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Articles by Jodie Wauchope
Lapsing of development consents – what constitutes physical commencement? | JD Supra
Works must be physically commenced In relation to development consents, section 4.53(4) of the Environmental Planning and Assessment Act 1979 (the Act) provides:* (4) Development consent for: the erection of a building, or the 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...
Design excellence: Can you skip the design competition? | JD Supra
Recent decisions in the Land and Environment Court shine a light on design excellence and design competition requirements in Local Environment Plans. In Randwick Council v Fusion Developments, Justice Moore confirmed that when deciding whether a design competition is unreasonable or unnecessary in the circumstances of the development, a consent authority may consider: whether a proposed development exhibits design excellence; and the design process that resulted in the proposal.
Development standards - it’s all in the definition | JD Supra
December 7, 2022 To embed, copy and paste the code into your website or blog: [co-author: Shirley Leung]* In the recent Land and Environment Court decisions of Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 in relation to rural minimum lot size provisions, and Canterbury Bankstown Council v Dib [2022] NSWLEC 70 in relation to a boarding house, the Court takes a close look at whether specific provisions are development standards.
Extinguishing an easement: How easy is it? | JD Supra
November 3, 2022 To embed, copy and paste the code into your website or blog: [co-author: Isabelle Casimir] Whether an easement should be extinguished on the basis it has been abandoned or is obsolete, is a question which often arises in the context of property ownership and re-development, particularly where an easement is old.
Defining design excellence – asking the right questions | JD Supra
Design excellence and architectural design competitions The recent decision of Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 confirms two important matters with respect to architectural design competitions and design excellence: A consent authority considering a development against requirements in a design excellence clause must articulate the assessment against all the relevant requirements in the clause, and In order to for the requirement for...
When is an accessway a road? | JD Supra
September 6, 2022 To embed, copy and paste the code into your website or blog: [co-author: Shirley Leung]* In the decision of Justice Pain in Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC 108, the Land and Environment Court recently considered the question of whether an accessway proposed through a council carpark is a road. This involved properly characterising the purpose of the use based on the facts of the case.
How to interpret conditions of consents – a new case considers headings and parts | JD Supra
The recent decision of Justice Robson in Hitchcock v Reed [2022] NSWLEC 81 provides important lessons on how to interpret conditions of development consent, particularly headings, in the context of physical commencement. A key aspect of the test of physical commencement is that the works relied upon to establish physical commencement must “relate to” the development consent – that is, the works must have been carried out in accordance with the conditions of consent.
Modification applications need to look at the elements of the original consent to remain ‘substantially the same’ | JD Supra
Redbank power plant sought to replace its coal tailings fuel source with biomass fuel. Its modification application was refused by the Land and Environment Court in Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council [2022] NSWLEC 64.
Indigenous cultural heritage impacted by development applications | JD Supra
June 2, 2022 To embed, copy and paste the code into your website or blog: [co-author: Clara Klemski]* Planners and developers need to understand the legal obligations regarding Aboriginal objects and sites that are identified before developments, and steps that can be taken to protect Aboriginal places and objects. Beyond the legal requirements, where cultural heritage exists or may exist, early and ongoing meaningful engagement with Indigenous representatives should guide decisions and actions.
Development on flood prone land - how to tell if a flood strategy is adequate | JD Supra
[co-author: Shay Riley-Lewis]* The recent Land and Environment Court decision in Gardiner v Central Coast Council [2022] NSWLEC 1007 provides a timely reminder of the Planning Principles that must be considered when determining whether a flood strategy lodged with a subdivision application on flood prone land is adequate.
New Consolidated SEPPs commenced on March 1, 2022 | JD Supra
[co-author: Stephanie Willis]* Key points On March 1, 2022, 11 new State Environmental Planning Policies (SEPPs) commenced, which re-organised and repealed 45 former SEPPs. With no savings and transitional provisions, these new SEPPs apply to the assessment and determination of pending development applications. This article responds to key questions in relation to this reform. What are the new SEPPs?
Another case of no power to amend: Modification applications & applications for building information certificates | JD Supra
[co-author: Shay Riley-Lewis] On July 14, 2021, clause 121B of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) was introduced providing an express power to enable a modification application to be amended. However, in a recent decision, the Land and Environment Court has found there is no power to amend a modification application determined before the commencement of clause 121B.
Climate change litigation update: Challenge to coal seam gas project approval dismissed | JD Supra
[co-author: Stephanie Willis] Recently in the case of Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110, the Chief Judge of the Land and Environment Court dismissed judicial review proceedings brought by a community action group challenging the Independent Planning Commission’s approval of a coal seam gas project on climate change grounds. This decision is yet another example of the growing body of climate change litigation in Australia.
Bylong case: Court of Appeal sends clear message to mining projects on greenhouse gas emissions | JD Supra
[co-author: Shirley Leung]* In the Bylong case the NSW Court of Appeal recently confirmed that the minimisation of greenhouse gas emissions, including indirect emissions of burning the coal in another country, is a relevant matter for consideration, and failure to address it is a valid basis for refusal.
Constraints on modifying consent conditions | JD Supra
A recent Court of Appeal decision finds that a condition of consent cannot be modified once it has been satisfied and a proposal to modify a consent must involve a change to the approved development for it to be a modification application under sections 4.55(1A), 4.55(2) or 4.56(1) of the Environmental Planning & Assessment Act 1979 (EP&A Act).
Power to amend modification applications - Legislation amendment passed | JD Supra
[co-authors: Shirley Leung, Stephanie Willis] There is now express power to amend a modification application. Regulation amendments passed in July 2021 respond to recent court decisions on modification applications, in the Dartbrook and Duke Developments cases. On July 14, 2021, the NSW Government amended the Environmental Planning and Assessment Regulation 2000 (Regulations) by introducing a new clause 121B, which expressly allows the amendment of a modification application.
Duty of care to consider climate change impacts on children: The Sharma case | JD Supra
[co-author: Shay Riley-Lewis] The Federal Court of Australia has found that the Commonwealth Minister for the Environment has a duty of care to children when deciding whether to approve a project under the EPBC Act that would facilitate carbon emissions.
Changes to infrastructure contributions and the provision of security under a development consent | JD Supra
Key takeaways from government response to Productivity Commission's Review of Infrastructure Contributions in NSW The government response was released on Friday, 5 March 2021. In summary, the government has accepted all of the recommendations of the NSW Productivity Commission – a somewhat extraordinary outcome. The government response will require a slew of legislative changes.
Physical commencement of development consents - frequently asked conditions | JD Supra
Key points The time for physically commencing a development consent starts after the deferred conditions of consent have been satisfied. It does not run from the time the deferred condition consent is issued. Motive for physical commencement is not relevant. Subject to the test otherwise being satisfied, it is sufficient that the intention of the works is to prevent the consent from lapsing.
Support for pubs, bars, and live music: exempt development trial for outdoor dining and 24 hour economy reforms to Liquor Act | JD Supra
Some welcome relief for the hospitality industry is on its way in the form of a 12 month pilot trial of outdoor dining as exempt development for pubs and bars in the City of Sydney, including fast track licensing approvals, and some long overdue reform to the Liquor Act that will: Replace the Three Strikes and declared premises provisions of the Act with an integrated demerit point system End the CBD licence freeze, replacing it with cumulative impact assessments Abolish restrictions on live...
Koala controversy - what does the new Koala SEPP actually do? | JD Supra
It’s not every day that SEPPs make headline news, let alone threaten the stability of the NSW Government. So it was with interest that we followed the political controversy that unfolded this month surrounding the recent State Environmental Planning Policy (Koala Habitat Protection) 2019 (the Koala SEPP). Absent in the media was any real discussion of how the Koala SEPP actually operates. We thought it timely to provide this little explainer.
Development on flood prone land – when is it compatible? | JD Supra
Flood planning is an important aspect of strategic land use planning in NSW and aims to minimise risk to life, property and the environment. Development on land that is subject to flood planning controls must be compatible with the land’s flood hazard. A consent authority considering a development application (DA) on flood prone land must be satisfied that the development “… is compatible with the flood hazard of the land”.
No right of appeal for development application rejection | JD Supra
Land and Environment Court confirms no right of appeal from a development application (DA) rejection, including when it is rejected for lack of owner’s consent In Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42, the Land and Environment Court recently confirmed that there is no right of appeal from a consent authority’s decision to reject a DA (within 14 days of lodgement), or similarly from its review of that decision.
Not-for-Profits – to merge or not to merge? | JD Supra
JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations. This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services").
Important planning law changes – are you ready? | JD Supra
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Breaking news in NSW planning law - Greater Sydney and Wollongong Councillors to be excluded from all development decisions, and Staged Development legislation commences | Dentons - JDSupra
The Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 (NSW) (the Local Planning Panel Act) and the Environmental Planning and Assessment Amendment (Staged Development Applications) Act 2017 (NSW) (the Staged Development Act) received royal assent and came into operation on 14 August 2017.
A new biodiversity regime for development in NSW: in a nutshell
A new regime for biodiversity assessment will commence on 25 August 2017, changing the way in which biodiversity impacts are both assessed and addressed in the development and use of land throughout the State. Here we address the key changes this will bring for developers and some of the proposed benefits, as well as likely challenges, that the new regime will present.
Development contributions set to rise - an end to the cap and extension of State infrastructure contributions
Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: Already signed up? Log in here By using the service, you signify your acceptance of JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources.
Developers take note: What you need to know about proposed changes to the Environmental Planning and Assessment Act 1979
After his predecessor failed to push through a whole new Planning Act in 2013, the current Planning Minister, Rob Stokes, appears to have accepted that he is stuck with the ageing Environmental Planning and Assessment Act 1979 and he is proposing a major facelift of it. The Act is one of the most frequently amended in NSW history and after enduring numerous amendments every year since its commencement 37 years ago, the poor Act is a bit unwieldy.
Are you a fan? New Wind Farm Planning Guidelines announced in NSW!
New Wind Energy Guidelines for state significant wind energy developments provide much needed guidance on the regulation of visual and noise impacts for renewable energy developers. Released on 19 December 2016, the Guidelines reflect ever growing opportunities for developers in renewable energy in support of a push to meet Australia’s Renewable Energy Targets by 2020.
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