Author: baron + associates

Canterbury-Bankstown Council granted development consent for the construction of a 3 storey residential apartment building. The Council had twice refused to alter that permission to include a fourth storey. In the third modification application, the developer sought permission to build one two bedroom unit at the four–storey level, but designed to appear as a roof.

In Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413, the judge refused permission for the modification. He found that if the development proposal had not been three storeys, it would not have been approved by the Council. As such, the three story element was essential to the proposal, and the proposed modification was not substantially the same as that for which the consent was originally granted. In coming to this decision, the judge considered the locality, the fact that the addition would exceed height and floor space controls, and resident objections.

The Friends of Refugees of Eastern Europe made a development application to Waverley Council to demolish a tennis club and build a synagogue on the land. The Council’s decision to reject the application was challenged in Friends of Refugees of Eastern Europe v Waverley Council [2017] NSWLEC 1404. The Commissioner rejected the Council’s first argument; that the synagogue would not fit with the character of the area. He then went on to consider the Council’s second argument; that security concerns made the development inappropriate. The decision referenced ‘identified threats’ against the synagogue, and also found it appropriate to consider the wider context of potential terrorist attacks. The Commissioner found that the potential safety risk was a concern with a reasonable basis and an issue genuinely in dispute.

The applicant addressed the risk with a Crime Prevention through Environmental Design Plan, which included the construction of high security walls around the synagogue. The Commissioner felt that the applicant should also have provided a specific crime risk assessment under Part A of the Crime Prevention Guidelines of the Environmental Protection Act. As a result, he found that sufficient evidence was not adduced by the plaintiff to address the security concern that the construction for the synagogue would pose an unacceptable risk of threat. In coming to this conclusion, the Commissioner considered the safety of people attending the synagogue, those meeting outside, and also the safety of the area’s residents.

In Mehmet v Carter [2017] NSWSC 1067 the plaintiff and defendant had contracted to sell land for a purchase price of $3,000,000. After the 10% deposit was paid, the plaintiff discovered that the land included a burial site of two Aboriginal elders. These remains are Aboriginal objects under the National Parks and Wildlife Act 1974. Aboriginal objects are the property of the Crown, and could hinder the planned development of land by the plaintiff.

The plaintiff argued that the Aboriginal objects were embedded in the soil and as such ‘affixed’ to the land, making them part of the subject matter of the contract. The argument ran that since they were affixed, but were the property of the Crown and could not be moved, there was a defect in title.

In the Supreme Court Justice Darke accepted that Aboriginal objects may have become real property, but did not accept that they were therefore conveyed as part of the subject matter of the contract. The land being conveyed did not include the Aboriginal objects, which are the property of the Crown. If they were included, it would be difficult for the defendant to prove good title, because it would be nearly impossible to determine how many Aboriginal objects were in the land. Justice Darke held that the title did not carry a defect due to the Aboriginal objects, meaning the plaintiff did not have a right to terminate on this basis.

In Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135, the NSW Court of Appeal held that the Minister’s consent to the Walsh Bay Arts Precinct development was invalid. The Court’s decision accepted that an application for a ‘staged development’ required at least two or more detailed proposals for separate parts of the site, (as opposed to a single proposal for the site as a whole). The impact of this decision was that it effectively prohibited the widespread practice of using a staged development application to obtain concept approval for a single stage development before going on to gain consent for construction. The decision is estimated to affect $8 billion worth of developments, and cause extensive construction delays.

The NSW Government has reacted by releasing a draft amendment to the Environmental Planning and Assessment Act 1979, which would retrospectively protect existing consents by introducing a savings provision. Additionally, the amendment would change the term ‘staged development applications’ to ‘concept development applications’, in order to reinstate the ability of developers to use this process for single stage developments.

In the NSW Supreme Court case Stonewall Hotel Pty Ltd v Papantoniou [2017] NSWSC 964, the Court was asked to determine whether the tenant had given effective notice of exercise of option of the lease. On one occasion, the tenant had given notice to the landlord’s solicitor, and on another occasion by email directly to the landlord.

The definition of ‘landlord’ in the lease neither included nor excluded an agent acting on behalf of the landlord. The lease also did not provide the landlord’s contact details. At the time of receipt of the notice, the solicitor was engaged to act on behalf of the landlords. The behaviour of the parties after the notice of exercise of option was received indicated that the landlords knew of, and felt bound by, the exercise of the option. Taking these circumstances into account, the judge held that the solicitor had authority to receive notice on behalf of all lessors and the notice of exercise of option was therefore validly served by the plaintiff on the landlord.

The judge then briefly turned to whether the notice of exercise of option by email was validly served on the landlord. The landlord accepted that there was no issue with form or content of the notice, but sought to argue that it was not in accordance with s 170 of the Conveyancing Act 1919. Looking to the terms of the lease, the judge found that the notice could be served either in accordance with s 170 of the Conveyancing Act 1919, or by way of the “general law”. In this case, the latter was satisfied, and hence the tenant was deemed to have validly served and thereby exercised the option to renew.

The amended Housing Code in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 came into effect July 14. The Code now provides for a streamlined development approval process for one and two storey houses. The new Code does not introduce major changes, but instead simplifies the original Code. Ensure you are up to date with the new Code.

In the recent case of Parker Logan Property Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1349, a development proposal to demolish an existing commercial building and construct a residential building had been refused by the Council on the basis that the proposal had an unsatisfactory disabled parking design. While disabled car parking spaces were included, they did not have a wide side area for disembarkation by disabled passengers. The developer argued that the side areas were unnecessary, because the majority of disabled passengers use rear-loading cars, not side-loading cars. The Council argued that the additional side width would accommodate modern developments in the loading of wheelchairs.

The judge agreed with the Council that the parking designs in the development should aim to provide best practice to disabled users. In coming to this decision, the judge explicitly rejected the developer’s argument that most disabled users would have rear-loading vehicles. The judge noted changes in technology that allow of side-loading, and the requirement that the development have accessible carparks under the Building Code of Australia and associated Australian Standards.

In the case Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) [2017] NSWLEC 87, the Land and Environment Court grappled with the question of when work will be sufficient to ensure development consent does not lapse. The development consent granted to MACH expired in 2005, and MACH argued that it had undertaken works which would prevent the consent from lapsing being: an engineering survey and associated geotechnical work, the partial construction of a dam, and the grading of a road.

The Court applied the three limb test from Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124. The Court first asked whether the work was engineering, construction and building work, then whether it was related to the development, and lastly whether the work was real and substantial. The Court decide that the survey work and partial construction of the dam were sufficient to satisfy the requirements of the Hunter Brokerage test, and therefore the works were commenced prior to 2005 and the development consent did not lapse. The Court did not need to decide whether the grading of a road would have been sufficient, but indicated it may have been.

A recent Land and Environment Court decision has demonstrated that, contrary to prior assumptions, the subdivision of a strata lot will be subject to minimum lot size standards. In DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358, a developer sought consent to subdivide an existing house into two apartments. The Willoughby Local Environment Plan (WLEP) was based on the Standard LEP and provided a minimum lot size standard, which the two strata lots did not meet. The WLEP also included an exception to the minimum lot standard for proposed subdivisions in an existing strata plan. In this instance, the judge held that since there was not an existing strata plan, and accordingly, the two strata lots were subject to the minimum lot size development standards.

In Terra Ag Services Pty Ltd v Griffith City Council [2017] NSWLEC 1355, the Land and Environment Court considered the rejection of a development proposal to construct three buildings on a rural lot of land. The developer wanted to build one administrative building, and two sheds for storing agricultural fertilisers and chemicals. The major issue in this case was whether the proposed development on the Site was permissible within the current zoning. The developer argued that it was a “rural supplies business”, permissible with consent. The Council argued it was a “heavy industrial storage establishment”, and hence prohibited.

The judge accepted that the proposed development could have more than one purpose, however did not accept that either use was dominant. As the part of the development which was used for a prohibited purpose was not subordinate to the permissible purpose, and the development was therefore prohibited in that zone.