Government and Planning Law

What duty of care does a Principal Certifying Authority owe?

This question was answered by the Court of Appeal in September 2017 when the decision of Ku-ring-gai Council v Chan [2017] NSWCA 226 was handed down.

The Court of Appeal held that a Principal Certifying Authority (PCA) did not owe a duty of care to avoid pure economic loss to prospective purchasers when issuing an occupation certificate.

At first instance the Supreme Court held that the PCA, in this case the council, held a duty of care because the purchasers relied on the council to exercise care and skill when issuing the final occupation certificate; the council knew that the purchasers would rely on the occupation certificate being issued and that the council would have reasonably foreseen the purchasers would likely suffer economic loss if the certificate was incorrectly issued.

This was overturned on appeal and the Court of Appeal held that the council as PCA did not owe a duty of care and that the role of a PCA is regulatory as it is to be only satisfied about matters directed to authorising occupation and use of a completed building in accordance with the Building Code of Australia.

This case is all the more reason why purchasers should make sure that when purchasing a property, even a newly constructed property, that they obtain proper inspections. This is even more so if purchasing from an owner-builder where there will be no home owners warranty insurance.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887

The Expert Report: July 2017

Lean more about the authors   Marlie Caban   &   Bridget Armstrong  .

The Expert Report is a newsletter advising readers on recent decisions of the Land and Environment Court (‘LEC’) and on changes to Local Government, Planning and Environmental Law. We hope that the information contained in this newsletter and future newsletters will be informative.

Having trouble reading our newsletter? You can view and download a copy HERE.

Coutts have Accredited Specialists in Local Government and Planning Law. Learn more about the Coutts Team here.

How does compulsory property acquisition work?

Compulsory Property Acquisition

Here's a quick start guide to understanding how compulsory property acquisition works. 

All levels of government can acquire privately owned land for public purposes, for example road widening. They can acquire all of the land, part of the land or an interest in the land for example, an easement.

The government authority that is proposing to acquire the private land is called the acquiring authority.  

Land can be acquired by agreement, or in the event that an agreement cannot be reached, by compulsory acquisition at a value determined by the Valuer General.

For the acquiring authority to compulsorily acquire land they must first serve the landowner with a Proposed Acquisition Notice (also called a PAN). Under recent amendments to the Land Acquisition (Just Terms Compensation) Act 1991 the acquiring authority must negotiate with the landowner for 6 months prior to the issuing of a PAN.

From the time that the landowner, or an interested party (for example a lessee) is issued with a PAN there are strict timeframes that must be adhered to so it is very important that an appointment is made to speak to a solicitor who has experience in this area of law as to the rights of the landowner or the interested party and the procedures to be followed.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887.

Environmental planning: LEP's and SEPP's explained

Marlie-LEPS-and-SEPPs.png

In the environmental planning world we often refer to LEP’s and SEPP’s but what are they and how do they work?

LEP’s

Local Environmental Plans or LEP’s are a type of Environmental Planning Instrument.  LEP’s apply to local Councils and provide a framework for the way land can be used.  This is done by allocating parcels of land ‘zones’ for example: R1 General Residential and RU1 Rural Landscape.  Each zone is made up of objectives which sets out the principal purpose of the land; what development is permissible on the land with consent, what development is permissible on the land without consent and what development is prohibited.

SEPP’s

State Environmental Planning Policies or SEPP’s are environmental planning instruments that deal with matters of State or Regional environmental planning significance.  The effect of a SEPP is that it can override a LEP and can prohibit certain types of development or can allow development in a certain zone.  For example, a development may be prohibited in a zone but if it achieves an aim of the SEPP it may be allowed.

An example is State Environmental Planning Policy No 1 or SEPP1 which allows an objection to be made against development standards contained in an Environmental Planning Instrument such as a LEP.  If Council is satisfied that an objection is well founded, it may grant consent to the development even though the proposal does not comply with the relevant standards.

When wanting to develop on your land the first thing that you need to consider is the local government areas LEP, look at the zoning and the objectives and permissibility of the zone to see if the proposed development is permissible.  Depending on the development you then need to look at the SEPP’s to see if there is a SEPP that applies to the development.

Planning law is quite complex. To ensure that you get the right advice you need an expert in this area.  At Coutts Mallik Rees we have two accredited specialists in Local Government and Planning Law that can provide you with expert advice.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887

Picton legal office reopening

Picton Flood Recovery

On the weekend of Sunday 5th June, most of us were aware of the wild weather that swept through the Macarthur Area. The lucky ones were rugged up inside their homes with the heating on, watching the heavy rain and gutters over flow through their windows. Many people started to realise by late Sunday afternoon that the heavy rain was causing hazardous floods in many areas, with pictures posted on social media of flood waters rising at Campbelltown Station, Mount Annan and Leppington. But it was the images of the high water levels sweeping through the main street of Picton that alarmed the staff at Coutts Solicitors and Conveyancers, as this is the location of our Picton legal office .

The Main Street of Picton Flooded

The Main Street of Picton Flooded

Coutts Solicitors &  Conveyancers is located on the corner of Argyle Street and Cliffe Street, very close to where these photos were taken. We all felt sick at the sight of the images of the floods, but at this stage had no idea of the damage caused to our offices.

On Monday morning none of the staff were able to attend the Picton office. All the roads were closed due to the high flood waters, so all Picton staff were relocated to the Narellan Office to work. Throughout the day we heard reports of neighbouring businesses front windows being  smashed by the rush of flood water and losing all of their stock. We could could not view the damage to our office, until the flood waters dispersed and roads to the area were reopened. However we still had hope,  we are on the higher end of the street, a significant distance away from the burst river banks.

Coutts Solicitors front entrance after the Picton floods.

Coutts Solicitors front entrance after the Picton floods.

It was Monday afternoon by the time we had access to our Picton legal office. The damage was immediately evident, with a brown sludge being left on the floor of the entire office (under the sludge are glossy white tiles). The smell was also horrendous, the whole office smelt like a sewer and the brown sludge looked like sewage, it was heartbreaking.

The damage was clear in every room,  computers, files, printers and stationary all clearly showing the water damage. We established by the water marks on the wall that the water levels had submerged the office 30 - 40 cm. The money and time needed to repair the office had yet to be calculated, but at this stage we realised the damage was worse than we initially thought. We had not been as lucky as we had hoped on Monday.

After the devastating news of our own damage we began to hear unsettling rumours of Picton businesses insurance claims being rejected. Many insurance companies  had found a loophole to avoid paying out for damages.   We watched in dismay as  fellow Picton business owners coped with the crushing news, many had been operating their whole life in the area and were now out of business as a result. We joined the community in their reaction of anger and disgust at theinsurance companies tactics to save their money.....  We were yet to be assessed by our insurance company, so the future of our office remained uncertain.

Thanks to our Insurance Broker

Luckily, we had a wonderful insurance broker (Jared from Ausure) who was communicating with our insurance company. He organised for an assessor to come out to our office and view the damage. We were fortunate enough that our Insurance company decided we were able to put in a claim for the damage. It was a huge relief, our Picton legal office would reopen, but we still had a long road ahead with the clean up and replacement of our equipment to take weeks.

The aftermath of the Picton floods resulted in many businesses on the main street shutting down for weeks,  some had to close their doors indefinitely. When we did go to Picton, it looked like a ghost town, we were worried about the future of business  and concerned if the town would recover.

Back in business for Picton!

Now, nearly 3 months after the devastating floods, their is a light at the end of the tunnel. Community events have been held to raise money for the businesses and residents that were badly effected by the natural disaster.  Local businesses offered a helping hand to those in need with, discounts and charity donations. As much as the Picton floods caused so much trauma and stress to its residents, it has been amazing to see the generosity and caring spirit of people in the whole of the Sydney area. All the donations and charity to the Picton flood relief have helped Picton get back in business.

The Coutts Solicitors & Conveyancers Picton legal office is coming close to finishing its repair and is set to reopen on or before the 31st August. We are extremely thankful for those people who contributed to its refurbishment and  helped us to get back to business. We are looking forward to reopening our doors and being able to provide the Picton residents with legal services once again.

Please remember to "Go Local"  when choosing a service or purchasing products, your support will help Picton businesses to thrive once again.

What to do if council does not grant consent.

whattodoifthecouncildoesnotgrantconsent.jpg

As a Planning Lawyer I am often asked by clients, what can I do if Council does not approve my development application?

How can Council refuse a development application?

A development application can be refused two ways, a development application will be ‘deemed’ to have been refused if the Council has not determined the development application within 40 days or 60 days for designated development and integrated development. An actual refusal of a development application is when the Council provides you with a Notice of Determination advising that the application has been refused and advising on what grounds it has been refused.

What options are available if a development application is refused?

Where the Council has refused consent to a development application, the applicant may request the Council to review its decision within 6 months after the date that the development application was refused. If Council reviews its decision and comes to the same conclusion you have the option of lodging a Class 1 Appeal in the Land and Environment Court.

If you do not want a review of Councils decision you can lodge a Class 1 Appeal in the Land and Environment Court. An appeal must be lodged with the Land and Environment Court within 6 months of the date of refusal.

It is important to note that the 6 months to lodge an appeal runs from the date of the refusal not from the date of the review. In other words, your time to appeal does not stop while you are waiting on the result of the review application.

If your application is a deemed refusal you can lodge a Class 1 Appeal in the Land and Environment Court. A deemed refusal appeal must be lodged within 6 months plus 40 days (or 60 days in certain circumstances) of lodgement of the development application or the right to appeal will be lost if the Council has not actually determined the application.

Once you have lodged an appeal the Council is no longer the Consent Authority and you are asking the Land and Environment Court to approve or review the Councils decision.

As there are strict time limits it is recommended that legal advice is sought at the time that your development application is refused so that your appeal rights are not lost.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887

Existing Use Rights

An existing use protects the continued use of a building, work or land where that use when commenced was lawful but subsequently became prohibited because of changes under an Environmental Planning Instrument. Existing uses can continue to operate without the need for further approval from Council, provided the nature of the use remains the same as that which existed at the date of the new Local Environmental Plan.

However, the prior consent of Council is required if a person who is conducting an existing use wishes to do any of the following:

  1. Alter or extend,

  2. Rebuild the building,

  3. Increase the area of use, or

  4. Enlarge, expand or intensify the use.

The onus is on the person alleging the existing use to prove that there are existing use rights.  This can involve a fair amount of research to establish that existing use applies and can become quite complicated.

An existing use will cease where the use has been abandoned for 12 months or longer or where the use has unlawfully changed from one use to another. Abandonment of 12 months may be rebuttable if you were always intending to continue the use but circumstances beyond your control prevented the use from continuing for a period of 12 months or more.

A classic example of exercising an existing use is a corner store in the middle of a residential zoned area where the corner store was permissible when commenced but the rezoning of the land has made its use prohibited.  The corner store can continue to operate using its existing use rights.

This is very complex area of law and it is recommended that you seek legal advice.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887

Changes to The State Revenue Legislation Amendment Act 2016

As a Licensed Conveyancer  at a Law Firm, I deal with many clients, from first home buyers to investors and businesses. The State Revenue Legislation Act  effects a large portion of my clients and determines what they can do, the grant amounts they will receive and the tax they need to pay. So when The NSW Office of State Revenue or OSR,  announced changes to the act with The State Revenue Amendment Act 2016, I realised many of my clients would be unaware or confused by the changes. So for those people or businesses undertaking a transaction with the OSR,  and to help you understand the changes, I have summarised the changes to the act below. The changes include:

  • To be classified as a "Substantially renovated home" for the purpose of the First Home Owner Grant and First Home New Home Exemption or Concession from Duty, the home must now be created by renovations that remove or replace all, or substantially all of the building.
  • To be classified as a "home built to replace demolished premises" for the purpose of the First Home Owner Grant, the home must be built on the same land that the demolished premises stood.
  • Unoccupied land which is eligible for the principal place of residence land tax exemption that is occupied by a person other than the owner can now be exempt for a period of up to 4 years from when that person stops using the land for residential purposes.
  • Wages that are paid to a person by a body corporate wholly owned by at least 2 local councils, for activities carried out for those councils, are now exempt from payroll tax.
  • After a successful objection or review, the chief Commissioner must now pay interest on a refund made to a taxpayer.
  • Enterprises may now voluntarily report amounts which are not classified as unclaimed because the total is $100 or less. The amount must be paid to the Chief Commissioner and can be claimed by the owner of the money.
  • The Chief Commissioner may now allow an owner of unclaimed money whose right to the money has expired to still claim the money.
  • References to anything done or held by a trustee of a unit trust scheme as trustee in respect of corporate reconstruction transactions and corporate consolidation transactions that are exempt from duty now extend to include anything done by or held by a custodian of the trustee of a managed investment scheme.

For more information on the The State Revenue Legislation Amendment Act 2016 click HERE.

If you need legal advice in relation to a property or business transaction. Coutts can give you the advice you need. 

Mallik Rees joins Coutts at the Hunter Valley Vineyards

On Tuesday the 5th April the team at Coutts Solicitors & Conveyancers travelled to the Hunter Valley to celebrate Coutts joining with Mallik Rees Lawyers located in Cessnock. Mallik Rees Lawyers is an accredited specialist firm providing a variety of legal services to the Cessnock community, with a focus on local government and planning law. The announcement was made to distinguished guests at the Goldfish Bar and lounge in Polkolbin. The evening debuted the new branding for the Cessnock location and revealed the firm will now be known as "Coutts Mallik Rees Solicitors & Conveyancers". The evening was celebrated with perfect weather, food and beverages in the picturesque Hunter Valley setting. Guests included the Mayor of Cessnock Bob Pynsent and representatives from Dungong Council, Liverpool Plains Council, Gunnedah Council, Tamworth Council and Maitland Council as well as long term supporting business partners of Mallik Rees Lawyers. With the joining of the two firms Coutts Solicitors & Conveyancers and Mallik Rees Lawyers are able to leveridge the legal services at both locations and provide their clients with additional expertise for a richer more elite experience from some of the best solicitors in the state.  

When does a Development Consent Lapse in NSW?

What is a development consent?

Development consent is permission from a Council to carry out development on land.

When does a development consent lapse?

A development consent lapses five years after the date from which it operates (s95(1) of the Environmental Planning and Assessment Act 1979)(EPAA). This doesn’t mean that the whole development covered by the development consent needs to be finished in the five year period to prevent the development consent from lapsing.

Are there any cases where my development consent won’t lapse?

Section 95(4) and (5) of the EPAA provides that development consent for the erection of a building or the subdivision of land or the carrying out of work does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land before the date on which the consent would otherwise lapse.

What is physical development?

Physical development is all activities that involve relevant work necessary for the building, engineering or construction of the approved development; including survey work and geotechnical investigation work.

The test for what constitutes physical commencement was set by the Court of Appeal in the matter of Hunter Development Brokerage v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169. These appeals were separately instituted but were heard together because of the common issues of law being raised, to do with physical commencement. In these cases the Court of Appeal held that survey work and geotechnical investigation work performed by the Applicants amounted to ‘engineering’ work for the purposes of the EPAA and accordingly held that the development consents had not lapsed.

How do I know if my development consent has lapsed?

There are three questions to be answered when determining if development consent has lapsed:

  1. Was the work relied on building, engineering or construction work? If so,

  2. Did it relate to the approved development? If so,

  3. Was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

What work is classed as physical commencement will vary from development to development. The requirement that the relevant work related to the approved development requires a real nexus and must truly be work relating in a real sense to that which has been approved. For work to be ‘physically commenced’ there must be physical activity which involves an appearance of reality and which is not merely a sham.

Can I extend my development consent?

If your development consent has been granted for a period of less than five years Council may grant an extension of one year if you can show ‘good cause’ as to why the extension should be granted.

Implications

Each matter is different and that is why it is so important to obtain legal advice as to whether the work being undertaken for your development is capable of being classed as ‘physical commencement’.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887