LOCAL GOVERNMENT ENVIRONMENTAL REPORTS

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1 SEPTEMBER 2013 Reports concerning local government, valuation of land, compensation, town planning, environmental control and powers and duties of statutory authorities from the High Court, Federal Court, Supreme Courts of the States and Territories and the Victorian Civil and Administrative Tribunal. The Authorised reports of the NSW Land and Environment Court THE LOCAL GOVERNMENT AND ENVIRONMENTAL REPORTS OF AUSTRALIA EDITOR SA WHITE, MA LLB REPORTERS J VENEZIANO N HOLLINSHEAD VOL 195 PART 2 PAGES

2 The mode of citation of this part will be: 195 LGERA TABLE OF CASES REPORTED Part 2 Pages Cawdor Road Pty Ltd v Wollondilly Shire Council (NSW Land & Environment Ct) Allandale Blue Metal Pty Ltd v Roads and Maritime Services (NSW Ct of App) Banyule City Council and Others; Jireh Investment Group Pty Ltd v (Vic Civil & Admin Trib) Bardsley-Smith and Another v Penrith City Council and Others (NSW Ct of App) Council (NSW Ct of App) Davidson v Yarra Ranges Shire Council and Another (Vic Civil & Admin Trib) Eurobodalla Shire Council; Bodalla Aboriginal Housing Company Ltd v (NSW Ct of App) Harris; Harrison v (NSW Land & Environment Ct) Harrison v Harris (NSW Land & Environment Ct) Jireh Investment Group Pty Ltd v Banyule City Council and Others (Vic Civil & Admin Trib) K&M Prodanovski Pty Ltd v Wollongong City Council (NSW Ct of App) Kapiris v Macedon Ranges Shire Council and Others (Vic Civil & Admin Trib) Kemp Investments (NSW) Pty Ltd and Another v Valuer-General (NSW Land & Environment Ct)... 1 Leichhardt Council; Rowlane Investments Pty Ltd v (NSW Land & Environment Ct)... 9 Macedon Ranges Shire Council and Others; Kapiris v (Vic Civil & Admin Trib) McIntyre; Townsville City Council v (Qld Sup Ct) (Cases in bold reported in this part) ISSN

3 TABLE OF CASES REPORTED Penrith City Council and Others; Bardsley-Smith and Another v (NSW Ct of App) Queanbeyan City Council v Sun (No 2) (NSW Land & Environment Ct) Roads and Maritime Services; Allandale Blue Metal Pty Ltd v (NSW Ct of App) Rowlane Investments Pty Ltd v Leichhardt Council (NSW Land & Environment Ct)... 9 Sun (No 2); Queanbeyan City Council v (NSW Land & Environment Ct) Townsville City Council v McIntyre (Qld Sup Ct) Valuer-General; Kemp Investments (NSW) Pty Ltd and Another v (NSW Land & Environment Ct)... 1 Wollondilly Shire Council; 820 Cawdor Road Pty Ltd v (NSW Land & Environment Ct) Wollongong City Council; K&M Prodanovski Pty Ltd v (NSW Ct of App) Yarra Ranges Shire Council and Another; Davidson v (Vic Civil & Admin Trib) (Cases in bold reported in this part)

4 INDEX Part 2 Pages COSTS Conduct of proceeding Unnecessary costs Opposition by water authorities to erection of dwelling on 16 hectare lot in declared Special Water Supply Catchment Area causing lengthy extension to hearing Macedon Ranges Planning Scheme Rural Conservation Zone 1(Vic) Victorian Civil and Administrative Tribunal Act 1998 (Vic). Kapiris v Macedon Ranges Shire Council and Others (Vic Civil & Admin Trib) DEVELOPMENT Zoning objective Potable water supply Dwelling density Impacts on water quality Precautionary principle Rural zoning Construction of dwelling on 16 hectares lot in proclaimed potable water supply catchment Site within declared Special Water Supply Catchment Area Opposition to development by rural water authorities Macedon Ranges Planning Scheme Rural Conservation Zone 1(Vic). Kapiris v Macedon Ranges Shire Council and Others (Vic Civil & Admin Trib) DEVELOPMENT APPLICATION Amended plans Expert reports Notice Amended plans showing significant changes to apartment building appended to expert report Onus rests with applicants to ensure circulation of amended plans Victorian Civil and Administrative Tribunal s Practice Notes PNVCAT 2 (for expert reports) and PNPE9 (amended plans) Planning and Environment Act 1987 (Vic). Jireh Investment Group Pty Ltd v Banyule City Council and Others (Vic Civil & Admin Trib) DEVELOPMENT CONSENT Extrinsic material Proper construction of consent Incorporation of extraneous material into consent expressly or by necessary implication Environmental Planning and Assessment Act 1979 (NSW). ENVIRONMENTAL PLANNING INSTRUMENTS Local environmental plan Prohibition on erection of dwellings Exception for erection of replacement dwellings Whether development consent limited to replacement of existing elements Wollondilly Local Environmental Plan 2011 (NSW), cl 4.2A(4)(a).

5 INDEX LAND AND ENVIRONMENT COURT (NSW) Discretion Order for separate and preliminary decision of questions Principles Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005 (NSW), r PRACTICE AND PROCEDURE Delay Extension of time sought for leave to appeal Order for separate determination of preliminary question Delay by appellant seeking leave to appeal pending outcome of separate determination Statutory objective of just, quick and cheap resolution of the real issues in the proceedings Whether extension of time consistent with statutory objective Civil Procedure Act 2005 (NSW), s 56. Extension of time Separate determination of preliminary question Whether preliminary question relevant to primary issue in dispute Whether resolution of preliminary question would be dispositive of litigious controversy or substantially narrow field of litigious controversy Whether issue must be critical Construction of a development consent Whether order of separate determination open Civil Procedure Act 2005 (NSW), s 56. RATES Exemptions Public charity Memorandum of association with charitable and non-charitable objects Whether non-charitable objects ancillary, incidental, dependant or concomitant to four charitable objects Local Government Act 1993 (NSW), s 556(1)(h). STATUTES Interpretation Memorandum of association with charitable and non-charitable objects Rates exemption Whether non-charitable purposes of memorandum of association invalid and to be disregarded Whether regard can be had to activities of company where memorandum sets out details of its purposes and objects Charitable Trusts Act 1993 (NSW), s 23. SUBDIVISION Minimum lot sizes Yarra Ranges Planning Scheme (Vic) Validity of schedule to Green Wedge Zone Maximum lot sizes Planning and Environment Act 1987 (Vic), s 77. Davidson v Yarra Ranges Shire Council and Another (Vic Civil & Admin Trib)

6 INDEX WORDS AND PHRASES Belongs Local Government Act 1993 (NSW), s 556(1)(h). Erected erection dwellings whether development consent limited to replacement of existing elements Wollondilly Local Environmental Plan 2011 (NSW), cl 4.2A(4)(a) Interpretation Act 1987 (NSW), s 11. Just, quick and cheap resolution of the real issues in the proceedings whether extension of time consistent with statutory objective Civil Procedure Act 2005 (NSW), s 56. Public charity Local Government Act 1993 (NSW), s 556(1)(h). Replace dwelling whether development consent limited to replacement of existing elements Wollondilly Local Environmental Plan 2011 (NSW), cl 4.2A(4)(a) Interpretation Act 1987 (NSW), s 11.