Australia: Planning & Environment News – 15 May 2018

Last Updated: 21 May 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

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.

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Peter Holt
Gerard Timbs
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