Australia: Property & Real Estate - Whats News - 25 January 2017

Last Updated: 1 February 2017
Article by Bede Haines

In the media – National

2017 Property Optimism Felt Nation-Wide
Despite New South Wales taking credit for having the highest confidence in the property sector in 2017, the year has begun with a nation-wide high in confidence across the property industry, according to the latest quarterly ANZ Property Council Survey (13 January 2017). More...

Research Reveals Foreign Domination in National Investment
Australia's commercial property investment market continues to power ahead with another $26.9 billion spent in the 12 months to December with Foreign Investors again dominating national investment with spending of more than $10 billion or 39.5 per cent of the market, according to Savills Australia's latest research (12 January 2017). More...

In the media – Victoria

EPA issues fine in relation to Corkman pub demolition
Environment Protection Authority Victoria (EPA) has issued a $7,773 fine to the operators responsible for the demolition of the Corkman pub after they failed to meet a reporting deadline requirement outlined in a statutory notice (13 January 2017). More...

Stand-off over fees for Stawell's nine-million-tyre pile
Victoria's Environment Minister is dismissing calls to waive regulatory fees for operators of the southern hemisphere's biggest used tyre yard in Stawell (12 January 2017). More...

Two More Agencies Pay the Price for Underquoting
Two more Melbourne real estate agents have been caught underquoting, as Consumer Affairs Victoria's crackdown on the practice continues (12 January 2017). More...

Statement on Desalinated Water Order
Work is underway to fix a piece of equipment that was damaged during the re-start process at the Victorian Desalination Plant, but it will not stop the delivery of the Government's desalinated water order (30 December 2016). More...

In the media – New South Wales

Planning reforms to boost housing supply
Making it simpler to build a home and enhancing community participation in key decisions will be now easier through a package of red tape-busting reforms released for consultation by the NSW Government (09 January 2017). 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...

In the media – Queensland

Infrastructure and affordability to drive Queensland real estate in 2017
Significant infrastructure investments and greater affordability means Queensland's real estate market will see strong activity in 2017, according to one of Australia's leading real estate groups (12 January 2017). More...

New smoke alarm legislation to commence 1 January 2017
New laws regarding the installation of photoelectric smoke alarms in all Queensland homes will come into effect from 1 January 2017 (29 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...

Published – articles, papers, reports

REIA News – 19 December 2016
Included in this issue: Course for agents providing financial advice. Government decision to change FIRB rules for new apartments. National market and affordability snapshot. Anti-money laundering consultations. More...

Planning legislation updates: summary of proposals January 2017
Department of Planning and Environment (NSW): 10 January 2017
This guide sets out the NSW Government's proposals to update the Environmental Planning and Assessment Act 1979 (EP&A Act) through a series of targeted amendments. More...

In practice and courts

Announcements, Draft Policies and Plans released 2015

NSW OSR: Revenue Ruling No. G 009 - Definition of Foreign Person
Commencing from the 2017 land tax year, surcharge land tax applies to foreign persons who are owners within the meaning of section 3 of the Land Tax Management Act 1956 (the LTM Act), and subject to section 5A(4) of the Land Tax Act 1956.

Cases – Victoria

Demediuk v Melbourne CC [2017] VCAT 46
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.
Partial demolition and construction of alterations and two storey addition to the rear of the exiting dwelling.

Victorian Farmers Federation v Commissioner of State Revenue (Review and Regulation) [2017] VCAT 19
Taxation – Payroll Tax – Charitable exemption – Whether applicant's main purpose was promotion of agriculture generally or purpose of benefiting those engaged in the business of agriculture – Characterisation of applicant – Non-charitable characterisation – Considerations in relation to characterisation of charitable institution – s.48 Payroll Tax Act 2007.

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).

Kamasaee v Commonwealth of Australia & Ors (No 7) (Stage 3 foreign relations documents ruling) [2016] VSC 770
EVIDENCE – Discovery – Public interest immunity claimed over production of documents characterised as foreign relations documents – Evidence Act 2008 (Vic) s.130.

Couttie v Bayside Council & Ors [2016] VSC 772
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 in Neighbourhood Residential Zone for three dwellings – Bayside Planning Scheme – Whether development exempt from permit requirement under Design and Development Overlay cl.43.02 – Purpose of Neighbourhood Residential Zone cl.32.09 – Application of transitional provision cl.32.09-3 – Whether the Tribunal failed to take relevant considerations into account – Statutory construction principles – Leave to appeal granted – Appeal allowed – Proceeding remitted to the Tribunal for determination according to law.

Commissioner of State Revenue v Antonino Arrigo [2016] VSCA 339
TAXATION – Duty – Group investors purchased property for redevelopment and subdivision – Property held on unit trust – Plan of subdivision registered, each subdivided lot subject of new certificate of title – Trustee transferred interest in one lot to unitholder – Exemption for duty in respect of transfer of property subject to 'fixed trust' – Whether duty payable on transfer to unitholder – Whether trust deed created initial unit trust existing before registration of plan of subdivision and subsequent 'fixed trusts' in favour of respective unitholders arising upon registration of plan of subdivision – Duties Act 2000 s.36 – Appeal allowed. JUDICIAL REVIEW – Appeal – Questions of law – Whether construction of statute and trust deed are questions of law – Whether application of Duties Act 2000 to facts is question of law – Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, applied.

Lo v Russell [2016] VSCA 323
REAL PROPERTY – Applicants contracted to purchase land owned by respondent – Applicants purported to exercise cooling-off right by sending notice of termination to respondent's estate agent – Whether notice of termination effective – Whether 'agent' in Sale of Land Act 1962 s.31 includes estate agent.
REAL PROPERTY – Contract of sale of land substantially conforming to standard form contract of sale of real estate contained in Estate Agents (Contracts) Regulations 2008 sch – Cooling-off right under Sale of Land Act 1962 s.31 – Whether contract permitted service of notice of termination on respondent's estate agent – Appeal allowed.
CONTRACT – Interpretation of terms giving effect to statutory requirement – Whether contract may go further than statute requires – Digby v General Accident Fire and Life Assurance Corporation Ltd [1943] AC 121, 141; Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80, 89–90, applied.

Bisognin v Hera Project Pty Ltd [2016] VSCA 322
CONTRACTS – Contract for sale of land – Applicants received unsolicited approach from developer seeking to purchase a portion of their land – Special conditions included obligation that the purchaser at its own cost and expense prepare a plan of subdivision and use its best endeavours and do all things reasonably required to expedite and procure registration of plan – Further special condition added stating that if plan of subdivision not registered by 25 August 2015 either party may terminate contract – Pre-requisite for approval of plan was entry into agreements with service suppliers – Agreements included financial obligations – Dispute as to which party obliged to pay – Effect of special conditions to shift risk of registration and associated financial obligations from vendor to the purchaser – Sale of Land Act 1962 – Subdivision Act 1988 Part 2, Part 4 – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – Royal Botanical Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45.
PRACTICE AND PROCEDURE – Application to set aside Judicial Registrar's orders extending time to file application for leave to appeal – Court will not extend time if appeal so devoid of merit it would be futile to do so – Court will consider length of delay, reasons for delay and extent of any prejudice suffered by respondent if extension granted – Applicants had adequately explained reasons for delay – Appeal had substantive merits – Failure to extend time would lead to unjust outcome – Application dismissed.

Cases – Queensland

Young v Salmon [2016] QCAT 508
TREE DISPUTE – VIEW – whether trees on the tree-keeper's property obscures a view from the neighbours' property – whether view existed when the property was purchased by the neighbour – whether severe obstruction of the view – where neighbour wants trees removed – where palm trees overhang neighbours property-where palm trees fruit and attract flying foxes and drop fruit in the neighbours property.

Cases to 09 January 2017

JLF Corporation Pty Ltd v Matos [2016] QCA 355
CONVEYANCING – OPTIONS – where the respondent purchased property from the appellant – where the respondent and the appellant entered into a Put Option Agreement whereby the appellant agreed to purchase back the property if the respondent sent a contract contained in a schedule prior to a certain date – where the respondent sought to exercise the put option – where the respondent used the tenth edition of the REIQ/Queensland Law Society standard form contract in lieu of the eighth edition of the contract attached to the Put Option Agreement – where the primary judge held that the respondent validly exercised the put option contained in a written Put Option Agreement between the respondent and the appellant dated February 2012 – where the appellant argued that the exercise of the put option was invalidated by the delivery of the tenth edition of the standard form contract rather than the edition contained within the Put Option Agreement – where the respondent submitted that the primary judge's conclusions were correct – whether upon the proper construction of the Put Option Agreement, it required, for the valid exercise of the put option, that the respondent deliver a contract in the form of the eighth edition of the REIQ/Queensland Law Society standard form.

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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