Australia: Planning & Environment News - 11 September 2017

In the media – National

Small-scale renewable energy hits record-breaking capacity in Australia
Australian homes and businesses have collectively reached the remarkable milestone of 6,000 megawatt capacity, enough to power more than 1.8 million homes or every home in Sydney. There are now almost 2.8 million small-scale installations in Australia, with Queensland having the largest uptake of systems under the Small-scale Renewable Energy Scheme (31 August 2017). More...

UN leads new global push to make cities more sustainable
A meeting of the United Nations General Assembly on 5-6 September is expected to approve the creation of a first-ever official international body focused on urban sustainability – UN Urban. The reorganisation follows last October's adoption of the New Urban Agenda at the Habitat III Conference in Quito, Ecuador by UN member state (30 August 2017). More...

CEDA Housing Australia report a wake-up call for policy makers
The Property Council of Australia has welcomed the release of the CEDA Housing Australia Report. "This report is a wake-up call for Australian governments and another reminder substantial supply side reforms are required to address housing affordability," said Ken Morrison, Chief Executive of the Property Council of Australia (29 August 2017). More...

Public transport key to city prosperity: Fletcher

Federal urban infrastructure minister Paul Fletcher has spoken at the Australian Transport Summit, laying out the Turnbull government's vision for public transport development in the country's major cities. Referring to a report by Infrastructure Australia, Fletcher noted that further projected population increases in the major cities means that Sydney, Melbourne, Brisbane and Perth will need to "transform the structure of their built environments to accommodate their projected population increases" (21 August 2017). More...

In the media – Victoria

Will Victoria's new apartment guidelines help the medium density experiment succeed?
New guidelines for apartments and urban design in Victoria have just been released – but will they be enough to make the density experiment succeed. The Apartment Design and Urban Design Guidelines for Victoria aim to help state agencies, local councils, developers and consumers better understand and apply the Better Apartments Design Standards (31 August 2017). More...

Creating Better Apartments and Public Space in Victoria
The Andrews Labor Government has released new guidelines to improve design standards for new apartment buildings in Victoria. The Labor Government has already introduced new standards that ensure new apartments are built with light, storage, ventilation and enough room to fit beds and furniture (30 August 2017). More...

Peri-urban farming: It's a battle just to survive
Farmers on Melbourne's outer urban fringe are battling right-to-farm conflicts, skyrocketing rates and the loss of rural services — and are being outbid by residential developers for land (30 August 2017). More...

Inner Metro Partnership
The Victorian Government is encouraging people in Melbourne's inner suburbs to have their say, as community consultation kicks off in the lead-up to the first Inner Metro Partnership assembly on 13 September (25 August 2017). More...

In the media – New South Wales

Planning Agreement Clause reports due 29 September
Over the past six months, we've consulted industry representatives and peak bodies and received useful feedback on our service especially in relation to planning agreements. Improvements include a centralised mailbox for all initial enquiries in relation to planning agreements, and under planning agreements reporting clause (Cl.12) requiring developers to submit an annual report of the status of their development, a simple spreadsheet is now available (29 August 2017). More...

New land management and conservation laws start
New land management laws, which will improve both environmental outcomes and farmers' productivity, will begin from tomorrow, Minister for Primary Industries, Niall Blair, and Environment Minister Gabrielle Upton said today (24 August 2017). More...

In the media – Queensland

Land clearing debate to rekindle at next Qld election
A year after the Palaszczuk Government's proposed stronger land clearing laws failed to get through Parliament, vegetation management is shaping up as a major issue at the next election (31 August 2017). More...

Queenslanders urged to have their say on mixed-use and resort developments
The Palaszczuk Government is encouraging Queenslanders to have their say on body corporate issues for mixed-use and resort developments, following the release of an issues paper this week (31 August 2017). More...

Bauxite mine leases to unlock FNQ jobs
Hundreds of jobs in Far North Queensland are closer after the Palaszczuk Government today granted three mining leases for the Bauxite Hills Mine project to operator Metro Mining (29 August 2017). More...

Toxfree fined for Narangba spill
Waste disposal company Toxfree has been fined as a result of a firefighting foam spill at its Narangba address in April this year. The Department of Environment and Heritage Protection issued the company with two penalty infringement notices (PINs), with a total value of $24,380, for two breaches of the Environmental Protection Act (28 August 2017). More...

Gulf water made available to support business, jobs
Previously unallocated water from the Gulf water catchment is being made available by the Palaszczuk Government to support business and jobs growth in the region. Applications can be made for 92,500 megalitres of water in the Cloncurry and Gilbert Rivers to support agriculture projects that are shovel ready in north west communities including Cloncurry and Georgetown (28 August 2017). More...

Underground coal gasification now prohibited in Queensland
A ban on underground coal gasification (UCG) in Queensland is now the letter of the law, following the successful passage of legislation in Parliament today. Issues associated with two of the three trial projects and the uncertainty about commercial scale operations, have highlighted significant risks with this industry which are just not acceptable, according to the Government (25 August 2017). More...

Conservation foundation loses appeal against Carmichael coal mine
Environmentalists who have lost another appeal against Adani's $16 billion Carmichael coal mine in Queensland's Galilee Basin say the decision is "just another step in the most significant environmental campaign of our generation" (25 August 2017). More...

Adani to fight $12k fine for environmental breach
The Indian mining giant will contest the fine issued by the Queensland Government over the unauthorised release of sediment stormwater from the Abbot Point coal terminal (24 August 2017). More...

Cross-River Rail: just build it
The CRR business case demonstrates it will create jobs, bust congestion and must be built, said the IAQ. Deputy Premier and Minister for Infrastructure Jackie Trad said the Cross River Rail Business Case 2017 details the challenges and opportunities facing South East Queensland's (SEQ) rail network (24 August 2017). More...

More heritage buildings protected for future generations
More State heritage places are being better protected with tighter laws and tougher penalties passed by the Palaszczuk Government. The passage of the Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Bill 2016, and the new Planning Act 2016, were key to protecting heritage buildings from inappropriate demolition (24 August 2017). More...

Bill brings certainty to landholders, resources industry
New legislation introduced into Parliament will provide landholders and resource companies with greater certainty when negotiating conduct and compensation agreements and make good agreements. The Mineral, Water and Other Legislation Amendment Bill would streamline and improve negotiation processes, making it easier for landholders and resources companies to co-exist (22 August 2017). More...

Retired Supreme Court Judge to lead investigation into interstate waste transportation
Retired Supreme Court Judge, The Honourable Peter Lyons QC will lead the independent investigation into the transport of waste into Queensland, following a roundtable last week jointly chaired by the Premier and Environment Minister Steven Miles (22 August 2017). More...

Proposal released for Port of Townsville waterfront redevelopment
A $56 million Market Led Proposal (MLP) for a Strand ferry terminal and tourism precinct within the Townsville Waterfront Priority Development Area has been announced by Queensland Treasurer, Curtis Pitt. Through stage two of the Market Led Proposal process, SeaLink and Honeycombes will work with the government and community stakeholders to finalise detailed planning and the business case to prove that the concept meets the MLP criteria (21 August 2017). More...

In Practice and Courts

NSW

Training to Implement the NSW Biodiversity Reforms
The Biodiversity Conservation Act 2016 and other supporting legislation became law on 25 August 2017. The Office of Environment and Heritage (OEH) in partnership with the Office of Local Government (OLG) has developed a capacity building program to help with the implementation of this legislation. More...

Land Management and Biodiversity Conservation Legislation
New legislation to conserve biodiversity and provide a framework to regulate native vegetation in NSW is now in place. The Biodiversity Conservation Act 2016 and the Local Land Services Act 2013 commenced on 25 August 2017. This new legislation repeals the Threatened Species Conservation Act 1995, the Nature Conservation Trust Act 2001, and parts of the National Parks and Wildlife Act 1974. The Land Management and Biodiversity Conservation (LMBC) reforms introduce a new biodiversity offset scheme, an expanded biodiversity certification program and a new Biodiversity Conservation Trust. More...

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP)
The SEPP will regulate clearing not covered by the Local Land Services Amendment Act 2016. It regulates clearing of vegetation in urban LGAs, as well as urban and environmental zones across the State, where clearing does not otherwise require development consent under the EP&A Act. More...

Department of Planning and Environment - IHAPs Overview
Changes to the planning law (Environmental Planning and Assessment Act 1979) will allow all Greater Sydney and Wollongong councils to set up a panel to decide local development applications. More...

Victoria

Apartment Design Guidelines
The Victorian Government has released new guidelines to improve design standards for new apartment buildings in Victoria, to help state agencies, local councils, developers and consumers better understand recent improvements to design standards. The Victorian Government has also introduced new Urban Design Guidelines, which are all about improving the design of public spaces and getting the design of buildings right so they integrate with areas around them. Both sets of guidelines are available at planning.vic.gov.au (01 September 2017). More...

Social Housing Renewal Standing Advisory Committee
Make a submission on the suitability of planning proposals for the redevelopment of social housing sites. The Standing Advisory Committee will seek submissions on each site once the planning proposal or group of proposals is provided to it. Interested parties will be able to view the planning proposal and make submissions here (01 September 2017). More...

Edithvale and Bonbeach level crossing removals
Consultation is open on draft Environment Effects Statement scoping requirements for the Edithvale and Bonbeach level crossing removals. More...

Queensland

Proposed Moreton Bay planning scheme amendments
Moreton Bay Regional Council is seeking public comment on a proposed package of amendments to its planning scheme. The suite of proposed changes is aimed at responding to implementation issues identified since the planning scheme came into effect on 1 February 2016, and includes three new planning scheme policies plus major amendments to 11 existing planning scheme policies. Further detail on the proposed amendments can be found here. Public consultation is open from 21 August to 6 October 2017. An online submission form is available, or submissions can be emailed to mbrc@moretonbay.qld.gov.au (31 August 2017).

Discussion paper: development of a Lower Burdekin Groundwater Strategy
Today's release of the discussion paper and the preparation of an application for Commonwealth funding are just the first steps towards securing a stronger future for the Lower Burdekin facilitated by the development of a Lower Burdekin Groundwater Strategy. Interested parties can review the discussion paper and provide feedback by 29 September 2017 (01 September 2017). More...

EHP Prosecution Bulletins
Prosecution bulletin no 5/2017

Cases

Victoria

Zhao v Alibrahim (Residential Tenancies) [2017] VCAT 1319
Compensation claim by tenants for breach of failure to maintain property in good repair due to excessive dust when floors sanded — section 68 Residential Tenancies Act 1997 — Compensation claim by landlord due to damage caused by tenants — invalid terms of lease agreement relating to tenants being required to replace light globes — section 27 Residential Tenancies Act 1997.

Kraan v Cardinia SC [2017] VCAT 1331
Pursuant to section 149A(2)(a) of the Planning and Environment Act 1987, the Tribunal declares that: The subject land has existing use rights under the Cardinia Planning Scheme for a tree lopping/vegetation management business conducted from the land (the Business).

Shiel FCP Pty Ltd v Melbourne [2017] VCAT 1060
Melbourne Planning Scheme; Arden-Macaulay urban renewal area; transition in scale at the edge of an urban renewal area; weight to be given to a current planning scheme amendment.

Biomix Pty Ltd v Environment Protection Authority (Costs) [2017] VCAT 1310
Application for costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998. Application for fee reimbursement under 115B of the Victorian Civil and Administrative Tribunal Act 1998. Proceeding conducted under s 33 of the Environment Protection Act 1970. Applicant seeks costs and reimbursement of fees from objector party. Conduct of objector party. Strength of grounds of objection.

Queensland

Alloa Properties Pty Ltd v Brisbane City Council [2017] QPEC 051
APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – where respondent refused to approve a development application for preliminary approval and a development permit – Material Change of Use – Multiple Dwelling– where proposal involved partial demolition and relocation of a local heritage place located in Bowen Terrace, New Farm.
CONFLICT WITH PLANNING SCHEME – whether proposal in conflict with the strategic intent of the strategic framework of the Brisbane City Plan 2014 to the extent of Design, Character and Heritage – whether conflict with Theme 2 Brisbane's outstanding lifestyle provisions under City Plan 2014 – whether conflict with Low-medium Density Residential zone – whether conflict with the New Farm and Teneriffe Hill neighbourhood plan – whether conflict with Multiple Dwelling Code of City Plan 2014 – whether conflict with the Heritage Overlay Code under City Plan 2014.
SUFFICIENT GROUNDS – in the event that there was conflict with the planning scheme were there sufficient grounds for the purposes of s.326 of the Sustainable Planning Act 2009 to warrant approval notwithstanding the conflict.

Gerhardt v Brisbane City Council [2017] QPEC 049
PLANNING AND ENVIRONMENT – BUILDING WORK – where a building development application is made to a private certifier seeking a development permit for building work – where Council, as concurrence agency, refused the development application – where Council advised that the building work constituted a material change of use – whether the construction of the proposed house constitutes a material change of use – whether a development approval for building work is required from Council.

Bond v Chief Executive, Department of Environment and Heritage Protection [2017] QCA 180
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – where the respondent issued an Environmental Protection Order (EPO) to the applicant– where the applicant applied to the Planning and Environment Court to have the EPO declared unlawful and was unsuccessful – where the applicant seeks leave to appeal against that decision on the grounds that the learned primary judge erred in law when dismissing the application – where the case involves important questions of general application as to the proper interpretation of the Environmental Protection Act – where leave to appeal is granted – where an application for review of the decision to grant the EPO was made within the nominated 10 day period – where the application for review stated that the decision was unreasonable and should have allowed for a period longer than 10 days within which to apply for review – where the application for review relied on there being special circumstances – where s.521 allows the administrating authority to extend the 10 day period in special circumstances – where the applicant alleges that an assessment of whether there are special circumstances must occur before an EPO is issued and failure to make such an assessment led to a breach of procedural fairness and makes the EPO invalid – where the Environmental Protection Act requires standard criteria to be considered before an EPO is issued – where the administering authority is required to balance the standard criteria and the affected party's interests – where the applicant's case relies on the brevity of s.521 and depends on the proper statutory construction of the Environmental Protection Act – where the proper course of construction is to read the words of a definition into the enactment and then construe the enactment – where the objects of the act surround environmental management – where there were no clear words that would constrain the rights of the affected party by an EPO after it was issued – where to prohibit the consideration of special circumstances after an EPO was issued would constrain the affected party's rights – whether proper construction of the Environmental Protection Act restricts the time in which to determine special circumstances – whether the issue of the EPO was valid.

Legislation

NSW

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
(2017-494) — published LW 1 September 2017.

State Environmental Planning Policy Amendment (Child Care) 2017 (2017-493) — published LW 1 September 2017.

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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Authors
Gerard Timbs
 
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