Australia: Planning & Environment News – 30 May 2018

Last Updated: 4 June 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

Federal Government and Labor strike deal on future of Murray-Darling Basin Plan
The Murray-Darling Basin Plan will remain intact with the Federal Government striking a deal with Labor to return less water to the environment in the southern basin (08 May 2018). More...

Enough capacity under construction or already built to meet the Renewable Energy Target
The Clean Energy Regulator has released information to the market that shows there is now enough new renewable energy project capacity under construction or already built to meet the 2020 Renewable Energy Target (11 May 2018). More...

Government statement: Expert Health Panel's Independent PFAS Advice
An independent expert health panel established by the Australian Government has concluded there is mostly limited, or in some cases no evidence, that human exposure to PFAS is linked with human disease (07 May 2018). More...

'Limited or no evidence': PFAS report finds no strong link to human health
Anxious towns around Australia contaminated with PFAS chemicals are told there is limited or no evidence to link exposure with human disease, but health effects cannot be ruled out (07 May 2018). More...

Amendments to the EPBC Act list of threatened species
The Assistant Minister has approved the inclusion of 41 species, transfer of 6 species, removal of 3 species on the list of threatened species under the EPBC Act (11 May 2018). More...

In the media – Victoria

Fine for Shepparton company
Auto-retailer Overport Corporation has been fined $7,929 by Environment Protection Authority Victoria (EPA) for allowing industrial waste to be dumped at its Bridgestone Service Centre site on Dookie Road Shepparton (15 May 2018). More...

EPA Infringement Notice Repayments
Through a regular internal review, EPA has identified an error in an old litter infringement dispute process that may have adversely affected a small number of people (11 May 2018). More...

In the media – New South Wales

New design guide puts heritage in front of mind
The Heritage Council of NSW has released a draft design guide intended to make it easier to manage heritage design works (18 May 2018). More...

$30 million infrastructure boost for east Sydney
The City of Sydney is investing $30 million on major projects to improve the public domain and public spaces across the city's east over the next 10 years (17 May 2018). More...

New mine subsidence development guidelines rolled out
Subsidence Advisory NSW (SA NSW) has announced changes to the approval process for development applications in mine subsidence districts. Councils and Accredited Certifiers can now approve low risk development applications without requiring referral to SA NSW (15 May 2018). More...

EPA: Streamlined approach to sustainable forestry
Streamlined legislation for native forestry that delivers increased regulatory certainty and greater enforceability has been introduced into Parliament (15 May 2018). More...

PFAS precautionary advice still in place
The precautionary advice currently in place in communities across NSW impacted by PFAS will remain in place following the release of the Federal Government's report into health effects from PFAS (10 May 2018). More...

Residents 'devastated' as mine in PFAS contamination zone gets green light
Residents in the Hunter region say they are gutted by the approval of a controversial sand mine in a PFAS contamination zone (09 May 2018). More...

In the media – Queensland

Linc Energy fined $4.5m for pollution amounting to 'ecological vandalism'
The failed Queensland energy company Linc Energy has been slapped with one of the state's largest environmental fines and ordered to pay $4.5m for contaminating farmland in the state's western downs. The prosecution seen as key test of Queensland's ability to hold mining companies to account (11 May 2018). More...

Statement from the Minister for Environment: Linc Energy
The Palaszczuk Government welcomes the $4.5 million in fines and convictions recorded against Linc Energy Limited, which is the highest penalty ever imposed under Queensland law for environmental offending (11 May 2018). More...

Resident wins appeal against Sunland's Brisbane Skyscrapers
Sunland's controversial "Grace on Coronation" development in Brisbane's inner west has hit yet another roadblock, with a neighbouring resident winning an appeal against the approval of the three-tower development (10 May 2018). More...

Developer lodges plans for 'Ultra High-End' Tower in Broadbeach
Brisbane real estate director John Kubatov has lodged plans with Gold Coast City Council for what would be the tallest residential building in Broadbeach (10 May 2018). More...

Queensland beef families lead the way on farm succession rebates
Queensland beef producers and their family members have led the way in taking up rebates for farm succession planning advice (09 May 2018). More...

In Practice and Courts

Commonwealth

Invitation for written submissions: Exploring ways to improve farmer's interaction with theEnvironment Protection and Biodiversity Conservation Act 1999
Dr Craik invites written submissions from farmers and any interested stakeholders, comments are invited from 7 May until 15 June 2018. More...

Budget 2018-19
Budget information for the Clean Energy Regulator is available within the Department of the Environment and Energy portfolio budget statement (09 May 2018). More... More...

Announcements, Draft Policies and Plans released 2017

Victoria

Safeguarding the future of the Yarra River: Consultation
Community input is being sought to help shape the future development for the Cultural River Precinct – a corridor of the Yarra River between Bulleen Park and Banyule. The feedback will inform the development of a draft Cultural River Precinct Structure Plan, which will be released for further public consultation (10 May 2018). https://engage.vic.gov.au/cultural-river-precinct-structure-plan

Power station review- have your say
The EPA is now inviting submissions from the community to its review of the Latrobe Valley brown coal-fired power station EPA-issued licences. You can make your submission to EPA's review online, by going to the Review of Latrobe Valley brown coal power station licences on the Engage Vic website. More...

New South Wales

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. 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

Land Valuations Online
The new land valuation data for 2018 can be accessed online here. Hard copies of the valuation list can be viewed at Department of Natural Resources, Mines and Energy business centres and local government offices during normal business hours until close of business on 5 June 2018.

Queensland Consultations

Developer donations bill reintroduced to parliament
The Queensland Government has re-introduced legislation to ban donations from property developers to state and local government candidates. After previous legislation lapsed with the dissolution of the last parliament, the Government has reintroduced its Bill as 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, when the first Bill was introduced.

DNRME Current Consultations

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

LCM Calvary Health Care Holdings Ltd v Glen Eira CC (Red Dot) [2018] VCAT 655
NATURE OF CASE - Application to redevelop the Bethlehem Hospital including in-patient facility (sub-acute) public services and base for outreach services, 83 bed residential aged care facility, 69 independent living units/retirement village units, medical suites and associated uses.
LOCATION OF PASSAGE OF INTEREST - Appendix A for question of law; [227] – [237] regarding weighting of policies.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - LAW – issue of interpretation or application. Characterisation of the independent living units/retirement village units.
LEGISLATION – interpretation or application of statutory provision - Application of the transitional provisions in the Neighbourhood Residential Zone.
POLICY – interpretation or application of policy- Weight given to local policy acknowledging the role of the subject land as a hospital and encouraging the co-location of facilities such as residential aged care and retirement village with the purpose of the Zone and character considerations.

Sargentson v Campaspe SC (Red Dot) [2018] VCAT 710
NATURE OF CASE - Construction of two double storey attached dwellings and an associated re-subdivision of two existing lots into two newly configured lots.
LOCATION OF PASSAGE OF INTEREST - Paragraphs [6]-[85].
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE.
PLANNING SCHEME – interpretation or consideration of VPP provision. Consideration of the requirements of clause 32.08-4 of the General Residential Zone of the Campaspe Planning Scheme, as well as the meaning of the term Garden area defined in clause 72 of the Scheme.
CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable. In the process of applying the provision to the proposal at hand, consideration was given to whether further clarity could be provided as to the intention of the provision.

New South Wales

Prilis v Inner West Council [2018] NSWLEC 1227
APPEAL – modification application – role of the Court in considering a modification application – modification sought change from shared facilities to self-contained boarding rooms – whether substantially the same – whether the change creates additional parking demand – whether a condition limiting occupancy numbers can be modified – relevance of change to contributions plan.

Kamenev v Woollahra Municipal Council (No 2) [2018] NSWLEC 1228
DEVELOPMENT APPLICATION: construction of a new dwelling; impacts on harbour views from neighbouring properties and the public domain; whether a current development consent for the site is a relevant matter for consideration.

Redman v McSwiney and Maclure [2018] NSWLEC 1230
TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree has caused damage – whether further damage is likely – tree removal would be disproportionate.

Knight v Simmons [2018] NSWLEC 1231
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property including sewer pipes – terracotta sewer pipes – root identification – one of two trees has been removed – whether the remaining tree has caused damage – compensation sought for past pruning costs – compensation sought for sewer repair – reasonable attempt to reach agreement required at s.10(1) – notice of the application required at s.8 – self-represented litigant – could the respondents have prevented the damage.

Inner West Council v Prilis[2018] NSWLEC 72
ENVIRONMENTAL OFFENCES: Use of land without consent – plea of guilty – sentencing principles – environmental harm – aggravating and mitigating factors – agreement to pay costs, but amount not settled – fine proposed.

Mondino v Djordjevic [2018] NSWSC 673
PRACTICE AND PROCEDURE – application for stay of execution refused on the grounds of delay – restitution possible if plaintiff's appeal to this Court successful – Ms Djordjevic alleged that Mr Mondino, her neighbour, had negligently conducted an illegal burn of dry, green waste on 26 December 2012 which had damaged her own property. The claim was defended by Mr Mondino. Following a contested hearing in the Local Court, judgment was entered on 18 October 2016 in favour of the plaintiff in the sum of $54,881.60.

Ardill Payne and Partners v Byron Shire Council [2018] NSWLEC 1220
APPEAL: application for onsite sewage management facility for future residential dwelling; quarry rehabilitation; ecologically sustainable development; land use conflict; protection of environment; equity; contamination.

Blacktown City Council v Saker (No 2) [2018] NSWLEC 71
CIVIL ENFORCEMENT - action to restrain unlawful depositing of fill material and earthworks, and to require their removal and remediation of site - such development prohibited or permissible only with development consent which had not been obtained – orders under the then s.121B of the Environmental Planning and Assessment Act 1979 to cease development – failure to comply with orders – matter heard ex parte – respondent an undischarged bankrupt – declaratory and injunctive relief sought – relief granted – indemnity costs ordered

Strathfield Municipal Council v C & C Investment Trading Pty Ltd (No 3) [2018] NSWLEC 69
CIVIL ENFORCEMENT: Development departed in key respects from court-granted consent – boarding house development – heritage conservation area and heritage item affected – modification application rejected – no attempt to moderate environmental impacts – occupation certificate also challenged – some rooms leased before certificate issued – residents joined as respondents – Class 1 proceedings pending.

Joseph v Sutherland Shire Council [2018] NSWLEC 1193
DEVELOPMENT APPEAL: residential flat building – affordable rental housing – compatibility with existing and desired future character - variation to height standard - consistency with amalgamation plan for Caringbah Medical precinct – whether the amenity of the development is acceptable – whether the proposed development affects future development of adjoining sites – precedent.

Ubaldi v Council of the City of Sydney [2018] NSWLEC 1216
DEVELOPMENT APPLICATION: change of use from ground floor commercial tenancy to a residential dwelling and minor alterations and additions; whether the apartment has an acceptable level of internal amenity; impact on the public domain.

Queensland

Phipps v The Chief Executive Department of Local Government, Infrastructure and Planning; Phipps v Somerset Regional Council [2018] QPEC 25
PLANNING AND ENVIRONMENT – COSTS – Where appellant persisted in appeal without expert evidence and in the face of adverse reports from experts engaged by other parties – whether frivolous or vexatious - judgment dismissing the appeals insofar as they sought an approval for an expansion of the appellants intensive poultry farm from an existing.
250,000 bird operation to a 700,000 bird farm, sought an approval in part to allow their existing farm to be operated in accordance with the mode of operation sought in their development application. After taking further advice from the experts, the other parties did not oppose that approval in part.

Thomco (No. 2087) Pty Ltd v Noosa Shire Council [2018] QPEC 024
PLANNING AND ENVIRONMENT – APPLICATION IN PENDING PROCEEDING – STRIKE OUT APPLICATION – whether summary disposition is appropriate – where the respondent submits the dispute is not amenable to summary disposition.

Wagner Investments Pty Ltd v Toowoomba Regional Council [2018] QPEC 023
PLANNING AND ENVIRONMENT – APPLICATION IN PENDING PROCEEDING – EXPERT EVIDENCE – whether the issues the subject of the application should be heard and determined as a preliminary point – the proper utilisation of expert evidence.

Legislation

Commonwealth

Bills

Water Amendment Bill 2018
Introduced HR 10/05/2018 - The Water Amendment Bill 2018 (the Bill) will amend the Water Act 2007 (the Water Act) to enable the Commonwealth Water Minister (the Minister) to direct the Murray-Darling Basin Authority (the Authority) to prepare an amendment to the Basin Plan 2012 (the Basin Plan) that is the same in effect as a Basin Plan amendment that has previously been disallowed, or taken to have been disallowed, by either House of Parliament.

Regulations

Amendment of List of Exempt Native Specimens – Australia's High Seas Permits, May 2018
16/05/2018 – This instrument amends the List of Exempt Native Specimens Instrument 2001 to include specimens taken in the Commonwealth-managed High Seas Permits Fishery. The specimens are included in the list until 9 October 2026. More...

Amendment to the lists of threatened species, threatened ecological communities and key threatening processes under sections 178, 181 and 183 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (205)
10/05/2018 - This instrument amends the list of threatened species under section 178 of the Environment Protection and Biodiversity Conservation Act 1999 by including 41 species in the list, transferring 6 species to a different category, and deleting three species from the list. More...

Victoria

Statutory Rules made

No 38: Building Regulations 2018
Commencement: 02/06/2018: reg. 3 Not yet in operation: Regs 1-286: on 02/06/2018: reg. 3 Sunset Date: 27/03/2028.

No 54: Heritage Amendment Regulations 2018
Date of Making: 15/05/2018 Commencement: 01/06/2018: reg. 3 Not yet in operation: Regs 1-4: on 01/06/2018: reg. 3 Sunset Date: 15/05/2028.

Victorian legislation can be accessed here www.legislation.vic.gov.au

Queensland

Bills

Local Government (Councillor Complaints) and Other Legislation Amendment Bill 2018
Stage reached: Consideration in detail on 16/05/2018.

Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill 2018
Stage reached: Consideration in detail on 16/05/2018.

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.

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Peter Holt
Gerard Timbs
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