NEWS
A Commissioner refused to allow a Paddington boarding house to be converted into terraces, reasoning that an upgraded boarding house could be viable. The Chief Judge held that the Housing SEPP requires the viability of the existing boarding house to be assessed.
We explain what the decision means for conversions of low-rental buildings.
Can part of a family home be used as a community facility run by a religious charity, without it being a prohibited "place of public worship"? The Land and Environment Court said yes, approving a shared-use proposal in Minto.
Our firm acted for the successful applicant. We explain how the Court approached characterisation and shared spaces.
A Gosford developer lodged a signed deed with the council to satisfy a deferred commencement condition. Years later, the council said the deed was inadequate and the consent had lapsed. The Land and Environment Court disagreed and declared that the condition had been satisfied.
We explain why the wording of the condition was decisive.
A self-represented neighbour has successfully challenged Randwick Council's approval of a modification to a Matraville duplex that cut the rear setback by about 30 per cent. The Court found that the Council failed to consider two relevant DCP controls.
We explain why modification applications need the same attention to planning controls as development applications.
After losing two tree dispute cases about the same trees, neighbours brought a third. The Land and Environment Court dismissed it and made a vexatious proceedings order preventing them from suing our client in the Court for two years without leave.
Our firm acted for the successful respondent. We explain the principles of finality and the vexatious proceedings regime.
A Rose Bay garage consent from 2007 had been modified four times, but the Land and Environment Court has declared that it lapsed in 2012. The work relied on to keep it alive was carried out before the pre-commencement conditions were satisfied.
We explain why unlawful work cannot save a consent from lapsing.
Two new waterfront houses in Balmain extend beyond the foreshore building line, but their consent has survived a council appeal. The Chief Judge confirmed that the Inner West LEP's foreshore restriction is a development standard that can be varied under cl 4.6.
We explain the decision and its implications for waterfront redevelopment.
An attempt to convert Paddington's heritage-listed Village Inn Hotel into a shop has failed. The Court accepted that the pub use was part of the building's heritage significance, and the owner's evidence that the pub was unviable fell short.
We explain the lessons for owners of heritage-listed buildings whose use is part of their significance.
In Anderson v Snowy Monaro Regional Council [2025] NSWLEC 54, the Land and Environment Court declared void two development consents for large-lot residential subdivisions in Cooma. The Court held that the developer could not exceed the maximum number of lots by splitting the subdivision into a series of separate applications.
The land was zoned R5 Large Lot Residential under the Cooma-Monaro Local Environmental Plan 2013, with a minimum lot size of 8 hectares. Clause 4.1B allowed smaller lots of 2 hectares, provided the total number of lots did not exceed the number that could be created under the standard minimum lot size.
The developer obtained consent for a Stage 1 subdivision, which included a large residue lot. It then lodged separate applications for Stages 2A and 2B over land that overlapped earlier stages, including the residue lots. Assessed one application at a time, each stage appeared to comply. Taken together, the stages produced 48 lots, compared with a maximum of 34 across the whole area.
Justice Duggan held that:
properly construed, cl 4.1B(3) limits the total number of lots produced by a subdivision to the number that would be produced applying the minimum lot size map, and the lots created cannot be further subdivided to exceed that number;
if a single application had been lodged for the whole subdivision, the Council would have had no power to approve it. Splitting it into sequential applications was a device that undermined the purpose of the clause; and
the error went to the Council's power to grant consent, so it was not appropriate to make orders to validate the consents. They were declared void and quashed.
Lot averaging and lot size clauses will be read according to their purpose. Staging a subdivision does not reset the lot count.
Councils assessing staged subdivisions should consider the cumulative lot yield across all stages.
Where a consent is beyond power, the Court is unlikely to save it with validation orders.
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.
A Randwick couple has won approval for a front car space and driveway in "The Spot" Heritage Conservation Area, despite council objections and DCP controls discouraging parking forward of the building line. A detailed package of façade restoration works tipped the balance.
Our firm acted for the successful applicants. We explain how the Court weighed the heritage impacts.
The Chief Judge has set aside the refusal of an Elizabeth Bay apartment redevelopment that both the developer and the council supported. The Commissioner had misread the standard R1 zone objective "to provide for the housing needs of the community".
We also explain why the way a settlement is recorded, by consent orders or by a s 34 agreement, can make all the difference.
In Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19, the Land and Environment Court declared invalid a condition requiring a developer in Bondi to pay an affordable housing contribution. The Court held that the condition could be severed, so the rest of the development consent remained in force.
The Waverley Local Planning Panel granted consent for development affecting a building used for affordable rental housing. The consent included a condition (condition 10) requiring a monetary contribution to offset the loss of affordable housing.
Under ss 4.17(1)(h) and 7.32 of the Environmental Planning and Assessment Act 1979 (EPA Act), a consent authority can only impose an affordable housing contribution condition if an environmental planning instrument authorises it. The Waverley LEP contained no such provision. The Council relied instead on a transitional clause (cl 15A) in the 2017 savings and transitional regulation.
Justice Pritchard held that:
cl 15A was validly made, but on its proper construction it operated only "until" the commencement of the relevant part of the Act. When the earlier amending legislation was repealed in March 2018, cl 15A had no further work to do;
without authorisation in the Waverley LEP, the Panel had no power to impose the condition, so it was invalid; and
the condition could be severed. Unlike conditions designed to mitigate impacts before construction, removing a monetary contribution did not change how the rest of the consent would operate. The consent remained for the same development.
The respondents were ordered to pay the developer's costs.
Affordable housing contribution conditions must be authorised by an environmental planning instrument, usually the LEP. Developers should check the source of power for any such condition.
Invalid monetary conditions may be severable, leaving the rest of the consent intact.
Strict time limits apply to challenges to development consents. Act promptly if a condition appears to lack a lawful basis.
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.
A neighbour removed a Norfolk Island pine after receiving an engineer's report on the damage it was causing, then argued that the claim could not proceed because the tree was gone. The Land and Environment Court disagreed.
We explain how the Trees (Disputes Between Neighbours) Act applies to trees that have been removed.
A strata owners corporation refused to sign a neighbour's development application as landowner. The Court of Appeal upheld an order requiring it to consent, finding the refusal was an unreasonable interference with the neighbour's right of way.
We explain when an owner can be compelled to consent to a development application.
A developer proved two errors of law in the refusal of its Kings Hill concept plan, but still lost the appeal. The refusal rested on several independent grounds, and the errors would not have changed the outcome.
We explain the materiality principle and what it means for appeals against complex refusals.
On 29 September 2023 the Land and Environment Court handed down its decision in Natural Resources Access Regulator v Kimber; Natural Resources Access Regulator v Kimber [2023] NSWLEC 101.
In this case the Court considered what sentences ought to be imposed upon two individuals who each pleaded guilty to offences under section 60B of the Water Management Act 2000 (WM Act).
For one of the first times ever in a case involving offences under the WM Act, the Court ordered that the charges against each defendant be dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) without proceeding to conviction.
