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Articles by Stephanie Vatala
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or blog: [co-author: Isabelle Casimir] Whether an easement should be extinguished on the basis it has been abandoned or is obsolete, is a question which often arises in the context of property ownership and re-development, particularly where an easement is old.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.
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.
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.
No power to amend a modification application – AQC Dartbrook case | JD Supra
[co-author: Shirley Leung] On 3 June 2021, the Chief Judge of the Land and Environment Court in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 found that there is no power, either express or implied, to amend a modification application. This is despite earlier Land and Environment Court decisions which found there was implied power.
Varying development standards: The proposed changes to clause 4.6 | JD Supra
To vary a development standard in an environmental planning instrument, an application must be made under clause 4.6 of the relevant local environmental plan. This clause enables a variation to a development standard to be approved, provided the matters set out in that clause are satisfied.
Dogs on beach – Environmental impact assessment duties of councils examined in recent case | JD Supra
A recent case challenging a council’s decision to permit dogs on a beach takes a close look at a council’s duty to assess the environmental impact of activities it approves. In Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156, the Chief Judge of the Land and Environment Court, Preston CJ, found that a council did not properly consider the environmental impacts when deciding to allow dogs on a beach which contained threatened seagrass and seahorse habitat.
Dogs on beach - Environmental impact assessment duties of councils examined in recent case | Lexology
Australia
December 2 2020 A recent case challenging a council’s decision to permit dogs on a beach takes a close look at a council’s duty to assess the environmental impact of activities it approves.
Owner's consent requirements - changes and issues | JD Supra
Owners consent is still necessary, but not in writing at lodgement Changes to the rules that apply to owner’s consent for a development application (DA) came into effect earlier this year. The rules set out in the Environmental Planning and Assessment Regulation 2000 are now to the effect that: A development application may be made by someone who is not the owner of the land only if that person has the consent of the owner of the land. This preserves the general requirement for owner’s consent.
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...
Boarding houses and the new Housing Diversity SEPP | JD Supra
A new Housing Diversity SEPP is set to shake up the current planning regime for affordable rental housing and housing for seniors and people with a disability. The recent “Explanation of Intended Effect for a new Housing Diversity SEPP” report identifies key changes for the sector including new housing types (build-to-rent, student housing and co-living), as well as significant changes to boarding house and seniors development provisions.
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”.
Lapsing periods - a summary of the COVID-19 Environmental Planning and Assessments Act amendments | JD Supra
Recent legislation has changed some lapsing periods, appeal periods and existing use rights lapsing periods. For your convenience, we have created a ready reckoner summary table of the time limit and other amendments made by the COVID-19 Legislative Amendments (Emergency Measures – Miscellaneous) Act 2020. Please see full summary below for more information.
New planning controls encourage late night trading in the City of Sydney | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
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