Law

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Exercise # 1
1. January 1, 1901 was a significant day in Australia because it was the birth of their new Federation (Reynolds 8). The former independent six self-governing colonies of Australia (Tasmania, New South Wales, Western Australia, Queensland, South Australia, and Victoria) were unified into one nation. Thus, the Commonwealth of Australia was inaugurated (Reynolds 9). This event is important to Development Controls, because the birth of a new nation also signifies the start of urban planning movement and development controls in Australia.
2. Part 8-S51 Constitution NSW covers the constitutional recognition of local governments. Prior to the creation of Part 8-S51, the local government was still dependent on the State governments – the local governments derive its powers and existence from State parliaments’ legislation (Pearson 3). Thus, in 1986, the New South Wales Constitution was amended by adding the S-51 provisions, which was an attempt to formally recognize local governments. However, the provision “does not require the local governments be elected by the people affected by their activities, and more importantly does not restrict in any way the ability of the State government to dismiss councils” (Pearson 4).
3. Section 7 of New South Wales Constitution covers the “Power to Alter Constitution of Legislative Council or Legislative Assembly” (Section 7 NSW).
4. As cited in Section 7 of New South Wales Constitution, there is a way to alter legislative assembly and council.

Any proposed changes in the constitution can only be rejected or accepted through the process of referendum.
5. Section 128 of Commonwealth Constitution entails the process of alteration of constitution. Basically, this section describes the process of referendum and how can a proposed bill be passed or not. The last part of the section also elaborated the meaning of “territory” in the context of the Commonwealth Constitution.
6. Local Government (Administration) Regulations 1996 is one of the many Acts that the Department of Local Government administers. Under Section 5 of the Act, the local government is entitled to administer annual reports and planning. This covers both corporate business plan and strategic community plan. The latter related to the development as it covers planning for the future. For instance, Division 3, provisions 19C covers “Strategic community plans, requirements for (Act s. 5.56)”.
7. Section 7 of the Local Government Act covers “the Act to provide for local governments in New South Wales” (Local Government Act). The provisions of section 7 include “the relationship between local government and the State government, and the powers of the Minister and Department, and the relationship between local councils and their communities, and their accountability to those communities” (Pearson 7).
8. Section 4 of the Local Government Act proves that the Act binds the Crown. Therefore, the Act requires the government to comply with the said Act.
9. The Crown mentioned in section 4 of the Local Government Act to mean the government. According to Gifford & Salter (2012), the “crown” does not necessarily mean the queen or the king, rather, “the State as a body, by whatever name it is known in the particular country concerned” (147).
10. The Interpretation Act of 1987 can be used to interpret other Acts. The long title of the Act states, “An Act relating to the interpretation, construction, application and operation of the legislation of New South Wales; to enact certain provisions of a common or general nature; to make provision with respect to the exercise of certain statutory functions; and for other purposes” (Interpretation Act). Therefore, it was designed to establish rules and laws for the interpretation of other legislations including that of Acts.
11. Section 33 of the Act states that “In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object” (Interpretation Act, S33).
12. Headings in an Act can be used for interpretation in accordance with section 35, provisions 1, 3 & 4. Headings in an Act CANNOT be used for interpretation if and only if: “(a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), (b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or (c) a marginal note, footnote or endnote in an Act or instrument” (Section 35-2).
13. Section 36 of the NSW Consolidated Acts covers the process of reckoning of time for the following consequences: if the Act or instrument was given during that day (1); “If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of anything falls: (a) on a Saturday or Sunday, or (b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done” (2); “If in any Act or instrument a period of time is prescribed or allowed for the doing of anything and a power is conferred on any person or body to extend the period of time: (a) that power may be exercised, and (b) if the exercise of that power depends on the making of an application for an extension of the period of time-such an application may be made” (3) (NSW Consolidated Acts, S36).
14. Definition:
– Real Property: This is a fixed property, principally buildings and land.
– Land locked: According to the legal dictionary, “land locked” pertains “to a parcel of real property which has no access or egress (entry or exit) to a public street and cannot be reached except by crossing another’s property. In such a case, there is an “implied easement” over the adjoining lot from which it was created (carved out)” (The Legal Dictionary).
-Easement: According to the legal dictionary, this word pertains to “a right of use over the property of another” (The Legal Dictionary).
– Prescriptive Easement: According to the legal dictionary, this word entails “an easement upon another’s real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement” (The Legal Dictionary).
Exercise # 2
1. Section 5 of the Environmental Planning and Assessment Act covers the objectives of the Act, which include encouraging (1), to promote environmental planning (2); and to provide opportunity for the participation and involvement of the public (3).
2. According to the provision of Section 5B, one objective of the Act is “to promote the sharing of the responsibility for environmental planning between the different levels of government in the State” (Environmental Planning and Assessment Act, S5B). The provision does not exempt the involvement of government departments as they are also part of the State.
3. The Act controls threatened species in accordance with Sections 5A (Significant effect on threatened species, populations or ecological communities, or their habitats), 5C (Application of Act with respect to threatened species conservation-fish and marine vegetation), 34A (Special consultation procedures concerning threatened species), and 115 N (Special Provisions Relating to Threatened Species Conservation).
4. Section 5A specifically covers “significant effect on threatened species, populations or ecological communities, or their habitats” (Environmental Planning and Assessment Act, S5A). The provision includes assessment guidelines and key threatening processes toward the conservation of threatened species.
5. The word “shall” in Section 9 of the Interpretation of Legislation Act is covered under S9(2) provision: “There in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word “shall” is used in conferring a power, that word shall be construed as meaning that the power so conferred must be exercised” (The Interpretation of Legislation Act, S9-2).
6. The word “may” in Section 9 of the Interpretation of Legislation Act is covered under S9 (1) provision: “Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word “may” is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion” (The Interpretation of Legislation Act, S9-1).
Works Cited
Environmental Planning and Assessment Act of 1979. New South Wales Consolidated Acts, 2015. Web.
Glifford, D. J. & Salter, John. Understanding Act of Parliament. Routledge, 2012. Print.
Interpretation of Legislation Act of 1984. Victorian Current Acts, 2015. Web.
New South Wales Consolidated Acts. Austilii, 2015. Web.
Pearson, Linda. Local Government Law in New South Wales. Sydney: The Federation Press Pty Ltd, 1994. Print.
Reynolds, Henry. Celebrating Australia’s First Birthday. Social Alternatives 33 (4): 8-10, 2014. Print.
The Legal Dictionary. FreeDictionary.net. 2015, Web.