The latest from specialist Planning and Environment Lawyer Ben Salon
Hi Everyone,
Here is your weekly update on NSW Planning and Environment hot topics, news, and court decisions of note. Feel free to send this on to friends, colleagues and contacts that will find these updates useful.
Hot Topic - New NSW Government
The hot topic this week is of course the new NSW Labor Government, and what reforms we can expect in the planning and environment space. The Hon. Penny Sharpe has been sworn in as the new Minister for, amongst other things, the Environment, Heritage, Climate Change and Energy. The Hon. Paul Scully has been sworn in as the new Minister for Planning and Public Spaces. Prior to coming into Government, Labor made election promises including:
all planning responsibilities other than Local Government will sit squarely with the Minister for Planning;
addressing housing supply by introducing a target of 30% affordable, social and universal housing on surplus public land; and
creating new housing targets on Metro lines.
Stay tuned for further updates on the policies and reforms of the new NSW Government.
P&E News - Building Approvals Data
The Australian Bureau of Statistics has released its February 2023 data on building approvals in Australia. This latest data is somewhat troubling given the housing crisis and shows that the new NSW Government has its work cut out for it on the planning system. NSW has seen the total number of dwellings approved in February 2023 down 10.9% from January 2023 to 3, 037, and private sector housing approvals for February 2023 down 3.7% from January 2023 to 1,915. To view the latest on dwelling approvals by Local Government Area, see this useful interactive map.
Case of the Week - Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147
A case I've been considering this week is the decision of the Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147. Jojeni is instructive on the characterisation of existing use rights that may apply to land to that permits development and uses already in existence, but now prohibited by planning controls. Relevantly Justice of Appeal Leeming held:
[75] ... The question is the appropriate characterisation of the purpose of the use ... That question is not answered through a meticulous examination of the details of the activities undertaken on the land ... It is necessary to have regard to the purpose served by those activities ... That use is characterised liberally, having regard to the principle that provisions designed to protect and preserve existing use rights should be as liberally construed as the statutory language in its context allows ...
[76] ... [T]he level of generality [is] “not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land”. In determining the appropriate genus, “attention should be focused on the [town-planning] purpose for which the determination is being made ... because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided”
Existing use rights can be very useful as they may be used to allow a landowner to continue to use their land in a certain way, even though that use may now be prevented by current planning laws and controls. However they can be difficult to establish, are often disputed by consent authorities, and characterising what is actually is permitted under those existing use rights can also be difficult. If you have are considering making use of existing use rights, then be sure to consider the Jojeni decision and reach out if you'd like advice on what existing use rights you may have and how they might be used.
Until next week!
Ben
Remember - the contents of this update do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.
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