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. You can also sign up on the homepage to get these updates straight into your inbox.
Hot Topic - NSW Land Tax
NSW Land Tax Notices are out with landholders and I am hearing of some significant increases in land valuations. Now is a good time to check your notice, especially if you have landholdings with a value over the premium threshold (2023: $5,925,000) and consider whether you should lodge an objection. Refresh yourself on the objection process in the article I co-authored here.
P&E News - Rezoning Appeals
The NSW Government has disappointingly and very quietly announced that it will not be proceeding with a proposed merit appeal for rezoning requests and planning proposals and to the Land and Environment Court. As anyone who has been involved in the rezoning process knows, even proposals that demonstrate strong strategic and site specific merit can still be opposed by Councils and refused. The idea of a Court appeal process was warmly welcomed in many corners and offered some hope for a completely objective and impartial review process. If you or anyone you know has a development project that involves a rezoning request or planning proposal then please don't hesitate to reach out for some assistance.
In other rezoning news, the NSW Department of Planning and Environment has announced that as part of the selection process to determine which proposals will be considered by the State under the Rezoning Pathways program, the department is inviting subject matter experts at councils to provide early technical information on eligible projects.
Case of the Week - Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117
A case I've been considering this week is the decision of the Chief Judge of the NSW Land and Environment Court in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117. Toga is instructive on the role and application of design excellence clauses, that are now common in NSW Local Environmental Plans, in the assessment of proposed development. Relevantly and as held in the decision by the Chief Judge:
[70] It was not sufficient for the Commissioner to form the opinion that the proposed development did not exhibit design excellence or to do so having had regard to the evidence of the urban design experts, including their evidence on elements of the proposed development that did not exhibit design excellence. Clause 8.4(2) prescribes a framework for deciding whether a development exhibits design excellence.
[95] ... the directive ... that: “In deciding whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters…”, is a strong indicator that the matters expressly enumerated in cl 8.4(2) are exhaustive of the matters the consent authority is obliged to take into account in deciding whether the proposed development exhibits design excellence for the purposes of cl 8.4(1). The consent authority may consider other matters, but is not obliged to consider these other matters.
If you have a proposed development to which a design excellence clause applies, then be sure to consider the Toga decision and reach out if you'd like advice on making sure you comply with the requirements of the clause.
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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