Australia: Property & Real Estate News – 17 May 2017

In the media – National

A record high for renewables investment in Australia
A report released today by the Clean Energy Regulator (CER) detailing Australia's progress towards its 2020 renewable energy target reveals record high investment in renewables in 2016. Large-scale renewable energy investment was five times greater than that of 2015 (03 May 2017). More...

Seven hundred Green Star – Performance ratings and counting
The Green Building Council of Australia (GBCA) has surpassed 700 certifications and registrations under the Green Star – Performance rating tool, as investors demand assurance that their assets are well-managed (03 May 2017). More...

Changes to Commercial Building Disclosure and Best Practice Leasing Standard
The Property Council facilitated an exclusive briefing on the incoming changes to the Commercial Building Disclosure scheme and how to incorporate best practice leasing clauses for sustainable outcomes. Presentations included an insight into 'green leasing' and the work that is occurring in this space by the Better Building Partnership (BBP) (27 May 2017). More...

CSIRO report shows cheap renewables solution to gas crisis
Renewable technology is the cleanest, cheapest and fastest solution to Australia's energy price crisis, according to the latest CSIRO report released today. The 'Electricity Transformation Roadmap' finds that Australia can generate electricity with zero carbon emissions by 2050 by embracing more large-scale renewable technologies such as wind, solar and storage (28 April 2017). More...

Carbon price vital for emissions-free future, roadmap shows
Australia could generate electricity with no carbon emissions by 2050, but a carbon price will be needed to achieve that, according to the Electricity Network Transformation Roadmap released today (28 April 2017). More...

Why 3D modelling is the way forward for better planning outcomes
Giving the community tools to better visualise development proposals through 3D modelling of our cities is essential, according to Planning Institute of Australia Queensland (27 April 2017). More...

Property tax revenue continues to climb
Revenue from property taxes has boosted state and local government bank accounts, with the latest Australian Bureau of Statistics data showing governments nationally collected $49.567 billion or 51.9 per cent of their total taxation revenue from property. Stamp duty on conveyances accounted for the largest overall proportion of property tax revenue (05 May 2017). More...

Performance Framework for Australia's major cities
The Federal Government is building a National Cities Performance Framework to measure improvements in Australia's largest cities. The Performance Framework will link to the Australian Government's National Map, using the powerful open data tool to provide new insights into Australia's economic geography (26 April 2017). More...

Further information on the National Cities
Performance Framework, Cities Reference Group and Smart Cities Plan is available at the Smart Cities website. More...

Property Council releases its 'Fixing Housing Affordability Plan'
A proven scheme to help first home buyers bridge the deposit gap and a suite of measures to address using supply are at the centre of the Property Council's plan "Fixing Housing Affordability". The plan details ten key areas of attack and the essential next steps needed to tackle housing affordability (26 April 2017). More...

Demand for property falls Australia-wide
The REA Group Property Demand Index dropped by 4.3 per cent nationally in April, as APRA's cooling measures and major banks' tightening of lending rules start to kick in (04 May 2017). More...

In the media – Victoria

2017-18 draft Budget: growth, investment and opportunity
Record investment in infrastructure and services underpins the City of Melbourne's draft 2017-18 Annual Plan and Budget, led by a $29 million investment in the Queen Victoria Market renewal (04 May 2017). More...

Simplifying House Prices for Buyers
New underquoting laws come into effect on 1 May that will make house sale prices clearer and more transparent for would-be buyers. The new laws include requirements for how estate agents estimate and advertise selling prices, making sure prospective buyers are given clear information about comparable and recent property sales in the same area (29 April 2017). More...

Gurner calls on Supreme Court to address VCAT's Planning Proposal Rejection
Property development company Gurner have lodged papers with the Supreme Court after a recent VCAT decision denied a planning permit for the redevelopment of Johnston Street's The Spanish Club. VCAT has issued its rejection of the permit on the grounds that in its current location, the flue was in an unacceptable position for the proposed development, and failed to meet EPA guidelines and is also a non-conforming use within the current mixed use zoning (26 April 2017). More...

In the media – New South Wales

More jobs and homes at Sydney Olympic Park
Hundreds of jobs and homes will be part of the growing Sydney Olympic Park following approval for new residential and business development (05 May 2017). More...

Construction begins on Circular Quay terminus
The new terminus will connect light rail with trains, buses and ferries at Circular Quay (04 May 2017). More...

Federal Government has a great opportunity to make Western Sydney Airport the game changer for Sydney
The announcement by the federal government that they will be delivering the proposed Western Sydney Airport opens the opportunity for this to be the game changer for Sydney says the Urban Taskforce (02 May 2017). More...

Second international airport for NSW
Construction has started on the upgrade of Newcastle Airport, which will allow direct international flights for the first time (01 May 2017). More...

Compliance blitz to target Parramatta River building sites
The NSW Environment Protection Authority (EPA), Department of Planning and Environment, and local councils will join forces for a soil and erosion control blitz at construction sites around Parramatta River throughout May (01 May 2017). More...

81 hectares secured for a greener Western Sydney
The NSW Government has purchased more than 81 hectares of privately owned land in Western Sydney Parklands, securing its future as open space (28 April 2017). More...

Predicting the future through megatrends
Megatrends are the largest influences of change worldwide. They are the major changes in environmental, social and economic conditions which change the ways we live. The Department of Planning and Environment considers the implications of some megatrends when developing regional plans with the Hunter Regional Plan outlined here (28 April 2017). More...

NSW government delays Airbnb decision
After three public hearings, 212 submissions and a parliamentary report the NSW government has announced it is not yet ready to make a decision about how to regulate short-term holiday letting through online booking services like Airbnb and Stayz (20 April 2017). More... (Govt statement) More...

In the media – Queensland

Boral appeal over $2b Gold Coast quarry dismissed
The company behind a proposed $2 billion quarry on the Gold Coast is considering its options after a Queensland court backed Gold Coast City Council's decision to reject the quarry (04 May 2017). More...

Published – articles, papers, reports

Building energy code toolkit
Meredydd Evans, L. Jin, Mark Halverson, Qing Tan, Sha Yu; Pacific Northwest National Laboratory: 28 April 2017
This toolkit is designed as a first step in helping countries, cities and experts in developing, adopting and implementing their codes. In its present form, this toolkit is set out as a useful reference, but also as a means of assessing the potential of such information to help governments and other stakeholders. More...

In practice and courts

Commonwealth

Changes to Commercial Building Disclosure and Best Practice Leasing Standard
From 1 July 2017, the mandatory disclosure threshold on commercial office buildings will be lowered from 2,000 square metres to 1,000 square metres. More information on the CBD Program can be found here, and information on how building owners can improve the energy efficiency of their building in preparation for a Building Energy Efficiency Certificate can be found here.

Making it easier to access hardcopy topographic maps online
Due to customer demand, from June 2017, the Department of Environment Land and Water (DELWP), is reinstating online distribution of Vicmap Topographic Hardcopy Mapping (29 April 2017). More...

Cases – Victoria

Portland Historic Building Restoration Committee Inc. v Glenelg SC (Red Dot) [2017] VCAT 519
NATURE OF CASE Interpretation of VicSmart provisions and application of the principles of Wednesbury unreasonableness.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE LAW – issue of interpretation or application. Application of the principles of Wednesbury unreasonableness – declaration under section 149B of the Planning and Environment Act 1987 that a decision in a VicSmart application to demolish a bluestone wall was unlawful because it was made beyond power.
PLANNING SCHEME – interpretation or consideration of VPP provision - Consideration and application of the VicSmart provisions – interpretation of the meaning of fence in the Heritage Overlay and the VicSmart provisions of the planning scheme.
CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable. Need to amend the Heritage Overlay and the VicSmart provisions to exclude from these provisions any items specified in the schedule to the Heritage Overlay, not just identified in the schedule to the Heritage Overlay.

Cases – New South Wales

Towers v Stolyar [2017] NSWSC 526
REAL PROPERTY – easements – validity – easement confers rights of parking and garaging – easement confers rights to keep structure erected and replace structure – whether easement capable of being the subject matter of a grant – whether easement deprives the servient owner of proprietorship and possession – easement held to be valid – declaratory relief granted.

Capolingua v Da Silva (No 2) [2017] NSWSC 527
CONVEYANCING – sales by court order or direction – appointment of trustees for sale – contractual limitations upon seeking appointment of trustees – where court previously adjourned proceedings due to non-compliance with contractual pre-conditions for sale – whether pre-conditions now satisfied – trustees for sale appointed.

Huang v Zheng; Zheng v Huang [2017] NSWSC 471
EQUITY – trusts and trustees – where plaintiff provided purchase moneys for property purchased in name of father which was transferred to defendant upon father's death and according to father's will – whether presumption of resulting trust rebutted. REAL PROPERTY – Torrens title – whether defendant's title is indefeasible – whether dishonest repudiation of a prior interest amounts to fraud for the purposes of s 42 of Real Property Act – whether plaintiff's reliance on representations made by defendant that defendant would recognise plaintiff as the true owner gives rise to equitable estoppel – whether plaintiff's in personam rights defeat defendant's title. EQUITY – general principles – equitable doctrines – whether illegal purpose precludes relief – where plaintiff purchased property in father's name in order to obtain grants and stamp duty exemption – whether scope and purpose of the First Home Owner Grant Act 2000 (NSW) requires that plaintiff be denied interest in the property. CONTRACT – whether money transfers were a gift or a loan.

Mine Subsidence Board v Frank and Louisa Kozak [2017] NSWSC 421
CIVIL – claim for possession – defendants' home damaged by mining activity – plaintiff provides accommodation to defendants with legitimate claim under statutory scheme for compensation – decision to rebuild – whether plaintiff motivated by financial gain – defendants dislocated and disappointed – whether defendants acted to their detriment – whether defendants assumed legal or equitable right to remain in possession of property – whether act of plaintiff caused such an assumption – whether plaintiff acted in good faith – corruption – whether plaintiff acted fraudulently or corruptly – relevance of ICAC findings – alleged defects in property – lease – bare licence – equitable estoppel – "licence coupled with equity" – where no rent paid – where no certain term of occupancy – where plaintiff paid for most outgoings – "idiosyncratic notions of justice and fairness" – no equitable or other legal interest established.

Cases – Queensland

Moreton Bay Regional Council v Caseldan Pty Ltd [2017] QCA 072
REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – PROCEEDINGS FOR COMPENSATION – QUEENSLAND – APPEAL TO SUPREME COURT – where the applicant compulsorily acquired land from the respondent "for recreation ground purposes" – where the Land Court ordered the value of the resumed land be assessed for compensation purposes at $1.8 million – where the Land Appeal Court allowed the respondent's appeal and determined the value of the resumed land to be $4.1 million – where the applicant seeks reinstatement of the assessment ordered by the Land Court of $1.8 million – whether the Land Appeal Court erred in law in its determination – whether the application for leave to appeal should be granted.
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – ROADS – where the resumed land was surrounded by land owned by the applicant within a Sports and Recreation Zone – where the applicant made a material change of use application to itself in relation to this land for development purposes – where the application included the construction of an internal road which would provide access to the resumed land – where the Land Appeal Court found that the Land Court member erred in holding the concurrence agency could not impose an access condition on the applicant's development application under the Sustainable Planning Act 2009 ("SPA") – where the Land Appeal Court adopted by analogy the decision in Intrapac Parkridge Pty Ltd v Logan City Council ("Intrapac") – where the applicant contends that the decision in Intrapac would suggest to a prudent purchaser that the prospect of an access condition being imposed on the applicant was "highly likely" – where the applicant contends that the facts in Intrapac are materially different to the current matter – where the applicant contends that the Land Appeal Court thereby erred in reaching a view of what a hypothetical purchaser would think – whether the Land Appeal Court erred in adopting Intrapac by analogy – whether the alleged error amounts to an error of law.
ENVIRONMENT AND PLANNING – ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – CONSIDERATION OF PLANNING SCHEMES – where the resumed land was surrounded by land owned by the applicant within a Sports and Recreation Zone – where the applicant made a material change of use application to itself in relation to this land for development purposes – where the proposed use conflicted with the applicable planning scheme – where s 326 SPA requires an assessment manager's decision not to conflict with the applicable planning scheme unless there are sufficient grounds to justify departure – where the applicant contends the Land Appeal Court had regard to the zoning of land in contemplating the application's prospect of success – where the definition of "grounds" in Schedule 3 SPA does not include the zoning of land – whether the Land Appeal Court incorrectly interpreted the SPA provisions as allowing an assessment manager to take zoning into account – whether the Land Appeal Court erred in envisaging that a hypothetical purchaser would have regard to zoning as an obstacle to obtaining approval – whether the alleged errors amounted to errors of law.
REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – OFFERS – where evidence of nine unaccepted offers for the resumed land was adduced before the Land Court member – where the Land Court member placed no weight on the offers because five were conditional, three were not regarded as genuine ("the Comiskey offers") and one was aged ("the Flaskas offer") – where the Land Appeal Court disagreed with the member's conclusion as to the genuineness of the Comiskey offers – where the Land Appeal Court did not adopt the evidence of either of the two valuers' respective valuations – where the Land Appeal Court's final valuation reflected the Comiskey offers, the Flaskas offer and one of the conditional offers – whether the Land Appeal Court adopted a valuation methodology based on the unaccepted offers – whether the Land Appeal Court erred in having regard to verbal offers – whether the Land Appeal Court erred in having regard to conditional offers – whether the Land Appeal Court erred in incorrectly characterising a conditional offer as an unconditional offer – whether the incorrect characterisation vitiated the valuation of the Land Appeal Court.

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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