In the media
Making our energy system more secure
The Government has welcomed the Australian Energy Market
Commission's (AEMC) draft rule requiring
generators to provide at least three years notice of closure. The
AEMC also recommended that the three year rule notice requirement
be backed up by penalties for non-compliance (16 August 2018).
More...
Climate change threatens property and lives, but
politicians fail to work together
A much-anticipated Senate Inquiry into climate
change's impact on housing, buildings and infrastructure has
seen the three major political parties unable to agree on a single
recommendation. The report, delayed three times before, was
released on Monday 13 August (14 August 2018).
More...
Future of our marine parks secured
The Senate has endorsed the Government's marine park
management plans, which brings all 60 Australian marine parks under
protection - the second largest system of protected marine habitats
in the world (16 August 2018).
More... More...
Victoria
Are we ignoring the heritage value of Melbourne's
mid-century architecture?
Post-war architecture may not compare in beauty and
grandeur to many of our Victorian-era buildings, but is it just as
worthy of heritage protection? The National Trust and a passionate
group of activists certainly think so (24 August 2018).
More...
World leading environment protection for Victoria
The Andrews Labor Government has passed new laws that
strengthen the Environment Protection Authority
(EPA) – giving the regulator the powers and
tools it needs to stop pollution and protect Victoria's
environment (22 August 2018).
More...
Sun sets on dodgy property developers
The Andrews Labor Government is protecting Victorians
buying property off-the-plan from delay tactics used by some
property developers to rip people off. The Sale of Land
Amendment Bill 2018 will restrict the use of sunset clauses
without the purchaser's consent (22 August 2018).
More...
EPA approves 12 Apostles wastewater treatment
application
Environment Protection Authority Victoria
(EPA) has granted a works approval to 12 Apostles
Hot Springs Pty Ltd to construct onsite waste water treatment
plants that would service a proposed geothermal hot springs project
on Booringa Road, Princetown (16 August 2018).
More...
New South Wales
Charges laid by new water regulator
The Natural Resources Access Regulator
(NRAR) has issued a number of charges in the north
and south-west of NSW for various water offences allegedly
committed. The NRAR is the new independent water regulator in NSW
and commenced operations on 30 April 2018 (24 August 2018).
More...
Illegal waste storage 'criminally negligent'
– Court
A man who illegally stored waste, including asbestos, at a
Hunter Valley waste facility has been fined $35,000 for actions
described by the Land and Environment Court as "criminally
negligent" (23 August 2018).
More...
New wildlife sanctuary to reintroduce extinct species to
NSW
Ten native mammals that have been extinct in New South
Wales for more than a century will be reintroduced to a national
park in the state's south-west (22 August 2018).
More...
Governance Review by Nick Kaldas
Nick Kaldas, former NSW Deputy Police Commissioner and
Director of Internal Oversight Services for the UN's Relief
Works Agency, has been engaged to undertake this governance review
of decision-making in our planning system (21 August 2018).
More...
Response to NSW Ombudsman water report
The NSW Government has accepted the recommendations from
the Ombudsman's final report into the management of water
across the State, after its tabling in Parliament (17 August 2018).
More...
Protecting the future of our marine estate
The NSW Government is seeking community views on a new
marine park proposal, which includes 25 sites between Newcastle and
Wollongong (16 August 2018).
More...
Popular plants fail to make cut for urban green
spaces
Funded under the Hort Innovation Green Cities Fund, and in
partnership with Macquarie University, Western Sydney University
(WSU) and the NSW Office of Heritage and the
Environment, the Which Plant Where Project aims to improve
future planning outcomes to achieve greater environmental
sustainability in urban green spaces (16 August 2018).
More...
Short-term holiday letting policy given green
light
Short-term holiday letting will have tougher but fairer
regulation from 2019, after the NSW Parliament passed the
Government's plan for the industry yesterday. The mandatory
Code will come into force next year, and will apply to online
accommodation platforms, letting agents, hosts and guests across
the State (15 August 2018).
More...
NSW Bans Combustible Cladding
It is now an offence to use aluminium composite panels in
NSW, with major fines now in place. Corporations will be fined up
to $1.1 million and individuals up to $220,000 for use of the
building product under the ban, which came into action August 15
(14 August 2018).
More...
Queensland
Major irrigated agricultural development project a big
boost for North West
Queensland's independent Coordinator-General has
declared Flinders Shire Council's proposed 918-hectare
irrigated agricultural development a coordinated project, to create
jobs and drive sustainable economic activity in the region (24
August 2018).
More...
Solar battery scheme savings on the horizon
Safety systems are being set up ahead of a scheme to help
Queensland families install home batteries to store their solar
energy and take control of their power bills (23 August 2018).
More...
Full steam ahead for Southport Spit master plan
The Queensland Government's community led master plan
is on track to deliver a sustainable future for the Southport Spit
(18 August 2018).
More...
Demolition Complete on Great Keppel Island
Member for Keppel Brittany Lauga has revealed that the
planned demolition of the decommissioned Great Keppel Island resort
is now complete, paving the way for future development (16 August
2018).
More...
Almost 140 pre-1946 homes demolished in Brisbane over
five years
Brisbane City Council has approved the demolition of
almost 140 pre-1946 homes in the past five years. Between July 2013
and June 2018, there was 139 successful application to demolish a
pre-1946 dwelling, with 29 approved in the past financial year (14
August 2018).
More...
In practice and courts
Commonwealth
Festival of Urbanism coming to Sydney and Melbourne -
September 2018
For the first time, the Festival of Urbanism will be held
across Sydney and Melbourne on 4 September, with 18 events
challenging people to explore and engage with the built environment
in a new way.
More...
Current and future impacts of climate change on housing,
buildings and infrastructure
Senate Environment and Communications References
Committee; Parliament of Australia: 13 August 2018
To understand the implications for Australia's
infrastructure, this report examines the evidence received about
recent changes to the climate system, terrestrial environment and
the marine environment that are relevant when considering future
challenges for housing, buildings and infrastructure. More...
Announcements, Draft Policies and Plans released 2018
Victoria
New powers to protect the environment closer for EPA
Victoria
EPA welcomes the passage of the Environment Protection
Amendment Bill 2018 by the Victorian Parliament. The new Act
will give EPA stronger powers and the ability to issue tougher
penalties for environmental offences from 1 July 2020 (23 August
2018).
More...
Amendment VC148 Update
The VPP clauses with tracked changes are now available on
Planning Schemes Online. To view these documents, click
here. Individual clauses for the VPP and all planning schemes
are available
here (16 August 2018).
Exhibition
Yarra C238 proposes to introduce the Development Contributions
Plan Overlay and applies it to the entire City of Yarra municipal
area.
GC91 changes the planning provisions for five parcels of land
identified as surplus to Victorian Government requirements.
New South Wales
Inclusive Play Space Guidelines
Councils are encouraged to comment on new
Everyone Can Play in NSW design guidelines, which aim to make
play spaces across NSW more inclusive. The guidelines are intended
to provide a clear, practical reference for creating inclusive play
spaces that are accessible to everyone in the community.
The guidelines are on exhibition until 21
September 2018.
New building and subdivision certification provisions of
the EP&A Act postponed until 2019
The commencement of the new Part 6 provisions of the
Environmental Planning and Assessment Act 1979
(EP&A Act), which cover building and
subdivision certification, has been postponed until 1 September
2019. This will allow the sector time to adjust to other recent
significant changes to the Act and to building and fire safety
regulations.
More...
NSW Fair Trading: Proposed ban on the use of certain
types of aluminium composite panels
NSW Fair Trading Commissioner has given notice of her
intention to impose a building product use ban under the
Building Products (Safety) Act 2017. The intended ban will
prohibit the use of aluminium composite panels with a core
comprised of more than 30 per cent polyethylene by mass in any
external cladding in certain multi-storey buildings. The ban came
into force on 15 August 2018.
More...
Sydney Harbour National Park: exhibition of the Gap
Bluff Hospitality proposal and review of environmental
factors
Tell us what you think about the
Gap Bluff Hospitality proposal for the use of 6 buildings
located in Sydney Harbour National Park at Gap Bluff – Watson
Bay, South Head, Camp Cove and Green Point. The proposal is now
available for review and comment until 6 September 2018.
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 on 17 August 2018.
More...
Queensland
PCA: Combustible Cladding Update
The Queensland Government has launched a new website
providing further information on the new obligations on owners of
private and local government buildings to undertake a mandatory
'combustible cladding checklist'. The 'Safer
Buildings' website will be the portal through which
building owners register and begin the new statutory three stage
process, aimed at identifying buildings in Queensland that may have
potentially combustible cladding. Coming into effect on 1 October
2018, is the
Building and Other Legislation (Cladding) Amendment Regulation
2018 (22 August 2018).
More...
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...
DNRME Consultations
Proposed Susan River Solar Farm
Make a submission about the proposed generation authority. Closes 7
September 2018.
Proposed Childers Solar Farm
Make a submission about the proposed generation authority. Closes 7
September 2018.
Proposed Clermont Solar Farm
Make a submission about the proposed generation authority. Closes 7
September 2018.
Prosecutions Bulletin August 2018
Prosecution bulletin no 11/2018
Cases
Victoria
Butler Market Gardens Pty Ltd v GG & PM Burrell Pty
Ltd [2018] VSC 461
PRACTICE AND PROCEDURE – Security for costs –
Whether discretion enlivened – Weighing of discretionary
factors – Significance of late timing of application –
Defendant insured – Whether ordering security would stultify
proceeding – Whether proceeding should be stayed pending
provision of security.
The plaintiff, Butler Market Gardens Pty Ltd
(BMG), claims damages in negligence and nuisance
from the defendant, GG & PM Burrell Pty Ltd
(Burrell). The claim is made in respect of damage
to a spring onion crop grown by BMG on land it leased from Burrell
at Beverford, near Swan Hill, in July and August 2014.
New South Wales
Samcourt Pty Ltd v Inner West Council
[2018] NSWLEC 1442
APPEAL – development application –
permissibility – characterisation of use – whether
premises will be used for a 'creative purpose' – how
to achieve requisite state of satisfaction that premises will be
used for a 'creative purpose' – floor space ratio
– whether development consent can be granted notwithstanding
breach of the floor space ratio development standard –
consistency with the objectives of the standard – whether cl
4.6 request adequate.
Land Dynamics Pty Ltd v Port Macquarie Hastings
Council [2018] NSWLEC 1443
Development Application – Koala linkages and
corridors – SEPP 44 – Port Macquarie Hastings LEP 2011
clause 7.5 – Koala Plan of Management.
Georges River Council v Stojanovski
[2018] NSWLEC 125
CIVIL ENFORCEMENT – Development without necessary
consent – exercise of discretion to grant appropriate relief
– demolition ordered.
Environment Protection Authority v Edward
Gilder [2018] NSWLEC 119
ENVIRONMENTAL OFFENCES – executive liability offence
- person concerned in the management of a company which caused a
place to be used as a waste facility without lawful authority
contrary to s 144(1) of the Protection of the Environment
Operations Act 1997 (NSW).
SENTENCING – appropriate sentence for the offence –
determination of the objective seriousness of the offence and
subjective circumstances of the defendant – lower level of
objective seriousness – consideration of s 6 of the Fines
Act 1996 (NSW).
Wenli Wang v North Sydney Council
[2018] NSWLEC 122
DEVELOPMENT APPLICATION – appeal against
Council's refusal of development application for demolition of
existing two storey residential dwelling and construction of three
storey residential dwelling – effect of a restrictive
covenant – weight to be afforded to a covenant where it is
set aside by planning instrument – assessment of view
loss.
Carlewie Pty Ltd v Roads and Maritime
Services [2018] NSWCA 181
ENVIRONMENT AND PLANNING – Land and Environment
Court – jurisdiction and powers – Commissioners –
court constituted by a judge assisted by a Commissioner –
language of judgment indicative of joint decision-making –
Commissioners not to adjudicate – whether judgment invalid on
basis that Commissioner adjudicated on matter.
ENVIRONMENT AND PLANNING – Land and Environment Court –
practice and procedure – Commissioners advising and assisting
judges – scope and limits of Commissioners' role.
WORDS AND PHRASES – "may assist and advise the Court,
but shall not adjudicate on any matter" – Land and
Environment Court Act 1979 (NSW), s 37.
Modog Pty Limited v North Sydney Council
[2018] NSWLEC 120
DEVELOPMENT APPLICATION - residential flat building -
prohibited use - reliance on existing use rights - non-derogation
principles - applicability of non derogation principles to controls
in a development control plan - merit assessment of proposed
development on a first principles' qualitative basis without
regard to numerical controls in the relevant local environmental
plan, the Apartment Design Guide and the applicable development
control plan - qualitative assessment of the proposed development
having regard to the objectives of the development control plan but
setting aside all consideration of numerical controls - significant
unacceptable impacts would arise from the proposed development on
apartments in an adjoining property - unacceptable internal amenity
impacts if the development proposal was to be approved - proposed
development inappropriate in a streetscape context - impact on
significant tree unacceptable - proposed development not
appropriate to be approved APPEAL - possible "amber
light" approach - fall-back option advanced by applicant -
assessment of fall back option - significant unacceptable impacts
would remain on apartments in an adjoining property if the
fall-back option was approved - unacceptable internal amenity
impacts if the fall-back option was to be approved - proposed
fall-back option inappropriate in a streetscape context - impact on
significant tree would remain unacceptable - proposed fall-back
option not appropriate to be approved - appeal dismissed.
Celik v Canterbury-Bankstown Council
[2018] NSWLEC 1430
MODIFICATION APPLICATION – application to modify
consent to allow a mezzanine level in each garage of a dual
occupancy - conciliation conference - agreement between the parties
– orders.
Saffioti v Kiama Municipal Council
[2018] NSWLEC 1426
Development Application – existing use rights, the
extent to which Kiama LEP 2011 and Kiama DCP 2012 derogate from the
Applicant's existing use rights; impact of the proposed
development on native vegetation and an endangered ecological
community.
Initial Action Pty Ltd v Woollahra Municipal Council [2018]
NSWLEC 118
APPEAL – appeal against a Commissioner's
decision on questions of law – refusal of development consent
– development contravened height development standard –
Commissioner not satisfied that contravention of development
standard justified – misinterpretation and misapplication of
cl 4.6 of Woollahra Local Environmental Plan 2014 – denial of
procedural fairness – determination based on issue and
evidence not pleaded or presented by parties – form of
remitter order – whether exclusionary remitter order
appropriate.
Queensland
Mirani Solar Farm Pty Ltd v Mackay Regional
Council [2018] QPEC
38
APPEAL AGAINST REFUSAL OF APPLICATIONS – where
appellant lodged a series of applications designed to permit the
construction of a Major Utility (Solar Farm) – where proposed
development would be located on Good Quality Agricultural Land
– where proposed use as Major Utility for a limited period of
forty years – where proposed utility would be used in
conjunction with grazing of sheep – where at end of the forty
year term the land would remain good quality agricultural land
– where after removal of intended infrastructure land could
be used for more intensive agricultural uses.
Legislation
New South Wales
Regulations and other miscellaneous instruments
Biodiversity Conservation Act 2016 — Final
Determination (2018-463) — published LW 24 August
2018
Biodiversity Conservation Act 2016 — Final
Determination (2018-464) — published LW 24 August
2018
Contaminated
Land Management (Adjustable Amounts) Notice 2018 (2018-467)
— published LW 24 August 2018
Environmental
Planning and Assessment Amendment (Regional Planning Panel) Order
2018 (2018-469) — published LW 24 August 2018
Water
Management (General) Regulation 2018 (2018-480) —
published LW 24 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.