Australia: Whats news in property & real estate? – 27 June 2017

In the media – National

Affordability increases, first home buyers out in the cold
Housing affordability improved across all states and territories in the first quarter of 2017, however, the number of both first home buyers and loans decreased, according to the Real Estate Institute of Australia (REIA) (09 June 2017). More...

Housing has become 'largest risk' to Australia: OECD
Australian economic growth is projected to reach almost 3 per cent in 2018, but the possibility of plummeting house prices presents the country's "largest domestic risk", according to the Organisation for Economic Co-operation and Development's (OECD) June Economic Forecast Summary for Australia report (09 June 2017). More...

Government delivers for native title stakeholders
The Senate has today passed the Native Title Amendment Bill (Indigenous Land Use Agreement) Bill, restoring certainty to the native title system (14 June 2017). More...

Finkel Review: A vital next step in the national energy debate
The Chief Scientist, Alan Finkel has delivered the first comprehensive review into Australia's energy market says the Property Council of Australia. "This report isn't light reading but it is compulsory reading – and it will take some time for industry to digest the full implications of the report", said Ken Morrison, Chief Executive of the Property Council of Australia (09 June 2017). More...

The future of Australia's cities
The Committee on Infrastructure, Transport and Cities has begun a new inquiry into the Australian Government's role in the development of cities. It will examine city planning and sustainable urban development, focusing on how to transition existing capital cities, and how to develop new and existing regional centres (07 June 2017). More...

In the media – Victoria

Melbourne's $1-billion 'mini city' to be largest mixed-use development outside CBD
The Melbourne suburb of Clayton has been announced as the recipient of the largest mixed-use development the city has ever seen outside of the CBD (15 June 2017). More...

New waste to Energy Water Plant
The Andrews Labor Government has launched a cutting edge recycling facility in Melbourne's north that will reduce landfill, cut greenhouse emissions and produce enough renewable energy to pay for itself (15 June 2017). More...

City of Melbourne: Statement on cladding investigation
Since February 2016, the Victorian Building Authority (VBA) has reviewed a total of 170 buildings. The VBA referred 83 buildings to the City Of Melbourne's Municipal Building Surveyor (MBS) in February 2016 for further investigation, which we carried out in conjunction with the Metropolitan Fire Brigade (MFB) (15 June 2017). More...

Smart solutions to Melbourne's transport challenge
Solutions have been submitted as part of the Resilient Melbourne Citymart Challenge, which invites problem solvers and creative thinkers from across the globe to find ways to lessen transport congestion in Melbourne and limit the social isolation it causes. City of Melbourne Environment Portfolio Chair Councillor Cathy Oke urged innovators to submit their ideas on how to make travelling across Melbourne more enjoyable and environmentally friendly (07 June 2017). More...

Giving Geelong the council it wants and deserves
Geelong will have the council structure it wants with the passage of City of Greater Geelong Amendment Bill 2017. In an Australian first, the Geelong Citizen's Jury process put local residents at the forefront of the decision-making process, letting them determine how their new council should be designed (09 June 2017). More...

In the media – New South Wales

Planning approval declared invalid for $210-million Walsh Bay Redevelopment
A proposed $210-million redevelopment for the Sydney suburb of Walsh Bay has suffered a serious setback, with its planning approval being declared invalid by the NSW Court of Appeal. The project has been the subject of a two-year legal battle, begun when local restaurant owner Brigid Kennedy challenged the government-funded project on the basis that it had not been approved lawfully (16 June 2017). More...

EOI for property management services at key Sydney Harbour precincts
Property NSW today called for Expressions of Interest from the private sector to provide integrated property management services at NSW Government-owned property holdings in key Sydney Harbour precincts including The Rocks and Darling Harbour (13 June 2017). More...

Corridor protection crucial for new roads
The announcement by the NSW Government today that additional funding has been set aside for planning the F6, M12 and M9 Outer Sydney Orbital as a part of a $1 billion commitment to roads in the 2017/18 budget is good news for Western Sydney according to the Property Council of Australia (13 June 2017). More...

"We're not in the 1950s anymore": NSW greenfield housing plan 'not sustainable,' Institute says
The New South Wales government has unveiled a plan to increase housing supply by making it easier to build in new development areas. Australian Institute of Architects NSW chapter president Andrew Nimmo said that while some aspects of both the government's and the opposition's plans appeared to be positive, he had reservations about the emphasis on greenfield developments (08 June 2017). More...

City of Sydney reveals ambitious overhaul of WestConnex
The City of Sydney is calling on the NSW state government to rethink its planning for the contentious WestConnex project, putting forward an alternative proposal it believes will do more to reduce congestion while costing taxpayers and motorists less (05 June 2017). More...

In the media – Queensland

Brisbane's office space landlords turn to free rent sweeteners to lure in tenants
High-rise buildings that once leased out at $1,200 per square metre are now going for $400 less. The Property Council's latest figures put Brisbane's commercial vacancy rate at 15.3 per cent, down from 16.9 per cent six months ago (17 June 2017). More...

Land sales on the rise in Brisbane
The June 2017 release of the Regional Radar revealed that total land sales are on the rise in Brisbane. The number of land sales over the last 12 months in the Brisbane region increased by 8.2% compared to the previous 12 months (09 June 2017). More...

Published – articles, papers, reports

Energy in buildings: 50 best practice initiatives
Clean Energy Finance Corporation (CEFC): 02 June 2017
Australia's property sector is being urged to use readily available existing technologies to improve the long-term prospects for their properties, in a broader industry push towards net zero carbon buildings.

Titles Registry Alert: Revised Titles Registry Fees - commencing 1 July 2017
The revised Queensland Titles Registry fees will take effect from 1 July 2017. The new fees for the 2017-2018 financial year are prescribed in the Natural Resources and Mines Legislation (Fees) Amendment Regulation 2017 which is available on the Office of the Queensland Parliamentary Counsel website. For your information click here for a summary listing the revised Titles Registry fees that will apply during the 2017-2018 financial year.

In practice and courts

Inquiry into the Australian Government's role in the development of cities
The inquiry will investigate potential for the Commonwealth Government to provide leadership and coordinate longer-term national city planning and will be split into two sub-inquiries: Sustainability transitions in existing cities and Growing new and transitioning regional cities and towns. Submissions are open until 31 July 2017. For more information about how to make a submission, contact the Committee secretariat. Further information on the inquiry, including the full terms of reference, is available on the Committee website.

Foreign investor tax changes — get ready for 1 July 2017
Conveyancers and practitioners need to be ready for the newly introduced Federal and NSW State changes to foreign investor taxes which simultaneously commence on 1 July 2017. The table here presents the key changes to the relevant rates for the purposes of preparing and finalising contract documents and settlement statements for property acquisitions that occur on or after 1 July 2017.

Foreign resident CGT withholding changes
On 1 June 2017, amending legislation was introduced to the Federal Parliament to amend the Taxation Administration Act 1953 (Cth) to modify the foreign resident capital gains withholding payments regime to: increase the withholding rate to 12.5%; and reduce the withholding threshold to $750,000. More...

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.

RICS Property Measurement 2nd Edition
The update to this RICS Property Measurement 2nd Edition incorporates International Property Measurement Standards (IPMS), a globally agreed set of rules on property measurement. Take part in the consultation from 01 May to 31 July 2017.

Announcements, Draft Policies and Plans released 2017

OSRconnect changes from 1 July
From 1 July 2017, additional information will be required when transferring real property in Queensland (either freehold or leasehold). This information will help to establish a national register of foreign ownership of land titles. The register will be administered by the ATO, but the Office of State Revenue (OSR) will collect the information for the ATO through the transfer duty assessing process. This information will be collected in two stages, with the first stage starting on 1 July 2017. The OSR is collaborating with industry partners on the second stage of information requirements, planned for 1 October 2017. Commonwealth reporting requirements

Have your say on Sydney Metro Martin Place Station Precinct
Macquarie Group's concept proposal for an integrated Sydney Metro Martin Place station development is on exhibition for community feedback. Macquarie Group's concept proposal will be on exhibition until 30 June 2017. More...

Exemption from Mutual Recognition Laws for Container Deposit Scheme
The NSW Environment Protection Authority is seeking an exemption from the Commonwealth mutual recognition laws for the NSW Container Deposit Scheme. The NSW CDS laws may be inconsistent with the Commonwealth mutual recognition laws. More...

New BASIX energy targets
On 1 July, new Building Sustainability Index (BASIX) energy targets will come into effect, as part of the government's initiative to reduce energy use and greenhouse gas emissions. For more detailed information, view the frequently asked questions. To find out more about BASIX or apply for a BASIX certificate, visit the BASIX website.

Supreme Court of Victoria Decision
This Supreme Court case - RSSB Australia Pty Ltd v Ross [2017] VSC 314 (8 June 2017) - was about whether a proposed development on land at Carrum Downs was a place of worship under the Frankston Planning Scheme (15 June 2017).

Cases – Victoria

Secretary to the Department of Economic Development, Jobs, Transport and Resources v Avid Property Group Nominees Pty Ltd [2017] VSCA 136
VALUATION AND COMPULSORY ACQUISITION — Appeal — Application for leave to appeal from decision of trial judge on appeal on questions of law from Victorian Civil and Administrative Tribunal — Compensation for compulsory acquisition of land — Partial acquisition — Claim for loss of market value — Whether claim was in substance a claim for injurious affection — Whether 'before and after' assessment of market value made in accordance with s 41(3) of Land Acquisition and Compensation Act 1986 — Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd (2015) 207 LGERA 448 distinguished — Whether events subsequent to date of acquisition relevant to assessment of market value under s 41(3) — Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 considered; Brisbane City Council v Mio Art Pty Ltd [2011] QCA 234; [2012] 2 Qd R 1 approved — Whether cap on solatium in s 44 assessed under s 41(3) or s 41(1)(a) of the Land Acquisition and Compensation Act 1986 — Application for leave to appeal allowed— Appeal dismissed.

Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313
LANDLORD AND TENANT – Construction of market rent review provisions – Nature and purpose of market rent review provisions – Applicable principles of construction – Relationship between different provisions of a lease (including market rent review provisions and percentage rent review provisions) – Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 – Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – Growthpoint Properties Australia Ltd v Australian Pacific Airports (Melbourne) Pty Ltd [2014] VSC 556 – Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486.

RSSB Australia Pty Ltd v Ross [2017] VSC 314
PLANNING & ENVIRONMENT — Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under Victorian Civil and Administrative Tribunal Act 1998 s 148 — Permit application — Whether the proposed development was a 'place of worship' under the Frankston Planning Scheme — Leave to appeal granted – Appeal allowed.

Gurner 57 Johnston Street Developments Pty Ltd v Yarra City Council [2017] VSC 290
PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal – Whether Tribunal's decision not to conduct a further hearing and hear evidence from permit applicant's expert witness constituted a denial of procedural fairness – Appeal allowed – Tribunal's Order set aside and proceeding remitted to the Tribunal differently constituted – Victorian Civil and Administrative Tribunal Act 1998, ss 98, 102, 148.

Uren v Uren [2017] VSC 265
CONTRACT – Partnership – Remuneration of partner – Interest on capital – Actual terms – Implied terms – Limitation of Actions Act 1958 – Taking of accounts – Agreed period for accounting. Prior to its sale, the brothers were the registered proprietors, as tenants in common in equal shares, of farming land at Walkerville, Victoria.

Cases – New South Wales

Szeto v Situ [2017] NSWCA 136
EQUITY – residential property purchased in name of respondent using loan moneys acquired on the application of appellant and respondent siblings – appellant alleged oral agreement that property would be held beneficially in equal shares – entitlement asserted on the basis of an unconscionable denial of interest under Muschinski v Dodds (1986) 160 CLR 583 and/or on the basis of a resulting trust under Calverley v Green (1984) 155 CLR 242 – absence of direct, corroborative evidence – whether primary judge erred in declaring that the appellant had no right, title or interest in the property – whether primary judge erred in preferring the evidence of the respondent and his wife over that of the appellant – whether primary judge erred in giving significance to differences in the interest failing to have regard to documentary evidence that appellant contributed to purchase price – whether primary judge should have accepted that a letter prepared by respondent's solicitor constituted an "admission" of appellant's interest.

Issa v Osman (No.2) [2017] NSWSC 663
CONTRACTS – contract for sale of land containing option to purchase Property – option never exercised by defendants – whether valid termination by plaintiffs possible where second defendant remained in possession of Property – whether possession barrier to plaintiffs being ready, willing and able to complete – no barrier – termination effective. CONTRACTS – whether implied term that purchase subject to purchaser obtaining finance – implied term inconsistent with express terms of contract – implied term not so obvious that it goes without saying – no implied term. PRACTICE AND PROCEDURE – whether second defendant represented by particular solicitor – second defendant denied retainer of solicitor for the conveyance. ESTOPPEL – whether plaintiffs estopped from issuing Notices to Complete to first defendant – first defendant claimed plaintiffs made representation that he would be granted extensions of time –– no such representation – specific contractual provisions contrary to asserted representation – unilateral assumption by first defendant. EQUITY – whether "common intention" or joint endeavour constructive trust arose from renovations made by second defendant to Property – renovations completed with intention that second defendant would purchase Property – Property never purchased – no common intention or joint endeavour – not unconscionable for plaintiffs to retain benefit of renovations – no evidence to determine value of renovations – no constructive trust.

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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Katie Miller
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