NSW Government Bulletin

This week, we wrapped up our annual NSW Government lawyers annual CLE seminar series.

Our legal teams from across key practice areas helped our government clients to understand and navigate some of the key risks and threats facing the public sector this year. The following topics were covered:

how to manage psychosocial hazards in the workplace
research tools in the digital era
ways to ensure legal advice is heard and understood
tips and tricks for handling subpoenas
ethics for government lawyers
key judicial review decisions in the Land and Environment Court
employee investigations in the health system
making sense of global supply chains
dealing with due diligence in property acquisitions, disposals and PPPs
mastering intellectual property and online brand risks.

If you missed our program or would like to revisit these sessions, watch our on-demand here or read our articles here.

In practice and courts

AAT Bulletin Issue No. 4/2023
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 (27 February 2022). Read more here.

Decisions reserved – NSW Court of Appeal
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved (03 March 2023). Read more here.

Publications – articles, papers and reports

Changes coming for Class 3 and 9c buildings 2023
From 3 July 2023, the Design and Building Practitioners Act 2020 and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 will be expanded to include new Class 3 and 9c buildings (24 February 2023). Read the notice here.

Reforms to fire safety regulation 2022
Changes made to the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 to improve “fire safety in new and existing buildings” will be introduced gradually from 13 February 2023 (09 February 2023). Read the reforms here.

Noise Guide for Local Government
An updated Noise Guide for Local Government is available to help NSW councils to manage noise from sources such as construction and industry (31 January 2023). Read the Guide here.

Government's acquisition of private property: Sydney Metro project
The Audit Office of NSW has made four recommendations have been made for agencies involved in the acquisition of private properties for the Sydney Metro project (09 February 2023). Read the report here.

NSW government agencies' use of consultants
The Audit Office of NSW has found that NSW government “agencies do not procure and manage consultants effectively” (02 March 2023). Read the report here.

Cases

YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55
ADMINISTRATIVE LAW – particular administrative tribunals – NSW Civil and Administrative Tribunal – adequacy of reasons for interlocutory decisions.
APPEALS – extension of time decision and set aside decision – discretionary decisions – leave to appeal from interlocutory decisions.
LEASE AND TENANCIES – social housing – termination of tenancy – illegal activity – set aside application
Administration Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Residential Tenancies Act 2010 (NSW); Civil and Administrative Tribunal Regulations 2013 (NSW).

Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094
DEVELOPMENT APPLICATION – mixed use development in B4 Mixed Use zone – residential apartment development – whether exhibits design excellence – whether community infrastructure is included – flood evacuation – whether variation to sun access development standard is justified.
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Land and Environment Court Act 1979; Penrith Local Environmental Plan 2010; Roads Act 1993; State Environmental Planning Policy (Planning Systems) 2021; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development; Sydney Local Environmental Plan 2012.

Sung v City of Canada Bay Council [2023] NSWLEC 1087
APPEAL – development application – boarding house – breach of height development standard – question of whether a clause 4.6 request is required – whether local environmental plan is inconsistent with the state environmental planning policy – whether proposed development complies with the permitted floor space ratio – whether design is compatible with the character of the local area – amenity of boarding rooms.
Canada Bay Local Environmental Plan 2013; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Standard Instrument (Local Environmental Plans) Amendment Order 2011; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; State Environmental Planning Policy (Housing) 2021; State Environmental Planning Policy (Resilience and Hazards) 2021.

JY Crown Pty Ltd v Inner West Council [2023] NSWLEC 1081
DEVELOPMENT APPLICATION – development for the purposes of shop top housing – Parramatta Road corridor – variation to floor space ratio sought – voluntary planning agreement proposed – compatibility of the development with the desired future character – precondition to the grant of consent not satisfied – appeal dismissed.
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Inner West Local Environmental Plan 2022; Leichhardt Local Environmental Plan 2013.

State Capital Property Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1076
DEVELOPMENT APPLICATION: change of use – residential apartment development – mixed use development – FSR standard is exceeded – heritage conservation area – street frontage height.
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Sydney Local Environmental Plan 2012.

123 259 932 Pty Ltd v Cessnock City Council [2023] NSWCA 21
CONTRACTS – remedies – damages – reliance damages – presumption referred to in McRae v Commonwealth Disposals Commission and The Commonwealth v Amann Aviation – whether primary judge erred in finding that the presumption did not arise – presumption arises where expenditure is incurred by a plaintiff in reliance on a contractual promise made by the defendant and “wasted” because of non-performance by the defendant – no precondition that the plaintiff first establish it is “impossible” to prove expectation damages – plaintiff proved conditions for presumption – Ground of Appeal upheld.
CONTRACTS – remedies – damages – reliance damages – presumption referred to in McRae v Commonwealth Disposals Commission and The Commonwealth v Amann Aviation – whether primary judge erred in finding presumption rebutted – presumption rebutted where defendant demonstrates plaintiff would not have recouped expenditure – contractual and non-contractual potential benefits of plaintiff to be considered in expenditure inquiry – plaintiff rejected inferior offer of defendant – innocent party to a contract entitled to insist on contractual rights rather than accept inferior proposal – rejection of offer could not form reasonable basis for inference defendant would not have recouped expenditure – presumption not rebutted – ground of appeal upheld.
CONTRACTS – remedies – damages – remoteness of damage – whether primary judge erred in finding recovery was precluded by the rule in Hadley v Baxendale – loss incurred by plaintiff reasonably can be supposed to have been in the contemplation of both parties when contract was made – damages fall within the second limb of Hadley v Baxendale – ground of appeal upheld.
Corporations Act 2001 (Cth); Environmental Planning and Assessment Act 1979 (NSW).

Kudrynski v Orange City Council [2023] NSWLEC 9
COMPULSORY ACQUISITION: flood prone vacant land acquired by the council for the public purpose of stormwater harvesting project – land constrained by easements and affected by traffic noise – highest and best use of the land is for rural-residential development – limited comparable sales evidence – adoption of hypothetical development approach – application of statutory disregard – claim that stormwater harvesting project either unfeasible or illegal irrelevant to proceedings – limited weight placed on valuation evidence of applicant because it was decades old and because no adjustments were made to comparable sales – no other valuation evidence provided by applicant – no town planning evidence relied upon by applicant – Court relied upon the town planning and valuation evidence provided by the respondent to calculate the compensation payable for the acquisition of the land.
Land Acquisition (Just Terms Compensation) Act 1992; Land and Environment Court Act 1979; Land and Environment Court Rules 2007; Orange Local Environmental Plan 2011; Uniform Civil Procedure Rules 2005.

Ausbao (286 Sussex Street) Pty Ltd v The Registrar General of New South Wales [2023] NSWCA 18
LAND LAW – Torrens title – compensation for loss of interest in land – Torrens assurance fund – circumstances in which compensation is not payable – where the loss or damage arises because of an error or miscalculation in the measurement of land – Real Property Act 1900 (NSW), s 129(2)(e) – where developer purchased land in the Sydney CBD for $55 million – where Deposited Plan referred to in the folios for four titles recorded total site area of the land as 1337.4m2 – where developer attributed considerable significance to the total site area in formulating the purchase price – developer subsequently discovered that true total site area of the land was 1255.9m2 – inaccurate statement of area in plan referred to in one of the folios caused by transposition errors by officers of the Registrar General in 1978 and 1995 – developer brought claim for compensation from the Torrens assurance fund – whether developer’s loss arose because of an error or miscalculation in the measurement of land – whether “measurement” refers to the fact of an erroneous statement of the dimensions and area of land or merely an error in the process of determining the dimensions or area – where s 129(2)(e) was introduced for a remedial purpose – where Torrens register disclaims accuracy in respect of dimensions and areas of land – extent to which the loss or damage is a consequence of any act or omission by the claimant – Real Property Act 1900 (NSW), s 129(2)(a) – whether the Appellant’s loss or damage was a consequence of its own act or omission – where the risk of an erroneous statement of area on Deposited Plan was real albeit rare – where potential adverse consequences of materialisation of that risk were severe for developer – whether s 129(2)(a) of the Real Property Act 1900 (NSW) establishes a regime for the apportionment of liability between claimant and Registrar General – s 129(2)(a) lacks reference to any process by which a court would undertake apportionment exercise – whether registration of Deposited Plan occurs in the execution or performance of Registrar General’s functions or duties under the Real Property Act 1900 (NSW) – whether registration of Deposited Plan occurs in the operation of the Real Property Act 1900 (NSW) – where Registrar General is required to make a record of a description of land in a folio of the Register – Real Property Act 1900 (NSW), s 32(1)(a).
WORDS AND PHRASES – “measurement” – Real Property Act 1900 (NSW), s 129(2)(e).
Conveyancing (General) Regulation 2018 (NSW); Conveyancing Act 1919 (NSW); Interpretation Act 1987 (NSW); Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Main Roads Act 1924 (NSW); Real Property Act 1900 (NSW); Real Property (Computer Register) Amendment Act 1979 (NSW); Real Property Amendment (Certificates of Title) Act 2021 (NSW); Real Property Amendment (Compensation) Act 2000 (NSW); Real Property and Conveyancing Legislation Amendment Act 2009 (NSW); Real Property Regulation 2019 (NSW); Real Property Act Regulation 1970 (NSW); Surveying and Spatial Information Act 2002 (NSW).

McDonald’s Australia Limited v Coffs Harbour City Council [2023] NSWLEC 1067
DEVELOPMENT APPLICATION – food and drinks premises (McDonald’s) – site suitability – amenity impacts upon the neighbourhood – traffic and pedestrian safety.
Coffs Harbour Local Environmental Plan 2013; Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; State Environmental Planning Policy (Coastal Management) 2018 (repealed); State Environmental Planning Policy (Industry and Employment) 2021; State Environmental Planning Policy (Koala Habitat Protection) 2019; State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy No 55 – Remediation of Land (repealed); State Environmental Planning Policy No 64 – Advertising Signage (repealed); Water Management Act 2000.

WZSydney Pty Ltd v Ku-ring-gai Municipal Council [2023] NSWLEC 1065
DEVELOPMENT APPLICATION: proposed residential flat development – interpretation of ‘site area’ for the purpose of determining applicable development standards – whether the proposed variation to the height and floor space development standard should be granted – appeal dismissed.
Environmental Planning and Assessment Act 1979; Ku-ring-gai Local Environmental Plan 2015.

Vok v NSW Land and Housing Corporation [2023] NSWCATCD 5
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – quiet enjoyment.
LEASES AND TENANCIES – NSW Civil and Administrative Tribunal – Jurisdiction and power.
Civil and Administrative Tribunal Act 2013; Residential Tenancies Act 2010.

Fuller Street Pty Ltd v Blacktown City Council [2023] NSWLEC 1023
DEVELOPMENT APPLICATIONS – two adjoining sites – a proposed boarding house on each site – do the proposed development exhibit design excellence – are the proposed developments compatible with the character of the locality – are the likely impacts of the proposed development on adjoining properties acceptable – is the amenity of the proposed boarding houses acceptable – appeals upheld.
Blacktown Local Environmental Plan 2015; Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Land and Environment Court Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Housing) 2021; State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy Resilience and Hazards 2021.

Legislation

Proclamations commencing Acts
Government Sector Finance Act 2018 No 55 – published LW 02 March 2023
Government Sector Finance Legislation (Repeal and Amendment) Act 2018 No 70 – published LW 02 March 2023
Medicines, Poisons and Therapeutic Goods Act 2022 No 73 – published LW 17 February 2023
Fisheries Management Amendment Act 2015 No 59 – published LW 20 January 2023
Public Interest Disclosures Act 2022 No 14 – published LW 20 January 2023

Commonwealth legislation

Telecommunications Act 1997 7/03/2023 – Act No. 47 of 1997 as amended
Corporations Act 2001 7/03/2023 – Act No. 50 of 2001 as amended
Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018 07/03/2023 - Act No. 145 of 2018 as amended
Future Fund Act 2006 03/03/2023 – Act No. 12 of 2006 as amended
Competition and Consumer Act 2010 02/03/2023 – Act No. 51 of 1974 as amended
Higher Education Support Act 2003 02/03/2023 – Act No. 149 of 2003 as amended
Telecommunications (Consumer Protection and Service Standards) Act 1999 01/03/2023 - Act No. 50 of 1999 as amended
Migration Act 1958 17/02/2023 – Act No. 62 of 1958 as amended
Federal Safety Commissioner Act 2022 06/02/2023 – Act No. 87 of 2016 as amended
Jurisdiction of Courts (Cross-vesting) Act 1987 06/02/2023 – Act No. 24 of 1987 as amended
Fair Work (Registered Organisations) Act 2009 06/02/2023 – Act No. 86 of 1988 as amended
Fair Work Act 2009 03/02/2023 – Act No. 28 of 2009 as amended
Taxation Administration Act 1953 27/01/2023 – Act No. 1 of 1953 as amended
Evidence Act 1905 25/01/2023 – Act No. 4 of 1905 as amended
A New Tax System (Family Assistance) (Administration) Act 1999 24/01/2023 – Act No. 81 of 1999 as amended
Income Tax Assessment Act 1997 18/01/2023 – Act No. 38 of 1997 as amended
Commonwealth Electoral Act 1918 17/01/2023 – Act No. 27 of 1918 as amended
Social Security Act 1991 16/01/2023 – Act No. 46 of 1991 as amended
Fringe Benefits Tax Assessment Act 1986 14/01/2023 – Act No. 39 of 1986 as amended
Defence Home Ownership Assistance Scheme Act 2008 14/01/2023 – Act No. 27 of 2008 as amended
International Tax Agreements Act 1953 14/01/2023 – Act No. 82 of 1953 as amended
Income Tax Assessment Act 1936 14/01/2023 – Act No. 27 of 1936 as amended
Crimes Act 1914 13/01/2023 – Act No. 12 of 1914 as amended
Veterans’ Entitlements Act 1986 12/01/2023 – Act No. 27 of 1986 as amended
Customs Tariff Act 1995 10/01/2023 – Act No. 147 of 1995 as amended
National Consumer Credit Protection Act 2009 10/01/2023 – Act No. 134 of 2009 as amended
Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 10/01/2023 – Act No. 107 of 2006 as amended
A New Tax System (Family Assistance) Act 1999 10/01/2023 – Act No. 80 of 1999 as amended
Social Security (Administration) Act 1999 09/01/2023 – Act No. 191 of 1999 as amended
Australian Animal Health Council (Live-stock Industries) Funding Act 1996 09/01/2023 – Act No. 45 of 1996 as amended
Customs Act 1901 09/01/2023 – Act No. 6 of 1901 as amended
Aged Care Act 1997 09/01/2023 – Act No. 112 of 1997 as amended
Foreign Acquisitions and Takeovers Act 1975 09/01/2023 – Act No. 92 of 1995 as amended
National Health Act 1953 07/01/2023 – Act No. 95 of 1953 as amended
Primary Industries Research and Development Act 1989 07/01/2023 – Act No. 17 of 1990 as amended
Horticulture Marketing and Research and Development Services Act 2000 07/01/2023 – Act No. 162 of 2000 as amended
Workplace Gender Equality Act 2012 07/01/2023 – Act No. 91 of 1986 as amended
Australian Capital Territory (Self-Government) Act 1988 07/01/2023 – Act No. 106 of 1988 as amended
Australian Information Commissioner Act 2010 06/01/2023 – Act No. 52 of 2010 as amended
Telecommunications (Interception and Access) Act 1979 06/01/2023 – Act No. 114 of 1979 as amended
Plant Health Australia (Plant Industries) Funding Act 2002 04/01/2023 – Act No. 80 of 2002 as amended
Sex Discrimination Act 1984 04/01/2023 – Act No. 4 of 1984 as amended
Northern territory (Self-Government) Act 1978 03/01/2023 – Act No. 58 of 1978 as amended
Broadcasting Services Act 1992 03/01/2023 – Act No. 110 of 1992 as amended
Biosecurity Act 2015 23/12/2022 – Act No. 61 of 2015 as amended
Australian Human Rights Commission Act 1986 21/12/2022 – Act No. 125 of 1986 as amended

Bills Introduced
Financial Accountability Regime Bill 2023 08 March 2023
Financial Accountability Regime (Consequential Amendments) Bill 2023 08 March 2023
Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2023 06 March 2023
Transparent and Quality Public Appointments Bill 2023 06 March 2023
Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023 16 February 2023
Migration (Visa Pre-application Process) Charge Bill 2023 16 February 2023
Treasury Laws Amendment (2023 Measures No. 1) Bill 2023 16 February 2023
Australia Council Amendment (Creative Australia) Bill 2023 15 February 2023
Royal Commissions Amendment (Enhancing Engagement) Bill 2023 15 February 2023
Offshore Petroleum and Greenhouse Gas Storage Amendment (Stop PEP11 and Protect Our Coast) Bill 2023 13 February 2023
Migration Amendment (Strengthening the Character Test) Bill 2023 13 February 2023
Commonwealth Electoral Amendment (Cleaning up Political Donations) Bill 2023 13 February 2023
Housing Australia Future Fund Bill 2023 09 February 2023
National Housing Supply and Affordability Council Bill 2023 09 February 2023
Treasury Laws Amendment (Housing Measures No. 1) Bill 2023 09 February 2023
Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023 08 February 2023
Fair Work Amendment (Prohibiting COVID-19 Vaccine Discrimination) Bill 2023 08 February 2023
Criminal Code Amendment (Inciting Illegal Disruptive Activities) Bill 2023 08 February 2023
Migration Amendment (Aggregate Sentences) Bill 2023 08 February 2023
Electoral Legislation Amendment (Lowering the Voting Age) Bill 2023 [No. 2] 08 February 2023
Migration Amendment (Evacuate to Safety) Bill 2023 07 February 2023
Northern Territory Safe Measures Bill 2023 07 February 2023
Electoral Legislation Amendment (Lowering the Voting Age) Bill 2023 06 February 2023

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:

Christine Jones

NSW Government Bulletin

In practice and courts

Publications – articles, papers and reports

Cases

Legislation

Share this

Key Contacts

Christine Jones

NSW Government Bulletin

In practice and courts

Publications – articles, papers and reports

Cases

Legislation

Share this

Related Posts

NSW Government Bulletin: Climate risks in government property transactions

NSW Government Bulletin

NSW Government Bulletin

Key Contacts

Christine Jones