With the State election in NSW over, incoming Ministers have no doubt been busying themselves with a high volume of incoming Ministerial Briefings on a range of issues across every portfolio. Undoubtedly, at the top of the list of a number of Ministerial portfolios – not just Housing and Planning – is the housing supply crisis in NSW. This issue features daily, often several times, on the pages of every major and minor newspaper throughout the State.
The crisis is reflected at a national level. The recent State of the Nation’s Housing Report (Report), produced by the National Housing Finance and Investment Corporation, identified a number of factors negatively impacting housing supply including community opposition to new development, long lead times for delivering housing, rising construction costs, and the availability of land serviced for residential use.
There is at least some level of control in relation to the first of these two, although both developers and authorities are unlikely to feel that they are totally ‘in control’ at various points of the development assessment process. For example, community opposition to new development is addressed formally through assessment processes, and in terms of development applications (but not rezonings at this point) through the courts under merit appeal processes.
On the regulatory side, while the Report singles out NSW for longer approval processes compared to Queensland and Victoria, there is at least a statutory process that can be worked with to try to achieve efficiencies. Indeed, different parts of the State are known for having different approaches (and therefore different levels of efficiency) in relation to development applications and planning proposals.
While it might not be ideal, the merit appeal process once again is an avenue for obtaining approval, although again, there is as yet no merit appeal jurisdiction in relation to planning proposals.
Some elements are not within anybody’s direct control. It is not possible, for example, to place rising construction costs at the feet of any particular agency, being as they are, a complex product of a range of local and international factors, ranging from the residual impact of COVID-related issues on supply chains and the availability of imported raw and manufactured products.
Then there is the question of land supply. On this point, there are arguably more levers for government to pull. At the Sydney 2050 Summit held on 15 May 2023, Premier Minns announced that he would be directing all Ministers (again, not just Housing and Planning) to audit their portfolios to identify land which could be rezoned for residential use, either due to the land being surplus or underutilised.
This will no doubt prove to be an interesting exercise, as government identifies its portfolio of properties with the specific purpose of identifying land for potential rezoning. There are potentially a number of avenues which could be taken at that point. Some land might be held by agencies with a mandate and statutory power to develop precincts, particularly around transport hubs. In contrast, other land might have existing zonings which make it ripe for cooperative development with the private sector.
No doubt some might be wondering whether accelerated pathways for rezoning might be applied to assist in making such land available for residential uses, whether this be through administrative means or legislative amendment, and indeed, whether the opportunities which existed in the past for high capital investment value residential development to have a Ministerial approval pathway will re-emerge.
With interest rate rises and rental costs keeping a constant focus on the housing supply crisis, it will be important to see the next steps in the government’s exploration of surplus land and whether the release of such land for housing will be accompanied by legal and regulatory changes or incentives to stimulate residential development.
Author: Thomas Kwok
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EPA Code of Ethics and Conduct
The Environmental Protection Authority have released a code of conduct that should guide the behaviour of its decision making (11 May 2023). Read more here.
Local Government NSW policy platform
The Local Government NSW has released its annual Policy Platform that consolidates the positions of various councils across NSW and resolutions of LGNSW annual conferences (May 2023). Read more here.
New South Wales Treasury Corporation: Weekly economic report
NSW TCorp has released its weekly economic report summarising key stock market movements (15 May 2023). Read more here.
AAT Bulletin Issue No.9/2023
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 (8 May 2023). Read more here.
Holland v State of New South Wales  NSWSC 495
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings.
Felons (Civil Proceedings) Act 1981 (NSW).
Macatangay v Secretary, Department of Education  NSWCATAP 132
APPEAL – procedure – vexatious litigant – purported appeal to the Appeal Panel of the New South Wales Civil and Administrative Tribunal dismissing appeal from a professional decision of the Administrative and Equal Opportunity Division – whether order of the Court of Appeal under the Vexatious Proceedings Act 2008 (NSW) prohibiting appellant instituting proceedings.
APPEALS – question of law – administrative review – denial of procedural fairness – whether the decision was an administratively reviewable decision – whether the Tribunal had jurisdiction to determine an application – conduct under the Privacy and Personal Information Protection Act 1988 (NSW).
CIVIL PROCEDURE – vexatious litigant – institution of proceedings without leave – proceedings stayed from institution and taken to be dismissed after 28 days if not ordered to be dismissed earlier by operation of section 13 of the Vexatious Proceedings Act 2008 (NSW).
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Privacy and Personal Information Protection Act 1988 (NSW); Teaching Service Act 1980 (NSW) and Vexatious Proceedings Act 2008 (NSW).
Secretary, Department of Education v Derikuca  NSWCA 94
ADMINISTRATIVE LAW – remedies – certiorari – exercise of statutory power without consequences.
CONTRACTS – remedies – declaration – court slow to make declaration about contract involving persons not before court.
JUDGMENTS AND ORDERS – directions for provision of further submissions – issue not raised by parties – broad power under s 63 of Supreme Court Act 1970 (NSW) to resolve all issues in a controversy – difference between resolving controversy before court and fomenting further disputes.
Civil Liability Act 2002 (NSW); Civil Procedure Act 2005 (NSW); Education (School Administrative and Support Staff) Act 1987 (NSW); Interpretation Act 1987 (NSW); Property NSW ACT 2006 (NSW); Supreme Court Act 1970 (NSW); Teaching Service Act 1980 (NSW) and Uniform Civil Procedure Rules 2005 (NSW).
Vogel v Secretary, Department of Education  NSWCATAD 105
ADMINISTRATIVE LAW – administrative review – government information – reasonable searches – no obligation to provide access by creating a new record.
Administrative Decisions Review Act 1997 (NSW); Government Information (Public Access) Act 2009 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protect Act 1998 (NSW) and State Records Act 1998 (NSW).
Wollondilly Shire Council v Kennedy  NSWLEC 53
ADMINISTRATIVE LAW – review by Court of validity of complying development certificate pursuant to s 4.31 of Environmental Planning and Assessment Act 1979 (NSW) – extraneous communications cannot be used to construe complying development certificate – as complying development certificate does not identify purpose of use of shed permissibility under local environmental plan unknown – car park use prohibited – shed not ancillary to dwelling house – declaration of invalidity made.
JUDICIAL REVIEW – certifier’s decision that shed complying development unreasonable – complying development certificate lacks finality and is uncertain as architectural and engineering plans conflict on key matter – complying development certificate invalid because not issued with mandatory conditions required by State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW).
Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Act Act 2017 (NSW): Environmental Planning and Assessment Regulation 2000 (NSW); Land and Environment Court Act 1979 (NSW); National Construction Code (Cth); State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW); Wollondilly Local Environmental Plan 2011 (NSW) and Interpretation Act 1987 (NSW).
Piety Developments Pty Ltd v Cumberland City Council  NSWSC 580
LOCAL GOVERNMENT – council lands – land acquired in 1965 by resumption under the Local Government Act 1919 for use as a carpark – whether “subject to a trust for a public purpose”.
Land Acquisition (Just Terms Compensation) Act 1991; Local Government Act 1919 and Local Government Act 1993.
Regulations and other miscellaneous instruments
Administrative Arrangements (Administrative Changes–Miscellaneous) Order (No 3) 2023 – published LW 3 May 2023.
Environmental planning instruments
Bathurst Regional Local Environmental Plan 2014 (Amendment No 22) – published LW 12 May 2023.
Cumberland Local Environmental Plan 2021 (Map Amendment No 5) – published LW 12 May 2023.
Mid-Western Regional Local Environmental Plan 2012 (Map Amendment No 9) – published LW 12 May 2023.
Port Stephens Local Environmental Plan 2013 (Map Amendment No 5) – published LW 12 May 2023.
Ryde Local Environmental Plan 2014 (Map Amendment No 3) – published LW 12 May 2023.
Warrumbungle Local Environmental Plan 2013 (Amendment No 3) – published LW 12 May 2023.
Wingecarribee Local Environmental Plan 2010 (Amendment No 67) – published LW 12 May 2023.
Shoalhaven Local Environmental Plan 2014 (Map Amendment No 10) – published LW 5 May 2023.
Coonamble Local Environmental Plan Amendment (Transport and Infrastructure) (Map Amendment No 1) – published LW 5 May 2023.
Tamworth Regional Local Environmental Plan 2010 (Amendment No 25) – published LW 5 May 2023.
Queanbeyan-Palerang Regional Local Environmental Plan 2022 (Amendment No 3) – published LW 5 May 2023.
Inner West Local Environmental Plan 2022 (Amendment No 2) – published LW 5 May 2023.
Dubbo Regional Local Environmental Plan 2022 (Map Amendment No 5) – published LW 5 May 2023.
Inner West Local Environmental Plan 2022 (Amendment No 3) – published LW 5 May 2023.
Bills introduced by government
Electoral Funding Amendment (Registered Clubs) Bill 2023 11 May 2023.
Government Sector Finance Amendment (Grants) Bill 2023 11 May 2023.
Revenue Legislation Amendment Bill 2023 11 May 2023.
Constitution Amendment (Sydney Water and Hunter Water) Bill 2023 10 May 2023.
Residential Tenancies Amendment (Rental Fairness) Bill 2023 10 May 2023.
Bills introduced by non-government
Forestry Amendment (Koala Habitats) Bill 2023 11 May 2023.
Workplace Gender Equality Act 2012 08/05/2023 – Act No. 91 of 1986 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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.