Planning, Environment and Government Newsletter

18 July 2016

Welcome to the July 2016 edition of HWL Ebsworth’s Planning, Environment and Government e’Newsletter for New South Wales.

We trust that you will find the information in this edition useful, timely and practical.

HWL Ebsworth’s Planning, Environment and Government Group offer strong planning advisory expertise and a forward thinking approach to planning and environmental law. Please forward this e’Newsletter to anyone who you believe may be interested in these articles.

Roads Authorities and their Statutory Immunity – who needs to know what, and when?

Since 2007, the test for the application of the immunity from liability for roads authorities in s45 of the Civil Liability Act 2002 (CL Act) has been set by the authority in North Sydney Council v Roman (2007) 69 NSWLR 240 (Roman).

In Nightingale v Blacktown City Council [2015] NSWCA 423 (Nightingale), the Court of Appeal, comprising a five member bench, considered and upheld the Roman test. However the test was, once again, not without its critics.

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Court of Appeal Clarifies Statutory Potections Against Civil Liability for Planning Authorities

A recent decision of the NSW Court of Appeal has clarified important provisions of the Civil Liability Act 2002 with respect to limitations on the liability of planning authorities. These will be of interest to State and local planning authorities alike.

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Challenges to CDCs – when can the Court intervene?

There is an extensive range of development that can be carried out pursuant to complying development certificates (CDCs), particularly under the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (the Codes SEPP).

The Court has confirmed that CDCs or approvals to modify CDCs cannot be issued retrospectively. The Court has also confirmed that demolition is an available remedy for work carried out pursuant to CDCs that were issued unlawfully.

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Flexible Standards – has the bar for Clause 4.6 variations been lowered?

After a line of case law that raised the expectations for clause 4.6 variations, Micaul marked a return to a less stringent interpretation of what is required in varying development standards.

The Chief Judge’s decision in Micaul was an appeal against a decision of Commissioner Morris to uphold requests under clause 4.6 of Randwick Local Environment Plan 2012 to justify non compliance with height and floor space ratio (FSR) development standards.

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Insufficient Reasons in Orders May Not be a Cat-astrophe

Statutory orders are routinely drafted by Councils, and received by constituents of Councils, throughout NSW.

The recent case of McCudden v Cowra Shire Council [2016] NSWLEC 14, a decision of Craig J, contains some interesting discussion by the Court regarding orders, both for those who draft them and those who may receive them.

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