Australia: Planning & Environment News – 22 August 2018

Last Updated: 26 August 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, September 2018

In the media

Smart buildings overcoming Australia's energy crisis through technology and design
Australia is facing its biggest energy crisis to date. With four of the country's coal-fired power plants closed due to ageing infrastructure and a wealth of natural gas locked into export contracts for years to come, it's no surprise that the World Economic Forum's Global Risk Report 2018 identified energy as Australia's biggest problem (10 August 2018). More...

Push for accessible housing regulations
A network of designers, researchers, people living with disability and seniors are calling on Australian governments to introduce regulations mandating that new houses meet accessibility standards (06 August 2018). More...

The National Energy Guarantee is one step closer
Commonwealth, state and territory energy ministers have moved one step closer to implementing the National Energy Guarantee at a meeting in Sydney today. In addition to the NEG, the COAG Energy Council meeting today advanced important issues around transmission and the integrated system plan, cybersecurity for our energy infrastructure, new hydrogen opportune (09 August 2018). More...

Current NEG 'investment cliff' for renewables
The Australia Institute's Climate & Energy Program has released the latest National Energy Emissions Audit electricity update (The Audit) for July 2018. The Audit shows that current NEG modelling will effectively create an investment cliff for the otherwise booming renewables sector, with no investment in further renewable energy generation after 2021 (09 August 2018). More...

Current NEG ineffective and expensive band-aid
The Australia Institute Climate & Energy Program has released a special update of their National Energy Emissions Audit, assessing the value and effectiveness of the current NEG using figures from the AEMO. The Audit update shows multiple scenarios in which much larger emission reductions and levels of renewable energy generation can be achieved in the National Electricity Market (NEM) than envisaged in the current NEG, and at a lower cost (08 August 2018). More...

Tackling the conundrum of low-carbon, low-income housing
Comfortable, affordable and low-carbon housing is possible, but according to experts at Wednesday's National Forum on Low Carbon Housing for Low Income Households, there are multiple challenges that need tackling to get there (08 August 2018). More...

More children are living in high-rise apartments, so designers should keep them in mind
Australian cities are changing. Instead of families living in low-density suburban areas, more parents are raising children in high-rise housing in inner-city areas. Despite this, much of the high-rise housing stock in Australia has been developed for residents without children (07 August 2018). More...

The toxic face of PVC manufacturing exposed
The building design sector should be careful when selecting building and furnishing materials containing PVC, with a new report finding mercury, asbestos, PFAS chemicals and other hazardous substances in the footprint of some chlorine-based materials (02 August 2018). More...

House price decline largest in six years
Australia's housing downturn gathered momentum in July, with national dwelling values reporting the largest annual fall since August 2012 (01 August 2018). More...

Transforming non-recyclable waste into solid fuel
Located in Wetherill Park, the resource recovery facility will transform non-recyclable waste into solid fuel, known as Processed Engineering Fuel (PEF) which can be used in high-combustion facilities such as cement kilns. The Turnbull Government, through the Clean Energy Finance Corporation (CEFC), lent $30 million to ResourceCo to help fund the Wetherill Park facility (31 July 2018). More...

Families in build-to-rent homes to share in clean energy benefits with new CEFC Mirvac investment
Leading residential developer Mirvac is extending the benefits of clean energy and energy efficiency to families and residents in new build-to-rent homes through an Australian-first investment fund (31 July 2018). More...

Victoria

New board to guide the future of Fishermans Bend
The Labor Government today announced a dedicated Fishermans Bend Development Board to ensure the project remains on track and adheres to the highest levels of governance. The Board will play a critical role in implementing the Fishermans Bend Framework (10 August 2018). More...

Victoria approves Southbank Queenbridge project after three year wait
A 47-storey residential and hotel tower on Queensbridge Street in Melbourne has been approved after three years of planning limbo. The delay stemmed from concerns of the tower overshadowing the future Boyd Park, while heritage considerations led to architects retaining and incorporating existing heritage facades into the design (10 August 2018). More...

Property Council calls for review of CBD planning controls; changes must support future pipeline
The Property Council of Australia is calling for both major parties to commit to the establishment of a City Planning Advisory Group to review the existing C270 planning controls. According to the Property Council's Office Market Report, released today, vacancy rates in Melbourne's CBD have dropped to 3.6 per cent and are the lowest of any Australian CBD (02 August 2018). More...

New South Wales

Proposed ban on the use of certain types of aluminium composite panels
NSW Fair Trading Commissioner, Rose Webb, has today given notice of her intention to impose a building product use ban under the Building Products (Safety) Act 2017. It is an offence for a person to contravene a building product use ban or to represent that a building product is suitable for use in a building if its use would contravene the ban. Corporations can be fined up to $1.1 million and individuals up to $220,000. A copy of the order can be found here (10 August 2018). More...

Crown takes legal action over Barangaroo's harbour views
Crown Resorts has launched legal action against the Barangaroo Delivery Authority to ensure the views of its $2.2 billion Crown Sydney Hotel Resort are not blocked by new development (09 August 2018). More...

Sydney calls for high-rise apartments to get green
The City of Sydney is looking for 20 high-rise apartments to join its free 2018-19 Smart Green Apartments program, which collectively saved last year's cohort $1 million in energy and water bill savings. The council said this year's cohort could expect to save an average of $57,000 on annual power bills alone. And, for the first time, a NABERS Apartment rating will be provided free of charge (09 August 2018). More...

Australia's largest waste-to-fuel plant begins turning rubbish into a replacement for coal-fired power in Sydney
A multi-million-dollar facility that will turn rubbish destined for landfill into fuel has been opened. The Process Engineered Fuel (PEF) produced by the plant will reduce Australia's dependence on fossil fuels, with more than 20 billion tonnes burned worldwide every year (08 August 2018). More...

Australia's first build-to-rent club launched
Australia's first build-to-rent club has been officially formed and the first project for the club will be Indigo at Sydney's Olympic Park. The club, a coalition between the Mirvac Group and the Clean Energy Finance Corporation, is committed to building a residential property at Mirvac's Pavilions project that will have a clean-energy focus (02 August 2018). More...

20-year vision for a thriving regional NSW
The NSW Government has unveiled its 20-year vision for a thriving regional NSW which sets out a framework for investment that will guide the allocation of resources from the new $4.2 billion Snowy Hydro Legacy Fund (30 July 2018). More...

Queensland

The information Adani spent a year trying to hide
Documents Adani fought to keep secret appear to show both the company and the Queensland Government knew it was likely to breach its licence before it spilled polluted water into the Great Barrier Reef Marine Park (10 August 2018). More...

New Bundaberg PFAS testing results available
The Queensland Government's investigation into PFAS contamination in Bundaberg – which affected the town's water network – has found a likely source. Soil and surface water samples taken from within and adjacent to the Bundaberg Airport returned higher results than other surrounding areas (09 August 2018). More...

City Plan amended to protect Brisbane's heritage
Almost 60 pre-1911 homes, as well as several of Brisbane's well-known landmarks, have been given permanent protection from development. Brisbane City Council put forward a major amendment to the Brisbane City Plan 2014 on Tuesday, following recommendations from Brisbane's Future Blueprint (01 August 2018). More...

EDOQ: The drain on Acland farmers
It's not just impacts to groundwater that are unclear in the Oakey Coal Action Alliance cases - it's also who has the power to hear and assess potential impacts to groundwater. Ahead of two separate cases, the new Associated Water Licences (AWLs) have thrown a spanner into the legal mix (31 July 2018). More...

Current Dissolution of Ipswich City Council draft Bill fundamentally flawed
The Queensland Government's proposed Dissolution of Ipswich City Council would deny the electorate democratically appointed local representatives and improperly impugn the legal rights of councillors not facing any or not yet convicted of criminal charges or disciplinary offences, according to Queensland's peak legal body (30 July 2018). More...

In practice and courts

Commonwealth

Consultation: draft amendments to the Safeguard Mechanism
The Government has released exposure draft amendments to the National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015 for public comment. The submission period closes on 7 September 2018. More...

National Energy Guarantee: final detailed design
Energy Security Board (ESB); COAG Energy Council: 02 August 2018
The proposed final design of the National Energy Guarantee (NEG) will require retailers to contract for generation or demand response to meet a minimum level of dispatchable 'on demand' electricity where there is an identified gap. Retailers must also keep their emissions below an agreed level. More...

Review of the national greenhouse and energy reporting legislation: a consultation paper
Climate Change Authority: 31 July 2018
This review will focus on the three key aspects of the national greenhouse and energy reporting legislation: emissions and energy reporting, the safeguard mechanism and the auditing framework. The review will consider if each of the individual elements is achieving its objectives, is fit for purpose and if any improvements can be made. More...

Announcements, Draft Policies and Plans released 2018

Victoria

Amendment VC148 – reforms to the Victoria Planning Provisions
On 31 July, Amendment VC148 – reforms to the Victoria Planning Provisions (VPP) was gazetted. The amendment implemented reforms to simplify and modernise Victoria's planning policy and rules. The Department has created the VC148 Clause Finder tool which helps users navigate the changes on a clause by clause basis. Both the supporting documents and the VC148 Clause Finder tool can be found on the Amendment VC148 page ( 31 July 2018). More...

Approvals
GC106 changes the schedules to the Urban Growth Zone to update reference to the incorporated Infrastructure Contributions Plan in the Mitchell and Whittlesea planning schemes.
VC151 corrects obvious and technical errors in the Victoria Planning Provisions and all planning schemes by replacing the incorporated document Principal Public Transport Network Area Maps (State Government of Victoria, 2018) with a corrected version of the document. The reference to the corrected document is updated in Clause 72.04 (Documents incorporated in this planning scheme).

Panel reports
Wangaratta C71: Residential development of the Wangaratta North West and Wangaratta South Residential Growth Areas.
Boroondara C266: Amend/apply Heritage Overlays HO264 and HO677 - HO704) to implement the recommendations of the Canterbury Heritage Gap Assessment.

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 closed 17 August 2018. More...

Queensland

Spring Hill Neighbourhood Plan
Brisbane City Council has adopted the Spring Hill Neighbourhood Plan, which will come into effect as part of the Brisbane City Plan 2014 on 14 September 2018. The revised plan aims to prioritise future growth, protect heritage places and promote economic development, by supporting well designed urban environments, improving pedestrian activity and increasing retail spaces. More...

Spit vision statement
The State Government has released a final ' vision statement' for The Spit, as part of the ongoing master planning process. A Report on the consultation for the draft vision statement, document has also been released to explain the process of developing this vision (27 July 2018).

Prosecutions Bulletin July 2018
Prosecution bulletin no 9/2018

Cases

Victoria

Life Design Architecture v Monash CC [2018] VCAT 1226
Monash Planning Scheme – Commercial 1 Zone – Office precinct – Amend a permit – Mixed use eleven storey building – Construct a larger mezzanine floor above the ground floor – Use the new mezzanine floor for restaurants – 49 additional patrons – Internal amenity – Car parking.

Clark v Owners Corporation Rubicon Village PS 529035 (Owners Corporations) [2018] VCAT 1188
Administrator – application for re-appointment of administrator – sewerage treatment system on land of applicant (lot owner) – dispute between applicant and other lot owners – permanent solution requires to secure provision of water and sewerage services for lot owners – administrator achieved temporary solution - administrator reappointed – Owners Corporations Act 2006 ss 125, 126, 127.

Galea v Hobsons Bay CC [2018] VCAT 1128
Section 77 Planning and Environment Act 1987 – Hobsons Bay Planning Scheme – General Residential Zone Schedule 2 – Design and Development Overlay Schedule 4 – Special Building Overlay – Clause 52.06 - Car Parking – Neighbourhood Character – Landscaping – Openness of Rear Yards – Reduction of visitor space requirement.

Icon Co (Jessamine Avenue) Land Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1134
NATURE OF CASE Demolition of C graded contributory building in a Heritage Overlay.
LOCATION OF PASSAGE OF INTEREST Paras 33-73.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - APPLICATION – significant, interesting or unusual use or development – application of policy, provision or principle – or circumstances. Consideration of principles of integrated decision-making in Boroondara City Council v 1045 Burke Road Pty Ltd – whether need for additional residential development outweighs objectives to conserve heritage in deciding whether to grant permit for demolition of a heritage building in the Heritage Overlay.

New South Wales

Little v Tomicic [2018] NSWLEC 1413
TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta pipes – when the damage occurred – actions taken by the applicant – actions taken by the respondent.

Bouveng v Garward [2018] NSWLEC 1411
TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – adjoining property – fences not located on boundaries – parties given an opportunity to make submissions on property boundaries.

Modog Pty Ltd v North Sydney Council [2018] NSWLEC 1420
DEVELOPMENT APPLICATION – adaptive reuse of an existing commercial building to a mixed use – addition of a storey and roof terraces above; exceedance of the height of buildings development standard and non-compliance with the non-residential floor space ratio development standard; whether the elements that form the roof terraces are architectural roof features within the meaning of clause 5.6 of the North Sydney Local Environmental Plan 2013; amenity impacts on neighbouring properties.

Burgin v Turnbull [2018] NSWLEC 1412
TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta sewer pipes – the tree was there first – the tree has been removed – whether the tree caused damage – poorly constructed retaining wall – whether damage has occurred since the applicant purchased –applicant made spurious claims in attempting to reach agreement with the respondent.

Burns v Ku-ring-gai Council [2018] NSWLEC 1401
DEVELOPMENT APPLICATION – tree – safety – heritage significance – character.

Cerny v Randwick City Council [2018] NSWLEC 1403
DEVELOPMENT APPLICATION – secondary dwelling – streetscape – height – juxtaposition of SEPP and DCP.

Feros Hotel Group Pty Ltd v Northern Beaches Council [2018] NSWLEC 1404
DEVELOPMENT APPLICATION – alterations to existing tavern – increased patron levels of tavern sought – required parking – adequacy of parking surveys and analysis – disagreement on determination of parking demand for "pubs" – ability to provide acceptable additional parking – proportion of parking acceptable on-street – acoustic impacts – impacts on neighbours – objections.

Brigham v Canterbury–Bankstown Council [2018] NSWLEC 1406
APPEAL- development application for alterations and additions – proposal exceeds the maximum floor space ratio under cl 4.4 of the Canterbury – Bankstown Local Environmental Plan- adequacy of the applicant's clause 4.6 written request to vary development standard – whether compliance with the standard is unreasonable and unnecessary in the circumstances of the case.

The Owners - Strata Plan 6666 v GSA Australia Acquisition No 2 Pty Ltd and Kahu Holdings Pty Ltd; The Owners - Strata Plan 6877 v GSA Australia Acquisition No 2 Pty Ltd and 2-4 Lachlan Avenue Pty Ltd [2018] NSWLEC 115
STRATA REDEVELOPMENT SCHEMES – strata redevelopment schemes for adjacent properties – common acquiring purchaser – dissenting owners in each scheme – whether proceedings should be heard together on application of acquiring purchaser – application supported by the owners' corporations of each strata plan – applications opposed by each dissenting purchaser - matter involving Strata Plan 6666 already set down for hearing for seven days commencing on 5 November 2018 – preferred counsel and town planning expert for dissenting owner in Strata Plan 6877 not available for these hearing dates – consideration of likely coincidence of issues – objective of the "just, quick and cheap" disposition of the issues genuinely in dispute – balancing of efficient allocation of court resources with the convenience of counsel and experts – limited preparation for trial to date in either matter – availability of trial judge for further four continuous sitting days if needed – not appropriate to set matters down to be heard together – however, appropriate to set matters down in the allocated hearing period with common commencing time – intensive case management appropriate to ensure common issues (as relevant) are heard together – both matters set down to commence on 5 November 2018 – direction for immediate case management conference.

Hopkins v Quinn [2018] NSWLEC 117
DEVELOPMENT - proceedings commenced pursuant to open standing provisions of the Environmental Planning and Assessment Act 1979 - development carried out on adjoining property without owner's consent - carried out in breach of court orders - actual and potential functional deficiencies in works resolved - certification provided to applicant as to adequacy of drainage works - applicant persisted in pursuing litigation after adequacy certification provided to him - only outstanding matter whether agricultural drainage pipe installed across boundary with property not owned by the applicant - incursion shown to exist to a maximum of 60 millimetres - no functional impact on enjoyment of property resulting from incursion.
DISCRETION - proceedings commenced pursuant to s 123(1) of the Environmental Planning and Assessment Act 1979 not pursuant to s 123(2) - relevant guidelines from Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335 set out - analysis of applicability of relevant guidelines - no appropriate basis to require rectification in light of trifling extent of incursion - requirement to rectify would also be contrary to principles of ecologically sustainable development - no utility in making bare declaration - summons dismissed.
COSTS - applicant commences Class 4 civil enforcement proceedings - utility in proceedings up until all functional issues in or potentially in dispute resolved - certification provided to applicant on 26 April 2018 demonstrated no functional issues unresolved - proceedings continued by applicant to a contested hearing despite no utility - proceedings not compromised or discontinued after certification provided on 26 April 2018 - no evidence concerning what took place between the parties after that date - prima facie appropriate costs outcome that the respondents pay the applicant's costs up to and including 26 April 2018, as agreed or assessed, and, from 27 April 2018, the applicant pay the respondents' costs, as agreed or assessed - opportunity afforded to seek some alternative costs order - if no alternative costs order sought within 28 days, costs to be ordered as proposed.

Scevola v Minister Administering National Parks and Wildlife [2018] NSWCA 171
LAND AND ENVIRONMENT – application for leave to appeal from summary dismissal and costs orders – claim for declaratory and other relief regarding alleged compulsory acquisition of land in contravention of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – no arguable basis identified that primary judge erred in summary dismissal – no basis identified on which discretion as to costs miscarried.

Strata Plan 47027 v McGinn [2018] NSWSC 1228
PRACTICE AND PROCEDURE – applications – default judgment – defamation – failure to file defence – failure to plead essential element in cause of action – application dismissed.
PRACTICE AND PROCEDURE – applications – default judgment – discretionary considerations – applicant using default judgment as a tactic to pressure defendant in circumstances where it is known that proceedings will be defended.
PRACTICE AND PROCEDURE – applications – strike out application – defamation – statement of cross-claim struck out for not pleading publication.
PRACTICE AND PROCEDURE – jurisdiction – transfer of proceedings – transfer defamation cross-claim from Equity Division to Common Law Division.
PRACTICE AND PROCEDURE – costs – special costs orders – indemnity costs – costs payable forthwith - order for indemnity costs to be payable forthwith refused where both applicant and cross-defendants responsible for bringing and prolonging hopeless application.

So Nash Pty Limited v Inner West Council (No 2) [2018] NSWLEC 1391
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 – deferred commencement conditions deleted and changes to the proposal described in those conditions incorporated in amended architectural drawings.

Leda Holdings Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1394
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling currently under construction – new tennis court – exceedance of height of buildings development standard – impact on streetscape.

Hussar Pty Ltd v Northern Beaches Council; Sekulic v Northern Beaches Council [2018] NSWLEC 1393
ORDER and MODIFICATION APPLICATION – non-compliance of development consent – deletion of undergrounding of utility services condition – village streetscape – landscaping constraints.

Moseley v Queanbeyan-Palerang Regional Council (No 3) [2018] NSWLEC 111
ENVIRONMENTAL OFFENCES – COSTS – exercise of discretion whether to award costs thrown away in course of finalising stated case to Court of Criminal Appeal.

Fordham v Environment Protection Agency [2018] NSWCA 167
DECLARATORY RELIEF – where EPA issued notices to appellant directors or executives under Protection of the Environment Operations Act 1997 (NSW), Part 7.5 requiring answers to questions regarding possible contraventions by a corporation of provisions which may also give rise to a special executive liability under s 169 – where appellants sought declarations that not required to answer questions if did not have benefit of immunity against self-incrimination conferred by s 212(3) – where primary judge held no legal controversy capable of being subject of declaratory relief – where following filing of appeal EPA conceded question in issue, but not on grounds argued before primary judge – whether primary judge erred in not making declarations sought – before concession made there was a sufficient controversy to justify declaratory relief – after concession declaratory relief in terms sought not justified.
DECLARATORY RELIEF – where remedial orders sought under Protection of the Environment Operations Act, s 252 and declarations made as to breach of offence provision – where terms of declaration misidentify provision found to have been breached – where foundation for making remedial orders removed by making of concession after appeal proceedings commenced – declarations and remedial orders set aside.

XR Property Developments Pty Ltd v Sekers [2018] NSWSC 1181
PROCEDURE — Contempt, attachment and sequestration — Enforcement of undertaking given to the Court to guarantee payment of costs.

Queensland

Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council [2018] QSC 170
ADMINISTRATIVE LAW JUDICIAL REVIEW MEANING OF DECISION GENERALLY where a developer submitted a request for mapping change of an overlay map to the council via an online form where the council refused the request where the developer applied for a statutory order of review of that refusal where the council applied to have the application summarily dismissed under rule 16 of the Uniform Civil Procedure Rules 1999 and section 48 if the Judicial Review Act 1991 whether the refusal was a decision to which the Judicial Review Act 1991 applied.
ADMINISTRATIVE LAW JUDICIAL REVIEW DECISIONS UNDER AN ENACTMENT DECISIONS UNDER INSTRUMENTS where the council applied to summarily dismiss the application by a developer for statutory review of a refusal to amend an overlay map whether the refusal was made under an enactment.
ADMINISTRATIVE LAW JUDICIAL REVIEW GENERALLY where the council applied to summarily dismiss the application by a developer for statutory review of a refusal to amend an overlay map where the council alleged that the application did not comply with section 25 of the Judicial Review Act 1991 because it did not set out the grounds whether the application complied with section 25 of the Judicial Review Act 1991.

Legislation

New South Wales

Proclamations commencing Acts
Water Management Amendment Act 2018 No 31 (2018-421) — published LW 8 August 2018

Regulations and other miscellaneous instruments
Biodiversity Conservation (Savings and Transitional) Further Amendment Regulation 2018 (2018-423) — published LW 10 August 2018
Inclosed Lands Protection Regulation 2018 (2018-425) — published LW 10 August 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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Authors
Peter Holt
Gerard Timbs
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You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions