the appeal

This is where the rejection decision fell outside the scope of section 8.6. The phrase "if this Division so provides" makes clear that section 8.6(1) does not itself create appeal rights; it merely sets the preconditions. The actual appeal rights must be found elsewhere in Division 8.3.

Her Honour then considered whether section 8.6(2) could supply the missing appeal right and concluded it could not, for three reasons:

The definitional nature of the provision : The use of the word "includes" indicates that section 8.6(2) operates to define or expand the scope of decisions covered by section 8.6(1), rather than to independently confer appeal rights. It clarifies that where an appeal right exists, it extends to decisions made on review.
Consistency with the Division's structure : Sections 8.7, 8.8, and 8.9 each expressly confer appeal rights using phrases like "may appeal to the Court against the determination." Section 8.6(2) contains no such express language, indicating it serves a different function.
The operation of section 8.6(3) : This subsection excludes certain decisions from appeal, further indicating that section 8.6 as a whole operates to define the scope of appeal rights conferred elsewhere, not to create independent rights.

Accordingly, section 8.6 does not provide a right of appeal from rejection decisions.

Does section 8.7(1) confer an appeal right?

Justice Duggan then turned to section 8.7(1), which provides that an applicant "who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination."

The critical question was whether "determination" includes a decision to reject a development application. Her Honour concluded it does not, for several reasons.

Consistent statutory usage : The term "determination" is used consistently throughout the EPA Act to refer to a decision made pursuant to section 4.16—that is, a decision to approve (with or without conditions) or refuse consent. While "determination" is not formally defined, statutory interpretation principles require that a word be given a consistent meaning where it is used repeatedly in the same Act.

Section 8.7(2)'s expansion : Section 8.7(2) expands the definition of "determination" to include certain post-consent decisions. This expansion reinforces that the core meaning relates to section 4.16 decisions, with extensions only where expressly provided.

The language of section 8.2(1)(c) : This provision, which establishes the internal review right for rejections, refers to "a decision of a consent authority to reject and not determine an application for development consent." The express juxtaposition of "reject" with "not determine" strongly suggests that rejection is not considered a determination.

Section 39(1) as context : While s 39(2) of the EPA Reg (then cl 51(3)) refers to the "determination to reject," this usage must be understood in context. The Regulation uses "determination" colloquially to mean "decision," not in the technical sense used throughout the EPA Act. This isolated usage in subordinate legislation cannot override the consistent statutory usage in the primary Act.

Her Honour therefore concluded that section 8.7(1) is limited to appeals against determinations under section 4.16 (approval or refusal) and does not extend to decisions to reject a development application.

The Court's conclusion

Justice Duggan concluded that the applicant did not have a right of appeal against the Council's rejection of its development application. Accordingly, the appeal was dismissed.

Her Honour noted that the applicant had also raised arguments about whether the Council had power to reject the development application in the particular circumstances of the case (where private landowners' consent was provided but not the Council's consent as road owner). However, as these submissions did not relate to the separate question as formulated, and as they might fall for consideration in any judicial review proceedings, Justice Duggan declined to determine them.

This observation is significant: it leaves open the possibility that a council's exercise of the power to reject in certain circumstances might be challengeable through class 4 proceedings (judicial review), even though class 1 appeal rights do not exist.

Key Takeaways

No appeal right : section 8.7(1) of the EPA Act is limited to appeals against "determinations" under section 4.16 (approval or refusal), and does not extend to "decisions" to reject under s 39(1) of the EPA Reg.
Section 8.6(2) does not assist : This provision extends existing appeal rights to decisions on review; it does not create independent appeal rights for all reviewable decisions.
Internal review only : The only statutory recourse from rejection is internal review under section 8.2(1)(c), which must be sought within 14 days.
Judicial review theoretically available : Class 4 proceedings remain available in cases of jurisdictional error or unreasonableness.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Validity of Development Consent Conditions in NSW

Wed, 14 Jan 2026 23:29:37 GMT

While conditions of consent are an essential planning tool, they are not unlimited in scope. NSW planning law places clear statutory limits on the conditions a consent authority may lawfully impose. Where those limits are exceeded, a condition may be invalid, and open to challenge in the NSW Land and Environment Court.

This article examines the legal framework governing conditions of consent in NSW, explores key case law, and explains how and when conditions may be challenged through Class 1 or Class 4 proceedings.

Statutory Basis for Conditions of Consent

The power to impose conditions in a development consent arises under section 4.17 of the Environmental Planning and Assessment Act 1979 ( EPA Act ). Section 4.17 prescribes when a condition of consent may be imposed. For example, s.4.17(d) prescribes that a condition may be imposed that limits the period during which development may be carried out.

The grant of development consent is the exercise of a statutory power, which means conditions of consent must:

be authorised by the EPA Act or another applicable planning instrument; and
comply with established common law principles governing validity.

Consent authorities must therefore ensure that each condition falls within the scope of the statutory power authorizing the condition.

The Newbury Principles and Their Application in NSW

In addition, the condition must be reasonable. The reasonableness, and therefore validity of consent conditions is assessed by reference to the principles established in Newbury District Council v Secretary of State for the Environment [1981] AC 578. These principles have been consistently adopted by Australian courts, including the NSW Land and Environment Court.

To be considered reasonable, and valid, a condition of consent must:

be imposed for a proper planning purpose;
fairly and reasonably relate to the development the subject of the consent; and
not be so unreasonable that no reasonable planning authority would impose it.

These principles are now reflected in section 4.17 of the EPA Act and remain central to the judicial assessment of consent conditions in NSW.

Key Takeaways for Developers

Consent authorities do not have unlimited discretion to impose conditions of consent.
Conditions must remain tethered to legislation and planning controls.
Conditions must be reasonable.

Authorisation and the Limits of Planning Power

A condition will be invalid if it is not authorised by statute, even if it appears reasonable or desirable. The Land and Environment Court has repeatedly emphasised that conditions cannot be used to achieve outcomes that fall outside the planning system.

In Kindimindi Investments Pty Ltd v Lane Cove Council [2009] NSWLEC 114, the Court confirmed that councils cannot rely on s 4.17 to impose obligations more properly dealt with through private law mechanisms. Conditions requiring applicants to enter into restrictive covenants or indemnify councils are common examples of overreach.

The case illustrates that planning conditions must regulate land use impacts—not private legal relationships.

Nexus: The Relationship Between Conditions and Development

A critical element of validity is whether the condition sufficiently relates to the development as approved. There must be a clear planning nexus between the impacts of the development and the obligation imposed.

In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, the NSW Court of Appeal held that conditions must address planning consequences of the development itself, rather than broader policy objectives or unrelated outcomes.

More recently, Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWLEC 121 reinforced that councils cannot impose conditions aimed at regulating hypothetical future development or alternative development scenarios.

Key Takeaways for Developers

Conditions must respond to impacts of the approved DA.
“Futureproofing” conditions are vulnerable.
Speculative controls are likely invalid.

Reasonableness and Proportionality

Even where a condition serves a planning purpose and has a nexus to the development, it may still be invalid if it is unreasonable or disproportionate.

In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, the Court invalidated conditions requiring extensive off-site works that were disproportionate to the development’s impacts. The decision confirms that conditions must be scaled to impact, not used to secure unrelated infrastructure upgrades.

The threshold is high, but NSW courts will intervene where the burden imposed is excessive.

Certainty and Enforceability of Conditions

Conditions must also be drafted with sufficient clarity and precision to be enforceable. Conditions that are vague, uncertain, or defer essential matters to future discretion are vulnerable to challenge.

A consent authority is tasked with assessing a development application and determining the application either by (i) granting consent or (ii) refusing the application: s.4.16(1) EPA Act. There is no third option and conditions of consent that introduce ambiguity or have the consequence of deferring the consent authority’s determination to a later date will be invalid.

In Gales Holdings Pty Ltd v Tweed Shire Council [2021] NSWLEC 163, the Court held that conditions lacking objective standards or measurable criteria may be invalid for uncertainty.

Key Takeaways for Developers

Conditions must be clear and enforceable.
Open-ended or vague obligations increase risk.
Uncertainty may invalidate a condition.

Challenging Conditions: Class 1 vs Class 4 Proceedings

The appropriate pathway for challenging a condition of consent depends on whether the issue is one of planning merit or legal validity.

Class 1 Proceedings – Merits Review

Class 1 proceedings in the Land and Environment Court involve a merits-based re-determination of the development application. These proceedings are appropriate where:

the condition is excessive but legally permissible;
the developer seeks alternative or amended conditions; or
the issue concerns planning judgment rather than legality.

In Class 1 appeals, the Court has broad discretion to impose new or revised conditions.

Class 4 Proceedings – Judicial Review

Class 4 proceedings are confined to judicial review and focus on whether the condition is lawful. They are appropriate where a condition:

exceeds statutory power;
lacks a planning nexus;
is unreasonable in the Newbury sense; or
is uncertain or unenforceable.

The Court does not re-determine the development application in Class 4 proceedings.

Severance and Risk to the Entire Consent

If a condition is found to be invalid, it may sometimes be severed from the consent, leaving the remainder of the consent intact. However, this is not always possible.

In T ransport for NSW v Parramatta City Council [2020] NSWCA 139, the NSW Court of Appeal confirmed that where an invalid condition is integral to the grant of consent, its invalidity may render the entire consent invalid.

This risk underscores the importance of careful strategic assessment and competent legal advice before commencing proceedings.

Conclusion

Conditions of development consent are a powerful planning tool, but they must operate within clearly defined legal limits. NSW courts have consistently reinforced that conditions must be authorised by statute, connected to the approved development, reasonable in scope, and drafted with certainty.

Where a condition goes beyond those limits, early legal advice is essential to determine whether the condition should be challenged through Class 1 merits review or Class 4 judicial review, and to manage the risk to the underlying consent.

Closure of Public Roads by Local Councils in NSW

Wed, 17 Dec 2025 23:03:51 GMT

Local councils in NSW have statutory authority to close public roads, but affected landowners and stakeholders have specific rights under the law.

This video provides a clear explanation of:

The road closure process
Key legislative requirements
Appeal pathways through the Land and Environment Court

Rights to build within an easement site

Thu, 11 Dec 2025 21:00:00 GMT

This article explores the right to build within an easement site.

We explore this topic first by unpacking some fundamental principles and then by reviewing recent cases in which these issues have been examined.

Introduction

The starting point in understanding the scope of rights granted by an easement must always be the express terms of the easement: Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] MCA 45.

In the case of a right of carriageway, those terms will typically, but not always, be the standard terms from the Conveyancing Act 1919 which are:

The terms are:

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

The express terms of the easement extend to the dominant owners and persons authorised by them to pass across the burdened land at all times and for all purposes. However, while the terms of the right of carriageway may be wide in scope, as a general principle an easement should be limited to that which is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement: Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Prospect County Council v Cross (1990) 21 NSWLR 601 per Bryson J at 607-608; Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [22].

Right to build must be reasonably necessary.

The grant of an easement conveys with it all ancillary rights to the owner of the benefited land that are reasonably necessary for the exercise and enjoyment of that easement.

But what is reasonably necessary?

Well, it is generally accepted that the owner of the benefited land is entitled to construct a road over the site of a right of carriageway if a road or paving is necessary to use the easement: N ewcomen v Coulson (1877) LR 5 Ch D 133, 143-4 (Jessel MR); Mills v Silver [1991] Ch 271, 286-7 (Dillon LJ); Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; (1806) 127 ER 565 ; Senhouse v Christian (1787) 1 Term Rep 560; (1787) 99 ER 1251 ; Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 (Handley AJA) at [9] .

This is a right of the owner of the benefited land that is ancillary to the right of carriageway. The owner of the benefited land may enter onto the burdened land to do that which is reasonably necessary to make the grant effective – including, in the case of a right of carriageway, not only repairing it but making a road so that there is a serviceable carriageway over which vehicles can pass in poor conditions as well as in good weather.

The extent of the rights to do so will turn on what is reasonably necessary in the circumstances for the dominant owner’s enjoyment of its express rights under the easement. Each circumstance is different and merely because what is proposed does not substantially interfere with the servient owner’s rights does not necessarily mean that it is reasonably necessary.

In Butler v Muddle (1995) 6 BPR 13,984, at 13,986, Young J noted the “general proposition that a right of way is not the equivalent of ownership”. His Honour then explained (at 13,987, citations omitted):

“... it was said that where one had a right of carriageway one could pave so that the wheels of one’s carriage did not sink into the ground. But none of that authority gives any licence to the dominant owner to pave the whole of the right of way. His right is only to pave so much as is reasonably necessary for his enjoyment.”

Similarly, Bryson J said in Owners Corp of Strata Plan 42472 v Menala Pty Ltd (1998) 9 BPR 16,337 at 16,340:

“The [dominant owner’s] right of way does not entitle the [dominant owner] to have the whole of the 6 m strip cleared of any obstruction as if it were a billiard table. The [servient owner] continues to be the owner of [its] land, and may use it in any way and maintain on it any structure if it does not create a real substantial interference with the enjoyment of the right of way. If enough space is left free for passage without any real substantial interference with the right to pass and re-pass, the [dominant owner] cannot insist on more.”

From these cases one might conclude that paving so much of the right of way as is reasonably necessary is acceptable, while paving the entire width of the right of way and levelling the land to a billiard table may not.

Can the burdened land still be used but it’s owner?

Yes, within reason.

The owner of the burdened land retains, in respect of the burdened land, all those rights of ownership that are not inconsistent with the exercise by the dominant owner of the rights expressly given or implicitly confirmed by the grant: Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Prospect County Council v Cross (1990) 21 NSWLR 601; Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 per Lord Scott at [54].

This does not mean, however that where the two competing land uses are incompatible, the owner of the benefited land must sacrifice use of the right of carriageway.

“… a servient owner’s rights are diminished to the extent that they are inconsistent with reasonable exercise by the dominant owner of its rights.”: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [23].

As Lord Scott said in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 at [54], in terms quoted approvingly by the NSW Court of Appeal in Theunissen v Barter [2025] NSWCA 50 at [132]:

“Every servitude or easement will bar some ordinary use of the servient land. For example, a right of way prevents all manner of ordinary uses of the land over which the road passes. The servient owner cannot plough up the road. He cannot grow cabbages on it or use it for basketball practice.”

Each owner has rights that must be accommodated by the other. This principle was explained by Barrett JA in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [25]:

“It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them — the servient owner and the dominant owner — must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights. …”

What if there are a number of means of enjoying the easement?

Where an easement permits the exercise of the rights granted in numerous ways, generally the owner of the benefited land is entitled to choose the manner of its exercise, and even to change that use from time to time.

Consider a circumstance where there are multiple points from which access might be had from a right of way into the benefited land. In those circumstances, the owner of the benefited land is entitled to select a reasonable number of points for that access, and even to change those points of access from time to time: Trewin v Felton [2007] NSWSC 851 per Brereton J at [19]; Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Chiu v Healey [2003] NSWSC 857; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [24].

Can the owner of the burdened land withhold consent?

When building a road over the burdened land, particularly in rural areas, development consent may be required. If the proposed works are being carried out on the burdened land, the consent of the owner of the burdened land to the application for development consent will be required. Without owner’s consent, the development consent cannot be granted: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; 365 ALR 86 .

In Kirkjian v Towers (6/7/87 u/r) Waddell CJ in Eq held that the owner of the burdened land could be ordered to consent to the lodgement of a development application for construction of improvements which are reasonably necessary for the proper enjoyment of the easement. That decision has been followed: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, 521-2 ; Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5 para [23] per Giles JA and Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324.

The owner of the burdened land may withhold its consent to the application for development consent where the proposed works are unlawful or an excessive user of the easement. For commentary on what may constitute excessive user refer below to the case summary of Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324.

Case law on construction within an easement site

The following case summaries help in understanding the principles above.

Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988

In Burke v Frasers Lorne Mrs Burke and other neighbours enjoyed a right of carriageway over property owned by Frasers Lorne. Frasers Lorne replaced the asphalt on a driveway within the carriageway located on its property with turf. The plaintiffs, including Mrs Burke brought proceedings against Frasers Lorne to reinstate the asphalt driveway.

A question arose regarding the right of the owner of the burdened land (Frasers Lorne) to replace the surface material of the driveway on its land.

At [27] Brereton J held that, even though the turf driveway still afforded reasonable access to the benefited properties, Frasers Lorne has substituted the asphalt driveway for something which was inferior.

Frasers Lorne submitted that the real question was whether the alternative substituted by Frasers Lorne would still afford reasonable access in accordance with the terms of the easement. If it did, then Frasers Lorne had a right to install the alternative, Brereton J held at [28]:

“Attractive as this submission so stated is, I am, nonetheless, convinced it is wrong for the following reasons. First, it would be inconsistent with the right of the dominant owner to construct a carriageway on the site of the easement, if, the dominant owner having constructed a carriageway which was not excessive, the servient owner could unilaterally disrupt that carriageway and substitute an inferior one, even though it would still afford reasonable access. The right to construct a carriageway must include, for example, the right to select the contractor who will build it, the right to select the particular form of paving which will be used, and so on. It would make nonsense of this right if the servient owner could then decide that he or she did not like the particular form of paving and substitute an inferior one.”

And at [33]:

“In my judgment, therefore, and absent any special provision in the grant, a servient owner is not entitled unilaterally to change the surface of the carriageway to an inferior one, or otherwise to disrupt or degrade the surface of the carriageway. To do so would be inconsistent with the rights of the dominant owner to construct a carriageway to the extent reasonably necessary for the proper enjoyment of the grant (so long as the construction is a non-excessive user), and to enjoy access over the carriageway so constructed.”

Accordingly, Brereton J concluded that Frasers Lorne had no right to change the surface of the driveway constructed within the carriageway on its land. To do so was inconsistent with the plaintiffs' right to have the constructed driveway over the right of carriageway remain in its current form.

Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

In Sertari Pty Ltd v Nirimba , the owner of the burdened land subject to a registered right of carriageway (Sertari), refused to consent to a development application by the owner of the benefited land (Nirimba). Sertari’s consent had become necessary because Nirimba proposed to carry out development on the benefited land to build 236 apartments and underground parking for 351 vehicles. Access to the benefited land was via a driveway and carpark on the burdened land. The proposed development would greatly increase the traffic on the right of carriageway. The terms of the easement placed the whole burden of the maintenance and repair of the driveway on the owner of the burdened land. The trial Judge ordered Sertari to give its consent to the development application. Sertari appealed against that order to the NSW Court of Appeal.

The NSW Court of Appeal (Handley AJA with whom Tobias JA and McColl JA agreed) held that the owner of the burdened land can be compelled to consent to a development application by the owner of the benefited land in respect of the burdened land where refusal to provide consent would obstruct the dominant owner in the exercise of its rights under the easement.

The servient owner had no lawful reason for refusing its consent.

Handley AJA held at [10]:

“The servient owner's refusal of consent, where this is legally necessary, obstructs the dominant owner in the exercise of rights under the easement. Obstruction by legal means in this way is just as much an infringement of the dominant owner's rights as a direct physical obstruction.”

in Kirkjian v Towers Waddell CJ in Eq held that the owner of the burdened land was bound to grant consent unless there was a "lawful reason" for refusing to do so. There was no such reason in that case because the proposed user of the right of way was not excessive.

The right of carriageway was in the following terms:

(a) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him and lessees, employees, customers, patrons, invitees and licensees of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and re-pass at all times and for all purposes with or without animals and with or without vehicles or both to or from the said dominant tenement or any part thereof.

(b) The site of the servient tenement shall be maintained and repaired by the registered proprietor thereof, which obligation shall bind his successors in title and assigns."

At first instance, Windeyer J held that the words of the grant were clear and since it was a right for all purposes and at all times all persons connected with the proposed residential development were entitled to use the right of carriageway. In these circumstances the question of excessive user, which was essentially one of construction, could not arise.

Windeyer J also held (at pghs [5], [37] - [41]) that the physical characteristics of the properties and the activities being conducted on the benefited land at the time of the grant of the easement could not cut down its plain words.

Handley AJA at [16] followed the High Court’s decision in Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45 which required that the Court could only have reference to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical characteristics of the properties but that these provided no basis for reading down the clear and unqualified words of the easement. The easement was for all purposes, for use at all times, and extended to every person with an estate or interest in any part of the benefited land with which the right was capable of enjoyment, and persons authorised by them. This meant that the benefit of the easement extended to each and every future owner of the proposed 236 apartment units.

The owner of the burdened land submitted that the car park, including the pavement of the burdened land, had not been constructed to carry heavy traffic of this nature and the positive obligation to maintain the easement was likely to prove underly onerous. The traffic once the units were fully occupied would impose a heavy and permanent financial burden on the owner of the burdened land.

His Honour Handley AJA held at [18]:

“In my judgment this evidence cannot affect the construction of the clear words of the grant. The dominant tenement is very large, the servient tenement is very small, the use is for all purposes, and the whole burden of maintenance and repair is clearly imposed on the servient owner.”

And at [20]:

“I have already held that the proposed user would not be excessive. The apparently unfair financial burden that the increased use would place on the servient owner would be lawful and in these circumstances the appellant was bound to give its formal consent to the second development application.”

The Court of Appeal held that, because the local council was nominated as the party with the power to release, vary or modify the terms of the easement, there was nothing to suggest that the local council could not impose conditions in the development consent that would fairly adjust the financial burdens created by the increased use of the burdened land. Further, it could be appropriate, at some stage, for the local council to modify the registered easement by incorporating the relevant conditions of consent so that those terms appear on the title.

FitzGerald v Foxes Lane (NSW) Pty Ltd [2025] NSWCA 212

In FitzGerald v Foxes Lane, the NSW Court of Appeal held that the owner of farmland near Moree in northern New South Wales ( Mr Fitzgerald ) which had the benefit of a registered right of carriageway ( ROC ) over neighbouring farmland, was entitled to undertake work (light grading) on a five metre wide vehicular track along the ROC. The owner of the burdened land ( Foxes Lane ) was restrained from causing crops to be planted or for “tramlines” to be created or maintained within the ROC on the burdened land.

The burdened land was previously used for grazing and a track mostly consisting of dirt compacted paths (for vehicle wheels) existed within the ROC.

However, from around 2011, Foxes Lane began using the land for cropping. They planted crops across the ROC and employed a system of cultivation involving “tramline” ruts which affected the existing track’s surface. This made it difficult for Mr Fitzgerald to drive over the track and use the ROC.

Mr Fitzgerald filed a summons in the NSW Supreme Court seeking injunctive relief concerning Foxes Lane’s farming activities within the ROC and declaratory relief relating to his plan to construct an unsealed crowned road over the existing track.

The primary judge substantially rejected Mr Fitzgerald’s claims, holding that Foxes Lane was entitled to use the ROC in any way, including by cropping, provided that there was no substantial interference with Mr Fitgerald’s rights under the ROC. Further, it held that Mr Fitzgerald’s proposed road works were not reasonably necessary in circumstances where he had always been able to pass and repass along the ROC in his farm ute.

Some of the issues to be determined on appeal were whether:

Foxes Lane’s use of the ROC by cropping constituted a substantial interference with Mr Fitzgerald’s rights; and
if so, what relief should issue and, relatedly, whether Mr Fitzgerald was entitled to undertake his proposed roadworks.

Substantial interference

With respect to interference by the planting of crops within the ROC and the tramlines, Kirk JA (with whom Adamson JA agreed) held at [99] that these amounted to a substantial interference with the use of the ROC. Specifically, the crops obscured the path of the ROC such that it was difficult to see and use and this was found to be a significant interference with the ability of Mr Fitzgerald and his guests to use the ROC.

“As noted, whether or not there has been a substantial interference with the rights of the dominant owner involves a practical, evaluative judgment about neighbours being able to exercise their respective property rights, taking account of the nature, extent and significance of any interference. There was evidence that the ROC, like other tracks and roads in the area, could become boggy and potentially impassible in wet conditions…That the ROC had such inherent limitations is not an answer to the appellant’s complaints that the respondents’ actions in cropping over the ROC impeded its use by making it more difficult and risky for ordinary nonfarm vehicles, and petrol vehicles (whether used for farming or not), to drive over the ROC…

In my view these effects of the respondents’ cropping activities represent a significant interference with the ability of the appellant and his invitees to use the ROC.”

And at [115]:

“The ROC did not require that the respondents only ever engage in grazing on Lot 10, as though the land use was frozen as at the time the right was created. But in changing use they could not ignore the right held by the dominant owner. As outlined above, the obscuring effect of the respondents’ cropping activities is a significant interference with the ability of the appellant and his invitees to make use of the ROC. The same is true of the increased difficulty and reduced speed of travelling on it, and the impediment placed on using non-farm vehicles or any vehicles using petrol engines. The potential for causing mechanical and physical problems with vehicles is also a factor of some (if lesser) weight. The combination of all such matters involves a substantial interference by the respondents in the rights held by the appellant.”

Right to construct within the ROC

At [73] Kirk JA restated the long-understood position that the ancillary right to construct a road within a right of carriageway turns on whether doing so was reasonably necessary for the dominant owner’s enjoyment of its express rights under the easement.

Kirk JA, held at [69]-[70] that while the context of the ROC might be important, Mr Fitzgerald’s rights to use the ROC ought not to be limited to the use of the track in its current state or limited to the use by an “ordinary farm vehicle”.

“There was some suggestion by the respondents that the ROC should be construed to extend to passage only by an “ordinary farm vehicle”, perhaps meaning 4WD vehicles. That issue overlaps with the practical question of the interaction of the parties’ rights in the current circumstances. Insofar as the point is put as a matter of construction it should be rejected. As the High Court said in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at [30] , “the term ‘for all purposes’ encompasses all ends sought to be achieved by those using the easement in accordance with its terms” (see also the authorities referred to at [64]). The respondents argued that “the purpose of the grant, assessed from the perspective of a reasonable person in the position of the parties to the grant, would have contemplated passage by ordinary farm vehicles, not a sports car”. However, as the appellant said in reply, the terms of the ROC are not limited to usage by farmers, and even farmers may use vehicles other than “usual farm vehicles”.

Accordingly, the submission that the use of the ROC ought to be limited to farm vehicles was rejected. A similar argument was rejected by Habersberger J in Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351:

[74] One other circumstance that I consider should be taken into account is that the easement in question benefited a rural property. Thus, it must have been contemplated that the easement would be used in the ordinary course of farming activities, should it be needed. This would likely involve the movement of cattle or other stock, the driving of tractors, motorbikes and other machinery and access by car or utility vehicle. I see no reason why this should not also include the occasional large truck or semi-trailer. Trucks are clearly used in farming activities, and occasionally bringing a larger vehicle onto the land is not an unlikely occurrence. In addition, it must have been contemplated at the time that a house might be built on the newly subdivided lot 4. There seems to be no reason, therefore, why the easement of way does not extend to all forms of vehicular traffic and I so find.”

With respect to the construction of a road within the ROC, Kirk JA held at [136] that Mr Fitzgerald had not established a sufficiently detailed and clear plan of the road he wished to build and had thus not established the reasonable necessity of building a road over the ROC.

However, Kirk JA at [137] held that Mr Fitzgerald was entitled to undertake remediation of the existing track to make it trafficable:

“However, the appellant is entitled to undertake remediation to the ROC to even out the tramlines that currently run across it. It is therefore appropriate to declare that the plaintiff may undertake work on a five metre wide vehicular track along the ROC in the nature of light grading or drag bucketing in order to even out the tramlines running across the track. Light grading would encompass the sort of work the appellant has previously undertaken by dragging an implement behind his ute.”

Key Takeaways

The owner of the benefited land is entitled to construct improvements on the burdened land where this is necessary or convenient for the exercise of the rights conferred by the easement: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 per Handley AJA at [9].
The owner of the benefited land can pave so much of the right of way as is reasonably necessary for its use and enjoyment but not the entirety of the right of way or insist that if be as flat as a billiard table: Butter v Muddle (1995) 6 BPR 13,984; Owners Corp of Stata Plan 42472 v Merala Pty Ltd (1998) 9 BPR 16,377.
The right to construct a carriageway must include, for example, the right to select the contractor who will build it, the right to select the particular form of paving which will be used, and so on: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [28].
An owner of burdened land is not entitled to change the surface of the carriageway to an inferior one, or otherwise to disrupt or degrade the surface of the carriageway. To do so would be inconsistent with the rights of the dominant owner to construct a carriageway to the extent reasonably necessary for the proper enjoyment of the grant (so long as the construction is a non-excessive user), and to enjoy access over the carriageway so constructed: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [33].
Where an easement permits the exercise of the rights granted in a number of different ways, generally the owner of the benefited land is entitled to choose the manner of its exercise, and even to change that use from time to time: Trewin v Felton [2007] NSWSC 851 per Brereton J at [19]; Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745 (Young J); Chiu v Healey [2003] NSWSC 857; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 per Brereton J at [24].
The owner of burdened land can be required to consent to a development application by the dominant owner in respect of the burdened land where refusal to provide consent would obstruct the dominant owner in the exercise of its rights under the easement: Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324.
The planting of crops and tramlines across a right of carriageway may constitute a real and substantial interference with the use of the right of carriageway and access across a farm track ought not be limited to 4wd farm vehicles only: Fitzgerald v Foxes Lane (NSW) Pty Ltd [2023] NSWCA 212.

Require further assistance?

We are often asked to provide advice on complex questions involving easements and ancillary rights.

Often resolution of the issues can be a simple matter of engaging in constructive consultation with the parties involved or the local council, or alternatively, bringing the matter before the Court for determination.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Existing Use Rights – Part Two (Explained)

Thu, 04 Dec 2025 21:00:00 GMT

Our latest video discusses existing use rights, their expansion, enlargement, intensification of use and change of existing use rights.

Existing Use Rights – Part One (Explained)

Sun, 30 Nov 2025 22:15:04 GMT

Existing Use Rights Explained

Planning law changes can create uncertainty for property owners and developers. Our new video breaks down existing use rights, explaining when they apply, the different types, and what landowners need to know to protect lawful uses.

Can a restrictive covenant stop your development?

Thu, 20 Nov 2025 03:36:58 GMT

In our latest video, we explore how restrictive covenants can be set aside to allow development to proceed under New South Wales planning laws.

Learn how consent authorities and the Land and Environment Court approach these provisions and what it means for your project.

�� Watch now to understand your options when a covenant stands in the way of your development.

��02 9145 0900

�� whiteacre.com.au

Understanding road closures by local councils in NSW and the appeal process

Thu, 13 Nov 2025 21:00:00 GMT

This article provides a summary of the legislative framework governing the closure of public roads and the subsequent vesting of land, as well as the rights of affected individuals to appeal closure decisions in New South Wales.

The following flowchart provides an overview of the process in NSW.

Does the local council own the road?

The first thing to determine is whether the local council is the owner of the road. The Department of Crown Lands, the Transport for NSW and local councils have pretty good records of the roads they own and are responsible for.

Section 145 of the Roads Act 1993 ( Roads Act ) provides the hierarchy of ownership:

145 Roads authorities own public roads

(1) All freeways are vested in fee simple in TfNSW.

(2) All Crown roads are vested in fee simple in the Crown as crown land.

(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as crown land.

In this article we are focusing on (3) - public roads within a local government area “vested in fee simple” in the local council. “Vested in fee simple” means the local council is the owner of the freehold interest in the road.

Having determined that the local council owns the road, we can now turn to the process of how it might close the road.

Legal Provisions for Road Closure

The process for road closure is set out in sections 38A to 38F of the Roads Act grouped under the heading “Closing of Roads”. The local council must be satisfied that the road is no longer required for public use, and that its closure will not compromise connectivity or reasonable land access for nearby landowners. A careful balancing of public interest and practical need is required before any closure process is initiated and the local council proposes to close the road.

Initiating the Road Closure Process

Having determined that the road is suitable for closure, the local council must propose to close the public road. Normally this involves council members considering the road closure at a council meeting and passing a resolution to close the road in question.

A local council that is proposing to close a public road must notify the public and relevant authorities. A proposal for closure is advertised, usually in local newspapers and via direct notification to adjoining landowners, relevant authorities, and other stakeholders.

There is a minimum period—typically set at 28 days—for the public and authorities to make submissions or objections regarding the proposed closure.

Objections, Submissions, and Council Determination

During the consultation window, anyone can provide feedback, raise objections, or suggest alternatives. Notifiable authorities, such as utility providers or emergency services, may file formal objections if the proposed closure impacts their operations.

If a notifiable authority submits an objection, the local council is generally unable to proceed with closure unless the objection is withdrawn or set aside by the Land and Environment Court.

Following the consideration of all submissions, the council records its decision—either to proceed with closure or to abandon the proposal.

If the local council chooses to proceed it must cause a notice to be sent to the Minister requesting that the road closure is published in the Government Gazette.

The council cannot proceed to close the road if there are unresolved objections by a notifiable authority.

If the road closure proceeds, a formal notice is published in the Government Gazette, and the legal status of the land changes accordingly.

Consequences of Closure and Vesting

Once closure is finalised and all objections or appeals are resolved, on the day the formal notice is published in the Government Gazette, the road is officially closed.

The road formally ceases to be a public road under the law, and all associated rights of access or passage are extinguished.
The vesting of the land—whether in the council or the Crown—determines future control, development, or sale of the area formerly occupied by the road.

What becomes of the land that once comprised the road?

The Roads Act addresses this:

Previously Vested Council Roads: If the road was constructed and previously vested in the local council, the land remains vested in that council. This means the local council retains ownership and responsibility for the land. The land formerly comprising the road is operational land for the purposes of the Local Government Act 1993 unless, before the land becomes vested in the council, the council resolves that it is to be community land, in which case the land is community land.
Crown Land: In all other scenarios—including unconstructed roads or those already vested in the Crown—the land either becomes, or remains, Crown land. The Crown then assumes management and may allocate or dispose of the land as per broader state policies.

This distinction ensures continuity of stewardship for land assets, avoiding ambiguity about future management and use.

Selling the former public road

If the land formerly comprising the road is operational land, the local council will typically seek to dispose of the operational land.

If the land is disposed of by sale, the proceeds of sale (less the costs of the sale) are to be paid to the council.

Money received by a council from the proceeds of sale of the land is not to be used by the council except for acquiring land for public roads or for carrying out road work on public roads.

Appealing a Council Road Closure: The Role of the Land and Environment Court

The Roads Act provides checks and balances for affected parties:

Who Can Appeal? Persons referred to in section 38B(1)(b)—typically those directly affected, such as adjoining landowners—may appeal to the Land and Environment Court if dissatisfied with the council’s decision to close a public road.

Scope of Appeal: The Court is empowered to either affirm the council’s closure decision or set it aside. When the closure is set aside, it is treated as though it never occurred, effectively restoring previous rights and access.

Interaction with Other Appeals: The Act clarifies that an appeal under section 38C (for example, relating to a notifiable authority’s objection) does not preclude or limit the right to appeal the closure itself under section 38F.

These provisions ensure due process and provide avenues for redress where stakeholders believe their interests have not been adequately considered.

Why These Provisions Matter

The detailed procedures outlined in the Roads Act are designed to promote transparency, ensure fair consideration of community and stakeholder interests, and maintain clarity over land ownership and use. They balance the operational needs of local councils and the state with the rights of individuals and the public interest.

Conclusion

The closure of a public road is a significant action, impacting both present and future land use. The Roads Act establishes a robust, consultative process, providing pathways for feedback, objection, and appeal. By clearly outlining the vesting of land and avenues for legal recourse, the Roads Act safeguards both community interests and the proper management of public assets—ensuring that any change to the road network is both deliberate and accountable.

Stormwater Discharge:Legal Implications and the Law of Nuisance

Fri, 07 Nov 2025 01:46:56 GMT

This video explores legal rights and responsibilities regarding stormwater discharge, surface runoff and the law of private nuisance. We explore how the law of nuisance applies to water flowing between neighbouring properties — and what landowners and developers need to know.

Link to the Article

Watch the full video here:

��02 9145 0900

�� whiteacre.com.au

Physical Commencement of Development Consents

Fri, 31 Oct 2025 02:52:37 GMT

New Video Alert!

This video explaining Physical Commencement and Lapsing of Development Consents is a must watch for anyone involved in property development, construction, or town planning.

�� Watch it now on our YouTube Channel: Physical Commencement and Lapsing of Development Consents

Existing Use Rights – Part One

Thu, 02 Oct 2025 05:17:19 GMT

This article explores existing use rights – what they are and how they are characterised. Part two of this article explores issues like enlargement and expansion of existing use rights and abandonment and can be found here

What are existing use rights?

Existing use rights are the right to continue using land in a way that it is currently lawfully being used:

Existing use right provisions in town planning legislation permit the continuation of the lawful use of land for any purpose for which it was being used immediately before the passing of legislation that may restrict or prohibit that use: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 McHugh JA (with whom Samuels JA and Hope JA agreed) at p 309.

Two things to note from the above definition.

First, existing use rights are derived from planning legislation, not the common law.

Second, existing use rights must have a lawful origin. Existing use rights permit the continuation of a use of land that was lawful to begin with.

An example of an existing use is the operation of a gravel quarry on rural farm land. Historically, consent may not have been required to operate the quarry, or the farmer may have obtained development consent to do so. Planning legislation introduced over time may now prohibit the operation of the quarry. In those circumstances, the operation of the quarry would likely be an existing use of the land and the farmer may continue operating the quarry.

Why do existing use rights exist?

The law on existing use rights seeks to strike a balance between on the one hand, the rights of landowners whose uses of their land are affected (usually adversely) by changes to planning legislation and on the other hand, the expectations of the public that planning changes introduced through new environmental planning instruments will be implemented. In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344 at [345] Kirby P described this as a conflict between private and social rights and a transitional arrangement to cushion the impact on private landowners of changes to planning laws:

“A conflict between private and social rights:

Behind the competing legal arguments of the parties in this appeal lies a conflict between private and social rights. A wide definition of, and generous approach to, existing use rights tends towards the protection of private interests in land where these conflict with the social interests represented by the generally applicable planning law. A stringent approach to the proof of abandonment of an existing use right tends to favour private over social claims to the use of land. Identifying and defining existing use rights with specificity and precision tends to uphold the social interest represented by planning law and to confine derogations from that interest to a narrow class of case. The readier acceptance of abandonment of existing use rights conduces to the absorption of land, which exceptionally departs from the requirements of general planning law, into the code which otherwise generally applies. Seen in this way, existing use rights are a transitional derogation designed, for a time only, to cushion the impact of new general planning laws upon private owners with established use of their land which has continued without abandonment.”

Types of existing use rights

Up to now we have been using the term “existing use rights”. While that phrase is commonly used, there are actually three distinct species of existing use rights, set out below.

(1) Existing Use (without consent) – the land use was commenced lawfully (but without development consent) prior to planning legislation being introduced which prohibits the land use.

(2) Existing Use (with consent) – the land use was commenced lawfully (with development consent) prior to planning legislation being introduced which prohibits the land use.

(3) Other lawful use - the land use was commenced lawfully (but without development consent) before planning legislation was introduced that imposes a requirement for development consent for the land use.

The law relating to each type of existing use rights above is not uniform.

Planning legislation

Existing use rights are prescribed in the Environmental Planning and Assessment Act 1979 (NSW) ( EPA Act ).

Existing uses

Under the EPA Act, the first and second types are described as “existing uses” and share a common theme that the use commenced at a time when it was allowed (either with consent or without consent) but is now prohibited.

“Existing Use” is defined in s 4.65 of the EPA Act as:

In this Division, existing use means—

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b) the use of a building, work or land—

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

Other lawful uses

The third type can be described as “other lawful uses”. Other lawful uses include circumstances where the use of a building, work or land commenced lawfully, but later planning legislation was introduced imposing a requirement for development consent for the use.

We will examine existing uses and other lawful uses in turn below.

Protection of Existing Use Rights

Existing use rights, (types (1) and (2) above) occur where development was commenced lawfully (either with or without development consent) prior to planning legislation being introduced which prohibits the development.

Section 4.66 of the EPA Act states that nothing in the EPA Act or an environmental planning instrument ( EPI ) “prevents the continuance of an existing use”.

Section 4.70 also protects existing uses that have the benefit of a development consent. Section 4.70 says that nothing in an EPI prohibits or requires a further development consent to authorise the existing use where that use benefits from a valid development consent.

The third type (other lawful use) is development that was commenced lawfully at the time (but without development consent) before planning legislation was introduced that imposed a requirement for development consent.

Section 4.68 of the EPA Act applies to “other lawful uses”. It states that nothing in an EPI requires development consent to be obtained for the continuance of a use of a building, work or land for a lawful purpose, nor can it prohibit the continuance of that use.

Continuing the example of the gravel quarry above, operation of the quarry may have commenced lawfully at a time when development consent was not required. Years later, the local council introduced a local environmental plan which required development consent to operate quarries on rural land. Under those circumstances, operation of the quarry may be an “other lawful use”. Under section 4.68 the operation of the quarry would not require development consent to continue to operate.

Characterisation of existing uses

Existing uses and other lawful uses are protected under the EPA Act. But, questions often arise regarding the nature of the existing use- that is, how ought it to be characterised? Other issues can also arise regarding (i) the scope and extent of the use and (ii) whether the use can be enlarged or intensified.

The onus of establishing these matters falls on the person asserting the existing use rights: Auburn Council v Nehme [1999] NSWCA 383; Wollongong City Council v Ensile Pty Ltd (No 4) (2008) 71 NSWLR 563; [2008] NSWLEC 149 at [20]-[26] ; Liverpool City Council v Maller Holdings Pty Ltd (2013) 211 LGERA 360; [2013] NSWLEC 154 at [68] .

Let’s start with characterisation of the existing use. Characterisation of use of land is a complex topic and something we explore in detail in our article on characterisation of use which you can access here .

In short, the principles relevant to characterisation of use were explored in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 ( Chamwell ) and Shire of Perth v O'Keefe [1964] HCA 37.

Chamwell is authority for the proposition that the use of land must be for a purpose. The use of land involves physical acts by which the land is made to serve some purpose. For example, the physical acts on the land might be the construction of a house and landscaping but the purpose is the use of the land for residential purposes. That is the ordinary occupation of the house as a domicile.

Another helpful way to explain characterisation is through an example. By way of example, (from Chamwell ) the use of part of the land within a shopping centre might be for carparking. But that does not make the use of the land “carparking”. The carpark forms part of the overall purpose which is the operation of a shopping centre, not a carpark.

Scope of existing uses

A key consideration in determining the scope and extent of an existing use arises from the words “actually physically and lawfully used” in s 4.66(2)(b) of the EPA Act:

“Nothing…authorises (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument”.

It follows that the extent of the area subject to the existing use and other lawful use rights that is afforded protection under the EPA Act is limited to areas that have been actually physically and lawfully used: Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 ( Palm Beach ) at [185]; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 241 LGERA 321 ( Hunter Industrial ).

Considering this provision in the context of a limestone mine west of Kempsey, Mahoney JA in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd and Minister for Minerals and Energy (1991) 73 LGRA 366 ( Vaughan-Taylor ) stated, at [370]:

… Certain things may be said about the operation of the paragraph. First, it refers to the "area" of use. In my opinion, it does not prevent the company in the present case digging a mine or quarry which is deeper than existed before the relevant date. The paragraph is directed to the lateral area of the land used: it does not, in such a case as the present restrict the cubic content of what is done. In stating the matter in this way, I am conscious that it may be necessary, in a particular case, to examine the impact of the paragraph upon, for example, the use of a building. I do not mean by what I have said that, for example, an existing use of an area on one floor would authorise the expansion into a number of upper floors or generally on the same floor. The impact of the paragraph in such a case will require consideration according to the particular circumstances.

Applying Vaughan-Taylor the phrase “actually physically and lawfully used” refers to the lateral area of the land, not necessarily its depth. But, this principle cannot be taken too far. Each case may have unique circumstances and will be determined by matter of fact and degree.

Applying this to our example of the quarry on rural land, the operation of the quarry in its present state does not require developments consent, and indeed the farmer could continue to extract gravel, up to a paint. The area of the gravel quarry is not unbounded.

Extending the operation by installing a road and truck wash bay and maintenance shed would likely require consent. Likewise, extending the area of the quarry and clearing vegetation to do so may not be considered within the scope of the original quarry.

In a similar vein because of the inclusion of development pursuant to a development consent (subsequently prohibited by an EPI) as a species of existing use, it was necessary to protect the full implementation of development authorised by the development consent but as yet incomplete from the limitations in s 4.66 of the EPA Act.

For example, if development consent was granted to a quarry and an EPI was subsequently made prohibiting development for the purpose of extractive industry when the quarry had only extracted part of the land authorised by the consent, s 4.70 operates to enable the holder of the consent to fully implement the consent and extract all areas approved under that consent without s 4.66(2) operating to limit the consent only to areas used and buildings/works actually built at the date of prohibition coming into force and, in effect, revoking part of that development consent.

Ultimately, determining the scope and extent of the existing use can be a difficult exercise, requiring a detailed analysis of the history of uses carried out on the land against the applicable planning controls and any relevant development consents that may have been operative. It will often involve the examination of historical records including business records and evidence establishing how the land was being used at particular times.

This will often require a determination, on the evidence, of the extent to which the area in question was actually lawfully used prior to the date it was prohibited.

Abandonment of existing uses

Existing use rights and other lawful use rights can be abandoned.

In Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194, Craig J (at [44] held that abandonment can occur through actions of the landowner or through the statutory presumption in sections 4.66 and 4.68 of the EPA Act:

“Abandonment of an existing use may be established in either one of two ways. First, it may emerge from the statements or actions of the owner of the land upon which the existing use is being conducted, manifesting an intention no longer to continue the use of the land for its present purpose ( Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 per Hope JA at 716-717). Secondly, abandonment may occur … from the presumption of cessation of actual use for a period of 12 months, coupled with the absence of any evidence to rebut that presumption.”

Sections 4.66 and 4.68 of the EPA Act impose a presumption that an existing use or other lawful use is abandoned, unless the contrary is established, if they cease to be actually used for a continuous period of 12 months.

Because this is a statutory presumption, it is capable of being rebutted, but the onus of proof falls on the person claiming a use has not been abandoned if it has ceased for 12 months.

The fact that the landowner lodges a DA for another use, or to change the use, does not establish an intention to abandon existing use rights because the owner could revert to utilising the existing use rights: Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123.

Uses unlawfully commenced

Finally, existing use and other lawful use rights must have a lawful origin.

Section 4.69 of the EPA Act provides that a use which has unlawfully commenced is not made lawful by any subsequent event except:

(a) the making of an EPI which permits the use without consent; or

(b) the granting of a development consent for that use.

For an existing use to receive protection, it must have been lawful at the relevant date in that if development consent was required, such a development consent had been obtained: Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562.

Whilst seemingly simple, the topic of existing use rights is complex. The complexity increases when considering the ability to change the existing use or expand or intensify the existing use. Landowners are well advised to seek competent and professional planning law advice to understand whether they may benefit from existing use rights or how they might expand or intensify those rights. Part Two of this article explores issues like enlargement and expansion of existing use rights and abandonment and can be found here .

Disclaimer

The contents of this article are a general guide and intended for educational purposes only. Determination of the types of issues discussed in this article is complex and often varies from case to case and involves an understanding of matters of fact and degree. Opinions on those matters can vary and be matters on which reasonable minds may differ.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Existing Use Rights – Part Two

Thu, 02 Oct 2025 05:17:05 GMT

This article explores existing use rights, specifically expanding and intensifying existing uses, and changes of existing uses. Part One examined the nature of existing use rights and how they are characterised. That article can be accessed here

Expanding and intensifying the existing use

While existing use and other lawful use rights are protected under sections 4.66 and 4.68 of the Environmental Planning and Assessment Act 1979 ( EPA Act ), the protection is limited to the continuance of those uses.

Nothing in those sections authorises:

(a) any alteration or extension to or rebuilding of a building or work;

(b) any increase in the area of the use made of a building, work or land;

(e) the continuance of the use where that use is abandoned.

That is not to say that existing uses cannot be enlarged or intensified or even changed to another use. The right to do so is found in the Environmental Planning and Assessment Regulation 2021 ( EPA Regulations ).

Section 4.67 of the EPA Act provides that the EPA Regulations may make provision for:

(a) The carrying out of alterations or extensions to or the rebuilding of an existing use;

(b) The change of an existing use to another use; and

The EPA Regulations and incorporated provisions

Clauses 162 – 167 of the EPA Regulations contain provisions that allow:

a. the enlargement, expansion and intensification of existing uses (cl 164);

b. the alteration of a building or work used for an existing use (cl 165);

c. the rebuilding of a building or work used for an existing use (cl 166); and

d. the change of an existing use to another existing use (cl 163 and 167).

The provisions of the EPA Regulations (clauses 162-167 above) are taken to be incorporated in every environmental planning instrument ( EPI ). For this reason, these clauses are referred to as the “ incorporated provisions ”.

Section 4.67(3) of the EPA Act (previously s 108(3) of the Act) provides that the provisions of any EPI (like a local environmental plan) that derogate from the incorporated provisions have no force or effect.

4.67 Regulations respecting existing use

(cf previous s 108)

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to—

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(d) (Repealed)

(2) The provisions (in this section referred to as the incorporated provisions ) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

[our emphasis]

So to recap thus far.

The protections afforded in the EPA Act to existing uses and other lawful uses simply allow the continuance of that use.
The EPA Act provides that the EPA Regulations may make provision for expansion and intensification of existing uses and the change of existing uses.
The provisions of the EPA Regulations relating to existing uses are referred to as the incorporated provisions and are deemed to be incorporated into every EPI, including local environmental plans.
The EPA Act states that an EPI may extend or supplement the incorporated provisions but, to the extent that the EPI contains provisions which may derogate from the incorporated provisions of the EPA Regulations, those provisions in the EPI have no force or effect.

The question of whether the provisions of an EPI, particularly local environmental plans, derogate from the incorporated provisions, and the related question regarding how such development applications ought to be assessed by consent authorities, has been the subject of considerable legal debate.

Legal consideration of applications to expand or intensify existing use rights and change of existing use rights. What it means to “derogate” from the incorporated provisions.

Lloyd J considered the effect of s 4.67(3) (then s108(3)) in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 ( Fabcot ) at 578, particularly the meaning of “derogate”:

“Section 108(3) uses the word ‘derogate’ the ordinary meaning of which is ‘to repeal or abrogate in part; to destroy or impair the force or effect of; to lessen the extent of; to detract from; to disparage, to depreciate’ (The Shorter Oxford Dictionary). In the Macquarie Dictionary the word is defined in the sense of ‘to detract’. The relevant provisions of the environmental planning instrument in this case, namely cl 9 and the objectives of the zone, would clearly derogate from the incorporated provisions.

Accordingly, those provisions of the local environmental plan have no force or effect. However, it is only those provisions of the local environmental plan which would derogate or have the effect of derogating from the incorporated provisions which have no force or effect…”

In Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, ( Iris Diversified ) Her Honour Pain J held that development standards in an LEP which constrain a consent authority’s discretion to approve a change of use did not necessarily “detract from, lessen the extent of or impair or depreciate the change of use to the existing use permitted” and thus did not derogate from the incorporated provisions.

In Iris Diversified , the Applicant proposed a change of use to residential flats of part of a site that benefited from existing use rights for the purposes of a hotel.

Clause 41(1)(d) of the EPA Regulations (now cl 163(1)(d)) provided that an existing use may be changed to another use, but only if that other use is a use that may be carried out with or without development consent:

41 Certain development allowed

(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act…

[our emphasis]

Clause 41(1)(d) is identical in terms to the current clause 163(1)(d) of the EPA Regulations.

Commonly in planning law, the phrase “development that may be carried out with development consent” is understood by many to mean that the development is not prohibited under the relevant local environmental plan. That is, the proposed development is listed in the land use table as development that may be carried out in the zone with development consent. Applying this interpretation to cl 41(1)(d), an existing use could be changed to another use, provided that other use is not prohibited development. Development standards in an LEP like height and floor space ratio standards could not be used to refuse the development application because to do so would derogate from the incorporated provisions and, pursuant to s. 4.67(3) ought to have no force or effect.

By contrast in Iris Diversified , the Council contended that the phrase, “but only if that other use is a use that may be carried out with development consent” meant that the existing use could only be changed to another use if development consent was actually obtained for that other use. The development standards in the LEP did not derogate from the incorporated provisions because it was only by reference to those development standards that it could be determined that the proposed use was a “use that may be carried out with development consent.”

Her Honour Pain J held at [30],

“The issue that arises for determination for the first time is whether cl 41(1)(d), as incorporated in the LEP by virtue of s 108(2), allowing a change to a use permissible with or without development consent, is derogated from if the change of use is assessed against the development standards in an LEP.”

Ultimately, Her Honour found that assessment of the proposed change of use against the development standards in an LEP did not derogate from the incorporated provisions.

Her Honour held at [50]:

“Adopting the meaning of derogate applied in Carden and Fabcot and applying an ordinary meaning to the words in cl 41(1)(d), I do not consider that the application of development standards in the LEP to the assessment of a conforming use as defined under the land use table is a derogation to which s 108(3) refers. Such an approach will not detract from, destroy or impair the operation of cl 41(1)(d). Section 108(3) contemplates that other provisions of the LEP will expand on the incorporated provisions. The assessment of the otherwise conforming use in accordance with the relevant development standards in the LEP does not derogate from the incorporated provision which is cl 41(1)(d).”

In Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194 ( Cracknell & Lonergan ) Craig J followed Iris Diversified and held that the proposed demolition of an existing warehouse building and erection of two-storey residential flat building was subject to development standards in the Leichhardt Local Environmental Plan 2000 and development controls of the Leichhardt Development Control Plan 2000.

His Honour found that those standards and controls did not “derogate” from the incorporated provisions, namely cl 41(1)(d) which required that the proposed use be one "that may be carried out with or without development consent". Permissibility of the use was determined by reference to all provisions of applicable planning instrument including development standards under the relevant local environmental plan and development control plan.

Relating to this issue, at [65] His Honour held:

“… A given form of land use can only correctly be described as development that is either permitted or permissible by reference to the land use table of a planning instrument if the particular form of land use proposed has such characteristics as are specified in the planning instrument, that enable that land use to be identified as a use "that may be carried out with or without development consent under the Act". The presence or existence of those characteristics will often be necessary in order to make that determination…”

In other words, to determine whether a proposed use is one “that may be carried out with development consent” one must consider whether the proposed land use has the required characteristics set out in the local environmental plan and the development control plan. It is reference to those instruments that determines the permissibility of the proposed land use.

Considering whether regard to the local environmental plan “derogates from” the incorporated provisions, His Honour said at [68]:

“When the characteristics of a particular form of activity are necessary to be present in order to determine whether, in the example given, the activity is exempt development and therefore a use permitted without development consent, the stipulation of those characteristics by reference to provisions of LEP 2000 does not "derogate" from cl 41(1)(d). On the contrary, their existence is necessary to determine whether the power provided by the subclause is able to be exercised. This illustrates the proposition, contrary to the Architects submission, that the land use table or other provision identifying generic permissibility is not necessarily the sole source of reference for the purpose of determining whether a particular form of land use may be carried out without development consent.”

In summary, Craig J held (at [72]) that regard must be had to more than the mere designation of a particular land use in the land use table as “permissible with consent” to determine whether a proposed change of use from an existing use is permissible.

Finally, in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 ( Saffioti ), His Honour Preston CJ confirmed at [65] the decisions in Iris Diversified and Cracknell & Lonergan that provisions of a local environmental plan fixing development standards for development do not derogate from the incorporated provisions.

In Saffioti , the Commissioner of the Land and Environment Court had refused the applicant’s development application to erect a new dwelling on the land and convert the existing dwelling to an artist’s studio, relying on existing use rights. The Commissioner refused the application because he was not satisfied that:

the proposed development was designed, sited and managed to avoid, minimise or mitigate any significant adverse environmental impacts on terrestrial biodiversity, as he said he was required to be under cl 6.4(4) of the Kiama Local Environmental Plan 2011 ( KLEP ); and
the proposed development complied with five controls in Kiama Development Control Plan 2012 ( KDCP ).

The KLEP prohibited the erection and use of a dwelling on land in the E2 Environmental Conservation Zone. By s 4.3 of the EPA Act, a person must not carry out development that is prohibited. However, by s 4.66(1) of the EPA Act, nothing in the EPA Act or KLEP prevents the continuance of an existing use. Hence, Ms Saffioti could continue to use her land for a dwelling. Further, cl 42 of the EPA Regulations allowed Ms Saffioti to seek development consent to enlarge, expand or intensify that use, even though the use was prohibited in the zone.

Chief Justice Preston confirmed the Commissioner’s findings and held that cl 6.4(4) of KLEP did not derogate from the provisions of cl 41(1)(a) and cl 42 of the EPA Regulations which allows, with development consent, the enlargement, expansion and intensification of an existing use.

His Honour stated at [63]:

“…Clause 6.4(4) of KLEP did not derogate from the incorporated provisions. Clause 6.4(4) does establish factual preconditions about which the consent authority must be satisfied in order to enliven the power to grant consent to development on land to which clause 6.4 applies. However, there is nothing about these factual preconditions that operate to prevent a consent authority from being satisfied that they are met in the individual circumstances of any development. The “development” to which cl 6.4(4) refers is the development the subject of the development application. In the case of a development application to change an existing use in some way permitted by the incorporated provisions, the development will be this development to change the existing use. There is nothing inherent in development involving a change in an existing use that would preclude such development being designed, sited or managed to avoid any significant adverse environmental impact, or to minimise that impact, or to mitigate that impact. Hence, a provision requiring a consent authority to be satisfied, before being able to grant consent to such development, that the development is designed, sited or managed to avoid, minimise or mitigate any significant adverse environmental impact does not derogate from the incorporated provisions that permit a development application for such development to be made.”

The relevant provision in the local environmental plan did not prohibit a development application being made to enlarge, expand or intensify the existing use. The proposed enlargement of the existing use could have satisfied the requirements of cl 6.4(4) of the KLEP. Accordingly, the provision did not “derogate” from the incorporated provisions and the proposed development was required to comply with that provision.

In summary, at [69] His Honour held:

“Accordingly, there is no entitlement to change an existing use in one or more of the ways permitted by the incorporated provisions, only to make a development application seeking consent to change an existing use in one or more of the ways permitted by the incorporated provisions and have a consent authority consider and determine that development application.

The test, therefore, is not whether cl 6.4(4) of KLEP detracts from or deleteriously impinges upon any entitlement to enlarge, expand or intensify the existing use, but rather the entitlement to make, and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify the existing use.”

Key Takeaways

The protections afforded in the EPA Act to existing uses and other lawful uses simply allow the continuance of that use.
The EPA Act provides that the EPA Regulations may make provision for expansion and intensification of existing uses and the change of existing uses.
The provisions of the EPA Regulations relating to existing uses are referred to as the incorporated provisions and are deemed to be incorporated into every EPI, including local environmental plans.
The EPA Act states that an EPI may extend or supplement the incorporated provisions but, to the extent that the EPI contains provisions which may derogate from the incorporated provisions of the EPA Regulations, those provisions in the EPI have no force or effect.
Following Iris Diversified and Cracknell & Lonergan the provisions of local environmental plans and development control plans like height controls, floor space ratios and character relevant to determine whether proposed development to change an existing use of land to another use is permissible do not derogate from the incorporated provisions of the EPA Regulations.
Following Saffioti , provisions of a local environmental plan fixing development standards for development do not derogate from the incorporated provisions that allow the enlargement, expansion and intensification of an existing use. There is no entitlement to change an existing use in one or more of the ways permitted by the incorporated provisions, only to make a development application seeking consent to change an existing use in one or more of the ways permitted by the incorporated provisions and have a consent authority consider and determine that development application.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

NSW Biodiversity Offsets for Councils

mevans@whiteacre.com.au (Mark Evans) — Sun, 04 May 2025 22:04:51 GMT

By establishing a biodiversity stewardship site over suitable parcels of land, Councils may be able to protect and conserve biodiversity values and threatened species and generate sufficient credits to secure funding for ongoing management costs or to offset impacts of Council projects, or both.

This article provides a general overview of the NSW Biodiversity Offsets Scheme, followed by a discussion of the tax implications of establishing a biodiversity stewardship site for Councils.

What is the NSW Biodiversity Offsets Scheme?

The NSW Biodiversity Offsets Scheme (the Scheme ) is a market-based scheme that is administered by the NSW Department of Climate Change, Energy, the Environment and Water ( Department ) and aims to help address the loss of biodiversity and threatened species in NSW. It seeks to do so by creating incentives for landowners to improve or maintain biodiversity values as a means of offsetting impacts on other areas.

The Scheme is established by the Biodiversity Conservation Act 2016 ( BC Act ) .

How the Scheme works

Councils can establish a ‘biodiversity stewardship site’ ( Stewardship Site ) on eligible land within NSW by means of entering into a Biodiversity Stewardship Agreement ( Stewardship Agreement ) with the Department: s 6.17 BC Act.

In doing so, Councils commit themselves to enhancing and protecting biodiversity values on the Stewardship Site.

On execution of a Stewardship Agreement, the Council is entitled to receive an amount of biodiversity credits which are created by the Department. The amount of biodiversity credits are calculated by the Council’s accredited ecologist (and verified by the Department) in accordance with the methodology prescribed in the Biodiversity Assessment Method ( BAM ): s 6.7 BC Act.

Biodiversity credits are created in respect of existing biodiversity values on the land and management actions to be carried out in accordance with the Stewardship Agreement.

A biodiversity credit remains in force unless it is cancelled or retired: s 6.18 BC Act.

The market value of the biodiversity credits is calculated by the Department at the time of creation.

Sale and transfer of biodiversity credits

Biodiversity credits may be sold by the Council to a buyer (or in parcels to a number of buyers) seeking to offset the impact of actions detrimental to biodiversity or to permanently secure conservation outcomes. The sale price of the biodiversity credits is determined by agreement between the Council and the buyer.

Alternatively, biodiversity credits may be used by Council to offset negative biodiversity impacts arising from an activity carried out under Part 5 of the Environmental Planning and Assessment Act 1979 : s 7.15 BC Act.

The Council may transfer biodiversity credits to a buyer or third party: s 6.19 BC Act. The transfer is made through an application to the Department by the parties to the transfer. The transfer is not effective until the transfer is authorised by the Department and registered in the register of biodiversity credits: s 6.20 BC Act.

On the registration of the first transfer of the biodiversity credits, the Total Fund Deposit ( TFD ) specified in the Stewardship Agreement (or a proportion, if not all the credits are transferred) is required to be paid by the buyer of the biodiversity credits into the Biodiversity Stewardship Payments Fund (the Fund ): s 6.21 BC Act.

The TFD is a fixed amount of money used to cover the long-term management costs of a Stewardship Site. It is a calculated value representing the present value of future payments needed to fund the agreed management actions.

Contracts for the sale of biodiversity credits between the Council and purchasers will state that the credit owner is entitled to the full amount of the agreed sale price of the biodiversity credits, including the TFD, and that the credit owner will have the obligation to pay the TFD.

Once the credits have been ‘used’ to offset negative biodiversity impacts and to permanently secure the conservation of biodiversity, they are ‘retired’ such that they can no longer be used for any other purpose: s 6.27 BC Act.

Annual payments are made out of the Fund to the Council in respect of management actions carried out in accordance with the Stewardship Agreement: s 6.34 BC Act.

Management actions typically include obligations to fence areas of land, control exotic pest species, carry out bushfire management and weed management. In summary, annual payments made out of the Fund can help Councils meet the expenses they currently incur managing large tracts of land while achieving significant biodiversity conservation outcomes.

Disclaimer

This is a general overview of the Scheme and tax implications.

The information in this article is general in nature and is intended as a guide only. It is not designed to be, nor should it be regarded, as legal or accounting advice.

The business and financial structure for each landholder or entity managing a biodiversity stewardship site or conservation area is likely to be unique. Therefore, the way taxation law applies will depend on individual circumstances and you should consult a professional tax adviser before engaging with the Scheme or entering into a Stewardship Agreement.

Capital Gains

The ATO deems that a capital gains event (type D4) occurs on entry into a Stewardship Agreement: s 104-47(1) ITAA.

The landowner makes a capital gain if the “capital proceeds” are more than that part of the “cost base” of the land that is apportioned to the covenant.

Most state and federal government departments, including local councils are tax exempt: s 50.25 ITAA.

GST on entry into Stewardship Agreement

When the Department and the Council enter into a Stewardship Agreement, the Council makes a taxable supply by entering into the agreement in return for the biodiversity credits issued by the Department and the Department makes a taxable supply of biodiversity credits in return for the Council entering into the agreement. These are non-monetary transactions.

The Department and the Council (if both are registered for GST):

are required to pay GST in respect of their supply, calculated on the estimated value of the credits; and
can claim an input tax credit (ITC) in respect of the tax invoice received from the other party.

If a Council is registered for GST, the Department will issue a Department GST invoice and Recipient Created Tax Invoice (RCTI) on behalf of the Council when the Department sends the registered BSA to the Council. The Department will use the estimated market value of the biodiversity credits for the purposes of these invoices.

As the GST payable and the input tax credit that can be claimed are the same amount, the net GST position for both the Council and Department is zero. This means that these invoices do not need to be paid. However, both the Department and the Council are required to account for the GST payment and the input tax credit in their business activity statements (BAS).

Capital gains from sale or transfer of credits

A CGT event (type A1) occurs upon the sale of biodiversity credits. The Council may make a capital gain or loss depending on the capital proceeds and cost base of the credits: s 104-10(4) of the ITAA.

A biodiversity credit constitutes a CGT asset: s 108-5 of the ITAA.

CGT event (type A1) happens when the Council disposes of biodiversity credits: s 104-10 of the ITAA.

Most state and federal government departments, including local councils are tax exempt: s 50.25 ITAA.

GST on sale of biodiversity credits

For the purposes of GST, the sale of credits is a taxable supply of goods. This means that the biodiversity credit price should include GST that the Council then needs to pay to the ATO.

Receipt of annual payments from the Biobanking Trust Fund

Annual payments from the Fund made by the Department to the Council are a contractual payment for the performance of services and should be ordinary income and assessable for income tax purposes.

Most state and federal government departments, including local councils are tax exempt: s 50.25 ITAA .

GST on annual payments

The supply of stewardship services by the Council to the Department in return for payment of the annual payment should be a taxable supply.

The Department will issue a recipient created tax invoice (RCTI) and include an amount for GST when making the annual stewardship payments for management actions the Council delivers.

Conclusion

Councils can establish biodiversity stewardship sites on eligible land within NSW by means of entering into a Biodiversity Stewardship Agreements with the Secretary of the Department.
On execution of a Stewardship Agreement, the Council is entitled to receive an amount of biodiversity credits.
Biodiversity credits may be sold by the Council to a buyer seeking to offset the impact of actions detrimental to biodiversity or to permanently secure conservation outcomes.
Biodiversity credits may be used by Council to offset negative biodiversity impacts arising from an activity carried out by Council.
Some of the proceeds of the sale of biodiversity credits must be paid into the Fund to cover ongoing management actions and costs.
Annual payments are made out of the Fund to the Council in respect of management actions carried out in accordance with the Stewardship Agreement.
Management actions typically include obligations to fence areas of land, control exotic pest species, carry out bushfire management and weed management.
In summary, annual payments made out of the Fund could help Councils meet the expenses they currently incur managing large tracts of land while achieving significant biodiversity preservation outcomes.

Disclaimer

This is a general overview of the Scheme and tax implications.

The information in this article is general in nature and is intended as a guide only. It is not designed to be, nor should it be regarded, as legal or accounting advice.

NSW Planning System: Navigating Land and Environment Court

mevans@whiteacre.com.au (Mark Evans) — Thu, 20 Mar 2025 22:15:54 GMT

Expert Legal Insights on Development Approvals and Appeals with Planning Lawyer Mark Evans

Navigating NSW development approvals requires a deep understanding of legal frameworks, compliance challenges, and industry regulations.

In this episode, Nathan Battishall (The Residential Developer) hosts Mark Evans, a top legal expert and Director of Whiteacre Legal, to break down the legal intricacies that developers must navigate.

Physical Commencement of Development Consents – Part Two

mevans@whiteacre.com.au (Mark Evans) — Thu, 27 Feb 2025 21:00:00 GMT

Development consents granted after 15 May 2020 face stricter requirements to determine whether they are substantially commenced and thus remain valid. This article reviews recent case law in New South Wales (NSW) and outlines the types of work that can qualify as physical commencement.

Changes to Legislation

Section 96 of the Environmental Planning and Assessment Regulation 2021 ( 2021 Regulation ) has raised the standard for what constitutes physical commencement. For development consents granted after 15 May 2020, certain activities are explicitly excluded from being sufficient to meet this requirement. These activities include:

- Creating boreholes for soil testing

- Removing soil or water for testing

- Conducting survey work (e.g., placing pegs)

- Acoustic testing

- Removing vegetation as an ancillary task

- Marking the ground to indicate development plans

The aim is to ensure that more substantial work is completed to validate the commencement of a development consent.

The comprehensive case law on the question of what constitutes physical commencement continues to apply. For discussion on the test under the previous rules and the considerable case law on physical commencement, see our earlier article here:

Physical commencement and lapsing of development consents

Since our earlier article, some more recent case law gives insight into how the Land and Environment Court applies the test of physical commencement.

The test for physical commencement

It is helpful to restate the test for physical commencement.

Section 4.53(4) of the Environmental Planning and Assessment Act 1979 ( EPA Act ) provides:

(4) Development consent for:

a. the erection of a building, or

b. the subdivision of land, or

c. the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

Key Legal Cases

2 Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28

In this case, it was determined that for a development consent to be physically commenced, the work must relate directly to the consent. The court highlighted the importance of examining the scope of the activity rather than who performed it or the underlying reasons for the work.

Facts

The oil company Caltex conducted soil testing required for environmental remediation on the landowner’s site. The landowner granted Caltex access to the site to carry out the testing. The question arose whether this testing by a third party for environmental remediation reasons, could be relied on to satisfy compliance with a condition of the landowner’s development consent.

The Applicant submitted that the correct approach was not to ascertain why the testing had been undertaken, but to ask what had been sought to be achieved by the scope of the testing and the results from it. Considering the question of purpose on the ‘what’ rather than the ‘why’ basis meant that the results from the borehole within the Applicant’s site were what was relevant for the purposes of satisfaction of conditions of the development consent.

Outcome

The court ruled that the consent had not lapsed, affirming that the testing met the necessary conditions despite being conducted by an external party.

Key takeaways

It is the scope of the activity, rather than who carried it out or why it was carried out, that is relevant for determining whether the activity ‘relates to’ the development consent. The work does not need to be carried out by or directly on behalf of the beneficiary of the development consent to constitute physical commencement.

Test for physical commencement of complying development certificates

Chu v Inner West Council [2022] NSWLEC 14

This case marked the first evaluation of physical commencement for complying development certificates (CDCs) by a court.

Facts

A landowner challenged a development control order issued by the Council, claiming physical commencement through activities by an asbestos consultant and tree work.

An asbestos consultant had attended the site to assess the presence of any asbestos containing material. He had engaged in a visual inspection and physical tapping of internal and external wall cladding to assess presence of such material and had prepared a report of the inspection.

An arborist had pruned the trees on the site in preparation for demolition work. Conditions in the CDC required the landowner to do certain things before any ‘site works, building or demolition begins’. At the time of the tree pruning, the landowners had not complied with these conditions.

Findings

The asbestos consultant's activities were deemed insufficient for physical commencement as they did not involve any actual construction work.

The tree pruning performed by an arborist was found to be unlawful because it constituted “site works” which did not comply with the CDC conditions and therefore could not be relied on.

Key takeaways

The Court may interpret s 4.29 and s 4.53 of the Act, in relation to CDCs and development consents, differently.
Work can only constitute physical commencement when it is lawfully conducted. This means that all conditions applicable to the work must be complied with.

What is the relationship between satisfaction of deferred commencement conditions and physical commencement?

A development consent is not effective until all deferred commencement conditions are satisfied. If these conditions are not met within the specified timeframe, the consent lapses (Section 4.53(6)).

Once these conditions are fulfilled, the consent must then be physically commenced to prevent any lapse under Section 4.53(1) of the EP&A Act. Importantly, the timeframe for physical commencement does not begin until the consent becomes operational, meaning the relevant work must occur after the deferred commencement conditions are satisfied.

Is intention relevant?

Developers do not need to demonstrate genuine intent to complete the project. The focus is on whether the work is genuinely required by the consent. Even if a developer performs work solely to prevent the consent from lapsing, this does not disqualify the work from being considered a valid physical commencement. This was addressed in Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413 (at [109]-[112]) and remains the case.

Conclusion

Developers must undertake more than minor activities, such as digging boreholes or placing survey pegs, to demonstrate physical commencement.
The timeframe for physical commencement begins only after deferred commencement conditions are satisfied.
The motivation behind the works is irrelevant as long as they relate to the consent.
Once the consent has been physically commenced, there is no further risk of lapse if work does not continue for some time.

We can assist by considering the individual circumstances of your development consent, granted either on or after 15 May 2020, and advise on its activation by ‘physical commencement’ of certain works to ensure it does not lapse.

We can also undertake a detailed review of any proposed conditions of consent and advise on any opportunity to minimise your risk in relation to enlivening your future development consent.

If you have any questions regarding any aspect of this article, please feel free to get in touch.

Responsibility for maintenance of shared driveways

mevans@whiteacre.com.au (Mark Evans) — Thu, 13 Feb 2025 21:00:00 GMT

Disputes frequently arise between neighbours over a shared driveway. Those disputes often involve issues of excessive use by one party, access and parking within the driveway, and contributions towards maintenance of the driveway. This article focuses on the issue of maintenance of shared driveways.

Shared driveways

A common example of a shared driveway is where a right of carriageway passes through one neighbours’ (burdened) land into the other neighbour’s (benefited) land.

In the example above, the owner of the burdened land may argue that they should only maintain that part of the driveway they actually use (A).

The owner of the benefited land may argue that they should only be responsible for the part of the driveway on their land (C) and that the owner of the burdened land should be responsible for the whole of the driveway on its land (B).

But this argument by the benefited owner ignores the fact that the owner of the benefited land uses the entire length of the driveway to access the public road, including the part situated wholly on the burdened land (B).

So what is the legal position and who bears the responsibility to maintain? Surprisingly, there is no clear legal authority on this. Rather, we can glean some general principles from case law.

Owner of the burdened land not obliged to maintain

The starting position is that unless the terms of an easement dictate otherwise, an easement does not normally impose on the owner of the burdened land an obligation to repair or maintain the easement site: Jones v Price [1965] 2 QB 618.

Rather, the burden is a negative one, that is, the owner of the burdened land must not do anything that would obstruct or hinder the enjoyment of the easement.

If the owner of the benefited land wants to use the easement, it must do the work necessary to ensure the easement remains useable: Duncan v Louch (1845) 6 QB 904.

This is an illustration of the application of a dictum of Lord Mansfield in Taylor v Whitehead (1781) 99 ER 475 at 477 (KB), that he who has the use of a thing ought to repair it. The present law was explained by Salmond J in Spear v Rowlett (1924) 43 NZLR 801 at 803 as follows:

“The grant of an easement does not ordinarily and in itself impose upon the grantor any positive obligation to undertake upon his servient tenement any works, whether by way of repair, construction or otherwise, for the purpose of rendering that tenement fit for the exercise and enjoyment of the easement by the grantee. The obligation of the grantor is merely negative – an obligation, that is to say, to refrain from acts of misfeasance which obstruct the exercise of the grantee’s rights. It is for the grantee himself, at his own cost, to execute on the servient land such works as may be reasonably necessary for the exercise and enjoyment of the easement; and a right to enter and to do all such works is implied conferred on him by the grant without any express provision on that behalf.”

There appear to be two exceptions to the rule that the obligation to repair is on the dominant owner.

First, the servient owner may bind himself or herself by prescription to undertake repairs: Cameron v Dalgety (1920) 39 NZLR 155 at 162; Frater v Finlay (1968) 91 WN (NSW) 730 at 734 (DC).

Second, the servient owner may bind themselves to repair by express stipulation or by necessary implication: Miller v Hancock [1893] 2 QB 177 at 181 (CA); Cameron v Dalgety (1920) 39 NZLR 155 at 159-160.

Maintenance in the terms of the easement

The above common law position can be altered by terms within the easement prescribing responsibility for maintenance of the shared driveway.

Historically, courts would not enforce the terms of a positive obligation, (a positive covenant) as a right in rem binding successors in title: Austerberry v Corporation of Oldham (1885) 29 Ch D 750 (obligation to repair a road unenforceable against successors in title) and Rhone v Stephens [1994] 2 AC 310 (obligation to repair a roof projecting over adjoining cottage unenforceable).

In Rhone v Stephens [1994] 2AC 310 Lord Templeman said at 321:

“For over 100 years it has been clear and accepted law that equity will enforce negative covenants against freehold land but has no power to enforce positive covenants against successors in title of land. To enforce a positive covenant would be to enforce a personal obligation against a person who has not covenanted. To enforce negative covenants is only to treat land as subject to a restriction.”

For legal reasons, a successor in title could be bound by a negative covenant - that is an obligation not to do something, like damage an easement site. But, they could not be bound by a positive covenant - that is an obligation to do something, like maintain a shared driveway.

S 88BA Conveyancing Act 1919

Section 88BA of the Conveyancing Act 1919 ( Conveyancing Act ) resolves the above issue (see Aust-One Investment Pty Ltd v New World Investments Pty Ltd (18 February 2022) [2022] NSWSC 137; 20 BPR 42503 (Robb J) for commentary on the necessity and introduction of s88BA).

Section 88BA now provides for the imposition of positive covenants that require the maintenance or repair of an easement site. The covenant may be imposed on either the benefited land, or the burdened land (or both) provided that the covenant is imposed in the manner set out in the section.

88BA Positive covenants for maintenance or repair

(1) A covenant may be imposed requiring the maintenance or repair , or the maintenance and repair , of land that is the site of an easement or other land that is subject to the burden of the easement (or both) by any one or more of the persons from time to time having the benefit or burden of the easement.

[our emphasis]

Section 88BA was inserted into the Conveyancing Act in 1995 pursuant to the Property Legislation Amendment (Easements) Act 1995 (assented to on 12 December 1995).

The explanatory note to the Property Legislation Amendment (Easements) Bill 1995 provided:

Positive covenants for repair and maintenance

Under common law principles, it is not possible when creating an easement to include a covenant that will automatically impose positive obligations on successors in title each time land having the burden of the easement changes hands. Various devices have been used in an attempt to avoid the problem (such as imposing a contractual obligation requiring each person who disposes of such land to obtain a personal covenant from the next successor in title) but none has been found to be completely satisfactory.

Proposed section 88BA and consequential amendments to sections 87A and 88F will allow covenants that require repair or maintenance of the site of an easement to continue to apply after ownership of the land having the benefit or burden of the covenant changes.

Section 88BA of the Conveyancing Act recently arose in Barter v Theunissen [2024] NSWSC 326 in which Richmond J held that terms of an easement imposing an obligation on the owner of the servient tenement for the “maintenance and repair” of a rooftop terrace were preserved by operation of s 88BA.

The terms were:

“…(iv) in all other respects the owners of the servient tenement shall be responsible for the maintenance and repair of the roof of the servient tenement…”

Unfortunately, most rights of carriageway that create a shared driveway do not contain express terms prescribing responsibility for maintenance.

Typically, a right of carriageway registered over a shared driveway will simply use the words a “right of carriageway”.

By operation of s 181A of the Conveyancing Act , the use of the terms “Right of Carriageway” incorporates the standard terms in Part 1 of Sch 8 of the Conveyancing Act :

Part 1 Right of carriage way

The standard terms do not prescribe responsibility for maintenance.

So that brings us back full circle to the common law principles regarding maintenance.

What happens where the terms of the easement are silent as to maintenance?

Clifford & Anor v Dove [2003] NSWSC 938 demonstrates the role of detailed easement terms in resolving disputes over shared driveway maintenance. It reinforces that servient owners must not hinder the enjoyment of easements, while dominant owners may be obligated to contribute to or initiate repairs, depending on the easement's terms.

A dominant owner is entitled to construct a road over the site of a right of carriageway: Newcomen v Coulson (1877) LR 5 Ch D 133, 143-4 (Jessel MR); Mills v Silver [1991] Ch 271, 286- 7 (Dillon LJ); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, [9].

The right to construct a road or driveway is limited to that which is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement: Zenere v Leate ; Prospect County Council v Cross (1990) 21 NSWLR 601, 607-8 (Bryson J); Butler v Muddle.

The use of an easement by the dominant owner is subject to the concept of reasonable use. In Hare v van Brugge [2013] NSWCA 74 ( Hare v van Brugge ) Barrett JA (with whom Macfarlan JA and Tobias AJA agreed) considered the right to reasonable use of an easement at [25]-[26]:

“It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them - the servient owner and the dominant owner - must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other's rights…All that obligations of reasonable use compel is that there should not be use inconsistent with the reasonable needs of the other party also to use the servient tenement.”

Both parties could, if they chose to, allow the shared driveway to fall into disrepair. Barrett JA said as much in Hare v van Brugge at [30]:

[30] In the circumstances of this case where Mr van Brugge and Mrs van Brugge, as the dominant owners, have, in relation to the easement site (including the part of it consisting of fixtures), the right to pass and repass created by the grant, their ancillary rights include the right to keep the fixtures in working order at their own expense. Mrs Hare, as the proprietor of the easement site (including its fixtures), has a corresponding right to keep the fixtures in working order at her expense. Each, therefore, is at liberty to maintain and repair the inclinator. Neither has that right to the exclusion of the other; nor is the right of one in some way superior to the right of the other. Also, however, neither party has any obligation in this respect. Each is quite free to allow the inclinator to be inoperative and to fall into disrepair and decay.

Hare v van Brugge concerned obligations to maintain a travelator. The court was not asked to consider whether the failure to maintain the travelator might render the dominant owner liable for nuisance or damage suffered by the servient owner.

In certain circumstances a dominant owner may be liable to a servient owner for nuisance and damage suffered as a result of failure to maintain drainage pipes within an easement: Comserv(No.1877) Pty Ltd v Wollongong City Council [2001] NSWSC 302 ( Comserv ). See also Jones v Pritchard (1908) Ch 630 per Parker J at 638-9 and Davies v Gold Coast City Council [2021] QDC 135.

In Comserv, Hodgson CJ (in Eq) stated that where the Council had resumed land for an easement, which land contained a pipe to carry storm water as the Council had a positive entitlement to cause water to flow through the pipe, that right carried with it the responsibility not to cause damage to the servient tenement by an unreasonable failure to maintain the pipe. That is, while there may not have been an express obligation to maintain, it was, in terms, a corollary to the avoidance of liability in nuisance.

Indeed in Comserv, the Chief Judge (in Eq) adopted Parker J’s view in Jones v Pritchard and stated at [50]:

“As a result of the easement, the Council now has a positive right to cause water to flow along the pipe; and in my opinion, that positive right carries with it a responsibility not to cause damage to the servient tenement by an unreasonable failure to maintain the pipe. In other words, in my opinion, the principle in Jones v Pritchard now applies.”

It follows that the positive right to pass along an easement may, in some circumstances, carry with it a responsibility not to cause a substantial and unreasonable interference with the servient owner’s use and enjoyment of its land, through failure to maintain that easement.

Conclusion

The terms of an easement are paramount.

Terms prescribing responsibility for maintenance of a shared driveway may be included within the easement. It is always important to have regard to the terms of the easement.

The common law position is that the owner of burdened land has an obligation to refrain from damaging a shared driveway - but not necessarily an obligation to maintain a shared driveway.

Historic case law tells us that the owner of benefited land must do that which is necessary to enjoy the benefits of the easement including maintaining a shared driveway.

However, if both parties share, and benefit from, a common driveway we can envisage circumstances in which a Court, in equity, finds that both parties must contribute equally towards maintenance.

Easements and disputes involving shared driveways can be complex.

If you are encountering these issues, we encourage you to book an initial consultation to discuss your particular circumstances.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Tiny Homes, Caravans and Manufactured Homes in NSW Planning Law (Part 2)

Wed, 27 Nov 2024 05:41:26 GMT

In Part 1, we considered tiny homes and caravans on private land. That article can be accessed here Part 1 . In Part 2, we turn our attention to tiny homes and manufactured homes.

Manufactured homes are generally constructed off-site and transported to a site where they are installed, either on a slab or on piers. Typically, but not always, they will be connected to existing stormwater and electrical infrastructure on the site. Tiny homes, kit homes, and modular homes can all be grouped under the definition of manufactured home if they share the traits of being self-sufficient, transported to a site as a whole or in major sections and fixed to the land.

The type of structure and degree of fixation to the land are important. Legislation in NSW makes a distinction, firstly between a structure on wheels and capable of being registered (a caravan) and a structure that is constructed in sections and installed permanently onsite (a manufactured home).

How are manufactured homes different from a traditional dwelling?

This question relates to the structure, not the use of the dwelling.

The legislation draws a distinction between something that is constructed mostly onsite (traditional dwelling - governed by the EPA Act) and something that is constructed mostly offsite and transported to the site in “major sections” (manufactured home - governed by the LG Act).

Development consent under the Environmental Planning and Assessment Act 1979 ( EPA Act ) is required for the construction of dwelling on a site, that is not a moveable dwelling. The EPA Act governs traditional structures and construction methods involving erection of a building onsite. Moveable dwellings are governed by the Local Government Act 1993 ( LG Act ), not the EPA Act. A caravan or a manufactured home falls under the definition of a moveable dwelling.

Let’s explore that distinction further.

Development consent is required under the EPA Act for “development”. Development is defined broadly in the EPA Act and includes the erection of a building:

1.5 Meaning of “development”

(cf previous s 4)

(1) For the purposes of this Act, development is any of the following—

(a) the use of land,

(b) the subdivision of land,

(d) the carrying out of a work,

(e) the demolition of a building or work,

(f) any other act, matter or thing that may be controlled by an environmental planning instrument.

But what is a building you may ask?

The definition of “building” in the EPA Act is broad:

“ building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home , moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

There is extensive case law regarding what may be a “building” or a “structure” in planning law. If you are interested in this topic, you can read our article. [ What is a “building” in planning law – and when is consent required? ]

Importantly, the definition of “building” in the EPA Act excludes a manufactured home and a moveable dwelling as defined in the LG Act. This is why the distinction between a traditional building constructed onsite and a manufactured home transported to a site is important.

Let’s turn our attention to the definition of a manufactured home.

Manufactured Home

A manufactured home is defined in the LG Act as a:

“ self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling—

(a) that comprises one or more major sections , and

(b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013,

and includes any associated structures that form part of the dwelling.”

A manufactured home must be a “dwelling”. There is a long history of case law concerning the definition of a “dwelling”. The use of the word in the definition requires that a manufactured home be intended for use as a domicile, or where someone lives permanently. Pepper J summarised and reviewed the case law on this issue in Dobrohotoff v Bennic [2013] NSWLEC 61.

Her Honour stated at [45]:

“Furthermore, when considering the first limb of the definition of "dwelling", regard must be had to the notion of "domicile" contained within it (820 Cawdor Road at [24]), and the critical element of permanence. Inherent within the term "domicile" is, as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupancy…”

Secondly, the manufactured home must be a “self-contained” dwelling containing a bedroom, living room, kitchen, bathroom and laundry. Sometimes, in a studio arrangement, these will all be contained in a single space.

Thirdly, a manufactured home must “comprise one or more major sections”. This picks up the idea that a manufactured home is manufactured offsite and may arrive as a complete unit or in sections that are installed onsite.

Finally, a manufactured home must not be a motor vehicle, trailer or other registrable vehicle. This excludes campers, trailers and importantly, caravans from the definition of a manufactured home.

What is required to install a tiny home or manufactured home onsite?

Generally, two things will be required. First, an application under s 68 of the LG Act will be required to install the manufactured home on a site and connect into services like power, water and sewage. Secondly, development consent may be required for the use of the manufactured home as either a home office or secondary dwelling.

Installation of the manufactured home is governed by the LG Act, not the EPA Act.

Section 68 of the LG Act specifies the “activities” that require the approval of council. One of those “activities” is the installation of a manufactured home, moveable dwelling or associated structure on land. Other “activities” for the purposes of section 68 are carrying out water supply connections, carrying out sewerage work and stormwater drainage work. So, a section 68 approval is required for the installation of a tiny home or a manufactured home and (usually) water supply, sewerage and stormwater work.

In addition, development consent for use of the manufactured home will be required. This can either be in the form of an application for development consent to Council, or in some circumstances, to a private certifier as complying development. It will save time and cost to make both the s 68 application and the development application at the same time.

A competent town planner should be engaged to clarify what is required to accompany each application and to assist with managing the various consultants and any reports that are required.

So that deals with the installation of a manufactured home. But what about its use?

Physical structures vs use

The installation or construction of a structure is one thing, the use of that thing in planning law is another. This is best illustrated through an example. A manufactured home might be installed on a site for use as a home office or granny flat (in planning law a “dwelling”). Following installation, the granny flat might be used to house an aging parent or a university student. The structure is a slab, four walls and a roof. But the same structure can be put to many different uses. After the aging parent or university student moves out (hallelujah) that same granny flat could be converted into backyard commercial pub. Same building, same structure, vastly different use (and impact on the neighbours). This is an extreme example, but it highlights the distinction between a structure and its use.

So it may be lawful to ship a manufactured home to a site and install it onsite, but consent may still be required for the proposed use of the manufactured home on the site. Before installing the manufactured home onsite, the first question to consider is the zoning and whether the proposed use is permissible within the relevant zone.

Zoning

Almost all land in NSW has a specific zoning, for example R2: Low Density Residential zoning or RU1: Primary Production.

The zoning of a site can be easily obtained through NSW government websites ( https://www.planningportal.nsw.gov.au/spatialviewer ).

Once the zoning has been obtained and understood, we can look to the relevant Local Environmental Plan for the “land use table” relevant to the zoning.

Land use tables look like this:

The “land use table” for a specific zone will describe a number of land uses that are:

(i) permitted without consent

(ii) permitted with consent; and

(iii) prohibited.

We can see in the above land use table that dual occupancies and dwelling houses are permissible in the zone (with consent). Any use that falls outside “permitted without consent” or “permissible with consent” is prohibited in the zone.

To determine which of these three categories the proposed use falls into, we must first define the use.

How do we properly define the use?

Tiny homes or manufactured homes installed on a site will typically be used as a “secondary dwelling” which is defined in the LEP as “a self-contained dwelling that is established in conjunction with a principal dwelling.” A granny flat would be permissible (with consent) in the above R3 Medium Density Residential zoning because it could fall under the definition of “multi dwelling housing” which is defined in the LEP as “3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level.”

Characterisation of use can get quite complex but we don’t need to go into that detail in this article. If you are interested in this topic, you can read our article at [ Characterisation of Use in Planning Law ].

Recall our two examples above. If the same granny flat is to be used as a dwelling, the use is permissible (with consent) in the R3 zone but the use of the granny flat as a commercial pub (food and drink premises) is prohibited in the zone.

Conclusion

The installation and use of a manufactured home on a site should be relatively straightforward. But, it pays to engage a competent town planner to check the site, the proposed use and the zoning before proceeding to ensure the installation and use are permissible on the chosen site.

This article considered the installation of tiny homes and manufactured homes on private land in NSW. Part 1 of this article examined tiny homes and caravans and can be accessed here: Part 1

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Tiny Homes, Caravans and Manufactured Homes in NSW Planning Law (Part 1)

mevans@whiteacre.com.au (Mark Evans) — Fri, 22 Nov 2024 05:21:56 GMT

In this article we explore tiny homes, caravans, and manufactured homes.

In Part 1, we start with tiny homes and caravans on private land. In Part 2, we turn our attention to manufactured homes.

Tiny homes

The term “tiny home” is not a defined legal term, but a marketing term used to describe a very small, self-sufficient house. Tiny homes can either be classed as a manufactured home or a caravan, depending on how they are built and installed.

Tiny home manufacturers have started building tiny homes on trailers, similar to a caravan for reasons that will be explained below.

Alternatively, tiny homes may be sold as a complete module ready to be installed permanently onsite.

Tiny homes delivered and installed permanently onsite are properly characterised as manufactured homes and are discussed in Part 2 of this article.

Tiny homes on a trailer are characterised under planning law as caravans and are discussed below.

Caravans

Some of our readers may remember the humble caravan looking like this.

More recently, they have started looking something more like this.

So what is a caravan?

A caravan is defined in the Local Government ( Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings ) Regulation 2021 ( Regulation ) as:

“a moveable dwelling designed to be capable of being registered as a trailer , but does not include a camper trailer”

Let’s explore some key terms in that definition.

Firstly, a caravan is a type of moveable dwelling. Movable dwelling is defined in the Local Government Act 1993 ( LG Act ) as:

(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b) a manufactured home, or

(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

So, a caravan is a species of a moveable dwelling which contemplates that it is portable.

The degree of fixation to the land is important here. Permanent fixation to a slab or the land and connection to services may render the structure no longer being considered a ‘portable device’.

Next, a caravan must be on a trailer capable of being registered as a trailer. The Regulation does not require that the caravan actually be registered, simply that it is capable of being registered.

All trailers (including those sitting under Tiny Homes) will need a compliance plate and a Vehicle Identification Number ( VIN ).

There are also size restrictions for trailers:

Max height: 4.3m

Max width: 2.5m

Max weight: 4.5 ton

What are the rules around caravans on private land?

1 caravan for family use

Clause 77 of the Regulation provides that Council approval is not required for the installation of:

1 caravan on land occupied by the owner of the caravan in connection with the owner’s dwelling house if the caravan is—

(i) used for habitation only by the owner or members of the owner’s household, and

(ii) maintained in a safe and healthy condition.

One caravan may be installed on private land in connection with the owner’s dwelling if the caravan is occupied by family and maintained in a safe and healthy condition.

2 caravans occupied for limited periods

Clause 77 of the Regulation provides that Council approval is not required for the installation of:

2 caravans on private land as long as they are not occupied for:

More than 2 consecutive days , and

More than 60 days in a 12 month period.

Up to 2 caravans may be installed on private land provided they are not occupied for more than 2 consecutive days and not more than 60 days in a 12 month period.

The Regulation does not require that the 2 caravans are occupied “in connection with” the owner’s dwelling house. Further, the Regulation references “occupation” of the caravans. It is silent regarding the nature of the occupation (i.e. personal use vs. commercial use) of the 2 caravans, it simply applies a time limit to their occupation.

This has resulted in an increase in caravans and (tiny homes) in idyllic settings being rented commercially for short-term stays without council approval.

Local councils are aware of this issue and have been lobbying the NSW Government to review and redraft the Regulation. At the time of writing this article, the review is still underway.

It is not settled whether the exemption in the Regulation extends to short-term commercial stays. We could (and have) successfully mounted an argument for both sides.

The argument goes like this.

Development without prior consent, is a contravention of s4.2 of the EPA Act.

“Development” is broadly defined in the EPA Act and includes the “use” of land.

“Use” of land includes “tourist and visitor accommodation.”

“Tourist and visitor accommodation” is defined in many local environmental plans as:

“a building or place that provides temporary or short-term accommodation on a commercial basis …”

Clearly short term letting of caravans and tiny homes on AirBnB fits this definition.

So, the use of land for tourist and visitor accommodation without prior approval is a contravention of the EPA Act. The exemption under the Regulation for the occupation of up to 2 caravans does not exempt one from the requirement under the EPA Act to obtain approval for the use of land as “tourist and visitor accommodation”.

The Regulation giveth and the EPA Act taketh away.

There is case law to the effect that the design and construction of caravans on private land is regulated by the LG Act, not the EPA Act and accordingly, a caravan is exempt from any requirement for approval under the EPA Act. However, the case law is by no means settled and we expect that the Regulation will be amended before this issue is conclusively determined by a Court.

On a less controversial point, we turn to installation of caravans on rural properties.

Caravans for use on rural properties

Caravans may be exempt from the requirement for approval if they are used for farm stay accommodation. In some circumstances , up to 6 caravans can be installed for the use of farm stay accommodation on rural properties.

Caravans cannot be installed on all rural land, for example within flood areas or areas of significant biodiversity. There are also extensive development standards that must be met, for example the height of each caravan cannot be greater than 4.5m, the landholding must be greater than 15 hectares, wastewater must be managed appropriately and so on.

One should always engage a competent town planner to provide planning advice unique to each specific situation. This is not an area to skimp on cost. A great town planner is worth their weight in gold and can often deliver value far exceeding their fees.

Conclusion

Tiny homes and caravans can be installed on private land without the need for prior approval. Whether those caravans can be rented commercially remains unclear.

Before relying on an exemption or installing caravans on private land it is wise to seek professional advice from a competent town planner.

This article has considered tiny homes and caravans on private land in NSW. Part 2 of this article will examine Manufactured Homes.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Understanding the Application of Savings Provisions to Development Applications

Thu, 14 Nov 2024 21:00:00 GMT

The general rule is that a development application ( DA ) is to be determined based on the law applicable at the time of determination of the DA, not at the time of lodgement: Sofi v Wollondilly Shire Council (1975) 31 LGERA 416.

Introduction

An obvious consequence is that the circumstances, laws, and rights connected to a DA may significantly change over time. To address this, amending legislation often contains saving provisions. These preserve the applicable provisions to a DA when amendment or repeal would otherwise remove them. It has been established that any savings provisions, such as model clause 1.8A, only apply to DAs made before the commencement of an LEP and not for subsequent LEP amendments: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189.

It is therefore critical to understand the nature of a DA and any potential savings provisions when determining an application. An interesting situation arises when an amendment repeals an earlier section that contained a savings provision. Do the rights accrued by a DA made before the amendment is made (accrued under the repealed savings provision) disappear?

The recent decision of Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 ( Goldcoral ) highlights the judicial approach to this issue and the impact of savings provisions broadly.

Issue

Goldcoral lodged a DA in October 2014. At that time, cl 7(1) of SEPP 14 restricted specified development without consent on land to which the SEPP applied. This included Goldcoral’s lot. The development specified included constructing a levee, clearing, draining, or filling the land. Goldcoral’s proposal did not involve any of these specified developments and was not declared by SEPP 14 to be designated development. SEPP 71 also applied at the time. It did not prescribe any designated development.

In April 2018, the Coastal SEPP repealed and replaced SEPPs 14 and 71. It contained a savings provision, cl 21(1):

“The former planning provisions [including SEPP 14 and 71, per cl 21(4)] continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies.”

For this reason, it was correctly understood that SEPP 14 and 71 continued to apply to Goldcoral’s DA, not the new Coastal SEPP.

In March 2022, however, the RAH SEPP repealed and replaced the Coastal SEPP. The savings provision in the Coastal SEPP, cl 21(1), was not transferred. Council therefore argued the provisions of the RAH SEPP, and not SEPPs 14 and 71, were to apply to Goldcoral’s DA. In effect, the Council argued that Goldcoral’s right to have the DA assessed through the old framework was extinguished by the lack of a savings provision in the new, repealing RAH SEPP.

Resolution

Chief Justice Preston of the LEC stated at [63] that:

“[Goldcoral, who] made the development application at a time when the former environmental planning instruments of SEPP 14 and SEPP 71 were in force, has a right to have its development application determined under those instruments. That right is founded on s 5(6) and s 30(2)(b) and (d) of the Interpretation Act 1987 (NSW)” ( Interpretation Act ).

The Interpretation Act applies to environmental planning instruments, such as SEPP 14 and 71: s 5(6). Section 30(2) of the Act provides:

“Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect—

(a) the proof of any past act or thing, or

(b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or

(d) the operation of any savings or transitional provision contained in the Act or statutory rule.

Preston CJ, at [74], agreed with Goldcoral’s argument that s 30(2)(b) and (d) of the Interpretation Act operate to save Goldcoral’s accrued right under cl 21(1) to have its DA determined under SEPP 14 and 71 as opposed to the RAH SEPP. Preston CJ highlighted that such an accrued right is affirmed by the unanimous decision of the Court of Appeal in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178.

This right did not arise from Goldcoral submitting a DA in 2014. Sofi v Wollondilly Shire Council (1975) 31 LGERA 416 remains the authority that a DA is determined at the time of determination. The right, rather, was accrued by the operation of cl 21(1) of the Coastal SEPP, introduced in 2018. With this right accrued, the operation of s 30(2)(b) and (d) of the Interpretation Act was that the repeal of the Coastal SEPP by the RAH SEPP did not impact the right saved by, or the operation of, cl 21(1) to have the DA determined under SEPP 14 and 71, whenever that determination should occur.

For this reason, Preston CJ found that the development proposed by Goldcoral was not designated development: [76].

Conclusion

Goldcoral reinforces the importance of savings provisions and accrued rights in determining a DA. The case clarifies that where a DA is lodged before the repeal of an environmental planning instrument, savings provisions can preserve rights to have the application assessed under that prior instrument. Preston CJ affirmed that the Interpretation Act operates to protect these accrued rights, even when the repealing instrument does not include a similar savings provision.

Goldcoral upholds the principle that a DA should be assessed based on the laws in force at the time of assessment, but allows for conferred rights regarding how such an assessment will be made.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

When subdivision may not be considered development carried out on land

Thu, 31 Oct 2024 21:00:00 GMT

Subdivision, alone, may not constitute development “on land” and thus trigger development restrictions.

Introduction

This article explores a recent decision in the NSW Land and Environment Court in which the Court held that paper subdivision of land, without more, may not constitute subdivision “on land” and may thus not trigger obligations imposed by instruments such as the State Environmental Planning Policy (Resilience and Hazards) 2021 ( RAH SEPP ).

The recent decision of Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 ( Goldcoral ), which aligns with similar cases concerning subdivision and development, clearly illustrates this point.

Subdivision – General Principles

Subdivision of land involves dividing land into 2 or more parts and often involves physical works (for which a subdivision works certificate is required) such as roads, earthworks and drainage works being carried out on the land. Subdivision is a species of development and is defined in s 6.2(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) as:

“the division of land into 2 or more parts… [to adapt] for separate occupation, use, or disposition”.

Subdivision is often prohibited within sensitive ecological zones. Even when permissible, it may require extensive reporting and other onerous requirements. But what is being prohibited? The subdivision of land into 2 or more parts or the carrying out of works to achieve the subdivision?

Issues often arise with developments when a proposed development spans multiple parcels of land with different zoning. For example, a single land parcel may contain land zoned R2: Low Density Residential and a small portion of C2: Environmental Conservation. Further, areas within those zones may be mapped on local or statewide maps as containing heritage items or coastal wetlands and other areas of high biodiversity significance. It therefore becomes critical to define the exact nature of the subdivision and whether subdivision is being carried out on all the land, or on parts of the land outside sensitive areas.

Goldcoral

In Goldcoral , the developer appealed the Council’s refusal of a development application that set out the first stage of a residential subdivision. The land in question contained residential and conservation zones and a thin sliver of area mapped as sensitive coastal wetlands under the Coastal Wetlands and Littoral Rainforests Area Map under the RAH SEPP. The land proposed for the residential subdivision was wholly within the R1 General Residential zone.

Issue

Nonetheless, the Council contended that development would still be carried out on land identified as coastal wetlands because one of the lots within the land to be subdivided contained a sliver of land mapped as coastal wetlands. The argument goes that because subdivision is a species of “development” under the EPA Act and because s 6.2(2) of the EPA Act defines subdivision as including “procuring of the registration in the Office of the Registrar-General of … a plan of subdivision…” the definitions in the EPA Act make it clear that subdivision of land does not require the carrying out of works on land; merely dividing land by drawing lines on a plan of subdivision that is registered could suffice.

Consequently, because Goldcoral was carrying out development on land mapped as coastal wetlands, it was potentially caught by the RAH SEPP as integrated development; requiring an Environmental Impact Statement.

Chapter 2 of the RAH SEPP maps and regulates the development of coastal management areas. Clause 2.7(1) requires development consent for development “on land” including clearing or harming vegetation, earthworks, constructing a levee, land draining, environmental protection works, and “any other development”.

Council contended that subdivision fell within “any other development”.

Resolution

Chief Justice Preston of the LEC at [78], rejected the Council’s argument that the subdivision should be considered development “on land”, for two reasons:

-The proposed subdivision did not involve any division of the land identified as coastal wetlands.

-Mere subdivision by procuring registration does not involve carrying out development on land.

The subdivision itself was not enough to enliven the requirements under the RAH SEPP.

Boundary of Subdivision

Preston CJ reviewed the phrase “any other development” contained within cl 2.7(1)(d) of the RAH SEPP. While all parties agreed that subdivision is considered development, Preston CJ found at [78] that its boundaries ran along the outer edge of the sensitive coastal area.

Similar court decisions support that, SEPP application should be excluded where subdivision has not impacted the land zoned for protection: Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 at [48]; Bregenhoj v Northern Beaches Council [2023] NSWLEC 117 at [24].

It was suggested that as the proposal did not impact (i.e. subdivide) the coastal wetlands, the RAH SEPP should not apply.

Physical Work

Preston CJ also determined, at [79], that mere subdivision of land through procuring a plan does not involve development “on land”. Preston CJ noted that the examples of development within clause 2.7(1) of the RAH SEPP, all required physical work on the land. The catch-all “any other development” also required doing something on the land.

Subdivision is considered development “on land” where it extends to physical works such as the preparation of roads and lots: Planners North v Ballina Shire Council [2021] NSWLEC 120 at [33]. However, previous court decisions support Preston CJ’s finding that without proposed work on the land zoned for protection, designated development requirements should not apply: High Dune Pty Ltd as Trustee for High Dune Unit Trust v Wollongong City Council [2023] NSWLEC 1181 at [22]; Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel [2023 ] NSWLEC 1478 at [351].

Preston CJ stressed at [79] – [80] that:

“… The procuring of the registration of a plan of subdivision might involve the subdivision of land, which is development, but that subdivision is not “carried out on land.” To carry out development on land involves doing something on the land…”

Conclusion

Goldcoral clearly illustrates the approach to subdivision and designated development. It reaffirms the idea that subdivision, alone, does not amount to development “on land” under instruments like the RAH SEPP.

Goldcoral is not authority for the proposition that subdivision is not development. It clearly is. Goldcoral clarifies the position that, in some contexts, subdivision is considered development “on land” where it extends to physical works carried out on the land. It is critical to consider the context of a proposed subdivision, its boundaries, and whether physical works are to be conducted.

Key Takeaways

Subdivision is development and caught by the EPA Act.
Subdivision near sensitive areas may not automatically trigger development restrictions.
Subdivision without physical works is not considered development "on land”.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

IPART Review of NSW Biodiversity Credit Market released

mevans@whiteacre.com.au (Mark Evans) — Fri, 18 Oct 2024 03:27:17 GMT

The Independent Pricing and Regulatory Tribunal (IPART) has released a summary of workshops and stakeholders’ submissions concerning the functioning of the NSW Biodiversity Credits Market.

In late September of 2024, the IPART held a series of consultation workshops to hear stakeholders' views on the performance of the credits market.

The key findings of the IPART Review are that the biodiversity credits market is not operating effectively in 5 key areas:

The option for development proponents to pay into the Biodiversity Conservation Fund prevents the market from developing.
High up-front costs and long credit generation times create a lag between credit demand and supply. The Credits Supply Taskforce work program is making a difference.
Market participants lack accurate and timely information.
High transaction costs and market complexity discourage participation.
Stakeholders lack confidence in market oversight and governance, which hinders their participation.

These are fundamental issues that, if unaddressed, will continue to prevent the market from functioning effectively. To address these issues, the IPART recommends the following priority actions:

Phase out the option to pay into the Biodiversity Conservation Fund.
Establish interim measures to reduce proponents’ reliance on the Fund pay-in option.
Continue to intervene in the market to reduce entry costs, make trading more efficient and instil confidence in the market.

The Scheme, and these issues, are not going anywhere soon.

The IPART has published a summary of the stakeholder workshops on its website. The summary outlines the main themes and issues raised by stakeholders at these workshops and can be accessed here: https://www.ipart.nsw.gov.au/ipart-biodiversity-market-monitoring-2023-24-stakeholder-workshops

Consent for Unauthorised Works

Thu, 10 Oct 2024 21:00:00 GMT

It is now well established that a development consent cannot be obtained to authorise works that have already been carried out. The classic example is a building that has been built without development consent.

A development application seeks approval to “carry out” development. If the building has already been built, the development has already been “carried out”.

Despite this now being well established, we are often approached by clients who are told to lodge a development application to “regularise” an illegal building.

This article dives into the issue of retrospective operation of development consents, specifically through analysis of Chief Justice Preston’s consideration of the issue in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 ( Buyozo ). Buyozo is also a useful case when considering the operation of conditions of development consents and when they are “spent” and have no further work to do.

Introduction

Ku-ring-gai Council v Buyozo Pty Ltd addresses the limits of judicial power to modify development consents retrospectively. The issue that arose in this case was whether a developer, having already complied with a monetary contribution condition, could later seek a reduction in the amount of that contribution by modifying the original development consent.

Facts

This case involved a dispute between Ku-ring-gai Council and Buyozo Pty Ltd regarding a development consent condition related to payment of a monetary contribution under section 7.11 of the Environmental Planning and Assessment Act 1979 (NSW) ( EPA Act ). Buyozo were approved to construct a building in Pymble. Condition 30 of the development consent required the payment of a monetary contribution of $987,242.37 to Ku-ring-gai Council before a construction certificate was issued. Buyozo paid the full contribution and received the construction certificate.

After the building was completed, Buyozo applied to modify the development consent to reduce the monetary contribution by $327,162.84, arguing that an error had been made in the gross floor area calculation used to determine the contribution payable.

Buyozo appealed the deemed refusal of the modification application to the NSW Land and Environment Court. The Court (at first instance) allowed the modification, reducing the contribution amount.

Ku-ring-gai Council appealed to the NSW Court of Appeal, contending that:

The Land and Environment Court lacked the power to modify a fulfilled condition.
Modifications of development consents are prospective and cannot retrospectively impact actions that have already been completed, such as payment of a monetary contribution.

Decision

Basten and Payne JJA and Preston CJ of the NSW Court of Appeal upheld the Council's appeal, finding at [112] that a Court had no power to modify the development consent as sought in Buyozo’s application. The development consent payment condition, which had already been complied with, could not be retrospectively modified.

Consideration

Several key findings were made, relevant to development consents and retrospectivity.

Prospective Nature of Development Consent and Modifications

Development consents and modifications of development consents are inherently prospective. They apply to actions that will take place in the future.

Preston CJ noted at [37] that the current definition of “development” in the EPA Act refers exclusively to acts to be done in the future, and at [39] that:

“The essential characteristic of the grant of development consent means that a development consent cannot be granted to authorise development that has already been carried out, such as the erection of a building that has already been erected, the carrying out of a work that has already been carried out, or the demolition of a building that has already been demolished. A development consent can never retrospectively approve the carrying out of development, but can only prospectively approve the carrying out of development.”

Once a condition, such as payment of a monetary contribution, has been fulfilled, it cannot be retrospectively altered by modifying the consent. The modification powers under sections 4.55 and 4.56 of the EPA Act cannot be used to undo actions that are already completed.

No Power to Retrospectively Reduce the Contribution

Preston CJ found, at [36], that there was no power to modify the development consent to amend the payment condition, where the amount had already been paid. At [46] he outlined that:

“Once Buyozo paid the contribution in accordance with the condition, the condition had no further work to do – it no longer regulated the carrying out of the development. It thereupon became a condition that was not capable of being modified”.

Since Buyozo had already paid the monetary contribution in full, the modification of the development consent could not retrospectively alter the amount. The payment was a finalised action, and modifying the consent after the fact would be outside the Court’s powers.

Utility of the Modification

The Court concluded that modifying the development consent after the contribution had been paid would serve no practical purpose and would not alter the legal position of the parties.

Basten and Payne JJA stressed at [10] that:

“There was no proposal to modify or change in any way the development to which consent had been granted. The same building (which had already been completed) was to be used for the same purpose (which was its current use).”

Preston CJ stated at [52] that:

“The first reason [it was not possible to modify the development consent] is the general proposition… that a condition cannot be modified to require retrospectively the payment of a lesser amount of contributions than has already been paid. The second reason is a particular proposition relating to the need for a modification under s 4.56(1) of the EPA Act to effect some change to the development the subject of the development consent”

Preston CJ referenced Houlton v Woollahra Municipal Council (1997) 95 LGERA 201, at [53], describing the power to modify a development consent “as both beneficial and facultative”. Its introduction to the EPA Act supplemented, and did not remove, the right to obtain successive development consents in respect of the same land. A court can, therefore, only modify a development consent if the modification will effect some change to that development.

Preston CJ highlighted, at [64], that the development consent modification sought by Buyozo was nothing more than substituting a lesser amount in condition 30 and that:

“This modification could not effect any change to the development the subject of the development consent… If development is not changed, no question can arise of whether the development as modified is substantially the same development as originally granted; there is no utility in publicly notifying the proposed modification and considering any public submissions on the proposed modification as there is no change to the development in respect of which the public could make submissions; and there is no utility in notifying persons who made submissions on the development the subject of the original development application to invite them to make submissions on the proposed modification, for the same reason.”

The impermissible, retrospective nature of reducing a past payment and the legislative requirement of some practical change to the development to permit modification of development consent were hurdles that Buyozo failed to overcome. The Court of Appeal found that neither the Council nor the Court were able to act to modify Buyozo’s development consent and reduce the payment amount.

Key Takeaways

Development consents and modifications operate prospectively, meaning they cannot retrospectively authorise actions already completed.
The Court cannot retrospectively modify development consent conditions for actions already fulfilled, such as adjusting a monetary contribution after it has been paid.
The power to modify a development consent is limited to affecting a change in the development itself or correcting errors, not merely altering conditions.

Conclusion

Following the publication of this decision, the Department issued a circular to Councils stressing the above key takeaways. Notwithstanding, this area of planning law remains misunderstood and in many cases landowners continue to be advised to simply lodge a DA to “regularise” an unauthorised building or structure.

In most situations, the appropriate avenue may be to seek a combination of a both a development consent together with a building information certificate with respect to the unauthorised building. Landowners in this situation would be well advised to seek advice from a competent planning lawyer and town planner to navigate their way out of what can be a tricky (and expensive) exercise.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Characterisation of Use in Planning Law

Thu, 26 Sep 2024 22:00:00 GMT

This article discusses the characterisation of land use in NSW planning law.

Accurate characterisation of development is important in planning because zoning provisions in planning instruments like local environmental plans, specify uses that are permissible without consent, permissible with development consent, or prohibited. Determining the purpose of a proposed or existing use is essential to understand which of these categories it falls within.

Introduction

It is well established that characterisation is a matter of fact, often involving an evaluative judgment: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 per Meagher JA at 409.

When considering the character of a development, the focus is usually on the dominant purpose: F oodbarn v Solicitor-General (1975) 32 LGRA 157. However, a particular purpose may involve multiple activities or uses, potentially falling into more than one category simultaneously. For example, a simple farming enterprise on rural land may include growing crops (horticulture), raising cattle (agriculture), a shed for processing crops (agricultural produce industry), and the farm homestead (dwelling house).

Characterisation of land use can be complex, and the following case law provides examples to help clarify the relevant considerations.

Case Law

Foodbarn v Solicitor-General (1975) 32 LGRA 157

Franklin’s Stores Pty Ltd (Franklins), a supermarket operator, sought to restrain the use of Foodbarn’s buildings as shops for “selling … by retail”.

Holland J of the Supreme Court of NSW granted injunctions against Foodbarn and their licensees, preventing them from selling products to retail customers. Foodbarn appealed to the New South Wales Court of Appeal.

The Foodbarn buildings were in light industrial zones, where the relevant planning ordinances prohibited the use of buildings for “shops” but permitted warehouses for “the storage of goods… pending their sale and distribution.”

The question was whether the buildings were used as “shops” or “warehouses.”

Franklins argued that the buildings were “shops” because items were being sold directly to retail customers. The premises were used for selling foodstuffs, with aisles, shelves, and refrigeration cabinets for customer access. The focus, however, was on wholesale trade, with bulk buying discounts for clubs, caterers, shopkeepers, etc.

Holland J, at first instance, agreed with Franklins, ruling that the premises were “shops” and thus prohibited. Foodbarn appealed.

Decision

Glass JA (with Samuels and Hutley JJA agreeing) held that the definition of a shop does not require selling to be the sole purpose and that multiple purposes operating independently make the dominant purpose irrelevant. The appeal was dismissed, and using the premises for direct retail sales was deemed impermissible.

Consideration

Glass JA held at p.161:

“It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used.”

However, where a secondary purpose, which is prohibited, operates independently and not merely incidentally, its being overshadowed by a dominant use is immaterial.

In a frequently cited paragraph, Glass JA at 161 held:

“Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.”

The Court of Appeal found that the use of the premises for the direct sale to retail customers operated independently and was not “subsumed” within the dominant purpose of a warehouse and that Foodbarn’s premises were being used for a shop.

Key Takeaways:

Common sense is crucial in defining use. The practical operation of the premises matters more than labels used.
If a part of the premises serves a purpose subordinate to another, the latter may be treated as the dominant purpose.
However, if two purposes operate independently and one is prohibited, determining the dominant purpose is irrelevant.

Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404

Facts

This case involved land used for soil and sand extraction and as a riding school ( the Land ). The Council sought to stop extraction activities, but Mrs. O’Donnell claimed an existing use right.

The Environmental Planning and Assessment Act 1979, s 109(1), permitted continued land use for lawful purposes before any environmental planning instrument was introduced. However, this did not authorise any alteration or extension of that use.

Before development consent provisions were enacted, the Land had been used for commercial sand and soil extraction. From 1976 to 1985, the Council granted renewable consent for sand removal. Mrs. O’Donnell requested consent for safety reasons and to construct waterholes for horses.

Bignold J of the NSW Land and Environment Court dismissed the Council’s application to stop soil removal, finding an existing use right. The Council appealed.

Decision

Meagher JA (with Samuels AP and Clarke JA agreeing) held that Mrs. O’Donnell had existing use rights under s 109 of the Environmental Planning and Assessment Act 1979 to continue using the Land for commercial extraction. The soil extraction was not ancillary to the riding school but was an independent use.

Consideration

Ancillary Use

The Council argued that soil extraction was ancillary to the riding school use of the land, relying on Foodbarn v Solicitor-General (1975) 32 LGRA 157. Meagher JA disagreed, finding that both uses coexisted and that neither was dominant or ancillary. The motivation to extract soil for the riding school did not make it an ancillary use. Characterisation of use is a matter of fact and degree.

Meagher JA outlined that the characterisation of use involves an evaluative judgement and, at p. 409-410, that:

When one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is “ancillary to”, or related to, or interdependent with, another use.

Extent of Use

Meagher JA dismissed the Council’s claim that existing use rights related solely to the extraction of soil, and not sand. Applying Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305, both uses were considered part of the same genus as extractive industries.

For these reasons, Meagher JA found an existing use right and dismissed the Council’s appeal at 414.

Key Takeaways:

Related uses may be ancillary or independent.
The characterisation of use is one of fact, often involving an evaluative judgment.
Multiple independent uses can coexist on the same land without one being ancillary to the other.

Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114

Facts

Chamwell Pty Ltd ( Chamwell ) sought approval for the erection and use of a building for a supermarket and multi-dwelling housing. Strathfield Council refused the application and Chamwell appealed to the NSW Land and Environment Court.

The development site was spread over several different zonings. ‘Multiple unit housing’ and ‘roads’ were permissible on part of the development site (zoned “2B Residential”). Supermarkets and shops were prohibited in the 2B Residential zone. The rest of the development site was zoned “Business General”, which permitted shops or supermarkets.

The proposed supermarket, stockroom, and loading dock were in the area zoned Business General. However, some of the associated carpark, pedestrian ramp, and forecourt for the supermarket extended into the 2B Residential zone where shops were not permissible. Council contended that the use of the carpark, pedestrian ramp and forecourt was for the purpose of a ‘shop’, which was prohibited. They argued the development consent could not be granted.

Chamwell argued that the use of that part of the building (carparking and forecourt) located in the 2B Residential zone could be appropriately characterised as ‘roads’, which was permissible in the zone and therefore development consent should be granted.

Decision

Preston CJ of the NSW Land and Environment Court held that the development in the residential zone was for the purpose of a shop, not roads, making the proposed development invalid.

Consideration

Purpose

In planning law, use must serve a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535. Multiple uses can serve a single purpose. For example, a supermarket may include a shop, carpark, delivery depot, and vegetable sorting area, all subsumed under the purpose of the supermarket: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535.

In this case, the carpark, accessways, and forecourt enabled the supermarket's purpose. It is incorrect to separately characterise these elements when they are part of an integrated whole. The use of the carpark and forecourt in the 2B Residential zone could not be characterised as “roads” because they were part of the broader use as a supermarket.

Commingling activities

Characterisation should be done at a necessary level of generality to cover all activities, transactions, or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. The supermarket is an integrated and indivisible business, with the retail section and non-retail sections (like the carpark) inseparably linked. The activities in the supermarket and carpark are so intertwined that one cannot be carried out without the other: Scott’s Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191.

The uses of the relevant part of the building were not by their character, extent, and other features, capable of being characterised as an independent use for roads.

Common sense and practical characterisation

Characterisation of purpose should be considered in a common-sense and practical manner. The relevant part of the building would not be considered a road in the ordinary sense. Just because vehicles and pedestrians pass through, does not mean it’s a road.

Key Takeaways:

Land use must serve a purpose. Differing uses may still serve a single purpose.
Independent uses can form one purpose when they are so commingled that they cannot be separated.
The characterisation of the purpose should be done at a level of generality which covers the individual activities transactions or processes carried on.
Characterisation of purpose must be considered in a common-sense and practical way.

Cooke v Tweed Shire Council [2024] NSWCA 50 (Cooke v Tweed)

Facts

Mr. Cooke and his associates operated a business selling hemp-infused products. This involved growing hemp and processing, infusing, and packaging the products on two parcels of land within the Tweed local government area. The Council initiated civil enforcement proceedings, arguing that while Mr. Cooke had a license to cultivate low-THC hemp, the processing and packaging activities constituted unlawful development under the Tweed Local Environment Plan.

The primary judge found that the ultimate purpose of the land use was not to grow hemp (permitted) but to sell hemp-infused products and that the use of the land involved a combination of growing and processing, which fell under the category of "rural industry," requiring development consent.

Decision

The Court of Appeal (Basten AJA, Ward P and Gleeson JA agreeing) dismissed Mr Cooke’s appeal.

The Court found at [30] that the use of the land should be characterised holistically, rather than as a combination of separate uses. Further, at [54]-[58], the Court held that the activities carried out on the land could not be characterised as two separate activities, with hemp growing as the dominant use and processing ancillary to that. Rather, activities were part of a single integrated purpose – the selling of hemp-infused products.

Key Takeaways:

Land use should be characterised holistically when activities are part of a single integrated purpose.
Development combining cultivation and processing for commercial sale may be characterised as "rural industry," requiring consent.

Require further assistance?

We have assisted many clients in navigating the complexities of characterising land use under local environmental plans (LEPs). Often, resolving these issues can be achieved through constructive consultation with relevant parties, including local councils, or by providing detailed advice on the characterisation of your development.

If you require advice regarding the characterisation of your property’s use or have concerns about how local environmental plans may impact your development, we can assist you in this process.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Ownership of Council assets on private land

Thu, 05 Sep 2024 21:00:00 GMT

Public infrastructure like sewerage pipes and stormwater pipes were often constructed a long time ago with no development approval or accurate record keeping. Over time, these assets have remained in place and often the local council authority either has no record of the infrastructure or knowledge of the history of construction of the asset or its ownership. Ideally, Council would have an easement registered on title to the subject land. This can cause huge problems when seeking to develop land with old infrastructure emplaced within the subject site.

This article discusses historic public infrastructure in private land and the rights of landowners and Councils.

Introduction

Section 59A of the Local Government Act 1993 ( LGA 1993 ) gives Councils the power to install and repair water supply, sewerage and stormwater drainage pipes on private land without an easement. The Council owns “all works of water supply, sewerage and stormwater drainage installed in or on land by the Council,” irrespective of whether the Council owns the land or not. The provision further outlines a right for Councils to access the land, without an easement, to “operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, [or] improve” to ensure the efficiency of the works for the purpose of which they were installed.

The terms of s59A are similar to the terms of an easement and the overall effect of s59A is that the Council is granted a broad power to enter property, even that which is not owned by them, for the maintenance of pipes. Moreover, discretion is vested within the Council to decide when this is appropriate and necessary. This, however, comes with significant implications for property rights.

As noted above, the Council does not require an easement to conduct these works. The provision ensures that the Council retains control over water supply infrastructure, even if it is installed on private or non-council land. While not requiring an easement is beneficial for Councils as they can efficiently repair and maintain these systems, vested property rights are impacted by the Council’s ownership of the works. Importantly, this can affect the property owner’s use and enjoyment of the land.

Landowners may have no idea the infrastructure is located on their land because it may not appear on a title search. s59A states that it is one of the exemptions to indefeasibility of title under s 42 of the Real Property Act 1900 .

It is important to understand the scope and extent of section 59A and how it can influence your property rights. This was discussed in a recent case before the New South Wales Land and Environment Court, Lismore City Council v Gurpal Kaur Singh [2021] NSWLEC 49.

Case Law

Lismore City Council v Gurpal Kaur Singh [2021] NSWLEC 49

Facts

The Lismore City Council ( Council ) intended to carry out “sewer renewal works” on Gurpal Kaur Singh’s ( Respondent ) property, and those neighbouring it. These works included decommissioning an existing sewer line and installing a separate sewer pipe in a different part of the property, as well as the digging of a trench to connect the house to the new pipes. The Respondent denied the Council entry to carry out the works.

The effect of the works would be to relocate the existing pipe to another position on the property. The landowners did not consent to the relocation of the pipe as it would interfere with the ongoing use of the land.

The Council, who own the existing pipes and other sewerage infrastructure per section 59A of LGA 1993, contended that the existing clay sewer pipes were not functioning efficiently and that maintenance was necessary to clear the pipe. The Respondent disputed the necessity of these works.

The Council’s proposal centred around the idea of decommissioning the existing pipe and installing a new pipe to converge with the functional part of the existing pipe. The works were scheduled to take three weeks to complete and the neighbouring properties had signed “Consent to Enter” declarations to allow the Council to carry out the works. The Respondent complained about past maintenance procedures on the existing pipes – namely, high pressure water cleaning – and objected to the proposed works.

The key issue for contention was whether the proposed works of the Council were capable of falling within the power vested in them by Section 59A(2) of the LGA 1993.

The Council argued that their proposed works should be characterised as works to “replace” its previous works, arguing that the provision should be read as a reference to the operational characteristics of the sewerage system, rather than the physical location of the works.

The Respondent opposed this submission, arguing that the proposed works could not constitute a replacement as the existing sewer pipe would remain on the property and the new one would be in a different location, further burdening the land.

Decision

Duggan J found that the Council’s proposed works were new works and did not “replace” the existing pipe, but rather install a second pipe in a different location on the Respondent’s property. It was found that, should the proposed works be completed, the Respondent would be burdened with two pipes in different locations on the property, which is a significant inconvenience to the use of the land.

As a matter of statutory construction, Duggan J stated that section 59A should be construed in a manner causing the least burden to the property owner and their rights. Here, this meant that the proposal would be considered a new work rather than a replacement, and that is a significant burden to the land.

Council’s summons was dismissed, and they were unable to carry out the proposed works.

Consideration

This case establishes that although the power vested in Councils regarding maintenance of the works under subsection (2) of s59A is broad, there are limitations to the works that Council can undertake on private land. These limitations are designed to protect the vested property rights of the landowner and minimise the disruption of the maintenance and installation of the water supply, sewerage and stormwater systems.

Regarding the scope and extent of the section, this judgment highlights that it does not bestow upon Councils the power to install new works at will, but rather allows them the right to maintain the works that they own, even on private lands. Furthermore, this judgment indicates that the section is to be read in a manner which ensures the least possible interference with the property rights of the landowner, which limits the power that Council has to undertake the works.

Key Takeaways

Section 59A of LGA 1993 does not create a power to install new infrastructure, but rather to ensure continued ownership and use by Council.
The section is to be construed in a manner that causes the least interference with vested property rights.
The terms of s 59A are not directed to the operational purposes of the works but rather the physical infrastructure once constructed for that operational purpose (see [42]).
As such, the section does not have as broad application as its wording would imply, and the Courts will take into consideration to effect on the use and enjoyment of the land and the landowners’ vested property rights.
The section does not confer ‘unconstrained rights,’ and, hence, the scope and extent can be limited.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Establishing a Biodiversity Stewardship Site: Tax Implications

Thu, 29 Aug 2024 22:33:32 GMT

This article discusses tax implications of establishing a biodiversity stewardship site and generating biodiversity credits.

The NSW Biodiversity Offsets Scheme is a market-based scheme that has been established to help address the loss of biodiversity and threatened species in NSW. It seeks to do so by creating incentives for landowners to improve or maintain biodiversity values as a means of offsetting impacts on other areas.

Landholders can generate biodiversity credits by establishing a biodiversity stewardship site on their land. Biodiversity credits that are generated can then be sold to developers or landholders who require those credits to offset their impact on the environment.

For more information on the establishment of a biodiversity stewardship site and the scheme in general see our article here.

Capital Gains Event occurs on entry into the BSA

Credits are generated on the date a Biodiversity Stewardship agreement ( BSA ) is signed by both parties. A capital gains tax ( CGT ) event (type D4) occurs upon entry into a BSA. The capital proceeds on entering a BSA are equal to the value of the biodiversity credits. The ATO considers the full market value of the biodiversity credits as an “asset” received by the landholder for tax purposes.

This can be a major disincentive to landholders planning to establish a biodiversity stewardship site because the CGT event (D4) occurs when the biodiversity credits are generated, not when they are subsequently sold (and payment received). This raises the very real scenario where the tax on the total market value of the biodiversity credits becomes due and payable long before a single biodiversity credit is sold and funds received.

The Department is aware of this issue and has been lobbying the ATO for tax concessions or exemptions. We are not aware of any progress on this front. There are methods to minimise this tax risk, mostly revolving around pre-sales of biodiversity credits prior to the generation of those credits (to cover the TFD and tax liabilities).

Capital Gains Event occurs on sale of biodiversity credits

A CGT event (type A1) also occurs upon the sale or disposal of biodiversity credits. The owner of the credits may make a capital gain or loss depending on the capital proceeds and cost base of the credits. The amount that is required to be paid by the credit owner as a TFD (to effect the registration of the sale/transfer of the biodiversity credits) is included in the cost base (or reduced cost base) of the biodiversity credits.

The cost base for the purposes of CGT event A1 also includes fees paid to consultants and legal and other advisors to assess site biodiversity values, calculate site biodiversity credits, prepare site management plans and provide other advice related to entering into the BSA. The cost base also includes the market value of any property given up to acquire the biodiversity credits (the giving up of rights over the property reduces its value).

Small Business CGT concessions

In some circumstances, the biodiversity credits will be considered to be active assets in the course of carrying on a small farming business and thus qualify for the small business CGT concessions.

Investors beware - profits may be considered income – not capital

All of the above relates to capital gains. But there are situations where ATO will deem the profits or losses derived from the creation and sale of biodiversity credits to be ordinary income derived from a business venture.

The ATO is likely to consider the profits from the creation and sale of biodiversity credits to be income where the purchase of land and creation of a biodiversity site has the character of a commercial transaction. This could happen in circumstances where an entity, like a unit trust or company is established for the purpose of purchasing a property with the intent of creating biodiversity credits so that they can be sold. The venture has a profit-making motive.

The question of whether a business is being carried on is a question of fact and degree and is complex. However, even if the generation and sale of biodiversity credits is not part of the carrying on of a business, the ATO can have regard to “profit from isolated transactions” as ordinary income. Either business income or profits from an isolated transaction can be included in the landholder’s assessable income for that income year.

We are aware of circumstances in which the ATO has deemed that profits derived from the creation and sale of biodiversity credits were considered “isolated commercial transactions” and were therefore assemble income. This can occur where a company or unit trust is formed with the specific intent of buying rural property to establish a biodiversity stewardship site and generate and sell credits. Further, because the ATO deems that the biodiversity credits are a tradeable asset and readily convertible to cash, the money value of the biodiversity credits issued on entry into the BSA will form part of the entity’s assessable income in the income year that the credits are received. This could occur even though a single credit has not yet been sold.

There is some minor consolation. Due to anti-overlap provisions, the capital gains for that entity (mentioned above) under CGT events D4 and A1 would be reduced to the extent that profit from the creation and sale of the biodiversity credits has already been assessed as the entity’s ordinary income.

Small consolation to an entity receiving a hefty tax bill in the year the credits are generated if no cash has yet been realised from the sale of those biodiversity credits.

Investors and commercial entities seeking to engage in the biodiversity offset scheme with the intent of realising a profit would be well advised to obtain specialist tax and legal advice with regard to their tax liabilities and structuring.

GST is payable on the sale of credits

For the purposes of GST, the sale of credits is a taxable supply of goods. This means that the owner of the credits is registered for GST, or should be registered for GST and the biodiversity credit price should include GST that the credit seller needs to remit to the ATO.

Income received under the ongoing payments is taxable income

Landholders who establish a biodiversity stewardship site are required to perform, and receive payments to perform, management actions to manage the stewardship site.

Payments made to landholders for the ongoing management of a biodiversity stewardship site are a contractual payment for the performance of services and will be considered ordinary income and assessable for income tax purposes. Landholders may be able to claim deductions.

NSW Land Tax exemption

Finally, some good news.

Land that is the subject of a biodiversity stewardship agreement is exempt from land tax under s 10(1)(p) of the Land Tax Management Act 1956.

Disclaimer

The contents of this article are a general guide and intended for educational purposes only. Landholders should seek their own taxation advice before entering into or considering establishing a biodiversity stewardship site.

Determination of the types of issues discussed in this article is complex and often varies from case to case and involves an understanding of matters of fact and degree. Opinions on those matters can vary and be matters on which reasonable minds may differ.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

NSW Biodiversity Laws Review

Fri, 09 Aug 2024 07:00:00 GMT

Legislation in NSW aimed at protecting biodiversity is not working. The current system is complex and there are many reasons for failure. This article considers recent review of the NSW biodiversity legislation.

Introduction

The NSW Government has recently responded to statutory reviews of the Biodiversity Conservation Act 2016 (‘BC Act’) and Local Land Services Act 2013 (‘LLS Act’).

The NSW Government has committed to:

Reforming the biodiversity offsets scheme;
Stopping excess land clearing;
Strengthening food and fibre production;
Improving the protection and restoration of the environment;
Setting nature on a path to recovery, through a repair and regeneration model; and
Partnering with Aboriginal communities.

Biodiversity Conservation Act

The review of the BC Act found that it did not meet the purpose of ‘maintaining a healthy, productive, and resilient environment, and is never likely to do so’. The NSW Government has emphasised the need to rewrite the objects and structure of the BC Act. It intends to amend and strengthen the application of ecologically sustainable development, review other relevant legislation, and improve reporting on government biodiversity impacts and outcomes. Further commitments are grouped under six key pillars of reform.

1. Nature Positive Strategy

This includes preparing and publishing a legally enforced NSW Nature Strategy with conservation and restoration goals and targets.
The strategy will guide investment and action to protect ecosystems and landscapes across tenures.

2. Nature Positive Spatial Tools

The Government will map areas of current and future high biodiversity value.

3. Nature Positive Development

The Government will amend the BC Act to require the Biodiversity Offsets Scheme to transition to overall ‘net positive’ outcomes. Currently, proponents must meet a lower threshold of ‘no net losses’.
Proponents will be required to demonstrate how they have genuinely avoided minimised biodiversity impacts. This will be supported by a public register of appropriate measures for developments.
Investment in the Biodiversity Credits Supply Fund will continue.
The Government will increase the efficiency and transparency of the Biodiversity Offsets Scheme, to better balance the application of this scheme with biodiversity risks.

4. Species and Ecosystem Recovery

Improvements will be made to species and ecosystem programs and conservation initiatives.

5. Data-informed decision-making

A natural capital accounting framework will be established to inform government decision-making.

6. Leveraging private investment

Focus will be placed on building landholder capacity and boosting participation.
This includes diversifying and expanding investments and leveraging existing programs such as Landcare and the Biodiversity Conservation Trust.
Methodologies for natural capital activities and accounting will be developed.

Local Land Services Act

A review of the LLS Act affirmed its aims. It highlighted, however, the need for improved practical outcomes. The NSW Government intends to implement the recommendations made in the statutory review of the Act. This includes commitments to:

1. Strengthen protections in Code-based clearing

Amending the Land Management (Native Vegetation) Code 2018 to reduce areas approved to be cleared.
Strengthening the prescriptions for managing invasive native species.
Specifying environmental management requirements for retained areas under the Pasture Expansion (Mosaic Thinning) provisions.
Removing discounts for set-aside areas.
Re-introducing a cap on equity clearing.
Increasing notification and certification requirements.

2. Better manage environmental risks

Improving administration and outcomes of authorisations to manage environmental risk.
Developing a risk-based framework for responding to major climatic events.

3. Reduce unallocated clearing

Reviewing the policy options for improving outcomes for areas containing predominantly non-woody vegetation.
Initiating a review into the further protection and restoration of biodiversity in regional landscapes.

4. Expand and support incentives for landholders

Strengthening education and extension services for landholders.
Expanding incentives.

5. Improve transparency and awareness of the Land Management Framework

Improving monitoring, evaluation, and reporting.
Net-change monitoring and reporting on woody vegetation loss and regrowth on rural regulated land.
Collaborating with local governments to reduce the risk of allowable activities being misused for non-agricultural clearing.

Key Takeaways

Significant changes to biodiversity legislation, particularly the BC Act , can be expected.
The Biodiversity Offsets Scheme will undergo major reform.
Stricter application of the LLS Act will aim to reduce land clearing.
Future projects in NSW will increasingly focus on biodiversity impacts.

The requirements under the BC Act can be complex and challenging for developers. We are currently assisting several landowners in establishing biodiversity stewardship sites resulting in the improvement and protection of significant areas of bushland and biodiversity. For developers and landowners alike the NSW scheme is complex and expensive. There are many potential pitfalls.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

APZ’s on adjoining land, especially Council land

Thu, 25 Jul 2024 22:00:00 GMT

This article discusses utilising adjoining land as an Asset Protection Zone for bushfire protection purposes and a recent case which considered the use of adjoining Council land.

APZ’s on adjoining land?

It is possible in some circumstances to use land adjoining a development site for the purpose of an Asset Protection Zone ( APZ ).

An APZ is a bush fire protection measure which creates a buffer between a bush fire hazard and buildings, necessary under the Planning for Bush Fire Protection 2019 ( PBP 2019 ) .

Case law

Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49

Facts

This case concerned the creation of an APZ on adjoining Council land.

The proposed development was a three-lot subdivision of residential property. The property adjoins Council-owned land.

The required distance of the APZ was determined to be 21.5 metres. The development plan proposed that 15.5 metres of this would be on the subject site, with the remaining 6 metres on adjoining Council land.

Easter Developments (Developer) appealed the Shoalhaven City Council’s (Council) refusal of the development application to the NSW Land and Environment Court. At first instance, the Commissioner upheld the appeal and granted consent to the subdivision, finding that the proposed APZ complied with the requirements of PBP 2019 because it was managed land and had historically been managed (and cleared) by Council for this property and other properties in the street. The Council appealed the Commissioner’s decision.

The Developer argued that use of the adjoining land was appropriate as the land would be appropriately managed and maintained by Council, satisfying the requirements under the PBP 2019 for an APZ.

The Council contended that the development should be refused because the APZ was not wholly within the boundaries of the development site and that the ongoing maintenance of the APZ had not been considered, nor could it be guaranteed.

Decision

Preston CJ upheld the appeal, finding that the Council-owned land could not constitute part of the APZ, as it did not satisfy the requirements for management of land required in the PBP 2019.

If an APZ is to include part of adjoining land, which is publicly owned by a Council, there must be an adopted Plan of Management that meets the requirements of the PBP 2019. The Bush Fire Risk Management Plan in this matter did not meet the standards necessary for an APZ and was thus found not to be a Plan of Management for the purposes of the PBP 2019.

Consideration

An APZ is a buffer zone between a bush fire hazard and buildings. An APZ must be appropriately managed to minimise fuel loads and reduce the potential for a bush fire to spread and harm buildings, people, and assets. Its distance is calculated with regard to the vegetation type, slope, and nature of the building.

Preston CJ’s judgement serves as an indication that adjoining land, generally, cannot be used as part of an APZ in a development. This is clear within the PBP 2019, which provides that APZs on adjoining land are not encouraged and instead, the accepted solution is to have the APZ wholly within the land's boundaries.

An APZ must be maintained for the ‘lifetime of the development’ and, to guarantee that the APZ is appropriately managed, it is logical for it to be solely contained within the overall development site, without reliance on adjoining sites, as this ensures the standards are easily met by one party. Where adjoining land forms part of the APZ, there is no guarantee that the land will be appropriately maintained to the standard required by the PBP 2019, as there are multiple pieces of land to be maintained by different parties. This, however, does not exclude a development from using adjoining land for an APZ.

To utilise adjoining publicly owned land, a Plan of Management must be adopted and implemented by Council to act as a legal guarantee that the land will be appropriately managed. These plans must demonstrate clear compliance with the requirements of the PBP 2019. The issue for the Developer in this case was that they could not demonstrate to the Court that the adjoining land would be appropriately managed, and the requirements outlined in the PBP 2019 would be met.

The case demonstrates that the current management of the Council land is insufficient and irrelevant as to whether the land is compliant with the PBP 2019. Instead, a Plan of Management must be adopted by the council or government to assure there is appropriate management and there is a regime to ensure ongoing compliance for many years to come. The plan should include the following:

the prescribed APZ requirements; and,
the predicted timing of the management; and,
notification of arrangements for management should the land be acquired or dedicated; and,
demonstration that the relevant authority has the capacity to maintain the APZ; and,
acknowledgment of the responsibility from the adjoining landholder that the APZ will be appropriately managed.

To the question of whether an APZ can include part of the adjoining land, the general rule is that it cannot.

The judgment of Preston CJ and the provisions of the PBP 2019 clearly indicate that the preferred option is that any APZ required for a property be contained entirely within the boundaries of that land. This is to ensure that requirements are appropriately managed for the lifetime of the development.

However, there are exceptions to the rule. There are stringent requirements to ensure compliance where adjoining land forms part of the APZ. As it pertains to publicly owned land, there must be a Plan of Management and it is insufficient to argue that the land is currently managed in a way that would comply.

This is to ensure a legal guarantee that the requirements of the APZ are strictly met and all development on the land is compliant.

Key Takeaways

When developing on bush fire prone land, as a general rule, adjoining land cannot constitute part of the necessary APZ.
There are, however, exceptions to this. For publicly owned land, a Plan of Management must be created to guarantee the appropriate management of the land.
Noting this, it is insufficient to rely on the current and future management of the land by the Council or government in matters pertaining to publicly owned land, there must exist a Plan of Management.
There must be consideration of the management of adjoining land. The corresponding Plan of Management must comply with the standards outlined in the PBP 2019 and guarantee the ongoing compliance with measures of the APZ.

Require further assistance?

We have assisted many clients resolve issues with Asset Protection Zones. Some of those cases involve the Asset Protection Zone being, partly or entirely, on adjoining property.

If you require advice regarding Asset Protection Zones, we can assist you in this process.

Disclaimer

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

What is a “building” in planning law – and when is consent required?

mevans@whiteacre.com.au (Mark Evans) — Thu, 20 Jun 2024 22:00:00 GMT

This article explores the concept of a “building” as that term is defined in the EPA Act and reviews case law in which various structures and buildings have been considered by the Court.

“Development” as defined in in the Environmental Planning and Assessment Act 1979 ( EPA Act ), includes the erection of a “building”. So, unless exempt, erection of a building requires development consent. This raises the obvious question as to what constitutes a “building” for the purpose of the Act. Clearly a residential dwelling fits the bill but what about a tiny home propped up on piers? What about a shipping container or a chook shed? This article considers what may constitute a building for the purposes of the EPA Act and review case law in which various structures and buildings have been considered by the Court.

Examples from case law

There is substantive case law on what constitutes a “building” and what constitutes a structure or part of a structure and thus may also be caught by the expanded definition of building in the EPA Act.

The EPA Act defines “building” and extends its ordinary meaning to include:

part of a building, any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993 .

Some examples from historic cases below.

A temporary marquee, erected for a New Years Eve fundraiser on a roof was held not to be a “building” or a temporary structure: Garbacz v Morton [2002] NSWLEC 17.

A large demountable site office and a shipping container used for storage were both found to be buildings: Wyong Shire Council v Cohen [2004] NSWLEC 171.

Four sheds on storage land have been found to be buildings: Jambrecina v Blacktown City Council [2009] NSWCA 228.

Swing moorings emplaced upon the seabed were found not to be structures (and therefore not building): Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56.

A slipway with a wooden cradle on which small boats could be brought from the river for servicing was held not to be sufficiently substantial to be a building: Tange v Drummoyne Municipal Council (1955) 20 LGR (NSW) 229 at 233.

A gate preventing public access along a road constructed on the private land was held not to be a structure: Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305-308.

A battery of six fairground swing-boats installed on land which could be lifted by six men or dismantled in an hour was held not to be "in the nature of a building or erection which changed the physical character of the land at all": J ames v Brecon Country Council (1963) 15 P& CR 20 at 24.

A large pontoon used as a landing pad for helicopters in the waterway of Pittwater was held to be a building. The pontoon was secured by chains at two points to concrete weights placed on the seabed: Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10 at 19.

Case law

Garbacz v Morton [2000] NSWLEC 17

In Garbacz v Morton the NSW Land and Environment Court was asked to consider whether a temporary marquee erected on the flat roof of a dwelling for a New Year’s Eve function was a “building”. Neighbours commenced proceedings seeking removal of the marquee and one of the bases of the action was that the marquee was a building. The marquee in question was 15 metres long, 12 metres wide and 5 metres high. It was held down by weights, not fixed to the rooftop.

Sheahan J concluded at paragraphs [45]-[54]:

“[45] If the marquee is at law a ‘building’, cl 29 will be activated and a development consent will be required.

[46] If the marquee is at law a ‘temporary structure’, it will require an approval from Council under s.68 of the Local Government Act 1993 as amended.

[47] The applicants suggest it can be either or both, and thus illegal, through having neither development consent nor Council approval.

[48] Time does not permit the complete rehearsal of what appears in the respective written submissions of the parties, but as Gibbs CJ said in Lizzio (at 117) these are indeed questions ‘of fact and degree’…

[50] This marquee has none of the features of a fixture. It is entirely portable, and is designed to be moved from place to place for short periods and/or specific events. The public interest does not suggest, let alone dictate, that any, let alone every, erection, movement or demolition of it should be the subject of a specific Council approval. The Local Government Act definition of ‘building’ excludes a ‘moveable dwelling or associated structure’, and this marquee would seem to me to be a lesser beast than those…

[52] The definition of ‘temporary structure’ includes ‘booth, tent or other temporary enclosure’, but Councils do not, as Mr Conti points out, require approval processes for tents, dog kennels, garden tool sheds, and the like. I acknowledge that this marquee is of substantial size, but in the absence of evident legislative intent to embrace such items I will not draw such an ad hoc distinction.

[53] While I concede that a case could be mounted for some regulation of movable function facilities and hire company operators, particularly on questions of soundness, safety, and emergency escape, singling out one New Year’s Eve marquee, on a private property, in a planning case, does not appear to me to be the way to approach it, nor an appropriate law-making role for the court to take, irrespective of what regime may be in place for such regulation when the transition period is over.”

Sheahan J concluded that the marquee was not a building or a temporary structure and thus did not require development consent or an approval from Council. One of the reasons was that Sheahan J felt that the regulation of moveable function facilities and structures was a matter better left to the Parliament to regulate in the form of legislation, not by the judiciary through a single decision in planning case.

Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171

In this case the NSW Land and Environment Court held that a large demountable site office and a shipping container used for storage both constituted buildings and thus required development consent. In Cohen the definition of “building” differed slightly from its current definition but not in a material way. This case also provided helpful insight into the distinction between temporary structures and moveable structures and the requirement for approval under s 68 of the Local Government Act in contrast to development consent under the EPA Act.

In Cohen the local council brought proceedings against the landowners for carrying out development without consent by the erection of a building on the land.

The first structure in Cohen was a large demountable site office. The office was of metal construction with a metal roof, 7.2 metres long by 4.8 metres wide. The office contained equipment which was used for the purpose of the landowner’s business. The office was erected upon concrete blockwork piers and connected to electricity but not to a water supply.

The second structure was a shipping container. The container was used to store both domestic and household goods, tax records and other financial data.

Cowdroy J held at paragraphs [19]-[26]:

[19] Turning to the metal clad office structure, the Court has little difficulty in determining that such is a “building” as defined in s 4(1) of the EP&A Act. It has been submitted by Mr Cohen that the building is movable, that it is not connected to the ground and that therefore it should be regarded as within the exemption contained in the definition of “building”. However, it is apparent from the evidence, including the photographs that the office constitutes a building as defined in s 4(1) of the EP&A Act. It is connected to electricity. There is no suggestion that it is readily moveable as if it were a structure placed on wheels. The office is connected to the telephone. It relies for its support upon piers set into the ground, and is neither a “home” nor a “moveable dwelling” or part thereof.

[20] Because of its construction the shipping container raises different issues. It has metal sides and a metal roof and is built of steel components. When the Court is required to categorise such items, the Court is satisfied that the approach of Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305-308 is correct.

[21] The Court must take notice of the purpose of the Act. The purpose of the EP&A Act as was considered by Sheahan J in Conomos v Chryssochoides (1997) 97 LGERA 113, especially at p 120. In that decision His Honour determined that pipes were relevantly a “structure” and were therefore a building as defined in the Act.

[22] Mr Cohen submitted that the container comprised a temporary structure within the meaning of the LG Act and that it was mobile. There is nothing which would enable the Court to find that it was readily movable. It was not fitted with wheels, it could not be readily moved and for that reason the Court considers that the exemptions provided in subsections (a) and (b) of the term “building” contained within s 4(1) of the EP&A Act have no application.

[23] Mr Cohen relied upon the decision of Sheahan J in Garbacz and ors v Morton and Anor 40225 of 1999 , otherwise entitled [2000] NSWLEC 17 in which the Court found that a marquee was not a building. When the facts of that decision are considered it is apparent that the structure in question was of an entirely different nature to the container or the office. His Honour held that a marquee was one which could be readily dismantled and re-erected frequently, and adopted the purposive approach to construction of the definition to determine that the marquee did not qualify as a “building”. That is an entirely different factual situation.

….

[25] In this case the container comprises a structure as that term is considered in R v Lowe (1954) 19 LGR (NSW) 345 at 351. Accordingly, it is a “structure” in the definition of “building” contained in s 4(1) of the EP&A Act.

[26] It follows that pursuant to s 76A(1) of the EP&A Act the respondents were obliged to obtain development consent for both the office building and for the container. In the absence of development consent pursuant to the provisions of the EP&A Act the council has established its entitlement to relief.

The landowners appealed the decision of Cowdroy J in the first instance to the NSW Court of Appeal in Cohen v Wyong Shire Council [2005] NSWCA 46, but the only live issue in that appeal was the matter of costs of the original proceedings.

However, in the Court of Appeal judgement, Hodgson JA (with whom Handley JA and Santow JA concurred) held:

[26] In my opinion, the demountable office is without question a building, even though it is only resting on the ground. The error by the primary judge, in referring to piers set into the ground, was immaterial; and his reasons on this aspect of the case are otherwise correct.

[27] As noted above, s.4(2)(b) of the EPA Act provides that a reference in the Act to “the erection of a building” includes a reference to “the placing … of a building on land”. Accordingly, if each of these items was a building, there was in each case the erection of a building.

[28] The question whether the container was a building is less clear. However, by reason of its size, use and placement, it was in my opinion clearly open to the primary judge to find that, in the circumstances, it was a structure and therefore a building; and no error is disclosed in his reasons.

[29] As regards the exceptions in the definition of “building”, the only exception possibly applicable is the exception of “a temporary structure within the meaning of the Local Government Act 1993 ”. The relevant definition, set out above, is an inclusive definition; and so the items in question could be temporary structures within the meaning of the LG Act either by reason of the ordinary meaning of the words “temporary structure” or by falling within paragraph (a) or paragraph (b) of the definition. Paragraph (a) clearly has no application.

[30] The question whether these items are “temporary structures” in the ordinary meaning of those words, or “mobile structures”, is to my mind not an easy one. The primary judge found that they were not fitted with wheels and were not readily moveable, and these findings are unexceptionable; but they are not conclusive. The question addressed by Taylor J in Quarries Limited v. Federal Commissioner of Taxation (1961) 106 CLR 310 was a different question, namely whether certain sleeping units were “plant”; but the comments he made, especially at 316, about these units, which were like the demountable office in this case in that they were moveable with the aid of a mobile crane and semi-trailer, suggest that he may well have considered them as temporary structures.

[31] However, if these items were temporary structures within the meaning of the LG Act, so that consent was not required under the EPA Act, consent for their installation was required by s.68 of the LG Act and was not obtained. In circumstances where there is now no live issue about the orders for removal, in my opinion it is not necessary to determine which of these two Acts was breached, and it is preferable to leave determination of this difficult issue to a case where it is necessary to decide it. It is sufficient to say that one or other Act was breached, so that, subject to the question of discretion, the orders made below were justified.

Key Takeaways

Whether a structure is a moveable dwelling will be a matter of fact and circumstance and depend on the ability to readily move the structure. A large demountable site office connected to electricity and telephone will be a building, even though it is only resting on the ground.

The size, use and placement of the structure will also be important in determining whether it is a building.

In this case, the shipping container was distinguished from the marquee in Garbacz and ors v Morton (and these found to be a structure) because it was not readily moveable, on wheels and able to be readily dismounted and re-created frequently.

However, the Court of Appeal left open the question whether the ability to move the structure on wheels or only by crane and semi-trailer was determinative of whether it was a building at [30]. The Court left this difficult question open to a more appropriate case to determine but found that (i) if it was a building development consent was required; alternatively (ii), if it was a temporary structure a s.68 approval was required.

Jambrecina v Blacktown City Council [2009] NSWCA 228

In Jambrecina , the NSW Court of Appeal was asked to consider an appeal against Court orders for the removal of four sheds used for storage on land in a low density residential area. The sheds in question were approximately between 4.8m x 3m in size.

The landowner appealed to the NSW Court of Appeal claiming that the sheds in question were not buildings.

Held

The Court of Appeal held that each of the four sheds was a “structure” for the purposes of the definition of “building” in s 4(1) of the EPA Act and was therefore a building.

Sackville AJA (with whom Giles JA and Ipp JA concurred) held at paragraphs [41]-[46]:

[41] One purpose of the EPA Act and of the LEP is to prevent the erection of three-dimensional objects on land that can interfere with the amenity of neighbouring lots. Thus the objects of the EPA Act include the proper management and development of natural and artificial resources for the purpose of promoting the social welfare of the community and a better environment (s 5). More specifically, the LEP provides (Part 2, cl 9(1)) that the objectives of Residential 2A zoning include:

“(e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.”

[42] In an individual case, the interference with the amenity of neighbouring lots might occur, for example, because of the bulk, unsightliness or proposed use of the objects to be erected or used. The evidence before the primary Judge showed that each of the four sheds:

was of a sufficient size, bulk and appearance to potentially have an adverse effect on the amenity of neighbouring lots;

had been located on the property for a period of some two and a half years prior to the hearing;

although apparently prefabricated, was sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period; and

was used by the appellant in connection with her occupation of the dwelling on the Property.

[43] In view of this evidence, the primary Judge was correct to conclude that each of the four sheds was a “structure” for the purposes of the definition of “building” in s 4(1) of the EPA Act. The sheds individually and collectively were potentially capable of adversely affecting the amenity of neighbouring lots. Each shed was therefore a “building” unless one of the exceptions stated in paragraph (a) of the definition applied.

[44] The relevant exceptions in paragraph (a) are “a manufactured home, a moveable dwelling or associated structure”. The evidence did not support a finding that any of the sheds were a “portable device … used for human habitation” and thus did not support a conclusion that any of the sheds was a “moveable dwelling”. There was no suggestion that either the appellant or her son lived in the sheds or, indeed, that the sheds were capable of being used as a place of abode or dwelling. In any event, while the sheds were apparently prefabricated and presumably capable of being dismantled and reassembled, they were not “portable” in the same sense as tents, caravans and vans, which are specifically designed to be readily and frequently moved from place to place.

[45] None of the sheds was a self-contained dwelling and therefore was not a “manufactured home”, as defined in the Local Government Act. Nor were any of the sheds an “associated structure”, since they were not designed to enhance the amenity of a moveable dwelling.

[46] It follows that the primary Judge correctly concluded that none of the exceptions specified in paragraph (a) of the definition of “building” applied in this case and that the placement of the sheds on the Property constituted the “erection of a building” within the meaning of the EPA Act.

Key Takeaways

In Jambrecina the Court of Appeal first had regard to the objects of the EPA Act and the LEP in its analysis of whether the sheds were in fact buildings. At [41]-[43], the Court took into account the impact of the structures in question on the amenity of the neighbourhood and applied a purposive approach to the interpretation of the meaning of “structure”.

Further, the Court had regard to the size, bulk and appearance of the sheds, the length of time they were in place on the land and the degree to which they were affixed to the land to find that the sheds were “structures” and therefore fell within the definition of a “building”.

Because the sheds did not fall into either category of a moveable dwelling or a manufactured home, they were found to be “structures” and therefore buildings which required development consent.

Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56

In Royal Motor Yacht Club , a question arose as to whether mooring apparatus laid on the seabed were “structures” and therefore fell within the definition of a building requiring development consent.

Preston CJ held that a mooring apparatus was not a structure and its emplacement on the seabed could not be said to involve the erection of a building.

The Council submitted the nature of a swing mooring was aptly described as consisting of a number of interconnected physical elements or parts comprising a heavy weight placed on the seabed, a chain, a rope and a buoy. The Council submitted that a swing mooring was, therefore, a “structure” in the ordinary meaning of that term and therefore fell within the definition of building which required development consent.

At the time the swing moorings were installed, “building” was defined under the Warringah Planning Scheme Ordinance 1963 ( WPSO 1963 ) to include “any structure or any part thereof”. The term “structure” was not defined in WPSO 1963 or LGA 1919.

The Council submitted that, although it appears that swing moorings may move with the tide and currents in certain circumstances, it was erroneous to contend that this made the swing moorings “portable” and akin to the portable marquee in Garbacz v Morton (1999) 108 LGERA 251; [2000] NSWLEC 17, which was held not to be a structure. It is plain that the weight of the elements of the mooring structure is designed to prevent or minimise movement while the marquee in Garbacz was to be removed following the event; it was not to be relocated to another part of the premises.

The Council submitted that the swing moorings were structures and, accordingly, the erection and use of the swing moorings without obtaining consent was unlawful.

Held

Preston CJ held that the installation of the swing moorings in the waterway did not involve the erection of a building, including a structure.

Preston CJ held at paragraphs [152]-[169]:

[152] I find that the installation of the swing moorings in the waterway did not involve the erection of a building, including a structure, on land below high water mark.

[153] First, I find that a swing mooring was not a building, including a structure, to which cl 59 of WPSO 1963 applied. It is true that in a wide sense a structure can refer to a “framework of material parts put together” or “something…built up of component parts”: R v Lowe (1954) 19 LGR (NSW) 348 at 351. However, courts have construed the concepts of “building” and “structure”, for local government and planning purposes, as involving, first, a structure of considerable size or substance, and second, a structure intended to be permanent or at least endure for a considerable time. In an early English case involving the Metropolitan Building Act 1955 (UK), Byles J in Stevens v Gourley (1859) 7 CBNS 99 at 112-113; 141 ER 752 at 757-758 said that:

“by a ‘building’ is usually understood a structure of considerable size, and intended to be permanent or at least to endure for a considerable time. A church, whether constructed of iron or wood, undoubtedly is a building. So a ‘cowhouse’ or ‘stable’ has been held to be a building…On the other hand it is equally clear that a bird-cage is not a building: neither is a wig-box, or a dog-kennel or a hen-coup – the very value of these things being their portability.”

[154] In Australian Gaslight Co v Valuer-General (1940) 14 LGR (NSW) 149, Jordan CJ at 156-157 and Halse Rogers J at 166 approved the definition of “structure” given by Roper J of the Land and Valuation Court at first instance as:

“a substantial erection necessarily constructed in situ and forming and intended to form a permanent feature of the land, having substantially the characteristics of a building or of a permanent framework affixed to the land and not being a machine”.

Davidson J at 162-163 preferred the definition of Scrutton J in Inland Revenue Commissioners v Smyth [1914] 3 KB 406 at 421 that:

“a ‘structure’ is something artificially erected, constructed, or put together, of a certain degree of size or permanence, which is still maintained as an artificial erection, or which, though not so maintained, has not become indistinguishable in bounds from the earth surrounding”.

[155] In O’Brien v Shire of Rosedale (1968) 22 LGRA 262 at 267, Gillard J identified characteristics commonly associated with a structure. The first characteristic was that:

“the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value”.

The second characteristic was that:

“the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure”.

The third qualified the first two characteristics:

“there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation…Thus a tent erected on a wooden floor or a caravan, if placed on a site temporarily for occupation, would not ordinarily be called a structure.”

[156] These criteria that the structure needs to be of some considerable size or substance and to be sufficiently affixed to the land and to remain permanently or indefinitely on the land explain most of the cases holding a structure either to be or not to be a “structure”.

[157] As to the first criteria that the structure needs to be of some considerable size or substance, small structures have been held not to be buildings, including structures: see the small structures referenced in Stevens v Gourley quoted above and in Noarlunga City Corporation v Fraser (1986) 61 LGRA 324 at 331-332 and in Mulcahy v Blue Mountains City Council at 306, 308. Hence, a slipway with a wooden cradle on which small boats could be brought from the river for servicing was held not to be sufficiently substantial to be a “building”: Tange v Drummoyne Municipal Council (1955) 20 LGR (NSW) 229 at 233. A gate erected on private land preventing public access along a road constructed on the private land was held not to be a structure: Mulcahy v Blue Mountains City Council at 305-308.

[158] The decision in Holster v Director-General of National Parks and Wildlife Service that the swing moorings in that case were structures that could be removed under s 160A of the National Parks and Wildlife Act 1974 is distinguishable. It concerned different legislation and the finding in [16] lacked detailed reasons and did not address the arguments raised in the present case.

[159] As to the second criteria, structures that are sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period have been held to be “structures”. Hence, caravans or mobile homes that are placed on the land in such a way that they will remain where they stand indefinitely have been held to be structures. This might involve halting their mobility, such as by the wheels resting in excavations or placing supports under the structures, and connecting the structures to utility services such as electricity supply mains or water and drainage systems: see, for example, Wagga Wagga Municipal Council v Sullivan (1931) 10 LGR (NSW) 77 at 78; Parramatta Municipal Council v Chamberlain (1938) 14 LGR (NSW) 21 at 24; Forster v Shire of Mornington [1949] VLR 150 at 153; Crease v Hay Shire Council (No 2) (1973) 28 LGRA 38 at 39-40; Skaventzos v Vander-Lee (1974) 30 LGRA 395 at 399; and Waratah-Wynyard Council v Fairbrother [1994] TASSC 185 at [15], [16]. Similarly, sheds of a sufficient size and bulk, although prefabricated, that were sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period were held to be “structures” and “buildings”: Jambrecina v Blacktown City Council [2009] NSWCA 228 at [42]-

[43]. In these situations, there is a sufficient degree of affixation to the land and permanence of the structures to satisfy the ordinary meaning of a structure and a building.

[160] However, other structures that were mobile and not intended to remain permanently on the land on which they were placed have been held not to be structures: see, for example, Lismore Municipal Council v Williams (1931) 10 LGR (NSW) 58 at 60 (moveable fruit stall on wheels); Ex parte Hunter; re Doig (1934) 12 LGR (NSW) 38 at 39, 40 (moveable galvanised iron amusement tank); Noarlunga City Corporation v Fraser at 331, 337 (a yacht on a moveable cradle with wheels); Garbacz v Morton at [50] (a portable, temporary marquee).

[161] I find that the swing moorings installed by RMYC in the waterway were not structures and hence not buildings to which cl 59 of WPSO 1963 applied. The swing moorings did not satisfy the two criteria of being of some considerable size or substance and sufficiently affixed to the land and remaining permanently or indefinitely on the land. The swing moorings were not of a sufficient size or bulk to be a structure for the purpose of the regulation of the erection of buildings on land under cl 59 of WPSO 1963. Swing moorings were not affixed to the land below the waterway, by any means, and did not remain indefinitely at the locations where they had been placed from time to time. The swing moorings were simply placed on the seabed and remained in that general location by reason of the weight of the mooring block. However, the swing moorings did move with the tide and the wind. The swing moorings were deliberately moved from time to time to accommodate different sized vessels or to clear a passage for boating activities. The swing moorings were also removed and replaced for maintenance purposes.

[162] Second, the placement of the swing moorings in the waterway did not involve the “erection” of a structure. A building, including a structure, must be capable of erection. Clause 59 of WPSO 1963 provided that a building was not to be “erected” on any land below high-water mark.

[163] The ordinary meaning of “to erect” is “to raise, set upright, build”: Kismet Engineering Pty Ltd v Brisbane City Council [1959] 102 CLR 574 at 582. The word has this ordinary meaning in WPSO 1963.

[164] The concept of erecting a structure on land involves the raising, setting upright or building of the structure on the land. It involves putting a new structure on the land. Hence, to move a structure already on the land from one part of it to another is not to erect it upon the land. It does not put a new thing there; it moves an old thing from one position to another on the same land: Kismet Engineering Pty Ltd v Brisbane City Council at 580, 582.

[165] Third, the swing moorings were not structures that were erected “on any land below high-water mark”. Clause 59 of WPSO 1963 required that the erection of the building take place on the land below high-water mark. This required affixing the building, including a structure, to the land below high-water mark in some substantial way so that it was capable of remaining there for an indefinite period. A structure that merely physically rests on land has not been erected on the land. In some circumstances, a structure may be of such a considerable size and weight that it might be considered to be a structure on the land even though it is not affixed to the soil: see Noarlunga City Corporation v Fraser at 328. Ordinarily, however, a building will be considered to have been erected on the land by some affixation to the soil or by its sheer size and weight.

[166] Hence, if a structure is erected at one place and is moved to another place, it will not have been erected at the other place, unless it is affixed in some substantial way to the land at the other place. In Strong v Taylor (1890) 16 VLR 202, the building regulation prohibited the “construction” of buildings made of combustible materials within a certain distance of the building line of the street. The defendant constructed a wooden office on wheels at a place not within the prohibited distance and, after it was constructed, wheeled it to a place within the prohibited distance. The Court held that the building had not been constructed within the place prohibited and there had been no breach of the regulation: at 204. In James v Brecon County Council (1963) 15 P & CR 20, the defendant installed a battery of six fairground swing-boats. The entire battery could be lifted and taken away by six men or it could be dismantled in about an hour. The Court held that the defendant had not erected a building (which was defined to include a structure) and the swing-boats were not “in the nature of a building or erection which changed the physical character of the land at all”: at 24.

[167] However, it is a question of fact and degree whether there has been the erection of a building. In Aquatic Airways Pty Ltd v Warringah Shire Council at 19, the Court of Appeal held that a large pontoon used as a landing pad for helicopters in the waterway of Pittwater was a building (structure). The pontoon was secured by chains at two points to concrete weights placed on the bed of Pittwater and at a third point to a steel locomotive wheel which was also placed on the seabed. The Court held that “the placing of weights on the bed of Pittwater and the securing of those weights to a pontoon by means of chains amounts to the erection of a building”: at 19. The pontoon used as a landing pad for helicopters in that case was, however, of a considerably greater bulk and size than a swing mooring. Moreover, the Court did not address the question of relevance in the present case of whether that structure of the pontoon with its attached chains and large weights was erected “on any land below high-water mark.” In one sense, the only parts of that structure that were erected on the seabed were the three weights; the great bulk of the structure floated in the water above the land and was not held upright by the weights on the seabed.

[168] The swing moorings in this case were not “erected…on any land below high-water mark” within cl 59 of WPSO 1963. The swing moorings were assembled onshore, that is to say, the component parts of the mooring block, chains, rope and buoy were assembled onshore. The assembled swing moorings were taken out into the waterway in a suitable vessel (such as a barge with a winch) and the mooring block of the swing mooring was lowered into the desired position on the seabed. There was no affixation of the mooring block to the seabed. No part of the swing mooring other than the mooring block was placed on the seabed; the floating buoy kept the chains and rope above the seabed. The mooring block on the seabed did not hold upright the chains, rope and buoy. The size and weight of the swing moorings were not so substantial that they could not readily be moved and they did not remain in the same position indefinitely. In the circumstances, there has not been an erection of the swing mooring on the land below high-water mark. Instead, there has been the movement of an already assembled apparatus from one place (the club’s land onshore) to another place (the position on the seabed where the mooring block of the swing mooring was placed). This did not involve the erection of a structure on the land below high-water mark.

[169] For these reasons, any swing moorings that were installed by RMYC in the waterway after the coming into force of WPSO 1963 did not involve the erection of a building on any land below high-water mark in breach of cl 59 of WPSO 1963.

Key Takeaways

The courts over time have construed the concepts of “building” and “structure”, for local government and planning purposes, as involving,

(i). a structure of considerable size or substance,

(ii). being sufficiently affixed to the land; and

(iii). a structure intended to be permanent or at least endure for a considerable time.

A structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value.

The mere fact that the new physical object so constructed rested by its own weight on the soil does not necessarily and of itself alter its character as a structure.

There must be a sufficient degree of affixation to the land and permanence of the structures to satisfy the ordinary meaning of a structure and a building.

If a structure is erected at one place and moved to another place, it will not have been erected at the other place, unless it is affixed in substantial way to the land: at [166]

Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240

At first instance, Moore J applied Royal Motor Yacht Club and concluded that a road was a structure and therefore caught by the definition of a building in the EPA Act. On appeal to the NSW Court of Appeal one of the questions raised was whether a roadway following the natural lie of the land was a structure and therefore a “building”.

Basten JA (with whom Meagher JA and Preston CJ of LEC agreed) held that although “building” is defined in the Act to “[include] any structure”, that definition must be construed in its statutory context. The Act contemplates a distinction between “buildings” and “works”, with the latter broader than the former, and further contemplates that buildings are “erected”. A roadway which follows the natural lie of the land would be “works” but is not a “building” for the purposes of the EPA Act.

Held

His Honour Basten JA held at paragraphs [86]-[92]:

[86] The engagement of s 81A(2) depended upon the construction of the road satisfying the phrase “erection of a building”. The trial judge was satisfied that it did, noting the definition of “building” in s 4(1):

4 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.

[87] As the judge accepted, the only basis upon which the road could satisfy the definition of “building” was if it were appropriately to be regarded as a “structure” for the purposes of the definition. The judge then referred to two authorities. The first, an unreported decision of Talbot J in the Land and Environment Court, Bowyer v Manly Council [1996] NSWLEC 141 held that relevantly identical terminology in the definition of “building” in the Local Government Act 1993 (NSW) did not encompass a road. The second was Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 in which Preston CJ concluded that a swing mooring did not constitute a “structure”.

[88] Before turning to the reasoning adopted by the trial judge in concluding that the road constituted a “building” for the purposes of s 81A, it should be noted that the judge was not making a generic analysis, but rather considering evidence as to the construction of this particular road. Thus he stated that “I am satisfied that a proper understanding of the matters explained by [Preston CJ] leads me to the conclusion that the road constructed by Caverstock, at Louisiana's [sic – Hakea’s?] instigation, is properly to be regarded as a ‘structure’ and, thus, properly encompassed within the definition of ‘building’ in s 4”.

[87] Royal Motor Yacht Club involved similar language concerning the erection of a building, building being defined to include “any structure or any part thereof” for the purposes of cl 59 of the Warringah Planning Scheme Ordinance 1963 . The judgment of Preston CJ contains an extensive analysis of the case law dealing with various kinds of structures. The Chief Judge found particular assistance in the characteristics commonly associated with a structure identified by Gillard J in O’Brien v Shire of Rosedale [1969] VR 112 ; (1968) 22 LGRA 262. The trial judge applied a similar approach, which led him to the conclusion that the road was a “structure”.

[90] There were problems with this approach. O’Brien involved the removal of river gravel from the plaintiff’s land for road making. There was a statutory power to enter the plaintiff’s land for that purpose, but not “within 50 yards of any bridge, dam, jetty or other structure”. In other words, the word “structure” had a freestanding quality and was not an element of the definition of a different term, namely “building”.

[91] The trial judge distinguished Bowyer on the basis that Talbot J had been concerned with the separation of certain functions from the Local Government Act into the Roads Act 1993 (NSW) . The judge then identified two aspects of the definition of “structure” in the Macquarie Dictionary, but, after noting reservations about the use of dictionary definitions in the context of statutory construction, stated:

“[57] For the present purposes, all I draw from these two elements of this dictionary definition is that there is a deal of breadth of its potential application, including dams which, in the broad, can include significant rock or earthworks’ dams and not merely behemoth dams, such as those at Warragamba or Cataract, retaining massive water volumes for human or industrial consumption.”

[92] There are two factors which arise from this approach. First, unsurprisingly the dictionary definition included the defined term “building” within the concept of a “structure”. Arguably “structure” is a wider term than “building”; on that view, the question is the extent to which the reference to structure in the definition of building expands the concept of a building, not what the term structure in the abstract may encompass. Secondly, though perhaps inherent in the first point, that which is missing from dictionary definitions is the context in which the word is used in the statute. Not only is context provided by the primary unit for conveying meaning, namely the sentence, but also the place of the concept in question within the framework of the statute. Absent that broader context, it is not possible to adopt the purposive construction principle as required by s 33 of the Interpretation Act 1987 (NSW) .

[93] In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, this Court considered the lawfulness of Ms Mulcahy’s conduct in placing gates across a sealed road constructed, by mistake, on her land. The Council sought to compel her to remove the gates on the ground that they were “buildings” for which consent was required and had not been obtained. The appeal originally brought against the finding that the gates were buildings was abandoned. Nevertheless, in the course of dealing with the appropriateness of granting discretionary relief Mahoney JA expressed “considerable reservations” as to whether the gates were “buildings”. Mahoney JA continued:

“It has, for example, been suggested that the definitions must be given their literal meanings and that, applied in this case, it follows that: a building may not be erected or altered without approval of the authority; ‘building’ includes ‘structure’; and accordingly a structure of any kind may not be erected or altered unless the Council’s approval has been formally sought and obtained. But, if the definitions be so construed, extraordinary results would follow which, it may confidently be said, the legislature would not have intended, much less espoused. If given their full and literal meaning, words such as ‘structure’ and ‘erect’ have a wide operation….

… It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. … If read literally the administration of them would in practice be unworkable ….

The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve. This is, of course, a long recognised approach to the construction of statutes; more recently, it has been described as ‘purposive’. The construction of statutes in this way was referred to in detail in this Court by McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 ….

…

In principle, the purposive approach to construction of, for example, ‘structure’ or ‘erect’ would proceed in a manner such as the following. The Court would determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval. … It would not give to the terms a meaning which had no relevance to the achievement of that purpose.”

[94] The function of a definition using the term “includes”, followed by a number of separate terms, may itself be ambiguous. Generally, such language cannot be construed as exhaustive; however the list may be (a) illustrative of the word defined; (b) intended to resolve uncertainty as to borderline cases, or (c) expansive of the ordinary meaning of the term defined. Use of the phrase “part of a building” may fit within the second category and indicates that no restrictive approach should be taken to the meaning of “building”. The reference to “any structure” following the words “also includes”, may have the same function. The fact that the term “structure”, in its ordinary meaning, is apt to include a building, but to have a wider connotation, may indicate that it is also intended to be expansionary. The question remains, how far is the defined term expanded?

[95] The answer is to be derived from the statutory context. Thus, “building work” is defined in s 4(1) to mean “any physical activity involved in the erection of a building.” Many structures require construction, that is, the putting together of disparate parts, in circumstances where one would not speak of erection. Similarly, many things are built, but do not constitute buildings, despite the common linguistic root. Further, a critical concept in the Environmental Planning and Assessment Act is “development”. That concept underlies the system of regulation. Development is defined in s 4(1) as covering (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work and (e) the demolition of a building or work. Although not entirely separate and independent concepts, these elements of the definition indicate conceptual distinctions. It is clear that “work” is a broader category than “building”. Thus s 4(2) provides:

(2) A reference in this Act to:

…

(b) the erection of a building includes a reference to:

(i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or

(ii) the placing or relocating of a building on land, or

(iii) enclosing a public place in connection with the construction of a building, or

(iv) erecting an advertising structure over a public road, or

(v) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and

(i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or

(ii) enclosing a public place in connection with the carrying out of a work, and

(d) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and

…

[96] One of the regulatory controls imposed is the requirement for the issue of occupation certificates with respect to new or partly completed new buildings. Although the provision requires a certificate before a person can commence “occupation or use” of a new building, the concept of usage should be understood as related to occupation.

[97] It is therefore relevant that one does not ordinarily speak of erecting a road or occupying a road except, in the latter case, perhaps, by protestors. On the other hand, one can envisage many structures which are erected which may not be described as a building in ordinary usage. Television towers and radio masts may be examples. A structure which is never described as having been “erected” does not fall within the concept of a building, even on an expansive view of that term. Importantly, unlike terms such as “development” and “work”, the Act demonstrates no intention to give “building” so expansive a denotation as to encompass all kinds of structures. The fact that something may stand above the natural level of the land (such as the gates in Mulcahy or the large piles of rock envisaged by Mahoney JA in Mulcahy ) suggests that such a characteristic is not sufficient to make the thing a structure. Nor would it matter that such an item had a level of permanence or was largely immovable. On the other hand, the construction of a roadway would readily constitute the carrying out of a work and thus a development.

[98] Bearing all these considerations in mind, a roadway which follows the natural lie of the land (even with the occasional culvert) should not be identified as a “building” for the purposes of the Act. That is, of course, to say nothing about a raised freeway or other kinds of roadway. It follows that the road the subject of these proceedings did not fall within the requirements of s 81A(2) of the Environmental Planning and Assessment Act . Although the judge described his conclusion as involving “questions of fact and degree” the approach to the question of statutory construction was erroneous.

Key Takeaways

The dictionary meaning of “structure” is expansive, however the word must be interpreted having regard to the purpose of the EPA Act and the context in which the word appears in the definition of a building.

The Act does not intend to broaden the definition of “building” to encompass all “structures”. To do so would take the ordinary meaning of building too far.

Many things are “built” or “erected” that do not constitute a building, for example an antenna or a radio mast.

Development in the EPA Act includes the erection of a building and the carrying out of a work. These classes may be conceptually different and the carrying out of a work is clearly a broader class than erection of a building.

The erection of a building usually precedes occupation of a building. It is an unnatural stretch of language to refer to the erection of a road or the occupation of a road, particularly when the EPA Act also regulates the carrying out of works which is a more apt description.

Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207

In Ralph Lauren , Preston CJ held that the construction of a sea wall would be more aptly described as “works” under the EPA Act, rather than the erection of a “building”.

In Ralph Lauren , three owners of coastal land at Byron Bay wished to repair failing sea walls on Belongil Beach in order to protect their properties from coastal hazards. The owners applied for development consent and appealed the deemed refusal of their development applications to the NSW Land and Environment Court.

The NSW Transitional Coastal Panel (consent authority) submitted that approval of the sea walls would formalise uncoordinated and piecemeal responses to coastal erosion processes operating at Belongil Beach, regularise unlawful works located largely on public land for the protection of private property, and confer a valuable private benefit at the expense of the public.

In the course of the proceedings, Preston CJ was asked to consider (a minor ancillary question) whether the construction of a sea wall, more specifically, the stacking and restacking of rocks and placement of earth and other material may be considered a structure or a building for the purposes of the EPA Act. His Honour Preston CJ concluded that this type of development was more appropriately considered works and not the erection of a building at [41]:

“stacking and restacking of rocks and the placement and replacement of earth and other material to form the walls on Belongil Beach may not involve the erection of a building within the meaning of those terms in the EPA Act : see Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240 at [97] , [98] and [137] . These physical activities would, however, involve the carrying out of a work, as would the enclosure by way of a safety fence of part of the public beach in connection with carrying out the works.”

Ballina Shire Council v Joblin [2022] NSWLEC 90

In Joblin , Robson J applied Royal Motor Yacht Club and found that an in-ground swimming pool was a building but in the different context of a development control order. In Joblin , the Council sought demolition and removal of the swimming pool on the basis that it was a danger to the public and was so dilapidated that it was prejudicial to the neighbourhood. Ultimately, the landowner failed to comply with Council orders and was charged with an offence of the EPA Act of failing to comply with a development control order given by Council.

The landowner submitted that the Council had no power to make the order, because the in-ground swimming pool was not a “building” and that adopting the Council’s construction of “building” would be inconsistent with the Court of Appeal decision in Hakea .

The Council submitted that while the Court of Appeal in Hakea appeared to suggest that a structure that was never ‘erected’ does not fall within the concept of a “building”, the Court also stated that the terms “building” and “structure” are not to be interpreted restrictively and must take into account the statutory context in which the term is used (at [95] per Basten JA). Further, where “building” has an “expansive meaning” under s 1.4 of the EPA Act , a swimming pool is not a moveable dwelling (or an associated structure under the Local Government Act 1993 (NSW) ), and where s 3 of the Swimming Pools Act provides that a “swimming pool” means “an excavation, structure, or vessel”, the subject pool is clearly regarded as a structure within the definition provided in the EPA Act and within the context of the Order.

Held

His Honour Robson J at [49] held that the swimming pool was a building and/or a structure which fit plainly within the definition of “building”.

Robson J held at paragraphs [50]-[62]:

[50] However, although it is clear that “structure” is a wider term than “building”, the question is whether the reference to “structure” in the definition of “building” expands the concept of a “building” to the extent it includes the swimming pool structure. This question has been directly and indirectly considered in various authorities.

[51] In Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 (‘Royal Motor Yacht Club’), Preston J , determining whether swing moorings constituted a “building” or moreover a structure (in circumstances where the definition of “building” within cl 59 of the Warringah Planning Scheme Ordinance 1963 included “any structure or part thereof”), considered that three criteria were relevant, first, the structure must be of some considerable size or substance; second, the structure must be sufficiently affixed to land; and third, the structure must remain permanently or indefinitely on the land.

[52] Although not determinative in my overall findings, adopting these criteria, I find that the swimming pool is plainly a ‘structure’ in that it is (as can be seen from the photos in evidence), first, of a considerable size and substance in that it involved substantial excavation and associated building or works; second, it is affixed to and recessed in the land; and, third, it is a structure which will, in a relative sense, remain indefinitely on the land by virtue, at least, of its beneficial addition to the amenities of the land, its design and construction.

[53] In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, the Court of Appeal was considering whether gates on a property were “buildings” for which development consent was required and had not been obtained, and Mahoney JA, having expressed reservations as to whether gates were buildings, cautioned, that although the definition of “building” (in that matter) included “any structure or part thereof”, it could not be said that a structure of any kind may not be erected or altered without Council approval and, stated at 306-308 :

It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. … If read literally the administration of them would in practice be unworkable …

[54] His Honour’s words were noted by Basten JA in Hakea at [93] , who accepted that whilst the term “structure” included a building when given its ordinary meaning, how far “structure” could be further expanded was to be derived from the statutory context. His Honour considered the concept of “development” (which itself was defined in s 5(1) (now s 1.5(1)(c)) to include “the erection of a building”), being a critical concept in the EPA Act which underlies the system of regulation, and found, in the circumstances of that case, that a structure cannot be described as a “building” within s 4(1) (now s 1.4(1)) of the EPA Act unless it can be said to have been “erected”; and the fact that something may stand above the natural level of the land at a level of permanence, or is largely immovable, is not “sufficient” to make that thing a structure (and therefore a building).

[55] Although the defendant relied upon Hakea, I do not consider that it provides support for the defendant’s position because although Basten JA (with whom Meagher JA and Preston CJ of LEC agreed) found (at [97]-[98]) that a road constructed over adjacent land could not be identified as a “building” because, in the circumstances, it had not been “erected”, that case did not concern a development control order issued under Sch 5 of the EPA Act , and the reasoning (of Basten JA at [92]) emphasised that the context of words within the relevant statute (and I interpolate a particular part of a statute) is necessary in order to adopt a purposive construction.

[56] Given the above judicial commentary, even if it is too simplistic to suggest that the pool is a “structure” and therefore is literally caught in the definition of “building”, seen in the context provided by Sch 5 and the purposes for which the provisions were enacted to achieve ( Mulcahy at 306-308 ), I consider it appropriate to adopt a purposive construction based upon text, context and purpose as required by s 33 of the Interpretation Act 1987 (NSW ) (‘ Interpretation Act ’) (considered further at [58] below).

[57] Although the defendant submits that Thiele (notwithstanding that it concerned Commonwealth legislation) remains relevant to the interpretation of “building” within the EPA Act because Hill J, in accordance with the ordinary meaning of the word ‘building’, found that every building is a structure but not every structure is a building, I do not consider Thiele to be applicable to the present circumstances where the Court was concerned with whether installing a swimming pool which had been recommended for hydrotherapy treatment of injuries was compensable under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and found (at 350) that the swimming pool could not be considered to be a “building” when adopting “ordinary usage” of the word, and where, as considered below, I find that a purposive interpretation of “building” is preferrable to its ordinary meaning in the present circumstances.

[58] As such, I consider that in construing “building”, a meaning which accords with the purpose the legislature intended the provision to achieve, even if that approach may trump an “ordinary” interpretation of the words, is to be preferred (for example, Lawson v Minister for Environment & Water (SA) [2021] NSWCA 6; (2021) 246 LGERA 421 at [25] (Bathurst CJ)) conscious of planning law’s concern for matters such as safety and stability of structures ( Royal Motor Yacht Club at [149] ); and I consider that the word ‘building’ within Order 3 (and within Sch 5) must be interpreted within the context in which it is used, which exposes the purpose to which it is directed ( Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (‘Sydney Seaplanes’) at [31] ). I find that it is consistent with the text, context and purpose to find that the term “building” in Order 3 is not confined to buildings and structures “erected” (in the sense of erected above-ground) and its purpose is to provide for the regulation of the safe and orderly use of land such that the term “building” in this context would be given a meaning that includes, in the present circumstances, the swimming pool.

….

[60] It follows from the above that I agree with Council’s position that interpretation should proceed by construing the meaning of “building” in its statutory context, and not interpreting ‘building’ and ‘structure’ restrictively, with the effect that I do not accept the defendant’s submissions (noted at [26] above) that the definitions of “building work” and “development” (which contain “erection of a building”) are of assistance in the construction task.

….

[62] Before turning to my consideration of the defendant’s second contention, despite my findings above, I disagree with Council’s submission that the pool is a building simply because it is immoveable. While a structure may be identified (pursuant to Preston J’s criteria in Royal Motor Yacht Club ) if it satisfies three criteria, including that it is permanent or immovable, those characteristics alone (as explained in Hakea at [97] ) are not sufficient to make the pool a ‘structure’ (let alone a ‘building’), and I consider that this view is supported by the fact that the definition of “building” within s 1.4(1) of the EPA Act includes temporary structures.

Key takeaways

Joblin concerned a development control order issued under the Local Government Act and Robson J held that the term “building” in the order was not confined to buildings and structures “erected” on the land.

The purpose of the order was to provide for the safe use of land such that the term building in that context should be given a meaning that included the swimming pool and did not require that the swimming pool be “erected” on the land. Accordingly, this case was distinguished from Hakea which did not concern a development control order.

Robson J construed the term building in a way which accorded with the purpose the legislation intended the provision to achieve, even if that approach trumped an “ordinary” interpretation of the term:

Interestingly, Robson J disagreed with the Council and held that, even though the swimming pool satisfied the three criteria in Royal Motor Yacht Club , including that it is permanent or immovable, these characteristics alone were not sufficient to make the pool a structure, let alone a building.

Require further assistance?

Whether an object is a building or structure (and therefore require approval) is often a matter of fact and degree.

We have assisted many clients with issues relating to the determination of structures and buildings on their land. In many instances, the structures in question were emplaced on the land on an understanding that development consent was not required. Local councils often take a different view which can lead to confusion on both sides. Often resolution of the issues can be a simple matter of engaging in constructive consultation with the relevant local council, or alternatively, bringing the matter before the Court for determination.

If you require advice regarding buildings or structures on your land, or you wish to appeal against a determination of the issue by your local council, we can assist you in this process.

How to read and interpret local environmental plans

mevans@whiteacre.com.au (Mark Evans) — Thu, 23 May 2024 23:00:00 GMT

How to read and interpret local environmental plans

This article explores the principles of statutory interpretation, specifically how to read and interpret local environment plans ( LEPs ).

Statutory interpretation of LEPs

The normal rules of interpretation apply to LEPs in very much the same way as they apply to legislation.

LEPs are not legislation, they are not passed by parliament but are made under delegated authority.

Nonetheless, as a species of delegated legislation, LEPs are interpreted in accordance with the general principles of statutory interpretation, looking at the language, policy, intention and purpose of all the instrument’s provisions: Cranbrook school v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36] per McColl JA (with Beazley JA agreeing); Elimatta Pty Ltd v Read [2021] NSWLEC 75 at [44] per Robson J.

Interpretation should promote the objects of the legislation

An interpretation that promotes the objects underlying the provisions of the LEP is to be preferred.

The Interpretation Act 1987 , section 33 provides:

“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose of object underlying the Act or statutory rule (whether or not, that purpose or object is expressly stated in the Act of statutory rule or, in the case of statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

A good example in an LEP would be the objectives of zonings under a land use table. An interpretation of the LEP regarding what is permissible in that zone that would promote the objectives of the zone, is to be preferred.

Context is important

Where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42].

But not always. A literal reading that produces an improbable or even absurd outcome is to be avoided. Context is important.

Clauses in an LEP should not be read in isolation but in the broader context of both nearby provisions and the objectives of the LEP.

In The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35, Kiefel CJ and Keane J at [32] held:

“The method to be applied in construing a statute of ascertaining the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words or a provision, even if the result is improbable1 has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is completed.2 This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.”

1 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“the Engineers’ Case”) (1920) 28 CLR 129 at 62 per Higgins J; [1920] HCA 54.

2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [691]; [1998] HCA 28.

While the exercise commences with the consideration of the words of the provision itself, it requires at the outset, consideration of the context in which the provision was enacted. Kiefel CJ and Keane J, at [33] said:

“Consideration of the context of for the provision is undertaken at the first stage of the process of the construction.3 Context is to be understood in this widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 4 “Mischief” is an old expression.5 It may be understood to refer to a state of affairs which to be date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. 6 The mischief may point most clearly to what it is that the statute seeks to achieve.”

What is the purpose of the clause? What is it seeking to achieve?

Finally, the text should be read both in the context of the surrounding provisions and by reference to the “mischief” to which the provision is directed.

An example in an LEP might be minimum lot size controls. What is the “mischief” the LEP seeks to remedy by imposing minimum lot sizes? Perhaps it is to prevent fragmentation of land or to impose a minimum standard the local authority and population feel is suitable for that area, or both. It follows that an interpretation that aligns with the mischief the controls are aimed at addressing will be preferred.

Sydney Seaplanes

In Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204, Bell P (with Leeming JA and Emmett AJA agreeing) helpfully summarised the principles of statutory interpretation: at [26]-[41]. Those principles may be summarised as follows (omitting citations):

(a) The literal meaning of words in a statute will not always correspond to their legal meaning and it is axiomatic that questions of statutory construction cannot be resolved merely by resort to the literal meaning of statutory language: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (Project Blue Sky)); Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298 at [77] (Park Trent).

(b) The modern approach to statutory interpretation “insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise”: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48.

(c) More recent statements to the effect that the process of the statutory interpretation must start and end with a consideration of text to the statute were not intended to and did not demote or relegate the importance of context in the process of statutory interpretation: Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [13]–[15].

(d) “Context” is to be understood in the broad sense and not confined to the immediate context supplied by other provisions in the statute of which one or more provisions are subject of the immediate inquiry of the Court. Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy.

(e) The purpose of the statute may also be expressed with such generality that is not a useful or completely satisfactory guide to a Court seeking to construe a particular statutory provision. On the other hand, the nature and context of the particular statute’s enactment may reveal its purpose.

(f) The purpose of a statute of statutory provision, or the “mischief” which a statute is intended to address, may sometimes also be identified in an explanatory memorandum to a parliamentary bill or in the second reading speech although these sources of potential enlightenment, particularly the explanatory memorandum, are frequently of limited utility in this regard, often being little more than summaries of paraphrases of provisions of the bill. Although, the occasions when such assistance will in fact be given have been said to be “rare” they nevertheless sometimes present themselves: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 605; [2011] HCA 10 at [86].

(g) Section 34(1) of the Interpretation Act 1987 appears to constrain the use of extrinsic materials such as explanatory memoranda and second reading speeches in the identification of statutory purpose and only permit recourse to them either to confirm the “ordinary meaning” of a statutory provision or in cases of ambiguity or obscurity or where giving effect to the ordinary meaning would lead “to a result that is manifestly absurd or in unreasonable”. However, the modern common law of statutory interpretation permits recourse to such extrinsic materials in the absence of ambiguity and has, perhaps somewhat surprisingly, been held to authorise such use even in circumstances where that use would not be permitted under the Acts Interpretation Act and, by parity of reasoning, the Interpretation Act: see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; [1997] HCA 53.

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority in (1998) 194 CLR 355 at 381 [69].
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
Heydon's Case (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638].
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] AC 591 at 614; Wacal Development Pty Ltd v Realty Development Pty Ltd (1978) 140 CLR 503 at 509; [1978] HCA 30; Wacando v The Commonwealth (1981) 148 CLR at 171; [1981] HCA 60.
Alcan (NT) Alumina Pty Ltd The Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47].
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321; [1981] HCA 26.Interpretation Act 1987 (NSW), s 33.

Key Takeaways

LEPs are interpreted in accordance with the general principles of statutory interpretation.
The process of interpretation starts with a consideration of the words of the clause itself, but it does not end there.
Where words are plain and unambiguous, they should be given their ordinary and grammatical meaning.
However a literal reading of the clause that leads to an improbable or absurd result is to be avoided.
Consideration of the context of the provision is undertaken at the first stage of the process of the construction, not simply when ambiguity arises.
Context is understood by the surrounding provision of the text in question but also the purpose of the legislation in question.
Recourse may be had to extrinsic materials to aid in interpretation, even in the absence of ambiguity.

The process of reading and understanding LEPs can be difficult and reasonable minds may differ on how a provision is to be interpreted.

If you have a project that may be impacted by a particular provision or you just need advice on how a particular provision should be interpreted, we can assist.

Stormwater discharge, surface runoff and the law of nuisance

mevans@whiteacre.com.au (Mark Evans) — Thu, 09 May 2024 06:15:41 GMT

This article discusses the rights of landowners regarding surface runoff and the discharge of stormwater between properties. Specifically, this article is concerned with the rights and obligations of landowners to discharge stormwater from their land and to receive natural surface runoff.

General Principles
Generally speaking, a landowner is not liable for the natural surface runoff across their land. That position changes when a landowner alters the natural contours of their land, collects or concentrates the surface runoff or redirects and discharges the surface runoff into another person’s land.

A landowner also has a natural right to allow water to pass through a watercourse on their land into neighbouring land. The landowner may not hoard the water on their land, nor may a neighbour block the watercourse thereby flooding lands upstream. These general rules are described in greater detail below, first with regard to common law riparian rights and then with regard to surface runoff and the tort of nuisance.

Common law riparian rights and natural watercourses

Natural waterways, creeks and rivers in Australia are subject to legislation which takes precedence over the common law. For example, water sources in New South Wales including the collection and taking of water from rivers and creeks are generally managed through the Water Management Act 2000.

It is still important to understand the common law position regarding water flowing through one’s land, particularly as it relates to surface runoff and discharge into a watercourse or depression in the land.

Common law position

An owner of land is obliged to accept, and is entitled to have, water pass through a watercourse on their property. This is known as the common law rights of riparian owners in respect of natural watercourses, described by Windeyer J in Gartner v Kidman [1962] 108 CLR 12 ( Gartner v Kidman ) at (p 24).

“[7] By the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water past his land. He cannot either deprive those lower down the stream of its flow nor pen it back upon the lands of his neighbour higher up. These rights and obligations do not depend on prescription or grant. They are proprietary in character, natural incidents of the ownership or lawful possession of the land abutting on the stream: Mason v. Hill (1833) 5 B &Ad 1 (110 ER 692); Wood v. Waud (1849) 3 Exch 748, at p 774 (154 ER 1047, at p 1058); Chasemore v. Richards (1859) 7 HLC 349 (11 ER 140), per Lord Wensleydale (1859) 7 HLC, at p 382 (11 ER, at p 153). They do not depend upon the ownership of the bed of the stream, but of its banks: Lord v. Commissioners of Sydney (1859) 12 Moo PC 473 (14 ER 991); Lyon v. Fishmongers Co . (1876) 1 App Cas 662, per Lord Selborne (1876) 1 App Cas, at p 683 . They are thus called riparian rights. It is unnecessary to multiply references to cases in which these rules of the common law have been enunciated and followed in Australia. It is enough to refer to H. Jones & Co. Pty. Ltd. v. Kingborough Corporation (1950) 82 CLR 282, in this Court, and especially to the judgement of Fullagar J.”

This is a simple proposition when considering a river with well defined banks. The situation is more complicated where the watercourse may be intermittent or where the banks are less well defined.

The distinction between a watercourse and a depression was considered by Hood J. in Lyons v. Winter (1899) 25 VLR 464, who, in that case, held that a depression which took rain water for about three months of a year fell short of the legal definition of a natural watercourse:

"to constitute such a watercourse, as a matter of law, there must be a stream of water flowing in a defined channel or between something in the nature of banks. The stream may be very small, and need not always run, nor need the banks be clearly or sharply defined. But there must be a course, marked on earth by visible signs, along which water usually flows, in order to constitute a watercourse such as creates riparian rights" per Hood J at p465.

Artificial watercourses

The common law rights of riparian owners in respect of natural watercourses (above) do not apply to artificial watercourses. Specifically, a landowner has no natural riparian right to construct a watercourse and drain water through a neighbour’s land. Equally, an owner of neighbouring land has no obligation to accept water onto its land from an artificial watercourse: Gartner v Kidman at per Windeyer J at (p 24).

“The position of an artificial watercourse, that is a water channel constructed by man as distinct from a natural stream, is entirely different. Generally speaking the owner of land through which an artificial watercourse runs may block or divert it at his will, unless some easement over it has been acquired by grant or prescription.”

Summary

In summary a landowner has both an obligation to permit water to flow through a natural watercourse on their land and a right to have water flow through that natural watercourse.

However, those natural riparian rights do not apply to artificial watercourses. In those cases, permission from neighbouring landowners or rights such as easements over neighbouring land are required.

Natural surface runoff

As a general rule, an owner of higher land may allow surface water (runoff) to drain naturally onto lower land: Gartner v Kidman (1962) 108 CLR 12; Palmer v Bowman [2000] 1 WLR 842 (CA).

This right to drain surface runoff is limited and does not extend to:

a. water that has fallen naturally onto the higher ground but has been artificially accumulated: Baird v Williamson (1863) 15 CBNS 376; 143 ER 831; or

b. water that has been artificially channelled from the higher land onto the lower land: Hurdman v North Eastern Railway Co (1878) 3 CPD 168.

An owner of higher land must obtain permission to discharge concentrated flows onto lower land or must obtain rights to do so via an easement: Baily & Co. v Clark, Son & Morland (1902) 1 Ch 649 per Vaughan Williams L.J. at pp 663, 664; Rameshur Pershad Narain Singh v. Koonj Behari Pattuk (1878) LR 4 AC 121 per Sir Montague Smith at p26; Gartner v Kidman per Windeyer J at (p24).

Even though there is no action against the owner of the higher land with respect to natural, surface runoff, the owner of the lower land is not bound to receive that surface runoff: Gartner v Kidman per Windeyer J at (p 49).

An owner of lower land can, in some cases, erect barriers to hold back water from higher land, provided the owner of the lower land uses reasonable care and skill and does no more than is necessary to reasonably protect the lower land: Gartner v Kidman ; Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339.

Whether the owner of the lower land has used reasonable care and skill and does no more than is necessary to reasonably protect the lower land will be a matter of fact and degree and depend largely on the circumstances of each case: G artner v Kidman per Windeyer J at (p 49). There is an important caveat to this principle. The owner of the lower land must not act for the purpose of injuring their neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case will depend very much upon its own circumstances and often involve nuanced matters of fact and degree.

The unlawful discharge of stormwater onto neighbouring land could be a nuisance if it constitutes an unreasonable interference with the use and enjoyment of that land.

Common law tort of nuisance

The legal wrong of nuisance is an unreasonable interference with the use and enjoyment of land: an “invasion of the common law rights of an owner or occupier of land”: Hargrave v Goldman (1963) 110 CLR 40 per Windeyer J at [60].

Discharge of water onto land could be a nuisance if it constitutes an unreasonable interference with the use and enjoyment of the land. The nuisance would be the discharge onto the land, and each occasion on which there was a discharge would, if the respondent was liable, be a separate legal wrong: Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 per Giles JA at [23].

The law of private nuisance seeks to balance the interests of one land owner using their land as they see fit, and the interests of another land owner, whose use and enjoyment of their own land is interfered with because of the other’s actions: Bayliss v Lea (1961) 62 SR (NSW) 521 at 529 (Owen J, Ferguson J concurring), citing Ian Fleming, The Law of Torts (2nd ed, 1961, Clarendon Press) at 400–401.

To establish private nuisance, the state of affairs must amount to or involve a material and unreasonable interference with a landowner’s use and enjoyment of their land: Brown v Tasmania (2017) 261 CLR 328 at [385] (Gordon J); Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 ( Gales Holdings ) per Emmett JA at [138] (Emmett JA, Leeming JA and Sackville AJA agreeing). A material and unreasonable interference can include both physical damage to property and non-physical damage: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [167] (Ward J).

The question whether an interference is material and unreasonable requires the Court to make a value judgment in the circumstances: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [119] (McLure P, Buss JA agreeing). In making this judgment, regard must be had to "plain, sober and simple notions among ordinary people", as well as to "the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect": Gales Holdings per Emmett JA at [138]. In this respect, allowances must also be given for a certain amount of “give and take” between neighbours: Gales Holdings per Emmett JA at [138].

Nuisance must be created or adopted

Liability for private nuisance is established if the defendant created, adopted or continued the state of affairs which constitutes the nuisance, unless the defendant's conduct involved "no more than the reasonable and convenient use of its own land": Gales Holdings per Emmett JA at [138]. The “reasonable and convenient” user defence has been variously described in terms of whether the defendant's conduct was necessary for the common and ordinary use of the land or a natural use of land: Gartner v Kidman.

The proper question to ask to determine whether a particular use is reasonable and convenient is whether the use "is reasonable according to the ordinary uses of mankind living in society, or more correctly in a particular society": Elston v Dore (1982) 149 CLR 480 at 488 (Gibbs CJ, Wilson and Brennan JJ) (Elston) citing Sedleigh Denfield v O'Callaghan [1940] AC 880 at 903-904 (Wright L).

Damage was reasonably foreseeable

Foreseeability is an important principle limiting liability in both negligence and nuisance. Liability for the tort of nuisance arises only for losses arising from a failure to address risks that a reasonable person would recognise as needing to be addressed: Gales Holdings per Emmett JA at [142].

It is not sufficient to show that the loss suffered is the direct result of nuisance. It must also be shown that the loss was, in the relevant sense, foreseeable: Gales Holdings per Emmett JA at [144].

In recent cases regarding natural surface runoff, the matter of foreseeability did not arise directly, perhaps reflects an understanding that it is necessarily foreseeable that water might flow into and harm a neighbouring property in circumstances where it is brought to or concentrated upon land: Owners Corp SP 46510 v Tan [2020] NSWSC 1564 per Robb J at [63].

Case Law

Gartner v Kidman [1962] 108 CLR 12 ( Gartner v Kidman )

Facts

There was a large swamp on Kidman’s land. Predecessors in title constructed a channel to facilitate drainage from the swamp into a sand pit (and, via a “runaway hole” into underground channels where the water disappears) on Gartner’s land. The channel included part of a sand pit of some commercial value to Gartner. Gartner installed a series of sand banks to block the channel and prevent water draining from Kidman’s land into the sand pit on Gartner’s land. Kidman claimed an injunction against Gartner requiring him to remove the sandbanks and restraining him from obstructing the free passage of water along the channel.

Decision

In Gartner v Kidman , the High Court set out fundamental propositions with respect to the flow of natural surface runoff across higher land onto lower land. The Court held in this case that, absent a natural watercourse or easement, the owner of lower lying land was not obliged to receive natural surface runoff that had been concentrated into an artificial watercourse and could take reasonable steps to prevent inundation of its land.

Corbett v Pallas (1995) 86 LGERA 312 ( Corbett v Pallas )

Facts

The owner of higher land (Mrs Corbett) commenced construction of a swimming pool on her land. Part of the land was excavated and the external shell of a pool was installed. Following a period of heavy rain, water flowed from Mrs Corbett's property into the land and house of her neighbour Mr Pallas. Mr Pallas, following expert advice, constructed a new retaining wall between his and Mrs Corbett's land and brought proceedings in the District Court for reimbursement of the cost. The District Court held that Mrs Corbett should bear the cost of the retaining wall and rectification works.

Mrs Corbett appealed to the Court of Appeal.

Decision

Priestley JA, (with whom Mahoney and Meagher JJA agreed), upheld the finding that the installation of the swimming pool had caused flooding of Mr Pallas's land, particularly as Mrs Corbett had taken no measures to alter the drainage of water from her land.

Having regard to previous decisions, in particular Gartner v Kidman, Priestley JA outlined the legal rules applicable in determining when a landowner may be liable for nuisance caused by water at [316]-[317]:

“I do not think it necessary for present purposes to retrace the ground covered by Windeyer J and Burbury CJ. I simply rely on the reasons given in the three decisions for the following propositions, the first four of which adapt what Burbury CJ said in Kraemers (at 118) and the fifth what Windeyer J said in Gartner (at 48):

“1. Where the nuisance alleged is damage caused by water entering the plaintiff's land it is sufficient in order to establish a prima facie case for the plaintiff to allege and prove that material damage to his property has resulted from an increase in the flow or percolation of surface water due to the defendant's act in altering the conformation of land in the course of the defendant's use of it.

2. It is not for the plaintiff to allege or prove unnatural or unreasonable use of the land by the defendant.

3. So far as the conformation of the land is altered in the course of some specific use which may avoid liability, the burden of proof is on the defendant to allege and establish it as a distinct defence.

4. Unreasonable use is not an ingredient of the cause of action but certain types of user may amount to a “natural” and reasonable user of the land and afford a defence.

5. Whether a particular user of land is “natural” must be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased.”

Key Takeways

An owner of land who instals a swimming pool causing an increase in water runoff into a neighbour’s land or who alters the runoff into a neighbour’s land will likely be found to have committed a nuisance against their neighbour.

It is sufficient in order to establish a prima facie case for a person to show that material damage has occurred to their land as a result of an increase in the flow or percolation of surface water due to their neighbour’s act in altering the levels of their land.

Once a prima facie case is established, the burden of proof shifts to the defendant to demonstrate that their use of their land is a natural and reasonable use of their land.

Whether a particular use of land is “natural” must be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased.

Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 ( Melaleuca Estate )

Facts

Prior to Melaleuca Estate Pty Ltd buying the lower land, the Council approved a residential subdivision nearby and carried out road drainage works including a pipe system of two stormwater pipes, one of which intruded into and discharged onto a wetland area on Melaleuca Estate’s land.

At the time the road drainage works were carried out, the Council told the (then) owner of the land (Mrs Coventry) that it would construct pollution control basins, and would not use the new pipeline until a satisfactory solution had been implemented. Pollution control basins were not constructed and the pipeline was put into use even though a solution had not been implemented resulting in stormwater, nutrients and other substances flowing into the lower land.

Held

Giles JA, (McColl JA and Hunt AJA agreeing) found that the Council was negligent and liable for the nuisance of directing the stormwater onto the land. The Court held that, in the circumstances, Council were not able to rely on statutory defences under the Local Government Act 1919 (ss 241 and 733). Per Giles JA at [61]:

“There was signal disregard of the rights of the owner of the land, first Mrs Coventry and later the appellant.”

Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514 ( Gales Holdings )

Facts

In Gales Holdings , the Council had, through a number of various development consents and Council stormwater works, redirected stormwater that historically travelled through channels over Gales’ land and from thence into the Tweed River. The result of these actions was the alteration of stormwater flows and consequent ponding of water on Gales’ land and the formation of habitat conducive to the presence of Wallum froglets (a threatened species) on the land.

Held

The NSW Court of Appeal, Emmett JA (with whom Leeming JA and Sackville AJA agreed) held that the Council was guilty of nuisance by channelling large volumes of stormwater runoff onto the lower land. The stormwater runoff pooled and collected creating a stormwater retention basin, marshlands and ecology on the land conducive to the establishment of the Wallum froglet (a threatened species). As a result, the development potential of the land was reduced and the land diminished in value. The Court of Appeal stopped short of awarding Gales Holdings Pty Ltd damages for the diminution of value, finding that the establishment of a frog colony on the land was not reasonably foreseeable as consequence of the redirection of natural surface runoff.

Owners Corp SP 46510 v Tan [2020] NSWSC 1564 ( Owners Corp v Tan )

Facts

The Owners Corporation is the owner of a shopping centre on Glebe Point Road in Glebe. Mr Tan owned a building and land adjacent to the shopping centre. A laneway (Campbell Lane) runs along the back of both properties, parallel with Glebe Point Road. The shopping centre has an underground carpark which was accessed from Campbell Lane.

When the shopping centre was constructed, Mr Tan’s property was relatively impervious to rainwater because it was covered by a concrete driveway and pavers. Around 90% of the surface water runoff naturally flowed to Campbell Lane.

In 2015 Mr Tan removed the concrete and pavers and excavated the soil, revealing part of the Owners Corporation basement wall near the boundary. The land stayed in an unfinished state for some time, resulting in surface water pooling on Mr Tan’s land and running into the Owners Corporation’s basement.

The Owners Corporation brought a claim of nuisance against Mr Tan for the increase in the flow of surface runoff into the Owners Corporation’s basement.

Mr Tan argued that the works merely returned the rear of the land to its natural state prior to the concreting and driveway works and that his excavation of his land was a reasonable use of his land.

Mr Tan submitted that he had no obligation to maintain a dish drain along the boundary between the properties and that the Owners Corporation had not established what the natural flow of the surface waters would have been prior to him carrying out the works.

Held

Robb J in the Supreme Court of NSW held that Mr Tan had committed a nuisance against the Owners Corp by excavating the rear of his land, altering the surface levels and causing surface water to pool and ultimately escape into the Owners Corp’s basement. Interestingly, Robb J held that nuisance may not have been found if Mr Tan had carried out the works expeditiously and remediated the land as part of his development works. In the circumstances, Mr Tan did not do so, leaving the rear yard in an unfinished state for up to 5 years, which could not be said to have been a “reasonable use” of his land.

Require further assistance?

We have assisted many clients resolve issues with surface runoff being directed into and impacting their land and undermining retaining walls and buildings. Some of those cases involved neighbours unlawfully altering the levels of their land and stormwater discharge, others involved local authorities deliberately redirecting stormwater into private land.

If you require advice regarding surface runoff or stormwater discharge, we can assist you in this process.

Disclaimer

The contents of this article are a general guide and intended for educational purposes only.

Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Substantial interference with easements

Thu, 02 May 2024 23:00:00 GMT

This article discusses substantial interference with an easement and recent consideration of this issue by the NSW Supreme Court.

Rights under an easement are limited

To understand whether interference with an easement might be actionable we need to proceed from the following premise. Although the terms of an easement are usually wide in scope (for example “a right to pass and repass at all times and for all purposes”), an easement should be limited to that which is reasonably necessary for the effective and reasonable enjoyment of the easement: Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528.

Interference with an easement is not actionable unless it is “substantial” or “material”: Powell v Langdon (1944) 45 SR (NSW) 136 at 139; Lehane v Jones (1982) NSW Conv R 55-079 at 56,470; Cogente Pty Ltd v Doe (1998) 8 BPR 15,885 at 15,890; Platt v Ciriello [1988] 2 Qd R 417 at 433-435. Whether interference is “substantial” or “material” will depend on the terms of the easement and the circumstances of each case.

Much depends on the circumstances of each case

A lot depends on the circumstances of each case and often involves considerations of fact and degree. For example, in some circumstances installing a gate across an easement may substantially interfere with it’s use while in others installing a gate, locking the gate and giving everyone a key will not.

The following case law gives useful guidance on how the NSW Supreme Court has recently dealt with these issues.

We will use the terms of “burdened land” (servient tenement) and “benefited land” (dominant tenement”) below, when describing the respective land tenements.

Trewin v Felton

In Trewin v Felton [2007] NSWSC 851 ( Trewin v Felton ), Brereton J held that it was not an actionable nuisance for the owner of the burdened land to install a fence and gates along the sides of a right of carriageway and it was permissible to restrict access to the benefited land to discrete points along the easement site and site boundaries.

In Trewin v Felton , the owner of the burdened land constructed a fence along part of an access corridor and proposed to allow access through a 3-metre gate at some point along that fence. The owner of the benefited land removed the fence and the owner of the burdened land sued for damages and reinstatement of the fence.

The owner of the burdened land then constructed substantial brick gate posts, the effect of those gate posts was to reduce the width of the access corridor at that point to 3 metres to the benefited land.

Brereton J held at [19] that:

1. the owner of the burdened land is entitled to instal a fence along the boundary to secure its property;

2. the owner of the benefited land is entitled to reasonable use of the right of way through gates at such points in that fence as to meet its reasonable requirements; and

3. the owner of the benefited land may have access through gates at a number of places and may determine from time to time the points of access, which may vary over the years; but

4. the owner of the benefited land is not entitled to have the entire easement site remain unfenced.

Brereton J at [36] said:

“These authorities establish that, ordinarily, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the servient owner is entitled to fence the right of way, provided that sufficient points of access through gates are allowed to permit reasonable user of the right of way; that the dominant owner is not entitled to have the right of way remain unfenced; and that the dominant owner is not limited to a single point of access and does not irrevocably elect to use only one point of access by initially determining to do so, but may from time to time vary the points at which access is exercised to and from the right of way. Further, the servient owner may gate the right of way, provided that the gate does not unreasonably obstruct user of the right of way.”

Dudley v Ainsworth

Trewin v Felton was applied recently in Dudley v Ainsworth [2021] NSWSC 1478 at [28] ( Dudley v Ainsworth ).

In Dudley v Ainsworth , the owner of the burdened land built a fence (and associated landscaping and drainage works) along the boundary between the two properties, for approximately the whole length of the easement site save for a gap of about 7.4m wide. The gap was situated roughly opposite a carport located on the benefited land and was provided to allow the owner of the benefited land to drive down the easement site and turn into a carport.

The owner of the benefited land complained that the fence and associated works amounted to a substantial interference with his reasonable use of the easement, in circumstances where there had previously been no fence along the boundary between the two properties in the easement area. The owner of the benefited land owned a bus and other large vehicles and the practical effect of the fence meant that he would no longer be able to turn those vehicles into a large shed from the driveway/easement site.

The owners of the burdened land denied that the fence amounted to a substantial interference with the use of the right of carriageway. The owners of the burdened land asserted that there was no substantial interference as the 7.4m gap in the fence afforded adequate access.

His Honour Darke J at [36] held that the relatively large size and rural nature of the land in question and the 8.609m width of the right of carriageway suggested that the right of carriageway was intended to facilitate access to and from the dominant tenement using vehicles of various types, including large vehicles and items of machinery.

His Honour at [40] found that the fence did interfere with the benefited landowner’s reasonable use of the right of way by denying sufficient points of access through gates because the fence:

a. denied access at the southern end of the easement; and

b. denied access opposite the roller door entrances to the large shed to facilitate vehicular access to and from the large shed.

The absence of gates and sufficient gaps in the fence impeded or restricted the ability of the owner of the benefited land from moving large vehicles between the easement area and the area near his house.

Accordingly, His Honour held at [44]:

“In summary, the defendants are entitled to fence their property along the boundary in the easement area, but not so as to deny points of access at the southern end of the easement and opposite the roller doors to the large shed. Had the defendants installed functioning gates and traversable gateways at those points, there would have been no actionable nuisance by obstructing the plaintiff’s enjoyment of the easement. There would have been sufficient points of access. However, the placing of fencing across those points, and the planting of small shrubs or trees there, amounts to a real substantial interference with the enjoyment of the easement so as to constitute an actionable nuisance.”

The owners of the burdened land were ordered to modify the existing fence to either leave those points of access open or have gates installed at those points to facilitate access.

Castle v Achdjian

In Castle v Achdjian [2022] NSWSC 1340 ( Castle v Achdijian ) Darke J held that a back fence separating two properties constituted a real substantial interference and ought to be removed.

In Castle v Achdijian , the right of carriageway was blocked for many years by a back fence (with no gates) across the rear of two properties. No driveway or pathway was ever constructed upon the right of way or over the burdened land. The owners of the benefited land made occasional use of the right of carriageway to obtain “rear access” to a street to the rear (by foot) but had their own driveway access and frontage to another street. The fence in question operated as a “back fence” and entirely blocked use of the right of carriageway by the owner of the benefited land.

Darke J held at [81] that it was clear that the fences that traversed the right of carriageway amounted to obstructions that constituted a real substantial interference with the enjoyment of the right of carriageway and thus amounted to actionable nuisances.

Accordingly, His Honour made orders that the fences be removed.

Conclusion

The terms of an easement may be broad but will be limited to that which reasonably necessary for the effective and reasonable enjoyment of the easement.

Interference with an easement is not actionable unless it is substantial or material.

What is considered “substantial” or “material” will largely depend on the facts of each case.

The owner of burdened land is entitled to install a fence along the boundary to secure its property.

The owner of benefited land is entitled to reasonable use of an easement. If the easement is a right of way, the owner of the benefited land is entitled to access through gates at a number of places and may determine from time to time the points of access.

While simple in theory, easements often raise complex questions of interpretation. Answers to these questions are not always straightforward and will depend heavily on the circumstances of each use.

If you wish to discuss this blog or have any questions regarding easements or other property law related issues, please contact Mark Evans at www.whiteacre.com.au .

Court clarifies that Planning Agreements are not always necessary to dedicate land

Thu, 04 Apr 2024 22:00:00 GMT

Planning Agreements not always needed to dedicate land

Court clarifies that Planning Agreements not always needed to dedicate land

A recent decision by the NSW Land and Environment Court has confirmed that a planning agreement may not always be necessary to dedicate land to a local council.

This article explores the decision and provides insight into the potential pitfalls of entering into a planning agreement with Councils.

Previous position that land could only be dedicated through VPA

In L&G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 149, the developer proposed public benefits including dedication of a 2.4m footpath widening along the frontage of the site in connection with a development application.

If development consent was granted the developer would be required to enter into a Voluntary Planning Agreement ( VPA ) to deliver the public benefits. The developer appealed against the deemed refusal of the development application. That appeal was dismissed by the Commissioner.

The Applicant appealed against the Commissioner’s findings and contended that the Commissioner committed an error in concluding that the dedication of the land could only be affected via a VPA.

It was further argued that the Commissioner could have easily imposed a condition requiring a VPA in accordance with its Public Benefit Offer.

The local council maintained that the Environmental Planning and Assessment Act 1979 ( EPA Act) does not give the Court the power to impose a condition that would have the effect of accepting a dedication on Council’s behalf.

The Court held that the only way to give effect to the dedication of land was either by entering a VPA or by identifying the land under a contributions plan.

Challenges created by this decision

In our experience, developers may be well advised to avoid development consents that are contingent on entering into a VPA with Council.

All too often, the development consent is granted with a condition requiring that the developer enter into a VPA on the terms of a letter of offer. Like many things though, the devil is in the detail. Councils often use leverage to extract further, unreasonable terms from the developer to enter into the VPA, for example long-term maintenance “bonds”, security including caveats and bank guarantees over the subject land and indemnities in favour of Council. Despite granting the consent, we have heard more than one Council officer negotiating a VPA state that “Council is not bound to enter into the VPA”. In essence, if you want your development to proceed, take it or leave it.

Urban Apartments Pty Ltd ruling

The recent case of Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094 ( Urban Apartments ), a mixed use development was proposed within the Penrith central business district.

The developer also proposed community infrastructure in the form of dedication of land as a road adjacent to the western boundary of the site and creation of a right of public access and an easement for passive recreation over land to the east of the site.

It was argued again that a planning agreement is required in order to put legal arrangements in place for the community infrastructure by the developer.

The provision of community infrastructure was a pre-condition to the award of bonus floor space under the Sydney Local Environment Plan 2012.

The applicant submitted that a VPA was not required for the land dedication under the relevant terms as it is intrinsic to the development application.

The applicant in this care however, relied upon the provisions of s 9 of the Road Act 1993 which relevantly provides:

Public road created by registration of plan

(1) A person may open a public road by causing a plan of subdivision or other plan that bears a statement of intention to dedicate specified land as a public road (including a temporary public road) to be registered in the office of the Registrar-General.

(2) On registration of the plan, the land is dedicated as a public road.

Accordingly, the Court accepted this position given that the area of land and the mechanism by which the dedication is to be effected has been sufficiently identified, for which no condition of consent is required.

Comparing this to the L & G Management case, the Applicant does not rely upon a condition of consent for the dedication of land, but on the provisions of the Roads Act which provides for the opening of a road by registration of a plan of subdivision.

Conclusion

It has now been clearly established that land can be effectively dedicated as long as there is a plan of subdivision that bears a statement of intention to dedicate the specified land as a public road to be registered in the office of the Registrar-General, and that, it is dedicated as a public road upon registration of that plan of subdivision.

Urban Apartment clarifies the position that, in some circumstances a VPA may not be necessary to dedicate land to a local council. Developers would be well advised to consider whether a VPA is the best option for the delivery of community infrastructure or, whether a VPA may not be necessary.

What is Qualified Title? What is Limited Title? How do you remove cautions from the title to your land?

mevans@whiteacre.com.au (Mark Evans) — Thu, 28 Mar 2024 21:30:00 GMT

If the title to your land is either qualified title, or limited title, or both, you may not be able to carry out development on your land, particularly by way of subdivision.

This article describes what qualified title is, what limited title is and what you can do about it.

What is qualified title?

Before the introduction of Torrens title in NSW, all land was either Crown land or Old System land. Old System was a cumbersome system in which you had to show an unbroken chain of ownership all the way back to the original grant before you could transfer ownership of Old System land. The Torrens title introduction of the Torrens Register changed all this.

When Old System title is converted into Torrens title (either by registration of a deed or a plan) and recorded on the Torrens Register, sometimes the Registrar General will record a “Caution” on the title.

All Qualified titles carry a caution notification in the Second Schedule pursuant to s28J(1), s28J(1A), or s28J(1B) Real Property Act 1900 warning any person having an interest in or dealing with the land that subsisting interests not recorded on the Qualified folio of the Register may exist. The type of caution depends on the circumstances of conversion and has no affect on dealings lodged.

This means that there may be unregistered interests in the land that may not show up on the title, for example an unregistered easement or lease.

A caution can be removed from the title, hence converting the qualified title into a full Torrens title in a number of methods. The method chosen will depend on how long you have owned the land.

What is limited title?

Where the boundaries of Old System land are not properly defined, the Real Property Act 1900 allows for conversion from Old System title to a Limited folio of the Torrens Register. A Limited folio may be created and a notification is recorded in the Second Schedule of the folio of the Register:

where the title is also Qualified:

'Limited Title. Limitation pursuant to s28T(4) of the Real Property Act 1900 . The Boundaries Of The Land Comprised Herein Have Not Been Investigated By The Registrar General' or

where the title is not Qualified:

'Limited Title. Limitation pursuant to s28T(1A) of the Real Property Act 1900 . The Boundaries Of The Land Comprised Herein Are Not Sufficiently Defined To Enable The Creation Of An Ordinary Folio Of The Register'.

The limitation has no effect on the registration of dealings and may be removed by lodgment of a plan of survey.

Note A folio may be both Limited and Qualified.

Require further assistance?

We have assisted many landowners remove this caution from the title to their land. If you require advice or assistance with qualified title or limited title, we can help you understand the limitations on your title and provide advice about what you can do about it.

Introduction to the Biodiversity Offsets Scheme for Landowners

Thu, 21 Mar 2024 22:00:00 GMT

An introduction to the NSW Biodiversity Offsets Scheme for landowners

If you own a rural property you may have heard something about "biobanking" or "biodiversity stewardship sites". Equally, you might just be wondering why the government would pay you good money for native scrub suitable for raising goats, feral pigs and not much else… What's the catch? What's required? How can you, as a landowner benefit?

The NSW Office of Environment and Heritage (OEH) has a pretty good overview of the scheme available at:

https://www.environment.nsw.gov.au/topics/animals-and-plants/biodiversity-offsets-scheme/about
https://www.environment.nsw.gov.au/topics/animals-and-plants/biodiversity

New changes in the law

The Biodiversity Conservation Act 2016 ( BC Act ) and accompanying regulations commenced in August 2017.

The BC Act introduces a Biodiversity Offset Scheme (BOS) which replaces the old biobanking scheme. In a nutshell, the BOS is designed to create a system for the creation and sale of biodiversity credits by landowners to those impacting the environment.

One of the main aims of the BOS is to establish and encourage an open market between those impacting biodiversity values (usually developers) and those managing and protecting biodiversity values in areas nearby (usually landowners).

How can this benefit you?

There can be significant benefits in establishing a Site on your land.

The areas of your land that contain threatened species or areas of biodiversity value are likely to be heavily vegetated and probably not suitable for grazing. Additionally, establishing a Site on your land can, if done properly and in the right areas, prove to be lucrative. Your accredited assessor can give you an idea of the likely number of credits generated by your Site and the potential return in doing so.

How to establish a Site and selling credits

Determine whether you are eligible.
Get an accredited assessor to draft a report and calculate Credits.
Enter into a biodiversity stewardship agreement (Agreement) with the Biodiversity Conservation Trust (Trust).
Sell your Credits.
Receive annual payments and manage the biodiversity stewardship site (Site).

Who needs Credits?

Developers, mining companies, government departments (and in some cases the Biodiversity Conservation Trust) need biodiversity credits (Credits) to offset the impact of developments on the environment.

How do you generate Credits?

Landowners generate Credits by setting aside and managing tracts of their land and entering into a biodiversity stewardship agreement. In return, they receive classes of Credits which can be publicly traded through the OEH register.

Step One – The land must meet certain eligibility criteria

Among other things, (like not already being a reserve or already subject to conservation measures) your land must contain threatened species or areas of biodiversity value to be considered for a Site. Usually, this can be answered quickly through a report by an accredited assessor. You will also need to pass a 'fit and proper' person test if you choose to go ahead and establish a Site.

Step Two – Establishing the Site

If you want to test the waters, you may lodge an expression of interest on the Office of Environment and Heritage's (OEH) "expression of interest register" to identify potential purchasers of Credits, before you proceed with making a formal application.

If you proceed with a formal application, you will need to get an accredited assessor to prepare a biodiversity stewardship site assessment report (Stewardship Report).

Once your assessor has prepared the Stewardship Report, you submit an application including the Stewardship report to the Biodiversity Conservation Trust (the Trust) via the Biodiversity Offsets and Agreement Management System (BOAMS), together with applicable fees.

Step Three – Assessment by the Trust

The Trust will assess your application against relevant legal and technical requirements and agree on the terms of the BSA. This is not a quick process and registration of the BSA on title is a legal obligation that will remain over the property title forever.

The Agreement will include a management plan that sets out proposed management actions and the cost of those actions over a determined period, (usually 20 years but can be longer or shorter). The Agreement will also determine the ongoing maintenance costs.

Once the BSA is agreed and entered into by the Trust and the landholder, the agreement and credits will be registered on OEH’s registers .

Step Four – Sell the credits, manage the Site

By establishing a Site, you effectively receive two streams of income:

1. the Stewardship Report will calculate a deposit you must make into the Biodiversity Stewardship Payments Fund (Payments Fund) for ongoing management of the Site (Deposit). The Payments Fund then pays you scheduled management payments from the Deposit over the number of years determined in the Stewardship Report and by the Fund; and

2. any profit you make from selling Credits above and beyond the payments you need to make into the Payments Fund.

Buying credits – what happens next?

In most cases, the Credit will be transferred by the credit holder to the developer on settlement of the purchase. The purchaser of a Credit must apply in writing to the OEH to retire the Credit.

Caution here - the OEH can refuse an application to retire a Credit for a number of reasons. Most importantly if the OEH becomes aware that you have not made the required payment into the Payments Fund, it will refuse to register the transfer of the Credit.

This area of law is new and rapidly evolving. Investigating and establishing a Site and complying with your management obligations and handling the sale and transfer of Credits must be carefully managed.

Appeal a DA refusal or request a review

Thu, 14 Mar 2024 22:00:00 GMT

If your development application (DA) has been sitting with Council for a long time (deemed refusal) or has actually been refused (actual refusal) this article can help you understand your options, the process involved and how you can navigate the planning process more effectively.

Review or Appeal: Understanding the Difference

If your development application has been refused, you have three options:

Request a review of the decision;
Appeal to the Land and Environment Court;
Start again from scratch (admittedly not a great option).

Section 8.3 Review

A review of the decision can be requested under section 8.3 of the Environmental Planning and Assessment Act 1979 ( EPA Act ).

The review is conducted by the same consent authority that made the original decision, usually the Council.

Requesting a review ensures that a senior officer within the consent authority will re-examine the decision.

Careful consideration is required when deciding between a review or an appeal. You only have 6 months from the date of the determination to commence an appeal and need to be careful that the appeal deadline does not expire while you wait for the review to be completed.

Requirements for a Review

A review must be lodged within six months of the date of determination if a Class 1 appeal has not been commenced.

The application for a review should include detailed reasons, relevant documents, and proposed amendments (if applicable).

The consent authority will internally re-examine the application in response to a valid review request.

Outcome of a Review

The consent authority can approve, modify, or reaffirm the refusal of the application.

In our experience, unless an error is found or new information is provided, the review often results in the Council maintaining its initial decision. This usually results in the Applicant wasting further time waiting for the review to be finalised when they could have used that time to run an appeal.

Class 1 Appeal

The second option is an appeal under section 8.7 of the EPA Act against the actual (or deemed) refusal of a DA.

Actual vs deemed refusal

Actual refusal of a development application occurs if the consent authority determines the DA by way of refusal. Deemed refusal occurs where the DA has been under assessment by the consent authority for longer than the prescribed time limit (42 days or 62 days depending on the type of development).

When to start an Appeal

You can appeal to the NSW Land and Environment Court if you are dissatisfied with the determination of your DA (either the deemed refusal or actual refusal).

You will need to carefully consider the time limitations for commencing an appeal. In most cases, you only have 6 months from the date of the determination to commence an appeal.

Process of a Class 1 Appeal

Set out below is a summary of the appeal process.

Step 1 – An appeal is commenced by filing an application with the NSW Land and Environment Court.

Step 2 – The first time the appeal comes before the Court is the first directions hearing. Parties should be prepared for the first directions hearing to discuss the suitability of conciliation, proposed directions, and hearing dates. The Court will set a date for a conciliation conference (s 34 Conference) to take place.

Step 3 – The conciliation conference takes place. Most Class 1 appeals are resolved through conciliation. The Court encourages parties to engage in meaningful way to attempt to reach agreement and resolve disputes. The conciliation conference commences with a site visit together with the Commissioner and experts from both parties. The Court then reconvenes (usually at Council chambers) to hear submissions and allow experts to confer privately and resolve issues.

Step 4 – If agreement is reached, the matter proceeds to a further directions hearing to finalise the conditions of consent. The Court will then grant consent to the DA.

Step 5 - If agreement cannot be reached, the matter proceeds to a final hearing where arguments and evidence are presented. Both parties and their experts attend and give evidence at the hearing.

Step 6 - The Court will then deliver a judgment either granting or refusing consent to the proposed development.

Costs

Each party bears their own costs in Class 1 proceedings, and costs are rarely awarded against a party unless that party is found to have engaged in unreasonable behaviour or deliberate delays.

It is very hard to estimate how much a Class 1 appeal will cost.

The majority of the costs involved will be consultants’ fees, not legal expenses. Most Class 1 appeals would range from $30,000 for a very simple matter with limited issues up to $80,000 for a more complex matter with multiple issues.

You should budget on reaching agreement during conciliation and limiting your costs, but be prepared that the matter may need to go all the way to a final hearing if some issues cannot be resolved.

Case study

In a recent case, the Applicant lodged a development application for retail development of a heritage building. The proposal was supported by reputable and considered heritage advice.

Council’s heritage adviser supported the development but suggested some design changes.

Six months later, Council raised RFI’s (request for further information) and asked for a contamination report and some further reports. These were provided.

After a further 6 months, Council’s heritage adviser was replaced, and the new heritage adviser suggested radical changes to the building façade. Council raised further RFI’s for more information.

The design changes were adopted, and further information provided to Council. More reports, more consultants, more delay, more expense. The Applicant sought legal advice but ultimately chose to continue to work with Council, trusting that the consent was only a matter of time.

Six months later (now 18 months from lodgement), Council’s second heritage adviser left and a new heritage adviser was appointed. The new heritage adviser suggested the Applicant revert back to the original design! The Applicant refused to make the changes and the DA was determined by way of refusal.

The Applicant commenced an appeal against the refusal. Council raised a host of new (and creative) contentions as to why the development should be refused.

The Class 1 proceedings took approximately 6 months. Ultimately, the Land and Environment Court granted consent to the development application and was critical of Council’s treatment of the heritage issue. The Applicant ultimately sold the commercial retail space at a significant profit.

Conclusion:

Unless an error is found or new information is provided, a s 8.3 review often results in the Council confirming its original decision.

If your DA has been with Council for a long time or has actually been refused, you can appeal to the NSW Land and Environment Court.

An appeal must be commenced within 6 months of the date of determination of the DA.

The majority of Class 1 appeals are resolved through the conciliation process.

It will always be a commercial decision whether to spend the money to commence an appeal or wait and continue to work with Council.

That commercial decision must take into account the cost of the appeal but also the opportunity cost of doing nothing, weighing the cost of taking action against the cost in terms of delay, consultant’s fees and rising construction costs.

“Existing” ground level – what it is and how it is determined

mevans@whiteacre.com.au (Mark Evans) — Thu, 07 Mar 2024 21:45:00 GMT

Most land in NSW is subject to controls which limit the height of buildings in a neighbourhood. The height control is usually expressed as the height of a building (in metres) above “existing” ground level. But, determining “existing” ground level can be difficult, for example where the site has been heavily excavated, built upon or is irregular in form. This article considers the definition of existing ground level in NSW planning law and cases in the NSW Land and Environment Court.

Usually, the height of building control takes the form of clause 4.3 in most local environmental plans:

“4.3(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.”

The Height of Buildings Map will (usually) prescribe a maximum height, for example 8.5 metres or 12 metres. The “height of a building” is defined in the Standard Instrument as:

“ building height (or height of building) means—

(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like”.

(our emphasis)

Accordingly, the highest point of a building (excluding lift overruns etc) must not be higher than the specified height (eg 8.5m) above the existing ground level.

Existing ground level is defined in the Standard Instrument as:

“ ground level (existing) means the existing level of a site at any point.”

Determining the ground level (existing) can be challenging where excavation has occurred on the site, where the site contains irregularities or where an existing building occupies the entire site.

These challenges and how they have been dealt with in the NSW Land and Environment Court ( Court) are illustrated in the cases below.

Land that has been excavated or built upon

Bettar v Council of the City of Sydney [2014] NSWLEC 1070 ( Bettar )

Facts

Consent was sought for a four and five storey residential flat building. An existing building occupied the entire site such that there was no longer any “ground” on the site from which “ground level (existing)” could be measured.

Council submitted that the ground level (existing) should be the ground floor of the existing building.

The Applicant submitted that the ground level (existing) ought to be extrapolated from the footpath and surrounding levels on neighbouring sites, rather than the ground floor of the building.

Decision

The Court held that once the existing building was demolished it would be impossible to determine the natural ground level and the former building on the site could no longer be discernible or relevant as a starting point for measuring the height of any new building. It would be conceivable that surrounding properties (each with existing buildings already built upon them) could end up with a variety of different height limits arising under the same development standard.

Further, the Commissioner held that Council’s approach would result in an absurd height plane which would relate only to an existing building and have no relationship to the context of the site and its surrounds.

Adopting the Applicant’s suggested approach of extrapolating from the footpath and surrounding sites, the Commissioner held (at [47]):

“the level of the footpath at the boundary bears topography that includes the site, and remains relevant once the existing building is demolished.”

Accordingly, the approach proposed by the Applicant was considered a pragmatic method to determine ground level (existing) and has since become informally known as the “extrapolation method”.

Key Takeaways

Where an existing building occupies the entire site, it may be acceptable to extrapolate ground level (existing) from the level of the footpath at the boundary of the site and from levels on surrounding sites.

This is particularly preferable where determination of ground level (existing) from existing buildings would result in an inconsistent and irregular height blanket across a neighbourhood under the same development standard.

Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189 ( Stamford Property )

Facts

Consent was sought for the partial retention and adaptive reuse of an existing building and construction of a 19 storey building with basement parking.

Similar issues regarding the determination of existing ground level arose as in Bettar , although on a much larger site with a steep gradient. Calculating ground level (existing) with regard to existing built form, particularly basement levels on the site would result in irregular and inconsistent height controls across the site.

Decision

The Court accepted the Applicant’s use of the Bettar extrapolation method to arrive at ground level (existing). In the circumstances, limited survey information was available and highly developed surrounding sites in the Sydney CBD made extrapolation difficult. Nevertheless, the Court noted that the extrapolation method was still possible with limited information and that there was sufficient actual and surveyed levels from the public domain in this case to arrive at a ground level (existing) figure for the (excavated) centre of the site, being an average between two survey points, rather than a surveyed (excavated) ground level.

The Commissioner(s) held at [285]:

“… In our view, [the extrapolation method] … provides a practical operation to the definition [of ground level (existing)], both for a greenfield site and, as here, modified site in a built environment. It places the proposed building in its context, rather than relying on the present built form of any existing development on a site”.

Further, at [286]:

“Reliance on the existing built form … means that circumstances such as the extent of excavation from site to site could lead to different height limits applying to adjoining buildings on redevelopment of any of those sites. On the information available for the site, application of Bettar results in a sloping plane across the site, and we agree … that that reflects the relationship of the proposed development to the overall topography that includes the site.”

Key Takeaways

The “extrapolation method” is to be preferred where it can better place the proposed building in its context, rather than relying on the present built form of any existing development on a site.

The availability of survey information needed to apply the “extrapolation method” may vary from site to site and may include surveyed levels in the public domain, with a figure in the centre of the site being an average between two surveyed points rather than a surveyed ground level.

Land that has not been completely built out or excavated

Strebora Pty Ltd v Randwick City Council (No. 2) [2017] NSWLEC 1575 ( Strebora )

Facts

Consent was sought for a four storey residential flat building over basement carparking on a site on which a residential dwelling (well set back from all boundaries) had previously stood. The Applicant contended that ground level (existing) should be determined by reference to levels from the street frontage rather than existing areas over parts of the site. The Applicant proposed taking the ground level at the street frontage and projecting that as a height plane across the site in elevations and sections.

Council contended that this approach was not usual practice and was not consistent with what was required by the LEP definition, particularly where survey information providing limited spot levels on the site showed that the ground level (existing) was beneath the Applicant’s projected height plane.

Decision

The Court held that the “extrapolation method” (from Bettar ) was not directly applicable and was not appropriate in the circumstances.

Because the residential dwelling had not occupied the entire site, there were patches of ground within the site that could be used to reference ground level (existing) and these were at street level. Further, the fall in the site also meant that it was not appropriate to determine the maximum allowable height from ground levels at the street frontage.

Central to the Court’s finding is the notion that the determination of ground level (existing), must bear some relationship to the overall topography and context of the site. The Commissioner held at [58]:

“In these proceedings there are no facts that would preclude the applicant determining the lowest level on an existing site directly beneath the highest part of the proposed development, to determine a maximum building height dimension. In Bettar v Council of the City of Sydney the levels at the street/footpath were taken due to the fact that a building occupied the full extent of the land. This is not the case in these proceedings. I note at paragraph [37] Commissioner O’Neil recognises “that the determination of the existing ground level should bear some relationship to the overall topography that includes the site.” Given the fall across the land it is not sufficient to only determine the maximum height of the building at the street.”

Key Takeaways

The “extrapolation method” used in Bettar and Stamford Property cannot be used to arrive at artificial height planes across a site where parts of the site may be surveyed to give the existing ground level.

The determination of ground level (existing), must bear some relationship to the overall topography and context of the site and the “extrapolation method” may not be used where it would result in an artificial height plane that does not bear a relationship to the overall topography and context of the site.

Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 ( Gejo )

Facts

Consent was sought for construction of a 6-storey mixed-use building over two levels of basement carparking. The subject sites contained two existing dwelling houses and had not been extensively excavated or built upon. The sites were irregular and contained an unusual low point which gave rise to an irregular height blanket when applying the height controls in the LEP.

The Applicant contended that the irregular characteristics of the site meant that the method of calculation used in Stamford Property and Bettar should be applied in preference to the usual method of taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development.

Decision

The Court did not accept the method proposed by the Applicant, instead finding that the height of the proposed buildings should first be determined by applying the LEP controls. In circumstances where the site had not been extensively excavated and the ground level was known and able to be surveyed, the Commissioner held that the height of the building should be determined by the usual method.

With respect to unusual slopes or grades and abnormal depressions in the site giving rise to unusual height limits, the Commissioner held at [25]:

“I do not accept that the method used by the Commissioners to calculate the ground level (existing) in Stamford Property Services Pty Ltd v City of Sydney and Bettar v Council of the City of Sydney overrules, or intends to overrule, the definitions contained in the relevant LEPs. This is clear from the comments in the joint judgment of Commissioner Pearson and Acting Commissioner Smithson at [283] of Stamford Property Services Pty Ltd v City of Sydney , in which they stated “the actual height of the proposed building must first be determined, by application of the 2012 LEP definitions.” The task undertaken by the Commissioners in those decisions is one whereby they found a way to apply the definitions contained in the LEPs in circumstances where the existing ground level is not known due to extensive development on the site. Given that there has been no extensive excavation of the site the subject of the current proposal, and the ground level is known and can be surveyed, the method used in those cases for calculating the ground level (existing) is irrelevant. Instead, the usual method of taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development reflects the definitions in the CLEP 2012 and should be used to calculate the building height. The fact that there is an uncharacteristic depression on the site is not relevant to this calculation, but might be relevant to the request to vary the height control considered below.”

Key Takeaways

Where ground level (existing) can be determined because the site has not been excavated or built upon, the extrapolation method is not intended, and should not be used to overrule the definitions contained in the relevant LEP’s.

The fact that there are uncharacteristic depressions or irregularities on a site are not relevant to the calculation of building heights but will be relevant to a clause 4.6 request to vary the height controls.

Nicola v Waverley Council [2020] NSWLEC 1599 ( Nicola )

Facts

Consent was sought for internal alterations and additions to a residential dwelling which included the addition of a new stair access with glass enclosure to the roof level and a new 15m ² rooftop terrace.

An existing slab on the site made the determination of the ground level (existing) difficult.

The Applicant contended that levels should not be taken from the existing slab and the extrapolation method should be used to take levels from the closest immediate proximity on the site where existing ground levels could be accurately determined.

Council disagreed and argued that the use of the extrapolation method was inappropriate as the site had not been completely built out (as in Bettar and Stamford Property ).

The difference in competing interpretations determined whether the new addition of the glass stair enclosure was compliant with the height control.

Decision

The Commissioner preferred the Applicant’s interpretation and held at [37] that the extrapolation method could be applied, even in circumstances where the site had not been completely excavated or built out:

“I agree … that the “extrapolation method” should be applied, based on the approach of selecting the levels located closest to the proposed stair enclosure. This is not inconsistent with the principle applied in Bettar and Stamford Property, which by necessity had to rely on the footpath levels outside the property boundaries because the buildings, in those cases, occupied the whole of their respective sites. In the subject development proposal the known ground levels identified are also outside the building and also closest to its exterior walls. The fact they are located within the site’s property boundaries, as opposed to outside the boundaries and on the footpath, does not derogate from the key selection criteria of closest immediate proximity.”

Key Takeaways

Where determination of ground level (existing) is made difficult by existing foundations or footings, it may be appropriate to use the extrapolation method either by obtaining levels from adjacent sites or within the site itself.

Where the particular circumstances of the case warrant the use of the extrapolation method, the levels to be used should be taken from the closest immediate proximity where existing ground can be found, whether that be within the site’s boundaries or outside the boundaries.

Summary

Where an existing building occupies the entire site, it may be acceptable to extrapolate ground level (existing) from the level of the footpath at the boundary of the site and from levels on surrounding sites.

This is particularly preferable where determination of ground level (existing) from existing buildings would result in an inconsistent and irregular height blanket across a neighbourhood under the same development standard.

The extrapolation method is to be preferred where it can better place the proposed building in its context, rather than relying on the present built form of any existing development on a site.

The availability of survey information needed to apply the “extrapolation method” may vary from site to site and may include surveyed levels in the public domain, with a figure in the centre of the site being an average between two surveyed points rather than a surveyed ground level.

However, the determination of ground level (existing) must bear some relationship to the overall topography and context of the site and the extrapolation method may not be used where it would result in an artificial height plane that does not bear a relationship to the overall topography and context of the site.

Where ground level (existing) can be determined because the site has not been excavated or built upon, the extrapolation method is not intended, and should not be used to overrule the definition and controls contained in local environmental plans.

The fact that there are uncharacteristic depressions or irregularities on a site are not relevant to the calculation of building heights but will be relevant to a clause 4.6 request to vary the height controls.

Where determination of ground level (existing) is made difficult by existing foundations or footings, it may be appropriate to use the extrapolation method either by obtaining levels from adjacent sites or within the site itself.

Where the particular circumstances of the case warrant the use of the extrapolation method, the levels to be used should be taken from the closest immediate proximity where existing ground can be found, whether that be within the site’s boundaries or outside the boundaries.

Require further assistance?

We have assisted many clients with issues relating to the determination of ground level (existing) and thus the applicable maximum building height of their proposed development. Often this can be a simple matter of engaging in constructive consultation with the relevant local council, or alternatively, bringing the matter before the Court for determination.

If you require advice regarding the determination of ground level (existing) of your site, or you wish to appeal against a determination of the issue by your local council, we can assist you in this process.

A Guide to Easements and Ancillary rights – Part 3

Thu, 29 Feb 2024 22:00:00 GMT

Landowners often have questions about their rights under an easement. If you are interested in this topic, you should check out our other articles on easements ( Part 1 and Part 2 ). This article explores ancillary rights to do work on burdened land.

Ancillary rights

The starting point is that an easement carries with it all ancillary rights reasonably necessary for the exercise and enjoyment of the easement: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [9]. The key here is in the language – reasonably necessary. What is “reasonably necessary”?

The ancillary right claimed must be “reasonably necessary”, not “absolutely necessary”. To be “reasonably necessary” the claimed right must be more than merely reasonable or convenient: Moncrieff v Jamieson [2007] 1 WLR 2620; Westfield Management Pty Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528.

In most cases, the owner of land benefited by a right of way over their neighbour’s land, can enter onto that land to make the right of way trafficable, for example by laying down gravel or repairing an old driveway.

There are many other examples of ancillary rights to do work on burdened land. Some examples are:

A right of pedestrian traffic to the door of a house includes the right to lay a flagstone: Gerard v Cooke (1806) 2 Bos & P (NR) 109; 127 ER 565.
A right of carriageway includes the right to pave so much of its length as is reasonably necessary for its enjoyment, which may or may not include its entire length: Clifford v Dove (2003) 11 BPR 21,149 at 21,156, Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111 at [21].
A right of way through a basement may also include the reasonably necessary right to illuminate the right of way: Owners of Strata Plan No 48754 v Anderson (1999) 9 BPR 17,119.
A right of pedestrian traffic may include the right to install stairs where the path is steep or slippery: Hanny v Lewis (1998) 9 BPR 16,205 at 16,208.

Carrying out works on burdened land

Where a right of way carries an ancillary right for the owner of the benefited land to pave the right of way or construct a driveway, the choice of surface material lies with the owner of the benefited land: Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111 at [21]. Specifically, in that case it was held that the owner of the benefited land was entitled to insist on asphalt rather than turf.

The owner of the benefited land must still obtain any necessary approvals and permits, for example a tree permit to remove a tree or development approval from the local council. Where an ancillary right enables the owner of the benefited land to carry out work on the burdened land, the owner of the burdened land must co-operate in any necessary development application for permission to carry out the work: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [9], Berryman v Sonnenschein [2008] NSWSC 213 at [16].

In most cases, the owner of the benefited land should give notice of its intention to enter onto the land and perform works. This should be in writing, set out the general time and date the works will be carried out and the nature of the works proposed: Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 at [96]-[98].

The owner of the burdened land may want to provide input, for example the timing of the works and the types of materials used. However, where the owner of the benefited land reasonably proposes making an easement suitable for use by one means, and the owner of the burdened land reasonably proposes another means, the owner of the benefited land’s proposal prevails, because the owner of the burdened land is not entitled to prevent the owner of the benefited land from validly exercising their rights under the easement: Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111 at [21].

Give notice of intention and discuss with your neighbour

You should always try and discuss the works you propose to undertake on burdened land with your neighbour and seek to arrive at an outcome both parties can live with. This does not always work. In our experience many difficult neighbours seek to prevent access to their land, request unreasonable conditions for access and actively construct fences and other impediments on the burdened land to frustrate use of the easement.

You should understand your rights clearly and obtain competent legal advice before engaging in negotiations around these issues and before carrying out works on burdened land.

What is the meaning of “substantially the same” development?

mevans@whiteacre.com.au (Mark Evans) — Wed, 21 Feb 2024 23:24:27 GMT

Development consents can be modified, within reason. The modified development must be “substantially the same” as the development originally approved. This article considers the meaning of the phrase “substantially the same” and examines cases in which the question has arisen.

Power to modify is subject to constraints

There are a number of sources of power to modify a development consent under s 4.55 of the Environmental Planning and Assessment Act 1979 ( EPA Act ):

Modifications to correct a minor error, misdescription or miscalculation: s 4.55(1);
Modifications involving minimal environmental impact: s 4.55(1A); and
Other modifications: s 4.55(2).

Sections 4.55(1A) and (2) of the EPA Act empower a consent authority to modify a development consent, provided the consent authority is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all).

What does substantially the same mean?

Unfortunately, there is no clear, simple answer. Like many things in life, and in planning law, the answer depends a lot on the circumstances of each case. However, there are some guiding principles that can be drawn from the case law.

“The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).” Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 per Bignold J at [55]-[56].

Principles from case law

1. First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) of the EPA Act is between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333 at [16].

2. Second, the essential elements are not to be identified “from the circumstances of the grant of the development consent”; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development: Arrage v Inner West Council [2019] NSWLEC 85 per Preston CJ at [25]

3. In approaching the comparison exercise, one must not fall into the trap of thinking that because the development was for a particular use and, as amended it will be for the same use, it is therefore substantially the same.

Essential and material features

4. A common method to identify whether the modified development is substantially the same is to consider whether the modified development is “essentially or materially” the same or “has the same essence” as the originally approved development. This test derives from the dicta of Bignold J in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 ( Moto Projects ).

However, caution should be applied here. This test derives from judicial interpretations of the statutory test, not the language of the statute itself.

The language of the statute (and thus the test) is:

“(a) [the consent authority must be] satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)…”

In Arrage , Preston CJ held at [28] (referring to the Moto Projects “test”):

“That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17].”

So while the “essential and material features” test is a good guide, it will not always be the best test to apply. To understand this better, it is helpful to review some of the cases in which the question has arisen and the factual circumstances of each case.

Case law

Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298

Facts

The original consent was granted (by the Court) in 1998 to refurbish the existing North Sydney Club premises and add four to six floors to the existing building to provide for 48 residential apartments. The Applicant sought to modify the development consent by altering the vehicular access requirements by removing conditions of the consent relating to a vehicular ramp for entering traffic to the club premises.

Council argued that the modification application should fail because the Court could not be satisfied that the development was substantially the same development. That is, the alteration to the access arrangements was so material and fundamental that it altered the development to such an extent that it was no longer substantially the same.

The Applicant argued that the modified development would be substantially the same as the original development since:

the relevant comparison yields precisely the same components of the redevelopment, namely (i) a refurbished club; (ii) an addition comprising 48 residential flats; and (iii) the existing on-site carparking provision,
the only difference being the elimination of the access ramp for vehicular traffic to the club’s on-site carparking provision from the Warringah Expressway and instead of that arrangement, an accommodation of that entering traffic within the Walker Street right of way (ROW).

Findings

Bignold J held that the Walker Street ROW (access arrangement) was a material and essential feature of the approved development and its removal meant that the modified development could not be considered to be substantially the same.

The modification application was refused.

Importantly, Bignold J held that the assessment needed to be both qualitative as well as quantitative. Applicants cannot simply point to numerical comparisons in a vacuum or a “broader picture” which omits important material details of the development.

55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

64. Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. This approach is exemplified in the decision of Talbot J in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 2 October 1998) where Talbot J held that the statutory modification power was not available because his Honour had not been satisfied that the development as proposed to be modified would be substantially the same as the currently approved development.

…

68. I would respectfully agree with his Honour’s views. They have obvious application to the facts of the present case, where the only change involves the elimination of the separate ramp access from Warringah Expressway providing exclusive vehicular ingress to the Club’s on-site carparking provision, where for the reasons I have given, that access arrangement was a material and essential feature of the approved development.

69. Its entire elimination, with the consequence of all traffic to the redevelopment having to use the Walker Street ROW, materially changes the approved development to such an extent, that I am not satisfied that the modified development is substantially the same as the currently approved development.

Key Takeaways

The result of the comparison between the modified development and the original development must be a finding that modified development is “essentially or materially” the same.

The assessment needs to be both qualitative and quantitative comparison of the development in its proper context.

Key elements of the original development need to be considered and a “big picture” justification of the development as a whole, omitting material details, is not correct.

Arrage v Inner West Council [2019] NSWLEC 85

Facts

The Applicant sought to modify a consent for shop-top housing at Dulwich Hill pursuant to 4.55(2) of the EPA Act. Council refused the application.

The appeal was heard by a Commissioner of the LEC who refused the application and dismissed the appeal on the grounds that he was not satisfied that the development was substantially the same as the development for which consent was granted.

The Commissioner identified that the proposed modification would result in the following quantitative changes:

a 30% increase in the number of residential units (from 13 units to 17 units);
a 19.25% increase in the floor space ratio (“FSR”) for the modified development;
a 13.5% increase in building height (from 22.3m to 25.3m);
a 14.3% increase in the number of storeys (from a part 5/part 6 storey development to a part 6/part 7/part 8 storey development);
a 17.3% (25.1sqm) reduction in common open space (from 145.1sqm to 120sqm); and
a 100% (42.53sqm) reduction in internal communal room space (all of the internal communal room space would be removed by the proposed modification).

The qualitative changes that the Commissioner identified were the changes from having a mix of internal communal room space and outdoor communal open space to only having communal open space and from reducing in total the communal space available, which changes qualitatively altered the utility of the communal space.

Arrage appealed the Commissioner’s decision.

His Honour Preston CJ dismissed the appeal (and upheld the Commissioner’s decision) for the following reasons.

Findings

[18] … The “test” the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the Court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31].

[19] Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development “in their proper contexts (including the circumstances in which the development consent was granted)”, but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development “is substantially the same development” as the originally approved development.

[20] Accordingly, the Commissioner was not bound by the terms of s 4.55(2)(a) to compare the modified development and the originally approved development “in their proper contexts (including the circumstances in which the development consent was granted)”. Insofar as the Commissioner might be seen not to have given consideration to the circumstances in which the development consent was granted, that did not involve him failing to apply the correct test: he was not obliged in law to do so.

[24] First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16].

[25] Second, the essential elements are not to be identified “from the circumstances of the grant of the development consent”; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development.

[26] The choice of language in the judicial decisions of “material and essential features” or a “material and essential physical element” of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be “substantially the same” development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word “substantially” in the former s 102(1)(a) of the EPA Act to mean “essentially or materially or having the same essence”. That interpretation of the word “substantially” was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55].

[27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be “essentially or materially” the same or “having the same essence” as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.

[28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council ( 2003) 129 LGERA 351; [2003] NSWLEC 253 at [17].

[29] But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted.

[33] … As the Council submitted, the Commissioner undertook the comparative exercise required by identifying and comparing the material and essential elements, both quantitative and qualitative, of the modified development and the originally approved development. No misdirection is revealed in the comparative exercise undertaken by the Commissioner.

Key Takeaways

The “essential elements” are not identified from the circumstances of the grant of consent, but from an analysis of the originally approved and modified developments.

While Bignold J identified in Moto Projects that the comparative exercise requires a comparison of the proposed modified development and the originally approved development “in their proper contexts (including the circumstances in which the development consent was granted)”, this did not substitute a different (judicial) test for the test imposed by the statutory provision and the circumstances of the grant of the consent are not relevant. The Court is not bound by earlier precedents to consider the circumstances of the grant of the consent.

Identifying the “essential” or “material” elements of the development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. There are other ways to undertake the comparative exercise required.

193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197

Facts

The original development consent was granted in 2017 for mixed use development comprising comprising one retail shop, one residential apartment and thirty-eight units of boarding house accommodation in a part three-storey, part eight-storey development.

The modification sought approval for:

Removal of the smaller north facing communal room on level 3 and replacement with an additional boarding room increasing the total number of boarding rooms from 44 to 45;
Moving the boarding house laundry from level 3 to the ground floor bike storage area;
Replacing deleted bike spaces with wall mounted bicycle racks on balconies of some rooms;
Removal of the privacy screens from the northern façade;
Increase to the size of room 1.03 by enclosing part of the courtyard; an
Extension of the main common room on level 3 over the space that contained the communal laundry.

Council argued that the consent authority could not be satisfied that the approved modification would be substantially the same development as the development for which consent was originally granted.

The Applicant submitted that “whilst the test in s 4.55 does not permit comparison between what it proposed and the consent as modified, it is noteworthy that following the first modification application, which increased the number of boarding rooms and deleted the one residential apartment, Council did not raise any concerns as to whether the development was substantially the same as that originally approved”.

The Applicant submitted that the Commissioner’s decision related to the first modification of the consent and that the second, third and fourth modifications were subsequently approved by the Respondent Council, each time forming the positive view that the development was substantially the same as the development for which consent was originally granted.

Commissioner Espinosa held that the development as modified was not substantially the same as the development originally approved and refused the application.

Findings and conclusion:

Proposed Modification not substantially the same

[40] I reach the conclusion that the Proposed Modification is not substantially the same as the development for which consent was originally granted. I have undertaken a comparative task which involved an appreciation, qualitative, as well as quantitative, of the developments being compared, including the circumstances in which the 2017 development consent was granted.

Communal living spaces quantitatively and qualitatively not the same

[42] Focusing on the communal living spaces, the Applicant refers to the current size and amenity of the north facing common room however the test, acknowledged by both parties, is a comparison between the 2017 Consent and the Proposed Modification.

[43] I am unable to be satisfied that they are substantially the same both in a quantitative sense, where the 2017 Consent has 2 separate communal living spaces as opposed to the Proposed Modification which proposes a single, albeit larger and reconfigured, communal living space. From a qualitative comparison, I conclude that the evidence supports a finding that the Site will lose a north facing communal living space and although there may be some other amenity improvements or benefit, it is a simple proposition that the Proposed Modification would no longer offer or provide the same north facing solar access and amenity in a communal living space as per the 2017 Consent.

[44] Whether or not the north facing common room with solar access is a material and essential feature of the 2017 consent may not be ultimately determinative of the “substantially the same test”.

[46] We may not know categorically whether the communal living space(s) was an essential or critical feature for Moore J in the 2017 Consent however, the Court does know that a ‘do not refuse’ provision of the SEPP ARH, namely cl 29 relating to the provision of a communal living space with solar access in a boarding house, was complied with and as such I conclude that the north facing common room, proposed to be deleted and replaced with a boarding room, is a material element of the 2017 Consent.

Moving residential (common laundry) down into commercial space

[47] I now move on to consider whether the introduction to the ground floor of a residential component of the boarding house, namely the communal laundry, modifies the 2017 Consent to the extent that it renders the development no longer substantially the same. Put another way, is the lack of residential component on the ground floor (the communal laundry of a boarding house) a material and essential feature of the 2017 Consent and does this modification render the development not substantially the same? My answer is that the proposed relocation of the laundry onto the ground floor results in the development not being substantially the same as the 2017 Consent.

[48] The use of land is a relevant consideration in the comparison exercise and the introduction of a residential use (the laundry) is a new introduction of use to the currently exclusive commercial ground floor.

[50] I do not agree with the Applicant, that the inclusion of the laundry is a minor extension of existing residential bin store. Like the bike parking, bin storage is a common residential and commercial use whereas a common laundry is for the exclusive use of boarding house residents and is a clear introduction of a residential use to the ground floor area. I conclude that from both a quantitative and qualitative basis the proposed change is not substantially the same as the 2017 Consent.

Court not bound by previous approvals of Council

[52] It is clear that I am not bound by the previous opinions formed by the Respondent or Commissioner O’Neill in relation to previous modifications. To rely on these previous opinions would not be a proper exercise of forming my own opinion in accordance with the provisions of s 4.55(2)(a) of the EPA Act. As stated in Westlime, the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions.

Key Takeaways

The comparative exercise involves a comparison of the modified development as proposed against the development in the original consent not later modifications.

The use of land is a relevant consideration in the comparison exercise.

The Court is not bound by previous opinion formed by Council or by a previous Commissioner in relation to earlier modifications.

Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council [2022] NSWLEC 64

Facts

The original consent was granted in 1994. A modification application was lodged with Council in November 2020 to modify the consent to permit biomass to be utilised as a fuel source in an existing electrical generating power plant. The Applicant lodged an appeal against deemed refusal of the modification application.

The primary modification proposed was the introduction of biomass as a supplementary source of fuel for the operation of the power plant. Other modifications that were proposed arose from the proposal to introduce the additional fuel source or to facilitate the use of the additional fuel source.

Council contended that the proposed development was not substantially the same.

Duggan J dismissed the appeal and refused the Modification Application.

Reasons

Substantially the same development

[79] … The legislative power to modify is subject to the specific gateways expressed for each of the relevant powers of amendment provided for in s 4.56 and through which those who seek to invoke the power must first proceed: Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300 at [54]. In this case, that gateway is that the development must remain substantially the same once amended as that which was originally approved.

[80] The relevant test is that set by the statutory language: Arrage at [18]. Judicial interpretations of the statutory language of “substantially the same” have approved of the formula adopted in Vacik at 4 of “essentially or materially or having the same essence”: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and 481-482.

[81] As was also usefully observed by Stein J in Vacik at 6, which observations I adopt as apt for the circumstances of this case:

In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use – extractive industry – and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102.

[88] Upon a consideration of the EIS and the other documentary material expressly incorporated into the 1994 DC, contrary to what was contended by the Applicant, the 1994 DC did not have a single purpose that was material or essential, being the generation of power, but rather two co-dependent interrelated purposes: being the disposal of coal tailings; and the consequential generation of electricity from the process of the disposal of the coal tailings.

[89] This duality of purpose is illustrated in the express reference of the identification of the project and its objectives as is recited above at [31]. It may be that the development was ultimately characterised, for planning purposes, as a power plant, but the essence or material elements of the development for which the 1994 DC was granted was not solely (nor materially or essentially) for that purpose, it was for the treatment and reuse of a mine waste product and the sale of the by-product (electricity) of that treatment.

[97] Having regard to the totality of the 1994 DC, for the reasons outlined above, the disposal of coal tailings was an essential component of the development the subject of the 1994 DC. The Applicant contends that it is impermissible to “focus” upon a single element of the development in determining whether it is substantially the same and that the totality of that approved must be compared to the totality of that modified. That is so, but this exercise cannot be undertaken in a numeric “tick a box” approach. The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development – this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case. Such an exercise is not focusing on a single element, rather it is identifying from the whole an element which alone has such importance it is capable of altering the development to such a degree that it falls outside the jurisdictional limit in s 4.56.

[98] In this case, for the reasons I have found, the disposal of coal tailings was a fundamental element of the proposal, which if altered to a material degree would have the potential to alter an essential or material component of the development the subject of the 1994 DC. The replacement of the fuel source of coal tailings with biomass would be such a change. However, that is not what the Modification Application proposes in this case. The fundamental question here is whether the change proposed is so material that the modified development as proposed in the Modification Application is no longer substantially the same development.

[99] The Applicant has taken great care to ensure that the Modification Application does not preclude the burning of coal tailings as fuel even though it acknowledges that at the present time it is not commercially viable for it to do so. So, it is true to say, as the Applicant does, that it is not seeking to replace coal tailing with biomass, but rather to provide for an additional fuel source, namely biomass. The power station will remain functionally capable of burning coal tailings. But is that enough to maintain the Modification Application as substantially the same as the 1994 DC? The answer must be no.

[100] The 1994 DC had as an essential requirement the burning of coal tailings. The Modification Application leaves open to the operator an absolute discretion – as provided for in the proposed condition 16 – as to whether to burn biomass or coal tailings as fuel. As a consequence, the relationship between the coal mines and the disposal of coal tailings which was a fundamental aspect of the 1994 DC may be abandoned at the decision of the operator. The inherent discretion renders the continued capacity to burn coal tailings as fuel as an illusory maintenance of the essence of the 1994 DC. There being no longer an obligation to carry out the development to achieve the purpose for which it was developed there is no continual manifestation of the essence of the development. Accordingly, notwithstanding the retention of the physical capacity to burn coal tailings as fuel, the Modification Application in the form proposed alters the development in such a fundamental manner that it loses the essential and material relationship to the disposal of coal tailings and the associated mine operations that it cannot be characterised as being substantially the same development as the 1994 DC.

Key Takeaways

One must not fall into the trap of saying that the development was for a certain use and, as amended it will be for precisely the same use and is therefore substantially the same. A development must be assumed to include the way in which the development is to be carried out.

One must consider all of the purposes for which consent was granted.

The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development – this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case.

Such an exercise is not focusing on a single element, rather it is identifying from the whole an element which alone has such importance it is capable of altering the development to such a degree that it falls outside the jurisdictional limit in the legislation.

The significance of a particular feature of the development may be so significant that the alteration is such that an essential or material component of the development is so altered that it cannot be said to be the same development.

Conclusion

The comparative exercise required to enliven the power to modify a development consent must involve both quantitative and qualitative matters and consider all of the essential and material features of the development as originally approved. Often the answer to whether the two developments are substantially the same will involve matters of fact and degree on which reasonable minds may differ.

This is a complex area of planning law and if you are proposing a modification application or encountering these issues, you should obtain competent planning and legal advice.

Not in my backyard! The role (and limits) of community submissions to proposed development

Thu, 15 Feb 2024 22:00:00 GMT

This article explores the role of public participation in NSW planning and the appropriate weight that ought to be given to community submissions in the evaluation of the merits of a development proposal.

Introduction

Meaningful community involvement can be beneficial in the development assessment process. Public participation in the process carries with it a responsibility not to abuse that right, nor to place self-interest above the broader interests of the community.

Public participation in environmental planning and assessment is enshrined in the objects of the Environmental Planning and Assessment Act 1979 ( EPA Act ) in section 1.3(j):

1.3 Objects of Act

(cf previous s 5)

The objects of this Act are as follows—

…

(j) to provide increased opportunity for community participation in environmental planning and assessment.

Zooming out, it becomes obvious that community participation is only one of a number of objects of the EPA Act. For example, other notable objects are to facilitate ecologically sustainable development, to promote the orderly and economic use and development of land and to promote the delivery and maintenance of affordable housing.

1.3 Objects of Act

The objects of this Act are as follows—

…

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(d) to promote the delivery and maintenance of affordable housing,

…

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

Unfortunately, as Council planning staff will be all too aware, the privilege of community participation can, on occasion, be abused. In the past, we have advocated for construction of boarding houses for the homeless that were bitterly opposed by neighbourhood community groups. “Laudable objectives, just don’t build it in our neighbourhood”. We have also fought for the upgrading of small supermarkets in towns crying out for infrastructure against small, vocal minority groups. We have personally witnessed 300+ page submissions by neighbours objecting to the construction of a granny flat in a backyard. Obviously, there is a role for community consultation and ill-considered development should be exposed. However, public participation must have its limits and public submissions must not be afforded undue weight in the assessment process.

The role of community submissions in the development process

A consent authority is to consider the matters set out in s 4.15 of the EPA Act as are of relevance to the proposed development. As seen below, public submissions are but one of many other considerations Council is to take into account.

4.15 Evaluation

(cf previous s 79C)

(1) Matters for consideration —general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

[our emphasis]

Public submissions should not be afforded undue weight in the evaluation of a development application and public participation should not be viewed as being adversarial.

In M orrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802 the Chief Justice of the Land and Environment Court (Preston CJ - speaking in the context of application for joinder to proceedings) stated clearly at [50] – [54] that the purpose of giving the public an opportunity to make submissions has its limits.

“50 To some extent, the application of the Owners Corporation misunderstands the purpose of public consultation and public participation. Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions.

51 Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.

52 Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.

…

54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be ... “

Conclusion

At the risk of repetition, the NSW Land and Environment Court has been clear that:

1. The process of community consultation and public participation is important, but there must be a limit to how long and detailed that process should be.

2. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.

3. The planning scheme established by the EPA Act vests in Council the task of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and making a determination based on the merits of the proposal.

Recent decisions in the NSW Land and Environment Court and Court of Appeal provide a clear signal from the judiciary that public consultation and participation in the assessment process is only one of many factors a decision maker is to take into account. Further, once development consent is granted to a proponent, absent clear jurisdictional error, that person is entitled to rely on the consent and not be subjected to ongoing and expensive litigation.

When is a development application made?

mevans@whiteacre.com.au (Mark Evans) — Thu, 15 Feb 2024 04:17:03 GMT

In NSW a development application is “made” when the development application is lodged through the NSW planning portal, all of the required documents are provided, the application fee is paid and, finally, notification of lodgement is received by both the applicant and the consent authority.

Only when all of these criteria are met can a development application be said to have been made. This specificity is important because new environmental planning instruments ( EPIs ) often contain a savings provision which excludes DAs “made” but not “determined” at the time of introduction of the new EPI.

This article reviews recent cases dealing with the question of when a DA is “made”.

Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 ( Commitment )

In this case the applicability of the Hurstville Local Environmental Plan 2021 HLEP 2012 ) or the Georges River Local Environmental Plan 2021 ( GRLEP 2021 ) depended on when the development application was made. Clause 1.8A of GRLEP 2021 provides that the GRLEP 2021 does not apply to a development application “made, but not yet determined”, on or before the commencement date of the GRLEP 2021.

The question in Commitment was whether the Applicant’s development application was “made” on or before the GRLEP 2021 commenced.

Held

Pain J determined at [59] that an Applicant submits a development application via the NSW planning portal, lodges it when the fee is paid and notified as required by cl 50(8) and “makes” the DA when there has been substantial compliance with the regulations.

Facts

On 30 September 2021, the development application ( DA ) was submitted to the NSW planning portal.

On 8 October 2021, two things happened: the development application fee was paid and the GRLEP 2021 was published on the NSW legislation website, repealing and replacing the HLEP 2012.

Section 24 of the Interpretation Act 1987 (NSW) provides that “If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day.”

Both parties agreed that the GRLEP 2021 came into force very early on 8 October 2021.

Clause 1.8A of GRLEP 2021 contains the relevant savings provision:

1.8A Savings provisions relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

[our emphasis]

When the DA was submitted to the NSW planning portal (30 September 2021) the Environmental Planning and Assessment Regulation 2000 ( EPA Regulation 2000 ) applied. Clause 50 of the EPA Regulation 2000 set out the requirements for a development application to be “made”:

50 How must a development application be made?

(1) A development application must –

(a) be in the form that is approved by the planning secretary and made available on the NSW planning portal,

(b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation,

(d) be lodged on the NSW planning portal.

(8) The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged.

…

(9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

Note: The Environmental Planning and Assessment Regulation 202 1 ( EPA Regulation 2021 ) repealed and replaced the EPA Regulation 2000. Clause 50 of the EPA Regulation 2000 became clause 24 in the EPA Regulation 2021 and contains similar language and similar provisions.

The Applicant argued that a development application is “made” when it is uploaded to the NSW planning portal and contains the documents and information required by the EPA Regulation 2000.

Moreover, under s 4.12(1) and (2) of the EPA Act an application may be made by ‘a person’, not a consent authority. Accordingly, persons other than an Applicant cannot determine if an application is “made” given the entitlement of a person to apply granted by s 4.12 of the EPA Act. An Applicant’s entitlement to make a development application under s 4.12 of the EPA Act is frustrated by a construction whereby ‘lodgement’ must be satisfied in order for an application to be made when that is clearly a separate process and outside the control of the Applicant.

The Council argued that the lodgement of a DA on the NSW planning portal is one aspect of the making of a DA such that a DA could not be made simply when “put” onto the NSW planning portal by the applicant. To accept this construction gives the EPA Act and EPA Regulation 2000 no work to do. Lodgement on the planning portal is a necessary pre-requisite to a DA being “made” and lodgement is expressly contingent on payment of the relevant fee.

Decision

The Court held (at [47]) that a DA is made for the purposes of the savings provision in cl 1.8A of the GRLEP 2021 when there is substantial compliance with each of the requirements of the EPA Act and EPA Regulation 2000 applicable to the making of development applications. This includes all of the requirements of cl 50 (above) and payment of the fee.

Pain J found at [50] that, “Arguably only once substantial compliance with cl 50(1) is achieved has a DA been made sufficient to enable its determination. One requirement is that “lodgement” of a DA is required by cl 50(1)(d) and must be read with subcl (9) (the requirement to pay a fee).”

Pain J held (at [56]), that whether a matter is within a person’s control, or not, is not relevant to statutory construction. In this case, it was irrelevant whether the Applicant was in control of when the DA was made for the purposes of construing the legislation.

The Court agreed with the Council’s argument that an applicant submits the DA via the NSW planning portal and obtains a unique PAN number, lodges it when the fee is paid and notified and “makes” the DA when there is substantial compliance with all of the requirements of cl 50 of the EPA Regulation 2000.

Key Takeaways

An Applicant submits a DA via the NSW planning portal and obtains a unique PAN number, lodges it when the fee is paid and “makes” the DA when there is substantial compliance with cl 50 of the EPA Regulation 2000.

Whether matters outside the control of the Applicant delay or impact the date a DA is “made” is not relevant to the exercise of statutory construction required to determine when a DA has been made.

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150

Similar to Commitment , at the core of this case was a dispute about when a development application was made.

The applicability of the State Environmental Planning Policy (Housing) 2021 ( 2021 SEPP ), depended on when the development application was made. On 26 November 2021, the 2021 SEPP repealed and replaced the State Environmental Planning Policy (Affordable Rental Housing) 2009 ( 2009 SEPP ). The 2021 SEPP has different standards and requirements to those of the 2009 SEPP, which restricted the Applicant’s proposed development.

The 2021 SEPP contained a savings provision which, if satisfied for the Applicant’s development application, would mandate that the application was determined pursuant to the old 2009 SEPP, not the new 2021 SEPP.

The question in this case was whether the Applicant’s development application was “made” on or before the 2021 SEPP commenced.

Held

Moore J determined that the Applicant’s development application was not made on or before the 2021 SEPP commenced. Moore J found that, as at 26 November 2021, the development application was not accompanied by either the A4 plan of the building required by cl 50(1)(c) and cl 2(1)(d) of Sch 1 of the EPA Regulation 2000 (at [59], [60], [67], [68], [71]) or payment of a fee duly determined and notified to the Applicant (at [61]-[64], [73]).

Facts

The Applicant submitted a development application through the NSW planning portal on 22 October 2021. Exchanges between the Applicant and the Council seeking further information about the development application took place after 22 October 2021.

The EPA Regulation 2000 requires a number of documents, plans and information to be uploaded to the NSW planning portal to form a complete application. Schedule 1, 2(d) of the EPA Regulation 2000 requires:

(d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation),

The development application was not accompanied by “an A4 plan of the building that indicates its height and external configurations, as erected, in relation to its site”. Other plans of the buildings to be erected on the site (the proposed development comprised four buildings), from which the heights and external configurations of the buildings could be derived, did accompany the development application. But there was no single A4 plan of the buildings that indicated their heights and external configurations.

The consent authority, Sutherland Shire Council ( Council ), issued requests for additional information, first on 23 November 2021 and again on 29 November 2021. The Applicant issued a response to those requests on the NSW planning portal on 26 November 2021 and 1 December 2021 respectively. Although the Applicant did supply further plans, it never supplied a single A4 plan of the buildings that indicated their heights and external configurations.

On 2 December 2021 the Council issued an invoice for the development application fee through the NSW planning portal. The Applicant paid the invoice on 9 December 2021.

The parties sought determination of a legal question: for the purpose of the savings provision in the 2021 SEPP, was the development application to be regarded as having been made on or before 26 November 2021 when the new 2021 SEPP commenced?

The EPA Regulation 2000 applied at the time. Clause 256(1) of the EPA Regulation 2000 required that the Council raise an invoice within 14 days of receiving an application.

Note: Following the introduction of the new EPA Regulation 2021 this requirement remains and is found in cl 256 of the EPA Regulation 2021.

The Applicant argued that the failure of the Council to discharge its mandatory obligation under cl 256(1) of the EPA Regulation 2000 should not be permitted to stand in the way of the conclusion that the Applicant’s development application had been made, but not determined, on or before 26 November 2021. Further, the Applicant had substantially and sufficiently complied with the requirements of the EPA Regulation 2000 by 26 November 2021 so that the Applicant’s development application should be held to have been made by that date.

The Council argued that the plans which satisfied the EPA Regulation 2000 were not uploaded by the Applicant until 1 December 2021. This meant that the obligation to determine and notify the development application fee as required by cl 256(1) of the EPA Regulation 2000 was not triggered until those plans, which were compliant with Sch 1, cl 2(d) of the EPA Regulation 2000, were uploaded to the NSW planning portal on 1 December 2021.

Decision

Moore J applied the analysis of Pain J in Commitment (above) concerning the relevant steps in the process necessary to regard a development application as being “made”. For the reasons explained in Commitment a development application can only be regarded as having been made after the fee payable for such a development application has been paid.

In this instance, the Applicant had not uploaded the A4 plan required until 1 December 2021, nor paid the applicable fee until 9 December 2021, both of which were required prior to a development application being “made”.

Moore J found that there was no evidence the Applicant had rejected the validity of the Council’s requests for further information between 22 October 2021 (DA submitted) and 2 December 2021 (invoice raised) and the Applicant’s planner should have done so if it felt the Council had no justification to raise the questions it did.

Further, Moore J held that in circumstances in which the Applicant asserts that the Council breached its obligations in the EPA Regulation 2000 it was open to the Applicant during this time to bring urgent proceedings in of the Land and Environment Court to remedy the alleged breach by the Council. The breach could have been remedied by the Applicant exercising its right pursuant to s 9.45 of the EPA Act and approach the Court to seek an order to require the Council to determine and advise the Applicant of the development application fee payable.

Key Takeaways

A DA is “made” for the purposes of savings provisions when it is submitted to the NSW planning portal and the fee is paid.

Following submission of the DA into the NSW planning portal, a consent authority has 14 days to raise an invoice for payment of the applicable development application fee.

If a Council refuses to raise the invoice for payment and requests additional information to accompany the application in accordance with the requirements of the regulations, Applicants should consider carefully whether their application is compliant and, if it is, state that fact very clearly in written communication to the Council.

Where a Council breaches its obligation to raise the invoice for payment in time, it is open to Applicants to bring urgent proceedings in Class 4 of the Land and Environment Court to remedy the breach.

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

The Applicant appealed the decision of Moore J (at first instance) to the NSW Court of Appeal.

Held

Basten AJA (with whom Gleeson JA agreed) and Preston CJ of the Land and Environment Court (dismissing the appeal) held that on a proper construction of the statutory provisions governing the making of a development application, the Applicant’s development application was not “made” on or before the commencement date of the 2021 SEPP. Accordingly, Moore J was correct in finding that the 2021 SEPP and not the 2009 SEPP applied to the Applicant’s development application. Preston CJ set out the statutory scheme for making development applications to resolve the competing interpretations advanced by the parties.

The analysis provided by Preston CJ is especially helpful for town planners in understanding the requirements of making development applications.

Statutory scheme for making development applications

Section 4.12(1) of the EPA Act states simply that a “person may, subject to the regulations, apply to a consent authority for consent to carry out development”. The relevant regulation in force at the time the Applicant made the development application was the EPA Regulation 2000.

Clause 50 of the EPA Regulation 2000 prescribed how a development application must be made and clause 50(1) prescribed the form and manner of making a development application for consent to carry out development (other than state significant development).

Clause 50 provided:

(1) A development application, other than an application for State significant development, must—

(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and

(d) be lodged on the NSW planning portal.

Paragraphs (a) to (c) prescribe the form the development application must take, paragraph (d) prescribes the manner in which the application must be lodged, via the NSW planning portal.

His Honour Preston CJ held that the first type of information that was required in this case to be provided included an A4 plan to accompany the development application. Although the Applicant’s development application included a series of plans of the buildings, the development application was not accompanied by an “A4 plan” of the buildings that indicated their heights and external configurations, as erected in relation to the site. The Applicant provided an A3 site plan and five A3 sheets of elevations, which were extracts from the full set of plans.

Accordingly, Preston CJ found at [94] that “the requirement that such an A4 plan accompany the development application remained unmet as at the commencement date of the 2021 SEPP of 26 November 2021.”

His Honour held that the second type of information (or document) that was required to accompany the development application was the payment (or record of payment) of the fee to accompany the development application. This is because clause 256 of the EPA Regulation 2000 requires that the consent authority make a determination of the fee to “accompany a development application” and to notify the Applicant of the determination.

Preston CJ held at [98] that clause 256 of the EPA Regulation 2000 imposes a requirement on the Applicant that payment of a fee, which has been determined by the Council and notified to the Applicant, “accompany a development application”. Accordingly, this Honour held:

“The payment of a duly determined and notified fee thus falls within the category of “information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation”, which cl 50(1)(c) of the EPA Regulation 2000 requires a development application to be accompanied by.”

His Honour held at [99] that the consequence of the Applicant’s development application not “meeting these two form requirements that the development application be accompanied by the A4 plan of the building and the payment of the fee was that the development application was incomplete as at 26 November 2021.”

Incomplete and ineffective application

His Honour went on to discuss the nature of an incomplete application being ineffective, that is, not being capable of engaging the power of the consent authority to grant consent to the application.

The wording of the savings provision in the 2021 SEPP (a development application “made” but not yet “determined”) presupposes that there is a complete and effective development application that can be “determined” by the grant of consent. His Honour held at [118]:

“The consent authority would have no power to determine by the grant of consent a development application that is incomplete and ineffective. Thus, both the word “made” and the word “determined” demand that the development application be complete and effective in order to be an application in terms of the EPA Act.”

What about the deeming provision in cl 50(9) of the EPA Regulation 2000?

Recall that cl 50(9) of the EPA Regulation 2000 provides:

(9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

His Honour found at [125] that “The deeming provision in cl 50(9) operates to deem a development application, although in fact lodged on the NSW planning portal under cl 50(1)(d), not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.”

The lodging of the development application on the planning portal is the way in which the application must be made. Cl 50(9) has 2 effects:

it deems a development application that has been lodged on the portal not to have been lodged; and
it also causes a development application not to have been “made” until the fee notified to the Applicant has been paid.

Accordingly, his Honour stated at [129]: “A development application that is not lodged is not made. Thus, cl 50(9) operates not only to deem a development application not to have been “lodged” until the fee notified to the applicant has been paid, but also to cause the development application not to be “made” as the manner requirement for making a development application would not be satisfied.”

In summary, Preston CJ found that the Applicant’s development application was incomplete and ineffective because it was not accompanied by the A4 plans and payment of the fee. Neither occurred before the commencement of the 2021 SEPP on 26 November 2021. As a consequence, the development application was not “made” for the purpose of the savings provision and the 2021 SEPP applied, not the former 2009 SEPP.

DA not made until Applicant notified of payment

Basten AJA (with whom Gleeson JA agreed) held at [28] that the development application is “made” when the consent authority provides a notification that the application is lodged after the fee has been paid. It is the date of notification of payment of the fee, not the date of payment of the fee itself which is the relevant date.

Basten AJA found that cl 50 of the EPA Regulation 2000 sets out a number of steps that must occur in the making of a development application, namely, the lodging on the NSW planning portal, the notification to the Applicant of the fee payable, payment of the fee and, finally, notification through the NSW planning portal that the development application has been lodged (cl 50(8)).

Recall that cl 50(8) of the EPA Regulation 2000 provides:

50 How must a development application be made?

…

(8) The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged.

(9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

His Honour held at [27] – [28]:

“[27] … On one view, that [the finding of a precise date the development application is made] is the purpose and effect of cl 50(8), which requires that the applicant be notified that the development application has been lodged.

[28] Mechanically, the notice is generated by the NSW planning portal itself. However, that must be a result of steps taken by a party to the process. It is clearly not the applicant that directly causes the notice to be given, because it is the recipient of the notice. The purpose of the notice is to let the applicant know that lodgement is complete. The only other party which can cause the giving of the notice is the consent authority. On that view, the application is lodged when the consent authority provides a notification to that effect on the NSW planning portal….”

Key Takeaways

The Court of Appeal upheld Moore J’s findings in the first instance.

A development application is incomplete if it is not accompanied by payment of the relevant fee.

A development application is taken to have been made not when the application fee is paid, but when both the Council and the Applicant are notified through the NSW planning portal that the application is lodged (pursuant to cl 50(8) of the EPA Regulation 2000).

Summary

In NSW a development application is “made” for the purposes of most savings provisions, when the application fee is paid, compliance with the requirements of the regulation is achieved and when notification of lodgement via the NSW planning portal is received.

Where an applicant considers requests for additional information are unwarranted or have been satisfied it should state this early in writing and provide reasons.

Non-compliance with requirements for development applications in the regulations will result in an ineffective development application that does not engage the power of the consent authority to grant consent to the application.

In circumstances where the Council delays or refuses to raise an invoice for payment of the application fee an Applicant may bring proceedings in Class 4 of the Land and Environment Court to remedy the breach.

Require further assistance?

We have assisted many applicants and town planners negotiating issues with acceptance of development applications into the NSW planning portal by Council and the raising of invoices for payment. As demonstrated by the cases above, the date a development application is made can have serious implications.

If you require advice regarding when your development application may have been “made” or are considering approaching the Land and Environment Court for relief against a failure to raise an invoice or accept a development application, we can assist you in this process.

Setting aside covenants to allow development to proceed

mevans@whiteacre.com.au (Mark Evans) — Thu, 18 Jan 2024 22:00:00 GMT

Restrictive covenants can be set aside to allow development to proceed. This power is found in cl 1.9A of most LEPs and in clause 1.20 of the Codes SEPP. The NSW Land and Environment Court has similar powers under the NSW Land and Environment Court Act 1979. This article considers when private covenants may be set aside to permit development to proceed and provides examples of cases in which this power has been exercised.

Section 3.16 of the EPA Act

Local Environmental Plans (LEPs) and State Environmental Planning Policies (SEPPs) are species of delegated legislation.

Accordingly, then must be an empowering provision in legislation somewhere.

That provision, granting authority to create provisions which suspend the operation of covenants, is contained within s 3.16 of the Environmental Planning and Assessment Act 1979 (EPA Act). Its effect is now well understood.

As Talbot J said in Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 at 124:

“The opportunity to make such a provision in an environmental planning instrument is intended to achieve a result whereby development which satisfies the criteria laid down by the planning legislation may proceed notwithstanding any constraint imposed by other regulatory instruments. The Parliament recognised the significance of the extent of this power by subjecting its exercise to the approval of the Governor and in some cases to the concurrences of the relevant Minister.”

This understanding of what is now s 3.16 of the EPA Act was endorsed by the Court of Appeal in Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 and has been followed in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 (overturned on a different basis in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27) and Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248.

Provisions in LEPs

So s 3.16 of the EPA Act (the empowering legislation) allows for the insertion of such a provision in LEPs for example, provided those clauses have the consent of the Governor. Today, these provisions most commonly appear in clause 1.9A of LEP’s. For example cl 1.9A of the Wollongong Local Environmental Plan 2009 provides:

1.9A Suspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

Generally, this means that the existence of a provision within an agreement or instrument (s88B Instrument) that restricts the carrying out of development that is otherwise permissible (with consent) does not present a jurisdictional bar to the approval of that development. However, the restrictive covenant would be a matter which the consent authority may take into account in assessing a development application: Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [32].

Be aware though, there are considerable circumstances in which cl 1.9A does not apply for example:

(2) This clause does not apply—

(a) to a covenant imposed by the Council or that the Council requires to be imposed, or

(b) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or

(d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or

(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(g) to any planning agreement within the meaning of Subdivision 2 of Division 7.1 of the Act, or

(h) to any land vested in the Lake Illawarra Authority under the Lake Illawarra Authority Act 1987.

(3) This clause does not affect the rights or interests of any public authority under any registered instrument.

Whether clause 1.9A applies in your particular situation can sometimes be difficult to determine. You should always consult a competent and experienced planning lawyer who is familiar with the unique circumstances of your case.

Provisions in the Codes SEPP

The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) contains an almost identical provision which applies to complying development.

Clause 1.20 of the Codes SEPP provides that in some circumstances, a restrictive covenant may be set aside to the extent necessary to allow a complying development certificate (CDC) to be issued:

1.20 Suspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Policy, or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

Again, there are considerable circumstances in which clause 1.20 does not apply, for example:

(2) This clause does not apply—

(a) to a covenant imposed by a council, or that a council requires to be imposed, requiring compliance with a development standard that is—

(i) consistent with the development standards specified for the development concerned under this Policy, or

(ii) not dealt with by the development standards specified for the development concerned under this Policy, or

(b) to a covenant that is specifically required by another environmental planning instrument, or

(c) to a covenant imposed by an owner or former owner of the land concerned, other than a covenant that has been required by a council to be imposed, or

(d) to any relevant instrument within the meaning of section 13.4 of the Crown Land Management Act 2016, or

(e) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or

(f) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(g) to any property vegetation plan approved under the Native Vegetation Act 2003, or

(h) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(i) to any planning agreement within the meaning of Division 7.1 of the Act.

Determining whether clause 1.20 applies to your particular circumstances is sometimes difficult and you should always consult a competent and experienced planning lawyer who is familiar with the unique circumstances of your case.

Case Law

Lennard v Jessica Estates Pty Limited [2008] NSWCA 121

Lennard v Jessica Estates provides a good example of circumstances in which a restrictive covenant may be set aside to permit development to proceed.

In this case the developer of a residential subdivision (Jessica Estates) imposed a number of restrictions on parcels of land through registration of a s88B Instrument.

The s88B Instrument prohibited the construction of duplexes on, and subdivision of, the parcel of land purchased by the Lennards.

Semi-detached duplexes were permissible with consent on the land under the Singleton Local Environmental Plan (LEP).

Singleton Council granted consent to construction of a semi-detached duplex and two-lot strata subdivision on the land and the Lennards constructed a duplex on the site (without the consent of Jessica Estates).

Jessica Estates claimed that the Lennards were in breach of the s88B Instrument by building the duplex without first obtaining its written consent. It also sought orders that the Lennards be restrained from carrying out any further construction work and that they demolish the duplex.

The Lennards maintained that the restrictions in the s88B Instrument did not apply because of the operation of cl 6(1) of the LEP. That provision read:

“(1) If any agreement, covenant or similar instrument prohibits a land use allowed by this plan, then it shall not apply to that land use (to the extent necessary to allow that land use).”

Clause 6 was inserted into the LEP pursuant to s 28 (now s3.16) of the EPA Act (see above).

So, which prevailed, the s88B Instrument or the Singleton LEP?

Ultimately, the Court of Appeal held that the Singleton LEP prevailed.

The Court of Appeal held that the clear intent of cl 6(1) of the Singleton LEP was to permit a land use allowed by the Singleton LEP that was otherwise prohibited under a s88B Instrument (subject to obtaining the Council’s consent): Tobias JA at [27]. (McColl JA and Bell JA agreeing).

Clause 6(1) of the Singleton LEP adopted different language to that commonly found in clause 1.9A of most LEP’s today and referred to a “land use” rather than the “carrying out of development”. This distinction took up a lot of the argument in Lennard v Jessica Estates (as to whether subdivision constitutes a land use) but of relevance to this article, the Court held that if a particular development is permissible with consent under an LEP, then to the extent to which that land use or development is prevented by a s88B Instrument, that s88B Instrument is to have no application to the extent necessary to allow that land use or development to occur: Tobias JA at [27], (McColl JA and Bell JA agreeing).

What about covenants in favour of Council?

Covenants in favour of Council can be set aside, either by Council or by the Court.

Challister Limited v Blacktown City Council (1992) 76 LGRA 10 (Challister)

In Challister the NSW Land and Environment Court considered clause 26(1) of the Blacktown Local Environmental Plan 1988 (Blacktown LEP).

That clause provided that “…. the operation of any covenant, agreement or instrument imposing restrictions on development” did not apply to the carrying out of development in accordance with a development consent. The clause then contained the following subclauses:

(a) subclause (2), which provided that “nothing in subclause (1) shall affect the rights or interests of the council under any registered instrument”; and

(b) clause (3), which provided that “pursuant to section 28 of the Act, before themaking of this plan, the Governor approved of subclause (1).”

A s88(B) Instrument applied to Challister’s land which prohibited vehicular access from the land to one of two adjoining public roads. Blacktown City Council was the authority named in the instrument empowered to release, vary or modify the restriction.

Challister proposed to develop a service station on its land with vehicular access contrary to the prohibition in the s88B Instrument. The Council refused the application. Challister appealed the decision to the Land and Environment Court.

Recall that one of the preconditions to the insertion of the provision in an LEP is that the Governor must first approve of the provision. The Court found in this instance there was no evidence that the Governor had approved the making of clause 26(2). Mindful of the significant power of section 28 of the EPA Act (now s 3.16), and the significant curtailment of private property rights it occasions, the Court held that on the face of the instrument the Governor did not give his approval to subclause (2) and held that clause 26(2) was void and of no effect.

The Court also held that even if clause 26(2) were valid (protecting Council covenants), it did not operate as a jurisdictional bar to the grant of development consent. Section 28 (now s 3.16) of the EPA Act removes any bar to development being carried out, but it does not operate in the reverse by establishing a bar to prevent the approval or carrying out of development:

Section 28 was enacted for the purpose of enabling development to be carried out. To that end an environmental planning instrument may include the type of provision of which cl 26 is an example. In order to serve the purpose of enabling development to be carried out a regulatory instrument such as a restriction or covenant shall not apply to development which is carried out in accordance with an environmental planning instrument or in accordance with a consent granted under the Environmental Planning and Assessment Act.

Section 28(2) removes any bar to the development being carried out. It has no effect on whether development consent should be granted. The terms of the restrictive covenant are not a bar to the grant of a development consent. If a development consent is granted to permit a use which is in conflict with the terms of the restrictive covenant it does not follow that the development consent will be invalid. Neither does it follow that the developer must make application to the Supreme Court to have the covenant released varied or modified if the person having the power to release vary or modify the covenant refuses to co-operate.

Speaking specifically of covenants in favour of Council (albeit in obiter), Talbot J said:

In any case, there is no logical reason why the rights or interests of the Council should be placed in a special position in circumstances where the Council is the consent authority. Although it was not argued and has not played any part in my reasoning it is conceivable that subcl (2) is an attempt to prevent a developer from acting on a development consent granted by this Court of Appeal. If that be so, then, it could be repugnant to s 39(5) of the Land and Environment Court Act 1979 (NSW). It is not necessary to determine that in these proceedings.

This approach was endorsed by the Court of Appeal in Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 (‘Coshott’). In that case, Meagher JA, with whom Giles AJA and Simos AJA agreed, said:

The self-evident purpose of s 28 of the Act and cl 32 of LEP27 is to nullify and remove all obstacles to the planning principles decided on by the Council or the Minister. In this context s 28 of the Act is stating, in effect, "an environmental planning instrument may state what documents should be disregarded", and cl 32 of LEP27 is stating that one type of document to be disregarded is a document creating a restrictive covenant. As to the argument about the words "by or under whatever authority made", I am of the view that, although chosen without conspicuous felicity, they mean no more than "howsoever created".

Does the Land and Environment Court have power to set aside a restrictive covenant?

Chehab v City of Canada Bay Council (2002) 123 LGERA 431 (Chehab)

Chehab involved a question as to whether the NSW Land and Environment had power (on appeal) to set aside a covenant in a s 88B Instrument in favour of Council.

The NSW Land and Environment Court held that a provision excluding covenants in favour of Council was valid however the Court had powers to set aside such a covenant under s 39 (2) of the Land and Environment Court Act 1979.

The questions raised in Chehab (and answers) were:

(i) Does cl27(2) of the Drummoyne Local Environmental Plan (LEP) prevent the suspension of registered instruments where development permissible under an Environmental Planning Instrument is in conflict with the rights or interests of a public authority under a registered instrument? Or in other words does cl27(2) of the LEP preserve the enforceability of the covenant? [Yes]

(ii) Does s39(2) of the Land and Environment Court Act 1979 (the Court Act) permit the Court to release, vary or modify the instrument where the enforceability of the instrument is expressly preserved by an Environmental Planning Instrument? [Yes]

(iii) If the answer to question (ii) is "yes", whether the Court must still have regard to the instrument, as an instrument created under the Conveyancing Act 1919, pursuant to s39(4) of the Court Act? [Yes]

(iv) In the alternative, whether the Court must have regard to the instrument pursuant to s79C of the Environmental Planning and Assessment Act 1979 (the EP & A Act), being a matter for consideration in the determination of a development application as it is a matter arising from a provision of an Environmental Planning Instrument? [Yes]

(v) If the answer to question (iii) or (iv) is "yes", whether the Court must, in ascribing the weight to be attached to the instrument, give it "proper genuine and realistic consideration" or "significant weight"? [This is a question of fact for the tribunal of fact to decide - not a question of law].

The applicant in this case applied for development approval for alterations and additions to an existing dwelling, including the addition of a second storey and amendments of the internal layout. Council refused to grant approval to the DA. One of the bases of refusal was that the DA did not comply with a restrictive covenant registered on title (s.88B Instrument).

The Council was nominated as the body empowered to release, vary or modify the restrictive covenant. A term of the restrictive covenant provided:

Not more than one main building shall be erected on the Lot burdened and such building shall be a single storey dwelling only.

On the first question, Pain J at [5] held the covenant was preserved:

The parties agreed that the effect of cl27(2) of the LEP preserves the enforceability by the Council of the restriction as to user and I see no reason to differ from that view. Accordingly, the first question is answered in the affirmative.

On the second question of whether section 39(2) of the Court Act applies to permit the Court to release, vary or modify the restriction as to user, Pain J held that the Court did in fact have that power.

Section 39(2) states:

In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

Her Honour noted Stein J's finding in Willoughby Municipal Council v Huxley Homes Pty Ltd (Stein J, NSWLEC, 16 November 1989, unreported) in which Stein J stated:

It is not a question of the Land and Environment Court usurping the role or jurisdiction of the Supreme Court under s89 of the Conveyancing Act. The power of the Council which falls to the Court under s39(2) is to agree, as an incident to the building application, to release the restriction of user and not the jurisdiction of the Supreme Court to entertain an application for an order to modify or extinguish a restriction on user.

I see no need to call in aid s33 of the Interpretation Act but it is obvious that the object or purpose of s39 will be met if the Court can exercise the Council's power to release the restriction as an incident to the power to grant or refuse the building application. Similarly, I see no need to rely upon the wide wording in s22 of the Land and Environment Court Act.

Her Honour stated at [22]:

I consider, as the Applicant has argued, the law is clear in the cases I have been referred to that, pursuant to s39(2) of the Court Act, the Court has all the functions and discretions of the Council in respect of the matter which is the subject of the appeal. This includes the discretion to release, vary or modify the restriction as to user, the enforceability of which is preserved (in relation to the Council) by cl27(2) of the LEP.

Her Honour referred to McDougall v Warringah Shire Council (1993) 80 LGERA 151 (McDougall) in which Kirby J held that the Court had the power to exercise:

All the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval.

Further, Cripps JA in McDougall stated at [170]:

… The circumstance that it is not legally "necessary" for a resolution to be varied or modified does not, of itself, deny the power. In my opinion, the power exists provided there is a relevant nexus between the matter the subject of the appeal and the discretion or function proposed to be exercised.

Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 (Pro-Vision Developments)

In Pro-Vision Developments the applicants argued that a right of way was not caught by the operation of SEPP No. 5 (which applied in that case) because it was not an "agreement or covenant":

8 Suspension of certain covenants etc

(1) For the purpose of enabling development to be carried out in accordance with this Policy or in accordance with a consent granted under the Act, any agreement or covenant imposing restrictions on any such development, to the extent necessary to serve that purpose, does not apply to the development.

His Honour Lloyd J cited Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 in which the High Court declined to draw an analogy between restrictive covenants and equitable easements (at 162-163). Lloyd J considered the overlap between easements and restrictive covenants (at [19]-[20]) and held that SEPP No. 5 did not apply to easements or rights of way (at [21]), Accordingly the right of way was preserved.

However, His Honour went on to say that under section 39(2) of the Land and Environment Court Act 1979 for the purpose of hearing and disposing of an appeal, the Court has all the functions and discretions which the body whose decision is the subject of the appeal had in respect of the subject matter of the appeal. At [23]:

The rights of way in the present case are set out in an instrument registered under s 88B of the Conveyancing Act. The instrument states that the person empowered to release, vary or modify the easement is the Council of the Municipality of Ku-Ring-Gai. The powers of the Court under s 39(2) thus include the discretion to release, vary or modify the easement in the course of determining the development appeal, if the circumstances warrant ( Willoughby Municipal Council v Huxley Homes Pty Ltd , NSWLEC, Stein J, 16 November 1989, unreported, McDougall v Warringah Shire Council (1993) 80 LGERA 151, Chehab v Canada Bay City Council [2002] NSWLEC 220 per Pain J).

Opera Properties v Northern Beaches Council & Anor [2017] NSWLEC 1507 (Opera Properties)

In order for the Court's discretion to be enlivened, however, the suspension of the covenant must form part of the subject matter of the appeal . This may be satisfied by an applicant seeking an amendment to the covenant concurrently as part of the development application.

In Opera Properties the only vehicular access to the proposed development was via an existing right of carriageway (ROW) over the adjoining property to the east (Lot 10). It was an easement in gross. Lot 10 was owned by the Uniting Church and it had not granted consent to the development application or modification of the ROW. The applicant sought to amend the terms of the ROW (on Lot 10) to extend to owners, occupiers and visitors requiring access to the proposed development.

The Council argued that the Court lacked power to vary the easement and the terms of the ROW without the consent of the Uniting Church to the development application.

Dickson C was satisfied that the land the current development application "related to" did not include Lot 10 and was therefore consistent with the Court of Appeal case of Hillpalm v Tweed Shire Council [2002] NSWCA 332 and aligned closely with Huntington & Macgillivray v Hurstville City Council & Ors . Accordingly, the intensification of the use of the ROW fell within the definition of development under the Act and consistent with Macgillivray the applicant needed to apply for and obtain development consent for the intensification of use of the ROW (or obtain a varied or new easement) at [117]

Dickson C found that under section 39(2) of the Court Act, the Court can do what the Council can do in relation to the subject matter of the appeal, at [142]:

I am satisfied that that includes consideration of a variation to the easement which formed part of what was sought by the staged application. Accordingly the Court, on appeal, has the same discretion as the Council to determine whether to grant a variation to the easement as it relates to the "subject of the appeal".

However, ultimately the Commissioner refused to order the variation of the ROW required to allow the development to proceed on a number of grounds, particularly because the development application the subject of the appeal did not incorporate or particularise the works (over the ROW) required to address flaws in the ROW as an access with enough certainty form the Court to exercise the discretion sought.

Conclusion

Most LEPs contain a provision empowering a consent authority to set aside a restrictive covenant to the extent necessary to allow development that is otherwise permissible (with consent) to proceed.

The restrictive covenant is not extinguished, it is set aside, and may still be taken into account by the consent authority in determining a development application.

The NSW Land and Environment Court has considerable powers to set aside a restrictive covenant, even a restrictive covenant in favour of Council.

However, whether the relevant provision (either in an LEP or in the Codes SEPP) applies is often difficult to figure out and you should always consult a competent and experienced planning lawyer who is familiar with the unique circumstances of your case.

Guidelines on the withdrawal of development applications

mevans@whiteacre.com.au (Mark Evans) — Mon, 18 Dec 2023 03:15:39 GMT

The NSW Department of Planning and Environment ( Department ) has called out the unofficial practice of local councils encouraging proponents to withdraw development applications.

This is a positive step by the Department. The only thing left now is to stamp out the practice of refusing to accept development applications in the first place.

In October 2023 the Department released the “Guideline on the withdrawal of Development Applications”. The guideline can be accessed on the Department’s website here:

https://www.planning.nsw.gov.au/sites/default/files/2023-10/23a-guidelines-withdrawal-development-applications.pdf

The guideline specifically addresses “the practice of encouraging applicants to withdraw development applications rather than assessing them.”.

This practice achieves two main objectives. First, the application appears in the system as being “withdrawn” and the (often lengthy) assessment timeframe doesn’t count, particularly in that council’s performance data provided to the Department.

Second, because the application is not “refused”, the applicant loses their appeal rights to the NSW Land and Environment Court. Section 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) grants appeal rights to an applicant who is “dissatisfied with the determination of its application”. The application is withdrawn, not determined by the council.

The guideline is the latest attempt by the Department (including the introduction of the online NSW planning portal) to encourage local councils to improve processing times for development applications. Whether it will make any difference is doubtful.

Guidelines for the Withdrawal of Development Applications

Under the Guidelines for the Withdrawal of Development Applications, councils must be satisfied that the request to withdraw a DA is consistent with the following principles:

Many experienced town planners and developers will take particular note of (4) and (5) above.

Enforcement of the Guideline

So, what can the Department do about it? In practice, not much.

The Guidelines issued under section 23A of the Local Government Act 1993 ( LG Act ) require councils to consider the Guidelines in exercising its function. Section 23A of the LG Act simply provides that the Department may “from time to time prepare, adopt or vary guidelines relating to the exercise by a council of any of its functions.”: s 23A(1). Further s 23A(3) provides that a “council must take any relevant guidelines…into consideration before exercising any of its functions.”.

The Minister for Planning and Public Spaces retains the power to review how a council exercises its planning powers when considering the issue of Directions under Division 9.1 of the EPA Act to a council or the exercise of intervention powers, including the removal of planning powers.

We have yet to see either the Department, or the Office of Local Government strip local councils of their planning powers.

Alternatively, the Department will, in our view, continue to increasingly take responsibility (and workload) out of the hands of local councils through the expansion of development that is encompassed within the complying development code and other state environmental planning policies (SEPPs).

Takeaway for developers and proponents

If you have a development application that has been under assessment for a long time, and you are invited to withdraw the application you should think carefully before doing so and speak to a competent planning and environment lawyer regarding your appeal rights.

You should also ask the local council to describe in detail the reasons they may be considering refusing your development application.

Subdivision is not for any ultimate purpose - it is just subdivision

mevans@whiteacre.com.au (Mark Evans) — Fri, 15 Dec 2023 06:07:03 GMT

Subdivision is not development for any purpose other than the simple division of land.

Often consent authorities (local councils) will imply that subdivision must be for a purpose. Following subdivision, the reasoning goes, the subdivided lots are intended to be used for a purpose (for example a residential dwelling) and accordingly, council will impose conditions of consent regarding the end use of the subdivided lots.

This is true, to a point. Subdivision applications should not impose constraints on future use of subdivided lots, other than in exceptional circumstances.

This article explores the concept of subdivision in planning law and the end use of subdivided lots.

Introduction

“Subdivision of land” is defined in s 6.2(1) of the E nvironmental Planning and Assessment Act 1979 ( EPA Act ) as:

“the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition”.

Subdivision does not constitute a use of land. It follows that a proposal for subdivision does not seek approval for development for any particular purpose.

This conclusion is supported by case law.

Judicial consideration

In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 ( Smith ) Sugerman J explained, at [250], that:

“The approval of a subdivision into lots is in law, the approval of the subdivision simpliciter not its approval with any condition or for any particular purpose, such as shops or dwellings et cetera.”

His Honour continued:

“The Local Government Act does not contribute any particular effect to approval of a subdivision as regards the uses to which the subdivided land may be put, or the buildings which may be erected upon it.”

This makes sense. For example, a landowner could subdivide a parcel of rural land into two lots. After the subdivision, that same landowner could build a poultry farm on one lot and operate a gravel quarry on the other lot. The range of uses to which the subdivided land could be put following subdivision make it impossible to imply beforehand what use the land may serve.

Why local councils get this wrong

Unfortunately, when assessing development applications for subdivision many local council planners imply a use for the proposed subdivision and then impose conditions of consent relating to how the subdivided lots must be used, where dwellings and fences can be built, driveways and so on.

It's likely that this derives from the planning principle in Parrott v Kiama [2004] NSWLEC 77 ( Parrott) . In that case, Roseth SC at [17] posed the question “When should a subdivision application include information on the buildings to be built on the resulting allotments?”

Roseth SC stated:

“It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so.”

Roseth SC held that a subdivision application should provide constraints on future building in a number of specific, limited circumstances. Those circumstances are:

when the proposed allotments are smaller than usual
when the proposed lots are environmentally sensitive; or
where significant impacts on neighbours is likely and careful design is required to minimize those impacts.

There is an increasing trend amongst Council planners to take this planning principle and apply it across the board to all subdivisions. This overreaching misses the point in Parrott that it may only be appropriate to apply an end use in a number of rare and limited circumstances.

Cases following Parrott have confirmed the broad principle that subdivision does not involve any use of land.

In Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311 ( Broker ), although dealing with development contributions, Campbell JA (with whom Handley AJA agreed) rejected the proposition that the consent for residential subdivision was an implied consent for the use of the land for residential purposes (at [73]). The four bases for this conclusion were set out by Campbell JA at [75] to [87]:

“(1) Firstly, the subdivision consents were for no more than the subdivision of the land. While the lots were of a size and configuration and the conditions imposed required services to be provided to those lots and restrictions as to users under section 88B of the Conveyancing Act 1988 (NSW) to be imposed that were “obviously intended to make the lots ones that would ultimately be suitable for residential occupation”, the consents were not implied consents to any occupation of the land, whether for residential or other purposes.

(2) Secondly, even if there were any implied consent to residential use of the lots in the subdivision, the implied consent would not be unconditional and would not inhibit the respondent’s later consideration of development applications concerning the land.

(3) Thirdly, nothing in former section 81A(3) of the EP&A Act stated that a development consent for the subdivision of land authorised any other activity at all.

(4) Fourthly, Campbell JA found the appellant’s submission to be contrary to several cases, including the judgment of Sugerman J in [the] Smith case and Preston J in Wehbe.”

Finally, this question arose recently in Williams v Shellharbour City Counci l [2020] NSWLEC 3. In that case a separate question was raised for determination, whether the proposed subdivision being a community title subdivision was “development for any purpose”. If the proposed development was “development for a purpose” it was permissible with consent. If the proposed subdivision was not “development for a purpose” the consent authority lacked jurisdiction to grant consent to the proposed development.

His Honour Moore J applied the Court of Appeal’s ratio in Broker and accepted the Council’s argument that, commonly, a development application will be for subdivision and subsequent use. But not always. An applicant can choose a two-stage approach - being approval for subdivision and, subsequently (and only available if subdivision was approvable and was approved), application for development consent for any proposed use(s) of the land as subdivided.

Accordingly, His Honour held that the proposed subdivision was not development for a “purpose’ and the consent authority lacked jurisdiction to grant consent.

Conclusion

While local councils may advocate for specific purposes and impose conditions on subdivisions, it is crucial to recognize that subdivision in NSW is fundamentally about dividing land into smaller lots.

The planning principle in Parrott applies only to subdivision applications in limited circumstances.

Further, unless a development application specifies subdivision and a subsequent use, for example construction of a dwelling house, the development application is for subdivision alone and should be assessed as such.

Will the Nature Repair Market replace the NSW Biodiversity Offsets Scheme?

mevans@whiteacre.com.au (Mark Evans) — Thu, 07 Dec 2023 03:14:02 GMT

Probably not.

The NSW Biodiversity Offsets Scheme

The NSW Biodiversity Offset Scheme (BOS) creates a detailed process for the assessment and offsetting of impacts on biodiversity values in connection with proposed development in NSW.

The proposed (Cth) Nature Repair Market is ostensibly aimed at achieving something different.

Proposed Nature Repair Market

The Nature Repair Market Bill 2023 (the Bill ) would create a framework for a voluntary national market. Eligible landholders who undertake projects that enhance or protect biodiversity would be able to receive tradeable certificates ( biodiversity certificates ) that will be tracked through a national register.

The Nature Repair Market is designed to connect private organisations and philanthropists wanting to fund this work with landholders who are willing and capable of doing it.

The key here is voluntary .

The scheme is voluntary for landholders and (currently) voluntary for investors/organizations or philanthropists to engage in.

Offsetting under the Nature Repair Market?

Currently, there is no proposal that would require (or allow) development proponents in NSW to use tradeable certificates generated under the Nature Repair Market to offset impacts on biodiversity in NSW.

However, the Bill does hint at using biodiversity certificates for environmental offsetting purposes.

The Bill makes provision for a biodiversity certificate to include a statement whether the certificate is being used for an “environmental offsetting purpose” and, if it is being used for such a purpose, the “law (state or Cth) that creates the relevant environmental offsetting requirement”.

This has led many to suspect that the proposed Nature Repair Market will create a Commonwealth offsetting and trading system similar to the NSW BOS.

However, given the Greens opposition to any kind of offsetting under the proposed Nature Repair Market, and the complexity of the NSW scheme, the status quo in NSW is likely to change any time soon.

You can access the Bill and second reading speeches here:

https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r7014

Costs in Class 1 Appeals in NSW Land and Environment Court

mevans@whiteacre.com.au (Mark Evans) — Mon, 27 Nov 2023 03:05:35 GMT

Normally, each party pays their own costs in an appeal against refusal to grant development consent. The Applicant pays its legal and consultants costs and the respondent Council likewise. However, respondent Councils will often ask for payment of their “costs thrown away” as a result of the applicant amending its plans. This article considers those costs and when they may arise.

Introduction

In most litigation, the loser pays the winner’s costs of the proceedings. This is known as “costs follow the event”. Whether you need to pay the other party’s costs in proceedings in the NSW Land and Environment Court depends on which jurisdiction you are in.

In Class 1 merit appeals – for example, an appeal against refusal by a Council to grant development consent, each party pays their own costs. In Class 4 “judicial review” proceedings, the loser pays the winner’s costs of the proceedings. This article considers costs in Class 1 merit appeals. For discussion on costs in Class 4 proceedings check out our article on our website.

Presumption is that each party pays their own costs

Section 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) gives an applicant the right to appeal against the actual or deemed refusal of a development application. The appeal is brought in Class 1 of the NSW Land and Environment Court’s jurisdiction.

Section 74 of the Land and Environment Court Act 1979 provides that the Court may make rules with respect to a number of things, one of those things being the cost of proceedings in the Court. Rule 3.7 of the Land and Environment Court Rules 2007 (LEC Rules) creates a presumption that the Court is not to make an order for costs unless the Court considers the making of an order to be “fair and reasonable”.

In practice, the Court very rarely makes an order of costs against a party in Class 1 proceedings. There are good policy reasons for this. The Court does not wish to discourage applicants from exercising their right to appeal against an administrative decision to refuse a development application.

Applicants often ask us whether they can recover their costs from Council, particularly where Council may have made mistakes, unreasonably delayed or unreasonably refused a development application. Applicants very rarely succeed in costs applications against a respondent Council.

Rule 3.7 of the LEC Rules sets out circumstances in which the Court may consider making a costs order against a party is fair and reasonable. They are:

(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i) in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

(b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents:

(i) that are required by law to be provided in relation to any application the subject of the proceedings, or

(ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,

(d) that a party has acted unreasonably in the conduct of the proceedings,

(e) that a party has commenced or defended the proceedings for an improper purpose,

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

Astute observers will notice “(c) a party has acted unreasonably in circumstances leading up to the proceedings” and “(d) that a party has acted unreasonably in the conduct of the proceedings” and often claim that the particular respondent Councils fit the bill.

However, in our experience, the Court very rarely considers a cost order against a respondent Council in Class 1 Appeals. Opening the “flood gates” to applicants seeking orders of this kind would be extremely costly to Councils across NSW.

So, the status quo is that 90% of the time, there is a presumption that each party to a Class 1 Appeal pays it’s own costs. Except “costs thrown away”.

Costs “thrown away”

Section 8.15(3) of the EPA Act provides that, if an applicant is granted leave to amend its application, including amending its plans during proceedings, the respondent Council is entitled to its costs “thrown away” as a result of the amendment.

8.15 Miscellaneous provisions relating to appeals under this Division

(cf previous s 97B; s 39A Land and Environment Court Act)

(3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.

Accordingly, in order for the Court to make a costs order in favour of a respondent Council pursuant to s 8.15(3) there needs to be:

An amendment to the application for development consent;
Which is other than a minor amendment;
In respect of which there have been costs thrown away.

What is an amendment to the development application?

Commissioner Clay considered this question in Thomas v Georges River Council [2020] NSWLEC 1473 ( Thomas v Georges River ) and found a distinction between additional information provided by the applicant in that case as opposed to documents that were required to form part of the development application. Costs thrown away were not payable with respect to additional information, costs were payable with respect to documents that formed part of the development application.

The Environmental Planning and Assessment Regulation 2000 (subsequently repealed) ( EPA Reg ) distinguishes between a development application and the information required within it on the one hand, and the documents to accompany a development application on the other.

The documents which are required to accompany a development application include a statement of environmental effects, an environmental impact statement where appropriate, a species impact statement where appropriate, engineering drawings when appropriate, a series of other types of documents which are relevant to the development the subject of an application. In Thomas v Georges River the applicant was granted leave to rely on the following:

1) Amended SEE;

2) Amended plan of management;

3) Letter from consultant;

4) Access assessment report;

5) BCA assessment report; and

6) Acoustic report.

Commissioner Clay considered that these documents relied on by the applicant fell into the category of documents which accompany the development application. None of those documents amounted to an amendment of the development application, they were more in the nature of additional information, rather than an amendment of the development application.

That is not to say that an accompanying document could never have the effect of amending a development application, it could, but there is a clear distinction between provision of additional information by an applicant and amendment of the development application itself. In circumstances where a respondent Council seeks additional clarification or expert evidence from the applicant in the nature of additional information, as opposed to an amendment of the development application itself, a right to costs “thrown away” under s 8.15(3) of the EPA Act is not enlivened.

When is an amendment more than minor?

In Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 ( Futurespace ) Justice Pepper held that the total cumulative effect of a number of small changes added up to an amendment to a development application that was “more than minor”.

With respect to s 8.15(3) of the EPA Act, Her Honour found that if the amendments were more than minor, the applicant must in effect pay the Council’s costs incurred in respect of the assessment of the original development application. The applicant in Futurespace submitted that because the amendments proposed were all capable of being addressed by a condition and were, in the main, “matters of detail” when considered both individually and in the context of the site as a whole, they were “minor” for the purposes of s 8.15(3) of the EPA Act.

Council on the other hand submitted that, viewed as a whole, the amendments were anything but minor. The Council submitted that in circumstances where the applicant elected to make the amendments and was not required to do so, no unfairness resulted in the payment by it of costs. This is because the applicant is presumed, in making the amendments, to have thought them necessary. This is a process that could have been undertaken prior to the filing of the appeal. It would not, therefore, be fair to impose upon the Council the costs associated with considering the plans a second time.

Her Honour Pepper J accepted the submissions of Council that the words of s 8.15(3) evidenced a clear intention of the Parliament to impose a liability for costs on an applicant who seeks to rely on an amended development application for anything other than minor amendments, irrespective of whether or not the amendments are ultimately beneficial.

Her Honour found that to the extent that the amendments require significant assessment by the consent authority then they are less likely to constitute minor amendments for the purpose of the provision.

This is because the amendments contained in the amended plans clearly contemplate a change to the development application that is more than “minor”, or in the applicant’s words, more than “mere detail”.

Pepper J ordered that the applicant pay the respondent Council’s costs incurred in respect of the assessment of, and the proceedings related to, the original development application the subject of the appeal.

Conclusion

There is a presumption that, absent unreasonable conduct or delay, each party pays its own costs of a Class 1 appeal.

However, if the applicant is granted leave to amend its development application, the respondent Council may seek an order for costs thrown away pursuant to s 8.15(3) of the EPA Act.

In order for the Court to make a costs order in favour of a respondent Council pursuant to s 8.15(3) there needs to be:

1. an amendment to the application for development consent;

2. which is other than a minor amendment;

3. in respect of which there have been costs thrown away.

In the majority of cases, it is preferable for the applicant and respondent to settle the position of costs thrown away if an applicant is considering amending the development application in a way that may result in resolution of the dispute.

If you are considering commencing an appeal against the deemed or actual refusal of your development application, you should seek legal advice from a competent practitioner who regularly practices in this area…

Abandonment of easements in NSW and removal from title

mevans@whiteacre.com.au (Mark Evans) — Sun, 26 Nov 2023 03:15:35 GMT

In NSW there are two avenues by which easements can be removed from the Register.

Section 49 of the Real Property Act 1900 (Real Property Act) allows the Registrar-General to treat an easement as abandoned (and remove the recording from the Register) if the Registrar-General is satisfied that the easement has not been used for at least 20 years .

We describe this process as the “administrative process”.

Section 89(1) of the Conveyancing Act 1919 (Conveyancing Act) empowers the NSW Supreme Court to modify or wholly or partially extinguish an easement if the Court is satisfied that certain grounds are made out.

We describe this process as the “court process”.

This article explores both the “administrative process” under s 49 of the Real Property Act and the “court process” under s 89 of the Conveyancing Act.

Administrative process – removal by Registrar-General

A person can make an application to the Registrar-General to cancel the recording of an easement in the Register.

Section 49 provides:

49 Cancellation of recordings of easements after abandonment, consolidation of tenements or release

(1) The Registrar-General may cancel a recording relating to an easement in the Register if the easement has been abandoned.

(1A) The Registrar-General may, under this section, cancel a recording relating to an easement in relation to—

(a) all of the land benefited or burdened by the easement, or

(b) any one or more of the lots, or part of a lot, burdened by the easement, or

(2) An easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years before the application for the cancellation of the recording is made to the Registrar-General, whether that period commenced before, on or after, the date of assent to the Property Legislation Amendment (Easements) Act 1995.

(3) However, an easement is not capable of being abandoned—

(a) if the easement does not benefit land, or

(b) to the extent (if any) that the easement benefits land owned by the Crown, or by a public or local authority constituted by an Act, or

(4) Before cancelling any such recording, the Registrar-General must—

(a) serve a notice of intention to cancel the recording, personally or by post, on—

(i) where the instrument creating the easement does not allow the identification of the land benefited by the easement—any person that the Registrar-General considers should receive such a notice taking into consideration the nature and location of the easement, the circumstances surrounding the creation of the easement and the physical characteristics of any relevant land, or

(ii) in any other case—all persons having a registered estate or interest in land benefited by the easement, and

(b) consider any submission made by those persons (but only if the submission is made by the date specified in the notice, being a date later than one month from the date on which the notice is served).

(4A) However, the Registrar-General may give notice of the intention to cancel a recording to some or all of the persons referred to in subsection (4) (a) by advertisement in a newspaper rather than by personal or postal service if the Registrar-General is of the opinion that—

(a) it is appropriate in the circumstances to give notice by advertisement in a newspaper, and

(b) the relevant easement is unlikely to be of real benefit to the land benefited by the easement because the land benefited is no longer connected to the land burdened by the easement in a way that allows access to the site of the easement.

Section 49 of the Real Property Act allows the Registrar-General to treat an easement as abandoned if it is satisfied that the easement has not been used for at least 20 years.

It has been suggested (and argued in court) that s 49 may make 20 years of non-use the “sole determinant” for removal. This suggestion is based on the explanatory memorandum which preceded the enactment of s 49 in 1995 (the section has since been amended but not in any relevant way).

The 1995 explanatory memorandum stated:

Proposed section 49 will allow the Registrar-General, after giving notice of intention to do so to cancel the registration of certain easements that have been abandoned. Lack of use of an easement for a period of 20 years or more (whether commencing before or after the amendments commence) will be sufficient evidence of abandonment.

This argument does find some ground in the explanatory memorandum, however, in construing the terms of s 49, the Court looks at the text of the legislation, not legislative aids like the explanatory memorandum unless there is ambiguity: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.

Parker J considered this recently in Sheppard v Smith [2021] NSWSC 1207 ( Sheppard v Smith ) and rejected the submission finding at [141]:

“The structure of RPA, s 49 is consistent with the common law approach of inferring abandonment from non-user (usually in conjunction with something more). Subsection (1) is the principal provision. It makes the removal of the easement dependent upon whether it has been established that the easement has in fact been “abandoned”. Subsection (2) operates in an auxiliary way, by providing that the easement may be treated as abandoned as a result of non-user for a prescribed period of time.”

Put another way, s 49(1) allows the Registrar-General to remove the easement if it has been abandoned – considering all of the common law aspects of abandonment. Section 49(2) makes non-use for 20 years one of the indicia of abandonment, but not the sole determinant.

Parker J continued at [142]:

“At the time s 49 was enacted, the term “abandonment” had a well settled common law meaning. On the face of it, there is no reason to think that the Parliament intended to depart from that meaning. Indeed, the fact that CA, s 89(1)(b) applied to RPA land suggests to the contrary. There should not be attributed to Parliament an intention that the outcome of an application to remove an easement on the ground of abandonment could be different depending upon whether the application is made the Registrar-General on the one hand or the Court on the other. Especially is that so when, as will be seen below, the contemplation appears to have been that applications to the Registrar-General which became contentious would be referred to the Court for resolution.”

[our emphasis]

The process under section 49

Usually, an owner of burdened land will make an application to the Registrar-General to remove the recording of an easement from the Register.

The Registrar-General must then give notice of the application and will invite the owner of the benefited land to make submissions as to why the easement has not been abandoned and why it should not be cancelled. The Registrar General must consider those submissions before deciding to cancel the easement.

Because the easement is a valuable property right, the Registrar-General will not treat the cancellation of the easement lightly. However, these applications are managed in NSW by the land titles office (currently the NSW LRS) through delegated authority. Section 49(4)(a) requires the Registrar-General to give notice of the application for removal, s 49(b) requires the Registrar-General to “consider submissions” made but that is it. It is conceivable (and in fact the NSW LRS confirm this) that the Registrar-General, having considered the submissions made will proceed to remove the easement from the Register without further notice to the landowners.

For this reason you can, and should obtain competent legal advice if you are in this situation and consider very carefully whether a caveat should be lodged preventing the Registrar-General (NSW LRS) from progressing the application under s 49.

Common law principles of abandonment

As seen above in Sheppard v Smith , section 49 of the Real Property Act does not alter the common law principles governing abandonment, and so it should not entitle the Registrar-General to treat a particular easement as abandoned, despite non-use for at least 20 years, if the Registrar-General has other evidence showing that it has not, in fact, been abandoned: Sheppard v Smith [2022] NSWCA 167; Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017 at 1024; Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 at 339.

Evidence that an easement has not been abandoned can be established by, amongst other things, using the easement, expressing an intention to keep and use the easement and carrying out works on the easement.

Whether an easement is lost, according to the common law principles governing abandonment is a question of fact on all the circumstances. The onus of proof is on the person alleging abandonment.

Because an easement is a valuable property right, abandonment is not lightly found. Owners of the benefited land are not to be presumed to intend to give up an easement – even when they have no present use for it – unless to do so is to their advantage: Gotobed v Pridmore (1970) 115 Sol J 78.

In the authorities on abandonment, one principle stands out above all others: an easement is not abandoned by mere non-use: Re Marriott [1968] VR 260 at 273; Grill v Hockey (1991) 5 BPR 11,421 (no abandonment of right of way, despite non-use for 17 years); Long v Michie [2003] NSWSC 233 (non-use since 1940s, perhaps earlier).
This is not to deny that non-use over a long period of time is a relevant circumstance – indeed the longer the non-use, the more likely that the easement has been abandoned, but it is not, of itself, decisive: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 288; Guth v Robinson (1977) 1 BPR 9209; McIntyre v Porter [1983] 2 VR 439.

There must be shown on the part of the benefited land owner “a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else”: Tehidy Minerals Ltd v Normal [1971] 2 QB 528 at 553; Guth v Robinson (1977) 1 BPR 9209 at 9214; Jennison v Traficante (1980) 1 BPR 9657; Finlayson v Campbell (1997) 8 BPR 15,703 at 15,717; Grill v Hockey (1991) 5 BPR 11,421 at 11,424.

Thus, in addition to non-use, there generally will need to be other factors that demonstrate an intention to give up the easement. An example is where the owner of the benefited land not only does not use an easement for many years, but also makes changes to the site in a way that effectively makes future use impossible: Northern Pacific Railway Co v Tacoma Junk Co 244 P 117 (Washington 1926); Heg v Alldredge 99 P 3d 914 (Washington 2004).

But the future use must be rendered impossible. Thus, erecting a paling fence across the site of a right of way is almost certainly not abandonment, as paling fences can be easily removed: Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525. Even erecting a wall across a right of way is generally not abandonment, as walls can be demolished, or doors opened in them: Bookville Pty Ltd v O’Loghlen [2008] VSCA 27.

An example of the difficulty in establishing abandonment is Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 288. There, a majority of the High Court held that a right of way had not been abandoned, even though sheer rock faces made the way impassable in places, an impenetrable bamboo clump had grown across it, the owner of the benefited land had co-operated in placing a fence across it, a swimming pool obstructed part of it, and the way had never been used in its entirety since its creation in 1927. Again, in Long v Michie [2003] NSWSC 233, a right of way was not abandoned despite non-use for at least 60 years, and despite the obstruction of the way by a gate, stored materials, and a garden, trees and shrubs (all of which were, of course, removable).

More recently, in Sheppard v Smith owners of the benefited land had built a fence effectively blocking access to the right of way, a low brick garden bed also made use of the right of way difficult and owners of the burdened land had enclosed the right of way and converted part of it to a rear studio. The Court found that, in the circumstances, none of those things provided conclusive evidence that the right of way had been abandoned.

Sheppard v Smith was appealed to the NSW Court of Appeal which upheld the findings and reasoning of the judge at first instance.

Court process – Removal by order of Supreme Court

An alternative route available to the owners of the burdened land is to seek an order from the NSW Supreme Court to modify or extinguish the easement pursuant to s 89 of the Conveyancing Act 1919.

Section 89 empowers the Supreme Court to modify or wholly or partially extinguish an easement if satisfied that certain grounds are made out. These grounds may be summarised thus (adopting the paragraph numbering of the section):

That because of a change in use of the benefited land, or change in the character of the neighbourhood, or other circumstances, the easement “ought to be deemed obsolete”, or that its continued existence would impede the reasonable use of the burdened land without securing practical benefit to the persons entitled to the easement; or

That those entitled to the easement have agreed to the easement being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part; or

That the modification or extinguishment would not substantially injure those entitled to the easement.

By s 89(1A), added in 2009, for the purposes of abandonment, the court may treat an easement as abandoned if satisfied that the easement has not been used for at least 20 years.

Section 89 was inserted into the Conveyancing Act by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) . In the second reading speech, the Minister relevantly stated:

Under section 49 of the Real Property Act 1900 a person may apply to have the easement removed from the Register if it can be proven that the easement is abandoned. As it has proven almost impossible to establish abandonment according to the complex rules that apply at common law this provision provides a simplified statutory basis for abandonment of easements. As such the provision allows a practical means of removing from the register notifications of easements that are no longer relevant to the land.

However should someone dispute an application to the Registrar General for abandonment of easement then this issue is dealt with by the Supreme Court under section 89 of the Conveyancing Act 1919 and not section 49 of the Real Property Act 1900. In the small number of cases that have been litigated under section 89 of the Conveyancing Act 1919 it has become apparent that there is a conflict between section 49 of the Real Property Act and section 89 of the Conveyancing Act 1919.

In adjudicating on a disputed application for abandonment of easement the Supreme Court under section 89 of the Conveyancing Act 1919 applies the common law rules of abandonment that require an applicant to establish that the owner of the easement "intended" to abandon the easement. The difficulties in supplying such evidence to the Court make it almost impossible for an applicant seeking abandonment to succeed. This difficulty was part of the reason for the introduction of the objective test of 20 years non-use that is applied in section 49.

Accordingly it is also proposed to remove the inconsistency between the two sections by providing that the Court may apply the same criteria as that [sic] applied by the Registrar General under section 49 of the Real Property Act. This may be achieved by providing in section 89 of the Conveyancing Act 1900 that where an application is made to the Court for an order extinguishing an easement abandonment may be inferred if the Court is satisfied that the easement has not been used for at least 20 years.

It is not clear which decisions the Minister was referring to when he spoke of a conflict between s 89 Conveyancing Act and s 49 R eal Property Act . Be that as it may, it appears the main objective disclosed in the Minister’s speech, to import the s 49 procedure into s 89 of the Conveyancing Act is still achieved.

Parker J considered this recently in Sheppard v Smith and held at [145]:

“… In my view the effect of introducing CA, s 89(1A) is that in a case where there is no user of an easement for twenty years, and no other evidence to negate the intention of the person benefitting from the easement to abandon it, the condition for extinguishment is established. It does not otherwise affect the application of the traditional common law approach to abandonment.”

[our emphasis]

It follows that s 89 is permissive, not obligatory. It confers on the Supreme Court the same power as the Registrar-General (under s 49 Real Property Act ), but similarly does not require the Court to find that abandonment has occurred on evidence of 20 years’ non-use alone. In other words, it seems unlikely that s 89 has changed the common law of abandonment and it operates similar to s 49 of the Real Property Act to create a “presumption” of abandonment following 20 years of non-use which can be rebutted by the owner of the benefited land.

The provision will not apply where there is evidence that during the 20-year period access has been prevented by improvements obstructing the right of way: Effeney v Millar Investments Pty Ltd [2011] NSWSC 708 at [94]-[111].

Finally, authority suggests that s 89 of the C onveyancing Act 1919 is said to give the Court a discretion to order that an easement has been abandoned not only by acts or omissions of the current registered proprietor of the benefited land, but also by the acts or omissions of predecessors in title, even though the easement remained recorded in the Register at the time the benefited land passed to the present owner: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 285-287; Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 at 614-616.

Parker J considered the relevance of conduct by predecessors in title recently in Sheppard v Smith at [146] as did the Court of Appeal in Sheppard v Smith [2022] NSWCA 167 ultimately finding that it was not necessary to resolve this question in that case. Nevertheless, both the Court of Appeal and the NSW Supreme Court found that conduct by predecessors in title may be relevant and left the door open to this issue being agitated at a later date. The exceptions to indefeasibility of title may grow larger still.

Nevertheless, the Court may decline to exercise that discretion. Relevant factors include whether the present owner had only recently become registered, had bought on the faith of the Register, and had actively pursued the exercise of the easement: Long v Michie [2003] NSWSC 233 per Austin J at [8].

Conclusion

There are two avenues by which easements can be removed from the Register - the “administrative process” under s 49 of the Real Property Act and the “court process” under s 89 of the Conveyancing Act.

Section 49(1) Real Property Act grants the Registrar-General the power to remove the easement if it has been abandoned – considering all of the common law aspects of abandonment. Section 49(2) makes non-use for 20 years one of the indicia of abandonment, but not the sole determinant.

An alternative route available is to seek an order from the NSW Supreme Court to modify or extinguish the easement pursuant to s 89 of the Conveyancing Act 1919. Section 89 confers on the Supreme Court the same power as the Registrar-General (under s 49 Real Property Act ), but similarly does not require the Court to find that abandonment has occurred on evidence of 20 years’ non-use alone.

In addition to non-use, there generally will need to be other factors that demonstrate an intention on the part of the owner of the benefited land to give up the easement.

The conduct of predecessors in title may be relevant.

If you are the owner of land burdened by an easement and are considering making an application to remove the easement from the Register, or you are the owner of land benefited by an easement and have been notified of such an application, you will require evidence of historical use of the easement and competent, expert advice on how to proceed.

This article is a general overview of the relevant provisions and case law and is not intended to be legal advice. You should obtain expert, legal advice having regard to your own personal circumstances.

Desired Future Character

Mon, 22 May 2023 01:00:00 GMT

This article examines what is desired future character, current measures that local councils adopt to assess desired future character and recommendations to adopt a more strategic planning approach.

What is desired future character?

The “Local Character and Place Guideline” issued by the NSW Department of Planning and Environment (Department) defines “local character” as:

“what makes a neighbourhood distinctive and is the identity of a place. It encompasses the way it looks and feels. It is created by a combination of land, people, the built environment, history, culture and tradition including Aboriginal and non-Aboriginal, and looks at how they interact to make a distinctive character of an area.”

In Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 ( Woollahra v SJD ), Chief Justice Preston (at [52]) described “desired future character” as:

“In considering what constitutes the desired future character of an area it is relevant to consider at least the zoning of the land, the zone objectives, the range of permissible uses, the development standards, and in this case the designation of heritage significance of the area…

These provisions do not exhaustively define and fix the desired future character, it is also relevant to look at existing built and natural elements in the locality as well as approved developments.”

Articulating desired future character through planning instruments

Traditionally, local councils have sought to incorporate local character and desired future character into the assessment of proposed development through development standards in Local Environmental Plans ( LEPs ) and, in greater detail through guidelines in Development Control Plans ( DCPs ).

The development standards in an LEP are, principally:

1.1 zoning, land use and objectives of zones;

1.2 minimum lot sizes;

1.3 height of buildings;

1.4 floor space ratio; and

1.5 heritage significance.

Zoning and development standards in LEPs are linked to maps over the local government area in an attempt to preserve local character and control desired future character. Often however, the maps are insufficiently detailed, apply indiscriminately over broad areas and do not account for street level character and topographical constraints.

In Woollahra v SJD, Preston CJ (at [59]) clarified that the desired future character of the neighbourhood or an area exists before and informs the development standards in the LEP, not the other way around. The development standards in the LEP do not exhaustively define and fix the desired future character of an area and the council (and court) may have regard to matters other than development standards to evaluate whether proposed development meets the desired future character of an area.

This interpretation of desired future character creates a problem for councils seeking to define and control desired future character through an LEP, because in addition to the LEP, a consent authority may have reference to “external factors such as the developments that are approved and constructed in the neighbourhood or area.” (per Preston CJ at [54]). Some of the developments that have been approved in the neighbourhood may be the result of contested court appeals or rely on exceptions to development standards via clause 4.6 of the relevant LEP.

Local mapping and development standards initially thought by Council to define desired future character do not take into account variations, increases and decreases to those standards wrought through state-wide instruments such as the State Environmental Planning Policy (Housing) 2021 .

“Desired future character” is also not defined in an LEP. Consequently, in Woollahra v SJD, Preston CJ held (at [54]) that, there was “no limitation found in the subject matter, scope and purpose of WLEP which would preclude consideration of developments that have been approved and constructed in the neighbourhood or area”.

A local consent authority or the court should, but were not bound to, take into consideration desired future character provisions of a DCP where the DCP contained desired future character provisions which were not defined in the LEP.

A DCP is subordinate to an LEP and cannot be used to interpret the provisions of an LEP: Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60; [2007] NSWCA 137 at [41]; Plaintiff M47-2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46 at [56]. The tail does not wag the dog.

These issues demonstrate why reliance on Council’s LEP and DCP alone will be insufficient to adequately articulate and control desired future character.

A strategic approach

If local councils wish to better articulate and control desired future character in a local area, they need to adopt a strategic planning approach aimed at better integrating local character into consideration and determination of development applications that is formulated and implemented in accordance with the Department’s guidelines.

In February 2019, the Department released the “Local Character and Place Guideline” and the “Discussion Paper – Local Character Overlays” ( Discussion Paper ).

As stated above, reliance on development standards in a council’s LEP alone will be insufficient to meaningfully articulate and integrate local character areas into assessment of development applications.

A clear definition of “desired future character” is required in a Council’s LEP and a clear link must be established between Council’s LEP, DCP, local character statements and local character mapping.

The Department described in the Discussion Paper how this would occur in two ways:

a. the creation of “local character mapping”; and

b. an associated clause within an LEP which would identify additional assessment requirements and point directly to the local character mapping, local character statements and guidelines in Council’s DCP.

These measures would only be effective (and acceptable to the Department) where they are derived from community consultation and where they align with broader strategic objectives, namely regional and district strategic plans and Council’s LSPS and Local Housing Strategy.

Community Consultation

Local councils may already have a community participation plan, though to the extent they do not, councils should develop a community engagement strategy that identifies local stakeholders and the approach councils will use to engage with those who may not regularly have contact with council to seek meaningful input into the identification and mapping of local character areas.

Mapping and local character statement

Local councils should also consider drawing and mapping local character areas. Often, words in development standards are an inadequate medium to convey sentiment, feel and character of place. Where possible, Councils can consider engaging community and local artists to pictorially represent local streetscapes and character of places.

These maps and drawings should be accompanied by a local character statement of an area’s history, its aspirations and what the desired future character of the area looks like. The local character statement can articulate the local character with a written description of intangible and tangible values and characteristics of a place.

Local character overlay and linking clause in LEP

Amendments to the LEP would be required to create a link to a local character overlay, a local character statement and/or controls within a DCP. It could also seek to exclude or vary statewide policy (for example, State Environmental Planning Policies).

Specifically, the Department has stated that a local character overlay could:

a. “identify the defined character area and map its boundaries;

b. identify the characterisation for the area (as outlined in the Local Character and Place Guideline; and

c. trigger local variations and in exceptional circumstances local exclusions from statewide policy.”

The Department states that a local council wishing to support local character through their LEP could “…submit a planning proposal in line with the standardised map layer and associated clause…”

The Department would review all submitted planning proposals against published criteria to evaluate the benefits and impacts of introducing a local character overlay.

The local character overlay should be centred on having undertaken a strategic planning process and ideally will follow the local council's local strategic planning statement and local housing strategy.

The benefits of this approach are better alignment with Council’s strategic framework, regional and district plans and a greater likelihood of support from the Department.

A local character overlay would not only have the benefit of community consultation and input but also impose a legal requirement to consider and accommodate desired future character in proposed development through the insertion of a clause in Council’s LEP.

Conclusion

All too often Council planners are forced to rely on development standards in LEPs and DCPs to seek to articulate desired future character of an area. Councils cannot define and control desired future character through an LEP alone.

To articulate and enforce desired future character, local councils need to do the leavy lifting and adopt a strategic approach that incorporates community consultation, detailed mapping of local character areas and insertion of a clause in a council’s LEP linking these measures to the assessment and determination of development applications in a meaningful way.

Encroachments

Sun, 14 May 2023 22:00:01 GMT

This article is about encroachments and what you can do if you find a building or other structure encroaching on your land.

In New South Wales problems with encroaching buildings are dealt with under the Encroachment of Buildings Act 1922 ( Act ).

The Act gives the NSW Land and Environment Court ( LEC ) power to settle encroachment disputes between neighbours.

What is an encroachment?

The Act allows the LEC to make orders in respect of any encroachment by a "substantial building" of a "permanent character".

This requirement of "substantial building" of a permanent character has been interpreted broadly and held to encompass a concrete driveway, retaining wall, protruding floor beams and a fence set in concrete foundations.

What can the LEC do about it?

The LEC can make whatever order it deems "just" with respect to:

(1) the payment of compensation to the person on whose land the encroachment sits;

(2) the conveyance, transfer, or lease, of the area over which the encroachment sits; or

(3) the removal of the encroachment.

So, there’s 3 options, payment of compensation, grant an interest in the land upon which the encroachment sits or order removal of the encroachment.

If the LEC decides that an encroachment should be remedied, it can order transfer of ownership of the land on which the encroachment sits or where it might be more appropriate in the circumstances the LEC can order the grant of a lesser interest such as an easement or a lease, especially as it is normally only necessary for the encroaching owner to have rights over the land for the life of the building or structure. Alternatively, the LEC may order the encroachment to be demolished or the encroaching structure moved to within the proper boundaries.

In some cases, for example where the encroachment is minor or trifling so as to cause little to no inconvenience to the enjoyment of your land the LEC my grant no relief at all, thus permitting the encroachment to remain.

What does the Court consider when determining whether to make an order?

The LEC will consider when choosing between these options things like:

the situation and value of the land encroached upon and the nature and extent of the encroachment;

the character of the encroaching building, the loss and damage which has been or will be incurred;

the loss and damage which would be incurred by the encroaching owner if the encroaching owner is required to remove the encroachment; and

the circumstances in which the encroachment was made.

Note that this list is not exhaustive.

Other relevant matters might include any arrangement between neighbours permitting the encroachment to occur and to remain and importantly, whether the neighbours (especially the applicant) knew of the encroachment when purchasing the land.

It is also worth nothing that in reaching a decision the LEC must take into account circumstances in which the owner of the land may have conducted itself in a way in which that neighbour would later be prevented from asserting the existence of the encroachment (for example where they had actively encouraged the encroachment or where they purchased the property with a reduced purchase price on account of the encroachment).

Who pays the cost of the LEC proceedings?

The LEC has the power to order payment of costs, charges, and expenses as it deems "just“ so it has a wide discretion as to how costs are dealt with.

The LEC can take into account any offers made before the proceedings were commenced. This means if your neighbour gives you an offer of compensation before the proceedings or during the proceedings you would need to consider that offer carefully as it could be used later in the event that the LEC makes an award for compensation that is less than the amount offered by your neighbour.

Normally in this jurisdiction, the loser pays the winner's cost, although sometimes the LEC may deem it appropriate to leave each party to pay their own costs.

If you are concerned about an encroachment on your land or just want advice, contact us and we can advise you on the appropriate course to take.

Physical commencement and lapsing of development consents

Sat, 13 May 2023 00:50:54 GMT

This article examines case law in New South Wales and examples of works that have been held to constitute physical commencement.

Recent changes to the Environmental Planning and Assessment Regulation 2000 ( EPA Reg 2000 ) in 15 May 2020 specifically exclude some works from constituting “physical commencement”.

Developers and construction companies can minimize the risk of their development consent lapsing by carefully reviewing the conditions of consent to understand exactly what works may be undertaken to activate a development consent.

Lapsing of Development Consent

Development consents typically lapse after 5 years.

Section 4.53 of the Environmental Planning and Assessment Act of 1979 ( EPA Act ) provides that, in most cases, a development consent will lapse after 5 years from the date from which it operates. That period can be shortened by the relevant consent authority.

Physical commencement

The term “physical commencement” is not a defined term in the EPA Act. Instead, it is derived from s (02) 9145 0900 of the EPA Act which states that development consent for the erection of a building, or subdivision of land, or the carrying out of a work:

“does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse…”

In the past, Courts were asked to consider specific examples of works that were undertaken and whether those works fell within “building, engineering or construction work” and whether those works related to the land the subject of the development consent. Over time, the terms “physical commencement” and “building, engineering or construction work” were given a broad interpretation.

Before the introduction of s 124AA into the EPA Reg 2000 (now s 96 of the Environmental Planning and Assessment Regulation 2021 ( EPA Reg 2021 )), examples of works that were held to be sufficient to prevent a development consent from lapsing were:

survey work including clearing of vegetation, digging of holes, placement of permanent marks and placement of pegs or stakes as recovery marks: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169 ( Hunter Development );
geotechnical work including excavation of test pits and testing of soil samples: Hunter Development; and
clearing of shrubs (site clearing): Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26; 237 LGERA 128 ( Cando ).

Case law

Hunter Development

In Hunter Development the Court held (at [83]) that physical surveying work on the land involving the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks including the centre points of an approved subdivision road were part of the engineering work required for the establishment and construction of the subdivision.

There is, however, an element of fact and degree. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not necessarily qualify (per Tobias JA at [86]).

There must be a real nexus between the work and the approved consent. In particular, the concept that the work must be "physically commenced", requires physical activity which involves an appearance of reality and which is not merely a sham: (per Tobias JA at [86]).

Further, the Court held that the excavation and testing of the soil samples was “engineering work” that had been physically commenced on the land notwithstanding that the soil was analysed elsewhere. The excavation of the soil samples and their subsequent testing was a necessary step in the satisfaction of the conditions of the consent (at [117]).

De Battista

In De Battista v Shoalhaven City Council [2020] NSWLEC 164 ( De Battista ), the work accepted as physical commencement included preliminary investigations consisting of engineering analysis of soil and a geotechnical assessment which included a recommended pavement thickness design.

Cando

In Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26; 237 LGERA 128 ( Cando ) the Court of Appeal held that clearing of shrubs constituted “construction work” relating to the land the subject of the consent and was therefore “physical commencement” of works. Accordingly, the consent did not lapse.

The developer in that case undertook a number of unauthorised works on the site including the clearing of trees. The Court of Appeal (at [115]) held that the removal of trees breached the conditions of the consent and could not be relied upon.

However, the development consent contained no conditions which restricted the removal of bushes and general site clearing. The Court held that it was not a natural use of language to define the removal of trees or the clearing of bushes on site as “demolition works” which were governed by conditions of consent.

Accordingly, because the removal of bushes was a necessary antecedent step in the development and because the removal of bushes did not result in a breach of any of the conditions of the consent, the developer could rely on those works as “physical commencement” of construction works on the site and the consent did not lapse: per White JA at [117] – [118].

New test of physical commencement

Perhaps as a result of the caselaw above (which set a low bar for the works that could achieve physical commencement) a new definition of “physical commencement” was introduced into the EPA Reg 2000 in May 2020 (now s 96 of the EPA Reg 2021).

The new definition provides:

“1. For the purposes of section (02) 9145 0900 of the Act, work is not taken to have been physically commenced merely by the doing of any one or more of the following—

creating a bore hole for soil testing,
removing water or soil for testing,
carrying out survey work, including the placing of pegs or other survey equipment,
acoustic testing,
removing vegetation as an ancillary activity,
marking the ground to indicate how land is to be developed.

2. This clause does not apply to a development consent granted before the commencement of this clause.”

As a result, for development consents granted after the commencement of the new clause (15 May 2020) the previous low bar derived from the case law above and the broad interpretation of “physical commencement” will no longer be available to holders of development consents.

The new test is much more onerous and minor, preparatory works may no longer suffice to prevent the lapsing of development consent.

The new test does not, however, state what works may be sufficient to constitute physical commencement. Earlier case law may still be relevant, particularly Hunter Developments . The new test still requires that the works relied upon are (1) “building, engineering or constructions works” (2) have a physical nexus to the land and (3) are more than a “sham”.

We expect that the new test will start to bite in relation to development consents granted after 15 May 2020, but for the time being, development consents granted before this time are being dealt with in the courts. Some further examples of those cases are set out below.

Ongoing case law following commencement of the new test

PAG Services

In PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 ( PAG Services ) the Land and Environment Court accepted that the removal of coastal cypress pines, banksia and “various pruning” was sufficient to activate the development consent.

The Court applied the savings provision in s 96(2) of the EPA Reg 2021 and applied the previous test in determining if the physical works amounted to physical commencement. The Court held that the clearing of vegetation in this case constituted “construction work” which was very much an initial commencement of the road works. These works were permitted and contemplated by the development consent, physically commenced on the land to which the consent related and were undertaken prior to the lapsing date.

Phillip Rise

In Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28 ( Phillip Rise ) the Court applied the test in Hunter Development and accepted that acid sulphate soil testing was relevantly engineering work that was capable of constituting the physical commencement of development.

The Court held that such work is related to the development even if it serves more than the purpose of activating the consent.

Hitchcock v Reed

In Hitchcock v Reed [2022] NSWLEC 81 ( Hitchcock v Reed ), the works relied upon consisted of demolition of existing dormer windows associated with an alteration to the northern side roof of the existing dwelling house to accommodate a larger dormer window were deemed as substantial engineering, demolition, and construction works to existing structures on the site.

However, the applicant failed to comply with conditions of the development consent prior to undertaking the works relied upon. As a result, the works relied upon were not in accordance with the Consent, could not be said to “relate to” the development works and could not be described as having “commenced” the development the subject of the Consent.

Accordingly, the Court declared that the Consent has lapsed.

Donvito

In Donvito v Hawkesbury City Council [2022] NSWLEC 26 ( Donvito ), the Court ruled that the works involving the creation of the two apertures in the wall to the existing structure and prior construction works including “Acrow‑propping” physically commenced the 2013 consent. Since the consent was proposed to be carried out in stages, and that the first stage did not include any work to the asbestos‑sheeting roof, it was appropriate that this could be deferred for satisfaction until the stage when such works to the roof were contemplated.

Chu v Inner West

In Chu v Inner West Council [2022] NSWLEC 14 ( Chu v Inner West ) , the Court did not accept that asbestos inspection was sufficient to physically commence the development. It ruled that the physical attendance of the asbestos consultant on-site and his thorough visual inspection and tapping of walls did not amount to physical commencement of the development to which the Consent relates.

Additionally, clearing of trees was relied upon. The Court held that the tree work, which it considered “site works”, being preparatory works to ready the site, was carried out in breach of the conditions of the Consent and therefore the work could not amount to physical commencement of the development to which the Consent relates.

There was no compliance as to the protection of adjoining areas, installing tree protection measures, notice to neighbors, a waste management plan in place, etc. before the tree work commenced. Accordingly, the Court held that there was no physical commencement of works in this case that would prevent the consent from lapsing.

Conclusion

The conditions of the development consent and the type and nature of works that may constitute physical commencement sufficient to prevent a development consent from lapsing must be carefully considered.

We can also undertake a detailed review of any proposed conditions of consent and advise on any opportunity to minimise your risk in relation to enlivening your future development consent.

If you have any questions regarding any aspect of this article, please feel free to get in touch.

Introduction to the Biodiversity Offset Scheme for Developers

Wed, 03 May 2023 10:17:01 GMT

A few things developers should know about the NSW Biodiversity Offset Scheme

The Biodiversity Conservation Act 2016 ( BC Act ) and accompanying regulations creating the Biodiversity Offset Scheme ( BOS ) represent a substantial overhaul of conservation laws in NSW.

This article provides a summary of the new scheme and more particularly, the options available to developers purchasing and retiring biodiversity credits ( Credits ).

Offsetting Impacts

Depending on your site, you will often have 4 choices to offset environmental impacts:

find and buy suitable biodiversity credits;
pay an amount directly into the Fund;
undertake other biodiversity actions that qualify as biodiversity conservation measures; or
any combination of the above.

How does the new Biodiversity Offset Scheme work?

The new BOS replaces the biobanking scheme. The BOS provides a new process for the assessment and offsetting of impacts on biodiversity values in connection with proposed development.

The BOS is designed to create a system for the creation and sale of biodiversity credits by landowners to those impacting the environment.

Does the Biodiversity Offset Scheme apply to your development?

The following developments are subject to the BOS and applications for development consent must include a Biodiversity Development Assessment Report ( BDAR ):

development needing consent under Part 4 of the EP&A Act (excluding complying development);
activities under Part 5 of the EP&A Act;
state significant development and State significant infrastructure.

If your proposed development impacts biodiversity above a certain threshold (BOS Threshold), you will need to engage an accredited assessor to prepare a BDAR.

The BOS Threshold takes into account the impact of:

clearing of native vegetation and the loss of habitat;
development on the following habitat of threatened species or ecological communities:
karst, caves, crevices, cliffs and other geological features of significance;
rocks;
human made structures;
non-native vegetation,
development on the connectivity of different areas of habitat of threatened species;
development on the movement of threatened species that maintains their lifecycle;
development on water quality, water bodies and hydrological processes that sustain threatened species and threatened ecological communities, and
wind turbine strikes or vehicle strikes on protected animals.

If your proposed development is “likely to significantly affect threatened species”, you will also need to submit a BDAR. Whether development is “likely to significantly affect threatened species” is determined by:

the test in section 7.3 of the BC Act; and
whether the development is in a declared area of "outstanding biodiversity value".

The BDAR will determine the impact of your proposed development on biodiversity values and the biodiversity conservation measures (including the retirement of Credits) needed to avoid or minimize that impact. The BDAR is a key document in the process and will govern the actions you need to take to proceed with your development. An ecologist can assist you to prepare a BDAR but it is critical that you engage a professional and experienced accredited assessor to prepare the BDAR.

A consent authority must consider the BDAR when determining whether to grant development consent for the proposed development. If consent is granted, the consent authority must include a requirement to retire Credits in the conditions of consent.

Serious and irreversible impacts

If your development will have serious and irreversible impacts on biodiversity values the consent authority cannot and will not consent to your development in its current form.

The determination of "serious and irreversible impacts on biodiversity values" varies but generally means an impact that is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct. For example, reducing the population size of a species that has a very small population size or impacting the habitat of a species that only occurs within a very limited geographic distribution.

This determination in your BDAR can relate to only some areas or sometimes the whole area of the proposed development meaning those areas cannot be cleared or impacted, regardless of any proposed offsets or biodiversity conservation measures.

Offsetting the impact of your development

Depending on the requirements contained in the BDAR and determined by the consent authority, the measures to offset your development impact are any one or a combination of the following:

retirement of the required number and class of like-for-like Credits ("like for like" means the same threatened ecological community or class of vegetation located in the same sub region as the impacted site or within 100kms of the site);
payment of the value of the Credits (determined by the Biodiversity Conservation Trust (Trust)) directly into the Biodiversity Conservation Fund (Fund) to satisfy the requirement to retire Credits;
the retirement of the required Credits in accordance with the variation rules; and
the funding of a biodiversity conservation action that would benefit the relevant threatened species or ecological community and that is equivalent to the cost of acquiring the required like-for-like Credits.

Buy credits from a credit holder privately or pay into the Fund?

Landowners generate Credits on biodiversity stewardship sites. They do this through setting aside and managing tracts of their land in return for classes of Credits which can be publicly traded through the OEH register. Credit holders (usually landowners) seek to sell the Credits to developers at a price negotiated privately between the parties.

In practice, paying an amount into the Fund will often be the most convenient (and often only) choice for a developer. The amount per Credit you must pay into the Fund is determined by the Trust according to the formula provided in the Calculator. It's best to get the accredited assessor you engage for the BDAR to calculate this amount.

The Calculator uses a 'base price' for each type of Credit multiplied by a risk factor and a Trust administration fee. The base price fluctuates and reflects the number of trades recently conducted and the price paid per Credit under those trades. The risk factor represents a risk loading the Trust applies in the Calculator to cover the Trust's risk in undertaking biodiversity conservation measures later with the money you pay into the Fund now. Usually the price per Credit charged by credit holders would be less than the cost to pay directly into the Fund as credit holders would not charge the risk factor or administration fee and both parties can negotiate a better deal.

In areas where many "trades" have already been made, the data used by the Trust in the Calculator is robust and Credits are publicly available for developers to purchase. In most areas outside of metropolitan Sydney, the Hunter Valley and the Illawarra region this is not the case and the Trust will be indirectly setting the market price through the Calculator base price for some time to come.

Buying credits – that's the end of the story?

In most cases, the Credit will be transferred by the Credit holder to the developer on settlement of the purchase. The purchaser of a Credit must apply in writing to the OEH to retire the Credit.

Buyer beware - the OEH can refuse an application to retire a Credit for a number of reasons. Most importantly if the OEH becomes aware that any payment required to be made to the Biodiversity Stewardship Payments Fund by the landowner in relation to the Credit has not been made (the Payments Fund is different to the Conservation Fund – landowners generating Credits are required to pay a dedicated amount of the money they receive from sale of the Credits to the Payments Fund). It is important for developers to ensure that appropriate checks are made and the purchase of Credits is undertaken by a professional adviser with experience in this area.

This area of law is new and rapidly evolving. Complying with your biodiversity conservation measures and purchasing Credits must be carefully managed.

Court confirms development standards not a jurisdictional fact

Wed, 03 May 2023 09:51:46 GMT

Court of Appeal confirms consent valid, despite exceeding height controls

The NSW Court of Appeal delivered a decision in which it found height controls are not a “jurisdictional fact”.

The decision has important implications for developers with existing consents and parties seeking to challenge the validity of existing consents.

In El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78, neighbours sought to have a development consent invalidated because they established that the development exceeded the relevant height controls. This evidence was not before the Commissioner of the Land and Environment Court who granted the development consent. The Court of Appeal held that compliance with the height control was not a jurisdictional fact and, despite the height exceedance, the development consent granted by the Commissioner was valid.

Commissioner granted consent; development complied with height controls

The applicant and Council reached agreement during the s 34 conciliation process.

Section 34(3) of the Land and Environment Court Act 1979 ( LEC Act ) requires that the Commissioner must dispose of the proceedings in accordance with the agreement, if it is a decision the Court can make in the proper exercise of its functions:

(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions ), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and

(b) must set out in writing the terms of the decision.

[our emphasis]

The Commissioner satisfied himself that the agreed decision was one that the Court “could have made in the proper exercise of its functions” and accordingly made orders granting consent.

A survey by the neighbours later disclosed that a small triangle of the building envelope exceeded the 9m height control.

The neighbours sought judicial review of the Commissioner’s decision in the NSW Court of Appeal on the basis that the Commissioner had no power to grant the consent because it was not a decision that the “Court could have made in the proper exercise of its functions,” within the meaning of s34(3).

The question before the Court of Appeal was whether compliance with the height control was a jurisdictional fact which could be reviewed by the Court of Appeal on the basis of evidence (of the height exceedance) that was not before the Land and Environment Court.

Compliance with height control not a “jurisdictional fact”

Leeming JA (Gleeson JA and Adamson JA agreeing) at [53] held that compliance with the height control in the Kogarah LEP, being a matter to which regard was required pursuant to s 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 ( EPA Act ), was not a jurisdictional fact for a number of reasons.

Firstly, there are good public policy reasons why development consents should not be open to subsequent challenge on the basis of new evidence that may come to light. If the jurisdiction of a court or consent authority is contingent on the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of development consents will always be open to question until some higher court or tribunal, possessing power to determine the question declares that the requisite facts exist and the proceedings of the court were valid ( Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 per Dixon J at 391). This would create so much uncertainty and public inconvenience that, if the legislature intended this to be the case, it would be clearly expressed in the relevant legislation.

Secondly, statutory context is important. The matters to which a consent authority must have regard in s 4.15(1)(a) of the EPA Act sit among a number of other matters in s 4.15(1)(b), (c) and (d) which are all evaluative, not objective facts. His Honour Leeming JA stated, “…paragraphs (b), (c), (d) and (e) are all evaluative and could not plausibly be regarded as jurisdictional facts, and for that reason it is unlikely that paragraph (a) would be in a different position.”

Finally, the statutory process of development approval involves a process of public consultation during which objectors have an entitlement to make their views known, which tells against a legislative purpose permitting challenges on the basis of different evidence in the Court’s supervisory jurisdiction.

In the case of a successful conciliation conference, consideration of s 4.15 of the EPA Act occurs when the Court forms the opinion required by s 34(3) that the agreed decision is one which the Court could have made in the proper exercise of its functions. But compliance with the environmental planning instrument is not a jurisdictional prerequisite to the power to grant consent (per Leeming JA at [74]).

Key Takeaways

1. There are good policy reasons why superior Courts will be reluctant to invalidate a development consent on the basis of evidence brought before the Court that was not made available to the decision maker in the first instance.

2. Different considerations may apply where a development consent has been obtained through fraud. There was no evidence of fraud in this instance.

3. This case is not authority that compliance with height controls is unnecessary. Consent authorities will continue to apply a strict approach to compliance with development standards in an LEP, especially height controls. At first instance, development standards like minimum lot sizes and height controls cannot be exceeded without a well-supported cl 4.6 request.

Guide to buying and retiring biodiversity credits

Tue, 02 May 2023 10:02:17 GMT

Things to consider when buying and transferring biodiversity credits in NSW

This article provides some practical tips for things to consider when negotiating the purchase and transfer of biodiversity credits.

Landowners in NSW can generate credits by establishing biodiversity stewardship sites over their land. They do this through setting aside and managing tracts of their land in return for classes of credits, which can be publicly traded. There is a statutory process to register these sites. Credit holders (usually landowners) then seek to sell the credits to developers at a price negotiated privately between the parties.

We have been involved in a number of transactions in this emerging market involving the sale and transfer and retirement of credits. This space is still relatively new and untested and there are a number of potential pitfalls to be wary of.

Identify the owner of the credits

The "owner" of the credits will ordinarily be the landowner but not this is not always the case. Though less frequent, there is scope under the scheme for the vendor of the biodiversity credits to be someone other than the owner of the biodiversity stewardship site.

Conduct searches to ensure the vendor has the right to transfer the biodiversity credits.

Outstanding breaches of the Biodiversity Conservation Act

There is provision under the Biodiversity Conservation Act 2016 for the Department to cancel or suspend biodiversity credits where, for example, the landowner has failed to carry out management actions or is in breach of their biodiversity stewardship agreement (see sections 6.23-6.25).

Appropriate checks should be undertaken (and warranties included in the transfer agreement) to ensure that the landowner is not currently in breach of their obligations or the Department has not indicated an intention to suspend or cancel the biodiversity credits.

Ensure the number and type of credits being traded are available

We have been involved in transactions where the owner of a stewardship site has lost track of the number of credits previously traded and offered to sell more credits than the number of credits actually remaining. This only became apparent after a check of the register.

It is important to ensure that the number and type of credits the vendor is purporting to sell are still available for transfer.

Payment of the Total Fund Deposit

The owner of the credits is obliged to pay a portion of the funds they receive from the sale into the Biodiversity Stewardship Payments Fund. The obligation to pay into the Biodiversity Stewardship Payments Fund arises on the first transfer of the biodiversity credits and the amount is calculated based on the ratio of credits transferred (see section 6.21).

The rules as to how this amount is calculated and when it is paid vary under the old Biobanking Scheme and the new Biodiversity Offsets Scheme but from a purchaser's perspective the risk is the same. If the Fund deposit is not made, the Department will refuse to register the retirement of the biodiversity credits. The risk for a purchaser is that payment is made to the vendor, the vendor does not make the required Fund deposit and, some time later when the purchaser seeks to retire the purchased credits the Department refuses to register the retirement of the credits.

Owners of credits will understandably be reluctant to disclose the amount of the Fund deposit required and there is currently no mechanism to check whether this amount has been paid other than seeking confirmation directly from the Department.

Careful drafting of the sale agreement and adequate due diligence and understanding of the NSW Biodiversity Offsets Scheme is required to ensure this risk is dealt with and the purchaser obtains what they are paying for to satisfy their obligations under the scheme.

When is a boundary realignment "minor" and therefore exempt development?

mevans@whiteacre.com.au (Mark Evans) — Mon, 07 Nov 2022 04:05:05 GMT

A boundary realignment must be "minor" to be exempt

Clause 2.75 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ( Codes SEPP ) sets out a number of criteria a "boundary realignment" must meet to be exempt development for the purposes of the code.

Amongst other things, clause 2.75(b)(vi) requires that the realignment of boundaries in zones RU1, RU2, RU3, RU4, RU6, E1, E2, E3 or E4 must ‘not result in more than a minor change in the area of any lot’. In any other zone (for example R1 or R2) the realignment must not result in a change in the area of any lot of more than 10%.

What is a ‘realignment of boundaries’?

In McCabe & Others v Blue Mountains City Council [2006] NSWLEC 176 ( McCabe ), Jagot J was asked to consider the term ‘boundary adjustment’.

Under cl 2.75(b) of the Codes SEPP, the relevant terminology is a ‘realignment of boundaries’, not ‘boundary adjustment’ however, the principles from McCabe regarding a ‘boundary adjustment’ remain helpful.

In McCabe, Jagot J considered the meaning of the phrase ‘boundary adjustment’ and held at [56]:

"I do not accept that the “ordinary and grammatical meaning” of the phrase “… for a boundary adjustment” embraces any and all alterations of a boundary that make land suitable for an applicant's requirements. I consider that the primary meaning conveyed by the clause, construed in its immediate and more general context, accords with the notion of an alteration of a boundary by correction or regularisation , whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical)…"

[our emphasis]

‘Boundary adjustment’ implies a degree of ‘correction or regularisation’ of a boundary.

Jagot J also considered the purpose of allowing boundary adjustments as an exception to a prohibition on certain subdivisions, and stated:

"I infer that the purpose of the provisions is to prohibit subdivision of such land other than in the limited circumstances identified so as not to enlarge, materially or significantly, the overall development potential of such land. Construing cl 34.4(c)(i) so as to permit subdivision by way of any and all alterations of a boundary (whether or not the resulting lots bear any resemblance to the existing lots) provided that no additional lots are created, does not accord well with that purpose."

[our emphasis]

More recently, in Johnson v Coffs Harbour City Council [2018] NSWLEC 1094 ( Johnson ), Commissioner Gray considered the words ‘adjusting the boundary’ in cl 4.2D of the Coffs Harbour Local Environmental Plan 2013 :

‘(3) Despite clause 4.1, development consent may be granted to subdivide land by adjusting the boundary between adjoining lots if one or more lots do not meet the minimum lot size shown on the Lot Size Map in relation to that land …’

[our emphasis]

The Commissioner at [25] found that the decisions of the Court in Ousley Pty Ltd v Warringah Shire Council [1999] NSWLEC 143 (Ousley) and McCabe set out the relevant principles on the question of whether an application constitutes an “adjustment” of the boundary between allotments.

Those principles are:

Ousley - the resulting parcels of land must bear some resemblance to the lots which existed before the subdivision (per Talbot J at [21]); and

McCabe – ‘boundary adjustment’ is limited to an alteration of a boundary by correction or regularisation, whether that correction or regularisation is to reflect actual conditions (such as physical features of the land or its zoning) or to achieve some other requirement or objective (for example, to render the use of land feasible or more practical) (per Jagot J at [56]).

The Commissioner applied Ousley and McCabe and held that the proposed subdivision was not an adjustment of the boundary between allotments for three reasons (at [45]-[47]):

One - the change to the boundaries was so significant that it could not be considered “adjusting”;

Two - the resulting lots would not bear sufficient resemblance to the existing lots; and

Three - the size of one of the lots (Lot 200) would be increased so significantly that it would be more than simply a slight or marginal adjustment to boundaries. Lot 200 would increase from comprising 6.6% of the total site area to 50% of the total site area.

Conclusion

Accordingly, a realignment of boundaries increasing the area of a lot by more than 10% in a residential zone will not satisfy the requirements of the Codes SEPP and will require development consent.

However, it is not so clear in rural and environmental zones (RU1, RU2, C3 etc). The principles from McCabe and Ousley (applied in Johnson) remain instructive and need to be applied on a case by case basis.

If you are considering a boundary adjustment, we suggest seeking competent planning or legal advice before commencing on the assumption that the adjustment is exempt development for the purposes of the Codes SEPP.

Characterisation of Development in NSW

mevans@whiteacre.com.au (Mark Evans) — Mon, 10 Oct 2022 00:15:25 GMT

If you're looking for a planning and environment law solicitor , look no further. Whiteacre has got you covered, offering trusted and professional advice and representation for all matters involving planning and environmental law.

Characterisation of development can be tricky and this article discusses how to characterise development and some of the guidance given by the NSW Land and Environment Court on this topic.

Why is “characterisation” important?

If you are considering making an application for development consent, one of the first things you will need to confirm is whether your proposed development is permissible (with consent) in the relevant local zoning.

All land is given a specific zoning under the relevant local environmental plan ( LEP ) for that area, for example “R2 Low Density Residential” or “RU1 Primary Production”. The relevant LEP will set out types of development that are permissible (with consent) and prohibited within that zone, for example “dual occupancies” and “dwelling houses” might be permissible, whilst “boarding houses” and “group homes” might not.

Accordingly, it is important to characterise development properly because it can mean the difference between your proposed development being permissible (with consent) or prohibited.

Characterisation of development

The principles relevant to characterisation were identified in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 and Shire of Perth v O'Keefe [1964] HCA 37.

From Chamwell we learn that the use of land must be for a purpose. The use of land involves physical acts by which the land is made to serve some purpose. For example, the physical acts on the land might be construction of a house and landscaping but the purpose is the use of a dwelling house, that is the ordinary occupation of the house as a domicile.

In the case of retail development, such as a supermarket, the purpose can only be achieved by the physical acts of constructing the retail space, building a loading dock and carpark, installing signage and so on. These are the physical acts to build the supermarket and are the means by which the land is made to serve the retail purpose of the supermarket and are viewed together as a whole, not independently.

This was important in Chamwell because retail premises were permitted on part of the site but not on others. The applicant contended that part of the development that occurred in the basement and areas where retail was prohibited were actually “roads” and “carparking”, both uses which were permissible with consent. In contrast, the NSW Land and Environment Court held that the characterisation of the entire development is that of “retail premises” and all of the associated activities in the development application for the retail premises (the supermarket) fell within that characterisation. The proper characterisation of the construction of the roads and carpark were not construction of roads and a carpark in and of themselves, but part of the necessary construction of a supermarket. If the use of the land for a supermarket is permitted on some of the site, but not on others, the use will not be permitted.

The important lesson from Chamwell is that the proposed development must be looked at as a whole and not broken into discrete parts and it is the ultimate purpose of the proposed development that is important. Again, using the example of a house, a single physical structure of a house can be made to serve many different purposes, some of which may be permissible uses, others prohibited. The house may be used as a simple residential dwelling (permissible), pet grooming business (permissible), brothel (prohibited), boarding house (prohibited).

A number of different uses

Where things can get tricky is that a number of different uses may occur within a single premises at the same time. Consider the humble old service station which will usually comprise a number of different uses – retail sale of petrol products, attached workshop for minor repairs and sale of food and drinks inside the shop. The service station may enjoy a development consent for use as a service station (permitted) while the sale of food and drinks inside the shop form an ancillary or subservient use of the land. Provided the sale of food and drinks inside the shop form an ancillary or subservient use and the use as a service station remains the dominant purpose of development on the land, it will be permissible. However, if the retail sale of petrol products ceases or the sale of food and drinks dominates the site it may be an independent use on the same land or a dominant use and require development consent or even be prohibited within the site.

As you can see, characterisation of development is important but can often be tricky and involve matters of fact and degree. This is a complex area of law and if you are concerned about the development you are proposing and how it may be characterised or whether it may be permissible or prohibited, contact us and we can advise you on the appropriate course to take.

What Is Compulsory Acquisition and How Does It Affect You?

mevans@whiteacre.com.au (Mark Evans) — Fri, 30 Sep 2022 01:45:25 GMT

Are you looking for a planning lawyer that can help you deal with a compulsory acquisition matter? Whiteacre has got you covered! You can rely on us to achieve the best possible compensation outcome for your particular case.

When governments are faced with the need to build infrastructure or upgrade existing services, they can use what is known as compulsory acquisition.

This process allows the government to acquire privately owned land from owners, who get compensation in exchange. The primary objective of compulsory acquisition is to balance the rights of landowners with the needs of the community as a whole. However, it can be an intimidating prospect for landowners and other stakeholders involved in these processes. To learn more about compulsory acquisition and its implications for you, keep reading.

What is compulsory acquisition?

Compulsory acquisition is the exercise of power by a government department or institution to acquire private property for for a project that is in the public interest such as infrastructure, public safety or an emergency.

A compulsory acquisition can have a significant impact on those who own property in the path of the proposed project. The government can compulsorily acquire your land whether you want to sell or not.

Who is entitled to compensation?

Under the Act, all owners of property that are compulsorily acquired are entitled to compensation. This includes the owner of the land, as well as any other persons with an interest in the land, such as a mortgagee or tenant.

How is compensation calculated?

Section 55 of the Land Acquisition Act 1991 (NSW) sets out the principles for calculating just terms compensation. Compensation must be based on:

(a) the market value of the land on the date of its acquisition,

(b) any special value of the land to the person on the date of its acquisition,

(d) any loss attributable to disturbance,

(e) the disadvantage resulting from relocation,

(f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

Here's what you can expect on each step of the compulsory acquisition process.

Land Acquisition Process

If you just got a notice of property acquisition Commencement Letter, also called an " Opening Letter ," you will have at least 6 months to negotiate compensation.

1. Proposed Acquisition Notice (PAN)

The acquiring authority will issue a Proposed Acquisition Notice and start the compulsory acquisition process if an agreement is not achieved through negotiation within the first 6 months. The PAN must be issued at least 90 days prior to the land acquisitions

You can continue working to reach an agreement with the acquiring authority.

2. Land Acquired

If the compensation agreement is still not reached within 90-120 days after the PAN has been issued, the acquiring authority will compulsorily acquire the land affected.

An "Acquisition Notice" will be published in the Gazette.

This means that:

the NSW Governor approved the acquisition
following the publication, the compensation owed to you will be determined and;
the acquiring authority is now the new owner of the land

You can seek legal and valuation advice.

3. Valuer-General Determines Compensation

If the landowner and the acquiring authority cannot agree on compensation, the matter is referred to the Valuer-General. The Valuer-General will determine the amount of compensation to be paid by the acquiring authority.

The Valuer-General shares all valuation information with you and the acquiring authority.

4. Preliminary Valuation Report Received

The Valuer-General will issue a Preliminary Valuation Report to both owner and acquiring authority, which sets out the proposed compensation. The owner then has 10 days to make feedback to the Valuer-General in response to the Preliminary Valuation Report.

5. Final Determination of Compensation Received

The Valuer-General will issue a Final Determination of Compensation, which is the amount of money to be paid by the acquiring authority to the owner for the acquisition of their land.

If the owner accepts the valuation, they will receive the compensation within 28 days and the land will be transferred to the acquiring authority. You have to complete and sign a Deed of Release and Indemnity, which will be provided by the acquiring authority and return this to them.

6. Objections to Compensation

If the owner does not agree with the valuation, you can ask Whiteacre to lodge an appeal with the NSW Land and Environment Court within 90 days of receiving the compensation notice from the acquiring authority.

The Court will hear both sides and make a decision on the matter. This decision is final.

Conclusion

Compulsory acquisition can be a stressful and confusing process, but it is important to remember that you do have legal rights and options throughout. If you are ever unsure of what to do or where to turn, seek professional legal and/or valuation advice as soon as possible.

Whiteacre Legal can help you every step of the way, from negotiating with the acquiring authority to lodging an appeal. We will make sure that you will get the full compensation that you are entitled to. Contact us today for an initial consultation.

Does an Amended LEP Apply to Your Development Application?

mevans@whiteacre.com.au (Mark Evans) — Tue, 06 Sep 2022 03:16:03 GMT

What happens if a Local Environmental Plan (LEP) is amended between the date of lodgement of your DA and the date of determination?

LEP in place at the time of determination applies

The accepted legal position is that a development application is to be determined on the law as it stands at the time of determination: Sofi v Wollondilly Shire Council (1975) 31 LGERA 416.

Unless the amending LEP contains a specific savings provision, a DA must be determined in accordance with the law as at the date of the determination.

What if the amendment does not contain a savings provision?

Occasionally an amending LEP or other legislation does not contain a savings provision.

This could mean that under the LEP your proposed development was permissible. But, between the date you lodge a DA and the date of determination, Council amends its LEP, such that your proposed development is now prohibited. Your proposed development was permissible when you lodged the DA, but is now prohibited at the date of determination. Under this example, Council must refuse your DA because the proposed development is now prohibited.

This situation is similar to that faced by the applicant in De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1.

Most LEP’s will contain a savings provision based on the model clause 1.8A:

1.8A Savings provision relating to development applications

In De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1, Craig J held that cl 1.8A had an “ambulatory” operation, meaning that it operated with respect to the LEP as amended from time to time. The DA in question was therefore “saved” and the amendments to the LEP (prohibiting the development) did not apply to the DA because the DA was lodged before the amendments were made to the LEP.

However, the NSW Court of Appeal overturned this decision in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189. The Court of Appeal held that savings provisions like clause 1.8A relate only to the point in time when the new LEP commences (in this case 2010), not each subsequent amendment to the LEP. That is, savings provisions “ deal with a precise point in time, namely the point at which a new legal instrument commences ” and do not have an “ ambulatory effect ”, meaning the relevant point in time does not change over time with subsequent amendments to the relevant LEP.

On that basis the Court held that clause 1.8A in LEP 2010 applied to DAs made before the LEP commenced in 2010. It did not apply to the date that any amendments to the LEP commenced.

Conclusion

The effect of this decision is that if an amending LEP comes into force prior to the determination of a DA, then unless there is some specific provision in the amending instrument that saves the DA, your DA must be determined in accordance with the LEP as it stands at the date of the determination. For example, if the amendment prohibits your proposed development, the consent authority must refuse consent on the basis of that prohibition.

This is a complex area of law and if you are concerned about amendments to an LEP and how they may affect the development you are proposing, contact us and we can advise you on the appropriate course to take.

Consistency with Zone Objectives: A Guide for Property Developers

Thu, 23 Jun 2022 06:26:14 GMT

Land Use Tables in Local Environmental Plans prescribe the types of development that may be permissible (with consent) and those that are prohibited within the relevant zoning. The Land Use Table also describes the objectives of the relevant zoning.

Council often encounters the difficult task of determining whether proposed development is consistent with the objectives for the relevant zone. This article discusses how this assessment task may have changed in recent years and recent case law that may be of assistance.

Wording (and test?) has changed

There is a significant amount of case law dealing with whether development is ‘consistent’ with zone objectives. However, much of that case law, including Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 and Gillespies v Warringah Council (2002) 124 LGERA 147 considered clauses that contained different wording to the current wording in the Standard Instrument Principal Local Environmental Plan 2006 ( Standard Instrument ). Previous clauses (now repealed) required, for example, that a consent authority, “must not grant consent to the carrying out of development on land … unless the carrying out of the development is generally consistent with one or more of the objectives of the zone”.

In contrast, clause 2.3(2) of the Standard Instrument requires that the consent authority have regard to the objectives of the zoning.

Clause 2.3(2) states:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

But what does it mean to have regard to the objectives of the zoning?

Recent decisions may assist

Recent decisions in the NSW Land and Environment Court may be of assistance, for example Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73 ( Jeffrey ) and Muscat Developments Pty Ltd trading as Muscat Developments v Wollondilly Shire Council [2021] NSWLEC 1758 ( Muscat Developments ).

Both Jeffrey and Muscat Developments cite BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 ( BGP Properties ). In BGP Properties, McLelland CJ said, in relation to zoning [at 119]:

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

In Jeffrey, Preston CJ of the NSW Land and Environment Court observed, with respect to BGP Properties and zone objectives [at 62-64]:

In this context, the objective of Zone R4 should be construed so as to promote the purpose of this threefold classification of development and the presumption that development for a purpose that is classified as being permitted with consent in the zone will be compatible with the objectives of the zone…

This leads to an expectation, in most cases, that development consent will be granted to an application to use a site for a purpose for which it is zoned. But this general expectation is subject to the circumstances of the particular development for which consent is sought. This is the second point made in BGP Properties. The design of the particular development for that purpose should result in acceptable environmental impacts: at [118]. If it does not, there can be no expectation that consent will be granted to the development, notwithstanding that it is for a purpose that is permitted and consistent with the zoning.

The recent decision of Clay AC in Muscat Developments is also instructive because the NSW Land and Environment Court in that case considered the construction of two depots (sheds) within RU2 Rural Landscape zoning in a Local Environmental Plan ( LEP ) containing the new wording that a consent authority have regard to the zone objectives.

Clay AC [at 210-212] made the following observations with respect to zoning and consistency with rural character of the surrounding landscape:

The observations [of Preston CJ in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59] are relevant because here there is an existing interruption to the bucolic rural landscape – the sheds and associated hard stand of the former chicken sheds. The question becomes primarily, what is the impact of the additional sheds in the landscape. If that impact is acceptable, and there are no unacceptable other impacts, then the application of the principles of BGP Properties and Jeffery would suggest that the proposed use is acceptable.

The proposed development must result in acceptable environmental impacts

Following the decisions of Jeffrey, Muscat Developments and Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1, [2007] NSWLEC 59, there is a presumption that development that is permissible (with consent) will be consistent with the objectives of the relevant zoning. However, any expectation that development consent will be granted to a proposed development that is consistent with zone objectives must be tempered by the reality that the design of the proposed development must result in acceptable environmental impacts.

This latter question will by necessity involve matters of fact and degree and vary from case to case. Generally speaking, development should be of a design, scale and density that is sympathetic to its natural surrounds.

This is a complex area of law and if you are concerned about your proposed development, or Council has raised a question as to whether your development is consistent with the relevant zone objectives, you should engage a competent town planner and planning lawyer to advise you on the appropriate course to take.

What is Exempt and Complying Development? A Fast Overview

mevans@whiteacre.com.au (Mark Evans) — Fri, 20 May 2022 00:16:11 GMT

This article is about exempt and complying development and what those terms mean in NSW planning law.

Exempt and complying development are defined in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 commonly referred to as the ( Codes SEPP ).

Exempt development

If development is ‘exempt development’, development consent is not required. Exempt development is usually development of a minor nature and includes things like building a small carport, rear patios and decks, minor demolitions and some changes of use.

However, to be exempt development, the development you are proposing needs to meet all the requirements in the Codes SEPP for that type of development. For example, if you are proposing to build a carport it can’t be bigger than a certain size, it can’t be in a heritage area, it has to be lower than 3metres and so on.

Now as long as the development meets all relevant and applicable standards under the Codes SEPP, the development does not require consent from your local Council. A word of warning here though, it’s not easy to figure out if your development is exempt development and the Codes SEPP is not easy to navigate. Carrying out development on the assumption it is exempt can result in hefty fines and demolition orders if you get it wrong.

Complying development

Complying development is relatively straightforward development that still requires development consent (it’s not exempt) but has been identified as being suitable for a fast-track approval process (usually through a private certifier). So, the idea behind complying development is that development of a relatively simple nature that still requires development consent can be approved by a private certifier to fast-track the approval.

Similar to exempt development, com plying development must meet all relevant and applicable standards under the Codes SEPP for complying development and will need to meet the ‘deemed to satisfy’ provisions of the National Construction Code (formerly Building Code of Australia). There are also limitations on complying development for example it cannot be carried out on land within a heritage conservation area or within flood or bushfire prone land.

So that’s a very quick overview and introduction to exempt and complying development. As always, it’s important to obtain planning or legal advice before proceeding on the assumption that the work you’re about to carry out is exempt or complying development.

Here's a short video explaining what exempt and complying development mean in NSW:

We have also published an article on when you need development consent , which you might find useful.

How to Know When You Need Development Consent

Fri, 20 May 2022 00:15:58 GMT

Most development in NSW will require a valid development consent, but not always.

Exempt Development

If the development falls within one of the categories of exempt development in the State Environmental Planning Policy (Exempt and Complying Development Code) 2008 ( Codes SEPP ) you may not need to obtain consent.

Complying Development

Similarly, if the development is “complying development” under the Codes SEPP you may be able to engage a private certifier and have the development certified by a private certifier rather than the local council.

Click here to see our article on what types of development might be exempt and complying development.

Development Control Orders

There are also circumstances where you may carry out development that does not require consent. For example, if you have been issued with an Order by Council under section 9.34 of the EPA Act, and the Order requires you to do something which might otherwise require consent, you don’t need to obtain a separate consent to comply with the Order.

Development in an LEP “permitted without consent”

Also, a Local Environmental Plan often identifies types of development within a zone that are ‘permitted without consent’. If that is the case, the development may usually be carried out without the need to obtain a consent.

It is not always easy to work out if the development you are proposing is exempt development or does not require consent and the consequences of getting it wrong can result in heavy penalties, including demolition orders.

You should always seek legal advice from a competent planning lawyer before carrying out development on the assumption that the development does not require consent.

Here's a short video explaining when you might not need development consent:

A Guide to Easements and Ancillary Rights - Part 1

Wed, 30 Mar 2022 02:37:11 GMT

Introduction

Understanding the rights and obligations embodied within easements can be complex. Questions often arise regarding ancillary matters such as parking within the easement site, maintenance of the easement site and the ability to increase the scope of an easement.

This short article discusses some common questions on the subject of easements, specifically ancillary rights implied in easements.

Easements generally

Easements are, in essence, rights over another person’s land for the benefit of one’s own.

Most easements today are created via an instrument that is registered on title. When considering rights embodied in an easement created by instrument, the starting point must always be the terms of the instrument itself.

Words in the instrument should be given their ordinary, natural meaning and the terms of the easement read in the context of the creation of the easement and the circumstances existing at the time of the grant: Gallagher v Rainbow (1994) 179 CLR 624.

Unfortunately, not all easements contain clear, unambiguous terms and it is not always possible to divine the context in which the easement was created, nor is it always appropriate to have reference to that context.

Ancillary rights and obligations

Generally

As a general rule, the grant of an easement carries with it all ancillary rights reasonably necessary for its exercise and enjoyment: Lock v Abercester Ltd [1939] Ch 861 at 864. To be reasonably necessary, the claimed right must be more than merely reasonable or convenient: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988. Although the terms of an easement are often wide in scope (for example “a right to pass and repass at all times and for all purposes”), an easement should be limited to that which is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement: Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] 233 CLR 528.

For example, an easement for access to land may not expressly provide a right to enter the burdened land to maintain the easement site. However, if such maintenance is reasonably required to ensure continued use of the access path, such a right might be considered ancillary to the express rights in the easement.

When interpreting easements, care should be taken when relying on extrinsic materials or circumstances beyond what is registered on title. A fundamental pillar of the Torrens system of title is a principle that a party should be able to rely on what is recorded on the Register: Breskvar v Wall [1971] HCA 70-126 CLR 376. The High Court has expressed reservation with any approach that requires a party to look beyond the Register to establish facts or circumstances that may have existed at the time of the grant of the easement: Westfield Management Ltd v Perpetual Trustee Co Ltd 233 CLR 528; Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324.

Parking in the easement site

The grant of a right of carriageway for the passage of vehicles may or may not include a right to park vehicles temporarily on the burdened land. Unless expressly provided for in the terms of the easement, this raises the question of when parking on the easement site might be permissible.

To determine whether a right to park (or stop and unload) within the easement site is implied in the easement it is important to consider a number of factors.

First amongst these considerations is whether parking within the easement site is reasonably necessary for the effective use and enjoyment of the easement by the owner of the benefited land. An important factor will be whether other legal means of accessing the benefited land are available. If other means are available, it may be hard to justify parking in the easement site or stopping to unload passengers or goods particularly if doing so materially impacts the use of the burdened land: Trewin v Felton (2007) 13 BPR 24,579.

Secondly, consideration should be given to the impact of that parking on the burdened land, particularly the extent of the interference on the burdened land actually affected by the easement: Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 74. Consideration should also be given to whether the degree of interference with the area actually affected by the easement substantially deprives the owner of the benefited land of their rights of proprietorship or possession of the easement area to such a degree as to render the grant of the easement invalid: Copeland v Greenhalf [1952] Ch 488; Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; Stolyar v Towers [2018] NSWCA 6.

For example, in Brice v Nikolaidis [2011] NSWSC 682, the Supreme Court of NSW held that a right of carriageway did not entitle the owner of the benefited land to park within the easement site because there was sufficient room to park a vehicle on the benefited land immediately adjacent the easement site.

In contrast, in Moncrieff v Jamieson [2007] 1 WLR 2620 the House of Lords found that a right of access to benefited land carried with it an ancillary right to park (permanently) on part of the burdened land. In that case, the benefited land was wedged between the burdened land and the sea. The only access to the benefited land was across the burdened land, through a narrow gate and down some steep steps. The House of Lords found that, in those circumstances, the use of the easement necessarily implied parking on part of the burdened land and that such parking did not unreasonably burden the owner of the burdened land.

Matters of degree are important. In C opeland v Greenhalf [1952] Ch 488 an easement allowing the owner of the benefited land to park vehicles along a strip of the burdened land (effectively taking up a large portion of the strip of land) was held to amount to a claim for joint possession of a large part of the burdened land and was thus not a claim that could be established as an easement.

Maintenance of the easement site

Unless the terms of the easement dictate otherwise, an easement does not normally impose on the owner of the burdened land an obligation to repair or maintain the easement site: Jones v Price [1965] 2 QB 618.

Rather, the owner of the burdened land must not do anything that would obstruct or hinder enjoyment of the easement. If the owner of the benefited land wants to use the easement, it must do the work necessary to ensure the easement remains useable: Duncan v Louch (1985) 6 QB 904. To that end, the owner of the benefited land has an implied right to enter the burdened land to do whatever is reasonably necessary to ensure continued use of the easement, but may not broaden or enlarge the ambit of the easement: Zeneare v Leate (1990) 1 BPR 9300.

The owner of the benefited land must not access the burdened land in a way that interferes with the use of the burdened land any more than is reasonably necessary. While there may be a right for the owner of the burdened land to be consulted and provide input, ultimately the choice of method of work or maintenance proposed remains with the owner of the benefited land: Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111. The rationale being that in performing maintenance, the owner of the benefited land is exercising its rights under the easement and will be the party responsible for paying for the maintenance.

In limited circumstances, the owner of the benefited land may be liable for damage to the burdened land where failure to maintain the easement results in damage to the burdened land. For example, if the owner of benefited land fails to maintain pipes laid on the burdened land resulting in leakage, the owner of the benefited land may be liable for damage caused by escaping water: Comserv (No 1877) Pty Ltd and another v Wollongong City Council [2001] NSWSC 302.

Conclusion

Whilst seemingly simple, easements often raise complex questions of interpretation and particularly with regard to ancillary rights and obligations.

Answers to these questions are not always straightforward and will depend heavily on the individual circumstances of each case.

Part 2 of this article explores other areas of this subject, for example liability for injury or damage and relocation of the easement site.

If you wish to discuss this blog or have any questions regarding easements or other property law related issues please contact Mark Evans below details.

A Guide to Easements and Ancillary Rights - Part 2

mevans@whiteacre.com.au (Mark Evans) — Tue, 29 Mar 2022 02:42:31 GMT

Introduction

Part One of this article discussed the nature of rights ancillary to the grant of an easement generally and more, specifically, issues like parking in the easement site. To read that article, click here.

This article follows Part One and discusses common issues like who is responsible for maintenance of the easement site, increasing or changing the use of an easement and liability for injury or damage while using the easement.

Ancillary rights and obligations

Maintenance of the easement site

Rather, the owner of the burdened land must not do anything that would obstruct or hinder enjoyment of the easement. If the owner of the benefited land wants to use the easement, it must do the work necessary to ensure the easement remains useable: Duncan v Louch (1845) 6 QB 904. To that end, the owner of the benefited land has an implied right to enter the burdened land to do whatever is reasonably necessary to ensure continued use of the easement, but may not broaden or enlarge the ambit of the easement: Zeneare v Leate (1980) 1 BPR 9300.

Enlarging and changing use

As a general rule, provided the owner of the benefited land seeks to use the easement in accordance with the terms of its grant, the owner of the servient tenement may not object to an increase in that use. Like all general rules though, this rule is subject to exception and the increased user of the easement must not be excessive: Twomey v Blanch (2008) 14 BPR 26,145.

Rights of carriageway can become contentious where the use of the benefited land changes or that land is sought to be subdivided. The terms of the easement are not constrained to the use to which the easement was put at the time of the grant. For example, the use of a right of carriageway for the passing of cars to and from a single house may be expanded where the house is converted to a boarding house or lodge: White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113; Graham v Philcox [1984] QB 747. Similar considerations arise with respect to subdivision of the land benefited by an easement. The owner of the burdened land may not object to an increase in use where the subdivision of the benefited land results in increased use of the easement site by virtue of the increase in new owners. The easement registered on the title to the benefited land will pass down to the newly created lots when the benefited land is subdivided and new titles are created.

In Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, the NSW Court of Appeal held that an owner of burdened land was not entitled to withhold its consent in relation to a development application for the proposed construction of residential buildings comprising 236 units and underground parking for 351 vehicles on the benefited land. The development would greatly increase the traffic on the right of way over the burdened land during the construction phase and afterwards. In that case, the Court held that the terms of the grant were clear and since the easement was a right “for all purposes and at all times to pass and repass” all new owners in the residential subdivision were entitled to use the right of carriageway and questions of excessive use did not arise.

Liability for injury or damage

Another question that commonly arises is the liability of the owner of burdened land for injury or damage suffered by a person whilst exercising their rights under the easement while on the burdened land. This is a complex subject and extends beyond the realms of easements and property law into personal injury and negligence. Again, the terms of the easement itself will be important, for example requirements in relation to insurance and indemnities. Generally speaking, (if the easement is silent on the issue) the owner of burdened land would only be liable for injury/damage to a person entering that land under the easement where the owner of the burdened land is negligent. That is, under the laws of negligence, a landowner has a duty of care not to cause injury to people or their property. The level of this duty is that of a reasonable person, exercising foresight and caution. If the owner of the burdened land fails to take reasonable precautions to prevent reasonably foreseeable harm where the risk of harm is not insignificant and damage or an injury is suffered, they could be held liable for damages.

Conclusion

Whilst seemingly simple, easements often raise complex questions of interpretation and particularly with regard to ancillary rights and obligations.

Answers to these questions are not always straightforward and will depend heavily on the individual circumstances of each case.

If you wish to discuss this blog or have any questions regarding easements or other property law related issues please contact Mark Evans on detail below.

How to Know When Registered Easements Are Required for Ground Anchors

Mon, 14 Feb 2022 06:14:38 GMT

Under the Design and Building Practitioner Act 2020 (DBP Act) if the construction of a class 2 building (or a mixed-used development where part of the building is a class 2 building) involves emplacement of ground anchors in neighbouring property a developer or builder must now provide evidence of a registered easement before building work commences.

This is a major change to common industrial practice in which developers usually dealt with ground anchors in neighbouring property through a licence agreement or other arrangement with the owner of the neighbouring property and often did so after construction had already commenced.

This article discusses when an easement might be required and what options might be available where an easement cannot be acquired through agreement.

When an easement is required

The new requirement for a registered easement arises vicariously through the requirement to obtain a compliance declaration under the DBP Act.

Under the DBP Act, designers and builders are now required to provide compliance declarations in respect of the design and construction of building work. “Building work” includes class 2 buildings and mixed-use buildings with a class 2 building component.

A registered design practitioner must provide a design compliance declaration if the design practitioner provides a “regulated design”: s.9 DBP Act.

If the building work involves emplacement of a ground anchor in neighbouring property, evidence of a registered easement must be included in the “regulated design”.

This requirement came into effect on 1 July 2021 through the Design and Building Practitioners – Particulars for Regulated Designs Order 2021 (Regulated Designs Order) and means that if the DBP Act applies to the building work, the builder or developer must provide evidence of a registered easement over the neighbouring property otherwise a registered design practitioner will not be able to provide a design compliance declaration as required by the DBP Act.

If an easement cannot be obtained

If negotiations for an easement are unsuccessful, an easement may be obtained from the NSW Supreme Court pursuant to s.88B of the Conveyancing Act 1919.

The NSW Land and Environment Court may also impose an easement if the necessity arises in connection with an appeal: s.40 Land and Environment Court Act 1979.

Obviously, this takes time and the preferred approach will almost always be acquisition through negotiated outcome. The Court can only make an order imposing an easement pursuant to s88K if the Court is satisfied that the applicant has made all reasonable attempts to obtain the easement but has been unsuccessful.

Further, the applicant bears the onus of convincing the Court that the easement is reasonably necessary for the effective use or development of the site: Gordon v Lever (No (02) 9145 0900 NSWLR 427.

The concept of reasonable necessity refers to a consideration of the alternative methods by which the proposed development could be achieved. The requirement means something more than mere desirability or preference over the alternative means available, but it does not mean “absolutely necessary”: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [154]-[159].

Conclusion

Builders and developers should be aware of the new requirement to obtain a registered easement for the emplacement of ground anchors in neighbouring land if the DBP Act applies to the development.

Negotiations with adjoining landowners should be commenced early and reasonable compensation for the easement offered.

If all attempts at obtaining an easement are unsuccessful, builders and developers should consider the viability of alternative methods to achieve the proposed development without the easement before seeking an easement through a court order.

If you wish to discuss this blog or have any questions regarding easements or other property law related issues please contact Mark Evans on (02) 9145 0900.

Retaining Walls and maintenance

mevans@whiteacre.com.au (Mark Evans) — Wed, 15 Jan 2020 06:14:40 GMT

In this video we talk generally about retaining walls and who is responsible to maintain and repair.

It is helpful to consider these issues by looking at case law so we go through a brief overview of recent NSW case law on this topic and how the Courts deal with this tricky area.

Download the Powerpoint slides here:

Disclaimer: This video is for educational purpsoes only and does not form the basis of a client/solicitor relationship. Please do not rely on the contents of this video as legal advice.

Remember: Law is complex and your unique circumstances are just that – unique to you.

You should always seek the advice of a competent legal practitioner. If you have any questions or need help with your particular situation please reach out to us on the contact details below.

A Fast General Overview of the Future of Native Title in Australia

Wed, 08 Jan 2020 06:14:56 GMT

In this video we give a brief introduction to Native Title and talk about Mabo v Queensland (No 2), Wik Peoples v The State of Queensland and the future of native title in Australia.

Download the Powerpoint slides here:

Disclaimer: This video is for educational purpsoes only and does not form the basis of a client/solicitor relationship. Please do not rely on the contents of this video as legal advice.

Remember: Law is complex and your unique circumstances are just that – unique to you.

You should always seek the advice of a competent legal practitioner. If you have any questions or need help with your particular situation please reach out to us on the contact details below.

Who is Responsible for the Repair and Maintenance of Retaining Walls?

Thu, 02 Jan 2020 06:14:59 GMT

In this video we talk generally about retaining wall responsibility NSW and who is responsible to maintain and repair when adjoining properties have a retaining wall.

It is helpful to consider these issues by looking at case law so we go through a brief overview of recent NSW case law on this topic and how the Courts deal with this tricky area.

Download the Powerpoint slides here:

Disclaimer: This video is for educational purpsoes only and does not form the basis of a client/solicitor relationship. Please do not rely on the contents of this video as legal advice.

Remember: Law is complex and your unique circumstances are just that – unique to you.

You should always seek the advice of a competent legal practitioner. If you have any questions or need help with your particular situation please reach out to us on the contact details below.

What to Do When Your Neighbour’s Tree Is Damaging Your Property

Tue, 15 Oct 2019 06:15:04 GMT

What can you do when your neighbour’s tree drops leaves in your yard or the roots are creeping ominously towards your plumbing?

If you haven’t already had a friendly chat with your neighbour try this first. In fact, the Local Court requires you show evidence you have done this.

If you can resolve it together, great, but make sure you check with your local council and get approval first before lopping and digging as there are serious penalties if you damage or destroy a protected tree.

I suspect in former times a chat over the fence would have resolved things peacefully for everyone (except the tree). Sadly, not anymore. In fact, there’s something about these matters that turn once-friendly neighbours into bitter enemies. In recognition, the NSW parliament enacted specific laws to deal with these and similar issues:

Trees (Disputes Between Neighbours) Act 2003 ( Trees Act ); and the

Dividing Fences Act 1991 ( Fences Act )

These Acts give the Local Court special powers to make orders regarding trees and fences without the parties involved going to the expense of relying on traditional property law concepts such as “nuisance” or “trespass”.

Under the Trees Act:

The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree…

Case study

Recently we were engaged by a homeowner. The roots of his neighbour’s gum tree had burrowed under the fence and were now busily destroying his sewerage lines with all the attendant ghastly consequences. After obtaining several quotes to fix the problem, talks between the neighbours broke down. We were engaged to commence proceedings in the Local Court to seek orders that the roots be trimmed back and the sewerage lines repaired. Ultimately, the court found in our favour and ordered that the neighbour pay the reasonable costs of repair.

Advice on your rights

If you are experiencing a similar issue or if you just want advice on your rights, contact us to help you find a solution.

How to Know if Your Neighbour Has to Contribute for the New Fence

Tue, 08 Oct 2019 06:15:06 GMT

Well, that depends on a number of things but the general rule is:

Where there is no sufficient dividing fence your neighbour must contribute to the carrying out of fencing work that results in a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

That’s classic legalese from the Dividing Fences Act 1991 (NSW). It means that where the existing fence is inadequate you (or your neighbour) generally must contribute equally to the cost of the fence that is reasonable in the circumstances. What is reasonable? The key here is what the court will consider to be a sufficient dividing fence.

The court will consider all the circumstances of the case when determining the standard for a sufficient dividing fence, including:

(a) the existing dividing fence (if any),

(b) the purposes for which the adjoining lands are used or intended to be used,

(d) the kind of dividing fence usual in the locality, or

(e) any policy or code relating to dividing fences adopted by the local council in which the adjoining lands are situated.

Case study

In a recent example while building a new duplex a developer knocked down an old (dilapidated) wooden fence to provide ease of access for earthworks. Once the earthworks were complete the developer built a tall, double brick wall along the boundary line for privacy (other nearby properties used standard 1.8m high Colorbond fences). The owners of the adjoining property were shocked to receive a bill in the mail for more than $6,000, being half the cost of the new fence. A quick trip to their lawyers and some exchanges of correspondence later, the developer quickly dropped the claim and settled for half the cost of a standard Colorbond fence, saving the neighbour more than $5,000.

Knowing your rights

This is just one example in which knowing your rights and speaking with a competent lawyer in this area can be worthwhile. Disputes over fences are common and, if not handled carefully can turn once friendly relations between neighbours into awkward silences, steely glares and hostile territory.

If you are experiencing this or a similar issue or if you just want advice on your rights, contact us to help you find a solution.

Do I Have a Right to a View? A Fast Overview for Property Owners

Wed, 18 Sep 2019 06:15:09 GMT

No, property owners do not have a legal right to a view.

If you are looking at buying a property with picturesque views take care. If there is the possibility of a future development blocking those views then you will not have the right to prevent that development.

Property owners’ rights to views is a long-settled legal principle and is most notably examined in the High Court case of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45. The Court held in that case that the owner of a racecourse could not prevent a neighbour peering into the racecourse (and broadcasting racing results). The racecourse owners had no legal right to the view from their property nor over the “spectacle” of the horse race. Put another way, if a property owner wants to display a Picasso on their front verandah, they cannot ask people walking by to pay for the ‘viewing’ rights. The “view” is not a quantity a landowner can exercise legal rights over.

This principle remains relatively unchanged to this day and has been reinforced and restated in many cases.

Most Notably, His Honour, Preston CJ IN Robson V Leischke [2008] NSWLEC 152 at 86 Stated

“The use of land by the defendant, which does not cause something to emanate from the defendant’s land, although it nevertheless in some way interferes with the use and enjoyment by the plaintiff of his or her land, will rarely constitute an actionable nuisance. Thus, a defendant may erect a building or other structure such as a fence, or plant a tree on his or her land which interferes with the neighbour’s enjoyment of their land. The building, structure or tree may:

spoil the neighbour’s view;

in the absence of an easement, restrict the flow of air onto the neighbour’s land; or

yet such interferences are not actionable as a nuisance.”

Limited protection given by local councils and planning principles

Many local Councils adopt planning controls which seek to address this and balance the reasonable sharing of views between neighbouring landowners. Such controls become one of many factors to be considered by Council when assessing a development application.

Some property owners misinterpret these planning controls and the ruling in Tenacity Consulting v Warringah Council (02) 9145 0900 NSWLEC 140 (“Tenacity”) as granting a legal right to a view. They do not. In Tenacity, the court described in detail the factors Councils should consider when they are assessing the impact on views of a proposed development. However, the court merely enunciated a planning principle, it did not establish a proprietary right for landowners to a view. It’s important to understand the difference. A planning principle is not binding law. It is a list of appropriate matters to be considered by Council in reaching a planning decision. If Council follows planning principles in reaching a planning decision, that decision is more likely to be upheld in court. But Council may follow planning principles yet still approve a development application, even if the loss of views to a neighbouring property will be significant or even “devastating”.

In Tenacity, the court established a 4-step process Council can adopt when assessing the impact on views of a proposed development. The court also couched that impact on a scale from ‘negligible’ to ‘devastating’. Ultimately, if the proposed development is compliant with the relevant planning controls the fact that the development has a detrimental impact on neighboring views will not by itself prevent it from proceeding.

Rights of affected neighbours to object

As part of the public consultation process landowners affected by a development proposal may make submissions to Council with respect to the loss of their views. However, there is no guarantee that those submissions will have any bearing on the outcome of the development application. Community submissions are only one of many considerations the Council must consider as part of the assessment process.

An affected neighbour cannot commence proceedings against Council to challenge the merits of a Council decision to approve a development that causes loss of views. It is open to an affected neighbour to commence civil proceedings against Council where there has been an error of law or non-compliance with the requirements of the planning process. However, even if such an action is successful, Council can simply start over, reassess the proposed development and approve a similarly detrimental development.

As a property owner you do not have a legal right to protect your view but you can and should lodge a submission to Council if a development is proposed that will impact your views.

Also, if you believe Council have not adopted the appropriate planning principles or controls in assessing a development application there may be merit in examining the process undertaken by Council.

As always, prevention is better than cure and you should do your homework if you are buying a property, the value of which depends substantially on having a view.

Are you experiencing a similar situation?

If you are experiencing issues regarding this topic we can help. Please submit and inquiry or take more tangible step by booking an Initial Session where we will look at your existing paperwork and information and begin taking action.

whiteacre-legal

Easements by Prescription in NSW

Rejection of Development Applications in NSW: Understanding Your Rights

The number of development applications that are rejected prior to assessment has risen noticeably since mandatory online lodgement via the NSW Planning Portal was introduced.

The 14-day window and the problem of invoice delay

Options available to applicants

The Law of Private Nuisance in NSW and the Impact of Hunt Leather v Transport for NSW [2025] HCA 53

No Right of Appeal Against Council Rejection of Development Applications in NSW

Validity of Development Consent Conditions in NSW

Closure of Public Roads by Local Councils in NSW

Rights to build within an easement site

This article explores the right to build within an easement site.

Existing Use Rights – Part Two (Explained)

Our latest video discusses existing use rights, their expansion, enlargement, intensification of use and change of existing use rights.

Existing Use Rights – Part One (Explained)

Existing Use Rights Explained

Can a restrictive covenant stop your development?

Understanding road closures by local councils in NSW and the appeal process

This article provides a summary of the legislative framework governing the closure of public roads and the subsequent vesting of land, as well as the rights of affected individuals to appeal closure decisions in New South Wales.

Stormwater Discharge:Legal Implications and the Law of Nuisance

Physical Commencement of Development Consents

Existing Use Rights – Part One

This article explores existing use rights – what they are and how they are characterised. Part two of this article explores issues like enlargement and expansion of existing use rights and abandonment and can be found here

Existing Use Rights – Part Two

This article explores existing use rights, specifically expanding and intensifying existing uses, and changes of existing uses. Part One examined the nature of existing use rights and how they are characterised. That article can be accessed here

NSW Biodiversity Offsets for Councils

By establishing a biodiversity stewardship site over suitable parcels of land, Councils may be able to protect and conserve biodiversity values and threatened species and generate sufficient credits to secure funding for ongoing management costs or to offset impacts of Council projects, or both.

NSW Planning System: Navigating Land and Environment Court

Expert Legal Insights on Development Approvals and Appeals with Planning Lawyer Mark Evans

Physical Commencement of Development Consents – Part Two

Development consents granted after 15 May 2020 face stricter requirements to determine whether they are substantially commenced and thus remain valid. This article reviews recent case law in New South Wales (NSW) and outlines the types of work that can qualify as physical commencement.

Responsibility for maintenance of shared driveways

Tiny Homes, Caravans and Manufactured Homes in NSW Planning Law (Part 2)

In Part 1, we considered tiny homes and caravans on private land. That article can be accessed here Part 1 . In Part 2, we turn our attention to tiny homes and manufactured homes.

Tiny Homes, Caravans and Manufactured Homes in NSW Planning Law (Part 1)

In this article we explore tiny homes, caravans, and manufactured homes.

Understanding the Application of Savings Provisions to Development Applications

The general rule is that a development application ( DA ) is to be determined based on the law applicable at the time of determination of the DA, not at the time of lodgement: Sofi v Wollondilly Shire Council (1975) 31 LGERA 416.

When subdivision may not be considered development carried out on land

Subdivision, alone, may not constitute development “on land” and thus trigger development restrictions. ﻿

IPART Review of NSW Biodiversity Credit Market released

The Independent Pricing and Regulatory Tribunal (IPART) has released a summary of workshops and stakeholders’ submissions concerning the functioning of the NSW Biodiversity Credits Market.

Consent for Unauthorised Works

It is now well established that a development consent cannot be obtained to authorise works that have already been carried out. The classic example is a building that has been built without development consent.

Characterisation of Use in Planning Law

This article discusses the characterisation of land use in NSW planning law.

Ownership of Council assets on private land

﻿

Establishing a Biodiversity Stewardship Site: Tax Implications

This article discusses tax implications of establishing a biodiversity stewardship site and generating biodiversity credits.

NSW Biodiversity Laws Review

APZ’s on adjoining land, especially Council land

This article discusses utilising adjoining land as an Asset Protection Zone for bushfire protection purposes and a recent case which considered the use of adjoining Council land.

What is a “building” in planning law – and when is consent required?

This article explores the concept of a “building” as that term is defined in the EPA Act and reviews case law in which various structures and buildings have been considered by the Court.

How to read and interpret local environmental plans

How to read and interpret local environmental plans

Stormwater discharge, surface runoff and the law of nuisance

This article discusses the rights of landowners regarding surface runoff and the discharge of stormwater between properties. Specifically, this article is concerned with the rights and obligations of landowners to discharge stormwater from their land and to receive natural surface runoff.

Substantial interference with easements

This article discusses substantial interference with an easement and recent consideration of this issue by the NSW Supreme Court.

Rights under an easement are limited

Much depends on the circumstances of each case

Trewin v Felton

Dudley v Ainsworth

Castle v Achdjian

Conclusion

Court clarifies that Planning Agreements are not always necessary to dedicate land

Planning Agreements not always needed to dedicate land

Court clarifies that Planning Agreements not always needed to dedicate land

Previous position that land could only be dedicated through VPA

Challenges created by this decision

Urban Apartments Pty Ltd ruling

Conclusion

What is Qualified Title? What is Limited Title? How do you remove cautions from the title to your land?

If the title to your land is either qualified title, or limited title, or both, you may not be able to carry out development on your land, particularly by way of subdivision.

This article describes what qualified title is, what limited title is and what you can do about it.

Introduction to the Biodiversity Offsets Scheme for Landowners

An introduction to the NSW Biodiversity Offsets Scheme for landowners

Appeal a DA refusal or request a review

Subdivision, alone, may not constitute development “on land” and thus trigger development restrictions.