In brief - Planning, government, infrastructure and environmental law in 2020 has like most areas of law been impacted by COVID-19, but various other developments have featured this year also

  • A series of orders were quickly issued to assist the state to deal with the impacts of COVID-19, which has also turned into further relaxation of previous restrictions via the Liquor Amendment (24-hour Economy) Bill 2020, which prioritises Sydney's 24-hour night-time and entertainment economy (winding back previous lock out laws).

  • With adjusted court hearing arrangements, significant decisions have been handed down by the courts with a focus on jurisdictional power in the likes of Reysson v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 and HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135.

  • A number of criminal cases relating to duplicity have been clarifying how prosecutors need to lay charges, with the Court of Criminal Appeal confirming the rule against duplicity has and continues to apply strictly in criminal proceedings. It is no different in environmental criminal proceedings.

  • There was good news for developers with the announcement of the introduction of a right of merit appeal from decisions about planning proposals. While this is not expected to apply until mid-2021, it is welcomed by many.

In this year in review, we have focused on what we consider to be the more significant moments of 2020 from a legal perspective, and forecast what lies ahead in 2021. 

Noteworthy Appellate cases

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106

This case concerned an appeal against a decision of the Land and Environment Court refusing a development application for the construction of a secondary dwelling located within a principal dwelling on land in Schofields. The land was 250 square metres, which was below the minimum "lot size" development standard of 450 square metres set out in the Growth Centres SEPP. The Council refused the development application on this basis. 

However, clause 22(4)(a) of the Affordable Housing SEPP precluded the Council from refusing consent on the basis of "site area".

In the Land and Environment Court, Moore J accepted that there was an irreconcilable inconsistency between the Affordable Housing SEPP and the Growth Centres SEPP. His Honour held that the Growth Centres SEPP prevailed. His Honour found that the proposed development was prohibited and refused the grant of consent. 

This appeal in the Court of Appeal was dismissed. 

Basten JA (with whom Gleeson JA agreed) found that: 

  • There is a very strong longstanding presumption that a legislative authority does not intend to contradict itself.

  • The principle of harmonious operation gives preference to a reasonable construction of the statutory instrument if the result is consistent with the operation of another statutory instrument. 

  • An implied intention that the Affordable Housing SEPP varied the Growth Centres SEPP as requirements as to minimum lot size should not be found absent "actual contrariety" between the two instruments. As a matter of statutory construction, there was no actual contrariety. 

Emmett AJA provided a separate judgement and found that the terms "lot size" and "site area" as used in the Growth Centres SEPP and the Affordable Housing SEPP referred to two separate and distinct concepts. Accordingly, he found that there was no inconsistency between the two SEPPs. 

The following two cases are appeals from Class 3 compensation proceedings:

Apokis v Transport for NSW [2020] NSWCA 39

Land near Dirty Creek was the subject of this appeal from the Land and Environment Court's determination of compensation following the compulsory acquisition of a 19ha strip of land running through the middle of the property. Following the acquisition, one million cubic metres was excavated from the acquired land and then used for a highway. The two issues before the Court of Appeal related to market value and disturbance costs. Firstly, in relation to the market value, whether the primary judge mistook his function in assessing the market value of the acquired land. Secondly, in relation to disturbance costs, whether he erred in rejecting Mr Apokis' claim for lost royalties based on the resource excavated from the acquired land and used in the construction of the highway.

On the market value issue, the Court of Appeal restated the judicial function of the Court under section 56(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) that it is to determine the amount a hypothetical willing but not anxious purchaser and a willing but not anxious vendor would have agreed upon for the acquired land at the date of acquisition, noting it is essentially a factual exercise. One of Mr Apokis' arguments was that the result was "unfair" and he felt aggrieved because the compensation amount had no regard to a large and potentially valuable resource which was then used by excavating and cutting the highway. However, the trial judge found there was no market for the quarrying resource on the acquired land absent the major upgrade of the highway and it is well established law that the market value of the acquired land cannot include any increase in value caused by the carrying out of the public purpose the land was acquired for.

The second issue was also directed to recovering lost royalties from the excavated resource used in the construction of the highway, however, was cast as a disturbance claim under section 59(1)(f) of the Just Terms Act. The Court of Appeal found that the value, which could have been extracted from continued ownership of the land, was not a financial loss due to disturbance. Rather, it was an element to be included in the market value which was rejected for the reasons above. Furthermore, this claim did not relate to the actual use of the land by the former owner. While there was a quarry operating in the north eastern corner of the property before acquisition, the land acquired was not used for that purpose as at the date of acquisition.

Consequently the appeal was dismissed. 

Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165

The long-running compulsory acquisition case concerning the former Alexandria Landfill site for the St Peters Interchange (part of the M8 Motorway) was dismissed with costs in the Court of Appeal. In summary, the Court of Appeal found that the owner of the land did not have a claim for future lost profits as agent for another entity who was carrying out business activities on the land. 

The land in this case involved a 15ha parcel used for landfilling and recycling operations, and an 1800 square metre lot used for storage. The land was owned by Alexandria Landfill (ALF) but leased to a tenant, Boiling Pty Ltd (Boiling). The operations themselves were carried out by a separate entity, Dial and Dump Industries Pty Ltd (DADI), who lacked an interest in the land and was not entitled to compensation (decided in an earlier string of cases). 

In the Land and Environment Court, Sheahan J awarded compensation of $45,742,270 for the market value of the lot and $424,910.68 for disturbance under the Just Terms Act. This was substantially lower than both: 

  • the Valuer-General's determination of $70,019,285 (being $56,900,000 for market value, plus $13,119,285 for disturbance); and 

  • ALF's claim, which exceeded $500 million (comprised of some $273 million for market value of the land, $60 million for special value) and $179 million for disturbance). 

ALF was unsuccessful on all 9 grounds of appeal. 

Grounds 1 and 2 concerned the failure to exercise jurisdiction and failure to provide adequate reasons. Ground 3 concerned a lack of procedural fairness because Transport for NSW's forensic accountant expert was preferred. Ground 4 concerned apprehended bias. 

Grounds 5, 6 and 7 related to disturbance, and is the part of the judgment that will be of particular interest to other claimants. The Court confirmed that disturbance can only be claimed by the person with an interest in the land - and therefore found that DADI was not entitled to compensation. The Court also rejected an agency argument advanced by ALF, and an estoppel argument. The Court also found that the disturbance claim amounted to double recovery as the value of the land acquired had incorporated the profits from future business operations through discounted cash flow analysis. 

Grounds 8 and 9 related to the special value claim. These grounds were rejected as the agency argument had failed. 

The decision also affirms the refinement to the interpretation of section 59 of the Just Terms Act that has occurred in recent Court of Appeal decisions. This was confirmed by all three of the sitting judges - Basten JA, Macfarlan JA and Leeming JA. It is interesting to note that Basten JA and Macfarlan JA were also on the bench in Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 (and in that instance were joined by Payne JA, Sackville AJA, and Preston CJ of the LEC) - Leeming JA was the only judge not on the bench in United Petroleum

Reysson v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281

The NSW Court of Appeal dismissed a challenge brought by a landowner in Tweed Heads against the validity of coastal wetlands mapping in the State Environmental Planning Policy (Coastal Management) 2018. Our separate article on the Reysson case explained how this case highlighted the apparent increasing prevalence and importance in planning law of jurisdictional facts as a ground for challenge in planning and environment matters, and how the decision enables (and legitimises) the use of mapping within State Environmental Planning Policies to impose restrictions on and control the development of land. 

Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50

This was an appeal to the Court of Appeal from a well-publicised decision of the Land and Environment Court ordering the proprietor of a Greek restaurant in Sydney to remove a large (8m x 5m) flag from the rear wall. The flag was created by removing part of the cement render on the wall leaving parts of the brickwork underneath exposed in the 1821 Hotel in Sydney, which is a heritage listed premises. Council orders were made to remove the depiction of the flag and reinstate the concrete render because the carving of the flag occurred without planning approval contrary to section 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and without approval under section 57(1) of the Heritage Act 1977. The restaurant proprietor had possession of the premises under a registered lease. 

The Council did not give the restaurant proprietor, but did give the owner of the building, an opportunity to make representations to the Council regarding the proposed Order before it was made.

The restaurant proprietor appealed to the Court of Appeal on the basis that:

  • it had been denied procedural fairness in relation to the making of the Order principally because this was a breach of a common law obligation the Council owed to the restaurant proprietor; and

  • the carving of the Greek flag into the wall’s render was not a separate item of development that required development approval or Heritage Council approval but it was, in any event, approved in both respects as part of a 2016 renovation works approval.

The Court of Appeal rejected these contentions and dismissed the appeal with costs.

The appeal was dismissed because the Order was correctly directed by Council to the owner of the premises as was permitted in Part 1 of Schedule 5 of the EP&A Act. It did not give notice to the restaurant proprietor on the basis that the restaurant proprietor was not a person to whom the Order was intended to be directed. The restaurant proprietor submitted that, as a matter of procedural fairness, the Council should have given it the opportunity to make representations to the Council because the restaurant proprietor, as the occupier of the premises, would inevitably be affected by the making of the Order. Universal’s principal submission was that a right to procedural fairness arose under the general law. 

The Court of Appeal held that a requirement under the general law to afford procedural fairness can only be excluded by "plain words of necessary intendment" and in this case Schedule 5 of the EP&A Act, under which the Orders were made, contained sufficiently plain words to exclude any right the restaurant proprietor might otherwise have had to be afforded procedural fairness in relation to the issue of the Order.

Clause 7 in Schedule 5 provided that an enforcement authority such as the Council “is taken to have observed the rules of procedural fairness” if it complies with certain provisions of the Schedule. These provisions included the requirement to give notice of a proposed order to the person to whom the order was to be directed and to consider any representations made by that person. The legislation thus identified to whom notice of a proposed Order was to be given and what had to occur in consequence. This specification left no room for the restaurant proprietor's argument that it was someone else to whom the Council was required to give notice of the proposed Order.

Rule against duplicity in environmental proceedings

There have been several cases relating to the rule against duplicity in criminal proceedings this year. 

The general rule against duplicity is that a prosecutor may not roll up multiple charges into one charge. There are only two exceptions to this rule: 

  1. Continuing offence: where the alleged offence is of a continuing nature, such as maintaining a brothel or carrying on a business without a statutory licence (i.e., the conduct continues over an extended period, any part of which would constitute the offence). 

  2. Single criminal transaction: where multiple acts that may each individually constitute a separate offence are sufficiently connected with each other to amount to a single compendious instance of offending. 

The Court applies the rule against duplicity strictly, and has done so consistently.

The recent judgments relating to duplicity in environmental proceedings this year include:

In Kiangatha, the offences alleged were of polluting waters, contrary to section 120 of the Protection of the Environment Operations Act 1997 (NSW), over a number of months.

The allegation was that during the construction of an unsealed road (8-10km in length), there was a failure to implement sufficient erosion and sediment controls, resulting in sediment either being deposited into gullies, or placed in a position where it was likely the sediment would be washed into the drainage lines in rain events.

At first instance, the primary judge held that the pollution charge was a continuing offence and that "the construction of the Road is able to be regarded as one activity which involved various acts which were closely related to the next and were part of one overall transaction with one underlying factual matrix."

On appeal, the Court of Criminal Appeal found that the charges had not particularised as a "continuing offence", and that the charge did not involve a single criminal transaction. The Court of Criminal Appeal did not accept that the alleged conduct was a single criminal transaction either, and stated at [56]:

The fact that the numerous placements of soil and sediment took place in the course of building one road has been a constant refrain in the respondent’s submissions at first instance and in this Court. But it is not a significant consideration when one has regard to the fact that the construction took place over five months (from early May to the beginning of October) and extended over a length that has been alternately referred to as 8 km or 10 km, through variable features of terrain and in proximity to a significant number of distinct dry gullies.

Importantly, given the number of duplicity judgments this year alone, the Court of Criminal Appeal in this case at [68] made a general comment emphasising that the rule against duplicity has and continues to apply strictly in criminal proceedings. It is no different in environmental criminal proceedings.

Noteworthy Land and Environment Court cases

At the recent Environmental Planning Law Association Conference, Justice Robson informed attendees that the Land and Environment Court has delivered 430 judgments in the 12 months since 1 November 2019. 186 of those judgments were from judges, and 244 of those judgments were from commissioners.

There has been a spotlight on all jurisdictional requirements this year. This expands on the trend in the last couple of years of scrutinising clause 4.6 requests, which are just one of many jurisdictional facts that must exist in order to enliven the power to grant development consent. 

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

Preston CJ made it clear in this case at [16] that the Court in class 1 proceedings must be satisfied of all jurisdictional preconditions to the grant of consent, even if not raised by the parties. The judgment then addresses each of the jurisdictional preconditions. This case is a reminder that parties must provide the court with all evidence necessary for the court to be satisfied that the preconditions have been met. 

This reflects the current practice of the court requiring the parties to provide jurisdictional statements, summarising how all jurisdictional facts (even those not in issue) are satisfied in order to allow the court to be satisfied that all of those requirements have been met.

Despite the cost and time involved in preparing these, the importance of satisfying the consent authority of these jurisdictional facts is clear. It is a necessary step that if unfulfilled may leave the decision vulnerable to an appeal. 

UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63

This case related to the determination of compensation for the compulsory acquisition of a leasehold interest. While an applicant in these types of proceedings is usually entitled to its costs reasonably incurred, this case was quite unusual. 

The Court determined the amount of compensation payable to the applicant. However, that amount was less that the rental arrears owing by the applicant to the respondent, so no compensation was payable. 

In addition, and despite conventional practice, the applicant was ordered to pay the respondent's costs of the proceedings, as the applicant conducted the litigation in an unreasonable and improper manner. This included causing delays (and so increasing costs), fabricating documents and other evidence (both in affidavits and in oral evidence).

This is a reminder that there are serious consequences for unreasonable and improper conduct in proceedings. 

Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332

A developer sought to rely on existing use rights to replace an inter-war apartment building in Sydney with another apartment building. The applicant owned three inter-war apartment buildings in Neutral Bay, Sydney, which all exceeded the current height development standard (8.5m). The applicant proposed one, new apartment building that (at 12.52m) was taller than the existing apartment buildings (10m) and exceeded the height of building standards by approximately 47.3%. The applicant, in part relied on the benefit of the existing-use rights, otherwise the proposed apartment building would not be permissible on the site.

The applicant appealed against deemed refusal of its application to replace the existing apartment buildings with one large building that exceeded the current height of buildings development standard.

The developer's appeal against deemed refusal of its application was denied.

This decision serves as an important reminder of some principles regarding existing use rights and clause 4.6 requests:

  1. the height, bulk and scale of the existing building does not automatically entitle replacement with a similar building of the same height, bulk and scale;

  2. a merit assessment of the application must still be conducted even if existing use rights are relied on; and

  3. clause 4.6 written requests must be extremely well considered and detailed. The Court applied the approach described by Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 to assess whether the clause 4.6 written request was well founded. As in this case, deficiencies in both the clause 4.6 request and the justifications for exceedance of development standards will result in the consent authority lacking jurisdiction to grant consent.

Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 3) [2020] NSWLEC 150

In Class 4 of the Land and Environment Court's jurisdiction the general rule is that "costs follow the event", that is, usually, the successful party will be entitled to their costs (see UCPR Rule 42.1).

Robson J had dismissed Boomerang & Blueys Residents Group Inc's (Residents Group) judicial review proceedings brought against the New South Wales Minister for the Environment and MidCoast Council in relation to the validity of the Great Lakes Coastal Zone Management Plan and ordered that the Residents Group pay the costs of both the Minister and Council. In this case, the Residents Group submitted that each party should bear its own costs on the basis that the proceedings were brought in the public interest pursuant to rule 4.2(1) of the Land and Environment Court Rules 2007 (NSW).

Robson J held that the general rule should apply and the Residents Group should pay 60% of Council's costs and 40% of the Minister's costs of the proceedings. The Residents Group was not able to demonstrate that it brought the proceedings "in the public interest" and therefore should not be subject to a costs order. 

There are a variety of considerations which may determine whether litigation can be properly characterised as having been brought in the public interest (Engadine Area Traffic Action Group Inc (No 2) at [15]; Caroona (No 3) at [21]). 

While the litigation had some public interest characteristics, the Residents Group was not able to show that the litigation featured “something more” such that the ordinary rule that costs follow the event should not apply. Simple characterisation of litigation as having been brought in the public interest is, as noted by Preston J in Caroona (No 3) at [16], too crude a criterion to enable the Court to differentiate between the potentially large pool of matters as could be characterised as being brought in the public interest. 

The Court held that the mere characterisation of the litigation as being in the public interest is not sufficient to justify a departure from the ordinary costs rule because, put simply, the subject matter and the issues raised in this case were not of sufficient moment or magnitude as to be sufficient to depart from the usual order for costs.

This case serves as a reminder to small community groups to take care, when considering commencing proceedings against Council or an authority, that the public interest matter in question must normally relate to subject matter that impacts more than a relatively small number of members who are concerned with relatively private interests. If the test is not made out, the general rule will apply and costs will be awarded against the community group.

Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156

On 20 November 2020, Preston CJ handed down an important decision on, among other things, the application of Part 5 for public authorities: Palm Beach Protection Group Incorporated v Northern Beaches Council. The decision warrants its own article due to its application of the duties for public authorities under Part 5 of the EP&A Act and given it draws together important points from existing case law. 

The subject of this case was Station Beach located in Palm Beach, which is a reserve for public recreation. The Council made two resolutions with respect to the use of the area by the public with their dogs. In August 2019, a resolution for a dog off-leash 12-month trial area was passed and in December 2019, a resolution for a dog on-leash area was passed. Both decisions were the subject of judicial review proceedings in the Land and Environment Court.

The Court found that the Council had breached section 5.5(1) of the EP&A Act by not examining and taking into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of dog on-leash activities. The Council's assessment undertaken for the purpose of assessing the likely impact of the dog off-leash trial did not suffice to assess the activity of allowing dogs on-leash. As stated by the Court at [268], an environmental assessment under section 5.5(1) of one activity does not suffice to discharge the duty under section 5.5(1) to consider the environmental impact of another activity. 

This finding also meant that the Court found the Council to be in breach of the implied duty under section 5.7 of the EP&A Act to consider whether the activity was likely to have a significant effect on the environment (in particular, a species of seagrass and a sea horse species). 

The Court also considered whether the Council had breached its duty under section 5.7 of the EP&A Act with respect to dog off-leash activities. The challenge brought by the resident action group in respect of off-leash activities was the Council's finding that these activities were not likely to significantly affect the environment.

The Court agreed with the incorporated association that there was likely to be a significant affect from the off-leash activities because:

  • The Council did not adopt the finding in the review of environmental factors (REF) of no likely significant effect because it did not adopt the recommendation in the REF for implementation and enforcement of all the mitigation measures. These measures were a condition of the finding of no likely significant effect. Therefore, the Council did not in fact find that the activity of conducting the dog off-leash area trial that the Council approved was not likely to significantly affect the environment.

  • The Court found that the dog off-leash activity was likely to significantly affect the environment when properly assessed. This was a jurisdictional fact. The effects included a range of direct and indirect impacts over the immediate, short term, and long term.

For similar reasons to the above, the Court also found that the dog on-leash activities were, as a matter of jurisdictional fact, likely to significantly affect the environment.

Finally, the resident action group sought injunctive orders restraining the carrying out of the activities. The Court also made comments about the problems with seeking an injunction against members of the public. Because the injunction restraining the carrying out of an activity needs to be directed to some identifiable person(s), it was not possible to order one where the persons carrying out the activity are simply members of the public and an undifferentiated and changing group of people. 

The decision reaffirms the importance of Part 5 when public authorities are determining activities. It will have far reaching impacts for proponents of activities and various other parties involved with the activities proposed by a public authority.

Thomas v Georges River Council [2020] NSWLEC 1473 

In this case involving resolution of the proceedings through a section 34 conference, Acting Commissioner Clay clarified the circumstances in which costs thrown away are payable under section 8.15(3) of the EP&A Act.

At [60], the circumstances were summarised:

"in order for there to be a costs order in favour of a respondent pursuant to s 8.15(3) , then there needs to be:

o an amendment to the application for development consent;

o which is other than a minor amendment;

o in respect of which there have been costs thrown away."

However, Clay AC particularly focused on what is meant by "an amended application for development consent".

While "application for development consent" is not defined in the EP&A Act, Clay AC found that it means "development application", which is defined. 

The Council's application for costs thrown away was rejected because Clay AC found that the documents that the applicant sought leave to rely on were not an amendment of the development application. Rather, they were documents which accompanied the development application, and a statement of evidence in the proceedings. That is despite the possibility that an accompanying document may have the effect of amending the development the subject of the development application.

This does not mean that applicants can escape payment of costs altogether. A council could still apply to the Court under rule 3.7 of the Land and Environment Court Rules 2007 for costs, if they are "fair and reasonable in the circumstances". 

Update on Land and Environment Court statistics

In 2019 (the 2020 Annual Review has not been issued yet), the Land and Environment Court reversed the trend of increasing matters being filed, which had existed since 2013. However, the total finalisations of hearings also decreased, and saw the Land and Environment Court return to more expected numbers in terms of the pre-trial/hearing disposal ratio. 

In terms of percentages, in 2019:

  • Merits review appeals and other civil proceedings finalised in class 1, 2 and 3 proceedings comprised 83% of the Court's finalised case load, being unchanged from the previous year.

  • Class 1 registrations were at their lowest, recording less than 1000 cases.

  • Civil and criminal proceedings finalised in class 4, 5, 6, 7 and 8 proceedings comprised 17% of the Court's finalised caseload, also being unchanged from the previous year.

  • The Court's means of finalisation were 67% pre-trial disposals with the remaining 33% of requiring adjudication by the Court; and 

Accordingly, if you file an appeal a large proportion of cases will not reach hearing.

Read the Land and Environment Court of NSW 2019 Annual Review.

Noteworthy Federal Court environmental law cases

Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704

This case concerned forestry operations of numerous logging areas in Victoria's Central Highlands region and the impact on two native fauna species, the Leadbeater's Possum and the Greater Glider. 

VicForests had been relying on an exemption under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to the operation of section 18 of the EPBC Act. That section provides that a person must not take an action that has, will have or is likely to have a significant impact on a listed threatened species.

However, the exemption (under section 38) only applied if the forestry operations were conducted “in accordance with” a regional forest agreement (RFA).

The Court previously answered the question of what this phrase meant, and had found that it meant "in compliance with". This meant that VicForests needed to have complied with the Code of Practice for Timber Production 2014 (Code).

The Court found that it failed to comply with the Code both in relation to logging it had already done, and future planned logging, by not applying the precautionary principle to the conservation of biodiversity values (which was required by the Code). 

The Court gave considerable weight to the Applicant's expert evidence and evidence of witnesses, which included that one or both of the species had been detected in or around the area being logged.

The Court also was not convinced that VicForests was likely to engage in a careful evaluation of management options to avoid the threats of serious damage to the Greater Gilder which are posed by its forestry operations in the Central Highlands. 

The Court found that the operations of VicForests were likely to have a significant impact on the Greater Glider, or the Leadbeater’s Possum, or both.

In August 2020, judgment in Friends of Leadbeater’s Possum Inc v VicForests (No 6) [2020] FCA 1199 was delivered. This included declarations that forestry operations were not covered by the section 38 exemption, and declarations that VicForests had therefore contravened section 18 of the EPBC Act as it had both taken an action and proposed to take an action that was and would be likely to have had a significant impact on the Greater Glider and the Leadbeater's Possum. Further logging in this area was therefore restrained, and is subject to the orders in this judgment.

Changes to legislation

Koala SEPP

2020 saw a year of significant uncertainty surrounding the NSW Government's Koala State Environmental Planning Policy (SEPP). This was implemented for a short period of time after a 2016 report by NSW's chief scientist, which found that much more needed to be done to stabilise and increase the koala populations, and without urgent government intervention, koalas will become extinct in NSW before 2050. It also found that 30% of NSW's koala population died in the summer bushfires which occurred between the end of 2019 and the start of 2020. 

The new Koala Habitat Protection SEPP caused friction within the coalition where Nationals leader John Barilaro threatened to cross the floor with his entire party if the new policy was not dropped. 

In November 2020, the NSW Government implemented the State Environmental Planning Policy (Koala Habitat Protection) 2020 in response to its decision to revert to operations under the former SEPP 44, while a new policy is being developed in 2021. Both the Premier and Deputy Premier have agreed to sit down with farmers in the new year and develop a new policy which protects koalas and allows for sustainable farming practice. 

More to come in the new year, but a more delicate balance between farmers rights and koala protection will be needed if there is to be further change.

Liquor amendment

The Liquor Amendment (24-hour Economy) Bill (Liquor Amendment Bill) was introduced in May 2020 as part of the NSW Government's initiative to prioritise Sydney's 24-hour night-time and entertainment economy. It amends various acts and instruments including the Environmental Planning & Assessment Act 1979 and the Exempt & Complying SEPP. Some parts of the Bill have already commenced.

The Liquor Amendment Bill also amends the Liquor Act 2007 and Liquor Regulation 2018 to:

  • establish an integrated demerit points and incentives scheme with fee discounts for licensed venues that maintain a clear record;

  • remove live music restrictions and promote live performance and music venues;

  • provide for cumulative impact assessments; and

  • improve management and monitoring of same day deliveries of liquor.

Forecast for NSW planning and environment law in 2021

Planning Proposal merit appeals

There is currently no merit based appeal mechanism to the Land and Environment Court for the rejection of a Planning Proposal. In mid-2020, the NSW Government announced plans to create such a mechanism through a new class of Land and Environment Court appeals, as part of the Government's Planning Reform Action Plan. This will be a welcome change for developers and investors who have seen rezoning applications locked into the system for long periods of time. Estimated timings on the reforms are mid-2021, but expect to see consultation occur beforehand.

Government stimulus

Recent NSW Government announcements in 2020 shed some light on what we can expect in 2021, especially in light of the Government's plan to boost economic recovery. These announcements include:

  • Pushing the "build to rent" model directed to diversifying existing housing and providing more affordable housing. Cuts to land tax have been announced to drive this sector.

  • The introduction of a new Housing Diversity State Environmental Planning Policy, which was exhibited between July and September 2020.

  • The intention to reform employment zones, which is aimed at increasing productivity and supporting economic recovery.

  • $10 million in grants to be given to Councils and partner organisations to plant 40,000 trees in greater Sydney. 

  • The Priority Assessment Program and the Planning System Acceleration Program, which accelerates the assessment and determination of selected projects, as well as the new Planning Delivery Unit targeted at resolving road blocks for development.

  • The appointment of 100 experts to the State Design Review Panel whose role it will be to provide advice on State Significant Development and infrastructure projects.

  • The appointment of more commissioners to the Land and Environment Court to assist with the backlog of appeals.

  • That the Government will be considering a report from the NSW Productivity Commission recommending changes to the infrastructure contributions system, which is said to have the potential to unlock $12 billion of productivity benefits. 

All of these initiatives highlight that 2021 will be a year of significant change in response to the unnerving year of 2020.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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