Australia: Planning & Environment - What's News - 2 March 2016

Last Updated: 11 March 2016
Article by Joseph Monaghan, Breellen Warry and Gerard Timbs

Most Read Contributor in Australia, September 2016

In the media – New South Wales

Waste industry fined $52,500 for dust related offences 
Over November and December 2015, the Environment Protection Authority inspected 21 Sydney waste facilities. Following this, four licenced waste facilities have been issued a total of $52,500 in fines for poor dust management practices.  The EPA says the waste industry can expect more inspections (19 February 2016).  More...

NSW Government investigates legacy of PFC use across the state
The Environment Protection Authority is undertaking an investigation program to assess the historical legacy of perfluorinated compound (PFC) use across NSW.  The investigation will focus on sites where, in the past, the chemicals may have been used in large quantities, including airports, firefighting training facilities and some industrial sites, and where it is determined there are exposure pathways that may increase people's contact with the chemicals, such as bore water usage, surface water usage or fishing sites (19 February 2016).  More...

Community input sought into revised guidelines for Community Consultative Committees
The Department of Planning and Environment is inviting the public to have its say on proposed changes to Community Consultative Committee Guidelines, which would see them be able to be used for any State Significant project in NSW, if needed.  The community can make submissions on the draft guidelines until 31 March (18 February 2016).  More...

Greater Sydney Commission Appointments
Planning Minister Rob Stokes has announced four district commissioners who will represent local communities on the Greater Sydney Commission, being Deborah Dearing (North District Commissioner), Edward Blakely (West Central District Commissioner), Maria Atkinson (Central District Commissioner) and Sean O'Toole (West District Commissioner).  South and South West districts are yet to finalise their appointments (13 February 2016).  More...

In the media – Queensland

A $100 million new Brisbane Cruise Ship Terminal another step closer
Premier Annastacia Palaszczuk has announced the planned Brisbane Cruise Ship Terminal for the mouth of the Brisbane River has entered the detailed assessment phase.  The Market Led Proposal was submitted by the Port of Brisbane Authority and is supported by the major cruise ship operators (12 February 2016).  More...

Gold Coast hotel tower plan – more rooms for more flights and more jobs
The Palaszczuk Government has welcomed The Star Entertainment Group's proposal for a 700-room hotel and apartment tower at its Jupiters Integrated Resort on the Gold Coast.  Premier Annastacia Palaszczuk said the proposal, in addition to the $345 million refurbishment of Jupiters, vindicated the Government's commitment to Gold Coast Light Rail, the 2018 Commonwealth Games and attracting more direct international flights to the Gold Coast (12 February 2016).  More...

Heritage value of Highgate Hill homes to be considered
Stop work notices at three residential buildings at Highgate Hill, Brisbane have been replaced by compliance officers after they were removed overnight.  Minister for Environment and Heritage Protection Dr Steven Miles was joined by the Deputy Premier and Member for South Brisbane Jackie Trad at the site in Highgate Hill.  Minister Miles said the future of the buildings was now in the hands of the Queensland Heritage Council, which would be considering the matter at its meeting on 6 May 2016 (11 February 2016).  More... 

Stop work order issued for Highgate Hill homes
The Queensland Government has issued a stop work order on three residential buildings at Highgate Hill, Brisbane.  Minister for Planning and Member for South Brisbane, Jackie Trad said the Brisbane City Council didn't identify the properties at Jones and Colton Street for demolition protection in their new City Plan which was adopted by Council on 30 June 2014 (11 February 2016).  More...

Legislation – Queensland

Planning reforms 

The planning bills are under review by the Parliamentary Committee.  The Government's Bills are available on the following links: 

The Private Member's Bills

The Private Member's Bills are available on the following links:  

Submissions closed on 18 January 2016.  A public hearing is to be held in Brisbane on Friday 26 February 2016 at the Parliamentary Annexe from 9:00am-2:30pm.  The Committee is due to provide a report on Monday 21 March 2016.  More...

Cases – Victoria

Frontlink Pty Ltd v Commissioner of State Revenue [2016] VSC 25 Croft J
ENVIRONMENT AND PLANNING – GAIC - operation of the excluded subdivision provisions of the Growth Areas Infrastructure Contribution provisions under the Planning and Environment Act 1987 (Part 9B) – Supreme Court overturned the Victorian Civil and Administrative Tribunal's decision with respect to a road widening subdivision whereby the Tribunal had found that a road widening subdivision was not an excluded subdivision under section 201RF of the Planning and Environment Act 1987 – interpretation of section 201RF of the Planning and Environment Act 1987 - 'the purpose of the subdivision is solely to provide land for transport infrastructure or any other purpose' - Frontlink Pty Ltd had prepared plans of subdivision which it submitted to the Council for certification. One of the plans did nothing other than seek to provide 0.7782 ha of land for a road widening. Frontlink Pty Ltd prepared a separate plan of subdivision for its residential subdivision, which it submitted after the road widening plan - Commissioner for State revenue issued a GAIC assessment in relation to the road widening subdivision plan on the basis that the subdivision triggered a liability to pay GAIC. Frontlink Pty Ltd objected, and ultimately sought review at the Tribunal, which upheld the Commissioner's assessment.  Frontlink Pty Ltd appealed to Supreme Court - Frontlink Pty Ltd contended that all that was relevant was what the road widening subdivision plan did, which was to create land for a road. Justice Croft accepted that argument - as a result of this decision, landholders in growth areas that need to create land for roads or certain other types of public infrastructure, should have confidence that if they create that land on a plan of subdivision that precedes a separate plan for the residential subdivision, the first plan of subdivision should not trigger a GAIC liability.  The GAIC payable on the subdivision for residential purposes will be reduced because it will only be payable upon the area of land that excludes the public land. It is very important that landholders subdivide the land sequentially so as to gain the benefit of the exemption.  More...

Cases – New South Wales

Ocean Shores Community Association Inc v Byron Shire Council (No 5) [2016] NSWLEC 8
COSTS – whether unsuccessful community association in judicial review proceedings should pay costs of Respondent – consideration of public interest costs rule in Land and Environment Court Rules.   More...

Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] NSWLEC 6
JUDICIAL REVIEW – development consent for open cut coal mine – likely significant effect on threatened species of the koala – development application contained indication of likely significant effect – whether misdirection in giving or considering indication – consideration of impact on koala population including by koala translocation – whether failure to consider what was local population of koalas – condition of consent requiring koala plans of management – whether condition deferred consideration of impacts on koalas – whether failure to consider precautionary principle or principle of conservation of biological diversity and ecological integrity – application dismissed.   More...

Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
APPEAL – appeal against Commissioner's decision on questions of law – grant of consent to development that contravenes development standards – written request justifying contravention – Commissioner's satisfaction of required matters to justify contravention – whether development consistent with objectives of development standards and zone – whether Commissioner so satisfied – whether adequate reasons given for being so satisfied – whether compliance with development standards was unreasonable or unnecessary – whether Commissioner gave adequate reasons for being so satisfied – non-compliance with control in development control plan – whether principal contested issue requiring resolution and reasons.  More...

Cases – Queensland

Carrigan v Goondiwindi Regional Council  [2016] QPEC 008 (15/2346) Jones DCJ 17/02/2016
HEARING OF AN APPLICATION – APPLICATION FOR DETERMINATION OF PRELIMINARY ISSUES – Whether shed unlawfully constructed on the subject land constituted a material change of use for the purposes of the Sustainable Planning Act 2009 – and, if so, whether the use fell within the definition of "detached house" or "storage facility" or is otherwise undefined under the relevant planning scheme.  FINDINGS OF FACT – Where court invited to make findings adverse to the applicant based on circumstantial evidence – whether such findings open on the evidence.  MATERIAL CHANGE OF USE – whether construction of large shed on large rural residential allotment amounted to a material change of use because – it introduced a new use to the premises – it constituted a re-establishment of an abandoned use – it was a material increase in the scale and/or intensity of the use of the premises.  More...

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 019 (15/4042) Margaret McMurdo P and Morrison JA and Atkinson J 12/02/2016
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – INTERPRETATION AND CONSTRUCTION – EXTRINSIC EVIDENCE – where the applicant gave the respondent an infrastructure charges notice for 3 bedrooms – where the primary judge declared that the approved development was for 2 bedroom relocatable dwellings – where the applicant sought leave to appeal on the ground that the primary judge had made an error of law – where the primary judge construed the development approval with reference to extrinsic evidence – where the respondent failed to exercise a right of appeal under s 478(2) of the Sustainable Planning Act 2000 (Qld) – where the primary judge considered the merits of a development proposal – where the primary judge granted declaratory relief – where the primary judge failed to give adequate reasons for exercising the discretion to grant declaratory relief – whether the primary judge erred in law in using declaratory powers under s 456 of the Sustainable Planning Act 2000 (Qld).  More...

Birkdale Flowers Pty Ltd v Redlands City Council & Anor [2016] QPEC 004 (14/4802) Jones DCJ 11/02/2016
APPLICATION – where respondent council approved a reconfiguration of land for a residential development at Birkdale – where respondent council granted the first respondent a development permit for operational works - whether respondent council failed to assess the applications against the Excavation and Fill Code – whether approvals in conflict with the Excavation and Fill Code – whether respondent council failed to properly assess the applications.  WEDNESBURY PRINCIPLE –– whether a decision by the respondent council to grant approval to the first respondent was so unreasonable as to be fundamentally defective.  JONES V DUNKEL – where second respondent failed to call evidence from a council officer – whether the failure to call evidence allows an adverse inference to be drawn against the respondent council.  DISCRETIONARY GROUNDS – where declarations were sought pursuant to section 456 Sustainable Planning Act 2009 – whether proposed remedial works are proportional – whether proposed remedial works will result in a materially better outcome – where there was no bad faith on the part of any of the parties.   More...

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.

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