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LEC Judicial Newsletter Volume 12 Issue 3 October 2020

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Land and Environment Court of NSW October 2020 Volume 12 Issue 3 Judicial Newsletter Legislation Legislation Statutes and Regulations• o Planning Statutes and Regulations: o Land and Environment Court’s Jurisdiction • o Local Government Planning: o Biodiversity o Water Environmental Planning and Assessment Amendment (COVID-19 Prescribed Pollution Period) Regulation 2020 commenced 18 September 2020. The object of this o Regulation was to extend the period during which Ministerial exemptions from o Miscellaneous provisions of the Environmental Planning and Assessment Act 1979 may have Bills been made in connection with the COVID-19 pandemic. State Environmental Planning Environmental Planning and Assessment Amendment (St Leonards and Crows Policies [SEPP] Nest Special Contributions Area) Order 2020 commenced on 31 August 2020. State Environmental Planning The object of the Order was to create a special contributions area consisting of Policies [SEPP] Amendments certain land in St Leonards and Crows Nest. Civil Procedure Environmental Planning and Assessment Amendment (Sydney Metro West) COVID-19 Response Order 2020 commenced 16 October 2020. The object of this Order was to declare Judgments certain development for the purposes of the Sydney Metro West Project to be State significant infrastructure and critical State significant infrastructure. The United Kingdom Supreme Court relevant development included the construction and operation of new passenger Victorian Court of Appeal rail infrastructure between Westmead and the central business district of Sydney New South Wales Court of and the modification of existing rail infrastructure. Appeal Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 Supreme Court of New South commenced on 1 September 2020. The object of this Act was to prevent Wales developers from carrying out building work that may have resulted in serious Land and Environment Court of defects to building work or result in significant harm or loss to the public or current New South Wales or future occupiers of the building. In particular, the Act made provision for the o Judicial Review following— o Criminal (a) to enable the Secretary of the Department of Customer Service (the o Appeals from Local Court Secretary) to— o Contempt (i) issue a stop work order if building work was being carried out, or likely to be carried out, in a manner that could have resulted in a significant harm o Civil Enforcement or loss to the public or current or future occupiers of the building, or o Aboriginal Land Claims Section 56A Appeals (ii) issue a building work rectification order to require developers to rectify o defective building works, or o Separate Question (iii) prohibit the issuing of an occupation certificate in relation to building works Interlocutory Decisions o in certain circumstances, o Parties to Proceedings (b) to impose an obligation on developers to notify the Secretary at least 6 o Costs months, but not more than 12 months, before an application for an occupation o Merit Decisions (Judges) certificate is intended to be made in relation to building works, o Merit Decisions (c) to provide investigative and enforcement powers for authorised officers to (Commissioners) ensure compliance with the requirements of the proposed Act, Court News (d) to establish penalties for the contravention of the requirements of the Appointments/Retirements proposed Act, October 2020 Page 2 (e) to make provision for the recovery of costs associated with compliance with the requirements of the proposed Act by a developer where there was more than 1 developer for the building work, or by the Secretary where the developer failed to comply, (f) to enact other minor and consequential provisions and provisions of a savings and transitional nature, (g) to make consequential amendments to other legislation. Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020 commenced 1 September 2020. The objects of this Regulation were as follows— (a) to prescribe offences under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 that may have been dealt with by way of penalty notice and the penalty amounts payable, (b) to enable local councils to enter into information sharing arrangements with the Secretary of the Department of Customer Service. Western City and Aerotropolis Authority Amendment (Operational Area) Regulation 2020 commenced 14 August 2020. The object of this Regulation was to expand the operational area, in relation to which the Western City and Aerotropolis Authority had functions, to include all of the Western City. The Western City comprised the local government areas of Blue Mountains, Camden, Campbelltown, Fairfield, Hawkesbury, Liverpool, Penrith and Wollondilly. • Land and Environment Court’s Jurisdiction: The Land and Environment Court Act 1979 was amended by the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 to permit appeals to be heard by the Land and Environment Court arising as a consequence of a breach of that Act. • Local Government: Environmental Planning and Assessment (Regions) Order 2020 commenced 11 September 2020. The object of this Order was to declare certain local government areas to be regions for the purposes of Div 3.1 of the Environmental Planning and Assessment Act 1979 which provided for the preparation of regional strategic plans. Local Government (General) Amendment (COVID-19) Regulation (No 3) 2020 commenced 18 September 2020. The objects of this Regulation were as follows— (a) to extend the period during which the COVID-19 pandemic special provisions of the Local Government Act 1993 (the Act) apply, (b) to postpone the repeal of the COVID-19 pandemic regulation-making power in the Act. • Biodiversity: Biodiversity Conservation Legislation Amendment Regulation 2020 commenced 9 October 2020. The object of this Regulation was to amend the Biodiversity Conservation Regulation 2017 as follows— (a) update certain definitions relating to the protection of marine mammals, (b) provide for different application fees for different biodiversity conservation licences, (c) update the time in which a biodiversity certification assessment report must be submitted in connection with an application for an extension of modification of biodiversity certification, (d) make other minor amendments. October 2020 Page 3 This Regulation also amends the Biodiversity Conservation (Savings and Transitional) Regulation 2017 to make further transitional provisions in relation to the application of the Biodiversity Conservation Act 2016 in respect of the variation and termination of existing conservation agreements under the National Parks and Wildlife Act 1974, trust agreements under the repealed Nature Conservation Trust Act 2001 and property agreements under the repealed Native Vegetation Conservation Act 1997. • Water: Water Management (General) Amendment (Lower Namoi and Border Rivers Floodplains) Regulation 2020 commenced 11 September 2020. The object of this Regulation was to declare certain land to be the Lower Namoi Valley Floodplain and the Border Rivers Valley Floodplain for the purposes of the Water Management Act 2000. Water NSW Regulation 2020 commenced 1 September 2020. The object of this Regulation was to remake, with minor amendments, the Water NSW Regulation 2013, which will be repealed on 1 September 2020 by s 10(2) of the Subordinate Legislation Act 1989. • Pollution: Waste Avoidance and Resource Recovery (COVID-19) Regulation 2020 commenced 25 September 2020. The object of this Regulation was to postpone the date on which special statutory provisions enacted in response to the COVID-19 pandemic are repealed. • Miscellaneous: The Electronic Transactions Act 2000 was amended by the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 to insert pt 2B which provides for the witnessing and attestation of documents by audio visual link. Evidence Regulation 2020 commenced 7 August 2020. The object of this Regulation was to repeal and remake, with minor amendments, the provisions of the Evidence Regulation 2015, which would otherwise be repealed on 1 September 2020 by s 10(2) of the Subordinate Legislation Act 1989. Fines Regulation 2020 commenced 7 August 2020. The object of this Regulation was to repeal and remake, with minor amendments, the Fines Regulation 2015, which would otherwise be repealed on 1 September 2020 by s 10(2) of the Subordinate Legislation Act 1989. Offshore Minerals Regulation 2020 commenced 21 August 2020. The object of this Regulation was to repeal and remake, without any significant amendments, the provisions of the Offshore Minerals Regulation 2013, which would otherwise be repealed on 1 September 2020 by s 10(2) of the Subordinate Legislation Act 1989. Protection of the Environment Operations (General) Amendment (Native Forest Bio-material) Regulation commenced 14 August 2020. The object of this Regulation was to provide a limited exception to the prohibition on burning native forest bio-material to generate electricity. The exception was only available in respect of premises to which an environment protection licence that authorised the carrying out of scheduled activities (within the meaning of the Protection of the Environment Operations Act 1997) applied and that the EPA had nominated for the purposes of the exception. The exception was also limited to native forest bio-material obtained from certain sources, including trees cleared in accordance with development
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