The legal landscape in 2024 has delivered some truly fascinating cases, providing valuable insights into the intricacies of planning, local government and development law in New South Wales.

Here, we unpack five judgments that offer practical lessons for all practitioners.

Kudrynski v Orange City Council [2024] NSWCA 33

This case revolved around the value of land compulsorily acquired by Orange City Council for a stormwater harvesting project. The appellants sought $160 million in compensation, arguing that the land’s value should account for the Council’s intended use of harvesting water. In stark contrast, the local council’s valuation was a modest $560,000, supported by expert evidence highlighting the land’s limited development potential due to flooding, easements, and proximity to public housing.

The Court dismissed the appeal, firmly rejecting the appellants’ valuation, which the Court said lacked expert evidence. The decision underscores the importance of basing claims on evidence rather than calculations by lay witnesses. This case reinforces the necessity of meticulous preparation in valuation disputes and the significant weight placed on expert evidence in compensation claims.

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Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17

This High Court decision underscores the fundamental principle that contractual obligations must be fulfilled, and failing to do so can carry severe consequences. Cessnock City Council had entered into an agreement for the lease of land, yet failed to take reasonable steps to register a required subdivision plan. The company, having spent over $3.7 million constructing a commercial building in reliance on the lease agreement, sought reliance damages when the Council’s breach rendered the lease unworkable.

The Court awarded the respondent full damages, emphasising that the Council’s breach directly caused the loss.

The judgment highlights the risks to councils with respect to their contractual responsibilities. It serves as a reminder for everyone to seek legal advice before entering into significant agreements, particularly where public funds and substantial developments are involved.

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Lahoud v Willoughby City Council [2024] NSWCA 163

In this case, the NSW Court of Appeal clarified the boundaries of appeals in planning disputes, particularly those arising from judicial review proceedings. Mr Lahoud challenged the granting of development consent for a shop-top housing project, alleging jurisdictional errors including non-compliance with height standards and contamination concerns.

However, the Court reaffirmed that appeals must focus on legal errors, not disputes over the merits of a development.

The Court’s decision dismissed Lahoud’s appeal, noting that while the development may have had merit-based concerns, these could not form the basis of a legal challenge unless a jurisdictional or legal error could be identified.

For practitioners, the case reinforces the importance of distinguishing between planning merits and legal grounds for appeal. It also highlights the need for clear and concise submissions that focus on the applicable legal framework.

Read the judgment here:

Cooke v Tweed Shire Council [2024] NSWCA 50

The characterisation of land use formed the crux of this case, which revolved around the growing and processing of hemp.

The appellant argued that cultivating hemp was “intensive plant agriculture” or “extensive agriculture,” both of which are permissible without local council consent under the Local Environmental Plan. However, the local council contended that the integrated activities -cultivating, processing, and packaging hemp-infused products for sale – constituted “rural industry,” requiring consent.

The Court upheld the council’s interpretation, concluding that the appellant’s use of the land could not be separated into permissible and non-permissible components. Instead, the activities were part of a single, integrated purpose, making the entire operation subject to consent.

This case is a stark reminder of the nuances in land-use categorisation and the importance of ensuring compliance with local planning instruments when conducting business operations on rural land.

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Pafburn Pty Ltd v The Owners – Strata Plan No 84674 [2024] HCA 49

This High Court case examined liability under the Design and Building Practitioners Act 2020 (DBPA), focusing on claims arising from construction defects in a residential strata building.

The owners corporation sought damages from the developer and head contractor for economic loss resulting from defective construction. Both defendants attempted to limit their liability by invoking proportionate liability under the Civil Liability Act 2002, arguing that other parties, such as subcontractors and certifiers, were also responsible.

The Court dismissed these arguments, ruling that statutory duties under the DBPA are direct and non-delegable, meaning liability cannot be apportioned to third parties.

The decision reinforces the rigorous obligations imposed on developers and contractors. For industry participants, this case serves as a critical reminder of the need to adhere to statutory duties and ensure meticulous oversight of construction projects.

Read the judgment here: