Inside Track: Property & Real Estate - In the media, In practice and courts, Cases, and Legislation - Landlord & Tenant - Leases

In the media

Commonwealth

Reduced red tape for environmental approvals a plus for housing and construction
UDIA National President Simon Basheer said the Government's commitment to clearing the backlog of projects under assessment via the Act would benefit from strict guidelines. Applying 'deemed consent' provisions to future project applications to maintain discipline on project assessment timeframes (24 April 2020). More...

Retail property giant threatens action against tenants who close doors
One of Australia's biggest shopping centre landlords has threatened to take action against shop owners who close their doors to protect employees from the coronavirus in an apparent breach of new rules protecting struggling retail tenants (22 April 2020). More...

Congestion busting assessments protecting our environment and our economy
A $25 million Morrison Government investment in congestion busting is breaking through a multi-billion-dollar backlog of environmental assessments to deliver better outcomes for the environment and for the economy (23 April 2020). More...

Governments keep building approvals moving during COVID-19
Planning ministers have signed off on a national set of principles designed to ensure the pipeline of development approvals continues during the COVID-19 crisis, protecting jobs, businesses and the economy (22 April 2020). More...

Residential Property: Tracking the Covid-19 Impact
Over the course of several weeks, the property industry has been sharing with us their experiences and responses to the Covid-19 pandemic (21 April 2020). More...

Commercial property market braces for big hit as workers abandon offices
Although coronavirus' long-term impact on the Australian office market remains to be seen, early signs suggest there will be big changes. JLL Research found national office space absorption fell 51,800 square metres in the first quarter of 2020 – the largest decline since 2014 (20 April 2020). More...

COVID-19 Hits Property Industry Sentiment
There has been a rapid and steep decline in sentiment across the Australian property industry caused by the COVID-19 pandemic according to the ANZ Property Council industry survey for the June 2020 quarter. Economic management (33 per cent) is considered the most critical issue for the property industry that should be addressed by the Australian Federal Government, according to survey respondents (16 April 2020). More...

Maximising infrastructure investment to stimulate the economy and deliver for communities
The Green Building Council of Australia (GBCA) is ready to work with governments to support these policies and maximise their benefits for communities across Australia. This call to action outlines six recommendations as a foundation for the GBCA, working in partnership with government, to support our bounce back (16 April 2020). More...

IS Thought Leadership: Sustainable Procurement
Infrastructure procurement is increasingly being used as a mechanism to raise local industry content and capability together with delivering social and environmental outcomes. Businesses that innovate, collaborate and demonstrate leadership in this regard will enjoy growth as governments, financiers and the public increase demands for accountability (15 April 2020). More...

Coronavirus 'Seriously Impacting' 15pc of Development Projects
The coronavirus pandemic has continued to stifle the property industry with investor sentiment sinking to levels last seen just after the global financial crisis a decade ago, according to the latest ANZ-Property Council Survey (16 April 2020). More...

COVID-19 and the SDGs: moving forward after the crisis
SDG implementation can safeguard our cities and communities through risk reduction strategies that enable safe, sustainable, and inclusive access to necessary services in human settlements. Green stimulus measures must be considered to mitigate inaction due to lost resources, time and concern (14 April 2020). More...

Victoria

US Giant Hines Lodges Plans for Richmond Office Building
US property group Hines has submitted plans for $25 million commercial building in Richmond, an inner-city market in Melbourne which has a growing reputation as a tech hub (24 April 2020). More...

Property sector taskforce announced to bolster industry recovery from COVID-19
The Victorian Government has announced the establishment of a dedicated taskforce, the Building Victoria's Recovery Taskforce, to guide the state's building and development industry through the coronavirus crisis (24 April 2020). More...

Temporary Emergency Measures To Manage Coronavirus Crisis
The COVID-19 Omnibus (Emergency Measures) Bill 2020 will be introduced to Parliament on Thursday and sets out a range of temporary changes to protect tenants and injured workers and allow vital government functions to continue operating in line with social distancing and other requirements advised by the Chief Health Officer (21 April 2020). More...

Supporting Tenants and Landlords Through Coronavirus
The Victorian Government will bring urgent legislation to the Parliament in line with decisions of the National Cabinet to support tenants and landlords through the coronavirus pandemic by reforming residential and commercial tenancy laws (15 April 2020). More...

$500 million in relief for tenants and landlords
The Property Council of Australia has welcomed the announcement by the Victorian Government of $500 million in relief directed to residential and commercial tenants and landlords through the support package announced (15 April 2020). More...

NSW

Planning changes to support growth in renewable energy projects
Amendments to the State Environmental Planning Policy (Infrastructure) 2007 will allow larger-scale solar systems to be installed on homes and commercial buildings without council approval, enable utility providers to construct electricity storage as part of improvement works to transmission and distribution networks, and allow for large-scale battery storage systems to be built in permitted zones across NSW. (24 April 2020). More...

Company fined after failure to alert EPA of fire
The NSW Environment Protection Authority (EPA) has fined company QSSR Pty Ltd $8,000 after it failed to notify the EPA regarding a pollution incident at its Shoalhaven recycling facility in Bomaderry in November last year (24 April 2020). More...

Better public spaces on the way for inner west
Communities in Sydney's inner west will benefit from new and improved public spaces, thanks to $20 million in funding from the NSW Government's Parramatta Road Urban Amenity Improvement Program (23 April 2020). More...

$14m Funding injection for Sydney Harbour Federation Trust
Minister for the Environment Sussan Ley has unlocked $14 million in funding to assist the Sydney Harbour Federation Trust in the face of COVID 19 impacts (23 April 2020). More...

Landowners from Walgett area face string of charges in Land and Environment Court
Two landholders from the Walgett area will face 14 charges in the Land and Environment Court for breaches of water laws in 2016 and 2017 (22 April 2020). More...

Bold blueprint for 69-storey tower to reshape Parramatta's skies
The skyline of Sydney's second CBD looks set to become even higher with what could be Parramatta's tallest building passing a major planning hurdle, amid concerns the 69-story tower could disrupt local airspace (22 April 2020). More...

NSW Government goes online to ensure public stays informed on planning matters
Councils will now be able to notify their communities of local planning matters online under new regulation introduced to ensure the public receives the most accurate and up-to-date information during the COVID-19 pandemic (20 April 2020). More...

The big plans to revive a blue-green spine through Campbelltown's CBD
South West Sydney has plans to make the most of its unprecedented population growth, protect its bushland and build resilience to a range of environmental challenges (21 April 2020). More...

Port Kembla Gas Terminal Modification Approved
The Department of Planning, Industry and Environment has announced planning approval to increase capacity at the $250 million Port Kembla Gas Terminal (20 April 2020). More...

Developer Lodges Hotel Plans for Heritage Olympia Theatre
Despite the effects of the coronavirus on the accommodation industry, two Sydney-based developers are pressing ahead with plans for a new hotel in the inner-city suburb of Paddington (20 April 2020). More...

Stronger Protection for Sydney's water catchment following extensive review
Better protections, stronger assessment and more environmental offsets will ensure Sydney's drinking water supply is safeguarded, following an extensive review by an independent expert panel (18 April 2020). More...

ePlanning mandate a big win for homeowners
Homeowners in metropolitan Sydney, Newcastle, the Central Coast and Illawarra will be able to lodge DAs online in the comfort of their homes, and see a reduction in assessment times, with the NSW Government mandating ePlanning across 42 councils from 1 July 2020 (17 April 2020). More...

Now's the time to treasure our public spaces
The Department's Executive Director of Public Spaces, Dr Caroline Butler-Bowdon, shares her views on why it's important now more than ever to treasure our public spaces (17 April 2020). More...

Doma Lodges Plans for $44m Honeysuckle Hotel and Office
Doma Group are the latest developers to lodge an application in Newcastle's burgeoning Honeysuckle precinct, submitting plans for a $44 million hotel and office development (17 April 2020). More...

Property Industry key to COVID-19 Recovery
The latest ANZ/Property Council Survey has shown NSW property industry confidence is at an all-time low due to the COVID-19 crisis which is impacting the economy significantly across all sectors of the property industry (16 April 2020). More...

Villawood launches new estate despite pandemic
Private greenfield developer Villawood Properties is backing buyer confidence in the face of the coronavirus pandemic as it launches a new housing project (15 April 2020). More...

Pathway forward for contributions reform
The NSW Government has outlined its plan to reform developer levies and contributions to unlock new housing supply, deliver vital community infrastructure and boost investment in NSW. (15 April 2020). More...

Economic stimulus to boost jobs and social housing
A targeted stimulus program is delivering a triple-impact for NSW by boosting the economy, supporting employment and revitalising public housing and supply (15 April 2020). More...

Developer levies under review in bid to boost housing supply, economy
Developer contributions and levies are the focus of a sweeping review as the Berejiklian government steps up efforts to boost the state's flagging economy (15 April 2020). More...

NSW Home Building Compensation Fund under review
The Independent Pricing and Regulatory Tribunal (IPART) is investigating possible reforms to the NSW Home Building Compensation Fund (HBCF) designed to protect homeowners from building defects (14 April 2020). More...

Water Regulator finds 18 Coffs Harbour horticulture operations non-compliant
The state's independent water regulator has released the results from Phase 2 of its Coffs Harbour Intensive Horticulture compliance campaign. The Natural Resources Access Regulator (NRAR) found that 18 of the 21 properties inspected were allegedly non-compliant with important water laws (14 April 2020). More...

NSW Government offers $440 million land tax break to support tenants and landlords
NSW commercial tenants significantly impacted by COVID-19 will have greater protection from evictions with the State Government set to enact the National Cabinet Code of Conduct as part of a $440 million land tax relief package (13 April 2020). More...

Funding boost and emergency measures to protect tenants
Residential tenants and landlords facing financial hardship due to COVID-19 will receive increased support and greater certainty from the NSW Government's new temporary rental support measures announced (13 April 2020). More...

Queensland

Practice Guide to navigate tenancies through COVID-19
The Palaszczuk Government has enacted National Cabinet's moratorium on evictions, with a Practice Guide formalising the temporary requirements and protections for tenancies impacted by COVID-19 (24 April 2020). More...

REIQ: Commercial Conduct under New Code
The National Cabinet, which is made up of the Prime Minister and leaders from the various States and Territories, recently adopted a Code of Conduct for commercial tenants and landlords for the duration of the coronavirus pandemic and beyond. So, what do real estate professionals need to know? The REIQ provides an overview (22 April 2020). More...

Developer Lodges Plans for $450m Toowong Town Centre
A $450 million development application "inspired" by The Grove shopping centre in Los Angeles has been lodged by project managers State Development Corporation and advisory firm White and Partners (22 April 2020). More...

Mirvac Adds Tower to $1bn Newstead Masterplan
Despite the uncertainty surrounding the impacts and duration of the coronavirus outbreak, Mirvac is moving ahead on new projects, unveiling plans for a 25-storey residential tower (21 April 2020). More...

Fair middle ground reached on COVID-19 guidelines for property owners and tenants
The Palaszczuk Government has worked with industry stakeholders to establish Guidelines to support Queensland's approach to implement the moratorium on evictions decided by National Cabinet (19 April 2020). More...

PCA: COVID-19 impacts industry confidence
The latest results from the ANZ/Property Council Survey show confidence in the Queensland property industry has fallen significantly since the start of the COVID-19 emergency (16 April 2020). More...

Design Upgrades Released at Spit Revamp
Preliminary designs for two projects forming the Spit masterplan have been released, as Queensland aims to keep plans on track for a mid-year construction start on the Gold Coast project (15 April 2020). More...

Extended Hours at $3.6bn Queen's Wharf
Development of the $3.6 billion Queen's Wharf Brisbane project will continue following the relaxation of the heavy vehicle lock-out period during Covid-19. Developer Destination Brisbane Consortium said the latest decision allows truck movements to and from the Queens Wharf construction site an extra four hours a day (13 April 2020). More...

In practice and courts

Commonwealth

Royal Commission into National Natural Disaster Arrangements
The Royal Commission into National Natural Disaster Arrangements will examine coordination, preparedness for, response to and recovery from disasters as well as improving resilience and adapting to changing climatic conditions and mitigating the impact of natural disasters. The inquiry will also consider the legal framework for Commonwealth involvement in responding to national emergencies.
The Commission is now accepting submissions on the 2019-20 bushfire season from individuals, community groups and the broader community until 28 April 2020.

API: Member Alert – Valuer Declaration for PropertyPRO Reports during API Declared Time of Crisis and/or State of Emergency
This Member Alert provides guidance to Valuers and their corporate employers in relation to the Valuer Declaration, on the front page of the PropertyPRO report, in situations where the Valuer is not able to undertake a full physical or personal inspection of the property, as per the API Valuation Protocol – Guidelines for API Declared Time of Crisis and/or State of Emergency Impacting Physical Inspections of Real Property (Crisis Protocol) (24 April 2020). More...

API: Member Alert – Guidance for Risk Ratings during the declared "Crisis/State of Emergency"
The purpose of this Member Alert is to provide guidance for Valuer Members (Valuers) in relation to risk rating assessments during the declared "Crisis/State of Emergency - COVID-19" period for valuations undertaken utilising the API PropertyPRO Supporting Memorandum (PPSM) (24 April 2020). More...

API: 2021-2026 APIV New Scheme Survey
With the APIV Scheme due to expire on 31 August 2021, the API is currently in the process of preparing an application for a new APIV Scheme to commence on 1 September 2021 for a further period of five years ('New Scheme') (15 April 2020). More...

New NatHERS certificate to be rolled out by 30 April 2020
A new NatHERS certificate will soon come into use as software tools transition to Chenath Engine version 3.21.The new NatHERS certificate has been developed after significant consultation with industry users and will replace the previous "universal certificate" for all new assessments from 1 May 2020. Preview the new NatHERS Certificate.

NABERS Reminder: Auditors, Supervisors, and Trainers Panel Announced
Congratulations to the new Panel Selection for NABERS Auditors, Supervisors, and Trainers, for October 2019-October 2022. Find the full list here.

RICS UN backed global standard
RICS is chairing the development of the International Fire Safety Standard and it follows previous RICS work to bring consistency to the standards people can expect globally across property, construction and valuation. The International Fire Safety Standards will be open for global consultation until 23 March with the final international standard to be published later in 2020.

Victoria

SRO: Land tax relief for landlords
Landlords who provide tenants impacted by COVID-19 with rent relief may be eligible for a 25 per cent reduction on the property's 2020 land tax. This relief is also available to land owners who are unable to secure a tenant because of COVID-19. Landlords can also defer the remainder of their 2020 land tax to 31 March 2021 (15 April 2020). More....

Announcements, Draft Policies and Plans released 2019

NSW Revenue

Commissioner's practice note: Emergency services levy
This Commissioner's practice note explains how the Emergency Services Levy Act 2017 is administered, including key aspects of the assessment of initial and final assessments, and the interpretation of key terms used in the legislation (24 April 2020). More...

COVID-19 (coronavirus) and land tax
The NSW Government is introducing measures to help commercial and residential landlords manage their rental properties. The new support package includes a reduction of up to 25 per cent of the land tax payable on a parcel of land in the 2020 land tax year (21 April 2020). More...

Electronic duties for professionals
Commencing Monday May 4, all complex assessing and refund applications must be lodged digitally through our eDuties service (15 April 2020). More...

NSW Planning Department: Have your say - Draft plans and policies

Draft special infrastructure contributions (SIC) guidelines
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking to improve the transparency of the application of SICs. The draft SIC guidelines provide guidance regarding the purpose and function of SICs and their application in the new approach to precinct planning. More...

Proposed amendments to the EP&A Regulation
Notification start-end date 15/04/2020 - 12/06/2020
The Department is proposing amendments to the EP&A Regulation to improve transparency in the infrastructure contributions system through better reporting of contributions received and expended for individual contributions plans and planning agreements. More...

Improving the review of local infrastructure contributions plans - discussion paper
Notification start-end date 15/04/2020 - 12/06/2020
Higher-rate local infrastructure contributions plans are independently reviewed to ensure that they are reasonable. The Department has identified ways to improve the review process of local infrastructure contributions plans to make it more efficient while maintaining its important function. More...

Draft planning agreements policy framework
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking feedback on an updated planning agreements policy framework. The proposed changes will result in a clearer and more transparent contributions process and will allow planning agreements to be used for their intended function to fund innovative infrastructure solutions. More...

Criteria to request a higher s7.12 percentage - discussion paper
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking feedback on the proposal from key stakeholders and the community. Your feedback will help inform critical improvements to the infrastructure contributions system in NSW. More...

City of Sydney: Working together to reduce strata stress
A series of free workshops in English and Chinese will help both strata-dwelling owners and renters tackle issues including pets, levies and noisy neighbours. The City of Sydney's strata skills workshops from 2 April to 18 June will be led by a series of industry professionals.

City of Sydney: Alternative Housing Idea Challenge
The community will have the opportunity to provide feedback on the short-listed concepts as part of the City's consultation to shape Sydney 2050. The Alternative Housing Ideas Challenge will close on 8 May 2019. More...

NSW OEH: $16 million in funding for NSW manufacturers facilities
For manufacturers as part of the NSW Government Energy Saver program to help them save energy, money and stay competitive globally. The first round of funding closes on 30 June 2019. More information on the program is available at Manufacturing efficiency funding.

Changes to Housing SEPPs
Seniors Housing State Environmental Planning Policy – the SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020.

NSW Land and Environment Court

The 2019 AustLII Database Metric and Statistics for the Court
21 April 2020 - The Court has been involved for a number of years in a collaborative project with AustLII to provide a range of metrics showing the use made of LEC decisions etc. The 2019 calendar year metrics are now available.

Early Listing Dates for Conciliation Conferences and Hearings
21 April 2020 - Due to the vacation of listings as a result of the COVID-19 pandemic, the Court has dates available between now and 30 June 2020 for conciliation conferences and hearings to be conducted by telephone. Available dates will be shown on the daily court lists.

EPA: Regulatory Action Table
The Regulatory Action Table relates to the quarter period for 1 October- 31 December 2019 (30 March 2020). More...

Department of Planning, Industry and Environment: Our COVID-19 response - New changes

Office of Registrar General: Schedule of release of residual documents
This schedule provides information on what dealings will be available electronically in May 2020. More...

Office of Registrar General: Notice of Death now available, Transfer of Interest next month
Notice of Death is now available electronically in NSW. This document allows for registration of the survivorship of a joint tenant. Please contact your Electronic Lodgment Network Operator (ELNO) for more information on how to complete a Notice of Death.
In March, Transfer of Interest (e.g. transfer of mortgage or lease) and attachments to Transfers and Caveats will be made available. Please refer to our Schedule of eDealings page for more information on new functionalities in NSW.

Office of Registrar General: Schedule of release of residual documents
This schedule provides information on what dealings will be available electronically in May 2020. More...

Office of Registrar General Reminder: Part tenancy transfer
Dealing electronically with part tenancy titles is now much easier. Previously this type of transaction had to revert to paper (cl 5.7 in Waiver CR2/2019). The only requirement is that both A and B must be represented (by the same or different subscribers).Waiver CR2/2019 expires on 30 June 2020, unless extended by the Registrar General

Current LEP Proposals from 14 April 2020
Wollondilly LEP 2011 - Amendment to rezone land at Anglican College, Bargo (0 dwellings, 28 jobs)
Planning Proposal - Removal of multi dwelling housing from the R2 Low Density Residential zone
Hawkesbury Local Environmental Plan 2012 - Amendment - 27 Park Road, Vineyard and 41 Park Road, Mulgrave (potential jobs number unknown)
Reclassify 1-3 Bathurst Street, Singleton
No 10 Victoria Street Berry (adjacent the Arbour Retirement Village) Planning Proposal
Gilead Stage 1 - Various amendments to Campbelltown LEP 2015 (177 dwellings, jobs TBC)
Menangle Park - Various amendments to Campbelltown LEP 2015 (1850 dwellings, 2700 jobs)
405 Cessnock Road, Ryhope
Reclassification and / or rezoning of Council owned land at Lismore

Queensland Government: COVID-19
Urgent amendments to the Planning legislation are in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19 (updated 24 April 2020). More...

PCA Advice: Implementation of the National Cabinet Mandatory Code of Conduct for SME Commercial Leasing Principles during COVID-19 crisis
After considering the contents of the Code and reflecting on how it can be best implemented in Queensland, the Property Council offers the following advice. The comments below outline the industry's recommendations and highlights other areas where further clarification is required (22 April 2020). More...

REIQ: Code of Conduct for commercial leasing
For more information on the Code of Conduct for commercial leasing, check out The REIQ's fact sheet here for the essentials you need to know. Click here to download it now (22 April 2020).

Planning legislation amendment: emergency provisions
In response to COVID-19, changes have been made to the Economic Development Act 2012 to address concerns raised by stakeholders. View further information on the planning legislation amendments (updated 15 April 2020).

COVID-19 update on Courts, Commissions, Tribunals, property law and criminal law
QLS will provide up to date information on their website regarding the evolving COVID-19 situation and the response of the Courts, Commissions, and Tribunals in Queensland. View further key updates on information specifically relating to property law.

Oxley Priority Development Area master plan - Submissions
This will feature 80 residential lots, 10 hectares of public open and green space, and a site for retirement and community facilities, as well as supporting the relocation of the Yuingi childcare centre. Submissions close 11 May via email. More...

Cases

Hivance Pty Ltd v Moscatiello & Ors [2020] VSC 183
LAND LAW – Restrictive covenant on land in a suburban neighbourhood preventing more than one dwelling on the land – Application to modify the covenant to permit three dwellings to be constructed on the land – Whether plaintiff proved that modification will not cause substantial injury to the beneficiaries of the covenant – Whether neighbourhood retains an intact special character due to the network of single dwelling covenants – Whether the 'horse had bolted' in that existing multi-dwellings in the neighbourhood had already eroded any special character the covenant had previously assisted to maintain – s 84(1)(c) Property Law Act 1958 (Vic) – Randell v Uhl [2019] VSC 668

Stewart v Owen [2020] VSC 175
ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal – Whether Part IV of the Property Law Act 1958 confers jurisdiction to make declaration and order a co-owner to transfer his or her part interest in land to a co-owner – Whether correct legal test for imposition of constructive trust applied – Property Law Act s 225 & s 228 – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 – Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 – Miller v Martin [2020] VSCA 4 – Miller v Martin [2018] VSC 444 – Binns v Binns [2018] VCAT 759 – Pavlovich v Pavlovich (Real Property) [2012] VCAT 869

Studholme v Rawson [2020] NSWCA 76
APPEAL – grounds – order of consideration – bias – effect on trial – need to address first – BIAS – prejudgment – trial judge expressed views based on filed evidence – views expressed to counsel in chambers – reliance on statements in judgment – reliance on overriding purpose in Civil Procedure Act 2005 (NSW), Pt 6 – acquiescence or waiver – statements revealing legal error, not prejudgment – REAL PROPERTY – easements – compensation – assessment of compensation for owner of servient tenement – application of valuation principles in determining compensation payable – need to determine terms and conditions of easement before assessing compensation – Conveyancing Act 1919 (NSW), s 88K(4) – REAL PROPERTY – easements – whether reasonably necessary – terms and conditions of easement – need to determine when deciding whether easement reasonably necessary – drainage works – joint report of expert engineers rejected – need for remittal – Conveyancing Act 1919 (NSW), s 88K(3) – COSTS – easement application – statutory entitlement of land owner – objection based on joint report of experts – whether conduct of land owner unreasonable – basis for departure from statutory entitlement – Conveyancing Act 1919 (NSW), s 88K(5) – PRACTICE AND PROCEDURE – open justice – holding "informal directions hearings" in chambers – no access for public – absence of parties – no record of conversation – risk of participants becoming witnesses – practice decried

Deligiannidou v Sundarjee [2020] NSWSC 437
CONTRACTS – CONTRACT FOR SALE OF LAND – deposit – where contract provided for payment of deposit by cheque – where agent by email directed vendors to pay deposit by EFT to its trust account – where fraudster send subsequent email to vendors directing payment to a different account – deposit evidently lost – whether agent acting as vendor's agent for this purpose – whether relevant authority conferred on agent by term on the agency agreement

Hatziandreou Holdings Pty Ltd v Bayside Council [2020] NSWLEC 1191
APPEAL – modification application – development constructed contrary to development consent – modification seeks to incorporate the development as constructed in addition to proposed works – whether substantially the same – whether communal open area location and size was a material element of the original development – traffic and parking impacts

Karimbla Constructions Services (NSW) Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1180
MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Ellis v Lane Cove Council [2020] NSWLEC 1190
DEVELOPMENT APPEAL – residential dwelling – excavation – consistency with character and streetscape

Anglican Community Services v Ku-ring-gai Council [2020] NSWLEC 1189
MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Tweed Shire Council Preserved Sick Leave Enterprise Agreement 2020 [2020] NSWIRComm 1032
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements – application for approval of enterprise agreement – preserved sick leave payout entitlements – flexibility to use sick leave before retirement – inclusion of clause to enable leave to be taken in unusual circumstances, such as major floods, pandemics or operational close downs – previous enterprise agreement rescinded - enterprise agreement approved

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 3) [2020] NSWLEC 35
CRIMINAL PROCEDURE — Subpoena — Application to set aside — Legitimate forensic purpose — Documents sought relating to monetary benefits order — Application to set aside dismissed – ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Judgments and orders — Monetary benefits order

Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors [2020] NSWSC 434
LAND LAW — Torrens title — Indefeasibility of title — Effects of indefeasibility — Funds advanced by mortgagee pursuant to registered mortgage procured by alleged fraudster purportedly on behalf of mortgagor company — Mortgaged property sold — Which of innocent mortgagee and innocent mortgagor entitled to proceeds

Chan v Tan [2020] NSWSC 428
CONTRACTS – construction – interpretation – joint venture deed jfor the redevelopment of two adjacent properties at Willoughby – subsequent deed conditional on rescission of existing deed – delivery in escrow – whether subsequent deed came into force – whether termination under subsequent deed valid – CONTRACTS – construction – interpretation – joint venture deed – termination conditional on non-occurrence of event by certain date – inconsistency – omission of words by construction under Fitzgerald v Masters principle – EQUITY – fiduciary duties – fiduciary relationships – parties to joint venture – breach of obligations – director of company party to joint venture – whether director liable as accessory to the company's breach of fiduciary obligation

Herbert v New South Wales Land and Housing Corporation [2020] NSWCA 74
CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar's decision – CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A – CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11 –CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency

D'Annunzio v North Sydney Council [2020] NSWCATAP 66
APPEAL – Retail leases – Claim of misleading or deceptive conduct - Whether Tribunal erred in its construction of the word "road" in the lessor's disclosure statement – Whether the Tribunal's findings were against the weight of evidence

PRJM Pty Ltd v Hawkesbury City Council [2020] NSWLEC 1187
DEVELOPMENT APPLICATION – caravan park – whether proposed development is compatible with character of local area – whether location and character make site particularly suitable for a caravan park – whether necessary facilities and services are reasonably available and accessible to future occupants of caravan park – consideration of road widths – consideration of contamination of site

Richards v Waverley Council [2020] NSWLEC 1186
APPEAL – modification application – conciliation conference – agreement reached

HQME Pty Ltd v Randwick City Council [2020] NSWLEC 1185
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Nakhle v Woollahra Municipal Council [2020] NSWLEC 1188
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Scott-Mackenzie v Independent Liquor and Gaming Authority [2020] NSWCATAD 108
ADMINISTRATIVE REVIEW — grant of liquor licence — whether the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community

Cases to 20 April 2020

Mehmet v Carter [2020] NSWSC 413
CONTRACTS — Termination — Repudiation of contract — where purchasers raised requisitions — where plausible contentions and vendors refused to address – LAND LAW — conveyancing — contract for sale — breach — error or misdescription — requisitions — Vendors' obligations — notices to complete — Purchasers' remedies – ENVIRONMENT AND PLANNING — heritage conservation — Protection of Aboriginal heritage — meaning of "Aboriginal object" — National Parks and Wildlife Act 1974 (NSW)

Karakatsis Holdings Pty Ltd v Bayside Council [2020] NSWLEC 1182
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Syncept Chatham Pty Ltd v City of Ryde Council (No 2) [2020] NSWLEC 30
COSTS – which party to bear costs – whether late amendment alters usual order – whether separate ground rendered unnecessary by late successful ground should not be subject of costs – usual order made

Baynes v Chief Commissioner of State Revenue [2020] NSWCATAD 106
TAXES AND DUTIES – stamp duty concession – real and apparent purchaser – whether real purchaser "provided the money for the purchase of the dutiable property" – need to establish that the applicant provided the whole of the purchase price – not established

Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181
DEVELOPMENT APPLICATION – R3 medium density residential zone – multi-dwelling housing – landscape setback – flood planning

Waters v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2020] NSWCATAP 60
APPEALS – appeal on a question of law – procedural fairness – bias – actual bias – apprehended bias – whether Tribunal failed to apply the applicable law – APPEALS – leave to rely on fresh evidence – APPEALS – leave to appeal – whether the decision not fair and equitable and against the weight of evidence.

Leroma Pty Ltd v Randwick City Council [2020] NSWLEC 1179
DEVELOPMENT APPLICATION – Affordable Infill housing – amended plans - conciliation conference – agreement between the parties – orders

Lay v Inner West Council [2020] NSWLEC 1178
Alterations and additions to mixed use building – Heritage Conservation Area – whether compatible with desired future character

Dan Properties Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1172
DEVELOPMENT APPLICATION –shopping centre – additional point of egress – road hierarchy – safe and convenient access – landscape character

Genamson Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2020] QSC 84
REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – GENERALLY – where pursuant to s 7 of the Acquisition of Land Act 1967 (Qld) the respondent Council issued a Notice of Intention to Resume – where the applicant objected to the proposed resumption of land – where the first respondent arranged for the objection to be heard by a Delegate at an objections hearing – where the Delegate provided a report recommending the respondent Council give "due consideration" to expert engineer's report on proposed resumption of land – where expert engineer report was not in material before the respondent Council at meeting - where the respondent Council resolved to make an application to the Minister for Natural Resources and Mines to resume the land pursuant to s 9 of the Acquisition of Land Act 1967 (Qld) – whether respondent Council failed to take into account a material consideration in making application to resume the land
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the respondent Council resolved to make an application to the Minister for Natural Resources and Mines to resume the land pursuant to s 9 of the Acquisition of Land Act 1967 (Qld) – where respondent Council failed to provide all objections material to the Minister in application – whether failure by respondent Council to comply with terms of the Acquisition of Land Act 1967 (Qld) – whether jurisdictional error – whether procedure required by law to be observed or not observed
Acquisition of Land Act 1967 Qld s 7, s 8, s 9, Sch 2; Civil Proceedings Act 2011 Qld s10

Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast [2020] QCA 82
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where the applicants seek leave to appeal from a decision of the Planning and Environment Court – where the proceedings below were brought by the respondent seeking relief in respect of a development approval granted to the applicants in 2010 – where the decision below declared that: the 2010 Approval had not lapsed; conditions 5, 6, 10, 12 and 16 of the 2010 Approval had not been complied with; and, the non-compliance constituted a development offence under s 164 of the Planning Act 2016 (Qld) – where orders were made that the applicants comply with the five conditions prior to the commencement of the use permitted by the 2010 Approval – where none of the five conditions has been complied with – where the respondent did not oppose the grant of leave to appeal in respect of the first five grounds but opposed the sixth on the basis that it involved contended errors of fact rather than law – whether leave to appeal should be granted
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where s 340(1)(a) of the SPA provided that development under the 2010 Approval could start immediately upon it being granted – where s 341 of the SPA provided when an approval lapsed – where the applicants contend that on the proper construction of condition 5, payment was an essential precondition which had to be fulfilled "prior to ... the commencement of the use", and since they had not been satisfied, there was no "first change of use" within the four year period following the 2010 Approval – whether the learned trial judge erred by finding that the 2010 Approval had not lapsed under s 341(1) of the SPA when the five conditions had not been complied with
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the applicants contend that there were significant departures from the approved plans and drawings contained in the 2010 Approval which had the effect that it lapsed "because the particular use under the 2010 Approval did not occur prior to that date" – where the learned trial judge observed that it could be accepted that evidence reflected departures from the approved form of the development that were not minor – where the learned trial judge held that the departures were in no way determinative of the question whether the use to which the land was being put was the use contended for by the respondent – whether the learned trial judge erred by finding that the 2010 Approval had not lapsed under s 341(1) of the SPA, when condition 1 required the development to be carried out generally in accordance with the approved plans and drawings, and the approved plans and drawings had not been complied with
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the applicants contended that the respondent's proceedings were out of time because they had been started more than six years from the date on which the cause of action arose – where the learned trial judge accepted that the cause of action was complete on the date the 2010 Approval came into effect – where the learned trial judge concluded that the proceedings were for enforcement proceedings concerning alleged non-compliance with conditions of an approval – whether the learned trial judge erred by finding that s 10(1)(d) of the Limitation of Actions Act 1974 (Qld) does not apply to an application seeking an enforcement order pursuant to s 180 of the Planning Act, where the order sought by the Council required the applicants to pay sums of money to it
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INTERESTS – QUEENSLAND – where the learned trial judge concluded that matters identified concerning the loss of documents would not have led to a different conclusion as to the fact that the delay had not caused any material prejudice – where the applicants were on notice that the respondent contended that the conditions had not been met and could be enforced – whether the learned trial judge erred by finding that s 38(4) of the Acts Interpretation Act 1954 (Qld) does not apply to an application seeking enforcement orders pursuant to s 180 of the Planning Act
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INTERESTS – QUEENSLAND – where the applicants' contentions commenced with observing that the term "driving instructing" was not defined in the two relevant planning schemes in operation at the commencement of use on Lot 36, and at the time of the 2010 Approval – where factual statements drawn from promotional material issued by the applicants were likely to be accurate in the description of the existing use – where the learned trial judge also referred to documents published by the applicants subsequent to the 2010 Approval – where his Honour rejected the qualifications placed upon the documentary evidence by the two principals – whether the learned trial judge erred by construing the term "driving instructing" to include instruction in the operation of plant and equipment or, alternatively, failing to give adequate reasons for so construing the term "driving instructing"
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INTERESTS – QUEENSLAND – whether the learned trial judge erred by finding that there had been a material change of use for "driving instruction" or "motor vehicle workshop/ERA" on Lot 36, in the absence of evidence to justify that finding or, alternatively, by drawing inferences not properly available on the evidence; and misapplying the onus of proof in that regard

Townsville City Council v QNI Metals Pty Ltd & Anor [2020] QSC 61
Plaintiff sues to recover rates and the defendants claim that they are not liable to pay rates – they rely on part of a schedule to the Queensland Nickel Agreement Act 1970 and an agreement said to have been made between the State and their predecessor in title

Legislation

Commonwealth

Industry Research and Development (Access to Bushfire Construction Standards Program) Instrument 2020
24/04/2020 - This instrument prescribes the Access to Bushfire Construction Standards Program.

Victoria

Bills

COVID-19 Omnibus (Emergency Measures) Bill 2020
Date of second reading speech: 23 April 2020
Primarily, the Bill will implement the National Cabinet tenancy reforms announced – enshrining the temporary ban on rental evictions and rent increases in law, and boosting mediation support to help landlords and tenants negotiate new, fair rental agreements

NSW

Regulations
Retail and Other Commercial Leases (COVID-19) Regulation 2020 (2020-175) — published LW 24 April 2020
Water Supply (Critical Needs) Amendment (Bathurst Water Supply) Regulation 2020 (2020-171) — published LW 24 April 2020
Residential Tenancies Amendment (COVID-19) Regulation 2020 (2020-147) — published LW 15 April 2020

Queensland

Appropriation (COVID-19) Bill 2020
Introduced by: Hon J Trad MP on 22/04/2020
Stage reached: Passed on 22/04/2020

COVID-19 Emergency Response Bill 2020
Introduced by: Hon A Palaszczuk MP on 22/04/2020 Stage reached: Passed on 22/04/2020
The policy objectives of the Bill are to amend the Parliament of Queensland Act 2001(the Parliament of Queensland Act) to:
" establish a power to make emergency regulations for the residential tenancy and rooming accommodation sectors to address the impacts of the COVID-19 emergency;
" facilitate implementation of the National Cabinet decision in relation to good faith leasing principles for relevant non-residential leases in Queensland.

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.

Australia: Inside Track: Property & Real Estate - In the media, In practice and courts, Cases, and Legislation

In the media

In practice and courts

Cases

Legislation

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