Land and Environment Laws Particular To Developers

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Land and environment laws spell out the ground rules for protecting natural resources. The range of environmental and land legislation in New South Wales (NSW) aim at protecting the environment by encouraging recycling, reducing noise and air pollution and preventing pollution of waterways and land.

Legislation Relating To Environment

The main legislation concerning environmental management in NSW is the Protection of the Environment Operations Act 1997 NSW (POEO Act). Various other legislation include Environmental Planning and Assessment Act 1979, Mining Act 1992, Plantations and Re afforestation Act 1999, Rural Lands Protection Act 1998 etc.

The key functions of these legislation include:

Establishing regulatory structures for environmental management, including regulatory agencies and specialist Courts and tribunals such as the Land and Environment Court;

Enabling regulators to manage environmental impacts using plans, policies, standards, licenses and incentives;

Requiring those proposing environmentally significant activities to obtain approval from regulators; and

Providing administrative, civil, and criminal penalties for breach of law.

The EPA and the Office of the Environment and Heritage (OEH) are the main regulatory bodies having power and responsibilities to conserve environment and manage and improve environmental legislation in NSW.

Legislation Relating to Land Regulation

The primary law regulating the use of land in NSW is the Environmental Planning and Assessment Act 1979 (EPA Act). The EPA Act is administered by the NSW Department of Planning. The EPA Act sanctions two types of environmental planning to guide the process of developing and regulating competing land uses.

Local Environmental Plans (LEPs): These are environmental planning instruments applicable either to the whole or part of a local government area; and

State Environment Planning Policies (SEPPs): These are environmental planning instruments addressing planning issues within the State.

LEPs and SEPPs are collectively referred to as Environmental Planning Instruments (EPIs).

Role of the Land and Environment Court

The Land and Environment Court of New South Wales (the Court) was established by the Land and Environment Court Act 1979 and its jurisdiction includes merits review, judicial review, civil enforcement, criminal prosecution, criminal appeals and civil claims about planning, environmental, land, mining and other legislation. The Court determines different types of cases grouped in classes based on its jurisdiction. These are:

Class 1: Environmental Planning And Protection Appeals;

Class 2: Tree Disputes And Miscellaneous Appeals;

Class 3: Valuation, Compensation And Aboriginal Land Claim Matters;

Class 4: Civil Enforcement And Judicial Review Of Decisions Under Environmental And Planning Laws;

Class 5: Criminal Proceedings For Offences Against Planning Or Environmental Laws;

Classes 6 and 7: Appeals from Convictions relating to Environmental Offences by the local Courts; and

Class 8: Mining matters.

Land and Environment Law With Regard To Developers

The Environment Protection Act 1997 and the Environment Protection Regulation 2005 requires the developers to adopt appropriate pollution control measures during construction and land development activities. These include:

Planning erosion and sediment control in the land development process in advance;

Establishing stable drainage system(s) through sites before construction activities commence;

Minimizing surface disturbance to retain the maximum area of natural vegetation cover;

Ensuring that all building works generating noise is conducted within the specific time frame; and

Incorporating measures to limit affecting air quality by minimizing dust and smoke from construction activities.

Developers Right To Appeal

A developer has the right to make an appeal to the Land and Environment Court against decisions refusing to grant development consent(s) in NSW. Development consent may be refused due to the developer’s failure in:

Advertising a development application in accordance with legal requirements;

Notifying relevant people;

Providing an Environmental Impact Statement; or

An approval cannot be given for development probation zones.

The developer can make an appeal either in the form of a merit appeal or in the form of a judicial review. The type of appeal to be made in relation to a particular development depends upon the category of development.

Merit appeal: A developer can make a merit appeal against a refusal to grant the developer development consent or against the conditions of development consent. Usually the merit appeal is heard by a Commissioner. In cases where the proceedings are lengthy, the matter is heard either by two or more Commissioners or a Judge and a Commissioner sitting together.

Judicial review: If a developer is dissatisfied with the decision of a Commissioner, an appeal can be made to a Judge of the Land and Environment Court on the ground that the Commissioner made an error of law in coming to a decision. The developer cannot submit or introduce new evidence regarding the merits of his developmental proposal.

In case the developer is dissatisfied with the outcome of the judicial review, the developer can pursue an appeal in the NSW Court of Appeal.

Owen Hodge Lawyer can advise on all issues relating to Land and Environment Law and can assist you appeal against decisions made by the Land and Environment Court.

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