NSW government to withdraw and repay more than 23,000 fines issued during the COVID-19 pandemic
The NSW government will withdraw and repay more than 23,000 fines issued during the COVID-19 pandemic after receiving fresh legal advice. In 2022, Revenue NSW withdrew more than 36,000 penalty notices because the NSW Commissioner of Fines Administration found that those penalty notices did not comply with the Fines Act. The commissioner found the penalty notices did not sufficiently detail the description of the offence committed (26 November 2024). Read more here.
Appointment of Rachel McCallum as NSW Electoral Commissioner
Ms McCallum brings a distinguished background in public administration and law, with significant experience in electoral matters. She has served as the NSW Information Commissioner and Chief Executive Officer of the Information and Privacy Commission NSW, and previously held senior roles at the NSW Electoral Commission, including as Acting Electoral Commissioner (27 November 2024). Read more here.
NSW govt establishes new digital procurement guidelines
The NSW government has established new procurement guidelines to make it easier for agencies to work with technology companies and move towards off-the-shelf products. Instead of being forced down rigid tender pathways which have to specify a solution, the updated procurement rules allow agencies to identify, test and buy products to deliver smarter and faster services. The state government claimed the Test & Buy Innovation guidelines support agencies to access suitable digital solutions to address community need (28 November 2024). Read more here.
Residential development overhaul coming to NSW
The NSW Government has announced the establishment of a new state-led approval pathway for major residential housing projects, as well as a process for rezonings – neither having to be approved by councils, cutting approval times and speeding up the delivery of new homes. This reform will come into effect in early 2025 following a “short and sharp” consultation with stakeholders. This will be available for new housing developments above an estimated development cost of $60 million (on average 100 or more homes) in Greater Sydney and a cost of approximately $30 million (on average 40 or more homes) in regional NSW (20 November 2024). Read more here.
Magistrates to be called judges under historic change to Local Court Act
NSW Local Court magistrates will be known as judges under amendments to the Local Court Act 2007 designed to reflect the seriousness and volume of work done in this jurisdiction. This will more appropriately reflect the jurisdiction’s vital role in the state’s justice system (20 November 2024). Read more here.
Re-issued Practice Note SC GEN 23 – Use of Generative Artificial Intelligence
On 21 November 2024, the Supreme Court of NSW issued Practice Note SC GEN 23, governing the use of generative AI in relation to court documents. The Court has also issued an accompanying guideline to judges in respect of the use of generative AI in writing judgments (21 November 2024). Read more here.
NSW Skills Plan 2024–28: Building Skills and Shaping Success
The NSW Department of Education’s strategic plan for skills sets out a vision for the NSW skills system to support all people to participate in vocational education and training (VET) that drives economic and wellbeing outcomes for individuals, industry, and communities. The plan focuses on critical skills areas highlighting industries with long-standing shortages including construction, digital and cyber, and net zero and energy transition (3 December 2024). Access the Plan here.
Our Reconciliation Action Plan
The NSW Ministry of Health maintains a Reflect Reconciliation Action Plan (RAP) endorsed by Reconciliation Australia. The RAP vision for reconciliation is for Aboriginal and Torres Strait Islander people to live and work in a reconciled Australia where Aboriginal and Torres Strait Islander people and communities have positive and holistic health and wellbeing outcomes. The RAP marks an important step in our commitment to reconciliation and the celebration of Aboriginal and Torres Strait Islander culture and knowledge. Access the Plan here.
NSW Voluntary Assisted Dying Board - Annual Report 2023–24
The first annual report of the NSW Voluntary Assisted Dying Board (the published 29 November 2024 provides an overview of voluntary assisted dying in NSW from 28 November 2023 to 30 June 2024. Access the Report here.
Have your say – Homes for NSW discussion paper
Homes NSW has prepared a discussion paper to inform planning for a better social housing and homelessness system in NSW. The discussion paper outlines the issues and challenges impacting the non-market housing and homelessness system. It sets out draft priorities and opportunities for reform. This is an opportunity to work with Homes NSW to deliver better outcomes for people seeking housing and homelessness support in NSW. The consultation period is open until 20 December 2024. Access the discussion paper and survey here.
Have your say – Heritage NSW standard exemptions
Under the standard exemptions, certain activities or works may be exempt from a Heritage Act permit if it complies with the relevant standards. The standard exemptions currently include a range of activities or work that have little to no impact on the item's heritage significance and support its ongoing management such as maintenance, painting or installing a fire alarm. Survey submission will be collected until 31 January 2025. Access the survey here.
Have your say – Draft Aboriginal Fishing Regulation
The NSW Government is progressing a key election commitment, with a draft regulation to support Aboriginal people fishing for cultural purposes now open for public consultation. The draft Fisheries Management (General) Amendment (Aboriginal Cultural Fishing) Regulation 2024 (draft regulation) aims to support Aboriginal people and communities to fish for cultural purposes within a sustainable fisheries framework. The consultation period ends on 16 February 2025. Access the survey here.
Have your say – NSW Survey Marks Database and Mobile App Update
DCS Spatial Services is updating NSW’s Survey Control Information Management System (SCIMS) and is seeking feedback. Since the year 2000, SCIMS has stored and delivered permanent survey mark coordinates and associated meta data. There have been upgrades to how the surveying and spatial industry access and use this information over this time but it is now due for a major overhaul. Technology platforms, new ways of using data and additional datasets have led to DCS Spatial Services seeking your advice on the features of a new database and method of both accessing and providing data for NSW’s Survey Control Network. Survey submission will be collected until 8 December 2024. Access the survey here.
Environment Protection Authority v Sydney Water Corporation [2024] NSWLEC 130
CRIMINAL – sentencing for offence of failure to maintain equipment in proper and efficient manner – plea of guilty – discharge of untreated sewage into stormwater drain from pipe – minimal environmental harm established – prior convictions aggravating – mitigating factors – payment to Environmental Trust ordered – publication order made.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23; Criminal Procedure Act 1986 (NSW), s 257B; Fines Act 1996 (NSW), s 6; Protection of the Environment Operations Act 1997 (NSW), ss 3, 64, 241, 244, 250, Sch 6.
Grand Rozelle Pty Ltd v Transport for NSW (No 3) [2024] NSWLEC 129
PRACTICE AND PROCEDURE – claim of public interest immunity over Cabinet documents – ss 130 and 131 of the Evidence Act 1995 (NSW) – the Court’s inspection of the documents subject of the claim.
Evidence Act 1995 (NSW) ss 130, 131A, 133; Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 70.
Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131
SENTENCING – Environmental offences – Offences under s 12 of the Native Vegetation Act 2003 (NSW) – Offences under s 60N of the Local Land Services Act 2013 (NSW) – Clearing of native vegetation without consent – Substantial harm caused – Foreseeable risk of environmental harm – Practical measures to prevent risk of harm – Full control over the cause of offences – Offences committed for financial gain – State of mind in committing offences – Objective seriousness near the mid to high range of seriousness – Subjective circumstances of the defendants – Previous good character – No remorse demonstrated – Defendants pleaded not guilty – Need for both specific and general deterrence – Determination of appropriate penalties – Fines imposed with moiety to prosecutor – Orders as to costs.
Biodiversity Conversation Act 2016 (NSW), s 13.12; Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1, ss 3A, 17, 21A; Criminal Procedure Act 1986 (NSW), s 257B; Environment Protection and Biodiversity Conservation Act 1999 (Cth); Environmental Planning and Assessment Act 1979 (NSW), s 126; Fines Act 1996 (NSW), ss 6, 122; Local Land Services Act 2013 (NSW), ss 3, 60N; Native Vegetation Act 2003 (NSW), ss 3, 12; Protection of the Environment Administration Act 1991 (NSW), s 6; Threatened Species Conservation Act 1995 (NSW).
Bowie Ferris Investments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1774
APPEAL – development application – change of use from the existing hotel use to a retail and commercial use – adverse impact on heritage significance of the local heritage item (The Village Inn) and the Paddington Conservation Area – social impact on the locality – public interest.
Environmental Planning and Assessment Act 1979, ss 1.5, 4.15, 8.7; Environmental Planning and Assessment Regulation 2021; State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2; State Environmental Planning Policy (Industry and Employment) 2021, Pts 3.1, 3.2; Sch 5; Woollahra Local Environmental Plan 2014, cll 1.2, 2.2, 4.3, 4.4, 4.6, 5.10, 5.21; Sch 5 Pt 1.
Hau v South Eastern Sydney Local Health District [2024] NSWCATAD 359
ADMINISTRATIVE LAW – administrative review – Government information - whether overriding public interest against disclosure - confidential information – information provided in confidence.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Freedom of Information Act 1982 (Cth); Government Information (Public Access) Act 2009 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).
State of New South Wales v Meredith [2024] NSWCA 287
APPEALS – leave to appeal – decision involving a matter of practice and procedure – orders setting aside subpoena and Notice to Produce served by the applicant – where applicant has failed to identify a principle of general application or a question of public importance or any substantial injustice – where leave to appeal is refused.
Civil Procedure Act 2005 (NSW), s 56, Pt 10; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
SafeWork NSW v Twin Connect Pty Ltd [2024] NSWDC 568
CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – duty of employer – risk of death or serious injury – injury to worker.
SENTENCING – objective seriousness – deterrence – aggravating factors – mitigating factors – capacity to pay a fine.
SENTENCING PRINCIPLES – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities.
Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Work Health and Safety Act 2011 (NSW).
SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565
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), ss 3A, 21A, 22; Fines Act 1996 (NSW), s 122; Work Health and Safety Act 2011 (NSW), ss 3, 19, 31, 32, 35, 37, 38, 39.
Tsirekas v Independent Commission Against Corruption [2024] NSWSC 1514
ADMINISTRATIVE LAW – judicial review of serious corrupt conduct findings made by Independent Commission Against Corruption – where the person who presided over the hearings did not write the Report – Report not materially affected by errors of law on the basis of apprehended bias where the asserted bias was of a person who was not a decision maker – Report did not involve a denial of procedural fairness where the Commission made credibility findings based on its own assessment of evidence.
Independent Commission Against Corruption Act 1988 (NSW); Royal Commissions Act 1923 (NSW).
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Mt Irvine Claim”) [2024] NSWLEC 127
ABORIGINAL LAND RIGHTS: whether the land was claimable Crown lands as at the date of the claim – whether land was divisible for the purpose of the claim – whether the land was used as at the date of the claim – whether the land was occupied as at the date of the claim – whether the land was lawfully used as at the date of the claim – whether the land was lawfully occupied as at the date of the claim – relevant legal principles – appeal upheld in part.
Aboriginal Land Rights Act 1983, s 36; Crown Lands Act 1884, ss 101, 104; Crown Lands Act 1989, ss 3(2), 6, 92, 93, 100, 121A, 124, Pt 5, Sch 8, cl 4(3); Crown Lands Consolidation Act 1913, ss 2, 3(b), 28, 29, 37Q; Public Trust Act 1897; Real Property Act 1900, s 13J; Sunday Entertainment Act 1966; Theatres and Public Halls Act 1908.
XYZ Services Pty Limited v Inner West Council [2024] NSWLEC 1765
APPEAL – development application – demolition of building within a heritage conservation area – effect of demolition on heritage significance – contravention of limited development on foreshore area controls – whether foreshore area controls a development standard – land subdivision – two detached dwellings – uncertainty regarding “slither of land” immediate to site and subject to possessory title claim – whether owners consent needed – contravention of development control plan provisions – implications of proposed works contrary to building line covenant.
Environmental Planning and Assessment Act 1979, ss 1.4, 3.43, 8.7; Inner West Local Environmental Plan 2022, cll 4.6, 5.10, 6.5, Pts 2, 4, 5, Sch 5; State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.28; State Environmental Planning Policy (Resilience and Hazards) 2021.
Gregory v Secretary, Department of Education [2024] NSWCATAD 353
ADMINISTRATIVE LAW – administrative review - government information - access application – enforceable right to access government information – conclusive presumption of an overriding public interest against disclosure – legal professional privilege - public interest considerations against disclosure – public interest considerations in favour of disclosure – balance - personal information.
ADMINISTRATIVE LAW – reviewable decision - correct and preferable decision - Civil and Administrative Tribunal.
Vortex Developments Pty Ltd trading as Plannex Environmental Planning v The Council of the Municipality of Kiama [2024] NSWLEC 1755
APPEAL – livestock processing industry – abattoir – designated development – permissibility – adequacy of environmental impact statement – traffic impacts – impacts from flooding and stormwater – biosecurity – wastewater management – cumulative impacts.
Environmental Planning and Assessment Act 1979, ss 4.10, 4.12, 4.15, 4.16, 4.47, 8.7. 8.12, 9.22; Land and Environment Court Act 1979, s 39; Water Management Act 2000, Ch 3, Pt 3, ss 91, 91E; Biosecurity (National Livestock Identification System) Regulation 2017, cl 45; Environmental Planning and Assessment Regulation 2000, Sch 3 cl 22, Sch 2 cl 3, Sch 2 cl 7; Environmental Planning and Assessment Regulation 2021, Sch 6 Part 1 cl 3; Kiama Local Environmental Plan 2011, cll 2.5, 5.21, 6.2, 6.3, 6.5, Sch 1 cl 7; Standard Instrument (Local Environmental Plans) Order 2006, cl 8; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, Ch 3; Uniform Civil Procedure Rules 2005, r 34; Water Management (General) Regulation 2018, cl 42, Sch 4 Pt 2 cl 31.
JS Architects Pty Ltd v Randwick City Council [2024] NSWLEC 1756
DEVELOPMENT APPLICATION – subdivision of dual occupancy(attached) – permissible lot size.
Environmental Planning and Assessment Act 1979, ss 1.5, 4.15, 4.16, 4.18, 6.2, 8.7, 8.10; Interpretation Act 1987, s 68; Land and Environment Court Act 1979, ss 17, 39; Real Property Act 1900, s 12F; Strata Schemes Development Act 2015, s 4, 6, 9; Environmental Planning and Assessment Regulation 2021, s 23; Randwick Local Environmental Plan 2012, cll 2.6, 4.1, 4.1A, 4.1C, 6.10.
Jeray v Information and Privacy Commission [2024] NSWCATAP 239
GOVERNMENT INFORMATION – access to information about intervention decisions of Information Commissioner – excluded information and invalid access application under Government Information (Public Access) Act 2009 (NSW).
ADMINISTRATIVE LAW – effect of s 42 of Government Information (Information Commissioner) Act 2009 (NSW) on administrative review jurisdiction of NSW Civil and Administrative Tribunal over decisions of Information and Privacy Commission.
PRACTICE AND PROCEDURE – correct respondent in administrative review proceedings.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Constitution Act 1902 (NSW); Government Information (Information Commissioner) Act 2009 (NSW); Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009 (NSW); Government Information (Public Access) Act 2009 (NSW); Government Sector Employment Act 2013 (NSW); Health Care Complaints Act 1993 (NSW); Independent Commission Against Corruption Act 1988 (NSW); Interpretation Act 1987 (NSW); Judicial Officers Act 1986 (NSW); Ombudsman Act 1974 (NSW); Ombudsman (Amendment) Act 1983 (NSW); Privacy and Government Information Legislation Amendment Act 2010 (NSW); Privacy and Personal Information Protection Act 1998 (NSW); Public Sector Employment and Management Act 2002 (NSW).
RRS Holdings Aust Pty Ltd ATF RRS Holdings Trust v Chief Commissioner of State Revenue [2024] NSWCATAD 352
TAXES AND DUTIES – Surcharge land tax – applicant holds land on trust – discretionary trust – amendment to trust deed – interpretation of deed – whether the “no amendment requirement” in s5D(3)(b) of the Land Tax Act 1956 (NSW) was satisfied.
Administrative Decisions Review Act 1997 (NSW); Duties Act 1997 (NSW); Foreign Acquisitions and Takeovers Act 1975 (Cth); Land Tax Act 1956 (NSW); State Revenue Legislation Further Amendment Act 2020 (NSW); Taxation Administration Act 1996 (NSW); Trustee Act NSW 1925 (NSW).
Petersham High Pty Ltd v Inner West Council [2024] NSWLEC 1749
DEVELOPMENT APPLICATION – Co-living housing in R2 Low Density Residential zone – alterations and additions to heritage item – whether permissible development – heritage conservation – landscaped area – maximum number of rooms exceeded.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Land and Environment Court Act 1979, s 39; Inner West Local Environmental Plan 2022, cll 4.3, 4.4, 4.6, 5.10, 6.3, 6.12; State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6.
Elith v Ku-ring-gai Council [2024] NSWLEC 1757
Appeal against refusal of permission for tree removal – Leyland Cypress competing with Turpentine tree – no current indications of negative impacts – negative impacts unlikely in the mid-term future – appeal dismissed.
Biosecurity Act 2015; Electricity Supply Act 1995; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979, s 39; Roads Act 1993; Rural Fires Act 1997; Ku-ring-gai Local Environmental Plan 2015; State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.2, 2.6, 2.7, 2.9, 2.11, 2.12, Pts 2.3, 3; Uniform Civil Procedures Rules 2005.
Smith v Commissioner of Police, NSW Police Force [2024] NSWCATAD 350
ADMINISTRATIVE REVIEW – licensing – firearms licensing – revocation of licence – continuous and responsible control over firearms – contrary to the public interest – fit and proper person – association.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW); Firearms Regulation 2017 (NSW).
Environment Protection Authority v Fair [2024] NSWLEC 124
ENVIRONMENTAL LAW – waste storage – storage of waste tyres in enclosed storage units at storage facilities – whether scheduled activity requiring licence – whether pollution of land – order to remedy or restrain breach – whether includes payment of compensation to third party
Land and Environment Court Act 1979 (NSW), s 20; Protection of the Environment Operations Act 1997 (NSW), s 48, 142A, Schedule 1, Dictionary; Protection of the Environment Operations (General) Regulation 2022 (NSW), cl 133.
Brokers Property Holdings Pty Ltd v MidCoast Council [2024] NSWLEC 122
PRACTICE AND PROCEDURE – notice of motion to dismiss summons seeking appeal in Land and Environment Court which was filed out of time – notice of motion granted.
APPEAL – severity appeal against sentence in Local Court in relation to an environmental offence — application for leave to appeal lodged more than three months after date of conviction – whether Court has power to grant leave – section 33(2) of the Crimes (Appeal and Review) Act 2001 (NSW) – no power to grant leave – appeal dismissed.
Crimes (Appeal and Review) Act 2001, ss 31, 33, 34, 36; Environmental Planning and Assessment Act 1979 (NSW).
Proclamations commencing Acts
Equality Legislation Amendment (LGBTIQA+) Act 2024 No 71 (2024-599) – published LW 29 November 2024
Regulations and other miscellaneous instruments
Electoral Funding (Adjustable Amounts) (Administrative Funding) Notice 2024 (2024-600) – published LW 29 November 2024
Energy and Utilities Administration Amendment (Abolition of Net Zero Board) Regulation 2024 (2024-601) – published LW 29 November 2024
Environmental Planning and Assessment Amendment (Hornsby Transport Oriented Development Precinct) Regulation 2024 (2024-588) – published LW 27 November 2024
Environmental Planning and Assessment Amendment (Macquarie Park Transport Oriented Development Precinct) Regulation 2024 (2024-589) – published LW 27 November 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-602) – published LW 29 November 2024
Health Legislation Amendment (Fees) Regulation 2024 (2024-598) – published LW 27 November 2024
Law Enforcement (Powers and Responsibilities) Amendment (Hand-held Scanners) Regulation 2024 (2024-603) – published LW 29 November 2024
Marine Pollution Amendment Regulation 2024 (2024-604) – published LW 29 November 2024
Personal Injury Commission (Amendment No 3) Rule 2024 (2024-587) – published LW 25 November 2024
Surveying and Spatial Information Regulation 2024 (2024-605) – published LW 29 November 2024
Water Management (General) Amendment (Fire Fighting Exemptions) Regulation 2024 (2024-606) – published LW 29 November 2024
Environmental Planning Instruments
Canada Bay Local Environmental Plan (Housing) (Map Amendment No 1) (2024-590) – published LW 27 November 2024
Muswellbrook Local Environmental Plan 2009 (Amendment No 21) (2024-607) – published LW 29 November 2024
Orange Local Environmental Plan 2011 (Amendment No 40) (2024-608) – published LW 29 November 2024
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous) 2024 (2024-609) – published LW 29 November 2024
State Environmental Planning Policy Amendment (Bankstown Transport Oriented Development Precinct) 2024 (2024-591) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Bella Vista and Kellyville Transport Oriented Development Precincts) 2024 (2024-592) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Crows Nest Transport Oriented Development Precinct) 2024 (2024-593) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Exemptions) 2024 (2024-594) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Homebush Transport Oriented Development Precinct) 2024 (2024-595) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Hornsby Transport Oriented Development Precinct) 2024 (2024-596) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Macquarie Park Transport Oriented Development Precinct) 2024 (2024-597) – published LW 27 November 2024
Wollongong Local Environmental Plan 2009 (Map Amendment No 8) (2024-610) – published LW 29 November 2024
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by:
