Thrilled to have assisted our client in obtaining development consent for a new 3-storey boarding house in Penrith.
Contentions raised by Council included arguments relating to:
Overall, very pleased with the result.
The judgement in full can be found here.
Pleased to have assisted our client in successfully appealing the refusal of a development application for the demolition and construction of a 108-place childcare centre in the Parramatta City Council LGA that consisted of a two-level childcare centre over basement parking.
The contentious issues in the proceedings not only included several planning contentions including streetscape and internal amenity issues, but also revolved around allowance for prospective road widening, arboricultural issues, acoustic issues, stormwater issues and the impact of stormwater design on unencumbered outdoor play areas, as well as an air quality issue given the closeness of the proposed centre to the M4 motorway.
Overall, a very pleasing result.
The decision can be found here.
There are sometimes threshold moments in ones life and professional career.
One of those definitely arrived last week when I had the privilege of moving my son Emile to admission into the roll of solicitors of the Supreme Court of NSW.
What truly a memorable day for both of us
I now welcome, with much pride, Emile both into the legal profession and into the already wonderful assembly of team members at Macquarie Lawyers as a legal practitioner.
– Pierre Saab, Principal/Director of Macquarie Lawyers
Once again, pleased to have assisted our client in obtaining Development Consent for an 80-place child care centre with basement parking in the Blacktown Council LGA.
The contentions raised by Council included arguments relating to:
This link provides a copy of the judgement in the matter.
Pleased to have assisted our client in obtaining Development Consent for a staged Torrens Title subdivision–and a subsequent Community Title subdivision to ultimately allow for the development of six dual occupancies and a single dwelling–over an extensive parcel of land in the Parramatta LGA.
The matter was before the Court and contained a number of significant contentions, including the staging of subdivisions, the issue of a private versus public road, significant landscaping issues, bushfire issues (being partially located in a bushfire protection zone), minimum lot sizes to allow dual occupancy developments, and contentions involving other Statutory authorities including RMS, RFS, Endeavour Energy, and the proximity of the petroleum pipeline.
A copy of the judgement in the matter can be found here.
Pleased to have assisted our client in obtaining approval through the Land & Environment Court for a boarding house development in Harris Park.
There were significant issues relating to heritage, bulk and scale and dedication of land to council in the rear laneway which materially affected the area of the site that could be included as part of open space in the development application.
The matter was also complicated by the issues surrounding the amendments to the Affordable Housing SEPP which essentially precluded this form of development in an R1 zone. The ambiguity surrounding the savings provisions of the amending SEPP had to be dealt with as a fundamental legal issue before the balance of the merit issues could be resolved. The issues that had to be also overcome included, setbacks, parking and disabled access.
We worked through the issues with the legal representatives for Parramatta City Council during the court process to achieve an excellent outcome for the client given the challenges of this very small parcel that adjoined multiple heritage items in a significant heritage conservation area.
It was a great result for the client and, as always, I look forward to seeing the finished product.
The full judgement can be found here.
Pleased to have assisted our client in obtaining approval through the Land & Environment Court for a town house development in the suburb of Hillsdale.
As can be seen from the judgment here, the issues that had to be overcome included overshadowing, height, scale and setback.
There was also a relatively unusual contention relating to “toxic risk” associated with the Botany Industrial Park. The development had to be located and constructed within “toxic injury risk contours” that have been imposed by the NSW Department of Planning to restrict the density of any development in the vicinity of the Botany Industrial Park.
We worked through the issues with the legal representatives for Bayside Council during the court process to achieve an excellent outcome for the client given the challenges of the location.
It was a great result for the client and I look forward to seeing the finished product.
The Particulars for Regulated Designs Order 2021 came into effect 1 July 2021, outlining an array of additional required particulars for regulated designs. These mostly relate to the effect any excavation may have on neighbouring properties, with some of the highlights including (in summary):
The full list can be found in the Order itself, but among the rest of the new requirements that last one stands out. According to Schedule 2, section 3(a) of the Order, regulated designs must now include evidence of a registered easement over neighbouring properties to install ground anchors. This means a licence or deed is no longer enough.
There is also no differentiation between temporary ground anchors or permanent ground anchors, which means that any ground anchor will require an easement.
Does This Apply to Me?
There is an exception to this rule if the neighbouring land in question is a public road where consent is given under section 139 of the Roads Act 1993 by the relevant authority.
Otherwise, if your development requires you to install any ground anchors that extend into neighbouring land and building work commenced on or after 1 July 2021, you will be required to obtain a registered easement in order to install those ground anchors.
This change comes with an advantage, but also major disadvantages that developers will have to plan around.
The Advantage: Security
What happens if the neighbouring property in question is sold to a new owner? With a licence, this can turn into an unexpected hurdle. Easements, on the other hand, are registered to the title of the property. They transfer to the new owner along with the property and stay active.
On the topic of ways licences can come to an end, easements can be perpetual (unlike licences) and they can’t be terminated by default. Between a licence and a registered easement, the easement is by far the most secure option for a developer.
Also, having a registered easement over a property gives you an interest in the land as identified in the easement instrument, and carries less restriction regarding how you use or access the land.
The Disadvantages: Time & Cost
Is the neighbouring land being leased or mortgaged? The lessee or mortgagee will have to give their consent.
Is the property under a strata title? The owners corporation is required to pass a special resolution before they can grant you your easement.
Is it owned by a community, neighbourhood or precinct association? They have to pass a resolution unanimously before you get your easement.
And then there comes the cost of paying compensation for the easement, the valuation costs to determine the compensation and the legal costs for you and the neighbouring property, for which you are liable.
Add to this the fact that easements aren’t binding until they’re registered and all this extra time and cost is starting to add up. That’s assuming consent is granted or the resolutions pass. If not, then you may need to apply to the Supreme Court for an easement under section 88K of the Conveyancing Act 1919, extending the delay even further.
It is essential that you plan around the extra time it takes to obtain an easement. Evaluate the need for ground anchors as soon as you can so you can commence the process of obtaining and registering the easement as early as possible. Be prepared for the time it takes for the owners and interested parties of the land to grant the easement, including negotiations and, if necessary, application to the Supreme Court.
If you’re concerned about whether your designs still meet this requirement or any others outlined in the Particulars for Regulated Designs Order 2021, we’re happy to take your call.
Happy to have assisted another small developer who has tried to dip its toes into property development by making an application to Council for a duplex development with granny flats at the rear of each proposed dwelling.
Council initially resisted the application, because whilst the development was permissible in the R2 residential zone, the building of the duplex and granny flats all at the same time (and before subdivision) now categorised the development as multi dwelling housing which became prohibited in the zone.
Proceedings were commenced in the Land & Environment Court, and Council insisted that the duplex had to be constructed and have a Final Occupation Certificate issued before the granny flats could be built, which would have made the construction of the granny flats in such a confined space difficult and prohibitive.
Thankfully, as part of the court process, Council were persuaded to issue a staged development consent where the duplexes and granny flats would be built at the same time, but the granny flats not finally completed (i.e. the kitchen still to be installed), which got the client over the permissibility argument and allowed a development consent to be issued.
A difficult case for a small-time developer, but a very pleasing result in the end.
We look forward to seeing the final product once it is finished.
Pleased to have assisted our client in obtaining approval through the Land & Environment Court for a boarding house development in Belmore Road Randwick under the Affordable Housing SEPP.
The application was originally refused by Randwick Council.
As can be seen from the judgment, the issues that had to be overcome included maintaining a heritage façade, parking, overshadowing, accessibility, height, scale and character, all on a very narrow and constrained site.
We worked through the issues with Council in the court process to achieve an excellent outcome for the client and a development that will sit well in its location.
It was a great result for the client and I look forward to seeing the quality finished product once it is constructed.
You can find the full judgement here.
