In a class action relating to the development of the Sydney Light Rail (SLR) network, the NSW Supreme Court found there had been “significant and unreasonable” interference with local small businesses, resulting in economic loss.
While the Court acknowledges the development will invariably result in some impact on business within the area, it found that the impact had become significant and unreasonable due to foreseeable, and therefore avoidable, delays in the completion of work.
Although the successful plaintiffs were particularly susceptible to the effects of the construction activities, with expectations that there could be up to 3,500 further class members, the Court warned that the proceedings would not make for a “particularly apt vehicle” for the class action given the nuances of the facts.
Between December 2014 and March 2020, proceedings commenced for persons said to have been affected by the development and construction of the SLR between Circular Quay, Randwick and Kingsford in Sydney.
The claim was made against Transport for NSW (TfNSW), which conducted the planning and procurement process between 2011 and 2014, with the project deed being signed in December 2014.
The matter was led by four plaintiffs, consisting of a retail leather goods business (Hunt Leather), its CEO, a trustee of a unit trust that operated a restaurant business (Ancio), and its sole director.
Hunt Leather and Ancio pursued causes of action in both private (interference with the use of someone’s land which they own or reside in) and public nuisance. The CEO and director claimed in public nuisance (interference with the common rights of the general public).
It was alleged that as a result of TfNSW’s actions in relation to the construction of the SLR, Hunt Leather and Ancio were subject to substantial and unreasonable interferences with the rights, enjoyment and occupation of their properties.
It was argued that private nuisance had occurred as a result of both the nature of the alleged activities and the prolonged length of time that the activities were conducted.
The alleged activities involved the use of heavy construction machinery resulting in vibrations, noise and dust, the presence of hoardings and the general restriction of pedestrian and vehicular movement in the vicinity of their premises (construction work).
It was argued that although the construction work was not undertaken by TfNSW, as the authority that planned and developed the work, it was responsible for the nuisance that arose from it. Moreover, it was alleged that the nuisance arose as a result of failures pre-construction, in the planning, design and contracting phase of the work. These failures were said to prolong the work, resulting in extended interferences with the plaintiff’s businesses. The core arguments were that there was a failure to:
The Court found that the interference was not inevitable due to the nature of the work, finding that prior to entering into the project deed:
The claim proceeded on a similar basis to the private nuisance claim. The substantial and unreasonable disruption or inconvenience to the public in the exercise of their public rights was alleged to comprise the damage to and obstruction of roadways and footpaths, road closures, and the presence of hoardings.
However, the claims of public nuisance were found to be barred by section 141 of the Roads Act 1993 (NSW), which provides that where consent is provided under Division 3 of the Roads Act, carrying out an action in accordance with that consent is not considered a public nuisance.
Expert evidence showed significant downturn in business performance during the period of construction work, leading the Court to conclude that the loss must have been suffered by the plaintiffs as a result of the proven nuisance. The Court has not yet determined quantum.
It remains to be seen how the decision will affect other class members, given the Court’s warning that the action was not a particularly apt vehicle.
In terms of wider implications, the success of the private nuisance claim will create significant focus for infrastructure principals as they plan and establish projects, engage with stakeholders and allocate risk. The actions in the project planning phase for construction activity has rarely seen such attention and inquiry and we can expect an even greater emphasis in a project risk control matrix.
Authors: Christine Jones and Daniel Fane
NSW and Australian governments hold roundtable on future of rail manufacturing
The NSW and Australian Governments are today holding a joint roundtable on the future of rail manufacturing, bringing together more than 100 of the most important and influential representatives of Australia’s rail manufacturing industry (24 July 2023). Read more here.
NSW Government commissions review of anti-discrimination law
The Minns Labor Government is fulfilling another election commitment, referring the Anti‑Discrimination Act 1977 to the NSW Law Reform Commission for review. The Law Reform Commission has been asked to consider whether the Act could be modernised and simplified to better promote the equal enjoyment of rights and reflect contemporary community standards (20 July 2023). Read more here.
AAT Bulletin Issue No.13/2023
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 Cases (3 July 2023). Read more here.
Commissioner of Police v Ritson (“DVT”) (No 2)  NSWSC 854
ADMINISTRATIVE LAW – Judicial review – appeal from NCAT Appeal Panel – requirement of leave – meaning of “on a question of law” – procedural fairness – whether Commissioner of Police denied procedural fairness by Appeal Panel – where plaintiff sought to narrow the scope of Tribunal’s jurisdiction – where it was not open to plaintiff to assume argument would be accepted by the Tribunal – nature of relationship between parties considered – no denial of procedural fairness – whether Tribunal had an obligation to supervise plaintiff’s consideration of the request for information – not for the Tribunal to positively satisfy itself that plaintiff had considered legislation – where ample time had elapsed – plaintiff had obligation to be familiar with obligations under legislation – plaintiff experienced in litigation – adequate reasons in refusing to allow fresh evidence on appeal – whether the failure to admit evidence on appeal so unreasonable or plainly unjust – content of reasons – reasons given were adequate – appeal dismissed.
STATUTORY INTERPRETATION – Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and Government Information (Public Access) Act 2009 (NSW) (GIPA Act) – whether 60(1)(a) of the GIPA Act is picked up by s 20(5) of the PPIP Act – whether s 60(1)(a) of the GIPA Act imposes a “condition or a limitation” – not picked up by the PPIP Act.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Court Suppression and Non-Publication Orders Act 2010 (NSW); Government Information (Public Access) Act 2009 (NSW); Police Act 1900 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).
Irfan v Western Sydney Local Health District  NSWSC 845
CIVIL PROCEDURE – joinder of new party – complex negligence claim regarding treatment of stroke patient – where proposed new defendant ambulance service who responded to plaintiff’s deterioration – where hearing already set down, but over the plaintiffs’ vigorous objection – where objection to a hearing date in belief that evidentiary picture not yet fully clear – where proposal to join second defendant arises from that belief’s vindication.
CIVIL PROCEDURE – service of new specialist reports – Uniform Civil Procedure Rules r 31.28 – “exceptional circumstances” – substantive question really whether new expert needed to opine on hospital protocol.|
CIVIL PROCEDURE – commentary on nature and purpose of Uniform Civil Procedure Rules.
Civil Procedure Act 2005 (NSW); Uniform Civil Procedure Rules 2005 (NSW).
Inglis v Buckley  NSWLEC 77
JUDICIAL REVIEW – challenge to grant of development consent for subdivision in rural area which created undersized lot with a dwelling entitlement transferred as part of boundary adjustment – council failed to form requisite state of satisfaction that potential for land use conflict will not be increased as a result of the subdivision – whether council resolution to approve subdivision and delegate imposition of standard conditions to CEO offended rule against indivisibility of function.
Conveyancing Act 1919 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Local Government Act 1993 (NSW); Snowy Valleys Council Development Control Plan 2019; Tumut Local Environmental Plan 2012 (NSW).
Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education  NSWCATAD 191
ADMINISTRATIVE LAW – Children (Education and Care Services) – cancellation of provider approval on grounds the approved provider has breached a condition of the provider approval – (Children (Education and Care Services) National Law 2010 No 104a of (NSW) (National Law) s 31(e)) – multiple alleged breaches identified by officers of the Department of Education authorised under s 195 of the National Law while conducting compliance and monitoring visits to the principal office of the approved provider’s family and day care service and educators registered with the approved provider’s service – whether the alleged breaches are established – if established, whether the alleged breaches constituted an alleged systematic failure to comply with a condition of the provider approval.
Administrative Decisions Review Act 1997 (NSW); Children (Education and Care Services) National Law 2010 (NSW); Children (Education and Care Services National Law Application) Act 2010; Civil and Administrative Tribunal Act 2013 (NSW); Education and Care Services National Regulations 2011(NSW); Evidence Act 1995 (NSW).
Fasitsas v Commissioner of Police, NSW Police Force  NSWCATAD 190
LICENSING – firearms – fit and proper person – domestic violence – public interest – participation requirements – failure to advise of change of safe storage location.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Firearms Act 1996; Firearms Regulation 2017.
Darmali v Commissioner of Police, New South Wales Police Force  NSWCATAD 189
LICENSING – firearms licensing – licence refusal – whether fit and proper person – public interest – AVOs.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW).
Hunt Leather Pty Ltd v Transport for NSW  NSWSC 840
TORTS – Nuisance – representative proceedings brought against a State entity – class action – where plaintiffs claim that their properties were affected by the construction of the Sydney Light Rail for extensive periods.
TORTS – Nuisance – private nuisance – elements – relevance of “common and ordinary” use of land – whether interference with plaintiffs’ property was substantial and unreasonable – whether interference was foreseeable – whether it is necessary to establish that the defendant failed to take care – whether s 43A of the Civil Liability Act 2002 (NSW) applies – whether defendant can rely on a defence of statutory authority – whether the defendant is liable for the nuisance – period of the nuisance – damages – loss of profit.
TORTS – Public nuisance – elements – private action for public nuisance – where plaintiffs claim mental anguish and economic loss – whether plaintiffs suffered substantial damage over and above that suffered in common with other members of the public affected by the nuisance – s 141 of the Roads Act 1993 (NSW).
CIVIL PROCEDURE – Representative proceedings – Group members – consideration of common questions agreed upon by the parties – procedure for identifying group members and assessing their loss.
Civil Liability Act 2002 (NSW); Civil Liability Act 2002 (WA); Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW); Civil Procedure Act 2005 (NSW); Crown Proceedings Act 1988 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Interpretation Act 1987 (NSW); Roads Act 1993 (NSW); Statute Law (Miscellaneous Provisions) Act 2020 (NSW); Transport Administration Act 1988 (NSW); Transport Administration (General) Amendment (Light Rail) Regulation 2015 (NSW).
746 Greendale Road Greendale Pty Ltd v Liverpool City Council  NSWLEC 1372
DEVELOPMENT APPLICATION – proposed landscape material supplies business – determination of development application – appeal against development control order – whether impacts on biodiversity have been assessed – potential impacts on biodiversity values not assessed – potential serious and irreversible impacts on Cumberland Plain Woodland and Cumberland Plain land snail not assessed – biodiversity development assessment report cannot be relied upon to determine development application – date for compliance with the terms of a development control order modified.
Biodiversity Conservation Act 2016; Biodiversity Conservation Regulation 2017; Environmental Planning and Assessment Act 1979; Liverpool Local Environmental Plan 2012; State Environmental Planning Policy (Biodiversity and Conservation) 2021; State Environmental Planning Policy (Resilience and Hazards) 2021.
Royal v Canterbury Bankstown Council  NSWCATAD 184
HUMAN RIGHTS – Discrimination – equal opportunity – leave required for complaint to proceed – principles applying to grant of leave.
Anti-Discrimination Act 1977.
Conway v Commissioner of Police, NSW Police Force  NSWCATAD 183
ADMINISTRATIVE LAW – licensing – firearms – revocation of licence – whether the Applicant may not personally exercise continuous and responsible control over firearms – public interest.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Firearms Act 1996.
Zhang v Chief Commissioner of State Revenue  NSWCATAD 181
TAXES AND DUTIES – duty on an agreement for the sale or transfer of dutiable property – cancelled agreement – application for refund under s 50(2) of the Duties Act made out of time – whether s 50(1) of the Duties Act operates to relieve a taxpayer of liability to duty where an Assessment was correct at the time it was made.
Administrative Decisions Review Act 1997 (NSW); Duties Act 1997 (NSW); Taxation Administration Act 1996 (NSW).
State of NSW v DAA (Preliminary)  NSWSC 832
HIGH RISK OFFENDERS – preliminary supervision – interim supervision orders – index offence committed as a minor – murder of another minor – no other offending – consideration of statutory test and nature of preliminary application – defendant’s recalcitrance regarding his child protection obligations – offender potentially has not accepted responsibility for the index offence – consideration of appropriate ISO conditions.
Children (Criminal Proceedings) Act 1987; Child Protection (Offenders Registration) Act 2000 (NSW); Crimes (High Risk Offenders) Act 2006 (NSW).
State of New South Wales v Colebrook  NSWSC 792
HIGH RISK OFFENDERS – extended supervision orders – application for revocation – sexual offending occurred 27 years ago – defendant released on parole eight years ago – ESO imposed seven years ago – where repeated ESO breaches result in incarceration – positive drug tests – no further sexual offending – application to revoke order brought by the State – defendant supports application – evidence of significant changes in behaviour and attitude of defendant – length of time since index offences – Court independently satisfied of material change in circumstances – where defendant is currently on a Community Correction Order for 18 months – Court not satisfied to high degree of probability that defendant poses an unacceptable risk – order revoked.
Crimes (High Risk Offenders) Act 2006 (NSW).
The Next Generation (NSW) Pty Ltd v State of New South Wales  NSWCA 159
ENVIRONMENT AND PLANNING – appeal from Land and Environment Court – appellant lodged development application for construction and operation of an energy from waste facility – application refused – appellant commenced Class 1 proceedings – respondents contended application could not be granted by reason of Pt 4 of Ch 9 of the Protection of the Environment Operations (General) Regulation 2022 (NSW) (the “Thermal Energy from Waste Regulation”) – appellant commenced separate Class 4 proceedings seeking declaration that Thermal Energy from Waste Regulation is beyond the regulation-making power in s 323 of Protection of the Environment Operations Act 1997 (NSW) (“POEO Act”) – whether reg 143, which prohibits “thermal treatment of waste” except at certain locations, is a regulation “with respect to” any matter permitted to be prescribed – reg 143 is a regulation “with respect to” the prohibition of “processing… of… waste” as referred to in cl 5(6) of Sch 2 to the POEO Act – whether reg 143 is inconsistent with POEO Act including licensing scheme in Ch 3 – no inconsistency – licence granted under Ch 3 does not grant “authority” beyond avoiding prohibitions under Ch 3 – not the scheme of the POEO Act to only regulate Sch 1 activities by licence conditions – whether reg 145 which, inter alia, prohibits grants of licences under POEO Act which purport to authorise work prohibited by reg 143 invalid so far as it applies to “State significant development” because of inconsistency with provisions of the Environment Planning and Assessment Act 1979 (NSW) (“EPA Act”) – whether s 32 of Interpretation Act 1987 (NSW) permits “general words or expressions” in reg 145 to be read down so not inconsistent with provisions of other legislation – words read down – no inconsistency with EPA Act – appeal dismissed.
RELIEF – declarations – where Div 28 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) came into force after primary judgment – whether Div 28 removed potential for inconsistency between reg 145 and provisions of EPA Act – declaration as to operation of reg 145 not appropriate in circumstances where construction and applicability of Div 28 was not in issue before the primary judge but is reasonably expected to be in issue in Class 1 proceedings on foot between appellant and other parties – no declaratory relief granted.
Acts Interpretation Act 1901 (Cth); Copyright Act 1968 (Cth); Environment Operations (General) Regulation 2021 (NSW); Environment Planning and Assessment Act 1919 (NSW); Environment Planning and Assessment Act 1979 (NSW); Excise Act 1901 (Cth); Family Law Act 1975 (Cth); Interpretation Act 1987 (NSW); Judiciary Act 1903 (Cth); Local Authorities Acts 1902 (Qld); Main Roads Act 1920 (Qld); Ozone Protection Act 1989 (NSW); Protection of the Environment Operations (General) Amendment (Thermal Energy from Waste) Regulation 2022 (NSW); Protection of the Environment Operations (General) Regulation 2022 (NSW); Protection of the Environment Operations Act 1997 (NSW); State Environmental Planning Policy (Transport and Infrastructure) Amendment (Thermal Energy from Waste) 2022 (NSW); State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW).
Paulson v State of New South Wales  NSWDC 251
CONTRACTS – breach of employment contract – implied terms – terms implied in fact – terms implied in law – necessity – date of breach statue barred.
Industrial Relations Act 1996; Government Sector Employees Act 2013; Uniform Civil Procedure Rules.
Regulations and other miscellaneous instruments
Education and Care Services National Further Amendment Regulations 2023 – published LW 21 July 2023
Inclosed Lands Protection Regulation 2023 – published LW 21 July 2023
Fisheries Management Amendment (Threatened Species Conservation) Order 2023 – published LW 19 July 2023
Public Holidays Amendment (City of Coffs Harbour) Order 2023 – published LW 14 July 2023
Treasurer’s Direction TD23-11 – Annual reporting requirements – published LW 14 July 2023
Liquor Amendment (Special Events Extended Trading) Regulation (No 2) 2023 – published LW 12 July 2023
Environmental planning instruments
Bega Valley Local Environmental Plan 2013 (Amendment No 41) – published LW 21 July 2023
Central Coast Local Environmental Plan 2022 (Amendment No 3) – published LW 21 July 2023
Central Coast Local Environmental Plan 2022 (Map Amendment No 4) – published LW 21 July 2023
Hawkesbury Local Environmental Plan 2012 (Amendment No 32) – published LW 21 July 2023
Orange Local Environmental Plan 2011 (Map Amendment No 7) – published LW 21 July 2023
Penrith Local Environmental Plan 2010 (Map Amendment No 2) – published LW 21 July 2023
Queanbeyan-Palerang Regional Local Environmental Plan 2022 (Map Amendment No 3) – published LW 21 July 2023
Wentworth Local Environmental Plan 2011 (Amendment No 21) – published LW 21 July 2023
Byron Local Environmental Plan 2014 (Amendment No 38) – published LW 14 July 2023
North Sydney Local Environmental Plan 2013 (Map Amendment No 2) – published LW 14 July 2023
Sydney Local Environmental Plan 2012 (Amendment No 92) – published LW 14 July 2023
Woollahra Local Environmental Plan 2014 (Amendment No 33) – published LW 14 July 2023
Bills assented to
Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 No 10 – Assented to 13 July 2023
Crimes Legislation Amendment (Assaults on Retail Workers) Act 2023 No 11 – Assented to 13 July 2023
Criminal Legislation Amendment (Knife Crimes) Act 2023 No 12 – Assented to 13 July 2023
Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2023 No 13 – Assented to 13 July 2023
Northern Australia Infrastructure Facility Act 2016 24/07/2023 – Act No. 41 of 2016 as amended
National Consumer Credit Protection Act 2009 24/07/2023 – Act No. 134 of 2009 as amended
Customs Act 1901 24/07/2023 – Act No. 6 of 1901 as amended
Private Health Insurance (Transitional Provisions and Consequential Amendments) Act 2007 22/07/2023 – Act No. 32 of 2007 as amended
Social Security Act 1991 21/07/2023 – Act No. 46 of 1991 as amended
Crimes Act 1914 21/07/2023 – Act No. 12 of 1914 as amended
Corporations Act 2001 20/07/2023 – Act No. 50 of 2001 as amended
Excise Act 1901 20/07/2023 – Act No. 9 of 1901 as amended
Income Tax Assessment Act 1997 20/07/2023 – Act No. 38 of 1997 as amended
Ombudsman Act 1976 19/07/2023 – Act No. 181 of 1976 as amended
Taxation Administration Act 1953 17/07/2023 – Act No. 1 of 1953 as amended
Veterans' Entitlements Act 1986 17/07/2023 – Act No. 27 of 1986 as amended
National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 17/07/2023 – Act No. 89 of 2022 as amended
Banking Act 1959 15/07/2023 – Act No. 6 of 1959 as amended
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 15/07/2023 – Act No. 156 of 1988 as amended
Proceeds of Crime Act 2002 15/07/2023 – Act No. 85 of 2002 as amended
Trans-Tasman Mutual Recognition Act 1997 15/07/2023 – Act No. 190 of 1997 as amended
Office of National Intelligence Act 2018 15/07/2023 – Act No. 155 of 2018 as amended
Inspector-General of Intelligence and Security Act 1986 15/07/2023 – Act No. 101 of 1986 as amended
Private Health Insurance (Medical Devices and Human Tissue Products Levy) Act 2007 15/07/2023 – Act No. 33 of 2007 as amended
Witness Protection Act 1994 15/07/2023 – Act No. 124 of 1994 as amended
Australian Security Intelligence Organisation Act 1979 15/07/2023 – Act No. 113 of 1979 as amended
Income Tax (Transitional Provisions) Act 1997 14/07/2023 – Act No. 40 of 1997 as amended
Australia Council Act 2013 14/07/2023 – Act No. 71 of 2013 as amended
Radiocommunications Act 1992 14/07/2023 – Act No. 174 of 1992 as amended
A New Tax System (Family Assistance) Act 1999 13/07/2023 – Act No. 80 of 1999 as amended
A New Tax System (Family Assistance) (Administration) Act 1999 13/07/2023 – Act No. 81 of 1999 as amended
Disaster Ready Fund Act 2019 13/07/2023 – Act No. 90 of 2019 as amended
National Emergency Declaration Act 2020 13/07/2023 – Act No. 128 of 2020 as amended
Australian Federal Police Act 1979 13/07/2023 – Act No. 58 of 1979 as amended
Superannuation Industry (Supervision) Act 1993 13/07/2023 – Act No. 78 of 1993 as amended
National Housing Finance and Investment Corporation Act 2018 13/07/2023 – Act No. 65 of 2018 as amended
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 12/07/2023 – Act No. 169 of 2006 as amended
A New Tax System (Goods and Services Tax) Act 1999 12/07/2023 – Act No. 55 of 1999 as amended
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 12/07/2023 – Act No. 156 of 1988 as amended
Royal Commissions Act 1902 12/07/2023 – Act No. 12 of 1902 as amended
Commonwealth Banks Act 1959 12/07/2023 – Act No. 5 of 1959 as amended
Financial Transaction Reports Act 1988 12/07/2023 – Act No. 64 of 1988 as amended
Social Security Act 1991 12/07/2023 – Act No. 46 of 1991 as amended
Child Support (Assessment) Act 1989 11/07/2023 – Act No. 124 of 1989 as amended
Child Support (Registration and Collection) Act 1988 11/07/2023 – Act No. 3 of 1988 as amended
Private Health Insurance (National Joint Replacement Register Levy) Act 2009 11/07/2023 – Act No. 51 of 2009 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.