Australia: Planning & Environment - Whats News - 18 January 2017

In the media – National

Clean Energy Innovation Fund helps Australian manufacturer reinvent the wheel for global markets
Australia's Clean Energy Innovation Fund is to invest in a Geelong-based company that has developed world-leading technology to tackle one of the most difficult to address sources of carbon emissions - light vehicles (22 December 2016). More...

Multibillion dollar taxpayer bill as Australian emissions rise and projected to keep rising without substantial new policies
According to government data out today, Australia's emissions have increased by over four million tonnes in the year to June 2016 and are projected to keep rising to 2030. Without stronger energy and climate policies, government's own inadequate 2030 target will be blown by around a billion tonnes, said The Climate Institute (22 December 2016). More...

In the media – Victoria

Jude Munro Appointed Victorian Planning Authority Chair
Former Brisbane City Council CEO Jude Munro AO has been appointed the inaugural chair of the Victorian Planning Authority. The new Victorian Planning Authority will work on the long-term plans needed to cope with the state's growing population, set to reach 10 million people by 2051 (23 December 2016). More...

Environmental Plan in Place for the Metro Tunnel
Minister for Planning Richard Wynne has signed off on the rigorous Environmental Effects Statement for the Andrews Labor Government's landmark Metro Tunnel Project. As a result of the EES, 119 fewer trees will be lost, Fawkner Park will no longer be used for the project and property acquisition in Kensington has been reduced from 22 to one (21 December 2016). More...

Sky rail: Supreme Court dismisses residents' bid to derail project
The Lower Our Tracks Inc group had taken action in the Supreme Court, challenging as unreasonable Planning Minister Richard Wynne's decision to use powers of discretion during the notification of planning changes (20 December 2016). More...

New design rules to prevent 'dog box' apartments in Victoria
Design standards to ensure newly built apartments contain natural light and enough room for a fridge and bed will be introduced in March next year, the Victorian Government says (17 December 2016). More...

In the media – New South Wales

Nearly 100 compliance inspections at NSW sites in November
The Department's latest compliance report detailing monitoring of major projects around NSW shows during November our officers visited 98 sites to make sure companies were following the rules (23 December 2016). More...

Forty-two year high for homes built
New data reveals that we're building most new Sydney homes east of Parramatta as completions across Sydney reach their highest figures in more than four decades (22 December 2016). More...

New Aboriginal cultural heritage laws a step closer
The NSW Government will start drafting new Aboriginal cultural heritage legislation aimed at creating a respectful and workable model for cultural heritage protection. The current legal framework sits inappropriately in the National Parks and Wildlife Act (21 December 2016). More...

Nation leading access to environmental data
The NSW Government has launched the first stage of a new online portal that offers public access to NSW environmental data. The Sharing and Enabling Environmental Data (SEED) portal currently includes 70 sets of data from nine different NSW Government agencies, with further data sets to be added during the next stage of the portal's development (20 December 2016). More...To view SEED visit: www.seed.nsw.gov.au.

Heritage Floor Space sale incentivises heritage conservation
Today, Property NSW announced the sale of 8,541 square metres of unused development potential, known as Heritage Floor Space (HFS) rights, for circa $11.7 million (excluding GST), on behalf of Fire & Rescue NSW (20 December 2016). More...

Certainty and clarity for wind energy
The NSW Government's new wind energy framework will encourage opportunities to harness clean energy, and ensure the interests of local communities are taken into account during project assessments (19 December 2016). More...

Tamworth and Armidale named regional cities in 2036 vision
Tamworth and Armidale will be officially recognised as regional cities for the first time, as part of a new 20-year vision for the New England North West region (19 December 2016). More...

$4.7 million in grants now available to increase recycling
Grants to help councils, industry and business increase their recycling capacity and efficiency are now open for application as part of the NSW Environment Protection (15 December 2016). More...

In the media – Queensland

Views sought on new Great Artesian Basin water plan
The Palaszczuk Government is seeking public input on a draft water plan for the vital Great Artesian Basin and several other regional aquifers (05 January 2017). More...

Community safety at the heart of Stage 2 Roma Flood Mitigation Project approval
More properties in Roma will be better protected from flooding with approval granted for Stage 2 of the Roma Flood Mitigation Project. The approved development application has a number of conditions attached to ensure the levee is constructed, operated and maintained adequately (05 January 2017). More...

More jobs for North Queensland as Clare Solar Farm financially closes
North Queensland's solar credentials continue to shine with another large-scale solar farm reaching a major financial milestone. Construction of the Clare Solar Farm is set to begin in early 2017, with the farm expected to be grid-connected and fully operational by early 2018 (30 December 2016). More...

First Solar 150 project signed in the Solar State
Energy Minister Mark Bailey and Genex, the project proponents of the large-scale Kidston solar project and energy storage facility, today signed the deed of agreement for the Palaszczuk Government's long term financial support of the project (22 December 2016). More...

Plan released for $3bn resort development on Gold Coast's Spit
Details are released for a $3 billion resort development at The Spit on Queensland's Gold Coast — but any development would still be years away, as it needs approval from the State Government (18 December 2016). More...

In practice and courts – Victoria

Announcements, Draft Policies and Plans released 2016

The Planning Permit Activity Report for November 2016 is now available (22 December 2016).

In practice and courts – New South Wales

Current and future impacts of climate change on marine fisheries and biodiversity
On 14 September 2016, the Senate referred the following matters related to the Environment and Communications References Committee for inquiry and report by 30 June 2017. More...

Retirement of coal fired power stations
On 13 October 2016, the Senate referred the following matter to the Environment and Communications References Committee for inquiry and interim report by 28 November 2016 and final report by 1 February 2017. More...

Fifth Emissions Reduction Fund auction
The Clean Energy Regulator will hold a fifth auction in April 2017, with details of that auction to be released early next year. Full results from the fourth Emissions Reduction Fund auction are available at Auction - November 2016.

Proposed Basin Plan amendments — Invitation for public submissions
The Murray–Darling Basin Authority (the Authority), acting pursuant to subsection 47(4) and (5) of the Water Act 2007 (Cth) (the Act) seeks submissions from interested persons on proposed Basin Plan amendments. Submissions are due by 10 February 2017. The Authority's webpage provides more information on the proposed amendments and information on how to make a submission.

Announcements, Draft Policies and Plans released 2016

NSW: Draft Plan to Save NSW Energy and Money
A Draft Plan to Save NSW Energy and Money is a proposed plan to meet the NSW Government's energy savings target and save money for NSW households and businesses. This plan is part of the broader Draft Climate Change Fund Strategic Plan, which includes other potential actions for energy efficiency beyond the 2020 energy savings target. This plan also aligns with the policy directions in the NSW Climate Change Policy Framework.
Following public consultation between 3 November and 16 December 2016, the NSW Government is now developing a new action plan for national leadership in energy efficiency.

NSW Department of Planning: Designing our future
Good design is sustainable, functional, socially beneficial, and most of all it is future proof. Our design focus will build on work undertaken in 2016, which saw the Office of the Government Architect launch the draft Architecture and Design Policy. This policy will play an important role in helping to deliver high quality urban design and better places for people across NSW. You can find out more about good design from the Office of the Government Architect (21 December 2016).

NSW: Coastal SEPP –Extension to Consultation Period
The consultation period on the draft Coastal Management State Environmental Planning Policy, accompanying maps and the draft section 117 Ministerial direction has been extended to 20 January 2017.

In practice and courts – Queensland

Consultation: Draft South East Queensland Regional Plan (ShapingSEQ)
Following collaboration with the region's 12 local governments, state agencies, and community and business, ShapingSEQ is open for community feedback until 3 March 2017. ShapingSEQ is the Queensland Government's new regional planning framework to sustainably manage change and growth in South East Queensland. See ShapingSEQ website to view the plan and find out how you can have your say.

Updated State Planning Policy: public consultation
An updated State Planning Policy (SPP) is open for public consultation from 21 November 2016 to 10 February 2017 to commence alongside the new planning legislation on 3 July 2017. Submissions close 10 February 2017. More... More...

Cases – Victoria

Lower Our Tracks Inc v Minister for Planning [2016] VSC 803
JUDICIAL REVIEW – Planning – Amendment to planning scheme – Incorporated document – Removal of level crossings – Elevated rail design – Minister's decision to exempt himself from statutory exhibition and notice requirements – Whether decision unreasonable or irrational – Whether decision made for an improper purpose – Whether Minister's discretion fettered – Planning and Environment Act 1987 ss 17, 18, 19, 20(4).

Woldeyes v Brimbank City Council [2016] VSC 639
PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – Application for planning permit to develop land – Tribunal made interim order permitting the applicant to submit modified plans – Tribunal then decided the application 'on the papers' without further submissions – Whether the Tribunal failed to afford procedural fairness – Whether Tribunal had duty to inform parties of its opinion about the modified application – Leave granted - Appeal dismissed.

Patterson v Russell (Civil Claims) [2017] VCAT 30
Australian Consumer Law (Vic) section 18; misleading and deceptive conduct; internet advertisements; fine print qualifications; alleged transitory effect of misleading conduct; representations as to future matters; ACL s.4(2) evidentiary burden; contractual promises; sale of used car.

Australian Muslim Media Ltd v Hume CC [2017] VCAT 25
Hume Planning Scheme; community centre in an Industrial 3 Zone; the establishment of potentially sensitive land uses in an Industrial 3 Zone; built form outcomes in an Industrial 3 Zone.

Cases – New South Wales

Millers Point Fund Incorporated v Lendlease (Millers Point) Pty Ltd [2016] NSWLEC 166
JUDICIAL REVIEW – request to modify Barangaroo concept plan – whether PAC correctly construed Casino Control Act 1992 – whether PAC properly exercised its powers, duties and functions under s 75W of the Environmental Planning and Assessment Act 1979. JUDICIAL REVIEW – request to modify Barangaroo concept plan – whether PAC correctly construed Casino Control Act 1992 – whether PAC took into account irrelevant considerations in contravention of s 75W of the Environmental Planning and Assessment Act 1979. JUDICIAL REVIEW – development application to construct Crown Casino Hotel Resort in Barangaroo – whether contingent on the modification of the Barangaroo concept plan. JUDICIAL REVIEW – development application to construct Crown Casino Hotel Resort in Barangaroo – whether PAC took into account irrelevant consideration in contravention of s 79C of the Environmental Planning and Assessment Act 1979.

Cases – Queensland

Tighe & Anor v Pike & Ors [2016] QCA 353
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – CONDITIONS – where the second respondent issued a decision notice under the Integrated Planning Act 1997 (Qld) approving an application for reconfiguration of the original lot into two lots – where condition 2 of the approval conditions required creation of an easement for access, on-site manoeuvring and connection of services for the benefited lot, lot 2, over the burdened lot, lot 1 – where the registered proprietors of the original lot did not include grant of an easement for "on-site manoeuvring" or "connection of services and utilities" – where the second respondent nevertheless endorsed the survey plan – where the titles for lot 1 and lot 2 were created upon registration of the survey plan with this easement registered on the titles – where the applicants subsequently became the registered proprietors of lot 1 and the first respondents subsequently became the registered proprietors of lot 2 – where the first respondents applied in the Planning and Environment Court for a declaration that condition 2 of the development permit had been contravened and an enforcement order directing the applicants to comply with condition 2 – where the Planning and Environment Court granted the application – where it was submitted by the applicant that the primary judge erred in finding the Court had jurisdiction to make the enforcement order by reason of the commission of a development offence where there was no such offence – whether s.245, in combination with s.580(1), of the Sustainable Planning Act 2009 (Qld) operated to make condition 2 continue to have effect by attaching condition 2 to lot 1 after the reconfiguration of the lot had been completed and the approval had been spent – whether condition 2 imposed any obligation upon the applicants even though they were not parties to the reconfiguration of the original lot approved by the development approval – whether the applicants committed a development offence by failing to comply with condition 2 – whether a development offence existed that could support the making of an enforcement order.
REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – OMITTED OR MISDESCRIBED EASEMENT – where the applicants contended that the primary judge erred in deciding the application on the basis that the first respondents had no indefeasible title to the land sufficient to deny the applicants' claim where it was further submitted that the primary judge erred in finding that a development approval which 'runs with the land' is an exception to indefeasibility of title – whether any question of indefeasibility arose in this case.

Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 068
PLANNING AND ENVIRONMENT – substantially completed development for a 49 multi-unit dwelling in Calamvale – where the applicant requested changes to the approval to reflect adjustments which occurred in the course of construction – where a commercial competitor, constructing a similar development on the adjoining land, wishes to object to the changes – whether the proposed changes constitute permissible changes.

48 Stuart Pty Ltd v Brisbane City Council [2016] QPEC 067
PLANNING AND ENVIRONMENT – development approval for a multi-unit dwelling with visitor car park spaces to remain unimpeded by gates or other structures – where the applicant requested changes to the approval in order to install garage doors – whether the proposed change constitutes a permissible change.

Australian Leisure And Hospitality Group Pty Ltd v Brisbane City Council [2016] QPEC 066
PLANNING AND ENVIRONMENT - local laws – appeal against refusal of a licence for a digital advertising device on a heritage listed hotel – whether device appropriate in the prevailing environment – whether device would have an unacceptable impact on the hotel and, in particular, its heritage value.

Gympie Regional Council v Pye [2016] QPEC 65
I order the respondent, by herself, her servants, or agents to, remove the advertising sign erected on Lot 3 on Crown Plan MPH24229 and situated at 106 Old Maryborough Road, Gympie within (30) days of today's date. Local Government Act 2006 s.259; Sustainable Planning Act 2009 ss.473, 578, 580, 601(1)(a), 604, 605 & 606.

Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 064
PLANNING & ENVIRONMENT – appeal against deemed refusal of a development application for a material change of use – proposed mixed use development for aged care, assisted living units, medical consulting rooms and health training facilities in a 20 storey building – whether proposal in conflict with the planning scheme provisions by reason of its height – where area in the process of planned revitalisation and intensification – likely future development – reasonable expectation – economic and community need – sufficiency of need and other grounds to justify approval notwithstanding conflict.

Fortress Freeholds Pty Ltd v Brisbane City Council & Ors [2016] QPEC 063
PLANNING & ENVIRONMENT – Appeal against Council's deemed refusal of the appellant's development application, seeking approval for reconfiguration of a lot, and material change of use, to permit development of a self-storage facility on land within the low density residential zone in Carseldine – whether there are sufficient grounds to approve the proposed development despite conflict with the planning scheme – whether there is a need for the proposed development.

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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