In the Zone - April 2025

Welcome to our first edition of ‘In the Zone’ for 2025.

In this edition we summarise some interesting decisions in Class 1 of the Land and Environment Court about providing for the housing needs of the community, whether a hairdressing salon will be used for “creative purposes” and the importance of managing bushfire risk. We also highlight a wide variety of decisions including challenges to Council and Ministerial decisions, a discrimination claim against Council, civil liability of head contractors, developers and builders, use of AI in Court proceedings, and a native title claim. 

Important changes to biodiversity and protection of the environment legislation have been made and there are several amendments proposed to the Environmental Planning and Assessment Act 1979 to address recent decisions of the Court.

Overall, developments in environment and planning law have not slowed down in the New Year, and we know that this edition of In the Zone will help you stay up to date with some important developments.

We guarantee you that certain song lyrics will be stuck in your head after you read this edition!

Finally, I would like to congratulate Alan McKelvey and Catherine Morton for being recognised in the latest Doyle's Guide as Leading Town Planning & Development Lawyers and David Gunter for being recognised as a rising star in the Planning & Environment Law Rising Stars category.

Land and Environment Court

Class 1 appeal dismissed despite provision of consent orders by the parties—with the lyrics of The Rolling Stones and Coldplay playing a role in statutory interpretation of the zone objective “housing needs of the community”

Billyard Avenue Developments Pty Limited ATF Billyard Avenue Development Trust v The Council of the City of Sydney [2024] NSWLEC 1825 by Walsh C (19 December 2024) [view full decision here]

Background

The Applicant lodged an appeal against the deemed refusal of a development application for the demolition of two existing apartment buildings comprised of 28 apartments and the construction of two new residential flat buildings comprised of 20 apartments (DA). The DA was supported by a clause 4.6 request to vary the height of building development standard in clause 4.3 of the Sydney Local Environmental Plan 2012 (SLEP).

The parties participated in a section 34 conciliation conference, which commenced with site views from a large number of neighbouring residential apartment blocks, where residents made submissions that the proposed development reduced the number of apartments available in the area and made them unaffordable for people currently living there.

Prior to the hearing the parties provided proposed consent orders to the Court upholding the appeal and granting consent to the DA subject to agreed conditions. The Court’s Practice Note - Class 1 Development Appeals sets out the procedural requirements for consent orders and requires the parties to provide evidence to allow the Court as consent authority to determine whether it is lawful and appropriate to grant development consent, having regard to the whole of the relevant circumstances.

Whether the proposed development ‘provided for the housing needs of the community’

The terms of clause 4.6(4)(a)(ii) of the SLEP (as applied to the DA at the time) required that in order to vary a development standard the consent authority, or in this case the Court, needed to be satisfied that “the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out”.

The first objective of the applicable R1 General Residential zone was as follows:

To provide for the housing needs of the community

While expert evidence concluded that the proposed development would provide a diversity of housing stock, lay evidence suggested that there were more ‘systemic housing supply issues and the proposal would have adverse social impacts’ (at [86]).

In considering, the interpretation of “need” in the objectives, Commissioner Walsh had regard to common usage of the term, including in well-known Coldplay and Rolling Stone lyrics (at [75]-[77)):
 
I now turn to some examples of use of the terms need and want, in practical use. Directly contrasting use of the terms is prominent in popular culture, for example. One example is use of the terms need and want, in popular music standards such as the Rolling Stones’ “You Can't Always Get What You Want”:

“You can't always get what you want

But if you try sometimes, well, you might find

You get what you need …”

Another popular music standard which uses both terms together is the Coldplay song “Fix You”:

When you try your best, but you don't succeed“

When you get what you want, but not what you need …
…
 
Stuck in reverse”

If I focus on the text alone, these dictionary definitions and popular common usage interpretations differentiate rather than correlate the two terms need and want.

The Commissioner also considered the terms in the context of the SLEP and the Environmental Planning & Assessment Act 1979 (EPA Act) more broadly, noting at [85]:

…there is a clear indication of ambition relating to social and economic welfare including the principles of ecologically sustainable development principles (ESD) (as per s 6(2) of the Protection of the Environment Administration Act 1991), which introduce such matters as intergenerational equity. Likely social impact is also directly referenced as a consideration in DA evaluation under s 4.15(1) of the EPA Act.

Decision

The Court was not satisfied that the proposed development was in the public interest because it would (1) decrease housing provision overall and (2) decrease the availability of more affordable housing and was therefore inconsistent with the first objective of the R1 Zone. Accordingly, the Applicant’s clause 4.6 request could not be accepted, and the appeal was dismissed because there was no power to grant consent due to the contravention of the height of buildings standard in the SLEP.   

This decision was made despite the consent orders provided by the parties, which provided for the grant of development consent subject to conditions. 

Key takeaways

This decision is a reminder that, in a Class 1 appeal, even though the parties may agree to an outcome, the Court is the consent authority and must make its own determination. Further, consistency with zone objectives will be important for any application made to vary a development standard under clause 4.6. Any objective to provide for housing needs (not wants) of the community, will involve consideration of issues such as the housing crisis, inter and intra generational equity and spatially-based disadvantage.  

Unlocking Creative Potential: Court Decision Opens the Door for Hair and Beauty Salons in Industrial Zones

Solid Gold Custodians Pty Ltd ATF SGH Property Trust v Inner West Council [2024] NSWLEC 1835 by Gray C (20 December 2024) [view full decision here]

Background

In Solid Gold Custodians Pty Ltd ATF SGH Property Trust v Inner West Council [2024] NSWLEC 1835 the Court examined whether a hair and beauty salon could be permitted within an industrial zone, despite the general prohibition on commercial premises.

In this case, a hair and beauty salon was proposed within an existing building in the E4 General Industrial zone under the Inner West Local Environmental Plan 2022 (IWLEP). The key issue in the appeal was whether a hair and beauty salon qualifies as a use for “creative purposes” within the meaning of clause 6.21(3) of the IWLEP.

Decision

Commissioner Gray commenced her judgment by making the following interesting observation:

From the mohawk to the ‘short back and sides’, a person’s hairstyle can range from an expression of personality to a demonstration of conformity. Certain styles come and go, and over history particular hairstyles have been representative of a class or occupation, symbolic of a social movement or a requirement of a religious persuasion. It is clear that the rich history of hairdressing traverses eras and cultures, and marks social movements and historic events. Despite this rich history, hairdressing finds itself in the centre of a debate that requires it to be tied to words in a planning instrument. The hearing of this appeal was principally concerned with whether a hair and beauty salon is a business premises that is “used for creative purposes”.

The Commissioner ultimately held that the proposed development met the requirements of clause 6.21(3) and was development used for creative purposes for the following three reasons:

1.  Hairdressing involves skilful design.
2. For both hairdressing and a beauty salon, creativity is applied in the design process to achieve a diversity of designs and styles.  That the dressing of hair to achieve a particular style is a creative endeavour is also supported by the awards received by hairdressers.
3. The style applied at a hair or beauty salon is a form of creative self-expression for the wearer.

The Commissioner rejected the Council’s argument that there was a requirement for the creative purpose to be the dominant use and found that the question of whether development “will be used for creative purposes” was not one of land use characterisation but concerns whether the particular form of the development meets the requirement in clause 6.21.

The appeal against the Council’s refusal of development consent was upheld.

Key takeaways

The judgment provides a useful example of how the Court approaches the construction of a clause such as clause 6.21 of the IWLEP, which effectively overcomes a prohibition contained in a Land Use Table provided the requirements of the clause are met.   It also demonstrates how the Court will construe a phrase—in this instance “creative purposes”—in circumstances where there is no express statutory definition.

DA for Rural Land Sharing Community refused because of bushfire safety and access concerns

Martin v Tweed Shire Council [2025] NSWLEC 1076 by Targett C (13 February 2025) [view full decision here]

In our last edition of In the Zone, we looked at a decision of the Land and Environment Court, which highlighted the need for development proposed on bushfire-prone land to be designed to not only appropriately manage bushfire risk while ensuring the safety of future residents, but also to ensure the provision of appropriate and safe access to emergency personnel and vehicles in the event of a bushfire.

In Martin v Tweed Shire Council [2025] NSWLEC 1076 (Martin) we acted for Council in a Class 1 appeal in which the Court has again recognised the need for development to appropriately respond to the bushfire constraints of the subject site.

Background

Martin involved an appeal against Tweed Shire Council’s refusal of a development application for a rural land sharing community under the State Environmental Planning Policy (Primary Production) 2021 (Primary Production SEPP).  Several dwellings and structures the subject of the application had already been constructed on the site.   Approximately two-thirds of the site was covered with vegetation and was mapped as “Bushfire Prone Land – Vegetation Category 1 and 3”.

Issues raised by the Council in the appeal included whether the proposed development was permissible under the Primary Production SEPP.  A contention was also raised about whether the proposal made adequate provision for bushfire management as required by clause 6(c) of Schedule 5 of the Primary Production SEPP and s 4.14(1) of the EPA Act. 

Key issue – the requirement for alternate access

A key issue in dispute was whether the proposed development required a secondary access road to and from the subject site, as was recommended by the Rural Fire Service (RFS) when consulted on the proposed development. 

Council’s bushfire expert, Mr Graham Swain, gave evidence that an alternative access should be provided to the development site, given the single access road relied on was unsafe and would be overrun by fire in the event of a bushfire.  The Applicant relied on a certificate by a person recognised by the RFS as a qualified consultant in bush fire risk assessment relevantly stating that the proposed development conforms to Planning for Bush Fire Protection 2019 (PFBP).

The decision

Commissioner Targett dismissed the appeal because she was not satisfied that:

1.  the performance solutions proposed by the Applicant met the firefighting access performance criteria or the intent of the relevant provisions of the PFBP, or
2. that there would be adequate provision for bushfire management under clause 6(c) of Schedule 5 of the Primary Production SEPP.

On the Applicant’s reliance on the certificate provided by its expert that the development conformed with PFBP, Commissioner Targett held that the consent authority was required to exercise its discretion as to whether to grant development consent and was not compelled to do so, even if provided with a certificate issued in accordance with s 4.14(1) of the EPA Act.

The Commissioner was not satisfied that the Applicant’s performance solutions provided an acceptable solution for access. It was held that access to the site was deficient for the purpose of providing safe access and egress to the site during a fire and managing bushfire risk and that the DA did not adequately address bushfire risk. The provision of secondary access was not a matter which the Commissioner considered could be resolved by the imposition of a condition of consent. 

Key takeaways

The decision in Martin highlights again the need for development proposed on bushfire-prone land to be designed to not only appropriately manage bushfire risk while ensuring the safety of future residents, but also to ensure the provision of appropriate and safe access to emergency personnel and vehicles in the event of a bushfire.

Land and Environment Court rejects “novel” challenge to validity of development consent on grounds of apprehended bias

Reisinger v Placek [2025] NSWLEC 11 by Pain J (25 February 2025) [view full decision here]

Background

On 3 October 2024, Mr Reisinger (Applicant) commenced judicial review proceedings in Class 4 of the Land and Environment Court, seeking orders that:

1.  a decision by the Council to approve a development application (2024 DA) submitted by his neighbours (First and Second Respondents) for an inclinator on their land in Vaucluse was invalid and of no effect on the grounds of apprehension of bias, and
2. the Court, in effect, direct the Council to refer the 2024 DA to either the local planning panel or another person who is not an employee of the Council, for re-assessment.

 The 2024 DA was largely identical to a development application submitted by the First and Second Respondents in 2023 (2023 DA), which was determined by Council by a grant of development consent.

The 2023 DA was previously the subject of judicial review proceedings commenced by the Applicant (2023 Proceedings), which Council actively defended. The 2023 Proceedings were ultimately discontinued by the Applicant before judgment was delivered, with no finding as to any fact or error in Council’s decision to approve the 2023 DA.

Issue

The Applicant’s challenge in the current proceedings was based on one single ground of review, relying entirely on an asserted breach of the principle in R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 at 35-36 (Hardiman). That is: that an administrative decision-maker should refrain from taking an active role in proceedings because of the risk that doing so creates an apprehension of bias in subsequent applications to it relating to the same subject matter (the Hardiman Principle).  A principal purpose of the Hardiman Principle is to preserve the impartiality of a statutory decision-maker in subsequent decisions made (after error by the decision-maker has been found).

The issue before the Court was whether, in light of Council’s active involvement in the 2023 Proceedings and refusal to have the 2024 DA independently assessed, the decision by Council to approve the 2024 DA should be liable to a declaration of invalidity because a fair-minded lay observer might apprehend that Council might not have brought an impartial and unprejudiced mind to the determination of the 2024 DA.   

Justice Pain observed:

This is the first time in this Court, and possibly any other court, where reliance has been placed solely on the Hardiman principle as founding an apprehension of bias such that a later administrative decision should be declared invalid.

…No case was cited where a court declared invalid a development consent or any other decision solely because of the participation of the decision-maker in a court hearing process to defend an earlier decision where that court process was not finalised. As already identified the cases which consider  the Hardiman principle follow the determination of substantive judicial review proceedings and concern the award of costs and whether an exclusionary remitter order ought be made. Conceptually in the absence of any substantive administrative law or similar error it is difficult to understand how the principle can be applied pre-emptively to prevent the Council, a necessary party to the proceedings as the decision-maker whose decision is challenged, from playing any active role regardless of the circumstances.

Her Honour also described the relief sought as “novel” in that it assumed the Court could make an order directing the Council to conduct the assessment of the 2024 DA in the manner sought, if the Applicant was successful.

Decision

The Court ultimately found that the Applicant had not satisfied the civil burden of proof and that the Hardiman Principle could not be applied to the assessment of the 2024 DA, where there were no findings of fact or error in respect of the approval of the 2023 DA. The Court found there was no evidence that the grant of development consent was made otherwise than in accordance with the EPA Act, nor was there any evidence of any apprehension of bias based on the relevant facts.

Giving that finding, the Court was not required to determine whether it had the power to grant the relief sought (that is, to direct a Council in the exercise of its statutory function of determining a development application).

Takeaway

A development consent is not invalid on grounds of apprehended bias simply because a Council has previously actively defended proceedings challenging the validity of a similar development consent for the same land.  Justice Pain accepted that, even if it could be said that an apprehension of bias arose as a result of a consent authority’s involvement in earlier proceedings, that could be cured by the determination of the later but similar application by a different delegate.

Landowners challenge Minister’s decision impacting water access entitlements

Phelps and Ors v Minister Administering the Water Management Act 2000 [2025] NSWLEC 4 by Robson J (14 February 2025) [view full decision here]

Background

On 22 June 2023, the Minister administering the Water Management Act 2000 (NSW) (WM Act) made the Available Water Determination Order for Regulated River Water Sources 2023 (2023 AWD). The 2023 AWD was a determination under s 59(1) of the WM Act concerning the availability of water for certain categories of water licences. It was based on new hydrological modelling for the Lower Namoi Water Source, referred to as the “Namoi Source Model”. The applicants in the proceedings were landholders who held supplementary water access licences (WALs) for the Lower Namoi Water Source. The 2023 AWD reduced their water access entitlements from 1.0ML/unit share to 0.36ML/unit share.

In these judicial review proceedings, the applicants sought review of the Minister’s decision to make the 2023 AWD on the following grounds:

• the new “Namoi Source Model” should not have been approved as a hydrological model,
• some inputs into the “Namoi Source Model” were inappropriate, and
• the decision to adopt the “Namoi Source Model” was affected by apprehended bias.

 Robson J determined that the grounds of review were not made out, finding that:

• The assessment undertaken by the decision maker was in accordance with the requirements of the Water Sharing Plan for the Upper Namoi and Lower Namoi Regulated River Water Sources 2016 (Namoi WSP).
• The Namoi WSP did not preclude consideration of floodplain harvesting and the decision maker had not erred in taking that matter into account.
• A fair-minded lay observer would not take note of the fact that the decision maker was a director of eWater Ltd (the developer of the “Namoi Source Model”), and the decision was not therefore affected by apprehended bias.

Key takeaways

These proceedings demonstrate the importance of the Minister’s water sharing plans to water access and entitlements. The Namoi WSP, which governs hydrological water modelling and long-term extraction limits for the region, was central to the applicants’ grounds in these proceedings. It also serves as a reminder of the standard required for showing apprehended bias. Being a director of a company that could have an interest in a decision does not necessarily result in apprehended bias.

NCAT

Council’s insistence on compliance with DCP planning controls held not to be discriminatory under the Anti-Discrimination Act 1977

GJE & GKA v Inner West Council [2025] NSWCATAD 11 [view full decision here]

Background

GJE had multiple sclerosis, and GKA was her carer and husband.  They submitted a development application (DA) to the Inner West Council seeking approval for renovations to their home, which were contended in the NCAT proceedings to accommodate GJE’s disability.

The DA was refused by the Council because of non-compliance with a number of provisions within the Council’s Development Control Plan.  GJE and GKA appealed this decision to the Land and Environment Court and the matter was resolved by the granting of development consent at a conciliation conference.

During the conciliation process, the Council agreed to amendments to the DA which were not materially different to those which the applicants had proposed during the DA assessment process.   

GJE and GKA lodged a complaint with the NSW Anti-Discrimination Board about disability discrimination in relation to goods and services under ss 49A-49C, 49M and 53 of the Anti-Discrimination Act 1977 (ADA). In summary the complaint was that the DA had been lodged to accommodate GJE’s disability and the Council had refused it and did not follow its disability inclusion plan. The Council denied discrimination had occurred and contended that it had complied with statutory requirements in relation to the consideration of the DA. GJE and GKA requested that the complaint be referred to NCAT.

Issues

The NCAT was required to decide whether the Council’s insistence on compliance with two particular planning controls was discriminatory. 

The applicants contended that the acceptance of the amendments confirmed that reasonable adjustments could, and should, have been made by the Council as part of the development assessment so that approval could have been granted, having proper regard to the “various disabilities” suffered by GJE and the “needs of the Applicants in respect to accommodation needs”.   The applicants argued that they had to undertake a lengthy, stressful and costly court process to achieve an equitable outcome and they incurred $117,000 in legal and associated fees that others have not had to pay to achieve the same outcome.

Decision

The NCAT firstly held that the Council’s consideration of the DA was a “service” for the purposes of the ADA.

On the question of discrimination, it was held that the Council’s application of the planning controls was not discriminatory, even if the Council did not take into account the applicant’s disability in applying them.

In response to the contention that the Council agreed to amendments to the DA in the Land and Environment Court proceedings which were not materially different to those originally proposed, the NCAT determined that:

“It is unfortunate that the dispute could not have been resolved earlier without recourse to litigation as both parties incurred significant legal costs. However, there is no evidence that the respondent based these decisions on GJE’s disability or GKA’s status as relative or carer, and we are not satisfied that insisting on compliance with the disputed conditions constituted indirect discrimination. If there was unfairness and inconsistency in the respondent’s decision-making (which we are not satisfied has been established on the evidence), it is open to the applicants to complain to the respondent, however, it does not of itself establish unlawful discrimination.”

Federal Courts including High Court of Australia

High Court confirms head contractors, developers or builders with supervisory role cannot contract out of civil liability in negligence by delegation of construction work to others

Pafburn Pty Limited v The Owners – Strata Plan No 84674  [2024] HCA 49 (11 December 2024) [view full decision here]

Overview

The High Court has recently divided 4:3 over the interpretation of certain provisions of the Civil Liability Act 2002 (NSW) (CL Act) being ss 5Q, 34, 34A, 35 and 39(a), and certain provisions of the Design and Building Practitioners Act 2020 (NSW) (DBP Act), in particular ss 37 and 39.

Decision

The majority of the High Court (Gageler, Gleeson, Jagot ,and Beech-Jones JJ) decided that the developer and head building contractor (appellants) of a residential strata building cannot rely on the failure of another person to take reasonable care in carrying out construction work, or otherwise performing any function in relation the that work, to limit their liability under Pt 4 of the CL Act (at [1] and [54] – [55]). Consequently, the appellants will be personally liable for the whole of the economic loss caused by their breach of the s 37(1) duty of care under the DBP Act, if established, (at [62]). To the extent that they are found liable to the owners’ corporation, ss 37 and 39 of the DBP Act do not prevent them from crossclaiming against other persons who they allege breached any applicable duty of care owed to them (at [65]).

The minority (Gordon, Edelman and Steward JJ) preferred a construction of s 39 of the DBP Act (headed “duty must not be delegated”) that creates a personal duty that cannot be delegated, or contacted out of, and moreover does not extend the duty in s 37 to the work of independent contractors (at [75] and [85]). Furthermore, the minority did not consider that s 5Q of the CL Act, (the non-delegable duty provision of the CL Act) applied to the statutory duty of care imposed by s 37 of the DBP Act (at [90]). As a result, the minority considered that a claim for damages for breach of s 37 of the DBP Act is an apportionable claim under Pt 4 of the CL Act.

Key takeaway

Council clients who undertake large construction projects involving head contractors and subcontractors will be interested in the outcome of this case given it involved statutory interpretation issues arising from the application of the CL Act defences to the statutory duty of care under the DP Act.   As a result of this case, head contractors, developers or builders with responsibility for supervising a construction project cannot contract out of civil liability in negligence by delegation of construction work to others.

AI hallucinations: the use of Chat GPT in legal proceedings

Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95 [view full decision here]

Background

An applicant commenced judicial review proceedings in the Federal Court of a migration decision made by the Administrative Appeals Tribunal. The applicant’s legal representative (referred to anonymously as “ALR”) filed written submissions for an amended application on 25 October 2024, containing citations to cases and alleged quotes from the Tribunal’s decision. However, those citations and quotes were non-existent, because they had been generated by the AI tool Chat GPT. In these proceedings before Judge Skaros, the Court determined whether to refer the matter to the Office of the NSW Legal Services Commissioner (OLSC). 

Use of Chat GPT

Due to alleged time constraints, ALR prompted Chat GPT to create a summary of authorities, and he incorporated those citations into his submissions without checking the details. After receiving the Minister’s submissions, which raised the false citations and quotes, ALR sent an email to the Judge’s Associate with an amended submission omitting the false authorities.

Decision to refer the matter

ALR was apologetic, regretful and remorseful of his conduct, which he acknowledged may have been in breach of his obligations to the Court. The Court also considered his advancing age, serious health issues and long-standing service (of 27 years) to the legal profession. However, due to the strong public interest in the issue of the use of generative AI by legal practitioners, the Court referred the matter to the OLSC.

Key takeaway

This case serves as a reminder that the use of generative AI in legal proceedings can seriously undermine a legal practitioner’s obligations to the Court. Soon after the ALR’s conduct in this matter, the Supreme Court of NSW issued a Practice Note on the Use of Generative Artificial Intelligence (Gen AI). The Practice Note has since been updated.   The Land and Environment Court has also recently released a new Practice Note on the use of GEN AI. 

High Court clarifies limits on Commonwealth power in native title cases

Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan OR Estate Group) & Ors [2025] HCA 6 (12 March 2025)

In an application to the Federal Court made on their behalf, the Gumatj Clan or Estate Group of the Yolngu People claimed an entitlement to compensation under the Native Title Act 1993 (Cth) (Native Title Act) for "past acts" that are "attributable" to the Commonwealth, namely appropriations to the Commonwealth and grants to third parties of interests in land in the Gove Peninsula in the Northern Territory between 1939 and 1969. The Gumatj Clan claimed that each appropriation or grant was invalid at the time it occurred to the extent that it was inconsistent with native title rights and interests which it must now be accepted that the common law of Australia then recognised the Gumatj Clan to hold in relation to the land.

In dismissing the appeal, the High Court, by majority, affirmed the findings of the Full Court of the Federal Court of Australia that:

• the power conferred under section 122 of the Constitution does not extend to making a law with respect to the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution,
• a law enacted prior to the Native Title Act which grants a land interest inconsistent with Native Title is a law with respect to the acquisition of property, and
• a pastoral lease granted prior to the Native Title Act does not have the effect of extinguishing non-exclusive Native Title rights on minerals on or under that land.

View the full decision here, or the High Court’s judgment summary here.

On 7 March 2025 the Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024 (BOS Amendment Act) commenced. The Biodiversity Offsets Scheme in Part 6 of the Biodiversity Conservation Act 2016 (BC Act) regulates offsets allowing credits to be traded and retired and is intended to offset the residual impact on biodiversity values after action is taken to avoid or minimise impacts of clearing and/or development. It has been amended to permit a transition away from a no net loss outcome and towards a net positive biodiversity outcome. It also takes steps to strengthen the BC Act provisions by defining what it means to avoid, minimise and offset impacts (amongst other changes). Read our detailed summary of the BOS Amendments here. Local government and scheme participants may also be assisted by the Department’s training and resources on the BOS, available here.
 
On 18 February 2025 the Environmental Planning and Assessment Amendment Bill 2025 was introduced. The Bill responds to three separate decisions in the NSW Courts, specifically by:

• amending ss 4.55 and 4.56 of the EPA Act to clarify the powers of a consent authority to modify a development consent (in response to the decision in Ku-Ring-Gai Council v Buyozo Pty Ltd [2021] NSWCA 177
• amending Schedule 1 of the EPA Act to provide certainty around how submissions are counted (in response to the decision in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41, which we wrote about in our March 2024 edition of In the Zone, available here), and
• amending s 4.24 of the EPA Act to provide the ability for a consent authority to assess and determine a subsequent development application, subject to conditions, following the determination of a concept development application, despite any inconsistency between the concept development application and the subsequent development application (in response to the decision in Castle Hill Panorama Pty Ltd v The Hills Shire Council [2023] NSWLEC 24).

Find out more and track the bill here.

• The Environment Protection and Biodiversity Conservation Amendment (Reconsideration of Decisions) Bill 2024 (Cth) was passed by Parliament on 26 March 2025. The bill seeks to introduce limitations on timeframes for reconsideration of certain decisions (controlled action decisions) and on those who may seek reconsideration after a period of three years. Under the current provisions for reconsideration of decisions within the Act, the request for reconsideration of a decision under s 78A does not provide limitations or restrictions on the length of time for a decision to be reconsidered or, critically, by whom such reconsideration of decisions can be requested.

• This month, the NSW government amended the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) to mandate the source-separated collection of Food Organic and Garden Organic (FOGO) waste from households and food waste from businesses.  This was achieved by inserting a new Chapter 5A “Food organics and garden organics waste”, into the POEO Act. The amendment is crucial for ensuring that NSW can reduce the amount of waste going to landfill.  Most of the diverted FOGO waste will be converted into high quality compost for parks, sporting fields and agriculture.

Council impacts

Under s 170E of the POEO Act, by 1 July 2030, a local council must:

1. Provide each household in the local council’s area with an organics collection bin to hold the average amount of food and garden organics waste generated by a household of that type.
2. Ensure that organics collection bins provided for the collection of organics waste generated by households are collected for transportation away from each household at least once each week, or at other intervals considered appropriate by the local council.
3. Ensure food organics waste and garden organics waste generated by households and collected for transportation are not mixed with non-organic waste during transportation.

If a local council does not comply with section 170E, the maximum penalties for each of the (3) new FOGO waste mandates are, $500,000, and for each day an offence continues, $50,000. Penalty notices can range from $5,000 for a first offence to $7,500 for a subsequent offence.

Occupier impacts

Under s 170F of the POEO Act, on and from 1 July 2026, an occupier of premises that generates food organics waste must:

1. Ensure a sufficient number of food organics collection bins are provided for the collection of food organics waste generated by persons using the premises.
2. Ensure food organics waste from a food organics collection bin provided for the collection of food organics waste generated by persons using the premises is collected for transportation away from the relevant premises at least once each week.
3. Ensure food organics waste collected from a food organics collection bin is not mixed with non-organic waste during its transportation.

If an occupier (as a corporation) does not comply with s 170F, the maximum penalties for each of the (3) new FOGO waste mandates are, $500,000, and for each day an offence continues, $50,000. Penalty notices can range from $5,000 for a first offence to $7,500 for a subsequent offence.

• The Land and Environment Court has introduced a Practice Note on the Use of Generative Artificial Intelligence. The practice note requires that any affidavit or witness statement contains a disclosure that Gen AI was not used in generating its content unless leave has first been obtained from the Court for the use of Gen AI. Similarly, Gen AI must not be used to draft or prepare the content of an expert report (or any part of an expert report) without prior leave of the Court. The Practice Note is available here.

• Richard Beasley SC has been appointed to the Land and Environment Court of New South Wales as a judge – read more.

• The Housing Delivery Authority has fast tracked 18 projects as State Significant Developments – read more here.

• The Federal Court has fined Active Super $10.5 million for greenwashing. Active Super claimed in its marketing that it had eliminated investments that posed too great a risk to the environment despite holding direct and indirect investments in companies involved in gambling, oil tar sands and coal mining. This is ASIC’s third successful greenwashing court outcome. Read more here.