Author: baron + associates

The NSW Government has passed the Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025, which will implement notable reforms to the Environmental Planning and Assessment Act 1979, marking one of the most significant planning overhauls in years. Unlike earlier reforms which have primarily aimed to increase housing supply, these amendments will impact all categories of development and reshape how projects are assessed, approved and delivered in NSW.

Several of the key reforms include: 

• Introducing a new “proportionate and risk-based approach” to environmental planning and assessment, to ensure that planning authorities focus on significant rather than minor problems. 
• Permanently establishing the Housing Delivery Authority which provides streamlined approval pathways.
• Removing Sydney district and regional planning panels.
• Creating a new Development Coordination Authority to centralise referrals and advice in the development assessment process across government agencies, improving efficiency and consistency. 

Developers, councils and industry stakeholders will need to closely monitor the implementation of these reforms.

The NSW Government has clarified aspects of its ‘low and mid rise’ housing reforms introduced earlier this year and has introduced measures to enhance dual occupancy and multi dwelling housing development. These amendments are outlined in the Mosman Local Environmental Plan Amendment (Exempt and Complying Development Codes and Housing—Dual Occupancies) 2025 (‘Housing SEPP’), which applies state-wide. 

In particular, ambiguities regarding dual occupancies and multi dwelling housing have been addressed. New provisions in Chapter 6 of the Housing SEPP override local environmental plans in ‘low and mid rise housing’ areas, allowing, in certain circumstances, the subdivision of dual occupancies in R1, R2, and R3 zones, and the subdivision of multi dwelling housing in R4 zones where this was previously prohibited.

Another key clarification is how ‘walking distance’ is calculated for low and mid rise housing areas. Previously this calculation was uncertain, but following the clarification, a lot will be considered part of a ‘low and mid rise housing’ area if any part of it falls within the specified walking distance, enabling developers to potentially consolidate lots. 

Additionally, twelve local environmental plans have been amended in ways that affect dual occupancy development, by introducing new minimum lot sizes and facilitating access to complying development pathways in more areas.

These reforms clarify longstanding uncertainties and expand development opportunities. Developers should seek advice to navigate these changes.

In Abata Pty Ltd v Kiama Municipal Council [2025] NSWLEC 1774, the NSW Land and Environment Court reinforced that not every home-based business automatically qualifies for planning exemptions.

This case concerned a dog minding business on residential land. While administrative tasks occurred inside the house, the primary activities (caring for dogs) were carried out outdoors in a paddock that was too far away from the house to be considered part of the “curtilage of the dwelling”. As a result, the Court confirmed that the business was not a “home occupation” or “home business” under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 or the Kiama Local Environmental Plan 2010. The Council’s Stop Use Order was also upheld, although the Court allowed additional time for compliance because the business was the applicant’s main source of income.

The Court also clarified that the dog kennels on the property were not “buildings” for development consent purposes because they were not of a considerable size and were not affixed to the ground. 

The practical takeaway is that even small, home-based businesses must consider planning rules carefully. As residential and business uses increasingly overlap, property owners should seek advice to ensure that their operations comply with the law.

The applicants in Brindisi v Mosman Municipal Council [2025] NSWLEC 1063, represented by Baron + Associates, secured approval for a range of residential modifications previously refused by Council.

Mosman Council had initially rejected the application, raising concerns about visual bulk and impacts on the streetscape. On appeal, the NSW Land and Environment Court disagreed. Commissioner Porter accepted our submissions that the proposed changes were reasonable, architecturally coherent, and in keeping with the surrounding built form.

This outcome demonstrates Baron + Associates’ strategic approach to development appeals and reflects our ongoing commitment to helping clients navigate planning controls and achieve pragmatic results.

Read the full decision here: https://www.caselaw.nsw.gov.au/decision/194d81be358f4bb4e14577e4 

Standards in residential development were reinforced in Bondi Beach Ventures Pty Ltd v Waverley Council [2023] NSWLEC 1274, where Baron + Associates successfully secured approval on behalf of our clients for a four-storey shop-top housing project in Bondi Beach.

The appeal arose following Waverley Council’s deemed refusal of a development application for demolition, site amalgamation, and construction of a building featuring two levels of basement parking, ground-floor retail, and residential units. During a conciliation conference, strategic modifications were made to satisfy Council and community concerns, enhancing access, retail layout, communal areas, and overall compliance with planning controls. 

Justice Dixon SC upheld the appeal and granted development consent, highlighting the value of careful planning, negotiation, and legal strategy. This outcome demonstrates that strategic amendments and expert legal guidance are essential to secure complex residential development approvals.

A recent case highlights that contractors cannot claim disruption costs unless those disruptions actually delay the project beyond the contractual completion date.

In CPB Contractors Pty Ltd v Transport for NSW [2025] NSWSC 1005, Hammerschlag CJ struck out a $63.4 million claim by CPB for “delay costs for disruption” in respect of a building contract for the Pacific Highway upgrade between Woolgoolga and Ballina.

CPB argued that the contract permitted separate claims for “delay” and “disruption,” relying on industry-specific definitions. In rejecting this, the court found that clause 51.2 of the contract provided a single, unambiguous method for calculating delay costs, by reference to the number of days the contractual completion date was extended. Any attempt to recover disruption costs separately, without a corresponding extension of the completion date, would have allowed double recovery and required the word “for” to have inconsistent meanings within the same clause, a result the court described as “commercially absurd.”

This judgment underscores the importance of strict adherence to contractual language and demonstrates that creative interpretations, even when grounded in industry terminology, will fail if they conflict with the contract’s framework to calculate delays.

The recent NSW Supreme Court decision 167 Prospect Highway Pty Ltd v Polyaire Pty Ltd [2025] NSWSC 1144 highlights the exposure commercial tenants may face when their use of the premises contributes to substantial property damage.

This case involved a fire that was caused by the way the tenant had stored goods between two warehouse units. The tenant had placed plastic-wrapped pallets containing layers of cardboard in direct sunlight. These materials eventually ignited, and the resulting fire destroyed both warehouses

Even though a tenant’s general obligation to keep premises in good repair does not usually extend to rebuilding a destroyed structure, here the lease contained two critical clauses that fundamentally affected the tenant’s liability:

1. The lease included a reinstatement obligation clause which expressly required the tenant to reinstate the warehouse back to its original form at the end of the lease. The Court held that the word “reinstatement” went “beyond” ordinary repair obligations and extended to the full reconstruction of the warehouse. 

2. The lease contained a broad indemnity clause, making the tenant liable for any loss, damage or expense suffered by the landlord where the tenant’s acts or omissions “caused or contributed” to the damage. Since the tenant’s storage method materially caused the fire, the tenant was liable for the cost of reinstating both warehouses and other associated losses. 

This decision underscores the importance of understanding the scope and nature of reinstatement and indemnity clauses in commercial leases.

The NSW Supreme Court has recently clarified the limits of apportionment under the Design and Building Practitioners Act 2020 (NSW) (DBPA). In Kapila v Monument Building Group Pty Ltd [2025] NSWSC 1306, Justice Richmond held that liability for breaches of the statutory duty of care under section 37 of the DBPA cannot be apportioned, even in cases where no work is delegated or subcontracted to others.

The case arose following defects in a home in Paddington. The builder and its director were found liable for defective works, including electrical and waterproofing issues. They argued that they had not delegated or subcontracted any work and should therefore be able to apportion liability under Part 4 of the Civil Liability Act 2002 (NSW) (CLA). Justice Richmond rejected this argument and found that Part 4 of the CLA does not apply to section 37 claims, regardless of whether delegation occurred.

The Court confirmed that section 37 of the DBPA does not allow liability to be apportioned, even for individual contractors carrying out specific tasks. Defendants, however, retain the ability to pursue cross-claims to recover contributions from other responsible parties. As a result, builders, designers and engineers should be aware of their potential exposure to full liability.

The recent decision in Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19 confirms that councils can require developers to make monetary contributions for affordable housing, but only if the condition is validly authorised. 

In this case, the applicants received a development consent to extend their property, subject to a condition requiring contributions for affordable housing. However, the Waverley Local Environmental Plan 2012 (NSW) did not include a provision authorising such conditions. The Council argued it could rely on clause 15A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, but the Court found that this transitional provision no longer had legal effect at the time of consent. Justice Pritchard held that the contribution condition was therefore invalid.

The Court also considered whether the invalid condition could be severed from the consent. This would only be permissible if removing the contribution condition would not affect how the remainder of the consent operated. The Court found that, as a monetary contribution condition, it could be severed without changing the operation of the consent.

This case highlights the importance of ensuring affordable housing contribution conditions are authorised by a local environmental plan, and reveals the need for careful review of consent conditions.