Australia: Planning & Environment News – 4 September 2018

Last Updated: 8 September 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, September 2018

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.

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Peter Holt
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