UPDATE 297 JUNE (2) 2016 PLANNING AND DEVELOPMENT SERVICE NEW SOUTH WALES. S White. Material Code Print Post Approved PP255003/00373

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1 UPDATE 297 JUNE (2) 2016 PLANNING AND DEVELOPMENT SERVICE NEW SOUTH WALES S White Material Code Print Post Approved PP255003/00373 Thomson Reuters (Professional) Australia Limited 2016 Looseleaf Support Service You can now access the current list of page numbers at If you have any questions or comments, or to order missing pages, please contact Customer Care LTA ANZ on Fax: Care.ANZ@thomsonreuters.com

2 LAND AND ENVIRONMENT COURT CASE SUMMARIES Jeff Kildea has added summaries on the following Land and Environment Court cases related to adjournment (Class 4 proceedings) and expert evidence (judicial review), respectively: North Sydney Council v North Sydney Leagues Club Ltd at [LECS ]; and Bay Simmer Investments Pty Ltd v State of New South Wales at [LECS ]. National Parks & Wildlife Act 1974 Part 8A Section 118A - Harming or picking threatened species, endangered populations or endangered ecological communities Extensive new commentary has been added to s 118A as follows: Object of legislation as outlined in s 2A, including: - places, objects and features of significance to Aboriginal people; - principles of ecologically sustainable development; and - principles of ecologically sustainable development, with regular reference to Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34, at [10850]; Requirements for prior environmental impact assessment and approval in relation to planning and development system, including precautionary approach, at [10852]; Prosecutions, at [10854]; Liability of corporations, at [10856]; Penalties, including: - Indigenous heritage; and - Extent of harm caused by damage to, and significance of, Aboriginal engraving, at [10858]; Contrition and remorse, at [10860]; Proceedings for an offence; at [10862]; and Statutory defences, at [10862]. Commentary to s 118A has also been revised at the following: Licence, at [10866]; Sentences for environmental offences, including purpose of general or public deterrence, at [10870]; Planning & Development NSW 2

3 Sentences for environmental offences, including: - objective circumstances; - objective serious of the offence; - environmental harm; - defendant's state of mind; and - practical measures to prevent forseeable risk of harm, at [10872]. Section 118D Damage to habitat of threatened species, endangered populations or endangered ecological communities New commentary on duplicity of summons has been added, discussing how the essence of duplicity is that a defendant should not be charged in one count with commission of two or more separate offences. In Bentley v Gordon (2005) 139 LGERA 449; [2005] NSWCCA 157, the opponent alleged damage was caused in a number of different ways and the different ways were alternatives, which constituted duplicity. See [10880]. Section 206 Offence Part 15 Failure to comply with a court order has been discussed with reference to Chief Executive, Office of Environment and Heritage v Fish (No 2) (2014) 202 LGERA 188, where the defendant pleaded guilty to the charge that he failed to comply with an order of the Land and Environment Court in breach of s 206. Various factors, including non-compliance with a court order resulting in principal harm, potentially undermining the integrity of the environmental law enforcement system and the defendant's state of mind, suggested that the objective seriousness of the offence was at the high end of the low range of objective gravity. See further at [10980]. Section 12 Control of clearing Native Vegetation Act 2003 New commentary has been added explaining the relationship between the Environmental Planning and Assessment Act 1979 and Native Vegetation Act Planning & Development NSW 3

4 2003. Section 74C of the Environmental Planning and Assessment Act 1979 is discussed as it deals with the interaction between provisions in a Development Control Plan and other environmental planning instruments, such as Local Environment Plans. See more detail at [11985]. Further s 12 commentary has been updated for currency at: Penalty subjective circumstances of the defendant, at [ ]; Penalty deterrence, with new case law Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 and Plath v Vaccount Pty Ltd [2011] NSWLEC 202, at [ ]; and Consistency in sentencing, with new case law Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506, at [ ]. Section 21 Permitted activities New commentary discussing how numerous provisions in the Native Vegetation Act 2003 recognise the potential operation of other statutory regimes to the clearing of native vegetation. Section 16 of the NV Act deals with the relationship between the NV Act and Pt 5 of the EP&A Act, and this is explored further with reference to Elachi v Council of the City of Shoalhaven (2016) 212 LGERA 446; [2016] NSWCA 15, at [ ]. AMENDED LEGISLATION State Environmental Planning Policy (Infrastructure) 2007 Purpose of amendments To insert provisions for exempt development and complying development. Amended provisions Clauses 24 and 26 amended. Clauses 26A and 26B inserted. Amending legislation State Environmental Planning Policy Amendment (Correctional Facilities) 2016 (Reg 139 of 2016) with effect from 18 March Planning & Development NSW 4

5 Purpose of amendments Threatened Species Conservation Act 1995 To amend critically endangered species list by adding the: o o Bellinger River Snapping Turtle to critically endangered species; and Hunter Valley Weeping Myall Woodland in the Sydney Basin Bioregion to critically endangered ecological communities. Amended provisions Schedule 1A amended. Amending legislation Notice of Final Determination under the Threatened Species Conservation Act 1995 [22/04/2016 No 1] (ND 201 of 2016) with effect from 22 April Purpose of amendments To amend endangered populations list by adding the: o Koala population between the Tweed River and Brunswick River east of the Pacific Highway to endangered populations. Amended provisions Schedule 1 amended. Amending legislation Notice of Final Determination under the Threatened Species Conservation Act 1995 [22/04/2016 No 2] (ND 202 of 2016) with effect from 22 April Planning & Development NSW 5

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