In the media
PIA wins federal parliamentary support for National
Settlement Strategy
The Planning Institute of Australia (PIA)
has strongly endorsed a federal parliamentary inquiry's call
for the development of a national plan of settlement to help guide
the growth of Australia's cities and regions (18 September
2018).
More...
ClimateWorks: Tracking Progress to Net Zero Emissions
report
The ClimateWorks' report does find that the building
sector has the potential to reach 69 per cent below 2005 levels by
2030 if it pursues a net zero pathway. Alongside efficiency and
clean electricity technologies, stronger standards for buildings
and appliances are expected to drive the majority of emissions
improvements (17 September 2018). More...
GBCA: Aussie big business signs up to Net Zero Carbon
Commitment
Australia's position as a green building world-leader
looks set to continue with a raft of leading companies signing up
to the World Green Building Council's
(WorldGBC) Net Zero Carbon Buildings Commitment
being announced in San Francisco (14 September 2018).
More...
Australian property companies top the GRESB table again
in 2018
For the eighth successive year, the Australia and New
Zealand real estate sector has outperformed other regions in the
world's sustainability benchmark, the Global ESG Benchmark for
real estate assets (GRESB). Australia and New
Zealand achieved an average GRESB Score of 76 and outperformed the
global average of 68 (12 September 2018).
More...
New guide does hard work on energy costs and emissions
for Australian property industry
Australian property owners – from residential to
large-scale commercial – can immediately cut their energy
costs and reduce their emissions thanks to a timely new guide from
the Clean Energy Finance Corporation and the Property Council of
Australia (12 September 2018).
More...
Victoria
Andrews pledges $230m for Cats' stadium as Guy drops
plan to scrap grand final holiday
The Victorian Premier promises Geelong's home of AFL
will get a new 14,000-seat grandstand, and the city's
performing arts centre will be upgraded, if Labor wins
November's state election (21 September 2018).
More...
Slashing red tape to boost local businesses and create
jobs
More than 250 new initiatives have been put in place to
reduce Victoria's gross regulatory burden by 25 per cent. These
include streamlining the way Councils require, access and collect
developer contributions to pay for infrastructure; making retail
leases fairer and easier to understand; making it easier for
businesses to set up events and festivals and allowing people to
take away unfinished open bottles of liquor from licenced venues
(14 September 2018).
More...
New South Wales
Over 100 actions taken by new water regulator
The Natural Resources Access Regulator
(NRAR) took 109 compliance actions, with four
progressing to prosecutions under the Water Management Act
2000. Eight landholders were also required to remediate the
areas they disturbed (19 September 2018).
More...
City of Sydney targets net zero carbon buildings by
2050
Sydney has partnered with more than 100 other cities from
around the world in committing to strong action on climate change
(19 September 2018).
More...
Greater Newcastle Metropolitan Plan unveiled
Minister for Planning and Housing, Anthony Roberts, has
announced a new period of investment and growth for Greater
Newcastle following the launch of the city's first-ever
metropolitan plan (17 September 2018).
More...
Commission to lead new koala research on north coast
state forests
As a part of the NSW Koala Strategy, the Commission will
lead new independent research on how koalas respond to native
forests (13 September 2018). More...
Fresh new look for Sydney's Martin Place
Better access to public transport, upgraded public spaces
and new commercial buildings will be part of the Martin Place
station redevelopment (12 September 2018).
More...
Heritage protections to save historic Kings Cross
In a bid to protect Sydney's iconic Kings Cross, the
City of Sydney has released new planning controls for
Australia's red light capital (12 September 2018).
More...
New development precinct Marsden Park North to thrive
under new masterplan
Marsden Park North, a new development precinct for
Sydney's North West, will become a thriving new community under
a NSW Government Masterplan (10 September 2018).
More...
Queensland
Gold Coast council asks court to reject a development it
approved
A Queensland council has recommended a court refuse a
planning application its own councillors signed off on (21
September 2018).
More...
Planning for growth sees change in legislation
The Palaszczuk Government has introduced legislation to
modernise economic development and planning legislation in
Queensland and support job creation. Repealing outdated legislation
will mean certainty for landowners that they are required to abide
by zoning requirements set out in the Redlands City Plan (19
September 2018).
More...
Queensland welcomes new Land Access Ombudsman
Landholders and resource companies have a new avenue to
resolve disputes over conduct and compensation agreements and make
good agreements with the appointment of Queensland's first Land
Access Ombudsman (14 September 2018).
More...
Investigation into claims Adani bores put 'sensitive
one-million-year-old springs' at risk
The Queensland environment department launches an
investigation into a series of groundwater bores drilled by Adani,
which conservationists say were sunk without approval, contrary to
the miner's claim it had permission for the works (12 September
2018).
More...
In practice and courts
Announcements, Draft Policies and Plans released 2018
New South Wales
The New South Wales Critical Infrastructure Resilience
Strategy 2018
The Strategy commits to delivering: more resilient
critical infrastructure to reduce service disruptions; better
emergency management arrangements; stronger relationships between
government, business and communities; planning for critical
infrastructure that prioritises resilience, adaptation and
mitigation investment. For more about the Resilient Sydney
strategy, click here (14
September 2018). More...
New dates for Environmental Planning & Assessment
Act updates
Councils, certifiers and other industry practitioners have
more time to implement some of the recent EP&A Act updates.
Changes affect new provisions for
building and subdivision certification,
Local Strategic Planning Statements for councils in the Greater
Sydney Region and
Community Participation Plans.
New South Wales water metering framework
consultation
The NSW Government is committed to implementing a robust
new metering framework to measure and meter water take in NSW. The
new framework is a commitment under the NSW Government's Water Reform
Action Plan. You are invited to comment on the policy and draft
regulation by 30 September 2018. The regulation will commence on 1
December 2018 https://www.industry.nsw.gov.au/water-reform/consultation
Queensland
Gazetted: Notice of a Major Amendment to Brisbane City
Plan 2014 made under the Sustainable Planning Act 2009
Brisbane City Council has adopted amendments to Brisbane
City Plan 2014 to include the Ferny Grove—Upper Kedron
neighbourhood plan together with necessary consequential
amendments. The amendments apply to parts of the suburbs of Upper
Kedron, and commenced on 21 September 2018. The amendments can be
accessed by searching for 'Ferny Grove-Upper Kedron
neighbourhood plan' here.
EHP Prosecutions: $250,000 fine for Dianne Mining for
evading environmental responsibilities
The Cairns Magistrates Court issued a $250,000 fine to the
company—as well a $50,000 fine to an executive
officer—for actions which posed a very serious risk of harm
to the environment.
More...
Revised contaminated land auditor handbook
released
In consultation with the Australian Contaminated Land
Consultants Association, a revised version of the
Queensland auditor handbook for contaminated land is now
available. The handbook is an important resource for people who
are, or want to become, auditors for contaminated land in
Queensland. It also provides information to those people who
investigate and write contaminated land investigation documents as
well as providing the community with details about how contaminated
land is regulated (12 September 2018).
PCA: Combustible Cladding Safe Buildings website
The 'Safer
Buildings' website will be the portal through which
building owners register and begin the new statutory three stage
process, aimed at identifying buildings in Queensland that may have
potentially combustible cladding. Details ore outlined
here.
Department of Environment and Science: Current
prosecutions
Prosecution bulletin no 12/2018
Cases
Victoria
Aquadonis Pty Ltd v Kingston CC (Red Dot)
[2018] VCAT 1407
NATURE OF CASE - Application under section 79 of the
Planning and Environment Act 1987 - whether CHMP required
- whether application should be dismissed in accordance with the
reasoning in Stanley Pastoral Pty Ltd v Indigo SC [2015]
VCAT 36.
LOCATION OF PASSAGE OF INTEREST Paragraphs 14 & 15.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - LAW –
Issue of interpretation or application. The Tribunal has
jurisdiction to determine a section 79 application if the
requirement to prepare a CHMP arises after the date the application
is made.
New South Wales
Cole v Pilowsky [2018] NSWLEC
1495
TREES (DISPUTES BETWEEN NEIGHBOURS) – Hedges –
obstruction of sunlight – consent orders – one tree not
situated on adjoining land – one of respondents' two
trees removed – no jurisdiction for orders
Cumberland Council v Tony Younan; Cumberland Council v
Ronney Oueik; Cumberland Council v H & M Renovations Pty
Ltd [2018] NSWLEC 145
ENVIRONMENTAL OFFENCES – Defendants charged under s
125(1) of Environmental Planning and Assessment Act 1979
(NSW) – offence of carrying out development without a
construction certificate where a construction certificate was
required – alternative charge of aiding, abetting or
procuring carrying out of offence – whether alternative
charge available.
CRIMINAL LAW – Hearing on separate questions before matters
proceed to trial – whether proceedings brought out of time
– when evidence of the offence was brought to the attention
of an investigations officer – whether Land and Environment
Court has power to hear proceedings brought in relation to
accessorial liability pursuant to common law principles.
Sydney Advantage Investments Pty Ltd v Deep River Group
Pty Ltd T/as Precise Planning
[2018] NSWLEC 151
JUDICIAL REVIEW - Application for extension of time to
commence proceedings - arguable case established - adequate
explanation for delay - balancing interests warrants granting
extension - extension granted.
Snowy Monaro Regional Council v Tropic Asphalts Pty
Ltd [2018] NSWCCA 202
ENVIRONMENT AND PLANNING – Consent –
conditions – construction – condition required
development to be carried out substantially in accordance with a
statement of environmental effects – whether statement
imposed a limit on the maximum daily production of a plant.
ENVIRONMENT AND PLANNING – Offences – prosecutions
– practice and procedure – charges laid for breach of
conditions imposing maximum daily limits on plant operations
without specifying particular day – whether charges bad for
duplicity.
Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No
4) [2018] NSWLEC
149
JUDICIAL REVIEW - Requests for statements of reasons -
document provided by Council not a statement of reasons - document
provided by Department not a statement of reasons of the
Minister's Delegate - documents rejected.
JUDICIAL REVIEW - Making of amendment of local environmental plan -
provision of zoning map with application for gateway determination
- complaint no zoning map provided - indicative layout plan
provided - held plan provided sufficient detail to satisfy
statutory provision - if plan did not do so, failure did not
vitiate process for seeking of gateway determination - Ground 1
rejected.
JUDICIAL REVIEW - Allegation of defective air quality report as
part of public consultation process - ground seeks impermissible
factual review of report's conclusion - report's conclusion
not manifestly unreasonable - Ground 2 rejected.
JUDICIAL REVIEW - Failure of Council to consider report lodged
concerning desirable curtilage of items listed as local heritage
items in LEP - holding out that report would be considered -
circumstances of holding out limited - circumstances not satisfied
- unnecessary to consider if power to waive requirement for timings
of lodgement of submissions - community consultation process did
not fail as a consequence of non-consideration of report - Ground 3
rejected.
JUDICIAL REVIEW - Alleged failure to consider likelihood of state
heritage listing of expanded curtilage - no basis to believe OEH
would have advised expanded curtilage being considered - statutory
heritage listing process not commenced prior to making of LEP
amendment - expanded curtilage not necessarily in conflict with
rezoning - three separate reasons to reject Ground 4 - Ground 4
rejected.
COSTS - Multiple respondents - potential for public interest
challenge argument available to Applicant - costs reserved.
Johnston v Wollongong City Council
[2018] NSWLEC 1331
APPEAL – Development application – dwelling on
headland – coastal processes – precedent – visual
impact of the development on a prominent headland.
Soligo v Fairfield City Council
[2018] NSWLEC 1484
DEVELOPMENT APPLICATION – Subdivision –
non-compliance with LEP standard, whether cl 4.6 of FLEP is
satisfied.
Wilson v MidCoast Council [2018]
NSWLEC 1489
APPEAL - Modified development consent granted for a
service station and convenience store - appeal against the terms of
a condition of consent requiring a levy contribution under s 94 -
whether the formula used to calculate the monetary contribution for
a petrol station and convenience store should include a discount
for passing trade trips - whether there is power to modify the
terms of the condition - whether the condition is unreasonable in
the particular circumstances of the case.
McEwan v Port Stephens Council
[2018] NSWCATAP 211
APPEAL – ADMINISTRATIVE LAW – Access to
objections to development application – balancing of
interests for and against disclosure where information sought is
open access information – public interest considerations
against disclosure – application of appeal right where part
of reasons not disclosed to appellant – adequacy of reasons
– need to address material evidence against existence of
factor relied upon to refuse disclosure.
Whittaker v Northern Beaches Council (No
3) [2018] NSWLEC 143
SEPARATE QUESTION - Whether proposed development is
permissible with consent or is prohibited – applicable
principles of construction of an environmental planning instrument
– meaning of "geotechnical hazard" and
"natural hazard" – whether the term
"geotechnical hazard" is a "like description"
for "natural hazard" – held it is not –
development permissible with consent.
Charitable Islamic Association of Beirut City
Incorporated v The Owners Strata Plan No 75506
[2018] NSWCATAP 207
APPEAL – Whether Tribunal below erred in the
exercise of its discretion to refuse an adjournment application
made at the commencement of the hearing below – no error of
the exercise of discretion established.
Castle 78 Pty Ltd (ABN 57 606 424 720) v Liverpool City
Council [2018] NSWLEC 1476
DEVELOPMENT APPLICATION - Conciliation conference -
agreement between the parties - orders.
Queensland
Albion Mill FCP Pty Ltd & Anor v FKP Commercial
Developments Pty Ltd [2018] QCA
229
CONTRACTS – VENDOR AND PURCHASER – DISCLOSURE
OF MATERIAL FACTS – Where the respondent entered into a
contract with the appellant in July 2015 for the sale of a
development site – where three of the lots comprising part of
the development site were contaminated and included in the
environmental management register – where the former s 421
Environmental Protection Act 1994 (Qld) required a vendor
of contaminated land recorded in the environmental management
register to give written notice to a potential purchaser of the
particulars of the land recorded in the register and details of any
site management plans prior to any agreement for disposal of the
land – where the appellant attempted to rescind the contract
in reliance upon s 421(3) Environmental Protection Act
1994 (Qld) – where the employee of the related company
who was granted access to the data room was the sole director of
the appellant – where the learned trial judge was satisfied
that notice under s 421 Environmental Protection Act 1994
(Qld) had been given to the appellant by the respondent –
whether written notice had been given to the appellant by the
respondent as required by s 421(2) Environmental Protection Act
1994 (Qld), such that the appellant was not entitled to
rescind the contract under s 421(3) Environmental Protection
Act 1994 (Qld).
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES –
INTERFERENCE WITH JUDGE'S FINDINGS OF FACT.
Waterman v Logan City Council
[2018] QPEC 44
PLANNING AND ENVIRONMENT COURT – APPLICATION –
Where in the substantive proceedings the Appellants are challenging
a decision by the Council to grant preliminary approvals only with
respect to the Appellants' development application –
where in those proceedings the Appellants are also challenging
conditions of the preliminary approvals – where orders of
this court have previously identified the issues in dispute by
reference to the Notice of Appeal and the Co-Respondent by
Election's issues in dispute – where the disputed issues
refer to the Council's decision to grant preliminary approval
only and to some conditions – where Council now seeks to
contend that the development application should be refused –
whether the Planning and Environment Court has jurisdiction to hear
Council's issues – whether the Court should, in the
exercise of its discretion, permit the Council to expand the issues
in dispute.
Beauchamp v Brisbane City Council
[2018] QPEC 43
PLANNING AND ENVIRONMENT – APPEAL – Appeal
against refusal of proposed partial demolition of pre 1947 dwelling
house – whether proposed partial demolition would result in
loss of integral component, whether development would result in a
narrow building with a width-to-height proportion out of character
– whether development would diminish traditional building
form – whether development would result in a loss of
traditional building character – whether compliance with
relevant overall outcomes.
Bunnings Group Ltd v Sunshine Coast Regional Council
& Ors [2018] QPEC
42
PLANNING AND ENVIRONMENT – APPEAL – Appeals
against refusals – refusals of development applications for a
material change of use of premises to establish a Bunnings
Warehouse.
CONFLICT – Conflict with the superseded planning scheme
– whether proposed developments conflict with the superseded
planning scheme.
PLANNING NEED – Whether there is a need for a Bunnings
Warehouse at Coolum Beach.
GROUNDS – Whether there are sufficient grounds to justify an
approval of a Bunnings Warehouse on the land despite the
conflicts.
Delta Contractors (Aust) Pty Ltd v Brisbane City
Council [2018] QPEC
41
PLANNING AND ENVIRONMENT – APPEAL – Appeal
against refusal of a proposed partial demolition of a pre-1946
dwelling house – whether the partial demolition results in
the loss of integral components which contribute to streetscape
character – whether the proposed partial demolition
diminishes traditional building form – whether the partial
demolition will result in loss of traditional building character
– whether the partial demolition reduces the building's
positive contribution to the visual character of the street –
whether the development ought be approved having regard to relevant
matters.
Legislation
Airports Amendment Bill 2018
Finally passed both Houses 12 September 2018.
Amends the Airports Act 1996 to: implement a differential
master plan submission cycle for federal leased airports (excluding
Mount Isa and Tennant Creek); mandate the inclusion of an
Australian Noise Exposure Forecast in each new master plan;
increase the monetary trigger for major development plans
(MDPs) from $20 million to $35 million and enable
the minister to review and revise the monetary trigger every three
years; specify a 15 business day statutory timeframe within which
the minister must consider applications from airport-lessee
companies for reduced consultation periods for MDPs.
New South Wales
Non-Government
Environmental Planning and Assessment Amendment (Short-term Rental
Accommodation) Bill 2018
Marine Parks Amendment (Moratorium) Bill 2018
Bill passed by both Houses of Parliament – 21
September 2018
Strata Schemes Management Amendment (Building Defects Scheme) Bill
2018
For the full text of Bills, and details on the passage of Bills, see here.
Queensland
Bills
Economic Development and Other Legislation Amendment Bill
2018
Introduced on 19/09/2018 Referred to Committee on 19/09/2018
Part 3 Amendment of Building Act 1975
Amendment of s 83 (General restrictions on granting building
development approval); Part 20 Transitional provision for Economic
Development and Other Legislation Amendment Act 2018; 346 Existing
building development applications.
Part 4 Amendment of Building Queensland Act 2015
Amendment of s 14 (Preparation of business cases for
infrastructure proposals); Amendment of s 15 (Preparation of
infrastructure pipeline document.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.