In the media – National
Australian company will convert China's waste
plastics to fuel
Australian company, Integrated Green Energy Solutions
(IGES), has announced a joint venture agreement
with the Chinese Crown World Holdings (CWH) to
expand its plastic-to-fuel production operations in China (18 April
2018).
More...
Investment in recycling would mean more Australian
jobs
About 500 jobs could be created if Australia domestically
remanufactured 50 per cent of the material formerly sent to China
before a ban on waste imports, according to a new report
commissioned by the Australian Council of Recycling
(ACOR). Conducted by MRA Consulting, the report
found that investment in domestic remanufacturing could also
significantly reduce carbon emissions equivalent to taking 50,000
cars off the road (17 April 2018).
More...
Incentives for developers could help create more
affordable housing
Record house price growth in Australia has led to calls
to ease supply-side restrictions to open up more affordable housing
for low and middle-income households. The AHURI has weighed in on
Australia's housing affordability challenges, suggesting the
answer may lie with planning schemes such as inclusionary zoning
and density bonuses (11 April 2018).
More...
Extreme downsizing: Could you live on a block the size
of an AFL goal square
Forget the quarter-acre block — a new property push
is on to find buyers willing to live on land that's smaller
than three shipping containers side by side. But banks are sounding
a warning to small home owners (11 April 2018).
More...
New building energy performance standards will save
money, emissions
In a welcome step forward for the economy and the
environment, draft changes to Australia's Building Code will
improve energy efficiency standards in commercial buildings. The
draft Code includes significant new measures to improve compliance
with energy efficiency standards for new homes; however, minimum
energy performance standards remain the same for residential
buildings (09 April 2018).
More...
Climate change litigation rising with the seas as victims revert to 'Plan B'
Across the world a shift towards climate change litigation is gathering steam as low-lying island countries and even United States' cities take aim at governments and big oil companies for failing to act proportionately to reduce carbon emissions (10 April 2018). More...
In the media – Victoria
Fishermans Bend developer sues minister over massive
apartment project
A developer is suing Planning Minister Richard Wynne
after his ambitious apartment tower plans were caught up in a mass
freeze of projects at Fishermans Bend. Developer David Joachim
lodged his Supreme Court case last month, after Mr Wynne seized
planning control for 26 development sites in the Fishermans Bend
area in February (19 April 2018).
More...
Pick your Project: New fund for locals, decided by
locals
Local projects will be chosen by local residents under a
new community building fund, which will see Victorians nominate and
decide on their own funding priorities. Projects between $20,000
and $200,000 will be eligible under the program (18 April 2018).
More...
Applications open for recycling industry relief
package
A $1 million funding package is available to
Victoria's recycling industry to help it make the transition to
new market conditions after China's decision to stop imports of
low-quality mixed recyclables (09 April 2018).
More...
In the media – New South Wales
NSW government to fast-track approvals for
medium-density housing
Medium-density housing types such as terrace houses will
be easier to build in New South Wales, following changes to the
housing code. Under the new code, manor houses (single buildings
comprising three or four homes), dual-occupancies and terraces
houses will also be eligible for a complying development approval.
More...
Excessive car parking requirements will make boarding
houses unviable
The proposed changes to the NSW Affordable Rental Housing
SEPP to increase car parking requirements will make boarding houses
unviable, says the Urban Taskforce (17 April 2018).
More...
Government to support councils with Low Cost
Infrastructure Loans
The NSW Government will invest $31 million for councils
to build up to $500 million worth of essential infrastructure to
support growing communities (17 April 2018).
More...
Strata legislative changes should clarify mixed use
buildings
The proposed amendments to the Strata Act clarify a
number of issues but raise further concerns about the practical
implementation of the building defects scheme, says Urban Taskforce
CEO, Chris Johnson (13 April 2018).
More...
New Greenfield Code welcomed
The Property Council today welcomed the State
Government's new Greenfield Housing Code that allows one and
two storey homes, renovations and extensions to be carried out
under a fast-track complying development approval. The changes
start on 6 July 2018 (11 April 2018).
More...
Online tool to help governments plan solar use
A new platform that calculates the solar power potential
of rooftops promises to help local councils and urban planners make
decisions about investments in solar. The SunSPoT online tool has
been developed by Australian PV Institute (APVI)
and UNSW with technology partners Solar Analytics and Enosi (13
April 2018).
More...
In the media – Queensland
Land of the legends is the Nywaigi people's
own
North Queensland's Nywaigi People, operators of the
award-winning Mungalla Station tourist attraction, now hold the
native title rights to the land and waters where their legends have
been formed (20 April 2018).
More...
Locals invited to have their say on solar farm
development guidelines
Bundaberg locals are invited to have their say on new
guidelines that will guide the sustainable development of
Queensland's solar farm boom. With 16 large-scale solar farms
under construction across the state and another 40-plus potentials,
specific planning guidelines would help the development,
construction and approval process (17 April 2018).
More...
'Very rare' win against gas company for serious
harm sounds a warning
The successful prosecution of Linc Energy for serious
environmental harm is "very rare" and puts Queensland
industry firmly on notice, an environmental lawyer says (10 April
2018).
More...
Gas company 'knew it was causing damage but allowed
it to continue'
Linc Energy is found guilty of wilfully causing serious
environmental harm at its underground coal gasification plant and
allowing operations in Queensland to continue for commercial gain
(09 April 2018).
More...
More consultation required before developers can build
at sports clubs
Allowing aged care and retirement facilities to be built
in sport and recreation zones is one step closer, but significant
community consultation will be required before the amendment is
given the final tick of approval (09 April 2018).
More...
In Practice and Courts
Commonwealth
RET: March Large-scale Renewable Energy Target market
data now available
The Clean Energy Regulator has released March 2018
Large-scale Renewable Energy Target market data (18 April
2018).
More...
Solar Communities Program round 2 announced
Guidelines for round 2 of the Solar Communities Program
are now available. Round 2 of the Program will be open to
applications from 13 March 2018 to 31 May 2018.
More...
Announcements, Draft Policies and Plans released 2017
Victoria
Notice of the preparation of an amendment - Amendment
C323
The Melbourne City Council has prepared Amendment C323 to
the Melbourne Planning Scheme. The amendment inserts Schedule 7 to
the Capital City Zone and rezones the land from Capital City Zone 3
(CCZ3) and General Residential Zone 1
(GRZ1) to Capital City Zone 7
(CCZ7) on a permanent basis, in order to promote
uses that support the role of the State Significant Melbourne Arts
Precinct. The closing date for submissions is Monday 21 May 2018.
More...
New South Wales
Greenfield Housing Code
With changes start on 6 July 2018, the new Code will be
included in the State Environmental Planning Policy (Exempt and
Complying Development Codes) 2008. In essence; it is a
simplifying of the development process and aligning the
requirements for development across greenfield areas; the planning
rules and the code are also presented in plain English to clearly
explain planning rules (11 April 2018).
More...
Note: There will be a three-year transitional
period, where applicants can choose whether to use the Greenfield
Code, or the new simplified Housing Code or Transitional Code
(until 13 July 2019).
Queensland
Reminder: Investigation and prosecution of Linc Energy
Limited
A Brisbane District Court jury convicted Linc Energy
Limited of all five (5) counts of wilfully and unlawfully causing
serious environmental harm, in contravention of the
Environmental Protection Act 1994. These verdicts conclude
a 10-week trial, which is the culmination of the largest and most
complex environmental investigation conducted by the environmental
regulator in Queensland's history. The matter has been listed
for sentencing on 11 May 2018.
More...
Cases
Federal
Triabunna Investments Pty Ltd v Minister for the
Environment and Energy [2018] FCA
486
ENVIRONMENT LAW – application for judicial review
of referral decision under the Environmental Protection and
Biodiversity Conservation Act 1999 (Cth) – whether s77
of the EPBC Act is the source of the Minister's power to
determine whether a proposed action is a controlled action –
where action determined not to be a controlled action if carried
out consistently with specified manner provisions – whether
Court has power to order the Minister to correct a s77 notice
– contention that the proposed action evolved or was varied
from that initially referred by proponent – whether proponent
sought to vary proposed action – whether Minister
unilaterally varied proposed action – whether Minister erred
in failing to consider the impacts of the proposed action on World
Heritage and National Heritage listed site – contention that
procedural fairness required further information to have been
published to allow the general public and first and second
applicants subsequent opportunity to comment – whether first
and second applicants have a special interest likely to be affected
by the proposed action – whether further information altered
the proposed action – application dismissed.
Administrative Decisions (Judicial Review) Act 1977
(Cth), ss5, 16; Environment Protection and Biodiversity
Conservation Act 1999 (Cth), ss18, 18A, 20, 20A, 68, 72, 74,
75, 76, 77, 77A, 156A, 523; Environment Protection and
Biodiversity Conservation Regulations 2000 (Cth), Sch 2.
Victoria
Hay v East Gippsland SC [2018] VCAT
565
Victoria Regional Energy project; use and development of
a utility installation; Daughter Station; reticulated natural gas;
transmit and distribute; amenity; noise; health and safety.
New South Wales
Wirrabara Village Pty Limited v The Hills Shire
Council [2018] NSWLEC
1187
DEVELOPMENT APPLICATION: Seniors housing development;
Site Compatibility Certificate issued by the Department of Planning
and Environment; prohibited development; whether the site adjoins
land zoned primarily for urban purposes; location and access to
services; impacts on threatened species; bushfire risk; exceedance
of the height of buildings development standard; amenity.
Denning Tweed Heads Pty Ltd v Tweed Shire Council No.
2 [2018] NSWLEC
1186
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.
The Owners – Strata Plan 49574 v Scorpio Holdings
(Aust) Pty Limited & Ors [2018] NSWLEC
54
PRACTICE AND PROCEDURE – strata renewal plan
– necessity of position papers prior to mediation in
proceedings under s179 Strata Schemes Development Act 2015
– such position papers to be provided in a timely manner
prior to mediation - respondent (dissenting owner) sought security
for costs of proceedings – applicability of terms
'defendant' and 'plaintiff' in the context of the
Strata Schemes Development Act 2015 – applicability
of term 'security for costs' in such proceedings.
Plumpton Park Developments Pty Ltd v SAS Trustee
Corporation [2018] NSWSC
461
LAND LAW — easements — construction of
easements — whether benefit of easement extends to land
consolidated into a single lot with original dominant tenement.
LAND LAW — easements — registration of easements
— Section 88B instruments.
Woolworths Limited v Randwick City
Council [2018] NSWLEC
1183
APPEAL – development application – conversion
of club to liquor store - statutory construction of Local
Environmental Plan – development for the purposes of a
shop.
Albert v Kiama Municipal Council
[2018] NSWLEC 1178
APPEAL – development application – consent
orders - medical centre – permissibility – consistency
with zone objectives – parking – traffic – height
and floor space ratio – compatibility – tree loss
– streetscape and setbacks – overshadowing – view
loss – amendments required to achieve view sharing.
Norwest City Pty Ltd ATF Norwest City v Valuer
General [2018] NSWLEC
50
VALUATION - appeal against statutory valuation -
valuation site zoned B2 - Local Centre - highest and best use
agreed to be a large mixed use development combining retail,
commercial and residential elements - town planners agree on gross
floor area (GFA) yield from hypothetical
redevelopment of the valuation site - differences between expert
town planners as to the break-up of the GFA between the development
types - rejection of portion of the Respondent's valuer's
evidence - agreement by expert valuers that comparative sales
analysis to derive an analysed rate per square metre of GFA was
appropriate valuation approach - expert valuers disagreed on
application of valuation approach - Applicant's valuer derives
a single analysed, derived rate from sales to be applied to total
GFA for the valuation site - Respondent's valuer derives
separate analysed, derived rates from sales to be applied to
different GFA components for the valuation site - Respondent's
valuer's sales considered and rejected - piecemeal approach no
longer relevant as a consequence - no need to resolve town
planners' differences - Applicant's valuer's sales
considered - one previously rejected as in common with the
Respondent's valuer's sales - three remaining sales
considered - two rejected - remaining sale provides sufficient
basis for valuation comparison - Applicant's valuer's sales
adjustments to be preferred over those of the Respondent's
valuer - resultant rate per square metre of GFA to be applied to
the valuation site shows lower base-date valuation - onus pursuant
to s40(2) of the Valuation of Land Act 1916 satisfied -
lower valuation ordered in substitution for that subject of the
appeal.
TC (Tallwoods) Pty Ltd v Liverpool City
Council [2018] NSWLEC
48
PROCEDURE – application for expedition –
failure of Council to accept development application potentially in
breach of statutory duty – relevance of Applicant being
prevented from exercising put and call options – relevance of
consequential financial hardship – expedition granted.
JET Group Australia Pty Ltd v Environment Protection
Authority [2018] NSWLEC
49
APPEAL - appeal pursuant to s56A of Land and
Environment Court Act 1979 - appeal confined to questions of
law - appeal against conditions imposed by Commissioners on an
Environment Protection Licence. APPEAL - first ground of appeal
that Commissioners failed to give reasons for imposing contested
element of an operational condition - issue clearly in contest -
issue subject to partial agreement by relevant experts - although
this contested issue was not subject of submissions by counsel for
the Appellant before the Commissioners, it was expressly addressed
by counsel for the Respondent who clearly set out the nature of the
competing positions - issue not merely subsidiary or incidental or
subsumed by matter in contest addressed by the Commissioners -
condition sought by the Respondent incorporated in conditions
imposed by order (2) made by the Commissioners - no explanation
given by the Commissioners for adopting the position advanced by
the Respondent in preference to that sought by the Appellant -
absence of reasons on contested issue vitiated the
Commissioners' decision to impose the condition - matter
remitted for determination of contested condition. APPEAL - second
ground of appeal that Commissioners relied on the provisions of the
wrong statute in imposing a condition requiring the Appellant to
provide financial assurance in a specified amount to the Respondent
- ground conceded by the Respondent - concession properly made -
matter remitted for determination of financial assurance issue
pursuant to correct statutory provisions. COSTS - costs follow the
event in s56A appeals - Respondent to pay Appellant's costs as
agreed or assessed.
Raphael Shin Enterprises Pty Ltd v Minister for
Planning [2018] NSWLEC
42
PROCEDURAL AND OTHER RULINGS – whether separate
question should be ordered in Class 1 proceedings – land use
definition of eco-tourist facility tied to a prospective assessment
of the proposal against "performance" criteria requiring
expert evidence – significant overlap of questions of law and
fact such that economies in time and expense unlikely to be
achieved – relevance of state significant development being
capable of securing consent even though partly prohibited.
Queensland
Boral Resources (Qld) Pty Limited v Gold Coast City
Council [2018] QCA 075
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING
– PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where the applicant
submitted that the primary judge did not give a practical,
common-sense meaning to s3.5.5.1(10) of CityPlan 2016 – where
the applicant submitted the words "appropriately" or
"to an acceptable level" ought to have been interpolated
into s3.5.5.1(10) – whether the primary judge erred in law in
interpreting s3.5.5.1(10).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where the primary judge
found that the proposal would conflict with s3.5.5.1(10)(b) of
CityPlan 2016 – where the applicant submitted the primary
judge mischaracterised the koala habitat that exists on the land as
a matter of environmental significance – where the applicant
submitted it is the koala that is a matter of environmental
significance, not its habitat – where there were 23,000
non-juvenile koala habitat trees on the subject land –
whether the primary judge erred in characterising the whole of the
quarry footprint as a matter of environmental significance for the
purposes of s3.5.5.1(10)(b).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where the applicant
conceded its proposal conflicted with the Gold Coast Planning
Scheme 2003 – where the primary judge observed that if
the applicant's proposal does not succeed under CityPlan 2016,
its prospects of success under the Gold Coast Planning Scheme
2003 are even more unlikely – whether the primary judge
failed to apply s25 and s36 of the Sustainable Planning Act
2009 (Qld) with respect to State Planning Policy 2013
and the South East Queensland Regional Plan respectively.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry in the Gold Coast Hinterland – where CityPlan 2016 was
a relevant instrument – where the applicant submitted that
the primary judge failed to give adequate reasons for his decision
– whether the primary judge erred by failing to give adequate
reasons for his decision.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
GENERALLY – where the respondent refused to grant the
applicant a permit for a material change of use of land –
where the proposal was for the development of a large hard rock
quarry – where the primary judge refused the application, but
observed that the resource should be protected for future
exploitation – where the applicant submitted this reasoning
was irrational and illogical – where the applicant submitted
unless the resource is exploited now, it will never be exploited
– where the respondent submitted the primary judge's
observation envisaged that the resource may become exploitable at
some time in the future under a later planning scheme –
whether there was irrationality in the primary judge's
determination that there were not "sufficient grounds" to
justify approval.
Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No.
2) [2018] QLC 8
ENERGY AND RESOURCES – MINERALS – MINING FOR
MINERALS – TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC
– where application for mining lease initially filed and
approved by mining registrar varies from application for mining
lease presently before the Land Court of Queensland for objection
hearing – whether change in ownership of company applying for
mining lease is sufficient to make the application substantially
different – whether the application is so different that the
application no longer complies with the requirements under the
Mineral Resources Act 1989 – whether these
differences amount to failure to comply with the requirements under
the Act – whether the applications are void – whether
the Land Court has jurisdiction in the situation where the
applications are considered to be non-compliant with the
requirements under the Act.
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS
– ENVIRONMENTAL PROTECTION LEGISLATION – where the
areas under the mining lease and environmental authority
applications are subject to the Strategic Cropping Land Act
2011 – where environmental authority cannot issue until
strategic cropping land protection decision has been made –
where strategic cropping land decision has been made –
whether the applicant for the environmental authority can meet the
conditions imposed by the strategic cropping land decision –
where strategic cropping land conditions refer to 'good quality
agricultural land' – whether rehabilitation to 'best
possible class of agricultural land' includes returning the
land to its condition prior to the mining – whether this is
possible in the circumstances – whether this is a requirement
under the Strategic Cropping Land Act 2011 – whether
evidence led that the applicant cannot possibly return the land to
this condition should result in a decision not to recommend the
mining lease be granted.
Moreton Bay Regional Council v Fairland Group Pty
Ltd [2018] QPEC 019
PLANNING AND ENVIRONMENT – APPLICATIONS –
Excusal Non-Compliance – application for reconfiguration into
175 lots, later changed application effective after decision stage
– whether non-compliance was failure to decide, or extend
time, to decide within time - Was the development application
properly made and processed - Was it capable of approval as
proposed - Whether the deemed approval is subject to council
notified conditions or imposed Minister's standard conditions -
Whether or not the court should excuse the non-compliance under s37
- Have the developers acted to their detriment in reliance upon the
deemed approval – Whether in the interests of the community
through proper planning including draft amends to planning scheme
and unplanned infrastructure.
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.