Canberra Law Firm – BAL Lawyers

News & Events

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  Real Estate Alert: Stamp duty cuts in the ACT

  Off-the-plan dwellings and new land single residential blocks purchased in the ACT will now attract significantly reduced stamp duty fees.  Announced by the ACT Government on 4 June 2020, the scheme is part of Canberra’s Recovery Plan intended to help revitalise and stimulate the property and construction industry.

  For eligible purchases up to $500,000, stamp duty liability will be waived completely. For those buyers purchasing off-the plan where the purchase price is between $500,000 and $750,000, stamp duty liability will be reduced by $11,400.

  Contracts for Sale must exchange between 4 June 2020 and 30 June 2021 to be eligible for reductions.

  For assistance with conveyancing, contact the Real Estate team at BAL Lawyers.

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  Essential Guide to Local Government Law: Lapsing of a Development Consent

  Updated June 2020: A development consent can add significant value to land and can be costly to obtain. It is therefore important to understand when it will lapse. This guide will assist you in determining when this will occur.

  The statutory lapsing period

  The lapsing of a development consent is dealt with in the statutory provisions in s.4.53 (formerly s.95) of the Environmental Planning and Assessment Act 1979 (the Act). These provisions fix a period of time at the expiry of which the consent will lapse unless certain action has been undertaken.

  The starting point is s.4.53(1) of the Act. That subsection provides that a development consent will lapse 5 years after the date from which it operates.  However, the 5 year period can be reduced or extended under the subsequent subsections, as explained below.

  When can the 5 year lapsing period be reduced?

  Any reduction in the ‘default’ 5-year lapsing period is imposed at the discretion of the consent authority when it determines a development application.  However, there are 3 constraints on a consent authority’s ability to do so.  These are:

  • If a proposed development involves the erection or demolition of a building or the subdivision of land, the consent authority cannot reduce the lapsing period to less than 2 years from the date that the consent becomes operative;[1]
  • If the consent authority issues a development consent for a concept development application which requires the making of a subsequent development application and consent, the lapsing period cannot be reduced at all[2]; and
  • For development consents granted between 25 March 2020 – 25 March 2022, the lapsing period also cannot be reduced to a period of less than 5 years.

  When can the lapsing period be extended?

   If the 5 year lapsing period is reduced by the consent authority, the consent authority may extend the lapsing period by 1 year if the applicant for the consent (or any person otherwise entitled to act on it) applies, under s.4.54 of the Act, to the consent authority for a 1 year extension. Such an application must be made prior to the consent lapsing.[3] The lapsing period cannot be extended by a modification application.[4]

  UPDATE: Extension of lapsing dates – COVID 19

  The Act and Regulations were amended on 14 May 2020 to include special arrangements for development consents which have lapsing dates that may be affected by COVID-19.  The special arrangements apply to development consents which are issued in the period 25 March 2020 – 25 March 2022 (the ‘prescribed period‘).  The amendments mean that:

  • Existing development consents which lapsed between 25 March 2020 and 14 May 2020 (when the amendment took effect) are taken not to have lapsed and benefit from a 2 year extension to the lapsing date;
  • Existing development consents which have lapsing dates which fall within the prescribed period are extended by 2 years; and
  • A consent authority cannot reduce the lapsing period for a development consent which is granted during the prescribed period – so all consents granted in this period will not lapse for a period of 5 years.

  Corresponding changes have been made to the Act to extend the time period for compliance with deferred commencement conditions.

  What must be done to prevent a consent from lapsing?

  The action that must occur to prevent a development consent from lapsing depends upon what type of development has been approved and when it was approved.

  Development involving the erection of a building, subdivision or the carrying out of a work

  A development consent for the erection of a building, the subdivision of land or the carrying out of a work will lapse on the lapsing date unless the following three things occur:

  • “building, engineering or construction work” is undertaken on the land which is the subject of the consent;
  • the work was “physically commenced” before the date on which the consent would otherwise lapse; and
  • the work “relates to” the approved development.[5]

  A significant body of case law has developed in relation to these three elements and will be summarised below.

  “Building, engineering or construction work”

  Under the Act, ‘building work’ is broadly defined as ‘any physical activity involved in the erection of a building’.[6] Neither ‘engineering’ nor ‘construction’ work is specifically defined in the Act but the meaning of these terms has been considered by the Courts.

  In Hunter Development Brokerage v Cessnock City Council[7]the definition of ‘engineering work’ in the context of a subdivision consent was found to include all activities associated with and forming a necessary part of, the discipline of engineering, survey work and geotechnical investigation applicable to the subdivision. These principles have also been applied to ‘works’ generally (i.e. not just subdivision).[8]

  Examples of works which have been held by the Court to constitute ’building, engineering or construction work’ include:

  1. extracting samples of water from the site for offsite quality testing;[9]
  2. obtaining an acoustical engineering report relating to the noise made by trucks entering and exiting the site;[10]
  3. the removal and testing of soil for the purposes of obtaining a remediation and validation report;[11]
  4. digging boreholes for testing soil conditions;[12]
  5. survey work.[13]

  Care needs to be taken in relying on these examples, however, as the circumstances of each development will need to be considered to determine whether the work relied on in fact ‘relates to’ the development the subject of the development consent. A more stringent standard will also apply to development consents granted after 15 May 2020.

  On 15 May 2020 the Regulation was amended to specifically preclude a number of these activities from satisfying the requirement for ‘physical commencement’[14]. For consents granted after 15 May 2020 the carrying out of minor activities such as the creation of a bore hole for soil testing, the removal of water or soil for testing, the carrying out of survey work, acoustic testing, removing vegetation and marking the ground to indicate how land is to be developed will be insufficient to amount to ‘physical commencement’. It will therefore be necessary for developers to undertake additional physical works in order to prevent these consents from lapsing.  Going forward when considering whether a development consent has lapsed it will be necessary to first determine whether the consent was granted before or after 15 May 2020 as different rules will apply to each.

  “Physically commenced”

  The statutory requirement that work is “physically commenced” necessitates that work is commenced upon the land in a physical sense, as opposed to off-site work such as design and planning work.

  There does not need to be a material change to the physical nature of the land as a result of the physical work.

  “Relating to” the development

  The use of the term ‘relating to’ means that there must be some real relationship or connection between the work and the development in respect of which the consent has been granted.[15] The requisite link between the work and the consent will be satisfied if the work is a necessary step in, or part of, the process required for the carrying out of the development. If the work serves more than one purpose, it is sufficient that one of those purposes bears a real relationship to the development.[16]

  Importantly, for any work to constitute commencement so as to prevent the consent from lapsing, that work must be undertaken lawfully. Any work which is not lawful, for example, if it is not undertaken in accordance with the conditions of consent or is in breach of the Act, will not ‘relate to’ the development.[17]

  Development other than development involving the erection of a building, subdivision or the carrying out of a work

  A development consent for any other type of development will not lapse if the use of the land, building or work, the subject of the consent, actually commences before the date on which the consent would otherwise lapse.

  For further information or assistance with orders, please contact Andrew Brickhill and the Planning, Environment and Local Government team on (02) 6274 0999.

  The content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

  Our series of NSW Local Government Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that NSW Local Government and Councils often face.

  [1] Ibid, s.4.54.

  [2] Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237; [2005] NSWLEC 737.

  [3] Environmental Planning and Assessment Act 1979 (NSW), s.4.53(2).

  [4] Ibid, s.4.53(2).

  [5] Above n 1, s.4.53(4). These three questions are referred to in Hunter Development Brokerage v Cessnock City Council (2005) 140 LGERA 201.

  [6] Above n 1,  s.1.4 and s.6.1

  [7] (2005) 140 LGERA 201.

  [8] Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122 at 61.

  [9] Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261.

  [10] Ibid.

  [11] Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86.

  [12] Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9.

  [13] JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535.

  [14] See new clause 124AA

  [15] Hunter Development Brokerage v Cessnock City Council (2005) 140 LGERA 201; Tovedale Pty Ltd v Shoalhaven City Council (2005) 140 LGERA 201 at 104.

  [16] Ibid.

  [17] K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23.

   

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• 

  Moving forward with e-Conveyancing in the ACT

  e-Conveyancing in the ACT looks to be a step closer following recent Legislative changes.  Amendments introduced by the ACT Government pursuant to the Electronic Conveyancing National Law (ACT) Act 2020 (ACT) and the Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 (ACT) are set to commence on 1 June 2020. But what do these changes mean? And will the ACT (finally) join NSW and the other States in conveying real estate electronically?

  There are two fundamental changes:

  1. The first is the introduction of a method or framework to facilitate the possible introduction of e-conveyancing in the ACT.
  2. The second, whilst preserving the central features of the ACT land titling and registration within the Territory, is the introduction of new processes to reduce paper-based registration and provide a greater scope for use of electronic registrations.

  Together the legislative provisions provide a choice within the territory to allow fore-conveyancing.

  More specifically, the changes:

  1. Allow for the introduction of an electronic lodgement network operator as part of the electronic conveyance process. Lawyers and financial institutions will need to become a subscriber to undertake an e-conveyance or electronic lodgement;
  2. Introduce restrictions on the creation or alteration of interests on the land titles register without proper verification of relevant party’s identity and authority. In practice both paper and electronic lodgements are required to adhere to tougher compliance requirements; and
  3. Shift the onus of certification on solicitors, conveyancers, and financial institutions (if applicable). These certifications are detailed precisely in the new legislative framework, but in a nutshell they include:
     1. Verification of identity;
     2. Completion of client authorisation forms; and
     3. Retaining supporting evidence for the authority to deal with the property the subject of the transaction.

  As the land titles register is already kept electronically it follows that lodgements should also occur electronically. Stakeholders suggest that moving to an electronic registration and titling system will help protect against fraudulent activities.

  It is clear the Territory is endeavouring to keep pace with modern property practices but is yet to fully transition to a platform allowing for electronic conveyancing to occur. The Territory has the legal framework in place and the introduction of an electronic lodgement network is what is now needed.

  For assistance with your conveyancing and real estate matters, contact the Real Estate team at BAL Lawyers.

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  Witnessing documents via audio-visual link

  COVID-19 has impacted the way we live and work together.  At BAL Lawyers, we are working in new ways to ensure our clients and staff are safe as we carry on our services with as little interruption as possible.

  Our Canberra City offices are open and we are available to meet with clients in person with appropriate hygiene and physical distancing measures in place.  However, where clients need, or choose, to remain at home, the ACT Government has enacted changes to legislation governing how legal documents can be signed and witnessed.

  Effective 14 May 2020, the COVID-19 Emergency Response Act 2020 (ACT) enables “relevant documents” to be witnessed via audio-visual link[1]. For the purposes of the legislation, relevant documents are Affidavits, Wills, General and Enduring Powers of Attorney. Audio-visual link is a 2-way system of communication linking people on a computer or phone with internet connection, so that people can be seen and heard in different places.[2] Signing and witnessing documents by audio-visual link removes the need for clients to meet with their solicitor in person.

  What you must do:

  To witness a signature by audio-visual link, several requirements must be met.  The witness must:

  1. observe the person signing the document in real time;
  2. confirm that the signature of the person signing the document was witnessed by signing the document or a copy of the document;
  3. be reasonably satisfied that the document the witness signs is the same document, or a copy of the document, signed by the signatory; and
  4. provide a statement on the document or a copy of the document detailing:
     1. the method used to witness the signature of the signatory; and
     2. that the witnessing of the document occurred in accordance with all the above requirements.

  The use of audio-visual link to witness relevant documents will remain in place for the duration of the ACT Government’s COVID-19 state of emergency, and for three months after the state of emergency has ceased.[3]

  For more information about how your estate planning and probate documents may be properly executed during this difficult period, please contact the Estates and Estate Planning Team at BAL Lawyers.

  [1] COVID-19 Emergency Response Act 2020 (ACT) s 4.

  [2] COVID-19 Emergency Response Act 2020 (ACT) s 4(5).

  [3] COVID-19 Emergency Response Act 2020 (ACT) s 4(6).

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  Do not pass go: Court finds Council rejection of Development Application cannot be appealed

  In a case handed down on 30 April 2020, the NSW Land and Environment Court has decided that the rejection of a development application by a council is not a decision that can be appealed. The judgment, Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42,  has implications for the rejection of DAs by NSW councils and highlights the ability of a Council to effectively veto a DA that involves the carrying out of works within a road reserve without the risk of review by the Court.

  Facts

  Johnson Property Group lodged a DA with the Lake Macquarie City Council for the construction of a cycleway and intersection improvement work in October 2019. Six days later the Council rejected the DA on the sole basis that the DA was not accompanied by the written consent of the (same) Council as the roads authority and owner of the public roads where the intersection work was proposed. Johnson appealed against that decision and sought an order that the Council assess and determine the DA. The Council’s sole contention in the appeal was there was no appeal right. It did not raise any concerns with the merits of the proposal.^[1]

  Argument

  Johnson pointed to s.8.7(1) of the Environmental Planning and Assessment Act 1979 which provides that an applicant who is dissatisfied with the ‘determination’ of an application by a consent authority may appeal to the Court, arguing that such a determination must include a decision to reject a DA. Johnson also relied on an earlier decision of the Court in Parkes v Byron Shire Council (2003) 129 LGERA 156 (Parkes) where it was held that, upon a proper construction of the provisions of the Act and the Regulations as they were then in force, the decision to reject a DA was a decision from which a right of appeal to the Court was available.

  The Council argued that on a proper construction of ss 8.6(1) and 8.7(1) of the Act an appeal was limited to a “determination” rather than a “decision”. It was argued that a determination is made pursuant to s.4.16 of the Act to either refuse or approve a DA, whereas the rejection of a DA is a “decision” to reject the DA and operates to treat the DA has never been made (as per cl.51(3) of the Regulation). The Council also argued that Parkes could be distinguished and, in any event, the decision was wrong and should not be followed.

  The Outcome

  The Court carefully analysed the language used in each of the relevant provisions in Division 8.3 of the EP&A Act, the Division of the Act that provides an appeal right relating to the determination of an application for development consent.  The Court held that:

  • the concept of the ‘determination’ of a DA is one that is used throughout the Act as being a decision made pursuant to s.4.16 and notified in accordance with the requirements of s.4.18;
  • the rejection of a DA is not referred to in any part of the Act, either expressly or by implication, as being a determination of an application for development consent;
  • the reference to the rejection of a DA ‘determination’ in cl.51(3) of the Regulations is not a ‘determination’ in the same sense that it has been used in the Act;
  • due to amendments to the statutory scheme, the case was sufficiently different to the provisions considered in Parkes and could be distinguished. In any event, the Court decided that the decision in Parkes was not correct and should not be followed.

  As a consequence, the Court concluded that there was no ability for Johnston to appeal against the rejection of its DA by the Council.

  Implications

  Johnson’s case is significant because it highlights the ability of a council to unilaterally veto a development proposal where the development involves works within a council road reserve. A council’s ability to reject a DA under the Regulations is limited to the first 14 days after the DA is being received.^[2] This case shows, however, that if a DA is rejected on proper grounds within that period, the rejection cannot be made the subject of an appeal. This would avoid the possibility of the Court itself furnishing the landowner’s consent on behalf of the Council pursuant to s.39(2) of the Land and Environment Court Act 1979.[3]

  For more information or to discuss a development application, call BAL Lawyers Planning, Environment and Local Government Team on 02 6274 0999.

  [1] Johnson Property Group Pty Limited v Lake Macquarie City Council [2020] NSWLEC 4 [at 20].

  [2] Environmental Planning and Assessment Regulation 2000, cl. 51.

  [3] Cf. Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 in which the Court held that s.39(2) empowered the Land and Environment Court, on the hearing of an appeal, to give the consent of the owner of land to the making of a development application where the owner is the authority whose refusal of consent is the subject of the appeal.

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• Six BAL Lawyers recognised among Australia’s best in 2021

  BAL Lawyers is delighted to announce that six of our Canberra lawyers have been recognised among The Best Lawyers™ in Australia (2021 Edition). Additionally, John Bradley was named the Best Lawyers 2021 Real Property Law “Lawyer of the Year” in Canberra.

  Our six recognised lawyers and their practice areas are:

  • Alan Bradbury – Government Practice, Planning and Environment Law;
  • John Bradley – Commercial Law, Leasing Law, Real Property Law;
  • Mark Love – Commercial Law, Insolvency and Reorganisation Law, and Corporate Law;
  • John Wilson – Labour and Employment Law, Occupational Health and Safety Law;
  • Ian Meagher – Insurance Law, Litigation; and
  • Bill McCarthy – Insurance Law.

  Alan Bradbury has been recognised 12 years’ running in the practice area of Planning and Environmental Law, whilst John Wilson made his ninth appearance.  Mark Love and John Bradley are in their eighth years and both Ian Meagher and Bill McCarthy are in their second year of recognition.

  John Bradley was previously named “Lawyer of the Year” in 2016, and Alan Bradbury in 2014 and 2015. This accolade recognises individual lawyers with the highest overall peer-feedback in their practice area in a given geographic area.

  

  Above (L-R): John Bradley, Alan Bradbury, John Wilson, Mark Love, Ian Meagher, Bill McCarthy.

  About Best Lawyers

  Best Lawyers is the oldest and most respected attorney ranking service in the world. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote from around the world, and Best Lawyers received almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honour.

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