Latest news with #LandandEnvironmentCourt
West Australian
24-07-2025
- Business
- West Australian
Coal mine stalled in 'groundbreaking' climate decision
A controversial coal mine expansion has hit a stumbling block after a court found possible climate change harms had not been fully considered, a ruling that could have implications for other fossil fuel projects. A community environment group from the NSW Hunter region successfully challenged an Independent Planning Commission decision to allow the expansion of the Mount Pleasant open-cut mine, near Muswellbrook. Operator MACH Energy applied to deepen the mine and double its output, extending its life for 22 years to enable the extraction of an additional 406 megatonnes of coal. The commission consented to the expansion in September 2022 and a judicial review brought by the community group was dismissed by the Land and Environment Court two years later. Denman Aberdeen Muswellbrook Scone Healthy Environment Group took its fight to the Court of Appeal, arguing the environment court had erred and the commission failed to consider the likely climate effects in the region. The Court of Appeal on Thursday found the commission had accepted the project's emissions would contribute to global climate change, but there was nothing in its reasons to indicate it had considered the local impacts. The commission's consent referred to Australia's obligations under the Paris Agreement, noting that the mine's emissions would be "accounted for" in the countries where the coal was burnt. "The commission's obligation to consider the likely impacts of the development on the natural and built environment in the locality of the mine ... required it to address the potentially adverse effects of climate change in the locality," the judgment said. "This obligation could not be discharged by general references to the effects of global warming on the planet generally." Environmental lawyer Elaine Johnson, the director of the firm that represented the community group, said the court's decision was groundbreaking. "The NSW Court of Appeal has just confirmed that the local impacts of climate change on communities are a direct consequence of continued fossil fuel production in NSW," Ms Johnson said in a statement. "From today, climate harm must be specifically considered when deciding proposals for fossil fuel expansions." NSW Greens MP Sue Higginson also said it was a significant legal breakthrough. "With this decision, the government must now reckon with the fact that they have a responsibility to the whole planet when it comes to allowing more coal to be dug up and burnt," Ms Higginson said. "The status quo of setting emissions reduction targets domestically and then exporting the climate crisis is now broken with this decision." The case will be returned to the Land and Environment Court to consider and MACH Energy was ordered to pay the costs of the appeal. The company was contacted for comment.
Perth Now
24-07-2025
- Business
- Perth Now
Coal mine stalled in 'groundbreaking' climate decision
A controversial coal mine expansion has hit a stumbling block after a court found possible climate change harms had not been fully considered, a ruling that could have implications for other fossil fuel projects. A community environment group from the NSW Hunter region successfully challenged an Independent Planning Commission decision to allow the expansion of the Mount Pleasant open-cut mine, near Muswellbrook. Operator MACH Energy applied to deepen the mine and double its output, extending its life for 22 years to enable the extraction of an additional 406 megatonnes of coal. The commission consented to the expansion in September 2022 and a judicial review brought by the community group was dismissed by the Land and Environment Court two years later. Denman Aberdeen Muswellbrook Scone Healthy Environment Group took its fight to the Court of Appeal, arguing the environment court had erred and the commission failed to consider the likely climate effects in the region. The Court of Appeal on Thursday found the commission had accepted the project's emissions would contribute to global climate change, but there was nothing in its reasons to indicate it had considered the local impacts. The commission's consent referred to Australia's obligations under the Paris Agreement, noting that the mine's emissions would be "accounted for" in the countries where the coal was burnt. "The commission's obligation to consider the likely impacts of the development on the natural and built environment in the locality of the mine ... required it to address the potentially adverse effects of climate change in the locality," the judgment said. "This obligation could not be discharged by general references to the effects of global warming on the planet generally." Environmental lawyer Elaine Johnson, the director of the firm that represented the community group, said the court's decision was groundbreaking. "The NSW Court of Appeal has just confirmed that the local impacts of climate change on communities are a direct consequence of continued fossil fuel production in NSW," Ms Johnson said in a statement. "From today, climate harm must be specifically considered when deciding proposals for fossil fuel expansions." NSW Greens MP Sue Higginson also said it was a significant legal breakthrough. "With this decision, the government must now reckon with the fact that they have a responsibility to the whole planet when it comes to allowing more coal to be dug up and burnt," Ms Higginson said. "The status quo of setting emissions reduction targets domestically and then exporting the climate crisis is now broken with this decision." The case will be returned to the Land and Environment Court to consider and MACH Energy was ordered to pay the costs of the appeal. The company was contacted for comment.
The Age
13-07-2025
- Business
- The Age
Court paves way for demolition of Sydney waterfront mansion
Land and Environment Court Commissioner Peter Walsh said in his original decision in 2024 that any contribution of the existing building to the HCA 'is not high in my opinion', in light of a range of factors including changes over time to the structure. He said the significance of the HCA 'would be maintained even with the demolition of the existing building'. '[It] does not seem to me that there is substantial evidence to suggest that the building could not be retained and possibly adapted to include a perhaps further 'stripping back' to the early built form,' Walsh said. 'However, this move would seem to me to bring only very limited benefit in heritage conservation terms.' No blanket prohibition The council noted during the first round of court hearings in October that the Leichhardt Development Control Plan included an objective to 'ensure that heritage items or buildings in a heritage conservation area are only demolished where they cannot be reasonably retained or conserved'. But the commissioner said this could not be interpreted as a 'blanket policy' because it was at odds with the Inner West Local Environmental Plan, which trumped it. That plan permits demolition of a heritage item or building in a heritage conservation area with development consent. A heritage impact statement submitted as part of the development application said the existing structures were 'of low merit, of locally atypical form, and without heritage significance'. Foreshore development The appeal was focused on a series of technical legal questions. The council contended that the commissioner had fallen into legal error, including by granting consent for a development that would encroach into the foreshore area, as the original building did. The appeal argued that the proposed development was prohibited, and consent could only have been granted if it involved an 'extension, alteration or rebuilding of an existing building'. The chief judge said this was not the case. The land was zoned general residential and the proposed development 'was not prohibited on the site under any circumstances', he said. A development standard prevented consent from being granted if the proposal encroached into the foreshore area, but there is some flexibility in how development standards are applied. Development consent may be granted in some cases even if a proposal contravenes such a standard, as it was granted in this case. 'Better ways to mediate disputes' Following changes to planning laws in 2017, development applications in Greater Sydney and Wollongong are decided by council staff or local planning panels rather than elected councillors. Loading Darcy Byrne, mayor of Inner West Council, said: 'Councillors are legally removed from involvement in development applications, so we've had no role in this legal matter, but we certainly accept the court's determination. 'In my view, it's important that we reduce the frequency and cost of matters ending up in the Land and Environment Court. 'There are better and less costly ways to mediate disputes and determine development applications.' In May, the court granted development consent for alterations and additions to a heritage-listed Victorian Georgian harbourside villa in Balmain's Campbell Lane and the construction of two attached dwellings behind it. But the court refused consent this month for a controversial proposal to convert a 32-bedroom boarding house in Paddington into four luxury homes. 'The proposal would result in the unacceptable loss of affordable rental boarding house accommodation, and it is reasonable to seek its continued operation,' the court said.
Sydney Morning Herald
13-07-2025
- Business
- Sydney Morning Herald
Court paves way for demolition of Sydney waterfront mansion
Land and Environment Court Commissioner Peter Walsh said in his original decision in 2024 that any contribution of the existing building to the HCA 'is not high in my opinion', in light of a range of factors including changes over time to the structure. He said the significance of the HCA 'would be maintained even with the demolition of the existing building'. '[It] does not seem to me that there is substantial evidence to suggest that the building could not be retained and possibly adapted to include a perhaps further 'stripping back' to the early built form,' Walsh said. 'However, this move would seem to me to bring only very limited benefit in heritage conservation terms.' No blanket prohibition The council noted during the first round of court hearings in October that the Leichhardt Development Control Plan included an objective to 'ensure that heritage items or buildings in a heritage conservation area are only demolished where they cannot be reasonably retained or conserved'. But the commissioner said this could not be interpreted as a 'blanket policy' because it was at odds with the Inner West Local Environmental Plan, which trumped it. That plan permits demolition of a heritage item or building in a heritage conservation area with development consent. A heritage impact statement submitted as part of the development application said the existing structures were 'of low merit, of locally atypical form, and without heritage significance'. Foreshore development The appeal was focused on a series of technical legal questions. The council contended that the commissioner had fallen into legal error, including by granting consent for a development that would encroach into the foreshore area, as the original building did. The appeal argued that the proposed development was prohibited, and consent could only have been granted if it involved an 'extension, alteration or rebuilding of an existing building'. The chief judge said this was not the case. The land was zoned general residential and the proposed development 'was not prohibited on the site under any circumstances', he said. A development standard prevented consent from being granted if the proposal encroached into the foreshore area, but there is some flexibility in how development standards are applied. Development consent may be granted in some cases even if a proposal contravenes such a standard, as it was granted in this case. 'Better ways to mediate disputes' Following changes to planning laws in 2017, development applications in Greater Sydney and Wollongong are decided by council staff or local planning panels rather than elected councillors. Loading Darcy Byrne, mayor of Inner West Council, said: 'Councillors are legally removed from involvement in development applications, so we've had no role in this legal matter, but we certainly accept the court's determination. 'In my view, it's important that we reduce the frequency and cost of matters ending up in the Land and Environment Court. 'There are better and less costly ways to mediate disputes and determine development applications.' In May, the court granted development consent for alterations and additions to a heritage-listed Victorian Georgian harbourside villa in Balmain's Campbell Lane and the construction of two attached dwellings behind it. But the court refused consent this month for a controversial proposal to convert a 32-bedroom boarding house in Paddington into four luxury homes. 'The proposal would result in the unacceptable loss of affordable rental boarding house accommodation, and it is reasonable to seek its continued operation,' the court said.
Sydney Morning Herald
10-06-2025
- Business
- Sydney Morning Herald
‘Reckless and cavalier': The inner west dream home facing the wrecking ball
In the case of the home built by the Malass family, Strathfield Council opted for the latter option and has spent five years entangled in Land and Environment Court proceedings as a result. In 2023, Rabi Malass said the court battle had crippled him financially and his plumbing business was in voluntary administration. 'I have spent $700,000 in legal fees associated with my home. I am now facing bankruptcy and I can no longer afford legal representation,' Malass said. Despite the court making demolition orders last year, the house still stands as legal wrangling continues. Strathfield Council is also fighting to recoup hundreds of thousands of dollars awarded in legal costs. The council has thrown its weight behind mounting calls for the state government to intervene to tighten the framework for issuing BICS. Hot property Rabi Malass' woes can be traced back to 2017, when his wife, Sarah Malass, snapped up a generous block in one of Strathfield's most sought-after pockets for $2.8 million. With a DA already signed off for a knock down and rebuild of the Boden Avenue residence, the stage was set for the couple to build their dream home. But the approved plans weren't quite what the couple had envisaged. They alleged they engaged an architect to redesign the facade and layout, and secure council approval for the changes. By 2020, as Sydney was plunged into COVID lockdown, the couple were yet to receive council's sign-off. Loading Malass was growing increasingly frustrated. He said he needed to get on with construction to provide work for his furloughed staff during the COVID lockdowns, and the council had become 'uncontactable' despite multiple calls. Malass told the court his architect assured him council was not expected to object to the 'minor changes' he was requesting, but cautioned he should wait for the approvals – otherwise he might need a building information certificate. In a decision that would prove disastrous, Malass ploughed ahead with construction. He told the court he was shocked to later discover his architect had never applied to modify the development approval at all. Growing pains By September 2020, council leapt into action following a flurry of complaints from neighbours. The council issued a stop-work order, citing an 'extensive amount of unauthorised development' at the three-quarters finished house. The warring parties have spent the five years since then at loggerheads in the Land and Environment Court as the council seeks to have the home demolished and the Malass family fight desperately to keep it standing. Early in the proceedings, two judges both made orders that construction must cease until the dispute was resolved, apart from limited works to make the home waterproof and physically secure. But a council inspector told the court he started to suspect something was amiss when he spied a skip bin 'filled to the rim with building materials' at the property. On another occasion, he spotted a worker dressed in high-vis gear, who hastily retreated into the house when the pair made eye contact. The plot thickened as a neighbour claimed they saw workers coming in and out of the property almost daily, along with the sound of drilling, with dust and smoke emanating from the home. Between June 2021 and September 2022, the council inspected the property on 10 occasions, observing 'significant building activity' occurring. The workers were productive, lining the butler's pantry, installing black marble tiles in the bathroom, a bathtub in the steam room, and parquetry in the cinema room. Council's unwelcome visits riled Rabi Malass, who set up CCTV cameras to show that inspectors were trespassing on his land. Sarah Malass was charged with and pleaded guilty to multiple contempt of court charges, including continuing the works even after the contempt charges had been laid. Council complained to the court that the contempt resulted in the home being completely finished and the Malass family moving in unlawfully. The family obtained a 'private advantage' not enjoyed by people who complied with the law, the council argued. Ahead of sentencing, the court ruled there should be a full inspection of the home. That wouldn't prove a straightforward undertaking. When council inspectors arrived at the agreed time, Rabi Malass was otherwise engaged on the phone. As a result, they had less than 20 minutes to inspect the property, leaving the job 'rushed, incomplete and not carried out properly'. Rabi Malass protested that the council inspectors had taken 'hundreds of photos', and one of them was wearing a body worn camera (the council maintained it was for safety and not collection of evidence). Sarah Malass told the court she had a low level of culpability and her conduct should not be viewed as flouting the court's authority, but a 'failure to exercise control' over construction at the site. The then-34-year-old also said she had a limited understanding of works allowed to be undertaken. In November 2022, Justice John Robson fined Sarah Malass $20,000 for contempt. Robson accepted she was relatively unsophisticated in relation to building matters, had issues with anxiety, had pleaded guilty and apologised. However, he found the contempt was objectively serious, there was not any appropriate reason given for it, and Malass had experienced legal representation acting for her. 'Sarah Malass' conduct was wilful, rather than inadvertent or technical,' he said. Robson also rejected suggestions Malass lacked the means to pay a fine because she was unemployed and her husband's business had suffered a downturn, noting she now owned a substantial three-storey residence. 'The case came to a head in March last year, as Justice Nicola Pain found that Sarah Malass had breached the Environmental Planning and Assessment Act by failing to comply with the development consent, construction certificate, stop-work order and a compliance order. 'The respondent and her family are living without an occupation certificate in an unlawful dwelling that is substantially larger than what was approved,' Pain noted. Loading Among the transgressions identified by council were the additions of a spa room, playroom, parking space, gym and cool room, along with a building footprint and height larger than what was approved and a landscaped area of four per cent instead of 43 per cent. Another sticking point was the basement, which the court agreed amounted to an unapproved third storey because it sat well above the ground floors of other buildings on the street. 'The respondent has undermined orderly development being carried out in accordance with the EPA Act and gained a private advantage in doing so, with little to no regard for the neighbours of the property and the local area generally,' Pain said. Pain made orders for the family to vacate the property and demolish the unlawful works, requiring compliance with the original development approval. 'Whether I should make orders requiring rebuilding will be discussed with the parties,' Pain said. Pain warned that the demolition and possible rebuilding work would be substantial and costly. Sarah Malass was also ordered to pay council's costs of more than $157,000. The Malass family is now pursuing a last-ditch bid for a solution that would salvage some of the home. Sarah Malass has lodged a new development application and is seeking a building information certificate to allow the family use of the existing home, partial demolition of its first floor, and some construction works. The applications were knocked back by the Strathfield Local Planning Panel in July last year, in a decision that is now under appeal before the Land and Environment Court. 'That appeal is ongoing and as such council is not able to comment further,' a spokeswoman for Strathfield Council said. Last month, the court dismissed a motion by Strathfield Council to have the case thrown out as an abuse of process because the fresh applications closely resemble ones that were already made in 2020 and were rejected by both the council and the court. The spokeswoman for Strathfield Council said it was continuing to pursue its costs and seek compliance with orders made by Pain in March last year. 'Council acknowledges that there may be instances where a Building Information Certificate (BIC) may be obtained as a mechanism to regularise unauthorised building works,' she said. Loading 'Having said that, it is Council's clear position that persons carrying out development should at all times do so in accordance with a validly issued approval.' She said the council was willing to work with the state government to undertake reforms that would 'enhance mechanisms' available to them to deal with unauthorised work and maintain the community's confidence that planning laws are being adhered to. The Malass family did not respond to the Herald's request for comment.
