News & Events

  • e-Conveyancing in the ACT

    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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  • Council reject development application

    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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  • An update regarding COVID-19

    An updated message regarding COVID-19

    Dear clients and associates,

    To help protect our team, clients and the community from the spread of the Coronavirus disease, our staff has been working remotely.  In line with recent Government directives, some staff members are now returning to work on-site – as part of a staged approach – with appropriate physical distancing and hygiene practices in place.

    Our staff, upon returning to work, receive dedicated training on COVID-19 protocols, physical distancing, hygiene and room capacity that ensures we are all on the same page in regards to staying safe.  If you visit our offices, you will notice new cleaning and hygiene measures in place to protect everyone.

    Our Business Continuity Plan has enabled staff members to work off site with all client meetings and communication being carried out over the phone, email and video conferencing.  Now that some restrictions begin to ease,  we have procedures in place to ensure that necessary in-person meetings are carried out safely.  Where a client’s need or preference is to self-isolate, we can accommodate this too.

    It is our highest priority at this time to carry on working closely with our clients and providing our high standards of service with as little interruption as possible.  If you wish to touch base for any reason, be assured that we are here to help.

    To speak with us, please call reception on 02 6274 0999 or email reception@ballawyers.com.au and we will ensure you are connected with the right person.

    What’s the same and what’s changed: How we work with you

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  • Building Information Certificates

    Essential Guide to Local Government Law: Building Information Certificates

    An application for a Building Information Certificate (BIC) is typically made when a building or structure has been erected unlawfully.

    As it is not possible to obtain development consent or a construction certificate for a building that has already been erected, a BIC is generally the only option available to “regularise” building work that has been carried out unlawfully.  An application for a BIC is often made in conjunction with a development application to authorise the continued use of the building for the purpose for which it was erected.

    While not the same as obtaining development consent, if obtained, a BIC operates to prevent a council, for a period of 7 years, from issuing an order (or taking civil court proceedings for the making of an order) requiring the building or structure to be repaired, demolished, altered or rebuilt.[1]

    One of the key matters that a council needs to assess when deciding whether to issue a BIC therefore is whether the council wishes to take proceedings requiring the building or structure to be repaired, demolished, altered or rebuilt. This short guide has been prepared to assist councils in completing this task.

    The refusal of a Building Information Certificate is an appellable decision

    It is important to keep in mind from the outset that, if a council refuses to issue a BIC, the applicant can appeal against that decision to the Land & Environment Court of NSW.  If this occurs, the Court can then direct the council to issue a BIC on such terms and on such conditions as the Court thinks fit. The Court can also make any other order that it considers appropriate.[2]

    The Court’s approach to determining previous BIC appeals provides guidance on how councils should approach their own assessment of a BIC application.

    Assessing a notional development application

    Councils may consider that issuing a BIC for an unlawfully erected structure will be viewed by the public as the council condoning a breach of the law, rewarding wrongdoing, setting a bad precedent, or undermining the public interest in upholding the provisions of the Environmental Planning and Assessment Act 1979. However, despite these legitimate concerns, the Court has attributed little weight to these matters by pointing out that the ability to apply for (and issue) a BIC as a means of regularising an unlawful structure has long been a legitimate part of the statutory planning scheme of the State.[3]  In light of this, the Court has consistently held that an appropriate manner for the Court to exercise its discretion in relation to a BIC appeal is to undertake an assessment of what it has described as a ‘notional’ or ‘hypothetical’ development application for the relevant structures.[4] This is the case even if there is a separate development application made for the future use of the structure (with that application being dealt with separately).

    Given the Court’s adoption of assessing a notional development application, a council would do well to undertake its own assessment of a notional development application for a building or structure which is the subject of a BIC application. The assessment of a notional development application would involve completing a s.4.15 assessment in the normal way as if the building or structure had not already been erected.

    In completing a notional 4.15 assessment it is important to keep in mind that, in the ordinary course,  the fact that the building or structure may have been erected unlawfully, of itself, is not relevant to the determination of the application for the future use of that structure. However, the fact that the structure is already in existence can be used in evaluating the likely impacts of the structure (for example, existing overshadowing, view loss etc.).[5]

    Enforcement action – should the council issue an order or take proceedings?

    If the Council decides that it cannot support the approval of a notional development application, it will then need to decide whether to issue an order or take proceedings requiring the building or structure to be repaired, demolished, altered or rebuilt.

    A council has a wide discretion when assessing whether to issue an order, or commence proceedings, in relation to an unlawfully erected building or structure and this is no different in the context of a BIC application.

    If a Council is contemplating Court proceedings, the utility of those proceedings needs to be considered. This is because the Court has a wide discretion in deciding whether to order an unlawfully erected building or structure to be repaired, demolished, altered or rebuilt. Where the proceedings involve an application to restrain the use of a building or structure that has been erected without development consent, the EP&A Act also expressly allows for the adjournment of the proceedings to allow an application to be made for that consent.[6]

    Some of the keys things that the Court will consider in deciding whether to grant a BIC or instead to issue an order requiring an unlawful building or structure be demolished etc. are:

    • Whether the unlawful works result in any adverse environmental effects;
    • The structural integrity of the building and the safety of occupants, neighbours and passersby;
    • Whether the development is prohibited under the EPA Act, and whether development consent could be obtained for the future use of the building or structure;
    • Whether any hardship would be suffered by the respondent to the proceedings;
    • The actions of the person who erected the structure, including what attempts, if any, have been made to regularise the breach of the law.

    If, after considering these matters, a council does not intend to take proceedings or issue an order in relation to the building or structure, the BIC should be granted.

    For more information on Building Information Certificates, contact us.

    Further Essential Guides to Local Government Law can be found here.

    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

    [1] Limited to orders issued or proceedings brought under the Environment Planning and Assessment Act 1979 (EPA Act) or Local Government Act 1993; s.6.25(1) of the Environmental Planning and Assessment Act 1979.

    [2] s.8.25(3) of the Environmental Planning and Assessment Act 1979.

    [3] Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [118 – 123]  

    [4] Ibid, at [32].

    [5] Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 at [35], [37] – [39].

    [6] Section 9.46(3)(a)  of the Environmental Planning and Assessment Act 1979.

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  • Uber Eats

    Uber Eats humble pie as restaurants are delivered from unfair contract terms

    Restaurants under immense pressure due to COVID-19 impacts received slight reprieve with Uber Eats being forced to remove unfair contract terms.

    Uber Eats can no longer have their cake and eat it too. The ACCC has forced the multinational company to remove “unfair contract terms” from their contracts with small restauranteurs.  It is no wonder that Uber’s contracts left a sour taste in the restauranteurs’ mouths when it included the following clauses:

    1. Restaurateurs party to the contract had to agree that Uber did not provide any delivery or logistics services. This lemon of a clause presents a pickle for contracting parties, not only does it present a legal fiction, but it is at odds with Uber’s website which is emblazoned with the words “we deliver”.
    2. The contract stated that the drivers were “agents” of the restaurant despite their workflow and pay being controlled by Uber, not the restaurant.
    3. In the event that the food became substandard, for instance if hot food became cold, Uber could demand that the restauranteur cover the customer refund.
    4. Uber Eats could unilaterally vary the contract at any time.

    Here the proof was in the pudding, as the ACCC considered that these terms were manifestly unfair and placed a disproportionate amount of risk on local restaurants.

    But what does it take for a term to be unfair?

    Section 23 of the Australian Consumer Law (“ACL”) prohibits unfair contract terms. For a contract term to be unfair it must:

    • Cause significant imbalance in the parties’ rights and obligations;
    • Not be reasonably necessary to protect the legitimate interests of the party advantaged by the term; and
    • Cause detriment to a small business (a business with 20 employees or less) if it were applied or relied upon.

    Uber’s terms outlined above from 1 – 4 contain all ingredients of unfair contract terms. For instance, consider terms two and three; here Uber essentially placed all risk associated with the standard of delivery on the restaurant. Despite the fact that these businesses have no control over delivery time, payment of delivery drivers or their workload. This is a classic example of how a ‘take it or leave it’ contract has caused a significant imbalance in the relationship between Uber and the restaurant. Uber would bear little to no risk under the contract, and restauranteurs would be liable under the agreement for issues of service outside of their control.

    Further, in instances where Uber has contracted with restaurants who employ less than 20 employees, if Uber choses to rely upon terms three and four, this could place small operators at considerable disadvantage. For example, some small restaurants reported that if Uber demanded that the restaurant refund a disgruntled customer, the restaurant had essentially provided their product for free to Uber.

    What are the consequences for an unfair contract terms?

    In short, none. Including unfair contract terms in an agreement does not attract any penalty under law. Indeed, s 23 of the ACL merely enables the ACCC to challenge the offending term in court and have it declared “void”. In a nutshell, this means that the ACCC cannot obtain civil pecuniary penalties when a term of a contract is found to be unfair.

    The lack of penalties in this area of law means that small businesses are at a great disadvantage when it comes to negotiating standard form contracts, as there is very little incentive for large corporations to comply with s 23. This was certainly the case here, as Uber Eats only agreed to change the terms of the contract so that restaurants would only be responsible for matters “within their control” after the ACCC intervened.

    Even though restaurants have received a momentary reprieve from Uber’s unfair contract terms, any losses that they have incurred as a result of the unfair terms will not be reimbursed. Although the Silicon Valley giant can no longer contractually grind small restaurants to make their bread, the lack of penalties for unfair contract terms puts smaller businesses on the chopping block whilst big businesses board the gravy train free of risk and liability.

    Written by Riley Berry with the assistance of Claudia Weatherall.

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  • How to protect intellectual property online

    How to protect your intellectual property in unprecedented times

    COVID-19 has propelled businesses into unprecedented times.  Many businesses will be able to adapt to new lockdown measures by moving to partially or fully operate online. Businesses moving online must understand and act fast to protect intellectual property.  In the case of Hardingham v RP Data Pty Limited,[1] a photographer assumed an “implied licence”, mistakenly relying on the assumption that an implied licence restricted the use of his intellectual property.

    Two missing intellectual property ingredients

    James Hardingham, a professional photographer, who was the sole director and shareholder of Real Estate Marketing Australia Pty Ltd (‘REMA’), took photos and made floor plans for a number of real estate agencies. Those agencies then uploaded the content to realestate.com.au (‘REA’) who then shared it with corelogic.com.au (‘RP data’) (‘the websites’). The legal battle that ensued comprised of two parts:

    1. no formal ownership agreement existed between the real estate agencies, the websites and REMA in relation to the copyright of the photos and floor plans provided by Mr Hardingham; and
    2. no clear understanding that when agencies uploaded the photos and floor plans to online property listing platforms on the websites, the photos would still be used by REA and RP data even after the sale or lease of a property had been completed. [2]

    Whilst Mr Hardingham recognised that there was an implied licence for the agencies to use his photographs and floor plans for the marketing of sale and lease of the properties on REA, he argued that the implied licence did not extend to RP data nor that any such implied licence would allow his intellectual property to be used long after the sale or lease (for which the images were originally made) had been completed.[3]

    Court finds implied licence exists

    The Court found that Mr Hardingham had known that real estate agencies had been uploading his intellectual property to REA since 2014. He should have known that the REA privacy policy was freely available to him. Since 2014, Mr Hardingham had set the fees of his services with the knowledge that the images would almost certainly be uploaded to both websites.[4] These factors pointed to the existence of an implied licence for the websites to not only use the images for the purpose of the sale or lease, but that the websites could retain the photos and floor plans uploaded by real estate agents. Furthermore, the Court found that as such listing platforms were used by the overwhelming majority of Australian real estate agencies, and so Mr Hardingham would have known that agencies were going to upload his content to these platforms.[5] The Court concluded that the agencies who had commissioned REMA’s work did not “own” the copyright over the uploaded images. Rather, proving such “ownership” was unnecessary for reason that an implied licence allowed the website owners the right to retain and use those images.[6]

    Lessons

    There are two main lessons that can be drawn from the case of Hardingham:

    1. clear and written Intellectual Property Licence Terms are always preferable over assuming that another party will use or not use your intellectual property in a certain way; and
    2. knowingly “acquiescing” to use of your intellectual property can demonstrate an implied licence for third parties to take and use your intellectual property. Conversely, if a copyright owner had no actual or constructive knowledge of its intended use by third parties, they may be able to demonstrate that the initial permission to use the images was more limited.

    Put another way, if you don’t take reasonable steps to control your copyright, allowing it to be taken and used in a system with established rules of use, then you might lose your right to that control, at least within that system.

    Contact BAL Lawyers dedicated team of Business Lawyers for advice on protecting your Intellectual Property rights online.  Our lawyers will work with you to establish clear guidelines and expectations around the use of your IP, or possible infringements, in the context of Australian Copyright Law.

    Written by Riley Berry with the assistance of Claudia Weatherall.

    [1]  [2019] FCA 2075.

    [2]  Ibid 24.

    [3]  Ibid.

    [4]  Ibid 60 – 64.

    [5]  Ibid 60.

    [6]  Ibid 85.

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  • Message regarding COVID-19

    The following is a message from our Managing Legal Director, John Wilson:

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