Australia: Planning & Environment News – 19 September 2018

Last Updated: 21 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

With more families in apartments, attitudes are changing
Australian cities are growing rapidly. Echoing international trends, higher-density housing will accommodate much of this growth in the inner city. Such housing – mostly apartments, townhouses and blocks of flats – is usually associated with young urban professionals and the childless elite. But families with children do live in apartments and even more will do so in the future (3 September 2018). More...

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...

Future of our marine parks secured
The Senate has endorsed the Turnbull 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...


Victorian town drives unique renewable energy strategy
The small town in north-east Victoria is implementing a solar energy strategy that will generate power off the grid, reduce local demand for electricity during peak summer periods, and decrease the price of energy (6 September 2018). More...

Inner west blitz on dangerous goods continues
A WorkSafe and Environment Protection Authority Victoria (EPA) blitz on industrial sites in the West Footscray area is continuing, with 78 sites visited and 68 contraventions identified in relation to the handling and storage of dangerous goods (6 September 2018). More...

Building Victoria's largest virtual power plant

The Andrews Labor Government will help fund Victoria's largest virtual power plant, as part of a major investment in microgrid technology across Victoria. The Origin Energy Virtual Power Plant (VPP) will boost grid stability by discharging power from solar PV and batteries located at homes and commercial and industrial sites to reduce their power bills (5 September 2018). More...

Telstra called out for super-sized ad billboards 'masquerading' as payphones
Super-sized phone booths that also act as an electronic billboard are being installed on Melbourne's crowded foothpaths, bringing in significant ad revenue for Telstra without the need for planning permits (3 September 2018). More...

Phillip Island documents reveal multi-million-dollar Coalition settlement with developers
The Andrews Government seizes on documents revealing the Coalition struck a multi-million-dollar settlement with developers over the rezoning of land on Phillip Island (3 September 2018). More...

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

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'
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...

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. 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...

New South Wales bans combustible cladding
As of this week it will be an offence to use aluminium composite panels in NSW, or be faced with major fines. 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 comes into action August 15 (14 August 2018). More...


Stop Order issued on Broadway Hotel
To ensure the protection of the Broadway Hotel in Woolloongabba, Minister for Environment Leeanne Enoch has issued a Stop Order under section 154 of the Queensland Heritage Act 1992 (7 September 2018). More...

New Councillor Code of Conduct to enforce higher standards in Local Government
A new Councillor Code of Conduct spelling out the minimum behaviour required of Local Government elected representatives has been released (7 September 2018). More...

Brisbane station to undergo multimillion-dollar transit oriented development
Brisbane's Ferny Grove train station will experience major transformation, with plans to revitalise the precinct into a transport, retail and residential hub. Honeycombes Property Group will deliver the new Transit Oriented Development (TOD) (28 August 2018). More...

Controversial north-west Brisbane neighbourhood plan to be implemented
A controversial neighbourhood plan that received more than 700 submissions and has been debated for close to three years will be implemented in September. The Ferny Grove-Upper Kedron Neighbourhood Plan, which includes the Cedar Woods development, was first proposed by Brisbane City Council in June 2014 (28 August 2018). More...

Farm manager fined $10,000 for chemical misuse
The manager of an Emerald farm has been fined $10,000 in the Emerald Magistrates Court for misusing agricultural chemicals (29 August 2018). More...

In practice and courts


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. Click here for more information.

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

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...


Department of Environment and Science: Current Prosecutions
Prosecution bulletin no 11/2018



2426 Grenville Pty Ltd v Bayside CC (Red Dot) [2018] VCAT 1338
NATURE OF CASE Application to develop an apartment building on the subject land.
LAW – Issue of interpretation or application – consideration of the mandatory garden area requirement in the context of a permit application with a floor level below the existing ground level.
LEGISLATION – Interpretation or application of statutory provision.
PLANNING SCHEME – Interpretation or consideration of VPP provision – identification of apparent oversight when Amendment VC143 did not delete the words 'at ground level' in clause 32.08-4 despite an intent to do so, as evident in the 'tracked changes' version of the clause.

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.

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.


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

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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