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17700 Planning and Environmental Law: First Exam: Graded 100%

Planning and Environmental Law – First Test 1. Place the steps in the evolution of land-use planning in chronological order: (i) Neo-liberal retreat from direct government (ii) Improved sewerage and drainage, minimum road widths and minimum standards for poor housing (iii) ‘Garden City’ model of dispersed urban centers with green belts and public transport (iv) Pursuit of sustainability a. (iii), (ii), (i), (iv) b. (ii), (i), (iv), (iii) c. (iii), (ii), (iv), (i) d. (ii), (iii), (i), (iv) e. (iii), (iv), (ii), (i) 2. Identify which statement or statements about developer contributions are false. (i) Developer contributions are principally exacted by local councils when rezoning land. (ii) Developer contributions can comprise land for public amenities. (iii) Developer contributions can comprise money for public services to be provided in the locality of the development (iv) Local councils make development contributions plans for the purpose of imposing contributions when granting development consents. (v) Donations to political parties are taken into account when assessing the level of development contribution required (vi) The Independent Commission Against Corruption can investigate allegations of bribery. a. (i)&(v) b. (ii) c. (v)&(vi) d. (i) e. (i), (ii) & (v) 3. Identify all the environmental planning instruments under the Environmental Planning and Assessment Act 1979 in the following list: (i)Pittwater Council Development Control Plan (ii)State Environmental Planning Policy (Exempt and Complying Development) (iii)Canada Bay Local Environmental Plan 2008 (iv)Balgowlah Shopping Centre – Urban Design Parameters (Manly Council) (v)Sydney Metropolitan Strategy (NSW Government) a. (i)&(v) b. (ii) c. (i) – (v) inclusive (if referred to in the relevant development application) d. (i) e. (ii) & (iii) 4. ‘Ecologically sustainable development’ in the NSW planning system is: (i) a statement of aspiration only, with no practical relevance to land development (ii) involves various principles for improved decision-making (iii) can be measured by quantitative indicators alone (iv) is an object of the EPAA (v) is being achieved in NSW, as indicated by State of the Environment Reports (a) ((ii) & (iv) (b) (ii) & (iii) (c) (ii), (iii), (iv) & (v) (d) (ii), (iii) & (iv) Use the following extracts from Marrickville Local Environmental Plan 2001 (MLEP) to assist you to answer questions 5 -6 : Dictionary: bed and breakfast accommodation means a dwelling house which provides short term accommodation for not more than 6 persons, and incorporates a common facility for the provision of meals, but does not include a backpackers’ hostel, boarding house, serviced apartments, private hotel, hotel or motel. … 11 Residential 2 (B) zone (1) How is the zone shown on the map? Coloured pink with red edging and lettered 2 (B). (2) What are the objectives of the zone? The objectives of this zone are: (a) to identify areas suitable for multi unit housing and residential flat buildings to a maximum of two storeys in appearance, and (b) to provide opportunities for non-residential development which is of a type and scale that is compatible with the surrounding area. (3) What does not require development consent? Development for the purpose of: • public utility undertakings Exempt development (4) What requires development consent? Development for the purpose of: • bed and breakfast accommodation • boarding houses • child care centres • community facilities • dual occupancies • dwelling houses • educational establishments • home industries • home occupations in dwelling houses which involve prostitution • hospitals • multi unit housing • places of public worship • public buildings • recreation areas • remediation • residential flat buildings • serviced apartments Demolition (5) What is prohibited? Development not included in subclause (3) or (4). … 13 General Business 3 (A) zone (1) How is the zone shown on the map? Coloured blue. (2) What are the objectives of the zone? The objectives of this zone are: (a) to identify areas suitable for business and commercial activities, and (b) to permit a variety of ancillary and complementary land uses, and (c) to facilitate residential development in conjunction with other permissible uses in the zone. (3) What does not require development consent? Development for the purpose of: • public utility undertakings Exempt development (4) What requires development consent? Development not included in subclause (3) or (5). (5) What is prohibited? Development for the purpose of: • airline terminals • amusement centres • bulk stores • caravan parks • car repair stations • dual occupancies • dwellings, multi unit housing, residential flat buildings, serviced apartments that are not attached to a permissible use • hazardous storage establishments • helipads • heliports • industries • institutions • junk yards • liquid fuel depots • mines • offensive storage establishments • panel beating workshops • timber yards • transport terminals • warehouses … 33 Floor space ratios (1) The floor space ratios of buildings are not to exceed those indicated in the Table below: Floor space ratio table Zone Maximum floor space ratio Residential 2 (A) 0.7:1 Residential 2 (B) 0.7:1 Residential 2 (C) 1:1 General Business 3 (A) 2:1 Neighbourhood Business 3 (B) 1:1 General Industrial 4 (A) 1:1 Light Industrial 4 (B) 1:1 (2) Subclause (1) does not apply to single dwelling houses or dual occupancies on land within the Residential 2 (A), 2 (B) or 2 (C) zone. (3) Despite subclause (1), the maximum floor space ratio of a boarding house is 0.7:1. 5. Develco Ltd proposes tourist accommodation for 15 persons, with a common kitchen and dining room, in residential 2(B) zone in Marrickville. The FSR will be 2.5:1. Is this permissible? (a) Not possible to say without further information regarding the characteristics of the site, its locality and the proposed development. (b) No, because the site is inappropriately zoned. (c\) No, because the FSR exceeds the permissible maximum. (d) Yes, but only if a SEPP 1 objection is lodged and accepted by the local council. (e) Yes, because tourism enhances the local economy. 6. Develco Ltd proposes tourist accommodation for 15 persons, with a common kitchen and dining room, in General Business 3(A).land in Marrickville. Is this permissible? (a) Not possible to say without further information regarding the characteristics of the site, its locality and the proposed development. (b) No, because the site is inappropriately zoned. (c) No, because the FSR exceeds the permissible maximum. (d) Yes, but only if a SEPP 1 objection is lodged and accepted by the local council. (e) Yes, because tourism enhances the local economy. 7. What certificates state that a development as built conforms with Building Code of Australia and fire safety requirements, and when are they issued? (a) Complying development certificates - issued at DA stage. (b) Zoning – issued at gateway determination stage (c) Compliance certificate, issued after development consent and construction certificates have been issued. (d) Compliance certificates, issued at concept approval stage of major (Part 3A) projects. (e) Construction certificates, issued upon completion of the development the subject of development consent Developer obtains development consent to demolish 4 x 2 bedroom flats, and to replace them with 6 x 1 bedroom flats. Developer does so, and also demolishes a freestanding 1-car garage on the site and replaces it with a 4-car garage. A neighbour complains to the local council that the new garage is unsightly and constitutes an overdevelopment of the site. 8. Was development consent required for the garage? a. Yes b. No 9. Can developer seek development consent retrospectively for the garage? a. Yes, in all cases b. Doubtful, as the development with the larger garage is not substantially the same as the development for which consent has been obtained. c. No, because the NSW planning system does not permit retrospective development applications. 10. If the garage is illegal, what protection against enforcement action can a prospective purchaser request that Developer obtain? a. insurance b. a building certificate c. occupation certificate d. statement of commitments under Part 3A e. construction certificate 11. If the garage is illegal, and the local council would never grant consent to a 4-car garage on the site, what is the most appropriate enforcement action for the local council to take? A. prosecution B. demolition order s121B EPAA C. seek order from Land and Environment Court for demolition D. on –the- spot fine (infringement notice) 12. In the regulation of land-use there is a tension between providing certainty and allowing flexibility. Development rights and requirements are largely codified in America, with little merit-based evaluation, whereas in the UK the norm is for merit-based assessment of development (with statutory plans providing strong guidance of the types of development and land-use that are likely to be supported). Gurran argues that planning systems Australia are a hybrid, in which simpler forms of development are codified, while other forms of development are subject to qualitative, merit-based evaluation. What aspects of the NSW planning system support Gurran’s argument that approval of simpler forms of development is being increasingly codified? a. Exempt development, complying development and assessment by private certifiers, SEPP 1, thermal and water efficiency requirements under BASIX b. Gateway determinations of planning proposals, development control plans, planning certificates, existing use rights c. complying development and assessment by private certifiers, designated development assessment procedures, existing use rights, staged development 13. Identify the contradictory elements within the EPAA that illustrate the tension between protecting the environment and fast-tracking development. (a)Designated development approval process under Part 4, compared with critical infrastructure project approval process under part 3A. (b) certification of development, compared with approval process under Part 3A (c) environmental assessment process, compared with environmental planning instrument creation process 14. Gurran writes that ‘ NSW lacks an overarching policy framework for environmental governance… This may be because environmental responsibilities in NSW are divided amongst so many different state agencies and statutory authorities, sometimes described as ‘silos’ (Mant 1999)’. Identify one provision in the EPAA for the assessment of development proposals that seeks to combat the silo mentality. (a) staged development facilitation (b) designated development (c) integrated development 15. ‘Planning principle’ decided cases as published by the Land and Environment Court: A. Are legal precedents that must be followed in class 4, judicial review proceedings where similar questions of law arise B. Provide guidance on merit issues C. Bind the Commissioners of the Court, but not the judicial members of the Land and Environment Court D. Are backed up by legal cost awards, that is, a losing party not following a planning principle precedent is likely to have to pay the winning party’s costs in a developer (class 1) appeal. E. B, C and D 16. A DA in respect of 1A Smith Street, Jonesville has attracted 10 objections. A council officer has delegated power to determine DAs except those that ‘may in the opinion of the Director Environmental and Regulatory Services be contentious’. There is no evidence of what the Director’s opinion was. Pursuant to the council officer’s recommendation that consent be granted, ‘notwithstanding the 10 objections’, two councillors grant approval under delegated authority as ‘issues resolved’. Objectors seek a declaration from the LEC that the consent is invalid. The court challenge: A. Cannot proceed, as objectors have no right to bring merit appeals for residential development B. Cannot proceed because appeal rights are limited for most residential development under SEPP (Exempt and Complying Development Codes) 2008 C. Is unlikely to succeed, because the instrument of delegation is subjective, and therefore not challengeable. D. May succeed, because an objective assessment must be made of whether the DA was contentious, and on this basis the delegate(s) exceeded their authority. E. A and B 17. In the above question, a notice of the consent is published in the local newspaper. The notice incorrectly identifies the property as ‘1 Smith Street, Jonesville’. The objectors commence proceedings 94 days after the publication of the notice, seeking a declaration that the consent is invalid. Can the challenge be brought? A. Yes. The newspaper notice is defective, and thus the judicial review proceedings can still be brought. B. No. Section 101 has been substantively complied with. The proceedings are statute-barred. C. No. Objectors do not have merit appeal rights in such cases. D. Yes, except that if the objectors lose, the Court is obliged to order costs against the objectors. 18. Developer proposes a large quarry on suitably zoned land. Part 3A of the EPAA does not apply. Developer commissions an appropriately qualified person to prepare an endangered species report. The report does not indicate the presence or likelihood of any endangered species on the land. Developer submits a DA to Council, supported by an Environmental Impact Statement. Council grants consent, despite objections from an environment group, ‘Save our Bushland’. The day after Council grants consent, the environment group discovers an endangered species of frog inhabiting a part of the site that is described, on the approved plans, as ‘existing vegetated buffer – for retention’. A. ‘Save Our Bushland’ has class 4, judicial review rights because Developer should have discovered and disclosed the existence of the endangered species in the DA. The concurrence of the National Parks and Wildlife Service should have been obtained. ’Save Our Bushland’ has a strong case to obtain court orders declaring the consent void. B. ‘Save Our Bushland’ can bring class 4, judicial review proceedings seeking to declare the purported consent void if the quarry operations are likely to significantly effect the endangered frog, because in that case a species impact statement (SIS) was required but was not prepared, and the concurrence of the National Parks and Wildlife Service was required. However the mere presence of the frog on a part of the site that will not be disturbed suggests that, if the test under s5A is applied, the preparation of an SIS may not have been legally required. C. ‘Save Our Bushland’ can initiate a class 1, merit appeal. D. A&C E. B&C 19. Maria owns land near Sydney Airport that has been used for industry since at least 1890. The first land-use zoning took place in 1919, at which time the land was zoned for industry. In 1998 the land was rezoned from ‘industry’ to ‘industry and special commercial’. Motels are prohibited under both the old and the new zoning. Since 1998 almost all the land in the zone has been converted to commercial use. Maria wishes to build a motel on her land. She argues that in reality her industrial land benefits from an existing use right, because under s79C any development of her land for industry is unlikely to be approved, due to amenity concerns regarding the surrounding commercial neighbourhood, and its incompatibility with industrial uses. A. Maria’s argument is sound – she has existing use rights. She can convert the use of her industrial land for use as a motel. This illustrates how the law of existing uses protects long-established, non-conforming uses. Those who set up business or take up residence around a ‘nuisance’ industry cannot complain about the nuisance, or the change of use to another purpose that does not conform to the zoning. B. A, except that Maria must make a development application prior to converting the existing use. The proposal would be assessed under s79C in the normal fashion. C. Maria does not have existing use rights. The local council has no power to consent to a motel. 20. ‘Development consent in NSW is a transferable, real property right but it eventually expires if not acted upon.’ A. True B. False

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