In the media – National
Developers favour townhouses in slowing property
market
Developers are moving away from high density sites in
favour of lower density projects as sales of high-rise,
investor-driven development makes way for the owner-occupiers and
downsizer demographic, according to recent research from Knight
Frank's Australian Residential Development Review 2018 (27
April 2018).
More...
APRA scraps investor loan growth cap
The Australian Prudential Regulation Authority has
announced plans to remove the 10 per cent investor loan growth
benchmark and replace it with more permanent measures to strengthen
lending standards (26 April 2018).
More...
Harnessing clean drinking water using solar power
The Australian Renewable Energy Agency
(ARENA) has announced an Australian-first trial of
drinking water systems that produce clean drinking water drawn
directly from the air using solar power (30 April 2018).
More...
Australia's green building floor space has
boomed
In 2006 less than one per cent of Sydney and
Melbourne's CBD commercial floorspace was certified green.
Twelve years later we're sitting at 46 per cent for Sydney and
28.8 per cent for Melbourne (03 May 2018).
More...
Taking action on waste & recycling
Commonwealth, state and territory environment ministers
have agreed to cut Australia's supply of waste, increase our
recycling capability and increase the demand for recyclable
products in response to China's new restrictions on recyclable
waste (27 April 2018).
More...
In the media – Victoria
Fixing Matthew Guy's mess at Fishermans Bend
The Victorian Budget 2018/19 includes $5 million to complete the planning and begin the delivery of the services and infrastructure that turn Fishermans Bend into a world-class neighbourhood. This includes public transport planning for a new connection between Fishermans Bend and the CBD (29 April 2018). More...
Making Victorian buildings safer
The Victorian Budget 2018/19 includes $25 million to give
authorities the resources they need to check more buildings for
dangerous and combustible materials – and crack down on
builders who flout the law. The Victorian Building Authority
(VBA) is charged with the task of assessing 1,369
priority sites with planning or building permits identified by the
Taskforce (29 April 2018).
More...
In the media – New South Wales
Scientists propose declaring brumbies a threat to
environment
Plans are underway to declare habitat loss from NSW
brumbies a key threatening process, with their hooves and grazing
habits destroying environments (03 May 2018).
More...
Setting new standards for sustainable buildings
The City of Sydney has proposed stronger sustainability
standards for new commercial buildings to reduce emissions and stop
more waste from going to landfill. The amendment proposes a minimum
5.5 star National Australian Built Environment Rating Scheme
(NABERS) rating for common areas of new commercial
office buildings or major commercial office refurbishments of 1,000
square metres or more (03 May 2018).
More...
NSW successfully calls for national report on liability
for rectifying unsafe aluminium cladding
The NSW Government has successfully called for a national
report to examine who is liable for having unsafe cladding
rectified on buildings, Minister for Better Regulation Matt Kean
said. NSW is leading the nation to address the issue of who should
pay for rectification work, if it's required, and what existing
remedies are in place for affected building owners (27 April 2018).
More...
Home completions record smashed with more than 40,000
constructed in Sydney for first time ever
The NSW Government has smashed the record for the number
of Sydney homes built in a 12-month-period than ever before,
bursting through the 40,000 completions barrier for the first time
in the city's history (26 April 2018).
More...
Home Building Reforms to give property owners greater
protections against unsafe cladding
Property owners whose buildings have unsafe cladding now
have a greater opportunity to have rectification work paid for by
the builder. The Minister for Better Regulation Matt Kean said an
amendment to home building laws means unsafe external wall cladding
will now be classified as a major defect, giving residents longer
to have it rectified (22 April 2018).
More...
In the media – Queensland
Prime Townsville waterfront CBD site to become
world-class marine science precinct
Port of Townsville's Harbour City Project will kick
off with the development of a key parcel of land as an iconic
global centre of excellence for marine science and research (04 May
2018).
More...
Queensland passes land-clearing laws after gruelling
three-day debate
The Queensland parliament has passed a suite of new
land-clearing laws, a move welcomed by environmental groups as a
step towards curbing the state's soaring deforestation rates
(04 May 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. Energy Minister Dr Anthony Lynham
said 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 (01
May 2018).
More...
EDO Queensland: New FA and mine rehab framework receives
Committee support – loopholes remain
The Economics and Governance Committee of Queensland
Parliament tabled its report 'No. 6, 56th Parliament - Mineral
and Energy Resources (Financial Provisioning) Bill 2018' on 20
April 2018. Improvements are still needed (30 April 2018).
More...
First Southport Spit masterplan workshop kicks off
Community members and key stakeholders have taken the
first steps towards shaping the future of the Southport Spit (28
April 2018).
More...
Brisbane business slapped with 56 environmental charges
over tyre stockpile fire risk
The Department of Environment and Science charges
businessman Tony Di Carlo and his company with 56 environmental
breaches over the fire risk at a used tyre stockpile in Logan,
south of Brisbane (24 April 2018).
More...
In Practice and Courts
Commonwealth
Department of Environment and Energy: Current
consultations
Proposed national approach to product stewardship action on
environmental impacts of products - consultation – closed
04 May 2018.
Review of the Product Stewardship Act 2011, including the
National Television and Computer Recycling Scheme -
consultation dated 29 June 2018.
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 21 May 2018.
More...
Approvals
Melbourne C281 includes an updated Games Village Project,
Parkville, September 2015 incorporated document to allow an
increase to the maximum number of habitable storeys from 11 to 17
storeys.
Melbourne C318 rezones 2 St Andrews Place, East Melbourne from
Public Use Zone 3 (Health and Community) to Mixed Use Zone, applies
an Environmental Audit Overlay, Design and Development Overlay
Schedule 71 and deletes Design and Development Overlay Schedule 13
(Parliament Area).
Melbourne C333 amends Schedule 63 to Clause 43.02 Design and
Development Overlay to change the maximum height allowable in Area
A1 of the Macaulay Urban Renewal Area, correcting an error which
was inadvertently approved as part of Melbourne Planning Scheme
Amendment C190 (Part 1).
New South Wales
Natural Resources Access Regulator Act
2017 (NSW)
This Act establishes the Natural Resources Access
Regulator, including transferring staff and regulatory functions
from WaterNSW. Certain
provisions commenced on 30 April. Initial functions, under the
Water Management Act 2000, are listed
in Schedule 2.
More housing options for NSW: Low Rise Medium Density
Housing Code
The
new Code will allow one and two storey dual occupancies, manor
houses and terraces to be built under fast-track
complying development approval across NSW and also promotes
good design for medium density housing. Low-rise medium density
housing as complying development is only allowed where medium
density development is already permitted under a council's
local environmental plan. The Medium Density Housing Code will
commence on 6 July 2018.
Greenfield Housing Code
The 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).
Community Consultations on Exhibition
Policies
Amendments to Retail Land Use Definitions – End date
18/05/2018.
The way we shop is constantly changing. The Department has
responded to this by proposing
new package planning amendments which are now on
exhibition.
Queensland
New Land Court practice directions
On 30 April 2018, the Land Court issued two new practice
directions.
Practice direction 3 of 2018 relates to the procedure for court
managed expert evidence, and is accompanied by a
guideline.
Practice direction 4 of 2018 sets out the procedure for mining
objections hearings. The practice directions and guideline will be
published on the Court's webpage shortly.
DNRME Current Consultations
Proposed Ross River Solar Farm
Have your say on the proposed Ross River Solar Farm.
Closes 25 May 2018.
More...
Proposed Emerald Solar Park
Have your say on the proposed Emerald Solar Park. Closes
28 May 2018.
More...
Have your say: on the review of the Environmental Chain
of Responsibility laws
The Department of Environment and Science seeks your
feedback, to assist with the review of specific provisions of the
Environmental Protection (Chain of Responsibility) Amendment
Act 2016 (CORA). CORA
was introduced to provide the Queensland Government with additional
tools to ensure that companies and associated parties meet their
environmental responsibilities. The department is inviting comments
on the operation of the CORA provisions that enable environmental
protection orders to be issued to 'related persons' between
23 April to 22 May 2018. Visit the website to view the
draft review report and information on how to
make a submission.
Draft Queensland Solar Farm Guidelines
The Queensland Government recognises that the outstanding
climatic conditions of the State make it an ideal hub for solar
generation, which will go a long way towards helping the State
achieve its 50% renewable target in the next 12 years. The draft
guidelines can be accessed
here. More information about dates and locations of community
forums, and where to send your written submissions can be found
here.
Cases
Victoria
St Vincent's Healthcare Limited v Yarra
CC [2018] VCAT 661
Yarra Planning Scheme; review under s.80; major expansion
to hospital; need; site includes properties on the Victorian
Heritage Register; entire site in local heritage precinct; legal
question; heritage impacts; public interest; pilgrimage; parking
supply.
Ausun Property Developments Pty Ltd v Maroondah
CC [2017] VCAT 653
Application under section 77 of the Planning and
Environment Act 1987 – to review the refusal to grant a
permit. Construction of eight double storey dwellings and the
removal of two trees.
Planning & Design Pty Ltd v Moreland CC
[2018] VCAT 637
Moreland Planning Scheme; neighbourhood character and
medium density housing; incremental change area; two storey
development on corner sites; south facing living areas and
balconies; number of crossovers and loss of on-street car parking
spaces.
Sharma v Monash CC [2018] VCAT
636
Monash Planning Scheme; General Residential Zone Schedule
2; Two, two storey dwellings; Housing diversity; Visual bulk;
Neighbourhood character; Tree retention and landscaping; Internal
amenity. No permit.
CBD Landcorp Pty Ltd v Whitehorse CC
[2018] VCAT 445
Section 77 Planning and Environment Act 1987;
Whitehorse Planning Scheme; Commercial 1 Zone; Residential Hotel;
Waiver of car parking; Car parking on another side; Car parking in
a metropolitan activity centre; Equitable Development.
New South Wales
Triabunna Investments Pty Ltd v Minister for the
Environment and Energy (No 2) [2018] FCA
598
COSTS – circumstances in which some reduction in
costs to successful parties may be warranted. Administrative
Decisions (Judicial Review) Act 1977 (Cth); Environment
Protection and Biodiversity Conservation Act 1999 (Cth).
Warrumbungle Shire Council v Yongmei Ou
[2018] NSWLEC 70
CIVIL ENFORCEMENT – partial erection of building
without development consent – use of land for residential
accommodation without development consent – installation of
moveable dwelling without approval – orders to remedy and
restrain breaches – stay of orders for limited time –
orders for substituted performance if non-compliance with court
orders.
Kamenev v Woollahra Municipal Council
[2018] NSWLEC 1210
JOINDER: Application for joinder; Statutory tests; Issues
proposed to be raised by Applicants for Joinder; Interests of
justice; Public interest; Double Bay Marina order; Application
dismissed.
Shoalhaven City Council v Hayes
[2018] NSWLEC 65
PROSECUTION - Charge 1 - vegetation clearing and cutting
down trees on Lots 1 and 2 in Deposited Plan 1008950 in breach of
s.125(1) of the Environmental Planning and Assessment Act
1979 - evidence establishes the plea was appropriate - extent
of environmental harm caused - whether aggravating factor - held
not to be aggravating factor - vegetation clearing and tree-cutting
was undertaken for financial benefit - this constituted an
aggravating factor - assessment of seriousness of the offending
conduct - offending conduct at the upper end of the low range of
seriousness. PROSECUTION – Charge 2 - vegetation clearing and
cutting down trees on Lot 62 in Deposited Plan 755928 in breach of
Native Vegetation Act 2003 - plea of guilty - evidence
establishes the plea was appropriate - extent of environmental harm
caused - whether aggravating factor - held not to be aggravating
factor - vegetation clearing and tree-cutting was undertaken for
financial benefit - this constituted an aggravating factor -
assessment of seriousness of the offending conduct - offending
conduct at the upper end of the low range of seriousness.
PROSECUTION – Charge 3 - vegetation clearing and cutting down
trees on Lots 1 and 2 in Deposited Plan 1008950 in breach of
Native Vegetation Act 2003 - plea of guilty - evidence
establishes the plea was appropriate - extent of environmental harm
caused - whether aggravating factor - held not to be aggravating
factor - vegetation clearing and tree-cutting was undertaken for
financial benefit - this constituted aggravating factor -
assessment of seriousness of the offending conduct - offending
conduct at the upper end of the low range of seriousness. PENALTIES
- discount for early plea - Defendant to be convicted of each
charge - need to provide for both specific and general deterrence -
indicative starting sentence of $50,000 fine for each offence -
discount of 30% for each offence (including discount for the early
guilty pleas) results in an appropriate starting penalty of $35,000
for each offence - offending arising from one course of conduct -
consideration of accumulation and totality - adjustment of
penalties for Charge 2 (to $28,000) and Charge 3 (to $21,000) -
total penalty of $84,000 imposed.
Barrak v City of Parramatta Council
[2018] NSWLEC 67
APPEAL – s.56A appeal against decision of
Commissioner - challenge to Commissioner's use of objective of
Height of Buildings clause of Local Environmental Plan - whether
contested objective had work to do - role of provision in the
statute compared to the role of an environmental planning
instrument created as a subordinate document - a provision in an
environmental planning instrument cannot constrain a mandated
requirement for an assessment pursuant to the statute -
construction of the provisions of the environmental planning
instrument - power to "read in" additional words -
reading in not necessary for sense of provision in Local
Environmental Plan - no vitiating defect in Commissioner's
fact-finding - fact-finding not infected by unreasonableness -
appeal dismissed.
SHMH Properties Australia Pty Ltd v City of Sydney
Council [2018] NSWLEC
66
APPEAL – modification of development consent
– development consent to change use of building to boarding
house and associated alterations to building – deletion of
deferred commencement conditions requiring submission of BASIX
certificate – whether development is "BASIX affected
development" – whether building is "BASIX affected
building" – whether certain units in the boarding house
are "dwellings" – modification refused.
Marshall Rural Pty Ltd v Basscave Pty Ltd (No
3) [2018] NSWLEC
62
PRACTICE AND PROCEDURE – whether declaratory and
other relief sought by consent orders ought be granted – that
there is legitimate utility in making declarations where to do so
will reinforce a settlement and thereby ensure a just, quicker and
cheaper resolution of the proceedings in accordance with s.56 of
the Civil Procedure Act 2005 – declarations and
orders made.
Gloucester Resources Limited v Minister for Planning
and Environment (No 2) [2018] NSWLEC
1200
PARTIES – joinder of party – state
significant development open cut coal mine- community group raising
issues not addressed by existing parties – permissibility of
the proposed development – social impact on the residents and
community – climate change – intergenerational equity
– joinder of community group necessary to sufficiently
address issues.
Majzoub v Liverpool City Council
[2018] NSWLEC 1195
DEVELOPMENT APPEAL: shed constructed without consent
– not exempt development – appeal against refusal of
building certificate – rural land – effectiveness of
landscaping as screening – visual impact – impact on
character.
TC (Tallwoods) Pty Ltd v Liverpool City Council (No
2) [2018] NSWLEC
60
PROCEDURE – consent orders allowing filing of two
related Class 1 applications – application for expedition for
hearing of the related Class 1 applications – discretionary
factors justify expedition, specifically that the subject matter of
the litigation will be lost – expedition granted.
Richard Capuano v Roads and Maritime
Services [2018] NSWLEC
59
COMPULSORY ACQUISITION – land valuation –
subject property acquired for road project – dispute as to
market value – application of the comparable sales method
– whether comparable sales should be adjusted to account for
public purpose.
Queensland
Bell v Brisbane City Council [2018]
QCA 084
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING
– DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF
CONSENT AUTHORITY – CONSIDERATION OF PARTICULAR MATTERS
– AMENITY AND COMPATIBILITY – PARTICULAR CASES –
where the second respondent sought and obtained approval from the
first respondent for a material change of use to develop the former
Australian Broadcasting Commission site at Toowong for residential
use – where the proposed development is three towers that
each significantly exceed the relevant height restrictions in the
applicable planning scheme – where the applicant lives on
adjoining land and made a submission about the development
application to the first respondent – where the
applicant's case is that the proposed development does not
comply with the planning scheme – where the Planning and
Environment Court concluded that there were sufficient grounds, in
the public interest, to justify the decision to approve the
proposed development despite the conflict with the planning scheme
– whether the Planning and Environment Court's conclusion
resulted from errors of law by the judge.
Sunland Group Limited & Sunland Developments No 22 Pty
Ltd v Gold Coast City Council [2018] QPEC
022
PLANNING AND ENVIRONMENT – APPLICATION –
DETERMINATION OF AN ISSUE AT A PRELIMINARY STAGE OF PROCEEDING
– where council gave a document that purported to be an
infrastructure charges notice – where the document included a
section entitled information notice – where the text in the
information notice contained no findings of fact and did not refer
to material on which the findings were based – whether the
information notice contained reasons for the purpose of s.637 of
the Sustainable Planning Act 2009 – whether the
failure to give reasons resulted in invalidity of the
infrastructure charges notice – whether the court has power
to make a declaration about the validity of an infrastructure
charges notice – whether discretionary considerations warrant
refusal of the application for declarations.
Jakel Pty Ltd v Brisbane City Council
[2018] QPEC 021
PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of a development application seeking preliminary
approval for building work (relocation of pre-1947 dwelling house
and multiple unit dwelling) and development permit for material
change of use (multiple unit dwelling – seven units) and a
development permit for reconfiguring a lot (two into two lots)
– whether the appeal is to be decided under the
Sustainable Planning Act 2009 assessment and decision
regime or the Planning Act 2016 regime – whether the
development is within easy walking distance of a public transport
node – whether the development is in close proximity to major
transport nodes – whether the proposed development will have
unacceptable impacts on the character and amenity of the area
– whether the proposed landscaping and open spaces are
adequate – whether the access and servicing arrangements are
acceptable – whether the development ought be approved.
Fairmont Group Pty Ltd v Moreton Bay Regional
Council [2018] QPEC
020
PLANNING AND ENVIRONMENT – APPLICATION –
DECLARATORY PROCEEDINGS – where the applicant wishes to clear
vegetation – where the vegetation is category X vegetation
under the Vegetation Management Act 1999 – where the
land is freehold land – whether clearing of vegetation on
freehold land that is identified as category X under the
Vegetation Management Act 1999 is accepted development for
the Planning Act 2016 – whether a planning scheme
can make operational work for clearing category X vegetation
assessable development.
Legislation
Commonwealth
Renewable Energy (Electricity) (Zone Ratings and Zones for Solar
(Photovoltaic) Systems) Instrument
2018
04/05/2018 - This instrument prescribes the zone
ratings and zones for the purposes of calculating the number of
Small-scale Technology Certificates that may be created for solar
(photovoltaic) systems.
Queensland
Bills
Vegetation Management and Other Legislation Amendment Bill
2018
Introduced on 8/03/2018 Stage reached: Passed with amendment
on 3/05/2018.
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.