BAL Lawyers is delighted to announce that our Employment Law & Investigations group has been recognised as among the best employment law firms in Canberra.
The latest Doyles rankings, released in February 2021, feature the team and its members in four categories, representing their work for both employee and employer-focused practice areas.
Both practice areas have been recognised, in addition to individuals’ recognition:
“We are delighted that both our preeminent work on behalf of employees, and employers, has been formally recognised” John Wilson, a Legal Director in the team said today.
“We are also pleased that our employer focused monthly HR Breakfast Club discussion forum has become somewhat of an institution, bringing together HR Managers from across Canberra to look closely at the issues that people managers face on a daily basis,” says Gabrielle Sullivan, a regular speaker at the events.
Gabrielle and John, along with Associate Rebecca Richardson and Lawyer Andrew Chakrabarty, assist their clients in what is often either a highly charged and disruptive time in their lives. The team’s unrivalled expertise is complemented by their solution-centred approach, which puts their clients’ interests at the heart of the matter.
Doyle’s Guide is an independent body that publishes rankings predominantly based on peer review and client feedback.Read more
The latest edition of our Essential Guide to Local Government Law will assist local councils to understand the benefits and the requirements which apply to the making of a voluntary planning agreement under the Environmental Planning and Assessment Act 1979 (EPA Act).
A voluntary planning agreement (VPA) is a written agreement between a planning authority (such as a local council) and a developer who has sought a change to an environmental planning instrument (EPI) or who has made or proposes to make a development application (or who is associated with someone who has) in which the developer agrees to make contributions to the authority for use for a public purpose.
Although it is described as an agreement, a VPA usually takes the form of a deed, because the developer is making contributions but is not usually receiving any consideration in return.
A high degree of transparency is required throughout the VPA process to preserve the integrity of the development assessment process. The developer wants the consent authority to consider its offer to enter into a VPA when the Council evaluates a proposal to amend an EPI or considers the merits of a development application. It is therefore important that the public can see what additional benefits the developer is offering to provide, to reduce the risk of bias or of irrelevant matters being taken into account. Planning authorities should not place disproportionate weight on a VPA when considering the planning merits of a development application or a proposal to amend an EPI.
Councils should be careful to ensure that, where the circumstances described above exist, they follow the prescribed process for the making of VPAs and do not enter into agreements which have a similar effect outside that regime. Considering such agreements in the development assessment process may result in a development consent being found to be invalid.
A developer will often offer to make contributions as part of the process of seeking a change to an EPI or preparing a development application as a way to offset potential impacts of development on the broader community.
A broad range of contributions can be obtained by a planning authority under a VPA. Common forms of contributions which are provided under VPAs include (but are not limited to):
VPAs therefore provide a mechanism under which a willing developer can make contributions of a type or value which the planning authority could not require the developer to provide by other means. There does not need to be a strong connection between the proposed development and a monetary contribution or the works to be undertaken under a VPA, although the existence of some nexus between the two makes it less likely that the VPA might be seen as an attempt by the developer to ‘buy’ a development consent.
The EPA Act requires that the following information be included in a VPA:
A planning agreement cannot exclude the application of section 7.11 or 7.12 of the EPA Act unless the consent authority for the development or the Minister is a party to the agreement. A VPA cannot exclude the application of section 7.24 of the EPA Act without the approval of the Minister.
The process for entry into a VPA is constrained by the processes set out in the EPA Act and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and is generally as follows:
A VPA must include a suitable mechanism for its enforcement. The “suitability” of a proposed enforcement mechanism should be assessed by reference to whether the means of enforcement is likely to eliminate or reduce, to a commercially acceptable level, the risk that the obligation created by the VPA will not be performed and that the planning authority or the community will not receive the intended benefits.
Common enforcement mechanisms include bonds and guarantees. A bond provides financial security by giving the planning authority access to money which it can use to fulfil a payment obligation or to complete works if a developer is unable or unwilling to do so. A deed of guarantee operates by requiring another entity to guarantee that it will fulfil the developer ’s obligations under the VPA if it is unable or unwilling to do so. Alternative types of security could include registering a caveat on the title to the land or a combination of security options such as providing a bond and registering a caveat or providing a bond and deed of guarantee from a related or parent company. An assessment as to what enforcement mechanism is ‘suitable’ should be made on a case by case basis.
In addition to calling on the enforcement provisions included in the VPA, a planning authority can enforce compliance with a VPA by:
There are a range of public resources on VPAs which Council’s may find useful, including:
This guide provides general advice only. Please contact Alice Menyhart, Director in our Planning, Environment and Local Government Team for specific VPA advice or for assistance in drafting, reviewing, amending or enforcing a VPA.
The law in this Guide is current as at 13 January 2021.
 EPA Act, s.4.15(1)(a)(iii).
 See additional guidance on the fundamental principles which apply to the consideration of planning agreements in the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005. DPIE published an exhibition draft Planning agreements practice note in April 2020, although it has not yet been made.
 Gwandalan Summerland Point Action Group Inc v Minister for Planning  NSWLEC 140.
 See Tesco Stores v Secretary of State for the Environment & Ors.  1 WLR 759.
 EPA Act, s.7.4(3).
 Or a development corporation designated by the Minister to give approvals under subsection 7.3(5A).
 A template VPA can be found in Attachment A to the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005.
 Cl. 25E of the EPA Regulation sets out what must be included in the explanatory note.
 Cl 25D EPA Regulation
 A VPA must be signed by the parties to the agreement: cl.25B(1)(b) EPA Regulation
 Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429, 459 .Read more
A recent decision of the NSW Land and Environment Court demonstrates that NSW councils need to carefully consider the provisions of both Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act) when making decisions about the creation of on- and off-leash areas for dogs under the Companion Animals Act 1998.
In Palm Beach Protection Group Incorporated v Northern Beaches Council  NSWLEC 156 Preston CJ has provided a detailed and informative analysis of the way the two Acts interact. This article has been prepared to provide a brief summary of the decision, with a focus on the application of the EPA Act in relation to the establishment of dog on and off-leash areas in public reserves.
The former Pittwater Council had given an order pursuant to the Companion Animals Act that all dogs were prohibited on “all beaches” in its area. This position was revisited in 2019 when the Northern Beaches Council twice resolved to allow the public to use Station Beach with their dogs. The first decision concerned the use of part of the beach as an off-leash area on a trial basis for 12 months. The other decision, made some months later, concerned the use of part of the beach as a dog on-leash area.
Station Beach, on the Pittwater side of Palm Beach, and the adjacent Governor Phillip Park, comprise a reserve for public recreation and have been so for nearly a century. The local council, now Northern Beaches Council, had the care, control and management of the reserve.
The Palm Beach Protection Group Inc. challenged the Council’s decisions on two grounds:
The Group also contended that the Council was required by s 5.7 of the EPA Act to consider an environmental impact statement prior to granting the approval as the activity was ‘likely to significantly affect the environment’.
The unlawful development ground
The crux of the Group’s complaint on these grounds was that the use of the reserve by people with their dogs was a separate and distinct use of the beach to that by people without dogs, and was a use that was either prohibited, or that required consent under the applicable environmental planning instruments.
The Council contended, amongst other things, that:
The Court found that the use of Station Breach enabled by each Council decision was properly characterised as being development for the purpose of a recreation area. His Honour observed that the detailed activities carried out before may be different to those carried out after the Council’s decisions, in that people used the beach and adjacent waters without their dogs before, but with their dogs after, the Council’s decisions, but that this did not constitute a change in the purpose of the use. The characterisation of the purpose of the use is to be done at the appropriate level of generality, sufficient to cover the individual activities, but not in terms of the detailed activities.
The Court went on to find that development consent was not required because the use of the reserve for the purpose of a recreation area had lawfully commenced almost a century earlier, long before the introduction of any requirement to obtain development consent for that use under relevant planning instruments. In so doing, the Court held that the Council’s decision did not involve an enlargement, expansion or intensification of the use of the land for the purpose of recreation area, despite the Group adducing evidence of an increased number of dogs on the reserve following the Council’s decision. The Court reasoned that the use of the reserve, both before and after the Council’s decisions, was still for the purpose of public recreation and that, while the nature of the use may have changed, what mattered was whether the number of people using the beach and adjacent waters had increased or the area of the beach and adjacent waters being used had increased. The Court found that this was not established by the evidence.
The inadequate EIA ground
The Group also contended that each of the Council’s decisions constituted an approval of an activity, being the use of land, under Part 5 of the EPA Act. In doing so, the Group argued that Part 5 applied so as to impose a twofold duty on the Council. First, the Council had a duty under s.5.5 to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity”. Secondly, where the activity was likely to significantly affect the environment, before granting any approval, it had a duty under s.5.7 to examine and consider an environmental impact statement in respect of the activity. The Group presented expert evidence to show that the use of Station Beach by dogs was likely to significantly affect the environment because of its likely impact on the threatened seagrass population Posidonia australis and the threatened seahorse species Hippocampus whitei (White’s Seahorse).
The Council contested that its decisions constituted “an approval” of an “activity” under Part 5, submitting that the decisions merely involved exercises of power under the Companion Animals Act, being a revocation or variation of the former Pittwater Council’s order under that Act to prohibit dogs on all beaches. In the alternative, the Council contended that it had complied with Part 5 because:
The Court, however, held that Part 5 of the EPA Act did apply to the Council’s decisions. It found that the Council had breached ss.5.5 and 5.7 in its consideration and approval of the activity of allowing dogs to use the reserve on-leash and had breached s.5.7 by granting approval to the use of the reserve by dogs off-leash without having obtained, examined and considered an EIS in respect of the activity.
The Court gave extensive reasons. Its key findings were that:
There are several important lessons to be learned from this case. First and foremost, a council making decisions with respect to dog on- and off-leash areas under the Companion Animals Act should approach its task mindful that those decisions are subject to the EPA Act. While it is likely that in most instances dog on- and off-leash areas will be within a public reserve for public recreation purposes for which continuing lawful use protections under the EPA apply, a council will nevertheless need to consider the environmental impacts of creating or varying dog on or off-leash areas of the activity under Part 5.
The Court’s decision will also be of broader interest for determining authorities under Part 5. First, the decision emphasised the need to consider the environmental impacts for each activity being contemplated. Although a determining authority might reasonably conclude that a particular activity has smaller environmental impact than a similar activity previously contemplated and assessed, that fact alone does not discharge the duty of a determining authority to properly consider the environmental impact of each activity under s.5.5(1). Secondly, in order to properly discharge its duty under s.5.7(1), a determining authority should make an affirmative decision about whether the proposed activity will, or is likely to, have a significant effect on the environment. Finally, where a REF concludes that an activity is unlikely to have a significant impact but only if carried out in accordance with specified mitigation measures or controls, a determining authority must ensure that those measures or controls are implemented to avoid the risk of its approval being set aside.
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The Federal Government has announced an extension of the Homebuilder Grant, which includes:
To be eligible for the Homebuilder Grant you must:
Construction must commence within six (6) months of the signing the contract.
For further information please contact the Real Estate Team at BAL Lawyers.Read more
Businesses experiencing financial distress as a result of COVID-19 will continue to receive financial relief until 31 December 2020.
What does this mean for businesses?
The extension predominantly impacts companies in relation to statutory demands and insolvent trading.
When creditors issue a statutory demand against a company before 31 December 2020, the demand must be in the amount of $20,000 or more and the company has six months to respond to this demand. This is a marked increase from the pre-COVID statutory framework, where creditors could issue a demand for any amount above $2,000 and companies would only have 21 days to respond.
In addition, companies’ insolvent trading relief will be extended to 31 December 2020. This measure insulates directors from any personal liability for debts incurred in the ordinary course of the business if they trade on behalf of the company whilst it is insolvent. It should be noted that this relief does not extend to directors if they have breached their statutory or common law directors’ duties.
What does this mean for individuals?
For natural persons the legislation provides more support in relation to bankruptcy notices and the extension of the moratorium on declarations of intention for debtors’ petitions.
Individuals who receive a bankruptcy notice before 31 December 2020 will have six months to respond and the notice must be in the amount of $20,000.00 or more. As with companies, this is a significant increase from the pre-Covid statutory framework where the debt only needed to be $5,000.00 or more and individuals only had 21 days to respond.
The moratorium period for a declaration of intention to issue a debtor’s petition with the Australian Financial Security Authority will continue to be six months rather than the usual 21 days. This enables individuals to make their own provisions with creditors and if those arrangements are ineffective, they can then declare themselves bankrupt. If an individual fails to declare themselves bankrupt at the end of that six-month period, a creditor can apply to a court to make the person bankrupt.
Don’t be complacent
While the extension of these measures is good news for business currently in financial distress, it is not the time to be complacent in managing your debts. If you are at all concerned about where your financial position might leave you in a legal context, contact Nicole Harrowfield or the Business & Corporate team at BAL Lawyers.Read more