Professional Documents
Culture Documents
IN
LAW
LEGAL PROFESSION
ADMISSION BOARD
1-2
2
2-3
3
3-4
4
5
5
5
6-15
16-20
WINTER 2014
what development can happen in an area (from houses to mines) and who gets a say
how suburbs, towns and cities are planned (transport, shops, offices, parks, schools)
how our communities manage growth and change, and balance needs and interests
how developers and governments have to consider and protect the environment.
What happens next? While the Bills have been introduced into NSW Parliament, they will still
need to be debated and passed by both Houses, so they may be amended further in that
process. The new system will only take effect once Parliament has passed the legislation and a
start date is proclaimed. The Government has flagged that it hopes that new system will begin
early in 2014, but according to the Planning Minister's second reading speech, some parts, such
as protections in existing State Environmental Planning Policies (SEPPs), as well as current
Local Environment Plans (LEPs) and Development Control Plans (DCPs), will likely carry over
from the current system until new plans and policies are made
The Bills referred to by EDO NSW would, if passed, replace the current Environmental Planning and
Assessment Act 1979. However, Labor, the Greens and the Shooters and Fishers Party were
instrumental in achieving major amendments to the Bills. The then Planning Minister, the Hon Brad
Hazzard MP, responded by withdrawing the Planning Bills. On 22 April 2014 the Hon Prue Goward MP
became Minister for Planning in a Ministerial reshuffle and the Hon Rob Stokes MP became Minister
for the Environment, Minister for Heritage and Assistant Minister for Planning. In the reshuffle, Mr
Hazzard became Attorney General.
The course encompasses one of the fastest growing areas of NSW law and practice and addresses
the operation and effects of the various changes which are of vital importance to lawyers who
specialise, or are developing specialisation, in the field of local government, environmental and
planning law. It also covers alternate dispute resolution in those fields.
Local councils have many roles as:
The aim of the Local Government and Planning course is to enable students, through lectures, study
and practical course exercises, to explore and understand the wide variety of laws under which
councils operate as regulators and providers of vital services to their communities. This knowledge
and expertise will not only assist them in local government and planning legal practice but also will
provide invaluable expertise in various aspects of conveyancing practice.
LECTURER
Mr W A Henningham, PSM, LLB (Syd)
Mr Bill Henningham is a solicitor and mediator in private practice specialising in local government and
environmental planning law and alternate dispute resolution. He is a former Council Alderman and
Mayor. For seven years he was Secretary and Principal Solicitor of the Local Government and Shires
Associations of New South Wales (now known as Local Government NSW). Mr Henningham has
written and addressed conferences and seminars and conducted workshops extensively on the topics
covered in the course. He is the author of chapters on local government law and practice in LexisNexis Local Government and Planning Service (NSW) Vol C and is lecturer in the subject of
Conveyancing in the Diploma in Law course.
If you wish to discuss any aspect of the subject matter of the Local Government and Planning course,
you may consult Mr Henningham, whose telephone number is (02) 9427 0519.
ASSESSMENT
To be eligible to sit for the Boards examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a students
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of deemed eligible has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Boards Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPABs Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be submitted by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the Assignment Grading and Assessment Criteria outlined in
the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments
will be returned to students and results posted on students individual results pages of the LEC
Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a students overall mark after the examination is between 40-49%, the students assignment in
that subject will be included in the Revising Examiners review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
LECTURES
Lectures in Local Government and Planning will be held on Thursdays from 6.00pm until 9.00pm.
Lectures will be held in Mills Tutorial Room 205 in the RC Mills Building on Fisher Road until 19 June
and then TBA for the remainder of the semester.
A map of the University of Sydneys main campus, showing the location of these lecture venues, is
included at the back of the Course Information Handbook.
Supplementary Materials in Local Government and Planning (available via the link to the Law
Library in the Course Materials section of the LEC Webcampus)
Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials
Pearson, Local Government Law in New South Wales, Federation Press, 1994
Farrier and Stein, The Environmental Law Handbook, 5th ed. Thomson Reuters, 2011
Lyster, Lipman, Franklin, Wiffen and Pearson, Environmental and Planning Law in NSW, 3rd ed.
Federation Press, 2012
LexisNexis Butterworths and Thomson Reuters each publish loose leaf services, in the former
case with detailed commentary in a separate volume, and in the latter with annotations
throughout:
Local Government Planning and Environment Service (NSW), vols A, B, C and D, LexisNexis (The
teacher, Bill Henningham, is the author of various relevant chapters in vol. C.)
Planning and Development Service (NSW), vols 1, 2 and 3, Thomson Reuters
Local Government Law and Practice Service (NSW), vols 1, 2 and 3, Thomson Reuters
Local Government Regulations Service (NSW), Thomson Reuters
Land and Environment Court Law and Practice Service (NSW), Thomson Reuters
COMPULSORY ASSIGNMENT
In Local Government and Planning Law, there is only ONE ASSIGNMENT. This assignment is
compulsory and must be submitted by all students. Students must submit the assignment by
the due date. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of
Assignments for the assignment grading and assessment criteria. Students who fail to satisfy
the compulsory requirements will be notified through the Results screen on the Webcampus
before the examination period of their ineligibility to sit the examination in this subject. The
maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not
bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus by 11:59pm on the
following date:
Compulsory Assignment
(Week 8)
ASSIGNMENT QUESTION
To obtain the Local Government and Planning assignment question for the Winter Session
2014, please follow the instructions below:
1.
Register online with the LEC (see page 23 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the LEC
Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to the
assignment question for this subject.
and Revision being a review and discussion of the whole subject of Local Government and Planning
The key reading for the topics can be found in the Lecture Program, the Case List and in the Course
Materials section of the LEC Webcampus.
LECTURE PROGRAM
PRESCRIBED TOPICS AND COURSE OUTLINE
Lecture 1:
15 May
Key Reading
www.localgovernmentrevie
w.nsw.gov.au/
provision of goods, services and facilities; are there any limits to these
powers?
regulation of activities under the LG Act (approvals and orders), including brief
reference to the changes brought about by the EP&A Act
other functions - contracting power; compulsory acquisition of land, and
management of land
Director Generals Guidelines
Carrying out functions under other Acts
environmental obligations of councils
the extent to which the Crown is bound by the LG Act
public-private partnerships
independence of general manager and staff
Lecture 2: Establishment and constitution of councils and the respective roles of councillors and staff
22 May
2.1 How are councils established and what is their constitution?
LG Act, ch 9
Pearson, ch 2
2.2 How are councillors elected and what is the relationship between councillors
and staff?
Lecture 3:
29 May
Conflict of interest, pecuniary interests, ouster of individual councillors and dismissal of all
councillors
3.1 Conflict between public duty and private interest; pecuniary and non pecuniary
interests
LG Act, ch 14
ICAC Discussion Paper,
Conflicts of Interest
and Local
Government, 1 July
1991
www.icac.nsw.gov.au
Pearson, chh 2 & 3
LG (General) Reg 2005, Pt
8 & Sch 3
Department of LG
Pecuniary Interest
Guidelines
www.dig.nsw.gov.au
LG Act, ss 469-490
dismissal and suspension from civic office for serious corrupt conduct
fees and other remuneration not to be paid during suspension
suspension of staff member in connection with serious corrupt conduct
misbehaviour of councillors
LG Act, ss 440A-440E
LG Act, s 248A
LG Act, s 440D
LG Act, ss 440F-440Q,
470A, 470B and
482A
LG Act, ss 329-331, 274277
LG Act, ss 255-259
Pearson, chh 2 & 4
EP&A Act, s 118 (re
planning powers)
LG Act, ss 440A-440E
LG (General) Reg, cll 256
-258
Lecture 4:
5 Jun
Decision making and application of administrative law principles to the exercise of council
discretionary powers
4.2 What are the constraints upon the exercise of council discretionary powers and
how are decisions reviewed?
Administrative law principles controlling the exercise of discretionary powers
A Substantive limitations:
*
*
*
*
9
* each case must be considered on its merits
* the decision maker is not bound by its own decisions
* powers must be exercised for a proper purpose and not in bad faith
* powers must be exercised without bias
* relevant considerations must be taken into account and irrelevant
considerations must be disregarded
* decisions must be reasonable
* decisions must be certain and final
* the decision maker must not misdirect itself in law as to the scope or content
of its powers
* the decision maker must observe natural justice (the rules of procedural
fairness) - the right to a fair hearing, the bias rule and the no evidence rule
* if decision maker is a delegate and makes a regulatory decision that power is
spent and the council cannot exercise the power to make a determination in
relation to the same matter
B. Procedural limitations:
* mandatory and directory - How is the distinction determined and what rules
apply in each case?
C. Remedies for breach of the principles
Lecture 5:
12 Jun
strategic planning
financial management
access to information
communication with communities and options for community partipation in
council decision making
disclosure and misuse of information
annual report
powers of Minister for Local Government and Director-General to require
councils to supply information
powers of Minister to issue a performance improvement order, suspend a
council or to extend a suspension beyond 3 months
powers of Director-General to authorise investigations
powers of the Director-General to surcharge councillors and staff
role of the Ombudsman
powers of Minister for Local Government in relation to Ombudsmans reports
powers of the Independent Commission Against Corruption
LG Act, Ch 13 Pt 2
LG Act, ch 13 pt 3, ch 7 pt
3 (ss 158-167)
GIPA Act
LG Act, s 664
LG Act, s 434A
LG Act, ss 10A-11
LG Act, s 429
LG Act, s 430-434
LG Act, s 435-438
LG Act, s 434A
LG Act, ss 438A-438G
LG Act, 255( 1A)
Farrier, pp 83-87
LEC Supp. Materials
LG Act, ss 431-438
LG Act, ss 673-674;
EP&A Act, ss 123-124
rates
charges
fees
grants
10
investments
loans
limit of annual income from rates and charges (rate pegging)
LG Act, ch 15, pt 6
Pearson, pp 140-151
Henningham, Exemptions
from Rating and
other Rating Issues
(LEC website)
Lecture 6:
19 Jun
restrictive covenants
common law control - nuisance
legislation before 1945
the Local Government (Town and Country Planning) Amendment Act
1945
the Cumberland County Council and the County of Cumberland
Planning Scheme
the Environmental Planning and Assessment Act 1979 (EP&A Act) and
its objects.
The major amendments of the EP&A Act which took effect on 1 July
1998
relationship of State and Local Governments in the planning field
have the object s of the EP&A Act been achieved?
Lawyers
warn
against
NSW planning reforms
(LEC Website),
Norton Rose Fulbright:
Jacinta Studdert and
Felicity Rourke - Planning
reform introduced in the
NSW Parliament: the
Planning Bill 2013
Henningham,
A Question of Balance
(LEC Website)
Farrier, ch 3
EP&A Act, pt 3
11
characterisation of uses/purposes:
dominant/ancillary
independent uses/purposes
significance of characterisation of uses/purposes in environmental
planning law
what is a development standard?
what is the significance of SEPP No 1 in relation to development
standards?
suspension of restrictive covenants and easements to enable
development to be carried out -
EP&A Act, s 4
Farrier, p 34
Pearson, pp 71 and 187194
Pearson, pp 177-179
EP&A Act: s 4
EP&A Act, s 28
Planning
Law Implications for
Conveyancing
Negotiating the Planning
Control Minefield
Lecture 7:
10 Jul
what is a DCP?
what functions does a DCP perform?
what restrictions are there?
Henningham, Planning
Law Implications for
Conveyancing
Negotiating the Planning
Control Minefield
EP&A Act, pt 4, Div 10
Farrier, pp 43, 175-181
EP&A Regulation, Pt 5
Lecture 8:
17 Jul
12
What is development?
23N
13
Lecture 9:
24 Jul
Review under Environmental Planning and Assessment Act 1979 (EP & A
Act) and comparison with review of determinations under Section 100 of
the LG Act
LG Act, ss 672-675
EP&A Act, ss 101, 122 &
123
Farrier, pp 36-38
Lecture 10:
31 Jul
14
EP&A Act, pt 5
Farrier, pp 229-235
http://www.lawlink.nsw.gov
au/lec.nsf/pages/inde
x
orders
civil proceedings
offences
Desired Outcomes: Understanding the purpose that Part 5 of the EPA Act
performs, understanding the role and operation of the Land and Environment
Court and the means of enforcement of Local Government and Planning
Laws.
Lecture 11:
7 Aug
negligence
provision of information
nuisance
the interaction between the High Court decision in Pyrenees SC v Day and
the Civil Liability Act 2002, particularly ss 43 and 43A of that Act
defences, immunities and statutory exculpation
liability under statute
Occupational Health and Safety
Australian Consumer Law
Insurance
restrictions on personal injury and death claims under the Civil Liability Act
2002
exculpation from liability
what are the options for resolution of planning and other disputes apart from
determination by a court?
request for internal review by the Council of determination
negotiation
facilitation
15
mediation
discussion of each of the above options and when to use them
Lecture 12:
14 Aug
Revision, which will take the form of a review and discussion of the whole subject
16
17
18
19
Pyrenees SC v Day; Eskimo Amber Pty Ltd v Pyrenees SC (1998) 96 LGERA 330 (actionable liability)
Quality Parks v Maclean Shire Council (2002) 120 LGERA 272 (exemption from rates)
R v Barnett: ex parte Warringah SC (1967) 14 LGRA 118 (dismissal of councils original position)
Randwick MC v Pacific Seven (1989) 69 LGRA 13 (severability of invalid conditions of consent)
Randwick MC v Rutledge (1959) 102 CLR 54 (status of public reserve land)
Romeo v Conservation Commission (NT) (1998) 96 LGERA 410 (actionable liability)
Ryde CC v Echt (2000) 107 LGERA 317 (council orders)
Ryde MC v Macquarie University (1978) 55 LGRA 373 (exemption from rates)
San Sebastian v Minister administering the Environmental Planning and Assessment Act (1986) 162
CLR 340 (actionable liability)
Sansom v Hudson (1997) 94 LGERA 292 (irregularity of manner of election)
Scurr v Brisbane CC (1973) 133 CLR 242 (administrative law principles)
Seaton v Mosman MC (No.1) (1996) 93 LGERA 1 (management of public land)
Secure Parking Management v Sydney CC (1998) 99 LGERA 110 (exemption from rates)
Shaddock v Parramatta City Council (1981) 36 ALR 385 (negligent misrepresentation)
Shellharbour MC v Rovilo (1989) 16 NSWLR 104 (owners consent to DA)
Shire of Perth v O'Keefe (1964) 110 CLR 529 (existing use)
Smith v Wyong SC (2003) 132 LGERA 148 (validity of EPI)
Smith v Wyong SC (No 3)) (1984) 53 LGRA 170 (lapsing of consent)
Somerville v Dalby (1990) 69 LGRA 422 (public participation)
South Australia v Slipper (2004) 137 LGERA 374 (procedure fairness)
South Sydney CC v Paul Dainty Corp (1992) 75 LGRA 202 (characterisation)
Statewide Roads v Holroyd City Council (1996) 90 LGERA 160 (exemption from rates)
Steelbond (Sydney) v Marrickville MC (1994) 82 LGERA 192 (retrospectivity)
Stockland Development v Manly Council (2004) 136 LGERA 254 (consideration of DCPs and relevant
policies)
Strathfield MC v Poynting (2001) 116 LGERA 319 (development standards)
Stutchbury v Pittwater Council (1999) 105 LGERA 1 (council orders)
Styles v Wollondilly SC (2002) 120 LGERA 172 (council meeting procedures)
Sutherland SC v Heyman (1985) 157 CLR 424 (actionable liability)
Sutton v Warringah SC (1987) 16 NSWLR 498 (delegation of functions)
Swadling v Sutherland SC (1994) 82 LGERA 431 (status of consent conditions)
Sydney CC v Claude Neon (1989) 15 NSWLR 724 (owners consent to DA)
Sydney CC v Griffiths (1985) 55 LGRA 221 (dismissal of a councillor)
Sydney CC v Reid (1994) 84 LGERA 381 (status of local government)
Sydney CC v University of Technology, Sydney (1992) 78 LGRA 200 (exemption from rates)
Sydney MC v Campbell [1925] AC 338 (exercise of council functions)
Sydney Turkish Islamic Centre and Mosque Association v Sydney City Council (1989) 68 LGRA 143
(exemption from rates)
Telstra Corp v Hornsby Council (2006) 146 LGERA 10 (ESD principles)
The Dubler Group v Ku-ring-gai Council (2004) 133 LGERA 438 (applicable law at determination of
appeal)
Thompson v Randwick MC (1950) 81 CLR 87 (exercise of councils functions)
Thornpast v Parramatta CC (2004) 137 LGERA 205 (development standards)
Toomelah Co-Operative v Moree Plains Shire Council (1996) 90 LGERA 48 (exemption from rates)
Trustees for Gospel Trust No. 1 v Brisbane CC (2005) 143 LGERA 99
Twist v Randwick MC (1976) 136 CLR 106 (admin. law principles)
Valantine v Muswellbrook SC & Ors [2008] NSWSC 1300 (L G Code of Conduct issues)
Van Haasteren v South Sydney Council (2000) 109 LGERA 252 (council orders)
Vanmeld v Fairfield CC (1992) 75 LGRA 374 (public participation)
Vaughan-Taylor v David Mitchell-Melcann and Minister for Minerals and Energy (1991) 73 LGRA 366
(existing use)
Wallarah Minerals v Mulwaree SC (2000) 111 LGERA 132 (development standards)
Warringah SC v Caltex Oil (Australia) (1989) 68 LGRA 206 (existing use)
Warringah SC v Pittwater PC (1992) 76 LGRA 231 (exercise of council functions)
Warringah SC v Raffles (1978) 38 LGRA 306 (characterisation)
Warringah SC v Sedevcic (1987) 10 NSWLR 335 (exercise of discretion by Court)
Waverley MC v P E Bakers (1985) 54 LGRA 309 (validity of consent conditions)
Weal v Bathurst CC (2000) 111 LGERA 181 (proper consideration of relevant matters)
Wentworth Park Sporting Complex Trust v Leichhardt Council (2003) 125 LGERA 440 (exemption
from rates)
White v Ryde MC [1977] 2 NSWLR 909 (admin law principles)
Willoughby CC v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 (modification of
20
consents)
Windy Dropdown v Warringah Council (2000) LGERA 299 (modification of consents)
Wingecarribee SC v Pancho Properties (2001) 117 LGERA 104 (development standards)
Wollongong CC v Fregnan (1980-82) 46 LGRA 391 (actionable liability)
Woollahra MC v Banool Developments (1973) 129 CLR 138 (existing use)
Woolworths v Pallas Newco (2004) 136 LGERA 288 (characterisation of a use is it a jurisdictional
fact to be determined by the Court?)
Wotton v Wingecarribee SC (1989) 68 LGRA 38 (characterisation)
Wykanak v Rockdale CC (2001) 113 LGERA 335 (council decision making validity of decisions)
Wyong SC v Shirt (1980) 146 CLR 40 (actionable liability)
YMCA v Sydney City Council (1954) 20 LGR 35 (exemption from rates)