Australia: Planning & Environment News – 5 July 2017

Last Updated: 7 July 2017
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, September 2018

In the media – National

The Australia Institute honoured to carry Climate Institute legacy forward
The Climate Institute has selected The Australia Institute to take on remaining funds and intellectual property from the disbanding organisation. "The Australia Institute is now in a position to set up a dedicated Climate and Energy Program (24 June 2017). More...

$10.9 million boost to improve reef water quality
The Turnbull Government is investing an additional $10.9 million into three projects to improve water quality in the Great Barrier Reef catchment area. More information on the Reef Trust Phase IV Gully and Stream Bank Erosion Control Program can found on the Department's website (18 June 2017). More...

A further $6 million for 20 Million Trees available for community projects
The 20 Million Trees Grant Guidelines: Round Three are also now available and applications close on 15 August 2017. The 20 Million Trees initiative is an important part of the Turnbull Government's National Landcare Program. More information is available here. (19 June 2017). More...

Biomass could be one solution to Australia's energy problems: CEFC
As Australia hunts for solutions to its energy problems, the Clean Energy Finance Corporation (CEFC) want to put biomass back on the agenda (22 June 2017). More...

Liveable communities need functional community infrastructure
The Australian Local Government Association (ALGA), the peak body representing more than 530 councils across the country, has renewed its call for a Commonwealth-funded program to bring community infrastructure back up to scratch and promote economic development opportunities (20 June 2017). More...

Local Governments Shown The Road To Sustainable Communities
Local governments around Australia have been given a new roadmap to help deliver healthy, resilient and positive communities. The Green Building Council of Australia (GBCA) revised their sustainability guide The Green Star – Communities Guide for Local Government, which was designed to help councils tackle local challenges, deliver and communicate better outcomes and multiply the value of their investments (20 June 2017). More...

NSW and QLD container deposit schemes should both start in 2018, says waste industry
A group of Australia's largest waste management companies are calling for the NSW container deposit scheme (CDS) to be delayed seven months so it can start on the same day as the Queensland CDS on 1 July 2018. The issues included: awarding tenders; negotiations between local councils and industry about the ownership of deposit containers; achieving clarity around payment for containers and a final decision on which containers are eligible for refunds (20 June 2017). More...

Independent Review of the Water Trigger Legislation - final report
The Independent Review of the Water Trigger Legislation and Post Implementation Review were tabled in Parliament today (19 June 2017). More...

Legislation to phase out HFCs to lower emissions passes Parliament
The Turnbull Government has today successfully passed legislation to phase-down hydrofluorocarbons (HFCs), which comprise up to two per cent of Australia's greenhouse gas emissions. The phase-down of HFC imports under the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Bill 2017 will begin in 2018 and reach an 85 per cent reduction by 2036 (19 June 2017). More...

Linc Energy clean-up cost blows out to $38 million
The bill to clean up a huge swath of land allegedly contaminated by Linc Energy has climbed to more than $38 million. The State Government has also set aside another $21 million for future work as prosecutors prepare to launch their case against the company next month (16 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...

In the media – Victoria

John Wardle Architects receives approval for benevolent office tower
When VCAT granted approval to Northumberland earlier this week, they ruled against the City of Yarra council's prior requirement that John Wardle Architects reduce the height of the proposed office component from 13 to 10 storeys. In support of their decision, VCAT cited other buildings of similar size in the area (23 June 2017). More...

Gurner" Wins Supreme Court Appeal, Offering Renewed Hope For The Survival Of The Spanish Club
GURNER has won its appeal in the Supreme Court to overturn a recent decision by VCAT that denied its proposed redevelopment of Johnston Street's The Spanish Club, Hogar Español, a permit, due to the developer being "denied procedural fairness", according to the judge (20 June 2017). More...

In the media – New South Wales

Mine subsidence districts updated after 20 years
Mine subsidence districts across NSW have been reviewed to better reflect the current mine subsidence landscape after an all-encompassing review by the NSW Government. A number of districts have reduced in size with significant areas being revoked where there are no mine subsidence risks. New areas have been added where mining is planned or development has progressed over old mine workings. Expanding these districts ensures homes are better protected from potential subsidence damage (23 June 2017). More...

Resources Regulator announces prosecution proceedings against two Wollongong coal companies
The NSW Department of Planning and Environment's Resources Regulator has announced the commencement of prosecution proceedings against two coal companies in Wollongong (23 June 2017). More...

EPA update on work to manage odours at WestConnex St Peters
The NSW Environment Protection Authority (EPA) is continuing to take action to manage odours emitted from the WestConnex St Peters Interchange site, recently issuing a Clean Up notice to the contractors and monitoring the installation of a new treatment plant (23 June 2017). More...

New harbour metro crossing underway
Construction of new twin metro rail tunnels deep under Sydney Harbour and the heart of the CBD will soon be underway after a major tunnelling contract was signed by the NSW Government (22 June 2017). More...

$1.8 billion to protect NSW's environment and heritage
This year's budget investment will go towards, protecting threatened species, preserving the state's national park estate, helping households reduce energy use while driving down energy bills and protecting the state's Aboriginal history (20 June 2017). More...

NSW Budgets boosts koala conservation work
Koala conservation projects across the state will receive another $800,000 boost as part of the NSW Government's upcoming budget. Some of the projects to be funded under the 2017-18 Budget will aim to address key threats to koalas in the Port Stephens, Campbelltown and the Mid-Coast areas (19 June 2017). More...

Faster and cheaper approvals for home owners
Changes to the Housing Code will make it easier, cheaper and faster for home owners in NSW to get approval for a new home or renovation (19 June 2017). More...

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...

NSW Budget: $1 billion delivers safe and secure regional water
The Upper Hunter is among the communities that could soon benefit from the NSW Government's historic $1 billion to fund local water infrastructure through the Safe & Secure Water Program. The NSW Government also confirmed $1.5 million for the Scone to Murrurundi Pipeline as part of the Regional Waste Water and Backlog water program (15 June 2017). More...

Healthy future for the heart of NSW
A diverse economy, healthy environment, vibrant communities and quality infrastructure underpin the strong future that lies ahead for the heart of NSW. Minister for Planning and Housing, Anthony Roberts, today launched the Central West and Orana Regional Plan - a blueprint that will guide planning and land use decisions for the 19 local government areas in the region over the next two decades (14 June 2017). More...

Data report prompts rethink on asset management
The new report, Data Analytics in the Property Sector released by Property NSW, highlights a number of case studies on how the property industry is using data to better understand customers, tenants and users in order to deliver improved planning, design, building and maintenance solutions (14 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...

In the media – Queensland

Construction begins on Australia's tallest timber tower
Construction has begun on Impact Investment Group's 25 King development, set to become Australia's tallest cross-laminated timber building and one of the tallest in the world. The 10-storey, 45-metre building at Brisbane's Showgrounds, designed by Bates Smart, will provide 15,000 square metres of net lettable area, including three ground level retail tenancies (22 June 2017). More...

Food waste to energy source at Carole Park company
Innovation resulting from a partnership between an Ipswich water treatment company and a Carole Park food producer will be given a helping hand to upscale with a $400,000 Queensland Government grant (22 June 2017). More...

From cane tops and trash to biofuel
Southern Oil's Gladstone facility is already creating opportunities further afield with the announcement that the Palaszczuk Government will provide $125,000 in Advance Queensland funding to Burdekin Renewable Fuels (22 June 2017). More...

Queensland bio grant could lead to year-round sugar mill production
Queensland's emerging biofutures industry has been given a boost following the announcement that North Queensland-based MP Australia Holdings has received $250,000 in State Government Funding to demonstrate bioethanol production from agave at the pilot scale (22 June 2017). More...

Cape Upstart oil spill charges welcomed
Ports Minister Mark Bailey says legal proceedings against two parties allegedly responsible for the Cape Upstart oil spill nearly two years ago sends a strong message to the shipping industry when navigating Queensland's waters and the Great Barrier Reef (22 June 2017). More...

Company faces massive fine over 15-tonne Great Barrier Reef oil spill
A shipping company is charged and faces a fine of up to $17 million for allegedly spilling about 15 tonnes of oil but experts say it could prove difficult to enforce a fine even if the prosecution is successful (22 June 2017). More...

Biorefinery planned for regional Queensland
A drive to attract biorefinery investors to Queensland is paying off, with the Queensland Government announcing plans today for a biorefinery by US Biotechnology company, Amyris (21 June 2017). More...

Land clearing rates in Queensland on par with Brazil: study
Land clearing in Queensland is the highest it has been in the last 10 years, researchers say, with the issue set to be a major battleground in the state election (19 June 2017). More...

$1.4M from Budget to hold polluters responsible for firefighting foam pollution
The Palaszczuk Government will hold polluters responsible for investigating and managing contamination caused by toxic firefighting foam (16 June 2017). More...

Concerns raised with latest draft Spring Hill Neighbourhood Plan
A key issue UDIA flagged for further consideration by council is their proposed tower site cover limit of 40 percent. The setting of this maximum tower site cover for sites over 1,800 sqm does not clearly articulate a design objective or consider land use economics (15 June 2017). More...

Approval to start work on Cross River Rail
The Board of the Cross River Rail Delivery Authority has approved the demolition of the GoPrint site at Woolloongabba to make way for Queensland's number one infrastructure priority Cross River Rail (14 June 2017). More...

Queensland budget: What you need to know
Queensland Treasurer Curtis Pitt delivers a big-spending budget that focuses on jobs and infrastructure. Key features of the budget under Jobs and unemployment; Infrastructure; Housing; Electricity; Law and order, Pensioners and seniors; Schools; Tax, car registration; Health; Environment, Great Barrier Reef are outlined here (14 June 2017). More...

Tonnes of sediment flushed onto Great Barrier Reef
The 2016 purchase of the former cattle property by EHP drew much criticism from the farming industry when it was discovered flawed sediment runoff data was the basis for its acquisition by the government (13 June 2017). More...

PCA: Encouraging budget dampened by a further slug on foreign investors
The Queensland State Budget released today contained several positive initiatives for the property industry, which includes money to undertake a strategic assessment of environmental values in South East Queensland, and allocated to monitor the implementation of the South East Queensland Regional Plan (SEQRP) (13 June 2017). More...

In practice and courts – Commonwealth

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.

NELA National Conference: Addressing Past Harm, Managing Future Risks, Brisbane 4 August 2017
This year's conference brings together a range of experts to discuss the state of Australia's environment, how various States are addressing past impacts, and innovative mechanisms being explored to avoid future harm. Examining mining rehabilitation, groundwater management, climate risk disclosure, sustainable business practices and much more. 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.

In practice and courts – Victoria

Announcements, Draft Policies and Plans released 2017

Action 67 of the Plan Melbourne Implementation Plan
The Planning for Golf in Victoria discussion paper is the first step towards developing this state-wide plan. The discussion paper contains a range of ideas to support golf into the future based on five key challenges – participation, membership, supply and demand, land use, and governance. Feedback on the discussion paper until 14 August 2017. More...

In practice and courts – New South Wales

Announcements, Draft Policies and Plans released 2017

Changes to ePlanning tools and services
With the release of the Simplified Housing Code, and the expansion of planning services coming soon to the NSW Planning Portal, the Electronic Housing Code will be decommissioned. On 23 June 2017, applicants will no longer be able to investigate assessment options or prepare, submit or lodge applications via the EHC (21 June 2017). 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.

Community Consultations on Exhibition


Proposed changes to planning rules for outdoor advertising and signage to increase road and rail safety – SEPP;
Open 05/05/2017 Close 30/06/2017.

In practice and courts – Queensland

Announcements, Draft Policies and Plans released 2017

The New Planning Act 2016: A Four Part Session Series SPA to Planning Act 2016 - An Overview
From the 3 July 2017, Queensland will operate under new planning legislation, with the new Planning Act 2016 (Planning Act) replacing the current Sustainable Planning Act 2009 (SPA). To assist navigate the new Planning Act, QELA is hosting a series of sessions that address key changes in legislation and some of the implications for practice. More...

Better Mine Rehabilitation for Queensland
The Queensland Government is proposing a new policy for mine rehabilitation outlined in a discussion paper, Better Mine Rehabilitation for Queensland The proposed rehabilitation policy is a key component of an integrated mined land management framework, which also includes six delivery elements read the Better Mine Rehabilitation for Queensland discussion paper.

Infrastructure, Planning and Natural Resources Committee
Land Access Ombudsman Bill 2017
The committee is required to report by 7 August 2017.

Gasfields Commission and Other Legislation Amendment Bill 2017
The committee is required to report by Friday 14 July 2017.

Cases – Victoria

Steller Estates Pty Ltd v Mornington Peninsula SC [2017] VCAT 865
Application pursuant to section 81(2) of the Planning and Environment Act 1987 (Vic) – Review of decision of responsible authority under section 54A to refuse to extend time within which information must be given under section 54; Request made for more time to seek approval of Cultural Heritage Management Plan pursuant to the Aboriginal Heritage Act 2006 (Vic).

Grocon (Northumberland St) Developer Pty Ltd v Yarra CC [2017] VCAT 753
Section 79 Planning and Environment Act 1987; Yarra Planning Scheme; Commercial 2 Zone; Design and Development Overlay; Multi-storey development; Built form; Height; Amenity; Car parking; Traffic.

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.

Cases – New South Wales

Vantage 229 Pty Limited v North Sydney Council [2017] NSWLEC 1316
MODIFICATION: modification of development consent to increase number of apartments and change in mix within the approved building envelope and increase number of car spaces conciliation conference; agreement between the parties; orders.

Council of the City of Ryde v Sally Haddad executor of the estate of the late Jim Haddad [2017] NSWLEC 70
APPEAL – s 56A appeal in relation to Commissioner's decision – existing use rights – business premises prohibited in the zone – whether existing use was for a "medical centre" or "business premises" – conversion – key principles for determination of s 56A appeals – characterisation of use of land – jurisdictional fact – no error on question of law in Commissioner's decision – appeal dismissed –costs.

Qasabian Family Investments Pty Ltd v Roads and Maritime Services; Fishing Station Pty Ltd v Roads and Maritime Services [2017] NSWLEC 73
Qasabian Family Investments Pty Ltd - 2016/151503: COMPULSORY ACQUISITION – valuers reported a range within which the value of the acquired interest could fall – agreement between valuers on an identified outcome within a range – is Caruso presumption in favour of dispossessed owner engaged – whether highest point in range should be adopted despite agreement by valuers – no basis to disturb agreement between valuers. COMPULSORY ACQUISITION – claim for stamp duty for future acquisition of replacement investment property – passive investment – claim rejected.
Fishing Station Pty Ltd - 2016/158775: COMPULSORY ACQUISITION – claim for compensation for acquisition of interest in land – the interest in the land was an uneconomic sublease at below market rent – term of lease (including options to renew) until 2041 – restriction in sublease limiting use of premises – whether land valuation should be replaced by business valuation to reflect impact of restriction – business valuation appropriate to be used – compensation determined on business valuation basis. COMPULSORY ACQUISITION – claim for future costs of relocation of business – whether business is to relocate in the future or has the business actually relocated – business has actually relocated – claim for future costs rejected. COMPULSORY ACQUISITION – costs for actual relocation – basis for costs set out and basis for compensation determined. COMPULSORY ACQUISITION – claim for reimbursement of rent paid to acquiring authority during holding over period – relevant statutory provisions – comity with other decision-makers on this point – claim allowed.

Bureau SRH Pty Ltd v Waverley Council [2017] NSWLEC 1305
DEVELOPMENT APPLICATION: alterations and additions to modify approved, but not yet constructed, development; non-compliance with the floor space ratio and height of buildings development standards; whether the proposal is consistent with the desired future character of the locality.

Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135
ENVIRONMENT AND PLANNING – Environmental Planning and Assessment Act 1979 (NSW) – whether proposal the subject of development application a "staged development application" under s 83B – whether s 79C applied to application – whether consent authority required to consider "construction-related impacts" of development – whether development consent valid.

North Sydney Council v North Sydney Leagues Club Ltd [2017] NSWLEC 69
APPEAL – appeal on question of law against Commissioner's decision– refurbishment of registered club premises; hours of operation and patron numbers – use of outdoor area (part of former bowling green) for dining – three grounds of appeal – incorrect interpretation of provisions of the applicable Local Environment Plan (Ground 1); manifestly unreasonable decision (Ground 2); and denial of procedural fairness (Ground 3). APPEAL – Ground 1 – cl 2.5 of the applicable Local Environment Plan provides special regime for site – whether Commissioner's interpretation of clause correct to exclude applicability of other clauses of the Local Environment Plan – Commissioner's reasoning incorrect – nonetheless, a "fair reading" of the Commissioner's decision discloses that he considered and dealt with the relevant matters, notwithstanding his conclusion that the clause was not applicable – Ground 1 fails. APPEAL – Ground 3 considered prior to Ground 2 – no necessity to consider Ground 2 given Appellant's success on Ground 3. APPEAL – Ground 3 – reasonable expectation that Commissioner would make general findings and permit parties to be heard on conditions appropriate to reflect findings – imposition of condition of development consent without affording Appellant opportunity to be heard on its terms – denial of procedural fairness under the circumstances – Ground 3 made out – appeal upheld APPEAL– parties reached agreed position on what amended condition of development consent should be imposed if Ground 1 failed but Ground 2 and/or 3 succeeded – powers of the Court on appeal – s 56A(2)(b) permits making "such other order in relation to the appeal" as might be dispositive of appeal without remitter to the Commissioner – in light of the parties' agreement to a replacement condition of consent, appropriate to order amendment of conditions of development consent granted by Commissioner in lieu of remitter – consolidated, amended conditions of development consent also ordered.

Cases – Queensland

Highgate Developments Pty Ltd v Sunshine Coast Regional Council [2017] QPEC 037
ENVIRONMENT AND PLANNING – APPLICATION – s 369(1)(d) Sustainable Planning Act 2009 (SPA) – Where the applicant seeks an order be made, in the context of the agreement or consent of the respondent, to allow permissible changes to the development approval, granted by order of this Court on 24 June 2016 – Whether the proposed changes are permissible changes within the meaning of s 367 of the SPA.

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 035
CONDITIONS OF APPROVAL: where a number of conditions relating to an approval for a hard rock quarry at Yandina remain in dispute, whether proposed conditions are relevant and reasonable; whether appellant bound by its position at the merits appeal that the haul route be fully upgraded prior to the commencement of the use; standard of haul route design, particularly that part which is a flood plain and is irregularly inundated, whether Council should be responsible for maintenance of haul route once upgraded, whether there should be some offset against the cost of the upgrade to be borne by the appellant as a result of forward planning by Council for its unsealed road system; whether conditions proposed for aviation safety are relevant and reasonable, whether aeronautical study proposed at merits appeal is still required, whether proposed condition deferring contribution by way of levy to DTMR in respect to the use of that part of the haul route that includes State-Controlled roads is reasonable.

Wust v Moreton Bay Regional Council (No 2) [2017] QPEC 036

Legislation - Commonwealth

Ozone Protection and Synthetic Greenhouse Gas Management Legislation Amendment Bill 2017
Senate Introduced and read a first time 14 June 2017; Second reading moved 14 June 2017. The Bill implements Australia's commitment to phase-down import, export and production of hydrofluorocarbons from 1 January 2018, in advance of the global phase-down implemented under the Montreal Protocol, as amended by the Kigali Amendment; amend provisions in relation to the hydrochlorofluorocarbon (HCFC) phase-out and prohibit the use of new HCFCs from 1 January 2020 other than for permitted uses.

Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017
Introduced and read a first time 13 June 2017; Second reading moved 13 June 2017; Second reading debate 15 June 2017 – The Bill proposes to make sure that the Australian Government cannot hand out $1 billion to Adani for their coal railway via the Northern Australia Infrastructure Facility (NAIF) by creating a broad "suitable person" test under the Northern Australia Infrastructure Facility Act 2016.

Native Title Amendment (Indigenous Land Use Agreements) Bill 2017
House agreed to Senate amendments 14 June 2017; Finally passed both Houses 14 June 2017. The Bill Amends the Native Title Act 1993 to respond to the Federal Court's decision in McGlade v Native Title Registrar [2017] FCAFC 10 by: confirming the legal status and enforceability of agreements which have been registered by the Native Title Registrar on the Register of Indigenous Land Use Agreements without the signature of all members of a registered native title claimant (RNTC).

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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No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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