NOVEMBER 2020

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 2019

EDITOR SA WHITE, MA LLB

REPORTER J VENEZIANO

VOL 242 — PART 4 PAGES 309-412 The mode of citation of this part will be: 242 LGERA

TABLE OF CASES REPORTED

Part 4 — Pages 309-412

50 Emu Drive Pty Ltd; ACT Planning and Land Authority v (ACT Sup Ct) ...... 1 ACT Planning and Land Authority v 50 Emu Drive Pty Ltd (ACT Sup Ct) ...... 1 Ashtrail Pty Ltd v Council of the City of Gold Coast (Qld Sup Ct (Ct of App)) ...... 187 Brummell; Chief Executive, Office of Environment and Heritage v (NSW Land & Environment Ct) ...... 241 Burwood Council v Iglesia Ni Cristo (No 2) (NSW Land & Environment Ct) ...... 32 Environment and Heritage, Chief Executive, Office of v Brummell (NSW Land & Environment Ct) ...... 241 Environment Centre Northern Territory, The v The Northern Territory Environment Protection Authority and Another (NT Sup Ct) ...... 261 Environment, Minister for the; Wilderness Society (Tasmania) Inc v (Fed Ct of Aust) ...... 59 Gold Coast, Council of the City of; Ashtrail Pty Ltd v (Qld Sup Ct (Ct of App)) ...... 187 Council; Zhiva Living Dural Pty Ltd v (NSW Ct of App) ...... 280 Iglesia Ni Cristo (No 2); Burwood Council v (NSW Land & Environment Ct) ...... 32 Kalamunda, Shire of; M v (WA Sup Ct) ...... 165 M v Shire of Kalamunda (WA Sup Ct) ...... 165 Mayberry v Mornington Peninsula Shire Council (Vic Sup Ct) ...... 342 Metjac Holdings Pty Ltd v Minister for Sustainability, Environment and Conservation (SA Sup Ct) ...... 108 Mornington Peninsula Shire Council; Mayberry v (Vic Sup Ct) ...... 342

(Cases in bold reported in this part)

ISSN 1039-7213 TABLE OF CASES REPORTED

Moseley v Queanbeyan-Palerang Regional Council (NSW Ct of Cr App) ...... 137 New Acland Coal Pty Ltd; Oakey Coal Action Alliance Inc v (Qld Ct of App) ...... 309 ; City of Ryde Council v (NSW Land & Environment Ct) ...... 211 Council v Tolucy Pty Ltd (NSW Land & Environment Ct) ...... 15 Northern Territory Environment Protection Authority and Another, The; The Environment Centre Northern Territory v (NT Sup Ct) ...... 261 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (Qld Ct of App) ...... 309 Queanbeyan-Palerang Regional Council; Moseley v (NSW Ct of Cr App) ...... 137 Ryde Council, City of v New South Wales (NSW Land & Environment Ct) ...... 211 Ryde Council, City of; Syncept Chatham Pty Ltd v (NSW Land & Environment Ct) ...... 373 Stokes v (No 2) (NSW Land & Environment Ct) ...... 392 Sustainability, Environment and Conservation, Minister for; Metjac Holdings Pty Ltd v (SA Sup Ct) ...... 108 Syncept Chatham Pty Ltd v City of Ryde Council (NSW Land & Environment Ct) ...... 373 Tolucy Pty Ltd; v (NSW Land & Environment Ct) ...... 15 Waverley Council (No 2); Stokes v (NSW Land & Environment Ct) ...... 392 Wilderness Society (Tasmania) Inc v Minister for the Environment (Fed Ct of Aust) ...... 59 Zhiva Living Dural Pty Ltd v Hornsby Shire Council (NSW Ct of App) ...... 280

(Cases in bold reported in this part) INDEX

Part 4 — Pages 309-412

APPEAL

Procedural fairness — Appeal from administrative body — Finding on appeal against refusal of development application of “reliance” of proposed development upon existing piling on adjacent land — Conclusion that jurisdiction absent — Parties not given opportunity to make submissions as to whether consent of owner of adjoining land required and whether jurisdiction to grant consent to development application existed — Environmental Planning and Assessment Act 1979 (NSW), ss 4.12, 4.15, 4.16, 4.17, 77 — Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1 — Land and Environment Court Act 1979 (NSW), s 56A. Stokes v Waverley Council (No 2) (NSW Land & Environment Ct) ...... 392

DEVELOPMENT APPLICATION

Consent of owner of land — Requirement for consent of owner of adjoining land — Location of existing piles to be used for structural stability — Finding on appeal against refusal of development application due to “reliance” of proposed development upon existing piling on adjacent land — Environmental Planning and Assessment Act 1979 (NSW), ss 4.12, 4.15, 4.16, 4.17, 77 — Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1 — Land and Environment Court Act 1979 (NSW), s 56A. Stokes v Waverley Council (No 2) (NSW Land & Environment Ct) ...... 392

DEVELOPMENT ASSESSMENT

Land to which development relates — Requirement for consent of owner of adjoining land — Location of existing piles to be used for structural stability — Finding on appeal against refusal of development application due to “reliance” of proposed development upon existing piling on adjacent land — Environmental Planning and Assessment Act 1979 (NSW), ss 4.12, 4.15, 4.16, 4.17, 77 — Environmental Planning and Assessment Regulation 2000 (NSW) cll 49, 50, Sch 1 — Land and Environment Court Act 1979 (NSW), s 56A. Stokes v Waverley Council (No 2) (NSW Land & Environment Ct) ...... 392

Matters for consideration — Mining leases — Water management — Subterranean water — Applications for mining leases and amendment to environmental authority to expand mine — Jurisdiction of Land Court to consider effect of proposed mining operations upon groundwater in area near mine — Environmental Protection Act 1994 (Qld), ss 190, 191 — Mineral Resources Act 1989 (Qld), s 269 — Water Act 2000 (Qld), s 206. Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd and Others (Qld Ct of App) ...... 309 INDEX

HERITAGE Interim Heritage Order — Validity — Development application — Matters for consideration — Constructive consideration — Approval sought to demolish existing buildings — Interim Heritage Order placed on land by council — Conditions of Minister’s authority — Discretionary powers — Heritage Act 1977 (NSW), s 25. Syncept Chatham Pty Ltd v City of Ryde Council (NSW Land & Environment Ct) ...... 373

LAND Easement — Power of council to declare land to be public highway — Whether carriageway easement “road” — Whether “right of way” in definition of road limited to public rights of way — Whether declaration acquisition by compulsory process — Whether power under s 204(1) of Local Government Act 1989 (Vic) subject to Land Acquisition and Compensation Act 1986 (Vic) — Council’s decision not affected by jurisdictional error — Local Government Act 1989 (Vic), ss 3, 187, 204, 206, 207B, Sch 5. Mayberry v Mornington Peninsula Shire Council (Vic Sup Ct) ...... 342

PROCEDURAL FAIRNESS Bias — Bias in judicial proceedings — Applications for mining leases and amendment to environmental authority to expand mine referred to Land Court of Queensland — Land Court’s recommendations the subject of negative media reports on delay and concern that it would impact upon jobs — Media comments regarded as contempt by Land Court but matter not referred for contempt of court proceedings — Whether waiver of right to complain of bias at hearing — Whether claims of apprehended bias strike at validity of hearing and should be dealt with before other substantive issues decided — Whether fresh apprehension of bias raised by Member’s reasons for recommendations — Environmental Protection Act 1994 (Qld), ss 190, 191 — Mineral Resources Act 1989 (Qld), s 269 — Water Act 2000 (Qld), s 206. Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd and Others (Qld Ct of App) ...... 309

PUBLIC ROADS Evidence of user — Carriageway easement — Dedication and acceptance — Onus of proof — Accepted that track through easement a public highway — Whether it could be inferred that owner intended to dedicate entire easement as a public highway — Local Government Act 1989 (Vic), ss 3, 187, 204, 206, 207B, Sch 5. Mayberry v Mornington Peninsula Shire Council (Vic Sup Ct) ...... 342

STATUTES Inconsistency of laws — Easement — Power of council to declare land to be public highway — Whether carriageway easement “road” — Whether “right of way” in definition of road limited to public rights of way — Whether declaration acquisition by compulsory process — Local Government Act 1989 (Vic), ss 3, 187, 204, 206, 207B, Sch 5 — Land Acquisition and Compensation Act 1986 (Vic). Mayberry v Mornington Peninsula Shire Council (Vic Sup Ct) ...... 342 INDEX

WORDS AND PHRASES “Preliminary heritage assessment” — Heritage Act 1977 (NSW), s 25. Syncept Chatham Pty Ltd v City of Ryde Council (NSW Land & Environment Ct) ...... 373 “Relates” — Environmental Planning and Assessment Act 1979 (NSW), s 4.17. Stokes v Waverley Council (No 2) (NSW Land & Environment Ct) ...... 392 “Right of way” — Local Government Act 1989 (Vic), ss 3, 187, 204, 206, 207B, Sch 5. Mayberry v Mornington Peninsula Shire Council (Vic Sup Ct) ...... 342 “Road” — Local Government Act 1989 (Vic), ss 3, 187, 204, 206, 207B, Sch 5. Mayberry v Mornington Peninsula Shire Council (Vic Sup Ct) ...... 342