Australia: Planning & Environment News - 19 March 2018

Last Updated: 26 March 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, September 2018

In the media – National

Trialling grid stability services provided by wind farms
The Coalition Government, through the Australian Renewable Energy Agency (ARENA), is providing almost $500,000 to a north east Tasmanian wind farm to test the feasibility of wind farms providing services that help stabilise the electricity grid (08 March 2018). More...

PCA: RBA analysis a powerful call for planning reform
New quantitative evidence released today by the Reserve Bank of Australia provides the strongest possible argument for reform of Australia's planning systems. Property Council Chief Executive Ken Morrison said the RBA's report, The Effect of Zoning on House Prices, should be a compelling call to action for federal, state and territory governments (08 March 2018). More...

Recycling in Australia is in crisis. Can it be fixed?
It turns out recycling is not so simple, and there are major problems in the Australian industry. Industry leaders say there are some very simple ways it can be repaired (05 March 2018). More...

Historic Snowy Deal
The Turnbull Government has reached an agreement with the New South Wales and Victorian Governments to take full ownership of Snowy Hydro Limited in a deal that will deliver more than $6 billion in Commonwealth funds for investments in infrastructure across both states (02 March 2018). More...

How big data can help with affordable housing
A just-launched big data software platform is promising to help affordable and co-housing developers easily locate appropriate sites, including those currently off-market (08 March 2018). More...

Stockland chief Mark Steinert says infrastructure spend will help affordability
The massive spending on ­infra­structure in Australia's major ­cities will make tracts of land on the urban fringe more ­accessible and help address the housing ­afford­ability challenge, according to the country's biggest residential ­developer (01 March 2018). More...

While politicians question the reality of climate change, farmers and businesses act
One of Australia's biggest wine makers has already moved part of its operation to a cooler climate and other industries are also taking action. They're not waiting for the politicians to make up their minds about the changing climate (05 March 2018). More...

In the media – Victoria

Banning combustible cladding in Victoria
Minister for Planning Richard Wynne today released new ministerial guidelines to building surveyors – a key recommendation of the Victorian Cladding Taskforce – which focuses on buildings where people sleep or gather. The new ministerial guidelines spell out precisely what can't be used on Victorian building sites for suppliers and practitioners in the building chain, spelling an end to the use of dangerous, flammable materials (10 March 2018). More...

In the media – New South Wales

Prosecutions begin for water compliance breaches
Water NSW has now finalised lengthy investigations into compliance matters and this week they have begun several prosecution proceedings in the NSW Land and Environment Court (08 March 2018). More...

City of Sydney pushes for a net zero office sector
Increased building standards, mandatory disclosure of NABERS tenancy ratings and increased amounts of renewables are being pushed by the City of Sydney in a bid to get office buildings to net zero by 2050 (06 March 2018). More...

$37 million in conservation funding for landholders
The NSW Government has committed $37 million for the opening programs from the new NSW Biodiversity Conservation Trust (BCT), Environment Minister Gabrielle Upton announced 2 March (02 March 2018). More...

Independent panel on mining in Sydney's drinking water catchment
World leading experts in mining and water will be part of a new Independent Expert Panel on Mining in Sydney's Drinking Water Catchment (02 March 2018). More...

A community focussed EP&A Act and new strategic role for councils takes effect
Early community engagement and an elevated strategic role for NSW councils are two of the key changes to the Environmental Planning and Assessment Act 1979 (EP&A Act) that come into effect from today, having passed through Parliament late last year (01 March 2018). More...

IHAPs to bring transparency and accountability to DA assessment
Newly legislated Independent Hearing and Assessment Panels (IHAPs), which come into effect from today, will benefit communities by bringing transparency and accountability to development assessments (01 March 2018). More... More...

NSW Green Star brand caught up in waste scandal
NSW construction waste sent to Queensland for recycling is instead ending up dumped in landfill, a Fairfax investigation this week has revealed, raising fears that the practice could compromise the legitimacy of NSW Green Star ratings (01 March 2018). More...

Independent PAC to decide on Jupiter Wind Farm proposal
The Department of Planning and Environment has referred the Jupiter Wind Farm proposal to the independent Planning Assessment Commission for final decision, finding that the project should be refused (27 February 2018). More...

In the media – Queensland

Southport Spit master planning consortium appointed
South East Queensland's John Gaskell Planning Consultants and Deicke Richards have been appointed to help prepare The Spit Master Plan (09 March 2018). More...

PCA: Developer donations bill reintroduced to parliament
The Queensland Government has re-introduced the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill 2018. Reforms contained within the Bill are expected to be applied retrospectively from 12 October 2017. The Bill has been opposed by the Property Council on the basis that it singles out the property sector for inequitable treatment under electoral laws, and unduly brands Queensland's biggest non-government employer as a corruption risk (08 March 2018). More...

New tree clearing laws introduced to Parliament
Natural Resources Minister Dr Anthony Lynham today introduced tree-clearing reforms to Parliament. New, more accurate vegetation maps were also released today for the entire state, the first major review of major update to vegetation and ecosystem mapping in five years (08 March 2018). More...

New online tool shows latest land valuations
Queenslanders can now access real-time property data showing the state's latest land valuations (07 March 2018). More...

Solar farm forums shine a light on new planning guidelines
New planning and community engagement guidelines are in development to guide Queensland's solar farm boom (07 March 2018). More...

Queensland land values increase
Queensland's Valuer-General Neil Bray said the 2018 Property Market Movement Report shows improved land values in a number of major urban and farming areas across the state. These new land valuations are available from 7 March and will provide new valuations for 22 local government areas on the basis of each area's recent land sales history and the state of the surrounding economy (05 March 2018). More...

Government apologised to landholders suspected of planning unlawful clearing
Environment department originally wrote to 51 landowners asking them to show why planned clearing was not illegal, but later reversed course after lobbying from Queensland MPs (02 March 2018). More...

QRU confident Ballymore's case stacks up
The Queensland Rugby Union has renewed a push for funding to redevelop the ageing Ballymore Stadium and build a new high-performance centre and grandstand. The Queensland Rugby Union (QRU) is renewing a push for a redevelopment of its land in the inner-city Brisbane suburb of Herston, which is zoned for sport and recreation use (28 February 2018). More...

Family-owned chicken farm expansion rejected
A Poultry farmer says red tape has halted his plans to expand to more than half a million chickens after an appeal court ruled this week that foul odours would be too strong for the community (28 February 2018). More...

In Practice and Courts

Victoria

Land Use Terms
Submissions are invited on the Land Use Terms Advisory Committee's Discussion Paper.
The Advisory Committee appointed to review and recommend improvements to land use terms and their definitions in Clause 74 of the VPP has released a Discussion Paper for public comment by 3 April 2018 (02 March 2018).

Approvals

GC093 (Brimbank, Hobsons Bay, Maribyrnong, Melbourne, Port of Melbourne and Wyndham) facilitates delivery of the West Gate Tunnel Project: in accordance with the incorporated document; makes the Minister for Planning the responsible authority for administering and enforcing the relevant planning schemes in relation to the project; and introduces Design and Development Overlay controls to the Hobsons Bay and Maribyrnong planning schemes to ensure future development does not compromise the structural integrity or project infrastructure. GC93 introduces a new but identical control to that revoked by Parliament on 7 March 2018.

VC144 changes the Victoria Planning Provisions and all planning schemes by: amending Clause 52.05 (Advertising signs) to specify 'electronic sign' in Section 2 of Category 3 - High amenity areas (Clause 52.05-9), with a condition that the advertisement area must not exceed three square metres increasing the size of the permitted maximum advertisement area of a 'promotion sign' in Section 2 of Category 3 from two to three square metres amending Clauses 52.05 and 73 to replace the term 'home occupation' with 'home based business' correcting minor errors in Clauses 52.05 and 62.

Announcements, Draft Policies and Plans released 2017

New South Wales

Local Planning Panels referral criteria
Referral criteria for mandatory local planning panels no longer include the widely-anticipated $5m value-of-development threshold trigger. The NSW Government's decision to remove the value threshold trigger of $5m was made following feedback from affected councils and industry in November 2017. Councils raised concerns about the number and type of applications that would be captured by the proposed $5m threshold criteria (09 March 2018). More...

Implementation update – changes to Environmental Planning and Assessment Amendment Act 1979
Many of the amendments to the Environmental Planning and Assessment Act 1979 made by the Environmental Planning and Assessment Amendment Act 2017 are proposed to commence on 1 March 2018. More... More...

State Environmental Planning Policy (SEPP) for the remediation of land and the Contaminated Land Planning Guidelines Review
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. Submissions are invited by 31 March 2018. More...

State Environmental Planning Policy (SEPP) review
The NSW Department of Planning and Environment (DP&E) has released its Explanation of Intended Effect (EIE) for a State Environmental Planning Policy that aims to simplify planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property. More...

Cases

Victoria

Stockwood Design v Whitehorse CC [2018] VCAT 318
Section 77 of the Planning and Environment Act 1987; Whitehorse Planning Scheme, Neighbourhood Residential Zone (NRZ 3), Significant Landscape Overlay (SLO9); proposed two side-by-side double storey dwellings in a Bush Suburban Character area; design response to preferred and existing neighbourhood character. No permit.

Atheve Pty Ltd v Darebin CC [2018] VCAT 264
Darebin Planning Scheme; Repeat Appeal; Proposal for 4-storey building with 12 dwellings and an office; Commercial 1 Zone; Bedsits; Internal amenity; Mechanical parking; Parking adequacy; Laneway access; Traffic impacts; Degree of housing intensity and diversity; Design and built form.

New South Wales

Ozzy States Pty Ltd v Inner West Council [2018] NSWLEC 1120
DEVELOPMENT APPLICATION – new application for alterations and additions to an agreed approved but not constructed development rather than a modification application; heritage impacts; FSR non-compliance; clause 4.6 request; height, bulk and scale; heritage context; excess parking; resident objections; public interest; precedent.

Otium Capital DT Pty Ltd trading as Otium Capital Discretionary Trust v City of Canada Bay Council [2018] NSWLEC 1115
DEVELOPMENT APPEAL: Alterations and additions to an existing heritage building for reuse as a childcare centre – impact on the significance of the item – traffic and parking – whether the proposed boundary setback is appropriate – public submissions – refusal upheld.

Platford v van Veenendaal and Shoalhaven City Council [2018] NSWLEC 27
JUDICIAL REVIEW – development consent for dwelling in coastal zone – boathouse arm of development at risk of coastal inundation – condition of consent required maintenance of existing seawall – whether council the consent authority – whether council considered height controls applying to the boathouse arm – whether council considered effects of coastal inundation on the screen wall of the boathouse arm – failure to consider relevant matters established.

Spiteri v Randwick City Council [2018] NSWLEC 1113
Development Application: additions and alterations to an existing boarding house; SEPP Affordable Rental Housing; local character at front and rear; motorbike parking in front setback.

Benson McCormack Pty Ltd v Northern Beaches Council [2018] NSWLEC 1117
DEVELOPMENT APPLICATION: demolition of all existing improvements and construction of shop top housing; excessive height; inadequate landscaping; inadequate acoustic and visual privacy; view loss; poor streetscape appearance; resident concerns.

Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108
DEVELOPMENT APPLICATION: Subdivision for 59 residential allotments and one residual allotment; proximity to the Gold Coast Airport and impact of aircraft noise; impact on endangered ecological communities; stormwater.

Fleetqueen Pty Ltd v Newcastle City Council [2018] NSWLEC 1105
DEVELOPMENT APPLICATION: multi-dwelling housing development; consistency with R2 zone and local planning strategy; lack of respect to amenity and local character.

Ku-ring-gai Council v Antony Comanos [2018] NSWLEC 24
APPEAL – appeal from decision of Local Court pursuant to s42(2B)(b) – appeal limited to a question of law – whether appeal gives rise to a question of law alone – defendant charged with carrying out development without consent – whether the development exempt development – meaning of pathway in Exempt and Complying Codes SEPP – no legal error disclosed – appeal dismissed.

Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd and ors [2018] NSWLEC 1089
DEVELOPMENT APPLICATION: designated development; third party appeal against approval for construction and operation of a marina; inadequate contamination assessment; impact on the Georges River water quality; absence of owners consent for work within the Georges River; inadequate access arrangement for construction vehicles from a classified road; inadequate information in relation to future use and planning of the public areas along Georges River.

Secretary, Department of Planning and Environment v Shoalhaven Starches Pty Ltd [2018] NSWLEC 23
ENVIRONMENT AND PLANNING - prosecutions for failure to disclose political donations - disclosure required when making applications for modifications to approved development - five charges - early guilty pleas - for four charges, failure to disclose multiple donations - disclosure made of corporate donations but not of reportable donations made by a director. SENTENCING - characterisation of offences - failures due to reckless indifference or negligence of the Defendant's company secretary to be regarded as aggravating factor - Defendant's prior environmental convictions not a factor of aggravation - very limited subjective factors in Defendant's favour - approach to consideration of offences collectively - offences with multiple failures to declare being toward the upper end of the range - offences with single failure to declare being in the middle of the range - accumulation and totality where multiple offences - fines imposed SENTENCING - publication orders - availability to be ordered when legislation providing for them came into force after commission of one of the offences - legislative prohibition on retrospective application of increased penalty - publication order made with respect to four of the five charges CRIMINAL PROCEDURE - Prosecutor's application for moiety of fines imposed - appropriate to make an order in present circumstances.

Queensland

Trevorrow v Council of the City of the Gold Coast [2018] QCA 019
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – WHAT CONSTITUTES CONSENT – whether pursuant to the Sustainable Planning Act 2009 (Qld) a registered proprietor of a lot of freehold land is liable to the local council for an infrastructure charge, raised upon a decision notice approving an application for a development permit for a material change of use, where the application is made by a third party with the proprietor's consent.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – GENERAL MATTERS – PLANNING SCHEMES AND INSTRUMENTS – POWERS WITH RESPECT TO PLANNING SCHEMES – whether there is an obligation upon a registered proprietor which could engage the operation of s639 of the Sustainable Planning Act 2009 (Qld) where an infrastructure charge is raised upon a decision notice approving an application for a development permit for a material change of use, where the application is made by a third party with the proprietor's consent.

K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 009
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a service station, coffee shop with drive-through lane and takeaway food premises – whether there is conflict with the planning scheme – whether the use will have unacceptable impacts on the adjoining residential uses – whether the proposed development will have unacceptable impacts on the character and amenity of the area – whether there is a need for the proposed development – whether there are sufficient grounds to approve the development despite conflict with the planning scheme – whether the new planning scheme ought be given determinative weight.

United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 008
PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF APPLICATION FOR DEVELOPMENT PERMIT FOR MATERIAL CHANGE OF USE TO DEVELOP SERVICE STATION AND A SHOP – whether decision to approve the development would conflict with the 2003 Planning Scheme – amenity – perceptions and reasonable expectations – noise, air, amenity and lighting – privacy – streetscape/character/visual amenity – location – need -whether there are sufficient grounds – whether there is conflict with the 2016 Planning Scheme.

Trowbridge v Noosa Shire Council [2018] QPEC 007
PLANNING AND ENVIRONMENT – APPEAL – JURISDICTION – PIECEMEAL ARGUMENT – preliminary legal point in an appeal against a refusal for a development application for a material change of use – where the co-respondents by election allege the development application was piecemeal – whether co-respondents by election can advance piecemeal argument in such an application – whether piecemeal argument should succeed in the context of common property in general and Exclusive Use Areas in particular.

Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2018] QPEC 006
ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – DEVELOPMENT AGREEMENTS Where the Council approved a development for land the subject of stage 3 of a previously approved development and where stages 1 and 2 have been completed – where development of the final stage has not been undertaken over some 15 years – where the development application sought development permits to reconfigure the lot and for material change of use – where there is an appeal by submitters to the development assessment – whether there is a conflict with the Maroochy Plan 2000, including having regard to acceptable measures provided in the Code for Reconfiguring a Lot – whether despite any conflict, there are sufficient grounds justifying approval of the development.

Legislation

Commonwealth

Airports Amendment (Sydney West Airport Site) Regulations 2018
09/03/2018 - These regulations amend the Airports Regulations 1997 to excise certain parcels of land from the Sydney West Airport Site definition under Part 1.19A(1) of Schedule 1 of the Airports Regulations 1997.

Queensland

Subordinate legislation as made – 09 March 2018
No 23: Vegetation Management (Regional Ecosystems) Amendment Regulation 2018
No 24: Vegetation Management (Clearing Codes) and Other Legislation Amendment Regulation 2018

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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Peter Holt
Gerard Timbs
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