Australia: Planning & Environment - Whats News? - 12 April 2017

Last Updated: 16 April 2017
Article by Joseph Monaghan, Breellen Warry, Peter Holt and Gerard Timbs

Most Read Contributor in Australia, August 2017

In the media – National

CBA takes a dramatic step into climate bonds with a $650m raising
The Commonwealth Bank of Australia has made a dramatic entrance to the certified climate bond market, raising $650 million to fund 12 domestic projects including energy efficient buildings, low-carbon transport. More...

Lyon Solar to build world's biggest solar and battery storage plant with or without tender
One of the companies that said it was better placed than Tesla to deliver a 100MW battery storage system for South Australia has announced it is going ahead. More...

CEFC support for new climate bond signals growing investor appetite for renewables
The CEFC's support for a new climate bond has attracted strong investor participation, signalling increasing investor appetite for clean energy assets (28 March 2017). More...

In the media – Victoria

Plan Melbourne: density and heritage come into conflict
Critics are concerned Plan Melbourne's renewed push for development in activity centres combined with reformed residential zones will damage the city's distinctive heritage (31 March 2017). More...

Darebin Council wants elevated railway in Preston to fix traffic woes
A Proposal for a 2.5km stretch of sky rail with new elevated stations at Bell and Preston has been welcomed by residents fed up with traffic. The Bell and High St crossings are still in the community consultation phase, while work has begun to lower the Grange Rd crossing. The study claims lowered rail at Preston would be unfeasible mainly due to its extreme cost and logistic hurdles, with both a tunnel and a "cut and cover" trench option ruled out (30 March 2017). More...

Vic Planning Minister Richard Wynne blocks $350m Tim Gurner project
Victorian Planning Minister Richard Wynne has dramatically intervened, just days before a planning tribunal hearing, to block a $350 million apartment development in Fitzroy North proposed by BRW Rich Lister Tim Gurner (28 March 2017). More...

Desal Flows to Secure Melbourne's Water Supply
The first water from the Wonthaggi Desalination Plant has begun to flow into the Cardinia Reservoir helping to deliver water security for Victoria. The delivery marks a significant milestone in guaranteeing a secure and resilient water grid (19 March 2017). More...

In the media – New South Wales

BASIX energy targets to change
The NSW Government has announced that the BASIX energy targets will be increased across the State in July 2017 (31 March 2017). More...

World's biggest' incinerator for Sydney opposed on health, air quality grounds
There are calls to ditch plans for the world's biggest incinerator, to be built in western Sydney, following opposition from the Environment Protection Authority because of potential impacts on air quality and human health (30 March 2017). More...

New planning laws to deliver recycling equipment for bottles and cans
Proposed changes to planning law will allow recycling equipment for bottles and cans to be approved quicker as part of the NSW Government's container deposit scheme. The proposed planning policy amendment for the NSW Container Deposit Scheme that will start on 1 December 2017 (29 March 2017). More...

City of Sydney to accelerate environmental action plan
The City of Sydney has approved its Environmental Action Plan, which will see it push for net zero emissions by 2050 and get 50 per cent renewables for the entire local government area by 2030. The draft plan was revealed in June last year and, following a period of consultation, has been amended and finalised, with Lord Mayor Clover Moore pushing for speedy implementation (28 March 2017). More...

Roadside Reserve Grants Open to Councils
Funding is now open to NSW councils seeking to streamline and improve the management of roadside reserves in their areas, under a pilot program run by Local Government NSW (LGNSW). A total of $1.46 million is available to councils via contestable grants as part of a three-year program funded by the NSW Environmental Trust (24 March 2017). More...

In the media – Queensland

Solar farm powers innovative Churchill Abattoir
Churchill Abattoir has officially had its power turned on its new 1 megawatt solar farm by Abattoir managing director Barry Moule and Ipswich Mayor Paul Pisasale. Cr Pisasale, also launching the city's sustainability strategy yesterday, said the initiative was "fantastic" (31 March 2017). More...

Mining company given approval to clear critical koala habitat for CSG wells
A gas company is given federal approval to clear 54 hectares of koala habitat for new coal seam gas wells on Queensland's Western Downs (27 March 2017). More...

Premier wants northern Australian development agenda revived
Queensland Premier Annastacia Palaszczuk wants to revive the development of northern Australia, flagging under Turnbull Government (23 March 2017). More...

Huge fine for illegal vegetation clearing
A Queensland landowner has been required to pay nearly $1 million for illegally clearing native remnant vegetation at a property near Eidsvold in the North Burnett region (23 March 2017). More...

In practice and courts – Victoria

VC134 changes the Victoria Planning Provisions and all planning schemes by introducing the new Metropolitan Planning Strategy and making corresponding updates to the State Planning Policy Framework. It also restructures Clause 11, includes policy-neutral updates and administrative changes and introduces new and updated incorporated and reference documents (30 March 2017).

In practice and courts – New South Wales

NSW Development Assessment Best Practice Guide
The guide released on 21 March 2017, outlines processes and procedures that are being used in some councils already to improve development application (DA) approval times. It focuses on high-level customer service before development application lodgement to create a more efficient assessment process. More...

NSW Land and Environment Court
28 March 2017: The Chief Judge has today issued a new practice note for Class 1 Residential Development Appeals, and repealed the practice note of the same name made on 7 February 2011. More...
22 March 2017: The Chief Judge has today issued new practice notes for Class 1 Development Appeals, and Class 1, 2 and 3 Miscellaneous Appeals, and repealed the two practice notes by the same name made on 30 April 2007.
22 March 2017: The Conciliation Conference Policy has also been updated.

Exempt and Complying Development: equipment for bottles and cans
The proposed amendments to the policy for will be on public exhibition until 26 April 2017. People are encouraged to give their feedback in a submission. To make a submission on the proposed amendment visit More information about the NSW Container Deposit Scheme can be found on the Environment Protection Authority's website.

In practice and courts – Queensland

Spit community consultation
Local feedback has prompted the State Government to expand the community consultation area on The Spit's Parklands rejuvenation to include two small areas of parkland. For more information about community consultation on The Spit parkland and the ASF proposal visit the Department of State Development website (24 March 2017).

Cases – Victoria

Huber v Howitt (Owners Corporations) [2017] VCAT 445
The operation of the Owners Corporation Act 2006 concerning the application of the benefit principle for a lot owner seeking recovery of previously incurred repair costs to common property. The interpretation of s28 and s49 of the Owners Corporation Act 2006 considered. Whether the owners corporation's retrospective application of the benefit of provision of services under s12 of the Owners Corporation Act 2006 to some, but not all lot owners, is unfairly prejudicial to or unfairly discriminatory against a lot owner. S167 of the Owners Corporation Act 2006, matters which the Tribunal must consider, applied.

Talib v Hobsons Bay CC [2017] VCAT 415
General Residential Zone – Schedule 2; Hobsons Bay South Neighbourhood Character Precinct 7, Altona; neighbourhood character; 'edge of town' feel; solar panels and overshadowing.

Modo Project Builders Pty Ltd v Frankston CC [2017] VCAT 390
Pursuant to Section 97P Planning and Environment Act 1987 the Tribunal directs that the Responsible Authority issue a certificate under Section 97N of the Act stating that the use and development of the land for shared accommodation as described in the application made by Hansen Planning Services dated 5 September 2016 in accordance with the plans identified as Sheets 1 – 8 (inclusive) dated 14 November 2016 prepared by Modo Project Builders does not require a planning permit for use or development.

Cases – Queensland

Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 018
PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF THE BUILDING AND DEVELOPMENT COMMITTEE – whether the appeal was commenced in time – whether the Building and Development Committee exceeded its jurisdiction in deciding an appeal made out of time – whether the Building and Development Committee made an error of law or exceeded its jurisdiction in deciding the Compliance Permit was invalid - whether the Building and Development Committee made an error of law or exceeded its jurisdiction in failing to properly decide the appeal lodged in relation to the conditions imposed on the compliance permit.

Swan v Santos GLNG Pty Ltd & Ors (No 2) [2017] QPEC 017
COSTS - PLANNING – ENVIRONMENT: where applicant wholly unsuccessful in application for orders pursuant to s 505 of the Environmental Protection Act 1994; whether applicant had any reasonable prospects of successfully obtaining such orders; where applicant had failed to properly particularise or relate evidence to alleged breaches of Environmental Authorities, whether applicant had obstructed or delayed or acted unreasonably in the proceeding.

Spry v Brisbane City Council & Anor [2017] QPEC 016
PLANNING AND ENVIRONMENT – submitter appeal – where Council approved an application to facilitate a material change of use for three multiple dwellings – where approval was subject to conditions concerning the stormwater run-off – where conditions required the drainage system to convey the collected run-off to a lawful point of discharge – where the appellant alleged that the decision failed to impose a condition that no connection be made to the foul water/private pipeline – whether the Court ought impose a condition preventing connection to a foul water/private pipeline.

King of Gifts (Qld) Pty Ltd & Anor v Redland City Council & Anor [2017] QPEC 015
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – Whether changes to a development application are a minor change – Whether changes to a development application result in a substantially different development.

Wiseman & Matthews v RPD Qld Pty Ltd [2017] QCAT 081
ENVIRONMENT AND PLANNING –TREES VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where alleged severe obstruction of a view – whether applicant able to establish the view that existed at time they took possession of their land – whether views are severely obstructed at time of hearing – whether balancing of neighbour's and tree-keepers interests requires that an order be made.

Campbell v RPD Qld Pty Ltd [2017] QCAT 082
ENVIRONMENT AND PLANNING – TREES VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where neighbour's and tree-keeper's lots separated by another lot – whether land separated by a road – whether land adjoins – where claim of obstruction of views – where view from extension to building – whether constitutes interference by obstruction of a view that existed when the neighbour took possession of the land.

Finch v Grahle [2017] QCAT 080
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – Where land affected by a tree situated on adjoining land – Where removal of tree branch appropriate to prevent serious injury to a person or serious damage to property or land – Where agreement reached between parties as to the works to be undertaken – Where it is necessary for the Tribunal to make an order relating to the cost of the work required.

The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2) [2017] QPEC 014
ENVIRONMENT & PLANNING – APPEAL – HERITAGE CRITERIA - LISTING OF PLACE AS STATE HERITAGE PLACE - where the appellant is the owner of a convent – where the appellant lodged a development application to demolish the convent - where the convent was then listed on the Queensland Heritage Register as a State Heritage Place – whether the convent satisfied one or more of the cultural heritage significance criteria in section 35(1)(a), (d) and (h) of the Queensland Heritage Act 1992 – whether the convent demonstrates an evolutional pattern of Queensland history and if so, whether it is important in that context - whether the convent has a special association with the life and work of the Sisters of Mercy - whether the convent is important in demonstrating the principle characteristics of a convent - where the appellant seeks an order that the appeal be allowed and the decision of the Queensland Heritage Council be set aside - that the convent be removed from the Register.

Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2017] QPEC 013
PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal for a development permit for a Material Change of Use for a warehouse with an ancillary office – site located in residential area.
CONFLICT – conflict with planning scheme – whether proposed development conflicts with City Plan 2014 and the low density residential zone code.
AMENITY – whether the proposed development will result in unacceptable amenity impacts.
GROUNDS – whether there are sufficient grounds to justify an approval of the proposed development despite conflicts.

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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Gerard Timbs
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