In the media – National
Refusal of Christmas Island phosphate exploration
The Government has decided not to approve Phosphate Resources Limited's exploration program on Christmas Island because it is likely to have significant and unacceptable impacts on matters protected under national environment law (31 May 2018). More...
UDIA: Pulse is quickening
A surge in construction, with commercial building approvals up 13% and detached housing approvals at their strongest point in 15 years, is proof of the resilience of Australia's urban development industry (31 May 2018). More...
CEFC marks renewables milestone topping $700 million in
commitments to regional and rural wind projects
The CEFC has made its 10th investment in a large-scale wind project – the 135 MW Crudine Ridge Wind Farm near Mudgee in NSW (29 May 2018). More...
New appointments to the Murray-Darling Basin
Minister for Agriculture and Water Resources David Littleproud has announced the appointment of Ms Joanna Hewitt AO and Professor Stuart Bunn to act as the part-time members of the Murray–Darling Basin Authority (24 May 2018). More...
Cladding and compliance scandal: the saga
While audits into cladding on high-rise buildings continue to deliver bad news, the long-awaited Shergold and Weir review of building regulations has thrown down the gauntlet to building ministers to step up and adopt a national approach to compliance and enforcement (30 May 2018). More...
NERA launches online portal to improve environmental
Reducing regulatory burden and increasing the flow of information are just two of the focus areas of a new online portal launched by NERA (23 May 2018). More...
In the media – Victoria
Planning reforms to boost affordable housing
Minister for Planning Richard Wynne has announced that new regulations have come into force that better define 'affordable housing' and make it easier for Councils and developers to negotiate voluntary agreements to include affordable homes in residential developments (01 June 2018). More...
Getting it done: Mordialloc Freeway planning
Planning for the congestion-busting Mordialloc Freeway has taken another step forward, with final scoping requirements for the Environment Effect Statement (EES) signed off. The ESS will be prepared by VicRoads in close consultation with DELWP and a technical reference group (TRG) consisting of statutory agencies, department and local councils (31 May 2018). More...
Community vision to shape the future of Yarra
The Andrews Labor Government has released a 50 year community vision for the iconic Yarra River, Birrarung – the first of its kind for an urban waterway in Australia. The Vision outlines the long-term aspirations for the river corridor, and the values set out in it will be brought to life through the Yarra Strategic Plan being led by Melbourne Water (31 May 2018). More...
Wonwondah wind farm to power Western Victoria
A new 40 MW wind farm in Western Victoria that will power more than 25,000 households as part of the ongoing renewable energy jobs boom in Western Victoria has been given the crucial sign-off. The wind farm will be developed by NewEn with the 235 metre high turbines producing enough energy to power around 25,000 householders every year (31 May 2018). More...
Cycling key to unlocking congestion
With a bike lane able to carry three times as many people as a traffic lane in less than half the space, getting more city commuters onto bikes is a vital piece to solving the transport congestion puzzle, according to a City of Melbourne discussion paper (31 May 2018). More...
New fund to develop markets for recyclables
The Victorian Government has announced a new $2.5 million fund to help develop markets for Victoria's recyclable waste, and boost research and development into recycling and the launch of the Resource Recovery Market Development Fund (29 May 2018). More...
Sustainability Victoria releases new resource recovery
Sustainability Victoria has released a comprehensive new guide detailing current and emerging resource recovery technologies (22 May 2018). More...
In the media – New South Wales
New Crown land management laws from July
A new, more transparent approach to Crown land management comes into effect on July 1, Minister for Lands and Forestry Paul Toole has said. The new Crown Land Management Act 2016 will deliver a modern, streamlined and more consistent approach to the management of Crown land in NSW (01 June 2018). More...
Consultation on proposed amendments to cap factors for
water recovery accounting in NSW
The NSW Department of Industry – Water has invited water entitlement holders and other stakeholders to provide feedback on proposed amendments to long-term diversion limit equivalence factors for NSW (also known as cap factors), to replace those originally adopted in 2011 (01 June 2018). More...
EPA: Sentencing of Dib Hanna
The sentencing of convicted repeat waste transporter Dib Hanna sends a strong message that illegal dumping of waste will not be tolerated. It is the first time the Land & Environment Court has been asked to consider jailing a "repeat waste offender" under tough new anti-dumping legislation introduced by the NSW Government in 2014 (30 May 2018). More...
Any Sydney council can now apply to limit housing
In a bid to quell community anger about overcrowding, all Sydney councils can now ask to be exempt from new building codes that make it easier for homes to be subdivided (18 May 2018). More...
In the media – Queensland
W Brisbane opening, proof of a booming hotel
The opening of W Brisbane – the CBD's first five-star hotel in 20 years – is proof of the city's booming hotel and accommodation industry says Tourism Industry Development Minister Kate Jones (01 June 2018). More...
PCA: Industry responds to draft Brisbane Metro
The Property Council has provided a submission on behalf of the industry on the Brisbane City Council's Metro Draft Design Report. While expressing support for the project, the Property Council has called for a wider CBD traffic management plan and outlined the importance of maintaining vehicle access to buildings along the proposed route (31 May 2018). More...
PCA: BCC remove Sport & Rec land incentive
The Lord Mayor has announced that Brisbane City Council will remove the ability to build retirement village and aged care facilities on sport and recreation zoned land. The proposed changes to the City Plan 2014 to enable development of seniors' housing projects on this land had formed part of Council's broader 2016 package of incentives, aimed at encouraging age-appropriate developments in Brisbane (31 May 2018). More...
Brisbane City Council Scraps Aged Care Developer
Less than two years after offering developer incentives to attract more aged care and retirement facilities to Brisbane, Lord Mayor Graham Quirk has scrapped the plan. The incentives, introduced in 2016, reduced infrastructure charges and encouraged the co-location of facilities on privately-owned sport and recreation land (30 May 2018). More...
Council to stop developers building on privately owned
Lord Mayor Graham Quirk said it was not his desire to see the issue of the shortage of aged care and retirement places to be caught up in community controversy, and will proceed without any proposed changes to sport and recreation land sites (29 May 2018). More...
Have your say on managing old mine sites
The Palaszczuk Government is asking Queenslanders to help shape the future of the state's old mine sites. The Abandoned Mines Discussion Paper is an opportunity for Queenslanders to provide feedback on how to manage old mine sites (30 May 2018). More...
Powerful new integrity body to deal with Councillor
By the end of 2018, Queensland's integrity regime will include a new independent body charged with investigating complaints against Local Government Mayors and Councillors (30 May 2018). More...
Mackay primed for development boost
Mackay is set to undergo a job-creating and lifestyle-boosting revitalisation with the Queensland Government declaring a priority development area (PDA) on 170 hectares within the CBD and along the Pioneer River and Town Beach (23 May 2018). More...
Office tower to straddle Brisbane heritage pub
The City of Brisbane has granted development approval for a 14-storey office tower designed by Blight Rayner to be built above a heritage-listed hotel in the inner-Brisbane suburb of Fortitude Valley (23 May 2018). More...
Cattle station taken to court over 500-hectare land
clearance on Indigenous site
The owner of a Cape York cattle station is accused of clearing 500 hectares of land, including a potential burial site, without properly consulting with the traditional owners of the area (22 May 2018). More...
Wind farm to generate power and jobs for the Far
Far North Queensland residents are set to benefit from a wind farm project for up to 29 turbines as part of Neoen's planned green power hub at Kaban 80km south west of Cairns (21 May 2018). More...
In Practice and Courts
Comment Invited on Draft SEPP (Waters)
The State Environment Protection Policies (SEPPs) - Waters of Victoria (and schedules) and Groundwaters of Victoria have been revised, updated and combined into a streamlined draft SEPP (Waters). Input and comments from land use planners is sought by 19 June 2018.
New South Wales
New legislation – Crown Land Management Act
The Crown Land Management Act 2016 (the Act) implements reforms identified through the comprehensive review of Crown land management and follows over four years of engagement with the community on the future of Crown land. The Act will come into force on 1 July 2018. All existing Crown land legislation remains in place until the rest of the new Act commences. The department's policies guide decisions and actions in implementing the legislation. More...
More housing options for NSW: Low Rise Medium Density
The new Code will allow one and two storey dual occupancies, manor houses and terraces to be built under fast-track complying development approval across NSW and also promotes good design for medium density housing. Low rise medium density housing as complying development is only allowed where medium density development is already permitted under a council's local environmental plan. The Medium Density Housing Code will commence on 6 July 2018.
Greenfield Housing Code
The changes start on 6 July 2018, the new Code will be included in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In essence; it is a simplifying of the development process and aligning the requirements for development across greenfield areas; the planning rules and the code are also presented in plain English to clearly explain planning rules.
Note: There will be a three-year transitional period, where applicants can choose whether to use the Greenfield Code, or the new simplified Housing Code or Transitional Code (until 13 July 2019). More...
Abandoned Mines Discussion Papers: Consultation
This is an opportunity for Queenslanders to provide feedback on how to manage old mine sites. Two discussion papers have been released for feedback on a range of reform ideas - one paper for feedback on how we manage the state's abandoned mine site and the other for feedback on how to monitor and manage risks with current mining operations that enter our care and maintenance, are disclaimed or change ownership. Public submissions for the reports will close on July 16. Provide input or view the discussion papers here (31 May 2018).
Titles Registry – list of common requisitions
relating to land access agreements
The Queensland Registrar of Titles and Registrar of Water Allocations has provided a common list of errors in requisitions relating to lodgement and removals of land access agreements on certificates of title (30 May 2018). More...
Hudson Yards Pty Ltd v Minister for Planning
 VSC 277
PLANNING – Call in of proceedings in the Victorian Civil and Administrative Tribunal by the Minister for Planning – Efficacy of call in notices – Compulsory conference – Privative clauses – Meaning of expressions 'in the nature of', 'directions hearing', 'preliminary hearing' and 'interlocutory hearing' in sch 1 cl 58(3) and 58(5) of the Victorian Civil and Administrative Tribunal Act 1989 (Vic).
Greater Geelong CC v C & D Recycling Pty Ltd (Red
Dot)  VCAT
NATURE OF CASE Applications for cancellation and/or enforcement of a permit for materials recycling.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
APPLICATION – significant, interesting or unusual use or development; application, principle; or circumstances.
Consideration of cancellation vs enforcement; planning scheme considerations relevant to cancellation and enforcement; consideration of environmental and economic matters; role of owner in enforcement proceedings where non-compliance by occupier; adoption of a 'least worst' outcome in attempt to avoid a legacy site.
Brunswick Mess Hall Pty Ltd v Moreland CC
 VCAT 774
Convenience restaurant & tavern; Permit condition that permit expires in two years; Reasonableness; Implications of allowing ongoing permit given recognised gaps in permit; Consequential changes made to conditions as agreed by applicant and council.
New South Wales
Jakovljevic v City of Ryde Council
 NSWLEC 1257
DEVELOPMENT APPLICATION: multi dwelling housing, Non-compliance with development standard for site width, slope.
Prajna Monastery Australia Incorporated v Georges River
Council  NSWLEC
DEVELOPMENT APPLICATION: place of public worship, traffic, amenity, plan of management.
Hamdan Co Group Pty Ltd v Canterbury-Bankstown
Council  NSWLEC
DEVELOPMENT APPLICATION: boarding house; isolated site; character of local area; setbacks; landscaping; amenity of neighbours; privacy; overshadowing of aged care facility.
Al-Mabarat Benevolent Society Limited v Goulburn
Mulwaree Council  NSWLEC
APPEAL: Development application for cemetery; characterisation; permissibility.
Satmell Holdings Pty Ltd v Blacktown City Council
 NSWLEC 1256
DEVELOPMENT APPEAL: North West Growth Centre urban release area – Medium Density Residential development – agreement on planning matters- whether the proposed stormwater discharge from the site is appropriate – applicable contributions plan – appeal upheld.
Li v Willoughby City Council
 NSWLEC 1262
INTERIM HERITAGE ORDER: whether the jurisdiction for the council to have made an Interim Heritage Order was sufficiently engaged; whether on further inquiry and investigation the existing dwelling house on the site is likely to be found to be of local heritage significance.
Pemell Newtown Holdings v Inner West
Council  NSWLEC
DEVELOPMENT APPLICATION: boarding house, floor space bonus, compatibility.
Carbone v Council of the City of Ryde
 NSWLEC 1253
DEVELOPMENT APPEAL: amendment sought to an existing consent – amenity impacts on adjoining property – compliance with Council's parking provisions – impacts on adjoining properties privacy – public interest.
Environment Protection Authority v Dib Hanna Abdallah
Hanna  NSWLEC
ENVIRONMENTAL OFFENCES – repeat waste offender – unlawful transporting and depositing of waste – pollution of land – sentence – offender's conduct offended against objects of statute and offence provisions – substantial harm to environment – premeditated and intentional commission of offences – offences committed to save expense of paying tipping fees – reasonable foreseeability of harm – practical measures to prevent harm not taken – control over causes of offence – offences of medium to high objective gravity – subjective circumstances – significant record of prior convictions – pleas of guilty – limited remorse for offences – likelihood of re-offending – sentence to implement retributive, preventative and restorative purposes of sentencing – appropriate sentence – no penalty other than imprisonment appropriate – aggregate sentence for five offences of 3 years imprisonment – fine in addition to imprisonment not appropriate – order for publication and order for restoration appropriate – order for costs made.
Fairfield City Council v Gray
 NSWLEC 81
SWIMMING POOL - non-compliant fencing - direction given under the Swimming Pools Act 1992 to rectify non-compliances - direction not complied with - order sought to require compliance - order made.
COSTS - costs sought for proceedings - costs not appropriate to be ordered for such portion of the proceeding relating to any invalid emergency order - costs ordered with respect to proceedings founded on valid direction made under the Swimming Pools Act 1992.
Central Coast Council v 40 Gindurra Road Somersby Pty
Ltd  NSWLEC
INTERLOCUTORY APPLICATION - application to restrain filling of land – filling allegedly in contravention of development consents and complying development certificate – serious question to be heard – balance of convenience, including protecting public interest, favours restraining the filling until serious questions heard and determined –interlocutory injunction granted.
Hardy v Ku-ring-gai Council
 NSWLEC 1245
PROCEDURE: application to reopen case to adduce an amended written request to vary a development standard; application granted; procedural jurisdictional issue only and no prejudice caused to the respondent.
Ingoal Acquisitions Pty Ltd v Burwood
Council  NSWLEC
DEVELOPMENT APPLICATION: consent orders; residential flat building; adjacent to a local heritage item; contentions addressed by amendments to the proposal.
Hardy v Ku-ring-gai Council (No. 2)
 NSWLEC 1246
DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling; exceedance of the height of buildings development standard; impact on the heritage significance of the local heritage item; whether an "amber light" approach is appropriate.
Kingsland Developments Australia Pty Ltd v City of
Parramatta Council  NSWLEC
DEVELOPMENT APPLICATION: part nine storey and part five storey shop top housing; Non- compliance with height development standard and whether cl 4.6 of local environmental plan is satisfied; Setbacks; Internal apartment amenity.
Baron Corporation Pty Ltd v Wingecarribee Shire
Council  NSWLEC
APPEAL: construction certificate; subdivision; stormwater discharge; council reserve; consistency with development consent; flooding; roads works permit.
Cachia v Parramatta City Council
 NSWLEC 78
PRACTICE AND PROCEDURE – summary dismissal of proceedings – Class 2 proceedings challenging validity of order made under s 124 of the Local Government Act 1993 – order the subject of the proceedings revoked by Respondent Council – Applicant declined to discontinue proceedings – basis for Court's jurisdiction no longer extant – irregularity of proceedings - proceedings dismissed pursuant to r 31.1 of the Land and Environment Court Act 1979 or, in the alternative, r 13.4 of the Uniform Civil Procedure Rules 2005.
Canal Aviv Pty Ltd v Roads and Maritime
Services  NSWLEC
COMPULSORY ACQUISITION - portion of landholding acquired for WestConnex project - agreement on value of acquired land - no agreement on impact on value of residue land - consideration of impacts on residue land - overall negative impact on residue land - extent of impact on value determined - compensation to be ordered.
MODEL LITIGANT POLICY - applicant complains respondent has not acted in accordance with its obligations imposed by the State's Model Litigant Policy - not a matter for the Court - alternative avenues for complaint lie in the hands of the applicant.
COMPULSORY ACQUISITION - claim for stamp duty for replacement property - Fitzpatrick basis for considered and rejected - consideration of decision in SNS - SNS provides no alternative basis for claim - stamp duty claim rejected.
COMPULSORY ACQUISITION - claim for reimbursement for land tax - claim made as either part of market value or as a disturbance claim pursuant to s 59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991 - neither statutory provision provides support for the claim - claim rejected.
Faseas v Coffs Harbour City Council
 NSWLEC 1249
DEVELOPMENT APPLICATION: whether time to appeal had lapsed; dual occupancy; minimum lot size; adequacy of information.
Ku-ring-gai Council v Pathways Property Group Pty
Ltd  NSWLEC
APPEAL - proposed additions and alterations to an aged care facility - application reliant on State Environmental Planning Policy (Housing for seniors and people with a disability) 2004 – s 56A appeal against decision of Commissioner to approve development - four grounds of appeal – Ground 1 alleges proposed development prohibited on the basis that State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 was not available to approve proposed development - Ground 1 not raised before the Commissioner - whether jurisdiction to raise on appeal - within jurisdiction - merit – Ground 1 not established - however, if Ground 1 established, proper course to remit the matter to a Commissioner as Ground 1 not necessarily a complete bar to the proposed development – Grounds 2 to 4 pleaded defects in Commissioner's reasoning to approve proposed development - no defects in Commissioner's approach - appeal dismissed.
COSTS - no reason why costs should not follow the event - Appellant ordered to pay Respondent's costs as agreed or assessed.
Ku-ring-gai Council v John David Chia (No
4)  NSWLEC
PRACTICE AND PROCEDURE – interlocutory application – evidence – criminal trial – application by defendant to exclude evidence under s 138 of the Evidence Act – interview given by defendant against his objection – transcript of interview provided to investigator – transcript referenced by investigator whilst interviewing material witnesses – whether witnesses should be precluded from giving evidence – whether evidence improperly obtained.
STATUTORY INTERPRETATION – statute conferring the power to compulsorily interview – privilege against self-incrimination – whether fundamental right abrogated in the context of the statute – principles of construction – principle of legality – whether use of plain words or necessary implication.
Council of the City of Gold Coast v Ashtrail Pty
Ltd  QPEC
PROCEDURE – PLANNING AND ENVIRONMENT COURT PROCEDURE – PROCEDURE UNDER RULES OF COURT – where the Respondents applied for summary judgment – where the Originating Application seeks declarations and enforcement orders in respect of non-compliance with development permit conditions – where the Respondents contend the development approval has lapsed – where the respondents also contend part of the applicant's claim is statute barred – whether the court has the power to grant the Respondents' application – whether summary judgment ought be granted.
New Acland Coal Pty Ltd v Smith (No 2)
 QSC 119
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – GENERALLY – where the recommendation decisions of the Land Court under s 269 of the Mineral Resources Act 1989 and s 191 of the Environmental Protection Act 1994 are set aside and the matters to which the decisions relate are to be referred back to the Land Court of Queensland for further consideration – where there was criticism of the conduct of part of the hearing by the Land Court member, although not such as to find the ground of apprehended bias established, and also criticism of parts of the reasons given for the recommendation decisions by the Land Court member – where there was also subsequent conduct on the part of the Land Court member which might reasonably lead a fair-minded lay observer to apprehend that he might not bring an impartial or objective mind to further consideration of the matters – whether it is appropriate, in the interests of justice, to direct under s 30(1)(b) of the Judicial Review Act 1991 that the matters be further considered by a different member of the Land Court.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – OTHER ORDERS – consideration of the power of the Court to make directions and orders under s 30(1)(b) and s 30(1)(d) of the Judicial Review Act 1991, to narrow the scope of the Land Court's further consideration of the matters the subject of the recommendation decisions to avoid unnecessary re-litigation or re-examination of issues – whether it is appropriate to exercise the power to make such orders in the circumstances of this case.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the applicant was successful in obtaining an order that the Land Court's recommendation decisions be set aside, but was not successful on a number of its grounds of review, and was successful on a ground which assumed a different emphasis on the review proceeding to that which it had during the original Land Court proceeding – whether costs should follow the event, or the parties ought to bear their own costs.
Singh Properties Pty Ltd v Scenic Rim Regional
Council  QPEC 027
APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – for a development permit for a material change of use for a poultry farm (expansion of existing farm) – where proposed development would increase the existing poultry farm from four sheds (approximately 200,000 birds) to 13 sheds (approximately 600,000 birds) and a manager's residence – where reasons for refusal included inadequate setbacks – impacts on amenity as a consequence of odour and dust – where reasons for refusal included adverse impacts on existing and future rural landscape character and, in particular, that it would not protect air and water quality.
WHERE APPLICATION RAISED – air quality including odour and dust – visual amenity – water quality and sufficient setbacks.
CONFLICT WITH PLANNING SCHEME – where proposed development said to be in conflict with respondent's planning scheme.
NEED – whether in circumstances where there was conflict with the planning scheme sufficient grounds existed to warrant approval notwithstanding conflict.
WHETHER STAGED – monitoring programme of existing facilities and each subsequent stages of expansion would justify approval.
PRELIMINARY APPROVAL – whether amendment of development application to that of a preliminary approval avoided conflict with the Planning Scheme – whether the appellant protocol underpinning the amended application for preliminary approval offended the finality test.
Lalis v Bundaberg Regional Council
 QPEC 026
PLANNING AND ENVIRONMENT – APPEAL – where the appellant owns land that is improved by two attached dwellings where there is no development permitting use of the land for dual occupancy – where council issued an enforcement notice requiring use of the land to cease – whether the use of the land is for "dual occupancy" – whether the use of the land involves a "second dwelling".
Water Amendment Bill
Introduced HR 30/05/2018 Third reading - The Water Amendment Bill 2018 (the Bill) will amend the Water Act 2007 (the Water Act) to enable the Commonwealth Water Minister (the Minister) to direct the Murray-Darling Basin Authority (the Authority) to prepare an amendment to the Basin Plan 2012 (the Basin Plan) that is the same in effect as a Basin Plan amendment that has previously been disallowed, or taken to have been disallowed, by either House of Parliament.
New South Wales
Proclamations commencing Acts
Crown Land Management Act 2016 No 58 (2018-225) — published LW 1 June 2018.
Regulations and other miscellaneous instruments
Crown Land Management Amendment Regulation 2018 (2018-229) — published LW 1 June 2018.
Environmental Planning and Assessment Amendment (ePlanning—Complying Development Certificates) Regulation 2018 (2018-230) — published LW 1 June 2018.
Roads Amendment (Incomplete Crown Road Purchases) Regulation 2018 (2018-235) — published LW 1 June 2018.
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.