Australia: Planning & Environment News - 10 October 2017

Last Updated: 15 October 2017
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, August 2018

In the media – National

Draft legislation could significantly boost affordable housing supply
With submissions closing today on draft Commonwealth legislation that will introduce an affordable housing Managed Investment Trust (MIT) structure, the scale community housing sector providers welcomed the new mechanism which is poised to provide significant additional funds for more affordable housing (28 September 2017). More...

Infrastructure plans boost Sydney in city ranking
Sydney has been buoyed in a ranking of the top global cities by the substantial investment in infrastructure, a JLL report found. The city's quality of life, transparency, global reputation and high levels of direct real estate investment also boosted its score (28 September 2017). More...

ASBEC Release Policy Platform on Affordable Housing
Housing is integral to health, wellbeing and economic outcomes for all Australians, and the Australian Sustainable Built Environment Council (ASBEC) has released a new policy platform, Improved Housing Outcomes to address Australia's housing crisis (26 September 2017). More...

Meeting our Paris commitment
The first major report from The Australia Institute's Climate & Energy Program by Director of Research at The Australia Institute, Rod Campbell, shows the most efficient path to meeting Australia's international commitment would see the electricity sector reducing emissions by between 40%-55% below 2005 levels in 2030 (24 September 2017). More...

More potential pumped hydro storage sites identified
Over 18,000 sites across New South Wales, Victoria, Western Australia and the Northern Territory have been identified as possible locations for pumped hydro energy storage (21 September 2017). More...

Small-scale renewables heating up: The top ten Australian towns giving back to the grid
Last month, Australia hit a milestone of 6,000 megawatt capacity across 2.8 million small-scale installations of renewable energy systems such as solar PV systems, solar water heaters and air source heat pumps (18 September 2017). More... (Media) More... (RET) More...

In the media – Victoria

Plans submitted for Southern Hemisphere's Largest Wind Farm
A German-based wind farm manufacturing company has submitted a $1.7 billion proposal to Victoria's Golden Plains Shire for the southern hemisphere's biggest sustainability project. Through their Australian arm, WestWind Energy, the international WestWind Group have proposed to develop the Golden Plains Wind Farm (29 September 2017). More...

Environment Victoria leads renewed push for rental housing standards
Legislating minimum energy standards for rental housing would cut bills, save lives, create jobs and help reach climate targets, according to a new report from Environment Victoria (28 September 2017). More...

Supporting waste to energy projects
A Ballarat community energy group has received $71,000 from the Andrews Labor Government to determine whether waste wood and sawdust can be used to make briquettes for commercial and industrial use, under the Ballarat Renewable Energy and Zero Emissions (BREAZE) project (21 September 2017). More...

Full Environmental Assessment For Mordialloc Bypass
The Minister for Planning Richard Wynne has confirmed that an Environmental Effects Statement (EES) will be required for the $300 million project. The EES will investigate potential environmental, social, economic and cultural impacts of the proposed nine-kilometre arterial road, which will connect the Mornington Peninsula Freeway to the Dingley Bypass (21 September 2017). More...

In the media – New South Wales

Green light for Cessnock to proceed with town centre improvement plans
The future is bright for the Hunter Valley town of Cessnock with the Department of Planning and Environment this week approving a strong new vision for its commercial centre (29 September 2017). More...

Solar power putting NSW back in the renewable game
NSW is now using hydro, solar, wind and bioenergy to make up almost 20 per cent of its electricity mix for the first time, and even more renewable output is expected in the future with a boom in solar farm projects (28 September 2017). More...

North Coast sawmill slapped with $15,000 fine

A North Coast sawmill operator has been fined $15,000 by the NSW Environment Protection Authority (EPA) for ongoing poor sediment controls impacting a nearby Creek (27 September 2017). More...

EPA fines operators for trying to pass off asbestos waste as clean fill
The NSW Environment Protection Authority (EPA) has issued $29,000 in fines after waste, including asbestos waste, was deposited at a private property in Mowbray Park (27 September 2017). More...

Developer ordered to rebuild heritage facade it illicitly knocked down
A Singapore-based developer who demolished much of the historic facade of a Potts Point building in Sydney to construct an apartment block without council approval is ordered to reinstate the wall (27 September 2017). More...

Wallarah proposal referred for independent consideration
The Wallarah 2 Coal Project has been referred to the independent Planning Assessment Commission for determination. The proposal, submitted by the Wyong Areas Coal Joint Venture, is to develop and operate an underground coal mine near Wyong on the NSW Central Coast (26 September 2017). More...

Sustainable cities? Australia's building and planning rules stand in the way of getting there
Australia's building and land-use policy settings fall well short of what's needed to make meaningful progress toward creating sustainable cities. But our newly released review of building and land-use planning policies around Australia has found New South Wales is the only state without serious gaps in legislation and enforcement (21 September 2017). More...

Linx Logistics Pty Ltd fined $15,000 after Urea Spill
The NSW Environment Protection Authority (EPA) has issued a $15,000 fine to Linx Logistics Pty Ltd after a urea spill at one of the company's facilities at Kooragang (19 September 2017). More...

Stoneco Pty Ltd fined $15,000 for illegal quarrying activity

The Environment Protection Authority (EPA) has fined Stoneco Pty Ltd $15,000 for illegally extracting quarry material in the Upper Hunter. EPA investigating officers allege that 166,994 tonnes of material was extracted from the Robertson's Knob Quarry near Scone over a four-year period (19 September 2017). More...

Have your say on Rhodes East
Give feedback on the draft Priority Precinct Plan for Rhodes East to make it a vibrant place to live and work (18 September 2017). More...

In the media – Queensland

Why off-grid energy was a "no-brainer" for Logan City Council's water treatment plant
Logan City Council, south of Brisbane, has installed solar PV and Tesla Powerpack technology to create an off-grid water treatment solution at its Round Mountain Reservoir, in what is believed to be an Australian first (28 September 2017). More...

EHP investigates chemical spill, Gladstone
Officers from the Department of Environment and Heritage Protection (EHP) are investigating a reported sodium hydroxide spill into the Gladstone Harbour overnight. The incident has the potential to impact the local marine ecology and damage vessels that come into contact with the chemical (25 September 2017). More... More...

How Queen's Wharf will help shape Brisbane's public realm: Urbis
Urbis are leading the master planning and development approval strategy for the Queen's Wharf development. The development is uniquely "Brisbane" and will have a great influence on the city's public realm, ensuring the growing metropolis can take its place on the world stage (22 September 2017). More...

Protecting Queensland's environment - have your say!
Queenslanders can now have their say about environmental issues that are of the greatest concern and interest to them. Department of Environment and Heritage Protection (EHP) Executive Director Anne Lenz said today the department launched its Protecting Queensland's environment—have your say survey (19 September 2017). More...

In Practice and Courts


ASBEC: Building Sector Nails Solutions for Affordable, Sustainable Housing Outcomes
The Australian Sustainable Built Environment Council (ASBEC) has released a new policy platform to address Australia's housing crisis (26 September 2017). More... More...

Draft ERF method: Measurement of soil carbon sequestration in agricultural systems
Draft Emissions Reduction Fund method for Measurement of soil carbon sequestration in agricultural systems released for public consultation. Consultation period closed 2 October 2017. More...

Draft Reef 2050 Water Quality Improvement Plan 2017-2022 consultation
The consultation period for the Draft Reef 2050 Water Quality Improvement Plan 2017-2022 is open from the 28 August – 10 October 2017. More...

CER: Sixth Emissions Reduction Fund auction to be held in December
The Clean Energy Regulator will hold a sixth Emissions Reduction Fund auction on 6 and 7 December 2017. This auction announcement comes after the release of the plantation forestry method, providing opportunity for new sectoral engagement in the Emissions Reduction Fund.


Announcements, Draft Policies and Plans released 2017

NSW Land and Environment Court

25 September 2017: Tree dispute principle
In Fang v Li & anor [2017] NSWLEC 1503, Acting Commissioner Galwey set out a tree dispute principle (at [58]) designed to provide guidance to parties where applications made pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 include claims for rectification of, or compensation for, structural damage to property caused by roots of a tree located on adjoining land (being land to which s 4(1) of the Trees Act applies and where the tree is one to which s 4(3) and (4) of the Trees Act applies).

Draft NSW Waste and Resource Recovery Infrastructure Strategy 2017-2021
The EPA would like to know what you think about the draft NSW Waste and Resource Recovery Infrastructure Strategy 2017-2021. The EPA's NSW Environment Protection Authority's (EPA) Waste and Resource Recovery (WARR) Strategy 2014–21 sets targets for the diversion of waste from landfill, increasing from 63% in 2014/15 to 75% by 2021. Submissions close on 20 November 2017. More...

Draft NSW Invasive Species Plan
The Department of Primary Industries is seeking public comment on the Draft NSW Invasive Species Plan 2017-2021. The plan aims to help prevent new pest incursions and reduce existing pest threats. It will help guide investment and resources to invasive species prevention and management programs, with the aim of building NSW's ability and commitment to manage invasive species activities on the ground. Submissions are invited until Friday 13 October 2017. More...

Guidelines for the Economic Assessment of Mining and Coal Seam Gas Proposals
The Department of Planning and Environment is seeking feedback on the content of nine technical notes supporting the Guidelines for the Economic Assessment of Mining and Coal Seam Gas Proposals. The technical notes cover a range of environmental, heritage, social and transport related issues to be considered when developing State Significant Development (SSD) mining and coal seam gas proposals. Submissions are invited until 23 October 2017. More...

Renewable Energy (Electricity) Regulations 2001
The Department of Environment and Energy is seeking feedback on a possible new method for calculating exemptions based on the electricity used by emissions-intensive trade-exposed (EITE) activities. More...

NSW Planning Circular: Building Fire Safety Regulation new and changed requirements
The purpose of this circular is to inform certifiers, councils, industry practitioners, and affected buildings owner of new and changed fire safety regulation requirements that will soon apply in NSW. This circular outlines the changes to the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation). The changes relate to complex buildings and do not affect houses or related out buildings like garages and carports. The Amending Regulation will come into effect on 1 October 2017. More...

Have your say on the WestConnex M4 M5 Link
Environmental Impact Statement (EIS) for the WestConnex M4-M5 Link is now on exhibition, and the NSW Department of Planning and Environment welcomes community feedback. The EIS will be available to view from 18 August and submissions are open until 16 October 2017. To make a submission and view the EIS visit the WestConnex M4 M5 Major Projects page or go to the major projects website. More...


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. here

Consultation: Have your say on the Queen's Wharf Brisbane development
The Queen's Wharf Brisbane Priority Development Area was declared on 28 November 2014, to facilitate the planning and delivery of the Queen's Wharf Brisbane Integrated Resort Development and to establish the necessary policy framework to support the intended development for the site. Public consultation closes on 19 October 2017. The PoD development application and associated documents are available by searching DEV2017/846 here.



Hawkins v Mornington Peninsula SC [2017] VCAT 1577
Sections 82 & 89 of the Planning & Environment Act 1987; Mornington Peninsula Planning Scheme; Design & Development Overlay; Outbuilding; Characterisation of use or development; Whether permit application properly characterised for VicSmart planning assessment; Registered restrictive covenant; Expression 'facing the street'; Permit cancellation application refused; Whether there is utility in determining review application on its merits. No permit.

Yarra City Council v Metropolitan Fire and Emergency Services Board (No 2) [2017] VSCA 255
COSTS – Multiple issues raised on appeal – Partial success on appeal – Whether successful party entitled to issues-based costs order – Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141, discussed. On 26 July 2017, this Court granted Yarra City Council (Yarra) leave to appeal from a decision of the trial judge that Yarra was liable to the Metropolitan Fire and Emergency Services Board (the MFESB) for the costs it incurred with respect to compliance with clean up notices issued by the Environment Protection Authority (the EPA). This Court also allowed the appeal on a limited number of grounds but rejected many grounds, including a ground challenging liability.

Paske Group Pty Ltd v Casey CC [2017] VCAT 1518
Casey Planning Scheme; Incremental Change Area; General Residiential Zone; 7 two-storey dwellings; court bowl location; neighbourhood character; front setback; sunlight to secluded private open space.


Australian Consulting Architects Pty Ltd v Liverpool City Council [2017] NSWLEC 129
PRACTICE AND PROCEDURE – appeal against deemed refusal of development consent – whether proceedings incompetent – whether proceedings commenced out of time – whether request for further information stopped the clock – whether alleged amendments to development application reset the clock – whether development application ineffective due to lack of owner's consent and specification of non-entity as applicant. PRACTICE AND PROCEDURE – whether name of applicant on Class 1 Application should be amended – whether name of applicant on development application should be amended.

Jomasa Pty Limited v City of Ryde Council [2017] NSWLEC 1530
EXPEDITION – whether expedition warranted – whether special factor exists – financial loss an inherent risk of development appeals.

Rosa Maiolo v Inner West Council [2017] NSWLEC 1525
MODIFICATION APPLICATION – extended trading hours; further trial period; amenity impacts on neighbours in mixed use development; noise; acoustic assessment, plan of management; resident objections; public interest.

Wollongong City Council v Hollis [2017] NSWLEC 123
CONTEMPT – two charges laid by Council for alleged breaches of court orders made by consent in Class 4 proceedings – not guilty pleas entered to each charge CONTEMPT – Charge 1 – failure to remove building materials and other materials from the site within the period required by the court orders – some materials removed from site – other materials moved and restacked but remaining on site – Respondent guilty of contempt with respect to Charge 1 CONTEMPT – Charge 2 – failure, within the period required by court orders, to remove fittings from a shed that converted the shed into a dwelling– modification application to existing development consent approved by the Applicant – some of the fittings now not required to be removed but others still required to be removed – proposed orders to stay existing court orders with respect to fittings now approved to be retained – proposed staying orders require redrafting – Respondent to be found guilty of contempt with respect to Charge 2 after staying orders made to exclude now permitted fittings from the removal orders.
DIRECTIONS – directions to be made for a sentencing hearing on Charges 1 and 2 – directions to be annexed to decision.

James Bale v Inner West Council [2017] NSWLEC 1515
DEVELOPMENT APPEAL: against the refusal of alterations and additions to an existing dwelling – impacts on the significance of the heritage conservation area – amenity impacts on adjoining properties – compatibility of development with current and desired future character – impacts not sufficient to warrant refusal of application.

Vasiliades v Canterbury-Bankstown Council [2017] NSWLEC 1514
DEVELOPMENT APPEAL: boarding house development – whether compatible with the character of the locality – proposed heritage conservation area – acceptability of the fourth storey – weight given to draft local environmental plan – desired future character – likely impacts of the development unacceptable.

Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507
DEVELOPMENT APPEAL: Subdivision – power of the Court to vary easement to accommodate access for additional residential lots resulting from the development – owners consent – appropriateness and safety of vehicular and pedestrian access – bushfire management - location of asset protection zones not wholly within the development – appropriateness of alternative bushfire risk assessment by short run fire modelling – land slope – residential lots within outer creek line corridor – vehicular access to development not suitable – development fails precondition.


Chief Executive, Department of Environment and Heritage Protection v Alphadale Pty Ltd [2017] QCA 216
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – APPEAL OR REVIEW – where the respondent was required to pay $4,345,852 by way of financial assurance as a condition of an environmental authority – where that original decision was confirmed by the applicant after an internal review – where the respondent appealed to the Land Court and applied for a stay of the review decision pending the appeal – where the power to grant a stay conferred by s 522(2) of the Environmental Protection Act 1994 (Qld) (the Act) is constrained by a requirement under s 522A(2) to provide security for at least 75 per cent of the amount of financial assurance – where the respondent contended s 522(2) of the Act is limited only to stays pending the determination of an internal review and not thereafter – where the respondent further contended that the stay should therefore be granted under s 7A of the Land Court Act 2000 (Qld) (the LC Act) – where the member of the Land Court rejected this argument and refused the stay on the basis that the respondent had not complied with s 522A(2) – where the respondent appealed to the Land Appeal Court – where the Land Appeal Court accepted the respondent's submissions and found the Land Court's power to stay a review decision is conferred by s 7A of the LC Act which is not constrained by a provision analogous to s 522A(2) of the Act – where the Land Appeal Court therefore allowed the appeal and ordered a stay of the review decision pending the substantive appeal – whether s 522 of the Act confers a power to grant a stay of the original decision for both the duration of a review and an appeal against a review decision – whether the power to grant an application for a stay made after a review decision is governed by s 522 or s 7A of the LC Act – whether s 522 is the sole source of power for the Land Court to stay an original decision in respect of a Schedule 2 part 1 matter under the Act – whether, consequently, the power for the Land Court to stay an original decision is constrained by the condition in s 522A(2) of the Act – whether the Land Appeal Court erred in ordering a stay of the review decision in reliance upon s 7A of the LC Act.

Gerhardt v Queensland Building and Construction Commission [2017] QCAT 303
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – CERTIFICATION – review of decision that certifier had engaged in unsatisfactory conduct – where there was a failure to submit an alternative solution to the Queensland Fire and Emergency Service – where complaint lodged – where certifier says not his responsibility – whether unsatisfactory conduct.

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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