Australia: Property & Real Estate News – 10 September 2018

In the media


Tax regime 'holds back' fledgling build to rent sector
Developers are facing reduced returns from build-to-rent projects which in turn is disenfranchising a sector that could be part of the affordable housing solution. Research released by CBRE has underlined the three main taxes affecting apartments built for lease rather than for sale (31 August 2018). More...

House prices fall in Australia's largest cities
Australian home prices have continued to drift with declines reported across a majority of mainland state capitals (28 August 2018). More...

Property Council welcomes focus on cities
The Property Council has welcomed the Morrison Government's continuing focus on the infrastructure needs of our cities through the appointment of a dedicated Minister to deal with cities, urban infrastructure and population matters (27 August 2018). More...

Time for a national conversation on future of regional towns
The Planning Institute of Australia has called for a "national conversation" to the future character of Australia's regional towns and cities as it raises concerns about the influx of government agencies being moved to regional centres (26 August 2018). More...

Policymakers push for cladding standard
Ministers have asked Standards Australia to develop an Australian Standard for permanent labelling of aluminium composite panels. A Building Ministers' Forum (BMF) meeting, also attended by industry representatives, has agreed the issue is "critical" and the labelling will be mandated through the National Construction Code (20 August 2018). More...


Brisbane apartment market at 'turning point'
Despite the continued decline in off-the-plan transactions, a new report reveals it's the owner-occupier market underpinning strong demand for inner-Brisbane's apartment stock, Urbis research reveals (24 August 2018). More...


Protecting heritage gems on Queens Parade
Minister for Planning Richard Wynne has announced heritage protection of a range of Queens Pde landmarks, as well as interim height controls in the Clifton Hill/North Fitzroy precinct. A new amendment introduces interim controls along Queens Pde to guide heights and setbacks of new developments so they suit the heritage character of the area (31 August 2018). More...

Factory fire clean up update
Environment Protection Authority Victoria (EPA) is continuing to monitor air and water quality from the West Footscray factory fire and is entering the clean-up phase (31 August 2018). More...

Apple Fed Square upgrade fails to impress planners at city council
Problems remain with Apple's Federation Square store, Melbourne City Council officers say (30 August 2018). More...

Two years on: Labor ban on fracking rock solid
Two years ago, the Andrews Labor Government permanently banned the exploration and development of onshore unconventional gas in Victoria, including hydraulic fracturing – or 'fracking' – and coal seam gas (30 August 2018). More...

In practice and courts

Announcements, Draft Policies and Plans released 2018


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...

Public notice: Proposed raising of Hobsons Road, Kensington between Bateman Road and Stock Bridge
The Proposal forms part of the Melbourne Water Incorporated Plan for Hobsons Road that addresses flooding issues in the whole precinct and includes the provision of a pedestrian link from 71-113 Hobsons Road to Riverside Park. Submission to be heard are due before 04 October 2018 Committee meeting. More...


QLS: The PEXA hack – new security guidelines and why they are important even to firms which do not use e-conveyancing
In two separate incidents, clients have lost substantial amounts after a conveyancer's email was compromised and funds diverted by altering payment information on the PEXA platform. PEXA has now introduced new security measures to prevent attacks of a similar nature and all subscribers are strongly advised to implement them (August 2018).


Ventura & Anor v Ventura & Ors [2018] VSC 485
PROPERTY LAW – Co-owners entered into contract to sell land – one co-owner refuses to complete the contract – rights of other co-owners to compel completion – Property Law Act 1958, s 49.
PRACTICE AND PROCEDURE – Application by originating motion in Form 5C pursuant to the special procedure – Supreme Court (General Civil Procedure) Rules 2015, r 45.05 – whether appropriate procedure – Procedure appropriate in the particular circumstances.
PRACTICE AND PROCEDURE – Execution of instrument by order of Court under s 22 of the Supreme Court Act 1986 (Vic) – circumstances where appropriate to order.

Linard v Wellington Shire Council & Anor [2018] VCC 1205
NUISANCE - Airborne litter discharged from a tip entering onto the plaintiff's hobby farm - extent to which the airborne litter was caught by intervening fences and tree lines - extent to which any airborne litter contaminated the pasture on the plaintiff's hobby farm - whether the interference with the plaintiff's enjoyment and use of his hobby farm was both substantial and unreasonable - steps taken by the defendants to prevent airborne litter entering onto the plaintiff's hobby farm - balancing the user and public utility of a tip against the allegations of nuisance made by the plaintiff - utility of injunctive relief - alternatively, whether the plaintiff had suffered any financial loss - whether the hobby farm was a viable and would produce a financial profit - methods of calculation of the financial loss - alternatively, damages for inconvenience, discomfort and intrusion - alleged interference neither substantial nor unreasonable - plaintiff failed to prove any financial loss - plaintiff failed to prove any inconvenience, discomfort and intrusion beyond negligible.
Judgment: The plaintiff's proceeding is dismissed.

Paolucci v Monash CC [2018] VCAT 1261
Section 77 Planning and Environment Act 1987 - Monash Planning Scheme - Neighbourhood Residential Zone Schedule 4 - Vegetation Protection Overlay Schedule 1 - neighbourhood character - landscaping - visual bulk - Amenity Impacts.

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.

Moreton Bay R egional Council v White & Anor [2018] QLAC 4
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – categories of land – where appellant objects to rating categorisation of property – where no appropriate category exists – where the subject land contains a main house and a granny flat – where it was decided the appropriate category was O1.

Nancy & Albert Pty Ltd v McDonald's Australia Pty Ltd [2018] QCAT 285
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – Ground lease – determination of current market rent on the basis of unimproved land value – whether determination by specialist retail valuer complies with the requirements of the Retail Shop Leases Act, reprint 3E – whether valuer failed to comply with s 29 of the Retail Shop Leases Act in not determining the rent on the basis of the rent that would be reasonably expected to be paid for the retail shop if it were unoccupied and offered for leasing for use for which the shop may be used under the lease or substantially similar use, but instead determined the current market rent on the basis that the lease was a ground lease and did not take into account improvements on the leased land – whether a specialist retail valuer's report was not a proper determination because it failed to disclosure certain information relied upon within it, indicate how comparable properties were relevant, how the benefit of easements have been taken into account – whether the report failed to have regard to exclusive use provisions – whether valuer failed to specify the matters taken into account – whether adequate.

Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283
REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS – JURISDICTION AND POWERS OF COURTS AND TRIBUNALS – Application by former caretaking services contractor seeking damages for breach of terminated contract – whether application can be made by former service contractor about former contract – whether Queensland Civil and Administrative Tribunal has jurisdiction to hear application – whether Queensland Civil and Administrative Tribunal has power to award damages for breach of contract.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – JURISDICTION – Application by former caretaking services contractor seeking damages for breach of terminated contract – whether application can be made by former service contractor about former contract – whether tribunal has jurisdiction to hear application – whether tribunal has power to award damages for breach of contract.


Acts assented
Residential Tenancies Amendment (Long-term Tenancy Agreements) Act 2018
Date of assent: 28 August 2018 Act Number 40/2018

Environment Protection Amendment Act 2018
Date of assent: 28 August 2018 Act Number: 39/2018

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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Chris Brodrick
Katie Miller
Gerard Timbs
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