In the media
PCA: Unlocking the potential of distributed energy
Australia could triple the amount rooftop solar by
unlocking the potential of commercial buildings, but only if the
property and energy industries work together, finds a new report
(11 June 2019).
More...
Brace for impact - climate change litigation is fast
approaching
Litigation 2.0 will force companies to assess and report
on the risks of climate change and potentially set out plans for
mitigating those risks. Companies and their directors could soon
face liability (including personal liability) if they fail to
assess and address risks relating to climate change (28 May 2019).
More...
Victoria
Property Council & CEFC: Distributed energy in the
property sector: Unlocking the Potential
There is significant opportunity for Australia's
property sector to transform from a passive participant in the
energy market to an active electricity producer and energy market
participant, according to the latest report from The Property
Council and CEFC (11 June 2019).
More...
Ghost shops haunt new apartment blocks as 'perfect
storm' hits suburban retailers
An expansion in so-called 'hard-top' shopping
centres and 'big box' retailers has taken anchor tenants -
plus cash and other tenants - from smaller centres and shopping
strips. Massive apartment developments on, and on the periphery of,
the strip have added thousands of residents. But it has not stopped
a slow rise in vacancy rates (06 June 2019).
More...
Developers seek non bank finance amid lower
presales
Tighter finance conditions and less investor activity in
the market continues to challenge developers as the retreat of
major banks from commercial real estate lending gives way to a rise
in demand for alternative lending (03 June 2019).
More...
Mirvac pounces on Queen Victoria Market site in
build-to-rent bid
Property giant Mirvac will transform a key site next to
the historic Queen Victoria Market into Melbourne's first
build-to-rent complex after striking a deal with developer PDG
Corporation (03 June 2019).
More...
NSW
Planning Minister Rob Stokes flags medium density
housing code review
It could be easier for landowners and developers to build
terraces and other medium-density homes in more areas of Sydney by
the end of the year. The Planning Minister, Rob Stokes, is a keen
supporter of the medium-density housing code as a means to increase
the diversity of housing (13 June 2019).
More...
Australia's biggest airlines sign memoranda of
understanding with Western Sydney Airport
The memoranda of understanding (MOU) will
see the airlines provide insights into designing and planning
Western Sydney International (Nancy-Bird Walton) Airport, as well
as having early discussions around future airline services using
the airport. The MOU will see the organisations collaborate on a
range of elements, including sustainability, including resource
reuse and recycling (11 June 2019).
More...
NSW Budget: $19 million to enhance green space
Residents across Sydney will soon have access to new
playgrounds, walking trails, and cycleways as part of a $19 million
transformation of
government-owned land (10 June 2019).
More...
Queensland
Adani gets final environmental approval for Carmichael
mine
Adani has passed its final environmental approval and can
now begin work on its Carmichael mine in Central Queensland after
nearly nine
years of planning, fierce protests and endless political debate (13
June 2019).
More...
Brisbane's 'green' budget aims for more
parks and public spaces
Cr Schrinner made several pledges in the weeks leading up
to the $3.1 billion budget, not least of which included a plan to
close down the council-owned Victoria Park golf course in the heart
of the city and convert it to public parkland (12 June 2019).
More...
Planning amendments perfect news for Logan craft
brewers
Recently approved amendments to Logan City Council's
(LCC) planning scheme will make it easier for new craft brewing
business ventures in Logan (10 June 2019).
More...
Land clearing battle moves to High Court
A battle over how land clearing is regulated across
Queensland has moved to Australia's highest court, which pits
the development industry and farming lobby against a South-East
Queensland council.(10 June 2019).
More...
Aged Care Village at Indooroopilly Golf Club Gets Green
Light
Aura Holdings, previously a joint venture between former
RetireAustralia executives and embattled Blue Sky Alternative
Investments, has received development approval for a retirement
village at a popular golf club in Brisbane's west (05 June
2019).
More...
In Practice and Courts
Commonwealth
Guide to low carbon precincts: CRC for Low Carbon
Living: 05 June 2019
This document is a resource for anyone planning or
assessing new low carbon precincts. Its advice complements existing
policy and may be of use to developers, planners, policy makers and
the community—anyone who is seeking to understand how to
create sustainable urban outcomes (05 June 2019). More...
Victoria
Living Melbourne: our metropolitan urban forest: The
Nature Conservancy, Resilient Melbourne
This document outlines a bold new strategy for a greener,
more liveable Melbourne. It presents a vision of international
significance in its massive scale, its outstanding collaboration,
and its use of new and innovative mapping technology (05 June
2019). More...
Sale of Land Amendment Act 2019 - Legislation
update
The Victorian Government has passed new laws that will
remove the ability of developers to use sunset clauses to
intentionally delay building projects and exploit buyers (05 June
2019).
More...
SRO: State Budget 2019-20 handed down
The State Budget
2019-20 includes a number of announcements related to
legislation administered by the State Revenue Office. We have
produced an information table
providing an overview of the measures contained within the
announcements (27 May 2019).
Complex land transfer transactions to be managed
online
Land Use Victoria has mandated that complex land transfer
transactions, currently managed via paper settlement, must be
lodged and managed online from August 2019. This applies to
conveyancers and lawyers acting for a party or for
themselves.
Duties Online enhancements, which are scheduled to take effect
from 17 June 2019, will: Lower administration
costs; Improve settlement completion rates; Mean duty is calculated
prior to settlement; Increase data security; Ensure information is
viewed and agreed to by all parties before settlement.
NSW
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. CPPs must be finalised and
published on the ePlanning portal by 1 December 2019.
Current LEP Proposals from 31 May 2019
Amendment to SEPP (Sydney Region Growth Centres) 2006 -
Reclassification of 15Z Nelson Road, Box Hill
Changes to Housing SEPPs
The SEPP will not apply in heritage conservation areas in
Greater Sydney until 1 July 2020.
More...
Queensland
Mackay PDA Update
Queensland Government has approved the development scheme
for the Mackay Waterfront Priority Development Area (PDA). The
development scheme includes a land use plan, infrastructure plan
and implementation strategy, for the 172-hectare area (14 June
2019).
More...
Department of Environment: Prosecution bulletins
A selection of the department's enforcement actions
are summarised in prosecution bulletins outlining the facts and
outcomes of finalised prosecutions.
More...
Queensland Urban Utilities Announces Increases
Queensland Urban Utilities has announced an increase in
charges for residential and commercial properties.
Increased charges apply to water and sewerage. QUU's website
provides a full breakdown of prices across the five regional areas:
Brisbane, Ipswich, Lockyer Valley, Scenic Rim and Somerset (June
2019).
More...
Cases
Victoria
Japara Developments Pty Ltd v Knox CC (Red
Dot) [2019] VCAT
828
Planning application for a residential aged care
facility
LOCATION OF PASSAGES OF INTEREST
Paragraphs 5-8 (Law); Paragraphs 35-41 (Consideration of a VPP
provision); Paragraphs 48-70 (Analysis)
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
LAW – issue of interpretation or application - That the
requirements of clause 53.17 override requirements of the
applicable Zone and Overlays but do not override policy
considerations.
PLANNING SCHEME – interpretation or consideration of VPP
provision
Consideration of clause 53.17 in a context of policies, zone
provisions and overlays that discourage large, bulky built
form.
ANALYSIS – exposition of how to asses an issue or matters to
consider
Matters to consider when assessing a residential aged care
facility
Gray v Minister for Energy, Environment and Climate
Change [2019] VSC
382
TOWN PLANNING – Victorian Civil and Administrative
Tribunal Act 1998 s 148 – Tribunal decision to refuse permits
required with respect to proposed dwelling and proposed works
– Authority of Departmental Officer to object to grant of
permit – Authority to institute application for review of
local Council's decision – Tribunal finding as to access
– Whether access track a public highway – Whether
Tribunal's conclusions as to access track correct –
Whether Tribunal's reasoning with respect to bushfire risk,
removal of native vegetation and impact on waterways open –
Leave to appeal refused.
Naroghid Wind Farm Pty Ltd v Minister for
Planning [2019] VCAT
800
Application under section 79 of the Planning &
Environment Act 1987; Corangamite Planning Scheme; Farming Zone;
Wind Energy Facility (Wind Farm); Impact on the Cobden aerodrome;
Aviation safety; Adequacy of information about potential impact on
Southern Bent-wing Bat
Fonti v Mornington Peninsula SC
[2019] VCAT 739
Section 77 of the Planning and Environment Act 1987;
Mornington Peninsula Planning Scheme; General Residential Zone
(GRZ1); proposed three double storey dwellings; policy context,
design response to neighbourhood character
3A Baker St Pty Ltd v Yarra Ranges CC
[2019] VCAT 768
Section 77 of the Planning and Environment Act 1987. Yarra
Ranges Planning Scheme. Residential Growth Zone - Schedule 1;
Design and Development Overlay - Schedule 7; Eight-dwellings on a
lot; Visitor parking dispensation; Scale and intensity; Off-site
parking and traffic.
Meredith-Aubrey Pty Ltd v South Gippsland
SC [2019] VCAT 726
Section 77 Planning and Environment Act 1987; South
Gippsland Planning Scheme; Farming Zone; Bushfire Management
Overlay; Dwelling; BMO only permit requirement; Bushfire
Management; Siting; Length of access way.
NSW
Environment Protection Authority v Davis
[2019] NSWLEC 79
ENVIRONMENTAL OFFENCES – sentencing for five special
executive liability offences arising from provision of false
information in quarterly reports and annual return required by
conditions of environmental protection licence
Jarosz v State of New South Wales
[2019] NSWSC 692
HIGHWAYS – creation of – public roads –
dedication at common law prior to 1920 – unsealed dirt road
connecting several residential properties in the Burragorang State
Conservation Area – where the land on which the dirt road
runs is Crown land – whether evidence including Crown Plans
showed an intention to dedicate land as a public road –
whether evidence of use showed that land had been dedicated by the
Crown as a public road – effect of the Crown Lands Alienation
Act 1861 (NSW) – evidence not sufficient to establish that
land became a public road at common law prior to 1920 TORTS –
private nuisance – claim by the plaintiffs against the State
as occupier of a dirt road on land situated in the Burragorang
State Conservation Area – where the dirt road maintained as a
fire trail – whether the State's management of the dirt
road amounts to an unreasonable interference with the
plaintiffs' ability to access their land – State's
management of road not shown to be unreasonable
Trustees of the Marist Fathers for the Province of
Australia v Hunters Hill Council [2019]
NSWLEC 1255
DEVELOPMENT APPLICATION–Subdivision of St Peter
Chanel Church land – whether the site is suitable for the
proposed development – assessment of visual impact - whether
the development has an adverse heritage impact – appeal
dismissed
Architecture Design Studio Pty Ltd v Fairfield City
Council [2019] NSWLEC
1253
DEVELOPMENT APPLICATION – place of public worship
(mosque) and community centre – uses currently operating
– parking availability – proportion of parking that
should be on-site and on-street – objections based on impact
of parking on nearby businesses and in street – proposed cap
on numbers – DCP interpretation to determine required parking
rate – plan of management
RebelMH Neutral Bay Pty Limited v North Sydney
Council [2019] NSWCA
130
APPEAL – appeal against Land and Environment Court
judge's decision to refuse development application –
proposed development contravened height development standard
– judge not satisfied cl 4.6 request justified contravention
– judge not satisfied development consistent with objectives
of standard – whether misdirection as to cl 4.6 and
objectives of standard – whether denial of procedural
fairness by not giving amber light approach
Vella v Penrith City Council
[2019] NSWLEC 1247
DEVELOPMENT APPLICATION – 45 place child care centre
– adequacy of outdoor play space for child development
– noise impact
ZTA Group Pty Ltd v Canterbury-Bankstown
Council [2019] NSWLEC 1248
DEVELOPMENT APPLICATION – Torrens title
subdivision – attached dual occupancy dwellings –
minimum lot size - front building line width – cl 4.6
variation request –amenity – solar access building
orientation
Boensch v City of Parramatta Council
[2019] NSWLEC 1249
INTERLOCUTORY APPLICATION – application to set aside
a Notice to Produce to the Court – relevance – whether
legitimate forensic purpose – whether documents sought will
materially assist in the identified issue – Notice to Produce
unacceptably broad – only some documents would assist
Blacktown City Council v Nitopi
[2019] NSWLEC 40
CONTEMPT - operate waste or resource transfer station
without development consent - Class 4 proceedings commenced by
Council to restrain unlawful use - consent orders to resolve
proceedings - undertaking to remove at least half of the 2,600
cubic metres of waste on the site by 31 December 2017 - no waste
removed by that date - no waste removed by 31 March 2018 when
second undertaking subsumed the effect of the undertaking to remove
half the waste - serious criminal activity directed at the
Respondent - impact on Respondent significant ameliorating factor -
perpetrators arrested in early February 2018 - no reasonable excuse
after that time for failure to remove waste - Respondent pleaded
guilty but not at the earliest occasion - consideration of the
Respondent's subjective circumstances - fine appropriate for
breach of first undertaking - Respondent fined $5,400 CONTEMPT -
operate waste or resource transfer station without development
consent - Class 4 proceedings commenced by Council to restrain
unlawful use - consent orders to resolve proceedings - undertaking
to remove all of the waste from the site by 31 March 2018 - no
waste removed by that date - Respondent relocated to Queensland -
relocation said by Respondent to be on the advice of the New South
Wales Police - evidence from nominated police officer that no such
advice was given - Respondent continued to run a range of business
interests while relocated in Queensland - Respondent visited Sydney
during period of relocation - no steps taken to commence waste
removal process until after commencement of contempt proceedings -
waste removal processors supervised by the Respondent personally in
order to minimise costs of removal - removal staged to avoid
transport of wet material - substantial additional cost savings
achieved - during period of waste removal activities, Respondent
travelled overseas on business - consideration of Respondent's
subjective circumstances - plea of guilty but not on the earliest
occasion - serious, wilful contempt by breach of undertaking to
remove the entirety of the waste by 31 March 2018 - specific
deterrence needed under the circumstances in addition to general
deterrence - substantial fine warranted - Respondent find $72,000
COSTS - Applicant seeks costs on indemnity basis - Respondent
proposes that costs should be on an ordinary basis - Applicant
public authority seeking to enforce the planning law -
Respondent's contempt serious and wilful - customary position
that, in such circumstances, Applicant would be awarded costs on
the indemnity basis - no valid reason to depart from that position
- Respondent ordered to pay the Applicant's costs on the
indemnity basis.
Inland Rivers Network Incorporated v
Harris [2019] NSWLEC
74
PRACTICE AND PROCEDURE – review of Registrar's
decision fixing hearing dates – in interests of justice to
vary hearing dates.
Queensland
Gold Coast City Council v Sunland Group Limited &
Anor [2019] QCA 118
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS
WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING
AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS
– where the applicant had issued infrastructure charge
notices to the respondent – where the respondent appealed the
applicant's decision to issue the infrastructure charge notices
to the Planning and Environment Court – where the Planning
and Environment Court made declarations overturning the imposition
of the infrastructure charge notices – whether the Planning
and Environment Court erred in their decision
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES –
RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES
– where the applicant issued notices to the respondent each
under s 635 of the Sustainable Planning Act 2009 (Qld) in order to
levy charges on the respondent for trunk infrastructure –
where the respondent filed an appeal against the appellant's
decision to issue the notices – where the learned primary
judge held that the notices were not in accordance with s 637(2) of
the Sustainable Planning Act 2009 (Qld) and were not infrastructure
charge notices under the Sustainable Planning Act 2009 (Qld)
– where the applicant has sought leave to appeal against the
declarations of the learned primary judge – whether the
learned primary judge erred in declaring that the notices did not
comply with the Sustainable Planning Act 2009 (Qld) and were not
infrastructure charge notices under the Act
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION –
INTERPRETATION ACTS AND PROVISIONS – where it is contended
the questions raised on appeal are of specific importance to the
applicant as the entity responsible for issuing infrastructure
charge notices in its local government area – where it is
contended that the questions raised on appeal are of importance to
other local governments throughout Queensland – where the
resolution of the issues are relevant to the applicant's
budgeting and financial resources – where it is submitted
that the appeal raises critical questions about proper statutory
construction – where is its contended that the Planning and
Environment Court erred in holding that a failure to comply with s
637(2) of the Sustainable Planning Act 2009 (Qld) rendered the
notices invalid – where it is submitted that the Planning and
Environment Court erred by not refusing the declarations sought by
the respondent – whether s 637(2) of the Sustainable Planning
Act 2009 (Qld) was correctly interpreted by the learned primary
judge
STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF
ACTS – RETROSPECTIVE OPERATION – where the Court
granted the parties leave to make supplementary submissions as to
the impact of s 344 of the Planning Act 2016 (Qld) on the appeal
– where the applicant contends that s 344 of the Planning Act
2016 (Qld) has a retrospective effect, applying to infrastructure
charge notices issued on or after 4 July 2014 – where the
respondent contends that the appeal must be determined upon the law
as it stood at the hearing below – where it is submitted that
as s 344 of the Planning Act 2016 (Qld) was not in existence at the
time of the notice and therefore cannot apply – whether s 344
of the Planning Act 2016 (Qld) operates in a retrospective sense or
not. Acts Interpretation Act 1954 Qld s 27B; Planning Act 2016 Qld
s 344; Sustainable Planning Act 2009 Qld s 478, s 635, s 637(1), s
637(2)
Goldicott House Pty Ltd v Brisbane City Council &
Ors [2019] QPEC 25
PLANNING AND ENVIRONMENT – APPLICATION
–where orders of this court have previously identified the
issues in dispute – where Council now seeks to extend issues
in dispute to include the matters dealt with in the reports –
where joint expert reports went beyond the identified issues
Legislation
Victoria
Bills
Mineral Resources (Sustainable Development) Amendment Bill
2019
Date of second reading speech: 5 June 2019
NSW
Bills introduced - Non-Government – 07 June
2019
Crown Land Management Amendment (Reservation and Vesting of Crown
Land) Bill 2019
Mining Amendment (Compensation for Cancellation of Exploration
Licence) Bill 2019
Plastic Shopping Bags (Prohibition on Supply by Retailers) Bill
2019
Uranium Mining and Nuclear Facilities (Prohibitions) Repeal Bill
2019
Environmental Planning Instruments
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.