Australia: Property & Projects - What's News - 2 April 2012

Latest news

Key infrastructure projects at risk as funding dries up
The Gillard government's top infrastructure adviser, Sir Rod Eddington, has warned of economic and social fallout as funding dries up for important nation building projects. The Infrastructure Australia chairman said projects continued to be evaluated by the authority on a rigorous evidence-based process, but there was now little money available to fund them (23 March 2012) More...

New expert panel for carbon farming announced by Government
An expert panel for carbon farming has been appointed to assess the proposed methods for developing carbon credits under the Carbon Farming Initiative (CFI). This committee replaces the interim DOIC set up to fast track the assessment of methodologies submitted for assessment prior to the CFI commencing (23 March 2012) More...

Government moves to reform contract law
The federal government is planning to overhaul contract law, with the goal of eliminating inconsistencies and easing the legal burden on small business and individuals, with the Attorney-General Nicola Roxon launching a discussion paper aimed at a review of contract law to make it simpler, cutting red tape and encouraging trade this week (22 March 2012) More...

Legislation introduced to provide advice on CSG and mining
The legislation will amend the Environment Protection and Biodiversity Conservation Act 1999 to allow for the establishment of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development as a statutory body. The interim committee will continue until it hands over to the Independent Expert Scientific Committee from 1 July, 2012 (22 March 2012) More...

National transport taskforce announced
A new transport taskforce that aims to develop a plan for Australia's future based on better planning, better land use management and better transport systems has been announced by the Infrastructure and Transport Minister. The Taskforce will report in October on its vision for an active and productive Australia in 2030, focusing on planning, land use and transport, and a roadmap for governments to achieve this (21 March 2012) More...

The Minerals Resource Rent Tax (MRRT) - spreading the benefits of the mining boom
The Minerals Resource Rent Tax (MRRT) was passed by the Senate 0n 20 March 2012, and will help spread the benefits of the mining boom to all Australians and strengthen the whole economy, according to the Government. Only super-profitable mining companies will pay the MRRT and the proceeds will go to cutting taxes for all companies, to infrastructure, and increased superannuation (20 March 2012) More...

Australia's carbon price not seen as excessive
Australia's $23 a tonne carbon price is "not excessive" and less than that in several major economies, but the nation is slipping behind the rest of the G20 in preparing to compete in a low-carbon world according to released reports (19 March 2012) More...

ATO issues guidance to Australian residents with undeclared foreign income
Tax Commissioner Michael D'Ascenzo has advised that the ATO will be focussing on undeclared foreign source income, as outlined in the latest taxpayer alert. The ATO is concerned that not all taxpayers are disclosing their taxable offshore income such as foreign investment income or income earned from inherited assets (21 March 2012) More...

Great Barrier Reef shipping impacts to be considered in mine proposal
Impacts on the Great Barrier Reef will be considered as part of an Australian Government assessment of whether or not Rio Tinto Weipa Pty Ltd's proposed South of Embley Bauxite Mine and Port Development in Queensland can progress under national environment law (16 March 2012) More...

RDC: National Planning Report Card Revealed
The Development Assessment Report Card 2012 reveals that despite recent reforms, Australia is still not delivering efficient, fair and consistent planning and development assessment systems. All spheres of Government must revolutionise its planning systems, new research from the Residential Development Council (RDC) and the Property Council of Australia (Property Council) has found (15 March 2012) More...

Guidance and policy proposals for carbon financial products released by ASIC
The Australian Securities and Investments Commission (ASIC) has released regulatory guidance to help businesses comply with their financial services legal requirements leading up to the introduction of Australia's carbon pricing mechanism (15 March 2012) More...

Small Business Commissioner appointed by Government
The Government has appointed the nation's first Small Business Commissioner, to work with the Minister for Small Business to ensure Government agencies take into account the needs of small businesses (14 March 2012) More...

Fire Protection Association calls for better grip on national building code
The Fire Protection Association of Australia has called for a better understanding of Building Code of Australia requirements to prevent dangerous fire emergencies, such as the recent office fire in Melbourne's CBD (22 March 2012) More...

Latest news

Coalition welcomes plans for airport investment
The Victorian Coalition Government has welcomed the release of Melbourne Airport's plans for a new domestic terminal. The new investment by Melbourne Airport and the Coalition Government's plan is to expand Avalon Airport, to ensure Victoria remains the premier destination for both domestic and international travellers (21 March 2012) Coalition welcomes plans for airport investment

Ministerial-Mayors Advisory Panel meets
Minister for Local Government Jeanette Powell has convened the 2012 Local Government Ministerial-Mayors Advisory Panel (MMAP) for the first time. The Ministerial-Mayors Advisory Panel will facilitate greater, more meaningful dialogue between the two arms of government and provide high level strategic advice on a broad range of legislative, regulatory, strategic and policy decisions (21 March 2012) Ministerial-Mayors Advisory Panel meets

Moorabool turbine squeeze compo claim
The developer behind the 107-turbine Moorabool wind project and a 64-turbine project in Lal Lal is seeking $100,000 in legal costs from Moorabool Council after a planning dispute (20 March 2012) More...

Victoria's infrastructure delivery 'too slow, over budget'
The state's financial watchdog, the Auditor-General, has slammed the way infrastructure is delivered in Victoria, saying too many projects are put at risk by insufficient leadership, poor management and bad advice (18 March 2012) More...

Implementation Taskforce established
The Premier Ted Baillieu has announced a new taskforce of experienced executives from the public and private sectors will oversee a range of improvements to give Victorians better services. This will help to not only deliver better services, but to also invest in the infrastructure required to support Victoria's growth (16 March 2012) Implementation Taskforce established

Latest news
New South Wales

Pacific Highway Duplication design and planning shortlisted
The Government has released today the shortlist of consortiums bidding for the contract to do the detailed planning and design work on the section between Woolgoolga to Glenugie. Funding is coming from both the Federal ($4.1 billion) and NSW ($1 billion) governments (March 2012) More...

Latest news

Flood Insurance Contracts Bill passed
The Insurance Contracts Amendments 2012 (the Bill) has been passed in the Senate. This Bill implements two key proposals from the Reforming Flood Insurance: Clearing the Waters discussion paper, including the final wording of the standard definition of 'flood' and the specific content of the Key Facts Sheet, will be made in regulations contained in the Insurance Contracts Regulations 1985 (21 March 2012) More...

Tax challenge may see states lose mining profits
Constitutional law experts are warning the states run the risk of losing their ownership of mineral rights to the Commonwealth in any legal challenge to the mining tax (20 March 2012) More...

Valley retailers rejoice at walkway reopening
Multi-billion dollar property giant Lend Lease, which owned the Valley Metro building that housed Fortitude Valley train station, has won a Supreme Court action which led to a walkway being reopened (21 March 2012) More...

Commission recommends vendors should disclose flood data
Vendors will need to disclose flood-related data as part of changes proposed by the Queensland Flood Commission. The recommendation urges the Queensland government, in consultation with the Real Estate Institute of Queensland (REIQ) and the Queensland Law Society, to implement a mechanism by which prospective buyers of property are alerted to the issue of flood risk (21 March 2012) More...

Damages to flow from Wivenhoe Dam breach
The Queensland government has been exposed to the threat of a billion-dollar compensation claim from flood victims and insurers after a royal commission-style probe found the Wivenhoe Dam was mismanaged and that a cover-up attempted to conceal the truth (17 March 2012) More...

Long-range forecasts short on use
Former senior flood forecaster for BOM says the forecasts were not accurate or precise enough to enable political decisions to be made about lowering levels of dams (15 March 2012) More...

Commission – new Riverwalk reconstruction must be overseen
The Flood Commission of Inquiry report has recommended. The design of Brisbane's new Riverwalk must be overseen by an independent expertAnd Colleges Crossing near Ipswich should be raised after a cost benefit analysis and the Moggill Ferry replaced (17 March 2012) More...


Australia and the future of the Kyoto Protocol
The Climate Institute Current Kyoto targets lapse at the end of 2012. All countries except Canada are expected to meet these international commitments (20 March 2012) Australia and the future of the Kyoto Protocol

The Carbon Unit: Is it Personal Property and Would Repeal of the Clean Energy Act Demand Acquisition on Just Terms under the Constitution
Author: Shona Stevens, Queensland Environmental Practice Reporter, 2012, 57(2) On 1 July 2012 Australia's emissions trading scheme (ETS) will commence. As part of the ongoing debate regarding whether to introduce the ETS as Australia's key response to reducing greenhouse gas emissions, it had been questioned whether the repeal of the Clean Energy Act 2011 (Cth) would result in the acquisition of property under s51(xxxi) of the Australian Constitution.

Development Assessment Report Card 2012
Author: MacroPlan Dimasi, Residential Development Council Efficient, fair and consistent planning and development assessment systems are essential to delivering economic growth in our communities (March 2012) More...

Emissions trading coalitions: leveraging emissions trading to achieve greater levels of global mitigation ambition
Author: Salim Mazouz, Erwin Jackson, The Climate Institute Australia could get more out of its carbon pricing scheme by focusing its emissions trading efforts on its neighbours rather than Europe (14 March 2012) Emissions trading coalitions: leveraging emissions trading to achieve greater levels of global mitigation ambition

Practice notes/directions

Review of Australian Contract Law: Attorney-General
The Attorney-General Nicola Roxon has released a discussion paper to explore the scope for reforming Australian contract law. The Department is seeking views about the problems that businesses and individuals experience when contracting, and whether reforms could address these issues. There will be a three-month consultation period. Submissions must be received by the Department no later than COB Friday 20 July 2012. (22 March 2012) More... Discussion paper: Improving Australia's Law and Justice Framework: A discussion paper to explore the scope for reforming Australian contract law -

Regulatory guidance and policy proposals for carbon financial products - ASIC
Regulatory Guide 236 Do I need a licence to participate in carbon markets? (RG 236) is designed to help entities and individuals understand whether they require an Australian financial services (AFS) licence to provide financial product advice and other financial services in relation to carbon markets and emissions units (15 March 2012) More...

Proposals for applying its current AFS licensing – ASIC Consultation
ASIC is consulting on proposals for applying its current AFS licensing policies to licensees providing financial services in relation to emissions units. Consultation Paper 175 Carbon markets: Training and financial requirements (CP 175) invites feedback on our proposals for applying our current polices on training for financial product advisers and financial requirements to these licensees. Submissions close on 10 April 2012 (15 March 2012) More...

Practice Notes - VCAT
The Victorian Civil and Administrative Tribunal (VCAT) has released a number of new Practice Notes that aim to ensure greater uniformity and efficiency in tribunal practices.
The following Practice Notes apply to all Lists at VCAT : PNVCAT1 - Common Procedures; PNVCAT2 - Expert Evidence; PNVCAT3 - Fair Hearing Obligation; PNVCAT4 - Alternative Dispute Resolution (ADR); and PNVCAT 5 - Directions Hearings & Urgent Hearings.
The Practice Notes commenced on 15 March 2012

Practice notes/directions
New South Wales

NSW: Legislation Alert Concerning OH&S Responsibilities of a Body Corporate
A body corporate responsible for common areas used only for residential purposes is excluded from the definition of a person conducting a business or undertaking (PCBU – the new term that includes employers) under the Work Health and Safety Regulation 2011, unless the strata title body corporate employs a worker (20 March 2012) More...

Practice notes/directions

DERM: Prosecution announced
A company has been fined $195 000 and ordered to pay costs of $100 000 for releasing contaminants while carrying out abrasive blasting activities. The defendant pleaded guilty to seven offences against section 435(2) of the Environmental Protection Act 1994 (EP Act) (March 2012) More...



Fit and Proper Person Specified Matters 2012
This instrument specifies matters the Minister must take into account when determining whether a body corporate, or a person who exercises a degree of control or influence over the operation of a body corporate, seeking approval as a higher education provider or a VET provider, is a fit and proper person (19 March 2012) More...

Progress of Legislation
The Minerals Resource Rent Tax (MRRT) is a tax on the economic rents miners make from the taxable resources (iron ore, coal and some gases) after they are extracted from the ground but before they undergo any significant processing or value add. 'Economic rent' is the return in excess of what is needed to attract and retain factors of production in the production process - Passed Senate (19 March 2012) This includes:
Petroleum Resource Rent Tax (Imposition—General) Bill 2011
Minerals Resource Rent Tax (Imposition—Excise) Bill 2011
Minerals Resource Rent Tax (Imposition—Customs) Bill 2011
Minerals Resource Rent Tax (Consequential Amendments and Transitional Provisions) Bill 2011
Petroleum Resource Rent Tax Assessment Amendment Bill 2011
Minerals Resource Rent Tax Bill 2011

Telecommunications Legislation Amendment (Universal Service Reform) Bill 2011
The Telecommunications Universal Service Management Agency Bill 2011 (the Bill) forms part of a package of legislation to achieve continuity of key telecommunications safeguards in the transition to the National Broadband Network (NBN). Passed Senate with Amendments (20 March 2012)


Damco Nominees Pty Ltd v Moxham [2012] VSC 79
SALE OF LAND - Purchaser's inability to complete contract - Lack of finance - Vendor's service of notice requiring default to be remedied - Dispute over validity of notice - Caveat lodged by purchaser - Vendor's termination of contract for failure to remedy default - Action to remove caveat - Default notice not invalid - Contract terminated - Caveat ordered to be removed - Transfer of Land Act 1958 (Vic), s 90(3) EQUITY - Relief against forfeiture - Termination of contract by vendor for purchaser's failure to complete - Finance subsequently available - Applicable principles - Relief unavailable More...

Grant & Anor v Preece [2012] VSC 55
RESTRICTIVE COVENANTS - Section 84(1) Property Law Act 1958 – Application to modify single dwelling covenant - Applicable legal principles - Construction of "obsolescence" and "substantial injury" - Estoppel by reason of conduct of previous registered proprietor of the defendant's land More...

MyEnvironment Inc v VicForests [2012] VSC 91
ENVIRONMENTAL LAW – Proposed logging at three coupes near Toolangi – Application for permanent injunction restraining logging – Whether proposed coupes contain Leadbeater's Possum zone 1A habitat – Flora and Fauna Guarantee Act Action Statement – Central Highlands Forest Management Plan – Construction of relevant management prescription – Hollow-bearing tree means mature or senescing tree containing hollows – No evidence that proposed coupes contain sufficient density of hollow-bearing trees to constitute zone 1A – Obligation to comply with precautionary principle – No threat of serious or irreversible damage – Proposed adaptive management measures not proportionate to threat – Application dismissed – Sections 3, 4, and 22 Forests Act 1958; ss 4, 5, 6, 7, 10, and 31 Conservation Forests and Lands Act 1987; ss 1, 4, 5, 6, 13, 14, 15, 16, 17, 18, 19, 37, 38, 39, 40, 43, 44, and 45 Sustainable Forests (Timber) 2004; ss 1, 3, 4, 7, 8, 11, 17, 19, and 20 Flora and Fauna Guarantee Act 1988 - Environment East Gippsland Inc v VicForests [2010] VSC 335 - Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 More...

Halvorsen Pty Ltd v Stonnington CC [2012] VCAT 235
policy - council's planning scheme contemplates and endorses urban consolidation and anticipates higher scale development on major thoroughfares therefore maintaining the lower residential scale in residential areas – court satisfied that there will be minimal unsuitable impacts upon the adjacent dwellings in Francis Street which leads into lower scale one and two storey cottage and townhouse type residential developments More...

Berger v Lysteron Pty Ltd & Ors [2012] VSC 95
TRUSTS – Removal of trustee of discretionary trust – Whether power of removal a fiduciary one – Allegation that appointor had breached duties by not acting exclusively in the interests of the objects as a whole and by acting arbitrarily and capriciously – Whether plaintiff had made out breaches More...

Sitzler Savage Pty Ltd v Northen Mining Holdings Pty Ltd & Anor [2012] VSC 104
PRACTICE AND PROCEDURE – Application for leave to discontinue proceedings – Plaintiff joined without its authority – Whether costs should be awarded against non-party and legal representatives – Costs – Discretion of the Court to award costs – Whether costs awarded on a 'solicitor client' or 'indemnity' basis – rr 25.02, 25.05, 63.15 and 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 – s 24 of the Supreme Court Act 1986 – costs on indemnity basis awarded More...

Lemansen Pty Ltd v Boroondara CC [2012] VCAT 266
Section 77 of the Planning & Environment Act 1987; Boroondara Planning Scheme; repeat appeal; medium density housing; built form; off site amenity impacts; provision of car parking More...

Woodbank Nominees Pty Ltd v Greater Dandenong CC [2012] VCAT 268
Section 79 of the Planning and Environment Act 1987; Greater Dandenong Planning Scheme; Business 1 Zone; Design and Development Overlay Schedule 5; Major activity centre, Four storey building; Student housing over shops; Housing choice; Public realm; Amenity of residents; Access to sunlight; Car parking; Loading and unloading More...

Markouski v Whitehorse CC [2012] VCAT 267
Application under section 77 of the Planning and Environment Act 1987; Whitehorse Planning Scheme; Application to Remove an Easement; Council refusal based on lack of consent of adjoining land owner; Issues to be considered relate to the need/requirement for easement and any material detriment if it is removed More...

James W Sadler Pty Ltd v Knox CC [2012] VCAT 257
Section 79 of the Planning & Environment Act 1987; Knox Planning Scheme; Residential 1 zone; Design and Development Overlay; Amendment C62; apartment building; policy context; building height; whether outstanding architectural design; impact on amenity of neighbours; amenity of apartments; overdevelopment More...

Studio Antonio Calabro Pty Ltd Architects v Melbourne CC [2012] VCAT 253
Section 77 of the Planning and Environment Act 1987; Melbourne Planning Scheme; Mixed Use Zone; Heritage Overlay; Apartment building; Four levels over 2 basements; Height, massing and materials; Car parking; Impacts of construction on an adjacent heritage building – no permit More...


Cohn and Ors v Gandhi and Anor [2012] QCAT 084
Where a question of whether the Act applies to the tree – the tree has been maintained as a condition of development approval More...

McElligott v Commonwealth Bank of Australia [2012] QCA 061
CONVEYANCING – MATTERS ARISING AFTER COMPLETION – OTHER MATTERS – CAVEATS AGAINST DEALINGS – where appellant lodged a registered owner's caveat against land on behalf of a company in liquidation – where the caveat prevented registration of a transfer of the land and mortgage over the land – where the mortgagee applied for removal of the caveat pursuant to s 127 Land Title Act 1994 (Qld) – where the caveat was based upon alleged fraudulent conduct – where the alleged fraudulent conduct related to persons other than the transferee and mortgagee – whether the primary judge's discretion under s 127 Land Title Act 1994 (Qld) miscarried in ordering that the caveat be removed. PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – OTHER MATTERS – whether the primary judge erred in refusing to stay an order for removal of a caveat to permit the appellant to add a party to the proceeding

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondent contends that the appellant advanced the same hopeless position on appeal as at first instance – whether costs should be awarded on the indemnity basis More...

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