Australia: Planning & Environment News – 25 June 2018

Last Updated: 2 July 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

New project to ensure locals have their say on urban planning
A new project will help locals to have their say when it comes to urban development, allowing local councils to capture online opinions from residents to improve decision-making. Federal Minister for Urban Infrastructure and Cities Paul Fletcher said the project aimed to increase community involvement in the planning and evaluation of major projects in the cities (13 June 2018). More...

Australia Post delivers on sustainability
Australia Post has launched its very first Environmental Action Plan, committing it to reduce carbon emissions by 25 per cent by 2020, and saving $10 million every year through environmentally sustainable programs (07 June 2018). More...

NABERS for Apartments is a "watershed moment" for strata sustainability
NABERS for Apartment Buildings has gone live and is expected to be a major shakeup for owners corporations, investors, developers and builders. The new NABERS Co-assess and Waste tools – will measure and score energy and water used in apartment common property areas (07 June 2018). More...

In the media - Victoria

Supreme Court backs EPA clean up notice on Sale land
A Supreme Court ruling on contaminated land at an aged care facility in Gippsland has confirmed EPA's power to require the owners of property to take action on pollution that is on their land (14 June 2018). More...

Victorian builder is creating Australian-first energy efficient housing development
A Victorian builder is designing and building Australian homes greener and more energy efficient than ever before with a landmark new project (14 June 2018). More...

Construction Begins On Australia's Largest Wind Farm
Construction has begun on the Stockyard Hill Wind Farm, which will see Western Victoria become home to Australia's biggest wind farm generating enough electricity to power more than 340,000 households (14 June 2018). More...

Frasers gets green light for "world's most sustainable shopping centre"
Frasers Property Australia's ambitious plan to create the world's most sustainable shopping centre has received planning approval from Melbourne's Whitehorse City Council (12 June 2018). More...

In the media - New South Wales

NSW Budget 2018: Sustainability Bonds herald new era of investment
The NSW Government will for the first time issue sustainability bonds, the proceeds of which will fund projects that deliver environmental and social benefits to the residents of NSW (15 June 2018). More...

NSW budget 2018: $23 million for water reform
The NSW Government is backing its pledge to build a world-class regional water management and compliance regime with a 2018/19 Budget commitment of more than $23 million over the next two years (08 June 2018). More...

Short-term holiday letting plan a win-win
The Government's short-term holiday letting plan will support the sharing economy and give consumers more choice while cracking down on bad behaviour, Minister for Better Regulation Matt Kean said. New state-wide planning rules would also come into force (05 June 2018). More...

Update on the Fire Safety and External Wall Cladding Taskforce
In total, Fire Rescue NSW has visited, inspected and assessed over 2280 sites identified through the initial audit, as well as analysis of development approvals by the Department of Planning and Environment, buildings identified by local councils, and visual observations by Fire Rescue NSW officers (04 June 2018). More...

Waste transporter ordered to pay $85,000 for lying about waste disposal
The NSW Environment Protection Authority (EPA) welcomed the Land and Environment Court's decision to penalise a Kemps Creek based waste transporter $40,000 for providing false information about waste disposal (03 June 2018). More...

In the media - Queensland

Tech trial gives Logan locals more say in urban planning
Logan is one of two Australian cities that will trial new technology that gives locals more say in shaping cities by allowing councils to capture online opinions and improve decision making (13 June 2018). More....

Brisbane council's ban on townhouses, apartments in low density areas is 'backwards'
A Brisbane City Council plan to stop townhouses and apartments being built in areas for single homes is "going backwards" in terms of urban planning, experts say (08 June 2018). More...

Billion-dollar wind farm approved in central Queensland
A 195-turbine wind farm approved by the Queensland Government will be one of the largest in Australia, and is predicted to generate 3 per cent of the state's electricity needs (06 June 2018). More...

Industry responds to developer donation ban Bill
The Property Council has provided a submission in response to the Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill 2018. The Bill seeks to give effect to the Government's proposed ban on political donations from property developers. This has been opposed by the Property Council on the basis that it singles out the property sector for inequitable treatment under electoral laws, and unduly brands Queensland's biggest non-government employer as a corruption risk (06 June 2018). More...

Green light for $1 billion Central Queensland wind farm
Queensland is hosting wind farms at a rate of knots, with the Palaszczuk Government providing development approval for up to 195 wind turbines at Clarke Creek, 150 kilometres north west of Rockhampton (05 June 2018). More...

In Practice and Courts

Commonwealth

Climate change related risks and opportunities: a toolbox for organisations
William P. Bell; Energy Economics and Management Group (UQ), Centre for Policy Futures (UQ)
This presentation provides a toolbox of five tools for organisations to start their climate change related strategy, financial disclosure and risk management. The toolbox was presented to the Governance and Risk Management Forum in Brisbane on the 8th June 2018. More...

Announcements, Draft Policies and Plans released 2017

Victoria

Guidance on negotiating voluntary affordable housing agreements under the Planning and Environment Act
On 1 June 2018 several amendments to the Planning and Environment Act 1987 (the Act) came into operation. The amendments to the Act facilitates voluntary agreements for the provision of affordable housing as part of development applications. DELWP has released web-based guidance on negotiating voluntary affordable housing agreements under the Act (11 June 2018). More...

City of Melbourne discussion paper
Feedback on the discussion paper is part of consultation on the Draft Waste and Resource Recovery Strategy 2030. The community can submit opinions, ideas and feedback via City of Melbourne's Waste and Resource Recovery Strategy website (05 June 2018).

Red Dot Decisions
Greater Geelong CC v C D Recycling Pty Ltd (Red Dot) [2018] VCAT 831 (31 May 2018)
Applications for cancellation and/or enforcement of a permit for materials recycling.

New South Wales

New short-term holiday letting regulations
The regulatory framework is designed to ensure that local communities continue to gain from the economic benefits of short-term holiday letting, while protecting neighbours from anti-social behaviour. The new framework will include new planning laws, an industry Code of Conduct and new provisions for strata scheme by-laws. More...

New legislation – Crown Land Management Act
The Crown Land Management Act 2016 (the Act) implements reforms identified through the comprehensive review of Crown land management and follows over four years of engagement with the community on the future of Crown land. The Act will come into force on 1 July 2018. All existing Crown land legislation remains in place until the rest of the new Act commences. The department's policies guide our decisions and actions in implementing the legislation. More...

Western Lands Advisory Committee
From 1 July 2018, a new Western Lands Advisory Committee will be formed. The Western Lands Advisory Committee will continue the role of the current Western Lands Advisory Council. More...

Consultation: proposed amendments to cap factors for water recovery accounting in NSW
The NSW Department of Industry – Water has invited water entitlement holders and other stakeholders to provide feedback on proposed amendments to long-term diversion limit equivalence factors for NSW (also known as cap factors), to replace those originally adopted in 2011. Submissions may be submitted here, and will be accepted until 17 July 2018. More...

Draft Design Guide for Heritage
The draft Design Guide for Heritage is now on public exhibition so community members and industry stakeholders can have their say on what it should include to ensure heritage is protected for future generations. Submissions close 17 August 2018. More...

Draft Coastal IFOA released
The NSW Government has adopted the Natural Resources Commission's advice and released the draft Coastal Integrated Forestry Operations Approval (IFOA) for public consultation. Read more here or the Commission's Coastal IFOA webpage. Consultation ends 29 June 2018.

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. The Medium Density Housing Code commences on 6 July 2018.

Greenfield Housing Code
The changes start on 6 July 2018, and 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 for clearer explanation. 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). More...

The sandstone mega-region: The Committee for Sydney
The Committee for Sydney has produced this blueprint for uniting Newcastle, the Central Coast, Sydney and Wollongong into an economic powerhouse of 10 million people (05 June 2018). More...

Queensland

Planning and Environment Court practice directions
The Chief Judge of the Planning and Environment Court of Queensland has issued the following practice directions:
Practice direction 1 of 2018 – Case management procedures
Practice direction 2 of 2018 – Power of ADR registrar to make orders or issue directions

Abandoned Mines Discussion Papers: consultation
This is an opportunity for Queenslanders to provide feedback on how to manage old mine sites.
Two discussion papers will be released for feedback on a range of reform ideas - one paper for feedback on how the state's abandoned mine sites can be managed, and the other for feedback on how to monitor and manage risks with current mining operations that enter the state's care and maintenance, are disclaimed or change ownership. Public submissions for the reports will close on July 16. Provide input or view the discussion papers here.

Cases

Victoria

Sale Elderly Citizens Village Inc v Environment Protection Authority Victoria [2018] VSC 266
ENVIRONMENTAL LAW – Pollution of groundwater – Clean up notice – Whether responsibility for pollution lies with occupier of the land – Whether occupier must have caused pollution - Environment Protection Act 1970 ss 1A – 1L, 4, 39, 62A, 62C STATUTORY INTERPRETATION - 'occupier' – 'premises' – 'upon or from which pollution has occurred or been permitted to occur' – Whether premises includes subsurface of the land – Whether groundwater is part of the premises – Whether premises occupied – Environment Protection Act 1970 s 62A – Interpretation of Legislation Act 1984 ss 35, 38 JUDICIAL REVIEW – Statutory authority – Discretionary decision – Whether decision a reasonable exercise of discretion WORDS AND PHRASES – 'land' – 'groundwater' – 'waters' – 'premises' – 'occupier' – 'upon'.

King v Yarra CC [2018] VCAT 898
Section 82 of the Planning and Environment Act 1987; Yarra Planning Scheme; Neighbourhood Residential Zone Schedule 1; Heritage Overlay 327; Part demolition and two storey additions to existing dwelling; Overshadowing; Visual bulk.

Kaimakamis v Monash CC [2018] VCAT 807
Monash Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; General Residential Zone (GRZ2); Six double storey dwellings; Amendment of permit application; Transitional provisions; Garden Area requirement; Compliance with ResCode; Neighbourhood character; Extent of built form; Landscaping; Crossovers.

Coles v Greater Geelong CC [2018] VCAT 829
Greater Geelong Planning Scheme; Residential Growth Zone – Schedule 2 (RGZ2); Special Building Overlay (SBO); Proposal for three dwellings and 3-lot subdivision; Site layout and design; Private open space; Stormwater drainage; Landscaping opportunities. No permit.

New South Wales

Legge v North Sydney Council [2018] NSWLEC 1288
DEVELOPMENT APPLICATION and MODIFICATION APPLICATION: two separate appeals, the first relating to a development application that seeks the removal of existing signage and the replacement with new signage and the second, the modification of an existing sign approval; both appeals seek the erection of three digital LED roof top signs/advertising structures on an existing building; whether power to grant approval or modify existing approval; incompatible with the surrounding area; unacceptable illumination impacts; out of character and will dominate the existing building and locality; exceedance of the maximum height development standard; impact on existing views and vistas; impact on traffic safety; undesirable precedent; undesirable heritage impact; resident objections.

Panos v Inner West Council [2018] NSWLEC 1284
DEVELOPMENT APPLICATION: residential alterations and additions – carport - view loss - streetscape.

Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285
APPEAL – residential flat building – minimum width at front building line – whether inconsistent with provisions of the SEPP for affordable rental housing – whether cl 4.6 request should be allowed – compatibility with character of local area – setbacks – overshadowing – privacy – suitability of site – precedent.

Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90
OFFENCES AND PENALTIES – sentence – pollution of waters – spill of diesel into creek – low objective seriousness – actual environmental harm of limited extent and duration – foreseeability of risk of environmental harm – practical measures to avoid environmental harm not taken – control over causes giving rise to the offence – subjective circumstances of offender – no prior convictions – early plea of guilty – remorse for offence – good corporate character – unlikely to reoffend – assistance to authorities – penalty of payment to Environmental Trust – publication order – costs order.

Clearstate Development Co Pty Ltd v Liverpool City Council [2018] NSWLEC 1279
APPEAL: Subdivision certificate – Construction and interpretation of development consent.

Morrissey v Port Stephens Council [2018] NSWLEC 1282
DEVELOPMENT APPLICATION: subdivision of land, inconsistent with the draft amending local environment plan, streetscape character.

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867
ADMINISTRATIVE LAW – judicial review – Land and Environment Court – decision of Commissioner of Land and Environment Court – relief sought by third party pursuant to Supreme Court Act 1970 (NSW), ss 65 or 69 CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – Land and Environment Court – judicial review of decision of Commissioner of Land and Environment Court – application put before Court of Appeal to transfer proceedings to Land and Environment Court – Civil Procedure Act 2005 (NSW), ss 149B, 149E – where proceedings erroneously commenced in Common Law Division – whether transfer application should be determined by single judge in Common Law Division – Supreme Court Act 1970 (NSW), ss 48, 51 – order for removal of proceedings to Court of Appeal.

Boston Blyth Fleming v Hornsby Shire Council [2018] NSWLEC 1270
DEVELOPMENT APPLICATION: seniors living development - residential care facility – compatibility with rural character.

O.T.A.R Investments Pty Ltd v Burwood Council [2018] NSWLEC 1272
DEVELOPMENT APPLICATION: Alterations and additions to heritage buildings for a boarding house; heritage impacts of height; no parking provided; objections.

Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88
PRACTICE AND PROCEDURE – whether orders be granted giving leave to amend summons, allow the calling of expert evidence and issue interrogatories in judicial review proceedings 8 days prior to trial –no leave to amend – no leave to issue interrogatories – leave to file redacted expert report.

Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144
GOVERNMENT INFORMATION - where agency decided not to determine an application for a discount to a processing charge until it was ready to make a decision on access to the information – whether that 'decision' was 'a decision to refuse a reduction in a processing charge' under s 80(k) of the Government Information (Public Access) Act 2009 - whether decision was "a decision to refuse to deal with an access application" under s 80(c) – NCAT's administrative review jurisdiction – appeal from obiter dicta – advisory opinions.

Malton Road Development Pty Ltd v Hornsby Shire Council [2018] NSWLEC 1265
APPEAL: development application: infill self-care housing; clause 4.6 variation; access pathway; SEPP seniors housing clause 26.

Governor Wentworth Pty Ltd v Council of the City of Sydney [2018] NSWLEC 1233
MODIFICATION APPLICATION AND DEVELOPMENT APPLICATION: modification of Stage 1 development consent; Stage 2 development application; adaptive reuse of former warehouse building, demolition of adjoining commercial building and construction of a 19 storey mixed use building for hotel and residential accommodation; no issues pressed following amendments made to the proposal.

Maloney v Inner West Council [2018] NSWLEC 1269
DEVELOPMENT APPLICATION: proposed subdivision of land; Marrickville DCP 2011 section 3.2.2 Control C5; prevailing cadastral pattern; anomalous street and lot configurations; interpretation of the term 'same street'.

Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86
COSTS – judicial review proceedings – applicant successfully invalidated development consent – costs follow the event – both respondents filed submitting appearances – whether consent authority only should be liable for costs – costs ordered against both consent authority and beneficiary of consent.

Queensland

Bond v Chief Executive, Department of Environment and Heritage Protection (No. 2) [2018] QPEC 031
Applicant is already in breach of the Environmental Protection Order insofar as it is concerned with the bank guarantee and the reporting requirement liability, those obligations having crystallised after the refusal of the High Court to grant special leave. Held: grant leave for the Appellant to file the amended notice of appeal but otherwise would dismiss the application for stays of the operation of the Environmental Protection Order issued by the Respondent. Dismiss the application for the stay of this proceeding pending the outcome of the criminal proceedings against the Applicant dismissed

Klinkert v Brisbane City Council [2018] QPEC 030
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of proposed demolition of a dwelling house in the LMR zone and the Traditional building character overlay – whether the dwelling house is properly characterised as traditional building character – where development application was decided under the Sustainable Planning Act 2009 assessment regime but appeal commenced under the Planning Act 2016 – whether appeal to be decided under the Planning Act 2016 assessment regime - whether the development application must be approved by operation of s.60(2)(a) of the Planning Act 2016 – weight to be given to amended planning documents – whether discretion conferred by s.60(2)(b) of the Planning Act 2016 should be exercised in favour of approval.

New Acland Coal Pty Ltd v Smith (No 2) [2018] QSC 119
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – GENERALLY – where the recommendation decisions of the Land Court under s 269 of the Mineral Resources Act 1989 and s 191 of the Environmental Protection Act 1994 are set aside and the matters to which the decisions relate are to be referred back to the Land Court of Queensland for further consideration – where there was criticism of the conduct of part of the hearing by the Land Court member, although not such as to find the ground of apprehended bias established, and also criticism of parts of the reasons given for the recommendation decisions by the Land Court member – where there was also subsequent conduct on the part of the Land Court member which might reasonably lead a fair-minded lay observer to apprehend that he might not bring an impartial or objective mind to further consideration of the matters – whether it is appropriate, in the interests of justice, to direct under s 30(1)(b) of the Judicial Review Act 1991 that the matters be further considered by a different member of the Land Court.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – OTHER ORDERS – consideration of the power of the Court to make directions and orders under s 30(1)(b) and s 30(1)(d) of the Judicial Review Act 1991, to narrow the scope of the Land Court's further consideration of the matters the subject of the recommendation decisions to avoid unnecessary re- litigation or re-examination of issues – whether it is appropriate to exercise the power to make such orders in the circumstances of this case.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – COSTS – where the applicant was successful in obtaining an order that the Land Court's recommendation decisions be set aside, but was not successful on a number of its grounds of review, and was successful on a ground which assumed a different emphasis on the review proceeding to that which it had during the original Land Court proceeding – whether costs should follow the event, or the parties ought to bear their own costs.

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd Ors (No 12) [2018] QLC 15
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURE – where the court directed parties and experts to engage in court managed expert evidence (CMEE) pursuant to a draft Guideline – where the applicant submitted the process was contrary to the Land Court Act 2000 and the Land Court Rules 2000 – where the applicant argued the process was not necessary in this case – where a Practice Direction was issued after the application was filed and before it was determined – where the Practice Direction restricted the CMEE convenor's power to make directions – whether order 6 should be set aside – whether the case should be directed to CMEE pursuant to the Practice Direction.

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Peter Holt
Gerard Timbs
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