Australia: Planning & Environment News – 10 July 2018

Last Updated: 12 July 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, October 2018

In the media

Commonwealth

ASIC steps up climate risk focus
The Australian Securities and Investments Commission is working to address climate risk within the context of corporate governance. This applies to climate risk just as it does to other risks such as compliance risks, cyber security or digital disruption (25 June 2018). More...

Housing for Australia's 'silver tsunami' needs better planning
Australia is about to experience a 'silver tsunami' with the population aged over 65 growing at a rate never seen before. However, this booming demographic risks fewer and poorer housing options unless our state and territory governments do a better job of planning for housing for older Australians, including retirement villages (22 June 2018). More...
See The Retirement Living Planning Report Card, published by Urbis and commissioned by the Property Council of Australia.

Australia set for surge in electric vehicles and infrastructure in just four years: new modelling
Electric vehicles could represent 90 percent of all cars and light commercial vehicles on Australian roads by 2050, supported by $1.7 billion in private investment in new charging infrastructure, according to new modelling produced for the CEFC and ARENA (21 June 2018). More...

Victoria

Aboriginal values are key to Victoria's water future
This new program, in partnership with Traditional Owners across Victoria, will support spiritual and cultural uses of water, and create employment opportunities for Aboriginal Victorians. It will also support the self-determination of Traditional Owners by prioritising projects that best meet their needs regarding water management on Country (22 June 2018). More...

Melbourne car users could see 'major changes' in CBD parking
The removal of parking spaces in Melbourne's CBD should be accelerated, according to a discussion paper that warns "major changes to the priority given to cars" are needed to maintain a liveable city (21 June 2018). More...

New South Wales

Irrigators to fight charges of water theft
Two prominent north-west New South Wales irrigator families charged over alleged water theft on the Barwon-Darling will fight the charges in court (29 June 2018). More...

Another wake-up call on Australia's homelessness and affordable housing crisis
Australia's affordable housing shortfall is vast, but new research shows the situation is particularly dire in New South Wales, where an extra 12,000 social and affordable homes a year are needed from now to 2026 to meet projected needs (26 June 2018). More...

New focus for the Greater Sydney Commission
The Greater Sydney Commission will be elevated to report directly to the Premier from 1 July to implement the NSW Government's bold vision for Sydney as three, integrated and connected cities (26 June 2018). More...

Port Kembla Gas Terminal declared critical State Significant Infrastructure
The Port Kembla Gas Terminal has been declared Critical State Significant Infrastructure (CSSI) by the Minister for Planning because of its importance to the State's future security and reliability of gas supply (24 June 2018). More...

Fair go for retirees under sweeping retirement village reforms
Retirement village residents will be the big winners under a series of proposed NSW Government reforms to the sector, Minister for Better Regulation Matt Kean said. The Government welcomed the "Greiner Report", and will take immediate action to implement the majority of the recommendations (24 June 2018). More...

Stronger laws for off-the-plan purchasers
NSW home buyers purchasing residential properties off-the-plan will benefit from stronger protections under new laws set to be introduced to Parliament in the second half of the year. The proposed changes to the Conveyancing Act that affect disclosures, cooling off periods, holding of deposits and sunset clauses (23 June 2018). More...

Urban Taskforce: South Sydney report on Affordable Housing misses opportunities
The City Futures report on the Affordable Rental Housing State Environmental Planning Policy (ARHSEPP) for the South Sydney Regional Organisation of Councils recommends that this policy document be replaced but all it needs is modifications to make it more useful (22 June 2018). More...

Tougher penalties for water theft in NSW
Corporations illegally taking water in NSW could face penalties of up to $5 million and individuals facing $500,000 fines, as part of tough new laws to protect the state's most precious asset (21 June 2018). More...

Budget boost for conservation
A $50 million commitment in today's Budget effectively doubles the amount the NSW Government spends to purchase conservation land over 5 years (19 June 2018). More...

$196m for a healthier environment
The NSW Government has committed $196 million in the 2018-19 Budget to protect the health of the environment, reduce waste and strengthen recycling, Environment Minister Gabrielle Upton has announced (18 June 2018). More...

$1 billion to improve liveability
Communities will have access to more green open spaces and playgrounds, as part of the State Government's commitment to improving the liveability of NSW (19 June 2018). More...

NSW budget 2018: No changes for NSW home buyers, property investors or renters
Less than two years ago the housing affordability crisis was labelled "the biggest issue" for people across NSW, there was little new announced to address the issue at the state budget on Tuesday (19 June 2018). More...

Queensland

Queensland ban on single use plastic bags now in effect
Historic change to reduce plastic pollution in Queensland has now come into effect, with the Palaszczuk Government's ban on single-use lightweight plastic shopping bags now in place across the state (01 July 2018). More...

Palaszczuk Government helps to fast track energy storage industry
Queensland's renewable future is taking another step forward with the Palaszczuk Government looking for businesses to help fast track battery energy storage (28 June 2018). More...

Giant water battery' gets conditional approval for $500m loan
A solar farm in far north Queensland receives conditional approval for a $500 million loan to build and integrate a pumped hydro storage facility to provide "reliable energy" to the country at peak demand (23 June 2018). More...

Townsville Port booming with renewable pipeline
An estimated $4.2 billion pipeline of renewable energy projects underway or financially committed across Queensland are driving up business through the Port of Townsville (20 June 2018). More...

Minister steps in after council rejects $1.2bn Queensland island development
The developers behind the $1.2 billion Hummock Hill Island resort remain optimistic about the project despite Gladstone Regional Council rejecting its development application earlier this year (19 June 2018). More...

Winten submit new plans for Main Beach apartment tower
Sydney-based developer Winten Property Group has submitted a second round of design plans in Main Beach, this time opting for a conventional apartment tower over an earlier more futuristic design (19 June 2018). More...

Second chance for Hummock Hill Island resort proposal
A proposed $1.2 billion tourism project on Hummock Hill Island will undergo a new assessment following Ministerial approval for the independent Coordinator-General to step in and become the decision-maker on the development application (19 June 2018). More...

In practice and courts

Commonwealth

PCA: Changes to GST for property settlements and other property changes from 1 July
Buyers of new residential property after 1 July 2018 need to be aware they will be responsible for making sure the GST on their purchase is paid to the ATO as part of the purchase settlement process. The change to GST payment is the biggest of a number of federal and state property- related changes that come into effect on 1 July. Other state property changes are outlined here.

Department of Environment and Energy: Current Consultations
Call for submissions of case studies on action underway on the environment and energy Sustainable Development Goals. Closes December 31, 2018. More...

Victoria

Announcements, Draft Policies and Plans released 2018

Amendment tracking system
DELWP's new digital tool – the Amendment Tracking System - has gone live providing DELWP and planning authorities with the ability to lodge, track and pay for planning scheme amendments online (28 June 2018).

Resource Recovery Infrastructure Fund third round
Up to $3 million is available for infrastructure projects across Victoria, with grants of between $40,000 and $500,000 available. Round 3 is seeking projects that target food organics, rigid and soft plastics, paper and cardboard, and e-waste re-processing as priority materials. Submit your proposal by 31 July 2018. More...

Approvals
GC86 facilitates the level crossing removal in accordance with the 'High Street, Reservoir Level Crossing Removal Project, Incorporated Document, March 2018'.
Melbourne C317 facilitates an amended design introduced by the 'Victoria Police Precinct, Sky Bridges Incorporated Document – June 2018'.

New South Wales

Announcements, Draft Policies and Plans released 2018

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 comes 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...

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...

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 commenced 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).

Have your say on proposed Housekeeping Amendment to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP)
The proposed housekeeping amendment will simplify and improve the policy, clarify definitions and standards, and address other minor technical matters raised by stakeholders. Have your say until 18 July 2018. More...

Queensland

Announcements, Draft Policies and Plans released 2018

DNRME: Abandoned Mines Discussion Papers: consultation
Released today, 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 we manage the state's abandoned mine site and the other for feedback on how to monitor and manage risks with current mining operations that enter our care and maintenance, are disclaimed or change ownership. Public submissions for the reports will close on 16 July. here

Cases

Victoria

Coloretti v Mount Alexander SC [2018] VCAT 959
Farming Zone – dwelling associated with agricultural use – policy for protection of agricultural land.

Sekhon & Anor v Chandyoke & Anor [2018] VSC 327
COSTS – Property law – Application for removal of caveat – Caveat removed – Application for indemnity costs – Whether circumstances are special or unusual such as to justify departure from usual 'standards costs' order – Application for costs against non-party – Indemnity costs ordered against first defendant – No costs ordered against non-party – Civil Procedure Act 2010 (Vic) s 29 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.23.

New South Wales

Karimbla Properties (No.56) Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1301
DEVELOPMENT APPLICATION: Green Square - Concept development application – Floor space bonus – design quality.

Jade Developments Pty Ltd v The Hills Shire Council [2018] NSWLEC 1319
DEVELOPMENT APPLICATION: demolition of an existing dwelling and tree removal and construction of a residential flat building; inadequate lot size; excessive density; inadequate building separation; inadequate building setbacks; inadequate transition to adjoining properties; inadequate landscaping; poor apartment mix; solar access; out of character.

Dukor 24 Pty Ltd v Northern Beaches Council [2018] NSWLEC 1315
Development Application: Residential care facility, deferred matter, desired future character, retention of distinctive environmental features; protection of flora.

Rogers v Inner West Council [2018] NSWLEC 1305
MODIFICATION APPLICATION – application to delete a condition of consent – consent granted by the Court following agreement reached by the parties –condition stating future occupants not eligible for resident parking scheme or parking permits – broad discretion to consider whether condition should be removed on principle or merit – whether condition is appropriate – condition an unreasonable fetter on the exercise of the Council's discretionary power – condition not supported by a planning purpose.

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137
COURTS – proceedings seeking judicial review of a decision of a Commissioner of the Land and Environment Court – application to transfer proceedings from the Court of Appeal to the Land and Environment Court – whether transfer is appropriate.

Staldone Corporation Pty Ltd v Lane Cove Council [2018] NSWLEC 1303
DEVELOPMENT APPLICATION: demolition of three dwelling houses and associated structures, construction of a part 4 and 5 storey residential flat building; condition relating to the imposition of a deferred commencement condition ramp grade.

Damilabe Pty Ltd v Gunnedah Shire Council [2018] NSWLEC 1295
APPEAL: development application: refused by council; historical subdivision; clause 4.6 variation; minimum lot size; zone objectives; agricultural purpose; precedence.

Timpag Investments Pty Limited v Liverpool City Council [2018] NSWLEC 1296
DEVELOPMENT APPLICATION - characterisation of development - impact on threatened species and communities - assessment of impacts - offsets - biodiversity credits - proposed change in zoning, public interest.

FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300
MODIFICATION APPLICATION – whether substantially the same as approved development; amenity impacts to neighbours; view loss, privacy and acoustic impacts; whether reasonable in circumstances.

Australian Childcare Solutions v Orange City Council [2018] NSWLEC 93
APPEAL – appeal against Commissioner's decision on questions of law – refusal of development consent for childcare centre – whether Commissioner misdirected herself and asked the wrong question in construing provisions of development control plan – whether Commissioner substituted her own test for the test in development control plan – Commissioner did not err on question of law in construing and applying development control plan.

Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92
JUDICIAL REVIEW: judicial review of a State Government approval – where Minister delegated approval to Planning Assessment Commission – alleged that the delegate failed to take into account a mandatory relevant consideration and/or failed to exercise jurisdiction by failing to consider the totality of the subject matter in the Development Application in exercising power under s.79C(1) of the Environmental Planning and Assessment Act 1979 (NSW), and/or applying cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.

Minister for Local Government v Blue Mountains City Council [2018] NSWCA 133
COURTS - jurisdiction - Land and Environment Court - whether Class 4 of jurisdiction of Land and Environment Court exclusive to that Court - whether Supreme Court had jurisdiction to give injunctive relief for apprehended breach of Local Government Act 1993 (NSW) EQUITY - injunctions - interim and interlocutory injunctions - appropriateness of ex parte application - form of order - onus upon moving party to renew interim order obtained ex parte LOCAL GOVERNMENT - power to suspend Council - Local Government Act 1993 (NSW), ss.438I and 438K - power to suspend required Minister to reasonably believe that appointment of interim administrator necessary to restore proper or effective functioning of council - Minister notified Council of intention to appoint administrator and invited submissions - whether necessary, at time notifying of intention to appoint administrator, to hold belief that appointment was necessary to restore proper or effective functioning of council - whether factual error in Minister's notice gave rise to serious question to be tried that exercise of power would be vitiated.

Queensland

Nerinda Pty Ltd v Redland City Council [2018] QCA 146
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where on an appeal by submitters from the Council's approval of a development application, the Planning and Environment Court refused a development application on the basis of conflict with the relevant planning scheme – where a draft new planning scheme, which essentially replicated the existing planning scheme, had been made publicly available for inspection by the time the Council approved the application, but was not in force, including by the time of the appeal – where the Council led expert evidence, and argued, that its planning scheme provisions were deficient, due to population growth, and supported approval of the development application on public interest grounds, despite the conflict – where the Planning and Environment Court found there was significant force in the expert evidence discrediting the contemporary planning for the area, but found that the evidence, and the Council's arguments, were diluted by the fact of replication of the existing scheme in the new draft scheme, and that it was a matter for the Council to address perceived deficiencies in its scheme, not the Court – whether the Planning and Environment Court erred in law in giving weight to the draft planning scheme under s.495(2)(a) of the Sustainable Planning Act or, by inference, under the Coty principle – whether the Planning and Environment Court erred by failing to perform the role imposed on the Court by ss.326 and 329 of the Sustainable Planning Act, standing in the shoes of the Council in its capacity as the assessment manager (in contrast to its role as the planning authority).
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – MATTERS TO BE CONSIDERED – whether the Planning and Environment Court erred, by taking into account an irrelevant consideration, namely the potential economic impact of the development on nearby existing or future centres, in the absence of a finding of any prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development were approved – whether the Planning and Environment Court erred in its application of the decision rules in relation to an application for preliminary approval under s.242 of the Sustainable Planning Act.

New Acland Coal Pty Ltd v Ashman [2018] QLC 17
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – applications for, and objections to, mining leases and related environmental authority – where the Member recommended the applications be refused – where Judicial Review of that decision by a Judge of the Supreme Court of Queensland remitted the matter back to the Land Court, before a different Member, on a limited basis – where an objector appealed the Judicial Review decision – where the miners cross-appealed the Supreme Court decision, contingent on the success of the objector's appeal – where, at the directions hearing for the remitted hearing, the objectors requested the remitted hearing be adjourned until the appeal is determined – whether proceeding with the remitted hearing would result in wasted effort and costs, and undue stress and uncertainty – whether delay in the remitted hearing would prejudice the miner –whether it is in the interests of justice to proceed with the remitted hearing – where the application for an adjournment was dismissed – where directions were made for the remitted hearing to proceed.

GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 033
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a change application to a development approval granted with respect to a multi-unit dwelling and adjacent heritage building – where council refused the change on the basis that it was not minor – whether the proposed change increases the severity of known impacts on the heritage place – whether the proposed change results in a dramatic change to the built form in respect of scale and bulk.

Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 032
PLANNING AND ENVIRONMENT – APPEAL – where the appellant seeks approval for a service station in the Environmental management zone – where the council refused the development application – whether the proposed development is of a scale that is compatible in the zone – whether the proposed development supports existing concentrations of commercial-type development – whether the proposed development meets other locational requirements for location in the zone – whether the proposed development will have an unacceptable visual amenity impact – whether the proposed development would have an unacceptable impact in terms of air, noise and lighting – whether the proposed access arrangements are unsafe – whether there are relevant matters such as need that support approval of the proposed development.

Legislation

Victoria

Bills
Environment Protection Amendment Bill 2018
Introduced into Parliament 2nd reading moved 20/6/18.
Flora and Fauna Guarantee Amendment Bill 2018
Passed 21/6/18 introduced and 2nd reading moved 21/6/18.

Acts
Marine and Coastal Act 2018
Date of assent: 26 June 2018 Act Number: 26/2018.

Victorian legislation can be accessed here.

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Peter Holt
Gerard Timbs
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