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Development and Planning Law in New South Wales PDF

2332 Pages·2012·7.752 MB·English
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Product Information Important Disclaimer No person should rely on the contents of this publication without first obtaining advice from a qualified professional person. This publication is sold on the terms and understanding that (1) the authors, consultants and editors are not responsible for the results of any actions taken on the basis of information in this publication, nor for any error in or omission from this publication; and (2) the publisher is not engaged in rendering legal, accounting, professional or other advice or services. The publisher, and the authors, consultants and editors, expressly disclaim all and any liability and responsibility to any person, whether a purchaser or reader of this publication or not, in respect of anything, and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. Without limiting the generality of the above, no author, consultant or editor shall have any responsibility for any act or omission of any other author, consultant or editor. ABOUT CCH AUSTRALIA LIMITED CCH Australia is a leading provider of accurate, authoritative and timely information services for professionals. Our position as the “professional’s first choice” is built on the delivery of expert information that is relevant, comprehensive and easy to use. We are a member of the Wolters Kluwer group, a leading global information services provider with a presence in more than 25 countries in Europe, North America and Asia Pacific. CCH — The Professional’s First Choice. Enquiries are welcome on 1300 300 224. 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

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Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.