Australia: Planning & Environment Update: Did you know...

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Industry Focus: Property

The Paris Climate Change Agreement enters into force today?

Today the historic Paris Climate Change Agreement, from the 2015 United Nations Climate Change Conference, enters into force. This follows the announcement on 5 October 2016 that the two key thresholds for the Paris Agreement to become a legal reality had been met – over 55 parties have ratified the Convention, and those parties account for more than 55% of global greenhouse gas emissions.

A total of 92 parties have now ratified the Agreement. In a statement released last month, UN Secretary-General Ban Ki-moon commented that the "[s]trong international support for the Paris Agreement entering into force is testament to the urgency for action, and reflects the consensus of governments that robust global cooperation is essential to meet the climate challenge".1

In other international climate change news:

  • Commonwealth representatives held a workshop entitled 'Regenerative Development to Reverse Climate Change' in London last week. The workshop focussed on cutting edge technologies and concepts including biomimicry, where buildings are engineered to have the carbon reduction capability of trees. The event aimed to provide new perspectives on innovation for climate change reversal ahead of the upcoming UN Climate Change Conference in Mararakech.
  • The 22nd session of the Conference of the Parties (COP 22) UN Climate Change Conference will be held in Bab Ighli, Marrakech, Morocco from 7-18 November 2016.

Look out for our article regarding the Paris Agreement next week, where we will explore what the Agreement means for Australia and some of the legal implications for Australian industries and businesses.

Discussion continues regarding the Norman Park character home demolitions?

Last week's update featured an article entitled 'There are calls for legislative changes to prevent demolition of character homes in Brisbane', in which we referred to conjecture around the role of private certifiers in the wake of the recent demolition of two character houses in Norman Park. This update has sparked some interesting discussions.

Recent court decisions (the 'Gerhardt' decisions) have this to say about the issue of whether certifiers may approve demolition in areas subject to the Council's Traditional Building Character Overlay:

  • In Brisbane City Council v Gerhardt (2016) QCA 76, relating to proposed alterations to a character house, the Court of Appeal determined that it was not mandatory to obtain a preliminary approval for building work from the Council and, as no such application had been made, the private certifier was at liberty to proceed to determine the building application. Notably, the Council was a concurrence agency for the application made to the private certifier, however, as it did not give a concurrence agency response within prescribed. timeframes under the Sustainable Planning Act 2009, it was deemed to have no requirements
  • In Gerhardt v Brisbane City Council (2016) QPEC 48, relating to the proposed demolition of two character houses, the Planning & Environment Court determined that the private certifier did not have a role in assessing the demolition application against the Traditional Building Character (Demolition) Overlay Code under Brisbane City Plan 2014 - only the Council can carry out that assessment.
  • The decisions draw a distinction between applications for alterations (for which private certifiers may give approval) and demolitions (which the most recent P&E Court decision suggests must be assessed by Council).

An application for leave to appeal the most recent Planning & Environment Court decision (discussed above) to the Court of Appeal was filed on 7 October 2016.

One of the questions is whether the 'loophole' applies in relation to the Norman Park demolitions. We understand that in this case, the demolition application was referred to the Council, which subsequently directed refusal, however the demolition proceeded notwithstanding the direction issued by Council.

Private land may become eligible for national park protections?

The Queensland Government has announced a proposal to offer private land a similar legal status to national parks to protect environmental values. The new category of 'Special Wildlife Reserve' under the Nature Conservation Act 1992 would be available on a voluntary basis to private land of outstanding conservation significance.

Queensland Environment Minister, Dr Steven Miles is reported to have said that the high level of protection afforded would have the potential to safeguard against mining and coal seam gas projects. However, the new category would have to meet the biodiversity standards needed to gazette a national park.

Details are yet to be announced, however, Dr Miles has stated that consultation on the proposed legislation will occur with stakeholders prior to debate, with a view to putting legislation to Parliament in coming months.

This week the Planning & Environment Court dismissed an application seeking joinder to 'permissible change' proceedings and allowed an appeal from the Building and Development Dispute Resolution Committee?

Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 53 – an application by an adjoining land owner to be joined as a party to 'permissible change' proceedings was dismissed. The applicant argued that its joinder would be 'desirable, just and convenient' under the relevant statutory test to properly ventilate the issues. It also argued that, where this was the second permissible change sought to the development approval, the Court ought to have regard to how the changes related to the original approval, not just the current version.

In dismissing the application, the Court did not accept that there was a legal basis for assessing the proposed changes to the current development approval against the original approval. It determined that joinder of the applicant would create unnecessary cost and did not meet the statutory test.

Council of the City of the Gold Coast v Taylor & Another [2016] QPEC 54 – an appeal by the Council was allowed, setting aside a decision of the Building and Development Dispute Resolution Committee (Committee). The Committee's decision had set aside a previous refusal of a building application by a private certifier (as directed by the Council) where there were issues relating to sewerage design, and replaced it with an approval including a condition to address sewerage design.

In setting aside the Committee's decision, the Court ordered a new decision in accordance with the parties agreed course of action, approving the development but relocating the sewer to meet relevant performance standards.

Footnote

1 Statement released on 5 October 2016 accessed at https://www.un.org/sg/en/content/sg/statement/2016-10-05/statement-secretary-general-paris-agreement-climate-change

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories

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