In this article, we consider some key judgments of the Land and Environment Court and the Court of Appeal in relation to planning and environment law in 2024.

The scrutiny of jurisdictional prerequisites to the grant of consent continues.

There have also been a few shape shifting judgments of the Court of Appeal and from the Chief Justice of the Land and Environment Court which recognise the need for certainty for applicants. These judgments acknowledge the difficulties faced by applicants in development appeals, including distinguishing between a consent authority's or community's perception of a development versus the reality of what is proposed, as well as dealing with contentions that have not been properly particularised. 

We have seen some of these issues play out in other matters and anticipate that applicants will rely on these judgments going forward in circumstances where development appeals appear to be being objected to based on misconception, or argued based on unmeritorious contentions.  

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (White JA, Adamson JA, Price AJA)

This judgment of the Court of Appeal was so significant that a new Bill was quickly introduced to Parliament to overcome it. 

The development at the center of this judgment was an open cut silver mine (Bowdens), which was assessed as a State significant development (SSD). 

Consent needs to be obtained for development that may ordinarily be carried out without development consent if it forms "part of a single proposed development that is State significant development": Section 4.38(4) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

The Court of Appeal held at [71] that a transmission line formed part of the "single proposed development" for the Bowdens mine:

"Because the transmission line was not the subject of the development application, the likely environmental impacts of the transmission line were not directly caught by s 4.15(1)(b). But because the proposed mine (which was the subject of the development application) will require electrical power to be delivered through an off-site transmission line, the likely impacts of that transmission line were a mandatory consideration for the IPC."

As a result, the development consent for the Bowdens Silver Project was declared to be void and of no effect. 

The Bill that has been introduced seeks to overcome the uncertainty regarding the assessment of SSD applications arising from this judgment.

Cameron v Woollahra Municipal Council [2024] NSWCA 216 (Payne JA, White JA, Price AJA)

The background to this judgment involved a development consent being granted for the redevelopment of a house in Bellevue Hill. The consent was subsequently modified, but approval was not given to add a cellar level. The modified plans included a notation which stated "Cellar Level Deleted", and a condition of consent requiring that this area remain unexcavated. 

However, when the construction certificate was issued, it included a construction void in the plans, in the same location of the cellar.

Council brought judicial review proceedings challenging the certifier's decision to issue the construction certificate, due to the inconsistency between the condition prohibiting excavation in the cellar location, compared with the construction certificate which permitted excavation of that area for the purposes of building a crane base and installing a crane.

The Land and Environment Court found that the modified consent prohibited the excavation of the cellar level for any purpose, and that it was legally unreasonable for the certifier to determine that the construction certificate was consistent with the modified consent. The primary judge declared that part of the construction certificate to be invalid. 

The property owners then appealed that decision to the Court of Appeal, unsuccessfully. The Court of Appeal's judgment sets out a useful summary of the test for legal unreasonableness in the context of the decision to issue a construction certificate.

Lahoud v Willoughby City Council [2024] NSWCA 163 (Meagher JA, Leeming JA, Preston CJ of LEC)

This Court of Appeal decision related to a challenge by a third party (Mr Lahoud) to the validity of a development consent granted by the Willoughby Local Planning Panel. Mr Lahoud's application was dismissed at first instance, and unsuccessfully appealed to the Court of Appeal. 

This judgment contains important considerations for judicial review proceedings relating to the validity of development consents.

Firstly, clause 4.6 requests and jurisdictional facts continue to be complex issues that require careful attention. 

The Court of Appeal confirmed that satisfaction of the matters in clause 4.6 is only necessary for the proposed development subject to the conditions imposed. In this case, consent was only granted to part of the proposed development and a condition of consent was imposed requiring part of the upper level to be redesigned, relocated or deleted. Although there was some remaining non-compliance with the height standard, the Court of Appeal found at [37]-[38]:

"If development consent is granted for the development for which consent is sought except for a specified part or aspect of that development, then it is that development except for that specified part or aspect, in respect of which the consent authority must be satisfied of the matters in cl 4.6(4)... The consent authority does not need to be satisfied that the development with that specified part or aspect will meet those matters in cl 4.6(4)(a) because development consent will not be granted to that development with that specified part or aspect.

…the Panel was satisfied that Helm’s written request had adequately addressed the matters required to be demonstrated by cl 4.6(3) (cl 4.6 (4)(a)(i)) and that the development, except for those specified parts which were required to be redesigned, relocated or deleted, will be in the public interest because it was consistent with the objectives of the height standard and the objectives for development within the zone in which the development was proposed to be carried out (cl 4.6(4)(a)(ii))."

In relation to jurisdictional facts, the Court of Appeal provided some explanation about the difference between a reviewable jurisdictional error, and a jurisdictional fact. Although a clause of the relevant local environmental plan (which related to whether a building "will have an active street frontage") contained the words "Development consent must not be granted...unless the consent authority is satisfied that...", the Court of Appeal found that the consent authority's decision as to whether this matter is satisfied was not a 'jurisdictional fact'. The Court of Appeal applied El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24 at [33] as to what a 'jurisdictional fact' is. It found that it was open to the Panel to have found that the building had an 'active street frontage'. The Court of Appeal found at [60]:

"The question of whether the building as proposed to be redeveloped will be a building that has an active street frontage within the statutory description in cl 6.7(5) was not a jurisdictional fact: as to what is a jurisdictional fact, see El Khouri ...at [33]. Rather, the question was one for the Panel to decide. That is made plain by the terms of cl 6.7(3): the consent authority is to determine whether it "is satisfied that the building will have an active street frontage" after the erection or change of use of the building. This involves the consent authority deciding whether the facts found by it fall within or without the statutory description of "active street frontage" in cl 6.7(5). The consent authority's decision of satisfaction or non-satisfaction as to whether the building will have an active street frontage is reviewable, not as a jurisdictional fact, but only for jurisdictional error. As the High Court recently observed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12 at [3]: 

"Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness." (Emphasis added).

We expect that the effect of El Khouri will continue to be the subject of judicial review proceedings. It was recently considered in Georges River Council v Eskander [2024] NSWLEC 98 by Robson J (heard prior to Lahoud), but Robson J rejected the submission by the respondent in those proceedings that the relevant provision of the local environmental plan was not a jurisdictional fact : [64]-[66] of Eskander.

This Court of Appeal decision also highlights that strict compliance with notification requirements is essential. If that has not occurred, there is a risk of judicial review proceedings being commenced later than expected, but still 'within time'. There is a three  month time period within which to challenge the validity of a consent. Here, the clock did not start until approximately three  weeks after the date contended by the consent-holder, which meant that the proceedings were brought within time based on that later date. 

Lastly, the decision contains a reminder that the credibility of the person bringing judicial review proceedings is irrelevant to the determination of whether a consent was granted invalidly. The Court of Appeal at [119]:

"The conduct of the person bringing the proceedings seeking to remedy a breach of the EPA Act, and the credit of that person as a witness, will ordinarily be irrelevant to the exercise of a discretion as to whether to grant a declaration of invalidity."

M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17 (Ward P, Mitchelmore JA, Preston CJ of LEC)

This case unusually involved a private prosecution in the Land and Environment Court, relating to the disposal of asbestos waste. 

The summonses were dismissed in the Land and Environment Court by Justice Pain for not disclosing an offence known to the law, given the date range on the summons that the offence was alleged to have been committed predated the commencement of the relevant provision of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).

The Court of Appeal upheld an appeal, confirming that the summonses were not defective on the basis of this timing issue, and explained the Land and Environment Court's power to permit an amendment of the summons that would have corrected the incorrect dates being listed on the summons. 

On appeal, the applicant also sought an exclusionary remitter order that the notices of motion be heard by a judge other than the primary judge. The Court of Appeal's judgment explains the circumstances which would lead to an exclusionary remitter order, but found that the primary judge did not demonstrate any conduct that gives rise to a reasonable apprehension of bias.

Australian Wildlife Ark Limited v Secretary, Department of Planning and Environment [2023] NSWLEC 139 (Preston CJ)

This case is important because the Applicant’s costs in these Class 1 merit appeal proceedings were awarded against the Department of Planning and Environment (Department). As is commonly known, costs in Class 1 proceedings are normally costs neutral, with each party paying their own costs consistent with the non-discouragement principle. 

Preston CJ made orders that it was "fair and reasonable" to order costs against the Department at [133]:

"I consider that the making of an order as to the whole of the costs of both proceedings is fair and reasonable in the circumstances. An order for costs will serve to compensate Aussie Ark for the costs it has had to incur because of the conduct of the Department in the circumstances leading up to the commencement of the proceedings and in the conduct of the proceedings, which I have found to be unreasonable. As Aussie Ark has been successful in its application for costs, it is also fair and reasonable to make an order for costs of the application for costs." (Emphasis added).

The judgment considers the 'fair and reasonable' test of rule 3.7(2) of the Land and Environment Court Rules 2007 (NSW).

The circumstances involved Australian Wildlife Ark Limited (Aussie Ark) having applied for two biodiversity conservation licences, the Department refusing to determine these, and two subsequent Class 1 appeals against the deemed refusal of these applications.

Preston CJ's judgment recounts the conduct of the Department both before proceedings were commenced, and during the proceedings, and notably placed significant importance on the Department's contentions as drafted. His Honour found at [115]:

"As I have found, that case, as pleaded in the contentions, was unmeritorious and not established. This is the foundation for the Department's conduct of the proceedings being unreasonable. That unreasonable conduct caused Aussie Ark to incur costs they ought not to have had to incur if the Department had not raised those contentions."

The Court recognised the reality for Applicants in Class 1 proceedings dealing with unmeritorious contentions, that: "Aussie Ark was required, until it was abandoned, to meet the contention and incurred costs in doing so." ([84]).

Preston CJ also indicated that contentions need to be particularised so as to explain the legal consequence of the point being raised. At [70]:

"Contention 2 is misguided in that it frames the insufficiency of information only with respect to the application itself and identifies the arbiter of the sufficiency of the information in the application as being the Department and not the Court. Establishment of the contention had no legal consequence for the Court's consideration and determination of the licence application on the appeal. Even if the Department considered that the application the subject of the appeal contained insufficient information in order to be assessed by the Department, the Court could consider that there was sufficient information, in all of the evidence before the Court, to assess the licence application and grant a licence." (Emphasis added).

This judgment demonstrates that careful drafting of contentions, properly particularised, in Class 1 appeals is necessary. 

This would promote more efficient resolution of issues in the proceedings at conciliations, during joint conferencing and at hearings. 

Barhom v Randwick City Council [2024] NSWLEC 1357 (Gray C)

The applicant in these proceedings sought development consent to subdivide an existing dual occupancy into two strata lots.

The judgment contains an interesting argument put by the Council, which was rejected by the Commissioner, as to housing affordability, which has been heavily reported on in the media in 2024.
The Council submitted "that there is no evidence that undersized lots will encourage housing affordability, and says that they may increase land values", and "that the proposed development does not increase housing supply, as there is no change to the number of dwellings." (at [58]).

Commissioner Gray found at [78]-[79]:

"There is no substantive foundation to the Council's assertion, made in the particulars of Contention 2, of an adverse housing affordability impact of a strata subdivision of a dual occupancy. To the contrary, it is axiomatic that it increases housing supply to the market for purchase, with each strata lot at a price point lower than the unsubdivided whole, consistent with the evidence given by Mr Joannides in cross-examination. Therefore, in the market for purchase, there will be increase in supply (there being two lots rather than one) at a lower price point, which is likely to encourage housing affordability for those in that market. In the rental market, I accept the submission made by on behalf of the applicants that it is difficult to see how there would be any change, since both dwellings could be rented separately even without strata subdivision." (Emphasis added).

Commissioner Gray also provided the following reminder that applies to Class 1 proceedings generally at [78]:

"I do not accept the Council's position that the Court cannot be satisfied that the proposed development is consistent with the zone objectives by virtue of there being "no evidence" that the strata subdivision would not have an adverse impact on housing affordability in the local area or in the zone. To be satisfied of consistency with the objective to "encourage housing affordability", there is no obligation for the applicants to prepare a market analysis to establish that there is no impact on the property or rental market. Whilst there exists a persuasive burden of proof on an applicant for development consent to establish that an impact is acceptable (see Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]), this does not give a consent authority a carte blanche to identify so-called impacts without a proper substantive foundation. An applicant for development consent ought only be 'put to proof' on genuine impacts." (Emphasis added).

C2526 Pty Ltd v Blacktown City Council [2024] NSWLEC 1641 (Miller AC)

This case involved an appeal against the deemed refusal of a development application for a staged Torrens Title subdivision.

The issue was whether the proposed development represented orderly development of land in circumstances where a potential future road widening was proposed.

The development application had been referred by Council to Transport for NSW, which advised:

"TfNSW has reviewed the submitted information and does not support the application in its current form. TfNSW notes that the subject property is within an area under investigation for the proposed Bandon Road corridor between Richmond Road and Windsor Road." (Emphasis added).

No action had been taken to formally reserve the land for road widening, and the evidence before the Court was that TfNSW did not have funding for the detailed design and procurement of this road widening.

Acting Commissioner Miller found at [37]:

"…there is currently no certainty or imminence that the Bandon Road works will occur and, if so, in what form. Accordingly, there is no certainty regarding whether the subject site, either in total or in part, will be required for the project. The TfNSW investigation area, while known, has no statutory force and should not be given determinative weight in respect of the current application."

This provides some comfort to applicants that might otherwise have development of their land inhibited for an indeterminate amount of time based on a foreshadowed compulsory acquisition at an unknown future point in time, which may not ever eventuate.

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Preston CJ)

Goldcoral has had a long history and is a case that has been widely discussed since the judgment was handed down in July 2024. Without providing a full recap, this judgment has provided some 'back to basics' reminders:

The judgment related to a development application proposing residential subdivision of a site in Evans Head, which has been the subject of numerous other proceedings since around 1988. 

Preston CJ recognised in this judgment that opposition to a development is not always founded on reality:

"The Council's, Ms Barker's and the community's opposition are founded on ideas about the development proposed in the amended development application, the environment affected by the development, and the law applicable to assessing the development application, which are not reflective of the reality of the development, the environment and the law"

Preston CJ also placed important re-emphasis on the strategic planning undertaken for a site, stating at [14]:

"The long history of zoning of the land for residential purposes is overlooked in the opposition to any development of the land for the very residential purposes for which the land has been zoned."

This judgment provides new support for an old proposition, which is often cited by Applicants but which  is sometimes seen as trite. It is the statement of McCellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237 at [117]-[118] (citations omitted): 

"In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts." (Emphasis added).

Preston CJ also clarified in this judgment that subdivision of a lot containing land identified as "coastal wetland" under the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) does not automatically constitute "any other development" "carried out on land identified as "coastal wetlands"" (see clause 2.7(1)(d) of the RH SEPP).

The Council argued that subdivision falls within the expansive definition of 'development' in the Environmental Planning and Assessment Act 1979 (NSW), and because the site included land identified as a "coastal wetland", clause 2.7 applied. There was an argument about transitional provisions relating to that, but Preston CJ found that the clause would not apply anyway for the following reasons: 

• At [78]: "the proposed subdivision does not involve the division of that part of the land identified as coastal wetlands under the RAH SEPP into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The boundaries of the proposed subdivision run along, but not inside, the outer edge of the line on the Coastal Wetlands and Littoral Rainforest Area Map under the RAH SEPP identifying the coastal wetlands that encroach slightly into the eastern part of the land (Lot 277). Whilst this effects a subdivision of Lot 277, it does not subdivide that part of Lot 277 that is "land identified as 'coastal wetlands'… on the Coastal Wetlands and Littoral Rainforests Area Map." That part of Lot 277 identified as coastal wetlands remains intact, not divided."

• The subdivision did not involve development "carried out on land". See Preston CJ's explanation at [80]: 

"To carry out development on land involves doing something on the land. That is evident with the development specified in paragraphs (a) to (c) of cl 2.7(1) – they all involve physical work on the land with attendant impacts on the land and its vegetation. The catch-all category of "any other development" in paragraph (d) of cl 2.7(1) is no different. Development other than the developments specified in paragraphs (a) to (c) must also be "carried out on land". The mere procuring of the registration of a plan of subdivision in the Office of the Registrar-General does not involve the carrying out of any development on land." (Emphasis added).

Preston CJ's analysis at [80] is useful in relation to any provision that refers to development "carried out on land". 

Another useful reminder from this judgment relates to the law that applies when determining a development application. This is particularly important to understand given the constant updates to planning and environmental law. It is frequently the case that the law has changed in between the lodgment of a development application, and the hearing of a Class 1 development appeal. Preston CJ clearly states at [75]:

"A development application is to be determined by a consent authority, and a court on appeal, on the basis of the law that is applicable at the time of determination of the development application"

It is still not as simple though as turning to the current version of a particular provision, because the 'applicable law' will usually include current savings and transitional provisions which require one to use an earlier version of a provision, or which say that a new provision does not apply to the relevant development application. 

Karimbla Properties (No. 61) Pty Ltd v City of Parramatta Council [2024] NSWLEC 1303 (Pullinger AC)

Although this judgment relates to an agreement reached following a section 34 conciliation conference, the case is a striking example of the power of a clause 4.6 request as it was held to be sufficient to justify height exceedances of up to 125% of the applicable height standard.

We have on occasion seen councils apply a 'rule of thumb' that a 10% variation of the standard is the maximum acceptable and justifiable variation. In fact, there is no set percentage exceedance. It is up to the clause 4.6 to properly justify the exceedance, and this decision provides an example of the circumstances in which a 125% exceedance did that.

Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140 (Pritchard J)

This judgment serves as a reminder of the importance of obtaining owners consent. The applicant brought proceedings challenging the validity of a development consent issued for the construction and operation of a new high school in Bungendore. 

Pritchard J found that the relevant consent was invalid, and set it aside, on the basis that the consent had been granted in relation to Crown land, but consent had not been obtained from the Minister administering the Crown Land Management Act 2016 (NSW) on behalf of the Crown.

The Court also found that the failure to obtain owner's consent is not merely a "technical breach" capable of being rectified, "but were fundamental to the proper exercise of the Commissioner's functions", citing Preston CJ in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha). 

Thunderbirds Are Go Pty Ltd v Council of the City of Ryde and Transport for NSW [2024] NSWLEC 1558 (Espinosa C)

As mentioned above, provisions requiring a state of satisfaction to be reached before development consent can be granted remain under the microscope. 

In this case, Commissioner Espinosa was not satisfied of the matters in section 2.119(2)(b)(i) and (ii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 relating to the impact of the proposed development and the certainty of proposed future works on the classified roads, namely the M2 Motorway and Lane Cove Road.

The volume of traffic was found to have an adverse impact on the safety, efficiency and ongoing operation of these roads. 

The Commissioner also stated at [168]:

"I am not satisfied that the design of the vehicular access to the land is sufficiently certain in order to achieve the requisite state of satisfaction that the adverse effect resulting from the nature, volume or frequency of vehicles using the classified road to gain access to the Site will be mitigated in order to result in no adverse effect."

Applicants and consent authorities need to treat any jurisdictional prerequisites with caution, given the level of scrutiny still being given to these types of provisions since Al Maha and HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135.

Winten (No 21) Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 24 (Pain J)

This was the first judgment of the Land and Environment Court which considers the Court's powers where a party lodges a notice of withdrawal (similar but distinct from notice of discontinuance), pursuant to section 8.5(7) of the EP&A Act, which states:

"If on a review of a determination the consent authority grants development consent or varies the conditions of a development consent, the consent authority is entitled (with the consent of the applicant and without prejudice to costs) to have an appeal against the determination made by the applicant to the Court under this Part withdrawn at any time prior to the determination of that appeal." (Emphasis added).

The background circumstances involved Winten (No 21) Pty Ltd's (Winten) development application for Stage 5 of an approved concept development at Minmi, which was refused by the Hunter and Central Coast Regional Planning Panel (Panel). Winten then sought a review of the decision, and then commenced an appeal to extend the time for the review to be completed beyond the time limit of six months which would otherwise apply: [28].  

Stage 5 is within the Lake Macquarie City Council local government area but other stages of the concept development are within the City of Newcastle local government area.

The review under section 8.3 of the EP&A Act resulted in the Panel granting approval to the development application. 

Lake Macquarie City Council (the respondent in the appeal proceedings, subject to the control and direction of the Panel: s 8.15(4) EP&A Act) then filed a motion seeking for the proceedings to be withdrawn, based on section 8.5(7) of the EP&A Act, because consent had been granted. 

Meanwhile, City of Newcastle filed a motion seeking to be joined to the proceedings, due to its concern about the impact of the development on the current and future operation of the Summer Hill Waste Management Centre. 

Pain J found there is an entitlement to withdraw proceedings, and because of that it would be inutile to join City of Newcastle.

Her Honour stated at [59]:

"All these matters suggest that no court order is needed to effect the withdrawal of an appeal under s 8.5(7) provided an applicant consents. The withdrawal of a proceeding is without prejudice to costs and in the absence of agreement about these a separate application to the Court may need to be made before the notice of withdrawal can be effected. However I do not consider that means the Court must effect the withdrawal by the making of an order. This conclusion means that there is no need to make the order identified in prayer 1 of the LMCC NOM. My finding is sufficient to found a basis for Winten to file a notice of withdrawal of the Class 1 appeal." (Emphasis added).

The debate over whether the housing crisis is caused by an inflexible and legalistic planning system, such as zoning, or broader economic and tax policies, like negative gearing,  seeks to be addressed with pragmatism by the NSW Government. Judging by its actions, the NSW Government  acknowledges the contribution of the supply side to the problem  and has acted accordingly, introducing new initiatives to increase supply in the market, dissolving the Greater Sydney Commission in January 2024 and announcing the creation a new Housing Delivery Authority in November 2024. This reflects a refocusing on tangible and immediate outcomes rather than more abstract planning with longer terms impacts.

We expect further reforms to the planning system will occur during 2025, possibly more revolutionary than evolutionary,  in an attempt to improve supply by removing delay, inefficiency, uncertainty, and costs to getting new developments approved and built. 

The road ahead is not straight forward, however. History reminds us of these difficulties, as seen in the significant reforms proposed in 2013 by the then Minister for Planning, Brad Hazard MP, which were also focused on fixing some of these issues,  but failed to gain support despite an extraordinary public consultation campaign.  

As with any reform, new legal issues will arise. The planning system is a combination of hard law (statutes) and so-called soft law (plans and policies). It has provided in recent years a large body of administrative and public law jurisprudence as well as in criminal law. Each year there are a considerable number of cases that emanate from the NSW Land and Environment Court to the NSW Court of Appeal or Court of Criminal Appeal. Where commercial and other public and private interests are impacted by Government decision making or inaction in this growing field of law, the legal system will be called on to address issues either through merit appeals or through other administrative law remedies. 

We therefore expect the year ahead to raise new and interesting legal implications for those interacting with the NSW planning system and the State’s environmental laws irrespective of what reform agenda eventuates, whether that be in areas of strategic planning, development assessment, biodiversity, civil and criminal enforcement, and certification or pollution and contamination issues as the asbestos crisis revealed earlier this year.