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In Luxcon Developments No 6 Pty Limited v Woollahra Municipal Council [2017] NSWLEC 1426, a development application was classed by the developer as ‘shop-top’ housing. The Council rejected this classification, meaning the development was not permissible within the zone. A ‘shop-top’ requires a ground floor retail premises with residential housing directly above. In this case, the development proposal had a ‘lower ground floor’ for retail use.

In coming to their decision, the judges considered Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113. That case established that a building can have two ground floor levels, but each ground floor must be at street level and have street frontage. The judges found that neither condition was met in this instance. As such, this was not ‘shop-top’ housing, and the development was prohibited by zoning restrictions.

The Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 was assented to 14 August, and most changes will take effect 1 September 2017. The bill affects the Greater Sydney region and the City of Wollongong. The key changes are to:

• Remove the powers of councillors to determine development applications
• Require local councils within the affected areas to create local planning panels
• Give consent authority functions to those local planning panels, or a delegate of the council (an officer or employee), or a regional panel
• Allow local council to consult local planning panels on other development matters

The purpose of the amendment is to increase the transparency and independence of the development application process.

Nikolaidis v Northern Beaches Council [2017] NSWLEC 1439 concerned a waterfront residential property, which had a pool without the child-proof fencing required under s7 of the Swimming Pool Act 1992.  The applicant argued that they fell within the exception in s10 which provides that for waterfront properties the means of access to the pool must be at all times restricted (although not necessarily by a fence). The applicant had renovated the house 8 years previously, and had intended to install locks on the rear doors and windows such that the means of access to the pool would be restricted. Due to unforeseen circumstances, the installation of those locks was delayed. The Commissioner found that the applicant was not entitled to the exemption in s10 because of the extensive 8 year delay, and ordered compliance with s7.

In MPG Investments Pty Ltd v Willoughby City Council [2017] NSWLEC 1442, a land owner made a development application to the local council. The current building on the land was a commercial building, which was permissible within the zoning at the time of construction, but became impermissible.  Consent for this existing use was maintained under the Environmental Planning Act 1979. The land owner applied for development consent to demolish the existing building and construct a mixed-use development permissible within the area’s zoning. The Council rejected the application because it exceeded height and floor plan limitations, and would have amenity impacts on surrounding properties.

The owner argued that the compliance with the development standard was unreasonable in this instance. The basis for this argument was that allowing the development to go ahead would incentivise him to discontinue the existing impermissible use of the land. The judge did not accept this argument, stating that this was a policy consideration not outlined in the legislation, and refused development consent.

In Woolworths Limited v Randwick City Council [2017] NSWCA 179, Woolworths lodged a development application to convert Randwick Rugby Club’s former premises into a grocery store. The Council rejected the application. Woolworths challenged the decision. At issue on appeal was whether the building was ‘designed or constructed’ as a ‘retail premises’ within the meaning of the Local Environmental Plan (LEP).

The Court of Appeal held that the courts must look to the function of the premises at the time of design or construction; not the use to which that premises is later put. Moreover, the fact that the building was designed and constructed to be a registered club did not preclude it from also being a ‘retail premises’ selling food and drink. The building included cafes, restaurants, seating areas, a commercial kitchen, a loading dock, and storage areas. The presence of these facilities in the design and construction of the building meant that the building did fall within the meaning of a ‘retail premises’, and hence Woolworths was able to proceed with their development application.

The judges also clarified the meaning of ‘retail premises’ under the LEP. The noted that whether the premises was only accessible by members of the club was legally irrelevant. Whilst a ‘business premises’ must provide services ‘directly to the public’ under the LEP, a ‘retail premises’ has no such limitation in its definition.

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.