Land & Environment Court
What is the Land and Environment Court?
The NSW Land and Environment Court hears appeals and cases relating to environment and planning laws. The Court’s specialist jurisdiction covers merits and judicial reviews, civil enforcement, criminal prosecution, criminal appeals and civil claims involving planning, environmental, land, mining and other legislation.
What orders can the Land and Environment Court make?
The Land and Environment Court deals with civil enforcement and is concerned with restoring compliance with the law, rather than punishing those who break the law.
Orders the Court can make include Declarations (in the case of an Act being breached), Injunctions (restraining orders), Demolition orders and Remediation orders.
How much does it cost to lodge a case at the Land and Environment Court?
A filing fee needs to be paid to the Court before a case is started or an appeal is lodged. This cost depends on the type of case and whether you are an individual or corporation. Hones Lawyers will confirm the amount of the fee before proceedings are started.
Environment & Planning Law
What does Environmental and Planning Law cover?
Our Environmental and Planning Lawyers advise clients on areas such as town planning, development assessment, environment, land access, heritage and compulsory land acquisition and compensation. Matters can be dealt with in court or through other dispute resolution processes.
What's involved in subdividing property?
Subdividing land requires following a strict process for approval and development. The process includes a feasibility assessment, surveys, Development Application with local Council, a Plan of Subdivision, the creation of easements and restrictions and the lodgement of the Deposited Plan for creation of Title documents.
Can I appeal a heritage-listing?
You cannot appeal a heritage listing just because you disagree with the decision to list, however, the validity of the decision can be challenged in the Land and Environment Court if you believe the correct legal process was not followed when making the listing.
Compulsory Land Acquisition
Who can purchase my land through compulsory acquisition?
Whether you want to sell or not, government and quasi-government bodies in NSW are able to compulsorily acquire private land, or part of a property, for a public purpose. This includes state-owned corporations such as water suppliers, the state roads authority and transport network provider.
How long do I have to negotiate the terms of a compulsory purchase?
The Land Acquisition (Just Terms Compensation) Act provides a minimum period of 6 months for the acquiring authority and landowner to reach an agreement before a Proposed Acquisition Notice is served. Hones Lawyers can provide advice on compensation and claiming expenses related to valuation and legal fees during this process.
Am I entitled to any help with legal fees during a compulsory acquisition?
Yes – in most cases, the government will pay your legal fees associated with the acquisition process, including any costs of proceedings in the Land & Environment Court. Whatever stage you are at in the compulsory land acquisition process, contact the experienced lawyers at Hones for specialist advice.
What factors are taken into account for compensation for compulsory land acquisition?
Property owners should be compensated fairly, on the principle of ‘just terms’. There are a number of factors taken into account for compensation such as the market value of the land, any special value of the land, whether a business may be impacted, relocation costs and other points specific on a case by case basis.
It is advisable that property owners engage their own valuer, legal representation and other applicable experts, with the costs associated with these services being included in any compensation claim.
Has Hones Lawyers had success with compulsory acquisition matters historically?
Our specialist lawyers have been successful in negotiating a number of compulsory acquisition matters before they went to litigation. For matters that proceed to the Land & Environment Court, we pride ourselves on achieving the best outcomes for our clients with an over 90% success rate.
Which lawyers will I be speaking with at Hones regarding compulsory acquisition?
Compulsory land acquisition in NSW is an area of expertise for Jason Hones and Gavin Shapiro, both partners at Hones Lawyers. Jason has been in the legal industry since 1993 and Gavin has over 10 years of experience in Environment & Planning Law and Local Government Law. They are both ably assisted by Lesley Finn, an accredited specialist in Local Government and Town Planning Law with over 30 years of experience in planning and compulsory acquisition matters. Contact us today to speak with one of our lawyers.
What is a Development Control Plan?
A Development Control Plan (DCP) is a suite of controls that guide, and form a focal point, for the assessment of development applications. A DCP contains controls for such things as tree removal, parking, view loss/retention, height, built upon area, landscaping be it concerning residential, commercial or industrial developments (to name just a few).
When do I need to lodge a DA?
If you are building or renovating, you will need to find out whether you need approval from your local council for the proposed work. The exact requirements of whether a development application is necessary are determined by individual councils. Things taken into account include the Local Environment Plan, Development Control Plans and zoning regulations. Furthermore there are a number of types of development (usually small scale things, such as cubby houses and minor works) that do not require development approval (known as “exempt” development).
What is an occupation certificate?
An Occupation Certificate confirms that the principal certifying authority (either Council or a private certifier) is satisfied that works relating to a development consent have been completed in accordance with the development consent, in particular in accordance with the approved plans and that all relevant conditions have been addressed. Obtaining an Occupation Certificate is necessary step before occupying premises.
What is a subdivision certificate?
A Subdivision Certificate confirms that the local council is satisfied that works relating to a subdivision have been completed in accordance with the relevant development consent. Obtaining a Subdivision Certificate is necessary step before lodging a plan of subdivision with NSW Land Registry Services.
What is an easement?
An easement is the right over someone else’s land and can include a private or public right of way, such as a footpath or access road, or a right to access utilities such as water supply or gas/electricity supply.
How do I know if there are easements on my property?
You can contact the NSW Land Registry Services to check if there are any easements on your property and what the details are. Otherwise, the team at Hones can make enquiries for you.
Can I remove an easement from the title?
If the grantor of the easement agrees, an easement can be removed from the title. Hones Lawyers can assist in documenting any agreement to remove an easement and file it with the Office of Land Titles. An easement can also be removed from the title by the Court if you can prove it is not needed anymore.
Do I have to pay stamp duty if I am a first home buyer?
It depends on the value of the house, however from 1st August 2020, first home buyers in NSW do not have to pay stamp duty on properties valued at $800,000 or less.
How do I know if I am eligible for the first home owner grant?
There are several requirements if you intend to apply for the first home owner grant. As well as being an Australian citizen or permanent resident who is over 18 and who has not previously received a grant, you also have to live in the new house for a minimum of 6 months within a year of purchase. There are other requirements for the applicant/s and the property itself, which our property team can advise on.
Should I buy land and build?
If you have the right advice and guidance, buying land and building on it can be a great choice with many benefits. As well as enjoying your very own brand new home in the area you have chosen, the value of your property could also increase significantly over time. There can be some pitfalls of buying land and building too, so contact our team for some more advice to help you decide how to proceed.
Commercial & Retail Lease Agreements
What's the difference between a commercial lease and a retail lease?
A commercial lease generally refers to a lease for premises which aren’t used for selling to the public, such as warehouses, industrial sites or offices. A retail lease is a lease used for business premises which engage in the selling of goods. Usually in shopping centres, these premises have additional protection under the Retail Leases Act 1994 (NSW).
Can I terminate a commercial lease due to COVID-19?
The New South Wales government passed the Retail and other Commercial Leases (Covid-19) Regulations 2020 in April 2020; the provisions became effective from that date and have subsequently been extended. If you have been affected by COVID-19, Hones Lawyers can provide advice to tenants and landlords if parties are unable to come to an agreement regarding a lease.
Can you provide advice on entering a new commercial lease?
Whether you are a new tenant or a landlord, the lawyers at Hones can provide specialist advice on drafting or negotiating a commercial or retail lease. We can also help with registering a new lease as well as offering guidance if there is a lease dispute.
What can I do about waste which has been dumped on my land?
Depending on the type and amount of waste, you can report the offence to your local council, the police or the NSW Environment Protection Agency. You may also want to first investigate the nature of the waste and any contamination can also take action directly against the dumper if you know their identity. If the issue continues, get in touch with the team at Hones Lawyers and we will advise you on the best course of action.
When is an environment protection licence required?
Schedule 1 of the Protection of the Environment Operations Act lists the activities which require a licence to be carried out in NSW. If you need further help, the team at Hones can provide specialist advice and guidance when communicating with the EPA, in preparing licence applications, and advising on licensing requirements.
Can you help review a waste contract?
Waste contracts can be complex and our lawyers are experienced in reviewing and negotiating contracts, waste tenders, as well as assisting with contract disputes.
What's the difference between Company Title and Strata Title?
With Company Title, the owner owns shares in a company, as opposed to owning any real estate. They have the right to occupy the apartment in a building owned by the Company. With Strata Title, the owner receives a Certificate of Title to the property they have purchased, as opposed to a share certificate.
Can I convert a Company Title to a Strata Title?
Yes the conversion process can be time-consuming and expensive, but this is possible. There are a few steps involved, including ensuring at least 75% of the shareholders agree, gaining council approval and winding up the Company. The team at Hones can advise on what is involved.
What are the disadvantages of a Company Title?
Instead of owning the title, owners simply own a share in the company which owns the title. The value of the unit will probably not increase at the same rate as similar units owned under Strata Title. And some banks can be more reluctant to lend money for units under a Company Title. There are several advantages too – contact Hones for more advice.
Is it possible to add a new by-law or amend a by-law under a strata scheme?
Yes, most by-laws can be introduced or changed by a special resolution of 75% approval at a meeting of the Owners Corporation. Hones Lawyers can help with this process.
Can I manage my own strata title?
Yes, people may have self-managed strata schemes, this is common with a two lot strata scheme such as a strata title duplex – you do not have to engage a strata manager. The conveyancing team at Hones are able to advise on what is involved so you can decide if ‘DIY strata’ is for you.
Can you help resolve a strata dispute?
We recommend first trying to resolve any strata dispute with the other party by discussing the issue to see if you can come to an agreement. You can also use a third-party mediator to help in the process, or the matter can be taken to a Tribunal. Whatever stage of the dispute you are at, Hones Lawyers can provide the correct legal advice.
When do I have to pay transfer duty?
Transfer duty (formerly stamp duty) must be paid within 3 months of completing the sale or transfer. If the property is bought ‘off the plan’ the transfer duty must be paid within 3 months from the contract date, if you are purchasing the property as an investment property. If the property you are purchasing is going to be your principle place of residence then you may have up to 12 months from the contract to pay the stamp duty. Interest will begin to accrue if not paid within these periods.
What advice do you provide when buying a property?
When entering into a purchase contract there are many things to consider, including deposits, settlement periods, cooling-off periods and so on. Our conveyancers can help guide you each step of the way.
Do I have to attend settlement?
No, you do not need to attend on settlement day. We use the electronic PEXA platform and the transaction is effected via this electronic platform. If the settlement is a paper settlement then we use experienced settlement agents in Sydney who will protect your interests by ensuring all documents are checked and exchanged correctly.
Commercial Lease Disputes
How can I settle a non-retail commercial lease dispute?
It is essential to fully understand the terms of your lease. We suggest initially trying to negotiate directly with your landlord to try to resolve the issue. If this is unsuccessful or not possible, then seek mediation. If this fails, the team at Hones Lawyers can advise you on your options.
What do I have to be aware of when signing a commercial lease?
There are many parts to a commercial lease which need to be reviewed and agreed on before signing to reduce the likelihood of a dispute later. Things to consider include the rent and rent reviews, the bond, option to renew at the end of the lease, fixtures, maintenance, refurbishment, etc. The team at Hones can provide advice when entering into a commercial lease.
How are commercial rent increases worked out?
Rent under most commercial leases is increased during an annual review and is usually calculated either by an agreed percentage, by referring to the Consumer Price Index or by a market rent review. Details of rent reviews should be set out in the lease. If you need advice on a rent increase or you are in a dispute about an increase, contact the commercial team at Hones.