Development and Planning Law in New South Wales

2332 Pages·2012·7.752 MB·English

by  John Whitehouse

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National Library of Australia Cataloguing-in-Publication entry
Author:
Whitehouse, John, 1952–
Title:
Development and Planning Law in New South Wales/John
Whitehouse; edited by Fiona Harmsworth.
Subjects:
City planning and redevelopment law — New South Wales.
Planning — Law and legislation — New South Wales
ISBN: 978 1 922042 04 0
© 2012 CCH Australia Limited
Published by CCH Australia Limited
First published October 2012
All rights reserved. No part of this work covered by copyright may be
reproduced or copied in any form or by any means (graphic, electronic
or mechanical, including photocopying, recording, recording taping, or
information retrieval systems) without the written permission of the
publisher.
FOREWORD
The purpose of this book is to examine and explain development and
planning law in New South Wales. The approach taken is explicitly
based on the applicable legislation and judicial decisions. With both
legislation and cases, key provisions are outlined and analysed.
Extensive excerpts of key judgments are included so that a reader
may independently assess the validity of the conclusions drawn. In
each area of the law, sets of principles are derived from the legislation
and cases to provide a coherent framework of the law. The discussion
also seeks to identify the underlying policy or rationale, both of
legislation and judicial decisions.
This book will be useful for lawyers practising in the field, planning
practitioners, local government staff, developers, consultants,
community groups and students. It presupposes no detailed
knowledge of the field, but provides an outline and analysis at a level
of detail capable of meeting both introductory and specialist needs.
I am indebted to many for their assistance in preparing this book. In
particular, I am extremely grateful for the detailed and thoughtful
comments on draft chapters by Tim Hale S.C., Simon Ball, Helen
McFarlane and Luke Walker. Any errors that remain are mine alone,
but they are significantly fewer because of the comments I have
received. All care has been taken in the reproduction of key quotes
and judgment extracts throughout this book. For consistency and ease
of locating particular information, however, readers will find that Act
names, case names, Latin terms and the names of key publications
have been italicised, even if these were not italicised in the source
material.
The preparation of text for my written manuscript was undertaken by
Cathy Brockman and Margaret Tupou, two fabulously proficient typists
and computer operators. Likewise, my editor at CCH, Fiona
Harmsworth, and the staff at CCH have been of immeasurable help
and encouragement. The assistance and forbearing by my Partners at
Minter Ellison has been greatly appreciated, particularly Simon Ball,
Duncan McGregor and Penny Murray.
It would be remiss of me not to record my deep gratitude to the late
Paul Landa Q.C.M.P., Minister for Planning and Environment (1976–
1980) and Attorney-General of NSW (1983–1984), for his inspiration
and vision.
This book is dedicated to the memory of my late mother, Marcelle
Rosina Whitehouse (1922–2010).
John Whitehouse
Sydney
September 2012
ABOUT THE AUTHOR
John Whitehouse (BA LLB
(Sydney), BSc (Macquarie) Dip
Leg Pr (UTS)) is one of
Australia’s leading environment
and planning lawyers acting in
relation to major development,
mining and environmental
issues.
John is a solicitor in private
practice and a Partner at Minter

Ellison Lawyers, Sydney. His
practice has encompassed
litigious, advisory and
transactional matters. John has
acted in relation to many
development projects, including
numerous coal projects, as well
as those in areas of extractive
industries, ports, retail centres,
residential developments,
commercial developments and
tourist developments. In
addition, John has acted in
many pollution control matters.
John is admitted as a Solicitor of the Supreme Court of New South
Wales, a Barrister and a Solicitor of the Supreme Court of Victoria,
and a Solicitor of the High Court of Australia.
Since 1997, John has been a Fellow in the Graduate School of
Environment at Macquarie University. He has been lecturing in the
course — GSE 801 Environmental Law and Policy — since 1995.
John has held a number of high profile roles in the public sector.
These include him being Special Advisor to the Minister for Planning
and Environment (1976–1980), Head of the Environment Protection
Division and then Assistant Director of the NSW Department of
Environment and Planning (1980–1985) and Director of the NSW
National Parks and Wildlife Service (1985–1989). Through his
previous work in the public sector, John has made some significant
contributions which have resulted in the:
• enactment of the Heritage Act 1977 (NSW)
• enactment of the Environmental Planning and Assessment Act
1979 (NSW)
• enactment of the Land and Environment Court Act 1979 (NSW)
• cessation of coastal mineral sands mining in New South Wales
• expansion of north coast natural parks, including Myall Lakes,
Crowdy Bay, Limeburners Creek, Hat Head, Yuraygir, Bungalung
and Broadwater
• expansion of wilderness national parks, including Deua-Wadbilliga,
Wollemi, Goulburn River, Yengo and Oxley Wild Rivers
• cessation of rainforest logging and the establishment or expansion
of major rainforest national parks, including Border Ranges,
Nightcap, Washpool, Werrikimbee, New England, Dorrigo and
Barrington Tops
• inclusion of the Australian East Coast Temperate and Subtropical
Rainforest Parks on the World Heritage List
• NSW National Parks and Wildlife Service being recognised in
1986 by Dr James Thorsell of the International Union for
Conservation of Nature (IUCN) as one of the top four park
services in the world
• establishment of the Sydney Catchment Authority and the
development of metropolitan water planning for Sydney, and
• establishment of the Accelerated Sewerage Treatment Program to
remedy the backlog in sewerage treatment in the Sydney drinking
water catchment.
John is a Member of the International Council on Environmental Law,
a Member of the IUCN Commission on Environmental Law and
Member of the IUCN Commission on National Parks and Protected
Areas. He is also a Member and holds a position on the Editorial
Advisory Board for the Australasian Journal of Natural Resources Law
and Policy.
To access the details of other publications by this author, please refer
to web.science.mq.edu.au/intranet/directory/listing/person.htm?
id=jwhiteho
John may be contacted via the following email address:
[email protected].
CCH ACKNOWLEDGMENTS
CCH Australia Limited wishes to thank the following who contributed
to and supported this publication:
Managing Director: Matthew Sullivan
Director, ANZ Books: Jonathan Seifman
Publisher, ANZ Books: Andrew Campbell
Deputy Publisher, ANZ Books: Adriana Giometti
Senior Editor, ANZ Books: Fiona Harmsworth
Production Team Leader: Rafiza Abd Aziz
Production Editor: Natalie Chong
Sub-editor: Leong Kwan Yi
Indexer: Adrian Leow
Market Development Manager: Lauren Ma
Books Coordinator: Mele Aloua
Cover designer: Mathias Johansson [Note: the discovery of an
Eastern Water Dragon in investigations associated with a
development application’s potential impact on a riparian zone led to
the creation of a precedent in environmental decision-making in the
Land and Environment Court of NSW. See Evidence and Findings,
item 39 in Silva v Ku-ring-gai Council [2009] NSWLEC 1060.]
ABBREVIATIONS
1909 UK Act Housing, Town Planning etc Act 1909 (UK)
1932 UK Act Town and Country Planning Act 1932 (UK)
AHD Australian Height Datum
ALJR Australian Law Journal Reports
BASIX Building Sustainability Index
BHP Building Height Plane
CC Act 1992 Casino Control Act 1992 (NSW)
cl clause
CLR Commonwealth Law Reports
County County of Cumberland Planning Scheme Ordinance
Scheme
DA development application
DAF Development Assessment Forum
DCP Development Control Plan
DFC desired future character
DG Director-General
Div Division
DLWC Department of Land and Water Conservation
DUAP Department of Urban Affairs and Planning
EEC endangered ecological community
EIA Environmental Impact Assessment
EIS Environmental Impact Statement
Endangered Endangered Fauna (Interim Protection) Act 1991
Fauna IP Act (NSW)
EPA Act Environmental Planning and Assessment Act 1979
(NSW)
[Note:
• 1985 Amendments refer to changes made under
the Environmental Planning and Assessment
(Amendment) Act 1985 No 228 (NSW)
• 1996 Amendments refer to changes made under
the Environmental Planning and Assessment
Amendment Act 1996 No 44 (NSW)
• 1997 Amendments refer to changes made under
the Environmental Planning and Assessment
Amendment Act 1997 No 152 (NSW)
• 2005 Amendments refer to changes made under
the Environmental Planning and Assessment
Amendment (Infrastructure and Other Planning
Reform) Act 2005 No 43 (NSW)
• 2006 Amendments refer to changes made under
the Environmental Planning and Assessment
Amendment Act 2006 No 8 (NSW), and
• 2008 Amendments refer to changes made under
the Environmental Planning and Assessment
Amendment Act 2008 No 36 (NSW).]
EPA Environmental Planning and Assessment (Plan
Amendment Making) Regulation 2009 (NSW)
Regulation
2009
EPA Environmental Planning and Assessment Regulation
Regulation 2000 (NSW)
EPA Environmental Planning and Assessment Regulation
Regulation 1980 (NSW)
1980
EPBC Act Environment Protection and Biodiversity Conservation
Act 1999 (Cth)
EPI Environmental Planning Instrument
EPIP Act Environment Protection (Impact of Proposals) Act
1974 (Comm)
ESD Ecologically Sustainable Development
FCR Federal Court Reports
FIS Fauna Impact Statement
FM Act Fisheries Management Act 1994 (NSW)
FSR floor space ratio
HCA High Court of Australia
ICAC Independent Commission Against Corruption
IDO Interim Development Order