Australia: Planning & Environment News – 25 July 2018

Last Updated: 26 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

Co-working spaces are part of the new economy, so town planners better get with the times
Cities are seeing a growing number of shared working, or co-working, spaces. They include spaces where individuals and businesses can flexibly rent desks or rooms, or do shared work in "third spaces" such as libraries and cafes (11 July 2018). More...

Australia falls further in rankings on progress towards UN Sustainable Development Goals
Australia is performing worse than most other advanced countries in achieving the Sustainable Development Goals (SDGs), according to the global SDG Index, which compares different nations' performance on the goals (11 July 2018). More...

National Energy Guarantee (NEG) means 4% target for electricity emissions
The Australia Institute Climate & Energy Program has released the latest National Energy Emissions Audit electricity update (The Audit) for July 2018. The Audit shows current policies will reduce National Electricity Market (NEM) emissions to 22% below 2005 levels in 2019-20, effectively meaning electricity sector has an emissions reduction target of only 4% to 2030 (06 July 2018). More...

New guidance on Native title, legal right and eligible interest-holder consent
The Clean Energy Regulator has developed guidance exploring how the Native Title Act 1993interacts with requirements of the Emissions Reduction Fund (ERF), including obtaining legal right and consents from all eligible interest-holders to undertake a project (06 July 2018). More...

Aon warns about PFAS chemicals
Aon has warned property sellers, developers and construction companies to do due diligence on properties to ensure they haven't been contaminated by per-and poly-fluoroalkyl substances, known as PFAS chemicals (02 July 2018). More...

Victoria

Community energy powers up in Ballarat
The $900,000 Community Power Hubs program, run by Sustainability Victoria, is being trialled for two years in the Ballarat, Bendigo and Latrobe regions. It is helping communities make the transition to community-owned renewable energy systems (11 July 2018). More...

'We must get people out of cars': Coalition to extend train line in Melbourne's south-east
Residents in Melbourne's booming outer south-eastern suburbs are promised new train stations by the Victorian Opposition to help ease peak hour traffic, as the Government's plan to expand the congested Monash Freeway to ten lanes is given the go-ahead (11 July 2018). More...

Minister rejects compulsory acquisition at Marong
A planning scheme amendment in Bendigo that would have seen farmland compulsorily acquired for the development of the Marong Business Park has been rejected by the Minister for Planning Richard Wynne (11 July 2018). More...

Melbourne Airport plans 'huge redevelopment' to cope with passenger boom
Melbourne Airport is set for a major overhaul, including a new domestic terminal and a major refit of international facilities, as it prepares for the number of annual passengers to reach 68 million within the next two decades (09 July 2018). More...

Luxury St Kilda tower takes car parking to new heights
Melbourne-based developer Growland has unveiled plans for its new high-end residential tower featuring Australia's first "sky garage" (09 July 2018). More...

New South Wales

New planning codes to provide more housing choice and greener streets
Homeowners in new release and established areas across NSW will save up to $15,000 in building and administrative costs, under the new Greenfield Housing Code and Low Rise Medium Density Housing Code which both commenced on July 6 2018 (06 July 2018). More...

NSW faces court challenge as Australia tops global charts in natural vandalism
NSW is fast catching up to Queensland for land clearing, having wiped out 90 per cent of koala habitat on private land. This woeful track record has helped Australia become one of the most destructive land clearing countries on the planet, second in the world for biodiversity loss, and in the top 10 globally for emissions from forest clearing (05 July 2018). More...

Queensland

QFES continues to target illegal and unsafe budget accommodation
Fire safety remains a priority for Queensland Fire and Emergency Services (QFES), as inspectors continue to identify illegal and unsafe budget accommodation buildings (14 July 2018). More...

Mackay innovator takes solar to the mines
An energy and mining specialist based at Paget in Mackay has developed a fully self-contained "EcoHabitat" living unit generating its own electricity through solar power (13 July 2018). More...

Commitment needed to protect prime agricultural land
The inability of the current, overly complicated planning framework to properly protect the state's small amount of truly prime agricultural land (about 3 per cent) has been raised by the Queensland Farmers' Federation (QFF) (04 July 2018). More...

In practice and courts

Victoria

Building regulations for garden area and siting requirements
The Building Amendment (Garden Area and Siting Requirements) Regulations 2018 were made by the Governor in Council on 10 July 2018. The Regulations insert a new regulation 76A into the Building Regulations 2018. Regulation 76A requires the consideration of a minimum garden area for the construction of a single dwelling in the Neighbourhood Residential Zone and General Residential Zone. This is a mandatory requirement that cannot be varied by a report and consent (12 July 2018). More...

Infrastructure contributions plan public land contribution model
The Planning and Environment Amendment (Public Land Contributions) Act 2018 came into effect on 2 July 2018, and introduces a land contribution model for the Infrastructure Contributions Plan (ICP) system. The land contribution model enables land for public purposes to be provided as part of an infrastructure contribution when land is developed. This replaces the monetary public land component of the standard levy (02 July 2018). More...

New South Wales

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 allows 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 started 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...

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. Submissions closed on 18 July 2018. More...

Queensland

Department of Environment and Heritage Publications
Prosecution bulletin no 8/2018 – recent cases for July 2018

Cases

Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011
ENVIRONMENT LAW – application for declaration that a decision of the Minister for the Environment that an action referred to him pursuant to s 69 of the Environment Protection and Biodiversity Conservation Act 1999(Cth) was invalid – Minister determined that the proposed action was not a controlled action if carried out in accordance with specified manner provisions – declaration sought by a company that had proposed to take the relevant "action" – whether relief should be refused assuming invalidity – applicants resiling from seeking to prove that "action" had or would have a significant impact on matters of national environmental significance – principles applying to discretion to grant relief – delay – alternative relief – acquiescence – effect on other parties having ordered their affairs in reliance on the decision – application dismissed

Victoria

Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360
VALUATION AND COMPENSATION — Amendment to the Melton Planning Scheme — Imposition of Public Acquisition Overlay for Western Grasslands Reserves — Compensation for planning 'blight' - Land-owner died without making a compensation claim - Executors of the estate propose to sell the land and distribute the proceeds to beneficiaries — Executors seek declaratory relief that they are not ineligible to claim compensation for financial loss suffered as a natural, direct and reasonable consequence of the reservation upon on a sale of the land —Availability of declaratory relief — Whether executors are 'owners' of the land affected by the reservation for the purposes of s 98(1) of the Planning and Environment Act 1987— Halwood Corporation Ltd v Roads Corporation[1998] 2 VR 439 and Halwood Corporation Ltd v Roads Corporation [1995] 89 LGERA 280 followed — Planning and Environment Act 1987ss 98, 99(b), 101, 106 and 108.

Mostafa v Moreland CC [2018] VCAT 1037
Application to review a refusal to grant a permit — Section 77 of the Planning and Environment Act 1987— Moreland Planning Scheme — Brunswick Activity Centre — Proposal to provide no resident car parking in a mixed-use building with nine apartments — Car parking reduction considered — Internal amenity of apartments considered — Adequacy of light wells and internal air circulation in response to policy guidance considered — No permit.

Hao Yang Australia Pty Ltd v Mornington Penininsula SC [2018] VCAT 1028
Mornington Peninsula Planning Scheme, Section 77 Planning and Environment Act 1987, hot springs, landscape character, Green Wedge Zone – Schedule 4, Environmental Significance Overlay – schedule 15, Environmental Significance Overlay – Schedule 23, Bushfire Management Overlay, "the cups" landscape, visual impact, intensity of use, native vegetation removal, road access, car parking, civil works, need for additional approval, cultural heritage management plan.

Chapman v City of Greater Bendigo [2018] VSC 358
PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Principles underlying r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015applied – Whether proposed amended statement of claim discloses a cause of action – Defects of form – Leave to file the amended statement of claim refused.
NEGLIGENCE – Plaintiff claims her local council owed her a duty to acquire her land for a public purpose and had failed to do so, causing her loss – Whether the claimed duty inconsistent with the defendant's statutory duties – Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364; (2014) 89 NSWLR 1 considered – Whether this question should be determined at trial – Held no because pleaded facts show the claimed duty not arguable.
BREACH OF STATUTORY DUTY – Plaintiff claims local council breached a duty to her imposed by s 197 of the Planning and Environment Act 1987 (Vic) to promptly acquire her land – Breach of this claimed statutory duty depends on duty to acquire being established – Not arguable on the pleaded facts that there was such a duty – Accordingly no cause of action for breach of statutory duty is disclosed.

New South Wales

Parker Logan Property Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1336
DEVELOPMENT APPLICATION: Residential flat building – SEPP affordable rental housing – view loss.

Chulatunga v Randwick City Council [2018] NSWLEC 1348
DEVELOPMENT APPLICATION: carport – parking at front of dwelling – streetscape – neighbourhood character – visual amenity – structural design – site frontage – on property parking – landscaping – visual domination.

Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339
APPEAL: development application – mixed used development with boarding house – part of land marked for future acquisition – breach of height and FSR standards – whether cl 4.6 inconsistent with cl 29(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 – calculation of FSR – whether cl 4.6 requests should be allowed – amenity of boarding rooms – compatibility – whether condition of consent requiring subdivision should be imposed.

Abou-Anton v City of Ryde Council [2018] NSWLEC 1334
APPEALS: building information certificates – unauthorised works to dwelling house – dwelling not built in accordance with complying development certificate – nominal development application assessment required – amenity impacts – view loss – overheight fence – requirement for stormwater easement.

So Nash Pty Limited v Inner West Council [2018] NSWLEC 1327
DEVELOPMENT CONSENT: appeal against the imposition of a number of conditions on development consent for the adaptive reuse of a local heritage item – including a condition requiring the deletion of one off-street car parking space and a condition notifying the future occupants of the development that they are not eligible to participate in the Council's Resident Parking Scheme.

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.

M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101
PRACTICE AND PROCEDURE – notice of motion – whether appropriate to hear issues raised as separate questions – where similar submissions would be made in hearing of another notice of motion in any event.
STATUTORY INTERPRETATION – whether amendments to the Environmental Planning and Assessment Act 1979 (NSW) have the effect of constituting a new statutory entity or continuing an existing entity – application of interpretive principles JOINDER – whether appropriate to join planning panel to Class 1 proceedings – where panel is the consent authority but decision is deemed to be made by Council – where panel has power to control and direct Council.
COSTS – costs sought in relation to conciliation conference – presumptive rule against costs in Class 1 proceedings – costs sought against non-party – where agreement reached in conciliation conference but planning panel exercised its power to control and direct Council.

Kelly v Randwick City Council [2018] NSWLEC 1322
DEVELOPMENT APPEAL: Two- lot strata subdivision of approved dual occupancy – interpretation of clause detailing minimum subdivision allotment size – whether a cl. 4.6 variation request is required.

Queensland

Ko v Brisbane City Council [2018] QPEC 035
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of an application for a material change of use for Multiple dwelling in the LMR zone – whether development is located within easy walking distance of a public transport node – whether a decision to approve would conflict with City Plan 2014 – whether sufficient grounds to approve despite conflict.

Bowyer Group Pty Ltd v Cook Shire Council & Anor [2018] QCA 159
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – CONSENT AND IDENTITY OF OWNER – where the second respondent was granted development approval for a material change of use of land for an extractive industry – where the applicant, an owner of adjoining land, commenced an appeal against the decision to grant the approval in the Planning and Environment Court – where the applicant contended, as a preliminary issue, that the development application was not a properly made application as it was not accompanied by the consent of the holders of a Crown lease of the land – where the Planning and Environment Court found the application was properly made, being accompanied by the consent of the State as the owner of the land – consideration of the meaning of the word "owner" in the phrase "owner of the land the subject of an application" in s 263(1) of the Sustainable Planning Act 2009– whether the holders of a rolling term lease for pastoral purposes under the Land Act 1994are "owners" of the relevant land within the meaning of that provision.

Bilinga Beach Holdings P/L v Western Downs Regional Council & Anor [2018] QPEC 034
PLANNING AND ENVIRONMENT – APPEAL – applicant appeal against refusal – whether use characterised as Transport terminal – whether a decision to approve would conflict with a planning scheme – weight to be given to new planning scheme.

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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