12 October 2022
#Government, #Property, Planning & Development
Our specialist leasing teams regularly get asked the following two questions:
In this article, we answer both questions by breaking down the key components in the table below.
As set out above, there are a number of key differences which separate the two concepts (both from a legal and practical perspective) which should be front and foremost when considering which of the two to use. Ultimately, any one or more of, where the premises sit on the land, the nature of the land, the type of land owning entity, the nature of the proposed use and statutory interference may be the deciding factor(s).
Finally, it should be noted an agreement that is in substance a ‘lease’ cannot be converted into a ‘licence’ merely by calling it a licence. When called upon to do so (and they frequently are), the primary focus of the courts, will be the ‘substance’ rather than the ‘form’ of the agreement.
Author: Alexander McNutt
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NSW Court of Appeal – decisions reserved as at 7 October 2022. Read more here.
AAT Bulletin Issue No.20/2022
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals divisions (4 October 2022). Read more here.
$15 million for flood repairs on Crown land
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Recap: Right to Know Week NSW 2022
Right to Know Week NSW 2022 aims to raise awareness of a person’s right to access government held information in NSW and public sector agencies’ information access obligations under the Government Information (Public Access) Act 2009 (4 October 2022). Read more here.
Affordable housing boost for Sydney
A new Potts Point apartment block will provide more affordable housing for people in need in Sydney as part of the NSW Government’s $1.1 billion Social and Affordable Housing Fund (29 September 2022). Read more here.
Sims v Commonwealth of Australia  NSWCA 194
CONSTITUTIONAL LAW – constitutional implications – whether ss 81 and 83 of the Constitution provide an implied basis for the recovery of ultra vires payments by the Commonwealth – where proceedings brought by Commonwealth to recover ultra vires payments mistakenly made to former Navy officer after his separation from Navy – whether s 14(1)(a) of Limitation Act 1969 (NSW) is rendered inoperative or invalid in its application to the Commonwealth’s claim by reason of ss 81 and 83 of the Constitution.
RESTITUTION – bars and defences to restitutionary claims – limitation periods – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King  AC 318 – whether recovery of some payments statute – barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act.
RESTITUTION – public authorities – claims by public authorities – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King  AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute – barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi–contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – whether former Navy officer liable for payments made to third parties at his direction prior to separation from Navy.
RESTITUTION – nature of restitutionary liability – common counts – money had and received to the use of the plaintiff – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King  AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute – barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW).
LIMITATION OF ACTIONS – quasi – contract and restitution – construction of “quasi contract” for the purposes of s 14(1)(a) of the Limitation Act 1969 (NSW) – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King  AC 318 – whether recovery of some payments statute – barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act.
Judiciary Act 1903 (NSW), Limitation Act 1969 (NSW), Limitation Act 1623, Limitation Act 1939, Limitation of Actions Act 1958 (Vic), Commonwealth Constitution, Common Law Procedure Act 1852.
Wood v Commissioner for Fair Trading  NSWCATOD 114
HOME BUILDING ACT – whether evidence establishes a wide range of building construction work experience – whether experience relevant industry experience – individual contractor licence – general building work – whether evidence that work performed can be verified by witnesses who are not supervisors – supervision level of experience required for licence.
Administrative Decisions Review Act 1997, Civil and Administrative Tribunal Act 2013, Home Building Act 1989.
Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District  NSWIRComm 1082
Unfair dismissal – public health orders requiring vaccination against COVID–19 – determination by Health Secretary – no consultation required under the WHS Act or otherwise – respondent did consult and provided the applicant with access to information to make an informed choice – applicant chose not to be vaccinated – application dismissed.
Health Services Act 1997 (NSW), Industrial Relations Act 1996 (NSW), Public Health Act 2010 (NSW), Workplace Health and Safety Act 2011 (NSW).
Mohamed v Secretary, Department of Communities and Justice on behalf of Corrective Services NSW  NSWIRComm 1083
PUBLIC SECTOR DISCIPLINARY APPEAL – findings of misconduct – whether a decision in relation to an appealable decision – Industrial Relations Act 1996 s 97.
Industrial Relations Act 1996 (NSW).
Oslear v Commissioner for Fair Trading  NSWCATOD 110
ADMINISTRATIVE LAW – administrative review of decision to refuse an owner builder permit for the construction of a detached dual occupancy – whether special circumstances exist justifying the issue of a permit – meaning of special circumstances in s 32(1A) of the Home Building Act 1989 – no special circumstance found.
Administrative Decisions Review Act 1989 (NSW), Home Building Act 1989 (NSW), Home Building Amendment Act 2014 (NSW) (Repealed), Interpretation Act 1987 (NSW).
Aquilina v Transport for NSW  NSWSC 1310
WORKERS COMPENSATION – medical assessment – judicial review of decision by medical appeal panel – where appeal panel accepted error alleged to have been made in medical assessment, but proceeded to uphold ultimate outcome using alternative reasoning – function of appeal panel confined to considering grounds raised in appeal – held that appeal panel exceeded jurisdiction by embarking on alternative examination after accepting error below – Erroneous Medical Assessment Certificate quashed – held that as a matter of law, only one particular determination should have been made – appeal panel directed to issue certificate on terms to effect of that determination.
Supreme Court Act 1970 (NSW), Workers Compensation Act 1987 (NSW), Workplace Injury Management Act 1988 (NSW).
Lawson v Minister for Environment and Water  NSWLEC 122
JOINDER – claim for compensation for resumption in 1922 of land at Lake Victoria in far south‑western New South Wales – claimant an Aboriginal person – claim advanced on two bases – first claim based on extinguishment of native title rights – second claim based on adverse possession – claim made against South Australian and New South Wales governments – claim opposed by both governments – both bases of claim opposed – claim founded on rights said to be held by claimant's grandmother at time of resumption – 2015 native title determination recognises native title rights as existing on land surrounding resumed land – native title rights those of the Barkandji and Malyangapa peoples – determination lists apical ancestors from whom the native title rights are derived – native title rights held by Barkandji Native Title Group Aboriginal Corporation (Corporation) as trustee for descendants of listed apical ancestors – apical ancestors include three members of the Maraura, a subgrouping of the Barkandji and Malyangapa peoples – three Maraura apical ancestors nominated by claimant in pleadings – claimant is descendant of one of the three Maraura apical ancestors – question of whether Corporation should be joined as a party to the proceedings – joinder sought by Corporation – joinder opposed by claimant – tests for joinder considered – rights of descendants of all three Maraura apical ancestors affected by claimant’s native title claim – Corporation may have responsibilities with respect to those rights – potential for Corporation to have responsibility more than a mere possibility – joinder of Corporation appropriate – Corporation joined as Third Respondent.
COSTS – costs of joinder deferred to outcome of primary proceedings SUBPOENA – subpoena issued to the Corporation by the claimant – Corporation applies to have subpoena set aside in part – Corporation’s subpoena challenge deferred pending outcome of joinder proceedings.
FUTURE CONDUCT OF PROCEEDINGS – future conduct of proceedings adjourned to permit Corporation to consider what role it proposed to take in the primary proceedings and whether it maintained its opposition to the claimant’s subpoena – short adjournment permits retention of hearing dates set for February 2023
Civil Procedure Act 2005 (NSW), Native Title Act 1993 (Cwth), Native Title (Prescribed Bodies Corporate) Regulation 1999 (Cwth), Uniform Civil Procedure Rules 2005 (NSW).
New South Wales legislation
Regulations and other miscellaneous instruments
Environmental Planning and Assessment (Development Certification and Fire Safety) Amendment (Farm Stay Accommodation) Regulation 2022 – published LW 6 October 2022
Order regarding volunteers taking part in emergency operations – published LW 6 October 2022
Order regarding volunteers taking part in emergency operations – published LW 7 October 2022
Environmental planning instruments
Ballina Local Environmental Plan 2012 (Amendment No 52) – published LW 7 October 2022
Campbelltown Local Environmental Plan 2015 (Amendment No 32) – published LW 7 October 2022
Carrathool Local Environmental Plan 2012 (Amendment No 1) – published LW 7 October 2022
Dungog Local Environmental Plan 2014 (Amendment No 11) – published LW 7 October 2022
Fairfield Local Environmental Plan 2013 (Amendment No 42) – published LW 7 October 2022
Georges River Local Environmental Plan 2021 (Amendment No 4) – published LW 7 October 2022
Queanbeyan – Palerang Regional Local Environmental Plan 2022 – published LW 7 October 2022
Standard Instrument (Local Environmental Plans) Amendment (Agritourism) Order 2022 – published LW 6 October 2022
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Agritourism) 2022 – published LW 6 October 2022
Wagga Wagga Local Environmental Plan 2010 (Amendment No 46) – published LW 7 October 2022
Willoughby Local Environmental Plan 2012 (Amendment No 28) – published LW 7 October 2022]
Willoughby Local Environmental Plan 2012 (Amendment No 29) – published LW 7 October 2022
Bills assented to
Health Legislation (Miscellaneous) Amendment Act (No 2) 2022 No 41 – assented to 04 October 2022
Museums of History NSW Act 2022 No 42 – assented to 04 October 2022
Defence Forces Retirement Benefits Act 1948 10/10/2022 – Act No. 31 of 1948 as amended
Corporations Act 2001 08/10/2022 – Act No. 50 of 2001 as amended
Superannuation Act 2005 07/10/2022 – Act No. 80 of 2005 as amended
Parliamentary Contributory Superannuation Act 1948 07/10/2022 – Act No. 89 of 1948 as amended
Income Tax Assessment Act 1997 07/10/2022 – Act No. 38 of 1997 as amended
Superannuation Contributions Tax (Assessment and Collection) Act 1997 06/10/2022 – Act No. 70 of 1997 as amended
Research Involving Human Embryos Act 2002 06/10/2022 – Act No. 145 of 2002 as amended
Veterans' Entitlements Act 1986 06/10/2022 – Act No. 27 of 1986 as amended
Superannuation Act 1922 06/10/2022 – Act No. 33 of 1922 as amended
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 06/10/2022 – Act No. 185 of 1997 as amended
Office of National Intelligence Act 2018 06/10/2022 – No. 155 of 2018 as amended
Small Superannuation Accounts Act 1995 06/10/2022 – Act No. 52 of 1995 as amended
Australian Defence Force Cover Act 2015 05/10/2022 – Act No. 118 of 2015 as amended
Inspector – General of Intelligence and Security Act 1986 05/10/2022 – Act No. 101 of 1986 as amended
Australian Defence Force Superannuation Act 2015 05/10/2022 – Act No. 119 of 2015 as amended
Superannuation (Unclaimed Money and Lost Members) Act 1999 04/10/2022 – Act No. 127 of 1999 as amended
Defence Force Retirement and Death Benefits Act 1973 04/10/2022 – Act No. 81 of 1973 as amended
Superannuation Industry (Supervision) Act 1993 04/10/2022 – Act No. 78 of 1993 as amended
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 article is accurate at the date it is received or that it will continue to be accurate in the future.