NSW Government Bulletin: Part 2 - In The Media, In courts and practice, Cases and Legislation - Constitutional & Administrative Law

In the media

NSW Government announces review into funding model of councils
The NSW Government has announced it will implement a review of the financial model for local government to address rising cost pressures facing councils across the state. The review has asked the Independent Pricing and Regulatory Tribunal to assess the resources currently available to councils, their capacity to cover ongoing expenses and ability to fund core council services and infrastructure for their communities (30 January 2024). Read more here.

NSW farmers permitted unlicensed firefighting vehicles as part of RFS trial
Farmers are no strangers to protecting their homes from bushfires and have welcomed a new trial that will abolish expensive registration fees for private firefighting vehicles. A trial is now underway, allowing unregistered vehicles on farms to fight fires and will end on 31 March 2024. (29 January 2024). Read more here.

A litany of building defects across NSW has shaken consumers but experts say new laws are turning things around
The NSW Building Commission has been granted extra powers to order fixes during housing and residential construction projects. New laws have introduced a five-star rating system for builders and developers (known as iCIRT) and 10-year defect insurance for apartment buildings are now in place. The NSW Building Commissioner states that building developers are liable to cover the repair costs. The changes aim to build confidence for consumers buying off-plan properties, considering the various major construction defects being found in new apartment buildings, such as Lachlan's Line Macquarie Park (19 January 2024). Read more here.

Greater employment protections for council waste workers
Changes to the Local Government (General) Regulation 2021 have been gazetted to ensure greater protection for the employment of waste workers when council waste management contracts go to tender. The regulation changes now in effect mean tenderers for domestic or other waste management services must now offer employment to existing staff on at least the same terms as their current employer and with no loss to their entitlements. Tenderers must also agree to award annual pay increases based on the applicable industrial instrument or the Local Government (State) Award, if one does not exist (17 December 2023). Read more here.

In the courts and practice

Justice Derek Price to retire as Chief Judge of NSW District Court
His Honour Justice Derek Price AO will retire as the Chief Judge of the District Court of NSW and President of the Dust Diseases Tribunal after a remarkable career of more than 35 years presiding on the bench of 3 NSW courts (30 January 2024). Read more here.

Review of NSW's laws on threats and incitement to violence
On 19 January 2024, the NSW Government announced that the former Chief Justice of the NSW Supreme Court, the Hon. Tom Bathurst AC KC will conduct a review of the laws regulating incitement to violence: the policy objectives and effectiveness of section 93Z of the Crimes Act 1900 (NSW). The review will consider similar laws in other jurisdictions, including the UK (19 January 2024). Read more here.

Remuneration of costs assessors to take effect on 1 February 2024 – Supreme Court of NSW
The Attorney General has released a determination increasing the rate of remuneration of costs assessors to $355.00 per hour (exclusive of GST). The increased rate will take effect for all cost assessment applications filed on or after 1 February 2024 (12 January 2024). Read the costs assessment forms and fees here.

Publications

Have your say – ClubGRANTS scheme
The NSW Government has released a discussion paper and begun community consultation into the effectiveness of the Clubgrants scheme, as part of a wider review to ensure the grants program is providing a social benefit to the people of NSW. The discussion paper provides background on Clubgrants, the terms of reference and targeted questions to help guide submissions. There is also a survey for those who do not want to write a submission. Liqour & Gaming NSW is seeking feedback until 18 March 2024 (23 December 2023). Read the media release here. Access the discussion paper and survey here.

Have your say – Small-Scale Titles
In June 2023, the NSW Government announced an Independent Review into the statutory framework for small-scale titles is seeking feedback on an Issues Paper on the current state of the NSW opal industry. Following recent engagement with key stakeholders, the Review has released an Issues Paper and seeking feedback on range of issues. The consultation period is open until 28 February 2024. Read more here.

Cases

Grande v Lismore City Council [2024] NSWCATAD 33
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information is held by the agency – public interest considerations against disclosure – prejudice any person's legitimate business, commercial, professional or financial interests.
Administrative Decisions Review Act 1997 (NSW), ss 55, 63; Government Information (Public Access) 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 15, 54, 55, 58, 74, 80, 100, 104, 105.

Carver v State of New South Wales [2024] NSWCA 10
LAND LAW – Crown land – claim by Crown for possession of Crown land – where land previously subject to a permissive occupancy – whether claim statute barred on the basis that the land has been in adverse possession for over 30 years – ss 27 and 38 of the Limitation Act 1969 (NSW) – effect of s 65 Limitation Act – whether s 13.1 of the Crown Land Management Act 2016 (NSW) precludes the appellant's defence that the Crown's action is statute barred.
LAND LAW – adverse possession – intention to possess – where rent paid to the Crown – where occupant sought to regularise his occupation of the land by seeking a permissive occupancy or licence from the Crown.
Crown Lands Act 1989 (NSW) s 170; Crown Lands (Amendment) Act 1931 (NSW); Crown Lands Consolidation Act 1913 (NSW) s 136K; Crown Land Management Act 2016 (NSW) s 13.1; Land Acquisition (Just Terms Compensation) Act 1991 (NSW); Limitation Act 1969 (NSW) ss 8, 27, 38, 54, 65, sch 4; Limitations of Actions Act 1974 (Qld) ss 13 and 24.

Skermanic Pty Limited v Blue Mountains City Council [2024] NSWLEC 1031
DEVELOPMENT APPLICATION – demolition and alterations and additions to an existing heritage item – use as an aged care facility – whether the development application will have an adverse and unacceptable impact on the heritage significance of "The Ritz" a local heritage item – public interest – appeal dismissed.

Blue Mountains Local Environmental Plan 2005, Sch 6 Pt 1; Blue Mountains Local Environmental Plan 2015, cll 6.19, 4.3, 4.6, 5.10, 7.1, 7.8, Pt 7, Sch 5; Environmental Planning and Assessment Act 1979, ss 8.7, 4.15, 4.17; Land and Environment Court Act 1979, s 34.

Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5
COMPULSORY ACQUISITION – compulsory acquisition of land – compensation – construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – determination of market value – decrease in land value claimed to be caused by public purpose – statutory disregard – owners advised of acquisition 17 months prior to acquisition and slowed then stopped development work – Issue of causation to be understood in statutory context – strain on causal attribution where choices made by owners – causal issue is re effects of public purpose not of acquisition – potential for windfall to owners – effects on value caused only by choices by owners because of possibility of the land being acquired not within s 56(1)(a).
COMPULSORY ACQUISITION – compensation – disturbance – construction of s 59(1)(f) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – stamp duty and mortgage costs only claimable as disturbance under ss 59(1)(d) and (e).
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 3-4, 10, 13-14, 37, 54-56, 59, 61; Land Acquisition and Compensation Act 1986 (Vic) s 43(1)(a); Land and Environment Court Act 1979 (NSW) s 57(1); Local Government Act 1993 (NSW); Public Works Act 1912 (NSW) s 124; Transport Administration Act 1988 (NSW).

Kosciolek v Commissioner of Police [2024] NSWSC 15
ADMINISTRATIVE LAW – judicial review – penalty notice for breach of COVID-19 public health order – whether the description on penalty notice specified the offence as required by s 20 of the Fines Act 1996 (NSW) – obligation of Commissioner of Taxation to administer law as interpreted by the Court – whether the Court should make a declaration and give reasons where notice admitted to be invalid and withdrawn – whether any public interest warranting a declaration and Court's reasons for invalidity.
Fines Act 1996 (NSW); Public Health Act 2010 (NSW).

Covid Safe Schools Inc v Secretary, Department of Education [2024] NSWCATAD 29
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information publicly available to applicant – whether information is held by the agency.
Administrative Decisions Review Act 1997 (NSW), ss 55, 58, 63; Civil and Administrative Tribunal Act 2013 (NSW), s 50; Government Information (Public Access) 2009 (NSW), ss 3, 5, 9, 53, 57, 58, 59, 63, 74, 80, 100, 105.

Bayside Council v Outdoor Systems Pty Limited [2024] NSWLEC 1
ENVIRONMENT AND PLANNING – consent – duration or lapsing of development consent – breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW) – prohibited development – declarations and injunctive relief – stay of injunctive relief.
Environment Planning and Assessment Act 1979 (NSW) ss 3.28, 9.46; Environment Planning and Assessment Act 1979 (NSW) (as at 15 September 2006) ss 36, 83, 97; Environment Planning and Assessment Act 1979 (NSW) (as at 6 January 2017) s 99AA; Evidence Act 1995 (NSW) s 191; Local Government Act 1993 (NSW); Roads Act 1993 (NSW) s 10.

Peden v Lake Macquarie City Council [2024] NSWLEC 2
JUDICIAL REVIEW: validity of consent for change of use of land – whether change of use constitutes development where no erection of a dwelling occurs – the meaning of "carrying out development" – change of use from dwelling and secondary dwelling to dual occupancy – change of use is development – Council had the power to grant the consent.
Environmental Planning and Assessment Act 1979, ss 1.4(1), 1.5, 1.5(1), 1.5(3), 1.5(4), 4.2(1), 4.2(2), 4.12, 4.15, 4.16, 4.16(1), 4.53(4), 4.53(5), 4.70, 4.70(1); Lake Macquarie Local Environmental Plan 2014, cll 2.3(1)(c), 2.6, 3, 4.1, 4.1A, 4.1A(2)(a), 5.4(9); State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 24, Sch 1; State Environmental Planning Policy (Housing) 2021, cl 51.

Christian Community Ministries Ltd v Minister for Education and Early Learning [2024] NSWCA 1
EDUCATION – financial assistance to non-government schools – entitlement conditioned on school not operating for profit – decision made to recover past financial assistance on the basis that the relevant school was non-compliant because it had operated for profit from 2015 to 2020.
STATUTORY INTERPRETATION – where Minister made recovery decision under s 83J of Education Act 1990 (NSW) and non-compliance declaration under s 83F of that Act – whether Minister was empowered to make recovery decision in relation to the period prior to her making the non-compliance declaration because she had not reached the requisite state of satisfaction that the school was operating for profit under s 83E of that Act.
Education Act 1990 (NSW) Pt 7 Div 3 ss 83A-83L, s 107(1)(e2); Uniform Civil Procedure Rules 2005 (NSW) r 59.9.

Sethi v New South Wales Crime Commission [2024] NSWCATAD 21
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information sought is 'excluded information' – whether information is not held by the agency.
PRACTICE AND PROCEDURE – whether hearing should be adjourned – whether the Registrar should be directed to issue a Summons compelling a person to attend the hearing to give evidence – whether a non-publication order should be made.
Administrative Decisions Tribunal Act 1997 (NSW), s 75; Administrative Decisions Review Act 1997 (NSW), s 55, 58, 63; Crime Commission Act 2012 (NSW), ss 7, 10,11, 11A, 12, 13, 49, 50, 59; Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 43, 51, 53, 58, 80, 100, 101, 105; Law Enforcement Conduct Commission Act 2016 (NSW).

Imbree v Chief Commissioner of State Revenue [2024] NSWATAD 22
TAXES AND DUTIES – stamp duty concession – whether s 55 applies – statutory construction – whether an agreement to transfer dutiable property is a transfer of dutiable property – whether s 55 applies only to resulting trusts – whether beneficiary of self managed superannuation fund is the real purchaser and the superannuation fund is the apparent purchaser – stamp duty exemption – whether s 65(10) applies.
Administrative Decisions Review Act 1997, ss 9, 63; Duties Act 1997, ss 8, 9, 55, 65; Interpretation Act 1897, s97; Taxation Administration Act 1996, ss 96, 100.

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Power of Commission to make a determination pursuant to s 175 of the Industrial Relations Act 1996 – whether factual bases for relief sought established – Whether communications between union delegate and union subject to legal professional privilege – relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – no basis to grant relief.
EMPLOYMENT AND INDUSTRIAL LAW – victimisation – threatened termination of employee for disclosing confidential information to union as part of employee's duties as union delegate, including as a witness in proceedings for a new award – employer audited employees' emails and discovered disclosures – Whether substantial and operative reason for investigating and finding employee had engaged in misconduct was his role as delegate and/or his participation in award proceeding – consideration of 'reverse onus' provided for in s 210(2) of the Industrial Relations Act 1996 – relevance of the correctness of the belief held by person responsible for taking detrimental action against employee to determining whether onus discharged – consideration as to whether other persons had an material effect on decisions of those responsible for taking detrimental action – presumption that detrimental action taken for proscribed reason displaced by direct evidence from those who took the detrimental action as to their motivations which was accepted – application dismissed.
Evidence Act 1995 (NSW), s 117; Fair Work Act 2009 (Cth), ss 340, 341, 361; Government Sector Employment Act 2013 (NSW), s 69(4); Government Sector Employment (NSW Police Force) Rules 2017 (NSW), rr 44-46; Industrial Relations Act 1996 (NSW), ss 6, 130, 131, 136, 137, 138, 163, 210, 213, 214; Police Act 1990 (NSW), ss 5, 81G, 218; Police Regulation 2015 (NSW), reg 76.

Christou v Wollongong City Council [2024] NSWLEC 1018
APPEAL – development application – building information certificate application – minor alterations and prospective use of existing industrial building for warehouse purposes – associated parking and landscape changes – contravention of floor space ratio development standard is determinative – no cause to direct the issue a building information certificate in relation to unauthorised industrial building.
Environmental Planning and Assessment Act 1979, ss 6.25, 8.25, 8.8; Land and Environment Court Act 1979, s 34; Standard Instrument – Principal Local Environmental Plan (Standard Instrument), cl 4.6; Wollongong Local Environmental Plan 2009, cll 4.4, 4.6, 5.21.

Dezfouli v Commissioner of Police, NSW Police Force [2024] NSWCATAD 15
ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – refusal to deal with an access application – unreasonable and substantial diversion of agency resources – agency already decided a previous application for the information.
Administrative Decisions Review Act 1997 (NSW), s 55, 63; Government Information (Public Access) Act 2009 (NSW), s 3, 5, 9, 12, 14, 54, 54A, 57, 58, 60, 62, 64, 68, 69, 70, 105, Schedule 1.

Eskander v Georges River Council [2024] NSWLEC 1006
APPEAL – development application – detached dual occupancy – whether adequate arrangements for suitable vehicular access – impact on trees – landscaping – size of basement and extent of excavation.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Environmental Planning and Assessment Regulation 2021, ss 23, 38; Georges River Local Environmental Plan 2021, cll 4.3, 4.4A, 6.2, 6.9, 6.12; Land and Environment Court Act 1979, ss 34AA, 39, 40; Local Government Act 1993, s 701; Roads Act 1993, ss 6, 249; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; Uniform Civil Procedure Rules 2005, Pt 31.

Gazal v Deputy Commissioner of Taxation [2024] NSWSC 1
TAXES AND DUTIES – review – whether departure prohibition order made under Taxation Administration Act 1953 (Cth), s 14S should be set aside pursuant to Taxation Administration Act 1953 (Cth), s 14V – whether the Deputy Commissioner of Taxation had a bona fide belief and reasonable grounds to believe it was desirable to prohibit the plaintiff from departing Australia to travel to Slovenia for urgent medical treatment – where plaintiff is subject to a tax liability of $18 million under a Deed of Settlement executed by the plaintiff and the Commissioner – where plaintiff has arguably contravened freezing orders of this Court not to diminish the value of assets subject to tax recovery proceedings – where plaintiff has previously been imprisoned for financial crimes – where plaintiff frequently travels overseas and has previously transferred funds overseas.
CIVIL PROCEDURE – discontinuance of proceedings – whether the Court should grant application during final submissions for leave to file a notice of discontinuance pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.1 – where the Court has granted an early final hearing in the vacation list – where the defendant has gained forensic advantages in the hearing – where application made at the conclusion of the hearing.
COSTS – costs assessment – specified gross sum order instead of assessed costs – Civil Procedure Act 2005 s98(4)(c) – order for costs made against an unsuccessful plaintiff – where the plaintiff has few assets in his own name and an assessment of costs would cause unnecessary aggravation expense to the defendant – consideration of making a specified gross sum order instead of assessed costs.
Civil Procedure Act 2005, Part 6, ss 91, 98(4)(c); Taxation Administration Act 1953 (Cth), ss 14R, 14S, 14U, 14V, 14X; Uniform Civil Procedure Rules 2005, rr 12.1(1), 12.3, 42.19.

IT Power (Australia) Pty Ltd v Mid-Western Regional Council (2023) NSWLEC 1800
APPEAL – development application – construction and use of a 10MW solar farm and associated infrastructure – Mid-Western Regional Local Environmental Plan (Transport and Infrastructure) (Map Amendment No 1) – State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.42(2) and (3) – whether the development is located to avoid significant conflict with existing or approved residential or commercial uses of land surrounding the development and is unlikely to have a significant adverse impact on the regional city's scenic quality and landscape character – visually sensitive land near Mudgee – Mid-Western Regional Local Environmental Plan 2012, cl 6.10 – whether the proposed development will complement the visual setting forming the backdrop to Mudgee and will be designed, set back and sited to respond sympathetically to the landform of the site on which the development is proposed to be carried out and will minimise visual intrusion.
Electricity Infrastructure Investment Act 2020, Pt 4; Mid-Western Regional Local Environmental Plan (Transport and Infrastructure) (Map Amendment No 1), cl 2; Mid-Western Regional Local Environmental Plan 2012, cl 6.10; State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.36, 2.42; Sch 6.

Commissioner of Police, NSW Police Force v Ireland [2024] NSWCATAP 1
ADMINISTRATIVE LAW – hearing rule – right to cross-examine witnesses – failure to allow the Appellant to cross-examine witnesses – reliance on the evidence of those witnesses – breach of procedural fairness – practical injustice resulting from breach of obligation to provide procedural fairness.
Civil and Administrative Tribunal Act 2013 (NSW), Mental Health Act 2007 (NSW).

National Parks Association of NSW Inc v Minister for Environment and Heritage [2023] NSWLEC 149
JUDICIAL REVIEW – amendment of a plan of management for a national park – statutory requirement for consideration of relevant matters – when matters required to be considered – who required to consider matters – whether matters considered at required time and by required person.
National Parks and Wildlife Act 1974 (NSW) ss 72AA, 73A, 73B, 74, 75, Pt 5; Government Information (Public Access) Act 2009 (NSW); Land and Environment Court Rules 2007 (NSW) r 4.2(1); Uniform Civil Procedure Rules 2005 (NSW) r 59.10(1).

SafeWork NSW v Inghams Enterprises Pty Limited [2023] NSWDC 580
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties.
COSTS – prosecutor's costs.
Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).

Queanbeyan-Palerang Regional Council v Walker [2023] NSWLEC 146
CIVIL ENFORCEMENT – s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) – where respondents carried out earthworks, erection of a building and driveway works without consent – orders made requiring demolition of works and restoration of land – s 23 of the Land and Environment Court Act 1979 (NSW) – r 40.8 of the Uniform Civil Procedure Rules – orders made permitting the Council to carry out works if respondents fail to comply with orders.
Biodiversity Conservation Act 2016 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Land and Environment Court Act 1979 (NSW); Protection of the Environment Operations Act 1997 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Carpenter Street Centre Pty Ltd atf The Carpenter Street Centre Trust v Penrith City Council [2024] NSWLEC 1005
APPEAL – development application – centre based child care facility in residential area – compatibility with the character of the local area – compliance with setback controls for predominant land use – amenity of lower ground level indoor play areas.
Education and Care Services National Regulations 2011, reg 110; Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Environmental Planning and Assessment Regulation 2021 ss 24, 38; Penrith Local Environmental Plan 2010, cll 4.3, 4.4, 7.4, 7.30; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.22, 3.23, 3.25, 3.26.

TPG Telecom Limited v Inner West Council [2023] NSWLEC 1778
APPEAL – development application – telecommunications facility – monopole with headframe – proposed on the site of an existing substation adjacent to heritage listed Callan Park – impact on setting and views to heritage item – visual impact – compatibility with character of the area – issues of site selection.
Callan Park (Special Provisions) Act 2002; Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7; Inner West Local Environmental Plan 2022 cl 1.8A; Interpretation Act 1987, s 30A; Leichhardt Local Environmental Plan 2013, cll 1.2, 5.10, 6.1, 6.2; State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.3, s 6.65, Ch 10; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.143; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; Uniform Civil Procedure Rules 2005, r 31.27.

Campbelltown City Council v Ahmed [2023] NSWLEC 147
JUDICIAL REVIEW – Complying Development Certificate (CDC) issued for construction of group homes and attached garage – cll 8 and 20 of Sch 2 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) – whether development met building articulation and location of fill requirements – CDC was not complying development under cl 64(1)(d) of the Housing SEPP – cl 1.18(e) of State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (Code SEPP) – whether consent was required for modification of driveway under s 138 of the Roads Act 1993 (NSW) – no work proposed for driveway.
Environmental Planning & Assessment Act 1979 (NSW); Roads Act 1993 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

McKenzie v Attorney General for New South Wales [2023] NSWSC 1639
ADMINISTRATIVE LAW – judicial review – decision to revoke parole – whether decision maker was satisfied of subjective jurisdictional fact – whether error on the face of the record – whether parole authority required to conduct an inquiry or hearing prior to revoking parole – whether decision legally unreasonable – whether error disclosed on the face of the record – decision made in September 2016 and is out of time fixed by UCPR 59.10 – whether leave ought to be granted.
Crimes (Administration of Sentences) Act 1999 (NSW) ss 2A, 3, 135, 169, 170, 173, 175, 180, 181, Sch 1; Crimes (Administration of Sentences) Regulation 1999 (NSW); Government Information Public Access Act 2009 (NSW); Uniform Procedure Rules 2005 (NSW) Pt 59.

Symond Family Investments Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1789
DEVELOPMENT APPLICATION – alterations and additions to existing commercial development in E1 Local Centre – whether consistent with the desired future character of the neighbourhood – height standard is exceeded – FSR standard is exceeded – conditions of consent are disputed.
Civil Procedure Act 2005, s 56; Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 8.7, 8.15; Environmental Planning and Assessment Regulation 2021, s 38; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; Uniform Civil Procedure Rules 2005, Sch 7, rr 2.1, 29.5; Woollahra Local Environmental Plan 2014, cll 1.2, 4.3, 4.4, 4.4A, 4.6, 5.21, 6.1, 6.2.

Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122
EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – cancellation of provisional improvement notice – external review – principles to the approach of the review – point of time for review – whether inspector on review of a provisional improvement notice has a general discretion to cancel, vary or confirm – Commission may consider contemporaneous factual circumstances in an external review – the LHD's compliance with provisional improvement notice is relevant to the Commission's exercise of discretion – improvement notice issued at the time of the cancellation of the provisional improvement notice is relevant to the Commission's exercise of discretion – variation sought would be significant departure from the provisional improvement notice – decision to confirm the internal reviewers decision to confirm the cancellation of the provisional improvement notice.
Administrative Appeal Tribunal Act 1975 (Cth) s 43; Industrial Relations Act 1996 (NSW) ss162, 163; Mental Health Act 2007 (NSW) Ch3 Pt 2; Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 78, Schedule 3 cl 9; Work Health and Safety Act 2011 (NSW) ss 3, 17- 19, 90, 93, 99-102, 152, 160, 191-194, 223, 224, 226, 228, 229; Work Health and Safety Regulation 2017 cl 38.

Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646
ADMINISTRATIVE LAW – judicial review – from decision of New South Wales Civil and Administrative Tribunal Appeal Panel – where plaintiff raised 55 grounds of appeal – whether grounds of appeal identify a question of law – appeal dismissed.
Civil and Administrative Tribunal Act 2013 (NSW); Civil Procedure Act 2005 (NSW); Residential Tenancies Act 2010 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

Bagnall v Chief Commissioner of State Revenue [2023] NSWCATAD 341
TAXES AND DUTIES – land tax – interest – remission. Chief Commissioner's decision not to remit either market rate component or premium component – default not outside taxpayer's control – no Revenue NSW fault –reasonable care not taken by taxpayer.
TAXES AND DUTIES – land tax – liability – assertions of unfairness, unreasonableness.
EVIDENCE – documentary evidence – administrator's obligation to produce documents: Administrative Decisions Review Act 1997, section 58 – relevance of any document a matter for the administrator.
Administrative Decisions Review Act 1997 (NSW) Section 9, 58,63; Civil and Administrative Tribunal Act 2013 (NSW) section 28; Land Tax Management Act 1956 (NSW) sections 7, 8, 12, 14, 22, 72; Taxation Administration Act 1996 (NSW) sections 3, 21, 22, 25, 96,101.

FTO v Transport for NSW [2023] NSWCATAD 340
Administrative law – administrative review of a reviewable decision – Privacy and Personal Information Protection Act 1998 – Health Records and Information Privacy Act 2002 (NSW) – Federal diversity jurisdiction – applicant is a resident of another state – respondent is an entity of the State of New South Wales – Tribunal lacks jurisdiction to determine the claim for damages under s 55(2)(a) of the Privacy and Personal Information Protection Act 1998 as this would involve an exercise of judicial power – claim for damages withdrawn and dismissed.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Constitution of Australia (Cth); Fair Work Act 2009 (Cth); Freedom of Information Act 1982 (Cth); Government Information (Public Access) Act 2009 (NSW); Health Records and Information Privacy Act 2002 (NSW); Industrial Relations (National System Employers) Order 2009 (NSW); Interpretation Act 1987 (NSW); Privacy Act 1988 (Cth); Privacy and Personal Information Protection Act 1998 (NSW); Public Health Act 2010 (NSW); State Records Act 1998 (NSW); Transport Administration Act 1988 (NSW); Work Health and Safety Act 2011 (NSW).

Links Nowra Pty Ltd v Shoalhaven City Council [2023] NSWLEC 1794
DEVELOPMENT APPEAL – tourist and visitor accommodation – local rural character – density – essential services – community title subdivision.
Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7; Environmental Planning and Assessment Regulation 2000; Water Management Act 2000, s 91; Rural Fires Act 1997, s 100B; Shoalhaven Local Environmental Plan 2014, cll 7.11, 7.21; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Resilience and Hazards) 2021.

Winifred West Schools Ltd v Wingecarribee Shire Council [2023] NSWLEC 1799
APPEAL – development application – consent sought for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School – deemed refusal – amended application renotified – objectors' submissions – commencement at Frensham School with objector submissions, inspection of site of proposal and observation of areas to south including upper Holt – whether site is core koala habitat – change to conservation status of koala – Biodiversity Development Assessment Report (BDAR) – Flood Emergency Response Plan (FERP) – impacts on platypus – water quality assessment is not required to be met – nature of vegetation on site – establishment of Asset Protection Zones – managing bush fire risk – bush fire evacuation plan – whether the proposal is appropriate given biodiversity and other values.
Biodiversity Conservation Act 2016, ss 2.1, 2.8, 2.11, 2.12, 2.14, 2.18, 6.7, 6.8, 6.10, 6.12, 6.15, Sch 1 Pt 1; Sch 2 Pt 2; Sch 5; Biosecurity Act 2015, ss 15, 21, 22; Endangered Species Act (16 USC § 1531 et seq.) (US); Environment Protection and Biodiversity Conservation Act 1999 (Cth); Environmental Planning and Assessment Act 1979, ss 4.14, 4.15(1)(e), 8.7; Environmental Planning and Assessment Regulation 2000, cll 272, 273; Land and Environment Court Act 1979, s 39(6); Protection of the Environment Administration Act 1991, s 6; Rural Fires Act 1997, s 100B; State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4; ss 6.58, 6.59, 6.61, 6.62, 6.63, 6.64; State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, cll 8, 33, 34, 35; State Environmental Planning Policy (Koala Habitat Protection) 2019; State Environmental Planning Policy (Koala Habitat Protection) 2020, cll 3, 4, 7, 8, 9; Sch 2; State Environmental Planning Policy (Koala Habitat Protection) 2021; State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3; State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011; State Environmental Planning Policy No 44 – Koala Habitat Protection; Threatened Species Conservation Act 1995; Wingecarribee Local Environmental Plan 2010.

Greyhound Welfare and Integrity Commission v Grech [2023] NSWSC 1603
ADMINISTRATIVE LAW – judicial review – review of tribunal decision – Greyhound Racing Act 2017 (NSW) – regulation of greyhound racing – power to register greyhound racing participants – greyhound racing registrations – statutory interpretation – consideration of surplusage – whether tribunal fell into error of law in exercising registration power – consideration of jurisdictional fact – fit and proper person test – whether failure to take into account relevant considerations – whether decision unreasonable.
Crimes Act 1900 (NSW) s 530; Greyhound Racing Act 2017 (NSW) ss 3A, 40, 44, 47-50, 58; Interpretation Act 1987 (NSW) s 34(2)(a); Prevention of Cruelty to Animals Act 1979 (NSW) s 21(1)(d); Racing Appeals Tribunal Act 1983 (NSW) ss 15A, 16, 17A; Supreme Court Act 1970 (NSW) s 69.

Rees v Safework NSW [2023] NSWCATAD 325
ADMINISTRATIVE LAW – administrative review of decision to suspend accreditation of an assessor – high risk work licence – basic scaffolding – non compliance with conditions.
Administrative Disputes Review Act 1997; Civil and Administrative Tribunal Act 2013; Work Health and Safety Act 2011; Work Health and Safety Regulations 2017.

Wang v Chief Commissioner of State Revenue [2023] NSWCATAP 331
ADMINISTRATIVE LAW – internal appeal – application for an extension of time to lodge the appeal – whether the appeal lacks merit.
TAXES AND DUTIES – Land tax – Surcharge land tax – principal place of residence exemption.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Duties Act 1997 (NSW); Foreign Acquisitions and Takeovers Act 1975 (Cth); Land Tax Act 1956 (NSW); State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022 (NSW); State Revenue and Other Legislation Amendment (Budget Measures) Act 2017 (NSW); Taxation Administration Act 1996 (NSW).

Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Natale [2023] NSWLEC 142
CRIMINAL PROCEDURE – preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 (NSW) – separate question – charges against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – whether the Court should hear and determine the separate questions – whether summonses allege offences known to law – whether the summonses ought be dismissed – meaning of "waters" – meaning of "water pollution" or "pollution of waters" – whether the separate questions are questions of fact.
Civil Procedure Act 2005 (NSW) ss 56, 57; Clean Waters Act 1970 (NSW) ss 5, 16; Criminal Procedure Act 1986 (NSW) ss 11, 12, 16, 247B, 247G; Land and Environment Court Act 1979 (NSW) s 68(1); Protection of the Environment Operations Act 1997 (NSW) ss 120, dictionary.

Department of Education v Trad [2023] NSWCCA 329
CRIME – criminal liability – absolute liability – statutory offences – liability of nominated supervisor at a day care centre under s 165(2) of the Children (Education and Care Services) National Law 2010 (NSW) – whether "must ensure" imports a standard of absolute liability.
Children (Education and Care Services National Law Application) Act 2010 (NSW), s 9; Children (Education and Care Services) National Law 2010 (NSW), ss 3, 5, 104, 162, 165, 269; Children's Services Act 1996 (Vic), ss 26(1), 27(1); Crimes (Appeal and Review) Act 2001 (NSW), s 11; Criminal Appeal Act 1912 (NSW), s 5B; Criminal Procedure Act 1986 (NSW), s 215; Education and Care Services National Law Act 2010 (Vic), s 165; Education and Care Services National Regulations 2011 (NSW), s 117C; Fines Act 1996 (NSW), s 122; Occupational Health and Safety Act 1985 (Vic), s 21; Occupational Health and Safety Act 2000 (NSW); Work Health and Safety Act 2011 (NSW).

SafeWork NSW v B & E Foods Pty Ltd & Ors [2023] NSWDC 569
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties.
COSTS – prosecutor's costs.
Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).

Tagg v Racing New South Wales [2023] NSWSC 1547
ADMINISTRATIVE LAW – judicial review – Workplace Injury and Management and Workers Compensation Act 1988 (NSW) – decision of Medical Appeal Panel – where Appeal Panel fell into jurisdictional error – failure to apply relevant criteria – failure to provide adequate reasons for its decision and disclose its actual path of reasoning – failure of Appeal Panel to correct the errors of the medical assessor – decision quashed.
Supreme Court Act 1970 (NSW), s 69; Workers Compensation Act 1987 (NSW), s 66; Workplace Injury Management and Workers Compensation Act 1988 (NSW), ss 121(4), 319, 322, 322(1), 324, 324(1), 324(4), 327(3), 328, 328(1), 328(2), 328(2A); Uniform Civil Procedure Rules 2005 (NSW), 42.1.

Environment Protection Authority v Elmustapha [2023] NSWLEC 143
ENVIRONMENTAL OFFENCES: pleas of guilty to six offences concerning the supply of false or misleading information about waste – applicable sentencing principles – whether offences committed intentionally – environmental harm caused by the commission of the offences – whether offences were committed for financial gain – whether maximum discount to be awarded for early pleas of guilty – publication order made – fines imposed.
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 23; Criminal Procedure Act 1986, ss 257B, 257G; Environment Operations Amendment (Illegal Waste Disposal) Act 2013; Environmental Planning and Assessment Act 1979, s 4.55(2); Protection of the Environment Operations Act 1997, ss 3, 88, 144, 144AA, 169A, 193, 212A, 241, 250(1)(a); Protection of the Environment Operations Amendment Act 2005; Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018; Protection of the Environment Operations (Waste) Regulation 2014, cl 22.

Kvelde v State of New South Wales [2023] NSWSC 1560
CONSTITUTIONAL LAW – standing – whether plaintiffs have standing to challenge the validity of s 214A of the Crimes Act 1900 (NSW) – the plaintiffs' have standing.
CONSTITUTIONAL LAW – implied freedom of political communication – construction of impugned provisions – the nature of the burden – whether the implied freedom is burdened – whether there is an incremental effect by the impugned law on the implied freedom – whether burden inconsequential – burden found – structured proportionality analysis – impugned provisions are legitimate in their purpose – suitable for purpose – lack of necessity – inadequacy in its balance – subsection 214A(1)(c) is invalid in part – standard use words as to proportionality not reasonable – subsection 214A(1)(d) is invalid.
CRIMINAL LAW – protesters – validity of legislation – freedom of political communication – Crimes Act 1900 (NSW) – Crimes Amendment (Major Facilities) Regulation 2022 (NSW) – subsection 214A(1)(c) invalid in part – subsection 214A(1)(d) is invalid.
ADMINISTRATIVE LAW – Validity of regulation – Roads Act 1993 (NSW) – Roads and Crimes Legislation Amendment Act 2022 (NSW) – regulation is valid.
Beverage Container Act 1975 (SA); Beverage Container Act Amendment Act 1986 (SA); Crimes Act 1900 (NSW), ss 195, 211, 213, 214A, 217, 428B, 578C(2), (7); Crimes Amendment (Major Facilities) Regulation 2022 (NSW); Crimes Regulation 2000 (NSW); Criminal Appeal Act 1912 (NSW), s 5; Criminal Code (Tas), ss 122, 123; Electoral Funding Act 2018 (NSW), ss 29, 35; Forest Management Act 2013 (Tas); Human Rights (Sexual Conduct) Act 1994 (Cth); Interpretation Act 1987 (NSW), ss 23, 24, 31, 42; Judiciary Act 1903 (Cth), ss 39, 78A, 78B; Police Offences Act 1890 (Vic), s 6; Protection of the Environment Operations Act 1997 (NSW), s 144; Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW), s 2; Roads Act 1993 (NSW), ss 58, 59, 60; Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW), cl 48A; Roads and Crimes Legislation Amendment Act 2022 (NSW); Roads Regulation 2018 (NSW); Summary Offences Act 1988 (NSW), ss 8 23, 24; The Constitution, ss 24, 68, 76(i), 77(iii), 128; Transport Administration Act 1988 (NSW); Uniform Civil Procedure Rules 2005 (NSW), r 1.22, 1.23, 1.24; Workplaces (Protection from Protesters) Act 2014 (Tas).

Turitsyna v Chief Commissioner of State Revenue [2023] NSWCATAD 320
ADMINISTRATIVE LAW – reviewability – jurisdiction – no identified enabling legislation – dismissal.
Administrative Decisions Review Act 1997 (NSW); Anti-Discrimination Act 1997 (NSW); Biosecurity Act 2015 (Cth), s 108; Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b); Health Services Act 1997 (NSW), ss 69, 70; Police Act 1990 (NSW), s 208, 211C; Public Health Act 2010 (NSW), s 7; Public Health (Covid-19 Air Transport Quarantine) Order 2020; Public Health (COVID-19 Air Transportation Quarantine) Order (No 2) 2020; Public Health (COVID-19 Air Transportation Quarantine) Order (No 3) 2020; Public Health (COVID-19 Air Transportation Quarantine) Order (No 4) 2020; State Debt Recovery Act (NSW), ss 64, 65, 66.

Commissioner of Police v Ritson [2023] NSWCA 300
ADMINISTRATIVE LAW – access to personal information – obligation of public sector agency – access to be provided without excessive delay – breach of obligation – power to order provision of information – unresolved issues as to application of conditions and limitations on disclosure obligation.
CIVIL PROCEDURE – Civil and Administrative Tribunal – appeals – leave to appeal – third appeal – original applicant inactive party – issue of principle as to power of Tribunal – statutory agency appearing as contradictor – no prejudice to original applicant.
STATUTORY INTERPRETATION – harmonious construction – two State Acts – provision in one Act picking up provisions from another Act – construing picked-up provision so as to apply in different legislative context.
Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83; Freedom of Information Act 1989 (NSW), s 25; Government Information (Public Access) Act 2009 (NSW), ss 5, 6, 12, 13, 14, Pt 4, Div 2, s 41, Div 3, ss 51, 53, Div 4, ss 57, 58, 60, 71, Sch 1; Police Act 1990 (NSW), Pt 8A; Privacy and Personal Information Protection Act 1998 (NSW), ss 3, 4, 5, Pt 2, Div 1, ss 8-19, Div 2, ss 20, 21, 23, 24, 25, 27, 32, Pt 5, ss 53, 54, 55, 65, 69; Supreme Court Act 1970 (NSW), s 101.

Chief Commissioner of State Revenue v Integrated Trolley Management Pty Ltd [2023] NSWCA 302
TAXES AND DUTIES – payroll tax liability – employment agency contract – contract for trolley collection and cleaning services – identifying the employment agency contract – contract between agent and client – separate contracts between agent and service providers – onus of proof on tax payer.
STATUTORY INTERRETATION – payroll tax liability – employment agency contract – procuring services for client – when service provider works "in and for" the business of the client of the agent – use of "indicia" – reliance on factors considered in other cases.
Interpretation Act 1987 (NSW), s 33; Payroll Tax Act 2007 (NSW), ss 6, 7, 10, 11, Pt 3, Divs 7, 8, ss 35, 37, 38, 39, 40, 41.

Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140
JUDICIAL REVIEW – development consent granted for State significant development pursuant to s 4.38 of the Environmental Planning and Assessment Act 1979 (NSW) – development consent granted in relation to Crown land – consent not obtained from the Minister administering the Crown Land Management Act 2016 (NSW) on behalf of the Crown – whether jurisdictional error – whether reliance on cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) obviated the need for consent prescribed by s 2.23 of the Crown Land Management Act 2016 (NSW) – statutory construction – whether the Court should grant conditional validity pursuant to s 25B of the Land and Environment Court Act 1979 (NSW) – whether failure to obtain owner's consent is a "technical breach".
Administrative Arrangements (Second Perrottet Ministry – Transitional) Order 2021; Constitution Act 1902 (NSW); Crown Land Management Act 2016 (NSW) s 2.23; Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 4.12(1), 4.36, 4.38; Environmental Planning and Assessment Regulation 2000 (NSW) cl 49; Environmental Planning and Assessment Regulation 2021 (NSW) s 23(2), Schedule 6, Part 1, cl 3; Interpretation Act 1987 (NSW) s 33; Land and Environment Court Act 1979 (NSW) ss 25B, 25E; Local Government Act 1993 (NSW) ss 36, 40, 44; Uniform Civil Procedures Rules 2005 (NSW) r 59.3.

Legislation

Acts compilation

Regulations and other miscellaneous instruments

Environmental Planning instruments
Canada Bay Local Environmental Plan 2013 (Amendment No 28) (2024-12) – LW 25 January 2024
Port Macquarie-Hastings Local Environmental Plan 2011 (Map Amendment No 7) (2024 No 13) – LW 25 January 2024
Bathurst Regional Local Environmental Plan 2014 (Amendment No 23) (2024 No 17) – LW 2 February 2024
Coffs Harbour Local Environmental Plan 2013 (Map Amendment No 8) (2024 No 18) – LW 2 February 2024
Shoalhaven Local Environmental Plan 2014 (Amendment No 51) (2024 No 28) – LW 9 February 2024

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

Australia: NSW Government Bulletin: Part 2 - In The Media, In courts and practice, Cases and Legislation

In the media

In the courts and practice

Publications

Cases

Legislation

Regulations and other miscellaneous instruments

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