Australia: Property & Real Estate News - 14 February 2018

In the media – National

Payment demands from shopping centre car parks 'may be unenforceable'
Lawyers demanding payment from drivers who overstay time limits in shopping centre car parks are operating in a grey area that is unlikely to be upheld in court, a legal expert says (02 February 2018). More...

Ensuring Australians can purchase agricultural land while foreign investment is geared toward jobs and growth
Subject to exceptional circumstances, foreign investors will need to demonstrate that agricultural land they intend to acquire has been part of a public sales process and marketed widely to potential Australian bidders for a minimum of 30 days. All acquisitions of agricultural land by foreign investors for residential development will also be subject to standard development conditions requiring development to commence within a five year period to prevent land banking (01 February 2018). More...

Tighter office markets reflect strengthening economy
Overall demand for CBD office space has grown for the seventh straight period, with Australia's tightening office markets reflecting a strengthening economy new figures show. Vacancy across Australia's office market fell from 10.2 per cent to 9.6 per cent over the six months to January 2018, according to the latest Office Market Report released by the Property Council today (01 February 2018). More...

New 'IBodies' needed to keep infrastructure independent, says Consult Australia
Australia needs independent statutory infrastructure bodies in every state and territory to take the politics out of infrastructure planning and stop the waste of taxpayer funds, Consult Australia says. Governments that wanted to build projects that were not in the official pipeline or change the order in which projects were built would have to get parliamentary approval (29 January 2018). More...

CER: Record year of investment means Australia's 2020 Renewable Energy Target will be met
The CER has today released new information to the market that shows Australia will meet the 2020 Renewable Energy Target. Of the 6,532 megawatts of new large-scale generation firmly announced since 2016, more than 4,900 megawatts is fully financed, with most already under construction or operating, while the rest is expected to begin construction early this year (23 January 2018). More...

In the media – Victoria

More problems, scant solutions with Victoria rental reforms
Victoria's recently proposed Residential Tenancies Act 1997 reforms will produce more problems than solutions, according to a council of experts. The Property Investors Council of Australia (PICA) has claimed that the rental reforms, announced in October 2017, would result in rents being raised, investors going interstate and the removal of many rights of landlords in favour of tenants (02 February 2018). More...

Wantirna Caravan Park resident wins legal fight against developer
Mr Bedwell found the eviction notice in his letterbox, but it was not sent by registered post, and while it was also emailed to him, he had never agreed to use email to receive notices. The VCAT found the notices to vacate did not comply with the Residential Tenancies Act. Unlike in New South Wales and Queensland, those living in residential parks in Victoria are not entitled to compensation when the land is sold from underneath them (29 January 2018). More...

Major Road Changes Ahead For Metro Tunnel Works
Road closures, lane reductions and major construction will begin next month as part of the biggest public transport project in Victoria's history – the Metro Tunnel, which will connect the Parkville and Domain precincts to the train network for the first time – creating a world-class, turn-up-and-go train system (22 January 2018). More...

In the media – New South Wales

Promoting the remediation of contaminated land in NSW
The NSW Government is proposing planning policy improvements that will provide greater clarity, guidance and consistency for the remediation of contaminated land. The Department is exhibiting an Explanation of Intended Effect (EIE) for a new Remediation of Land SEPP, as well as draft Planning Guidelines and is seeking comment from the community (30 January 2018). More...

In the media – Queensland

Gold Coast office vacancy continues to decline
Healthy demand for office space on the Gold Coast has seen vacancy rates fall over the final half of 2017. The Property Council of Australia's latest Office Market Report, released today, shows that over the last six months of 2017, Gold Coast office vacancy fell from 11.3 to 10.6 per cent off the back of positive market demand and building withdrawals (01 February 2018). More...

New office developments impact Sunshine Coast vacancy Despite healthy demand for office space on the Sunshine Coast, the completion of significant new office developments in 2017 have affected the region's vacancy rate. The 2018 Office Market Report, released today, has found that over the course of 2017 the office vacancy rate on the Sunshine Coast rose from 6.9 per cent to 15 per cent (01 February 2018). More...

Indigenous groups return to court over disputed Adani native title deal
Two Indigenous groups are in Federal Court working to prevent Adani completing work that would extinguish their native title over part of the proposed Carmichael mine site (30 January 2018). More...

Australian Hotel Sector Shines Brightest in North Queensland
Cairns has retained the top position as the nation's best performing hotel market, as it continues to experience growth in travel and tourism (30 January 2018). More...

In Practice and Courts


Funding for National Historic Sites 2017-18
The 2017-18 round of the Protecting National Historic Sites Program provides funding for activities that will maintain, protect and conserve the places on Australia's National Heritage List that are listed for their historic heritage values. Protecting National Historic Sites grant opportunities now open until 8 March 2018 (02 February 2018). More...

Property and GST
In May last year, the Federal Government announced that it will strengthen compliance with the GST law by requiring purchasers of newly constructed residential properties or new subdivisions to remit the GST directly to the ATO as part of settlement. The ATO reports that under the current law (where the GST is included in the purchase price and the developer remits the GST to the ATO), some developers are failing to remit the GST to the ATO despite having claimed GST credits on their construction costs. As most purchasers use conveyancing services to complete their purchase, they should experience minimal impact from these changes. This change takes effect from 1 July 2018.

Announcements, Draft Policies and Plans released 2018

New South Wales

Proposed Reforms for Buildings with Combustible Cladding
The NSW Department of Planning and Environment (DP&E) has released a package of proposed reforms requiring owners to: register their building/s with the NSW Government and engage an expert to do a fire risk assessment of the cladding. Councils and Fire and Rescue NSW will have powers to direct owners to register their buildings within a set timeframe if they have not already done so. The package is on exhibition until 16 February 2018. More...



Loustas v Sier & Ors [2018] VSC 13
CONTRACT – Construction – Written agreement – Language susceptible of more than one meaning – Second and third mortgagee purchased land at public auction from first mortgagee in possession – Purchasers entered agreement with previous proprietor to continue development of the land – Profit share arrangement – Whether previous proprietor was a joint venturer or merely a development manager – Whether second mortgagee breached agreement by accepting repayment of mortgage loan from receiver after auction – Electricity Generation Corporation (t/a Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 applied. CONTRACT – Termination – Inability to obtain construction finance to complete development – Whether a contractual obligation is incapable of being performed – Shevill v Builders Licencing Board [1982] HCA 47; (1982) 149 CLR 620 applied – Frustration – Common assumption that construction finance could be obtained – Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 applied – Breach – Purchasers entered a second agreement with a new syndicate of investors to complete development – Whether first agreement was breached.
EQUITY - Fiduciary duties – Solicitor-client relationship – Second mortgagee had acted for previous proprietor for many years as solicitor – Whether the retainer was terminated prior to auction when solicitor purchased client's land – Whether the solicitor should have advised his client to receive independent legal advice – Whether the solicitor had a conflict of interest in drafting the agreement entered into with the client – Whether any loss or damage was suffered – Whether the solicitor entering into the second agreement involved a breach of fiduciary duties owed to his former client.

Caydon Cremorne No 2 Development Pty Ltd v Yarra CC [2018] VCAT 85
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Lendlease Primelife Limited v Greater Dandenong CC [2018] VCAT 14 Section 77 of the Planning and Environment Act 1987. Greater Dandenong Planning Scheme. General Residential Zone, Schedule 1. Amendment C182. Retirement village. Building height. Neighbourhood character. Car parking.


Brodsky v Willi [2018] QDC 001
EASEMENTS, REAL PROPERTY: where defendants have right of way easement over plaintiff's land, where disputes arose between the parties over their respective rights under the Grant. TRESPASS/NUISANCE: where plaintiffs constructed a cross-over on the easement area to enable them to more safely access the lower part of their property which is bisected by the easement; where defendants caused contractors to remove the cross-over without the consent of the plaintiffs, whether in so doing the defendants committed the tort of trespass; whether the cross-over substantially interfered with the rights of the defendants pursuant to the grant.
DAMAGES, EXEMPLARY & AGGRAVATED DAMAGES: where from the time they first met the defendants adopted an aggressive and intimidating attitude towards the plaintiffs asserting that they "owned" the easement and that the plaintiffs could exercise no rights in relation to the easement without the consent of the defendants; whether the actions of the defendants involved contumelious disregard for the plaintiffs legal rights.
COSTS: whether there was some special or unusual feature of the case which required the Court to depart from the ordinary course of standard costs to follow the event.

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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Chris Brodrick
Katie Miller
Gerard Timbs
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