In the media
Off-the-plan apartment pain as property prices
fall
Off-the-plan apartment buyers are being hit with the
double-whammy of tougher home loan rules and falling property
prices, leaving many struggling to complete their purchases (3
October 2018).
More...
Affordable home-ownership scheme offers a pathway out of
social housing
Social housing is in crisis in Australia, with almost
200,000 people on waiting lists. Social housing made up 8% of all
housing stock in Australia in 1966. This had fallen to just 4.3% at
July 2016. As a result, governments have tightened eligibility (3
October 2018).
More...
Extensive land clearing in Barrier Reef catchment
revealed in Government climate report
New data released in the Government's quarterly
emissions update reveals land clearing in the Great Barrier Reef
catchment was at its second highest in a decade during the year to
June 2017 (29 September 2018).
More...
Industry moves on labelling and recycling targets
The new labelling system developed by Planet Ark, PREP
Design and the Australian Packaging Covenant Organisation
(APCO) provides easy-to-understand recycling
information when we need it most – in those few seconds when
Australians are deciding which bin to use (26 September 2018).
More...
Victoria
A new planning Framework for Fisherman's Bend has
been released
The Framework has been designed to meet the needs of the
new vibrant neighbourhood in Fishermans Bend. Under the new
Framework it will be a low carbon, climate resilient community,
with world-leading sustainability initiatives. To view the
Framework and planning controls, click here (5 October
2018).
More...
Height restrictions for developers at urban renewal zone
in inner-Melbourne
Developers at Fishermans Bend say they have been given
six weeks to re-submit plans worth billions of dollars, after
"radical" changes to height restrictions were introduced
by the Victorian Government (5 October 2018).
More...
On why Victoria is picking sustainability as a vote
winner and why others should pay attention
Sustainability Victoria is bracing for a busy 2019 with a
raft of programs to manage on behalf of the state government.
Queensland is another state that's clearly picked renewables as
a vote winner, committing to 50 per cent renewables by 2030 and a
government-owned company called CleanCo to oversee Queensland's
renewable energy (4 October 2018).
More...
Critical works reduce bushfire risk in north-east
Victoria
Firefighter access to some of the region's most fire
prone areas of public land is being improved through the Victorian
Government's $272.3 million Reducing Bushfire Risk program (1
October 2018).
More...
PCA: Victorian Government to support greater housing
choice
The Victorian Government's measures to support a new
Build-to-Rent asset class will see apartments with longer lease
terms and access to more amenities on the market in two years that
simply would never have been built without these measures. The
announcement has been made following a focused campaign of advocacy
from the Property Council of Australia (27 September 2018).
More...
Wellington finds 112 buildings with flammable
cladding
Wellington City Council has identified 112 buildings
featuring flammable cladding similar to the material that
contributed to London's devastating Grenfell Tower blaze (24
September 2018).
More...
New South Wales
Funding to support local infrastructure for 25000 new
homes in NSW
The NSW Government is investing more than $10 million to
help local councils deliver more than $165 million worth of
essential infrastructure to support growing communities across
metropolitan and regional NSW (5 October 2018).
More...
New seniors housing planning rules to benefit all
The NSW Government has responded to community concerns
about the incremental creep of seniors' housing developments in
rural and semi-rural areas, including Terrey Hills and Dural, by
amending the policy governing such developments (3 October 2018).
More...
Conservation landholders earn millions
Wagga Wagga is one of 7 regions that will soon be
participating in a program that has already converted some 11,000
hectares of private land into conservation areas (3 October 2018).
More...
Dodgy certifiers on notice with new laws
Conflicts of interest between building certifiers and
developers will be stamped out by tougher regulations being
proposed in NSW. Minister for Better Regulation Matt Kean said an
options paper is being released which sets out new ways of
improving transparency around the appointment of certifiers (2
October 2018).
More...
Koalas get 2000 hectares of safety
Nearly 2000 hectares will be added to NSW's
conservation estate to fulfil its pledge to protect the longer-term
future of the State's iconic koala population (1 October 2018).
More...
More red tape cut for rural and regional NSW through
Inland Code
Approvals for new homes, home renovations and farm
buildings will be made easier and faster for property owners and
farmers in regional NSW through the new Inland Code (28 September
2018).
More...
Planning controls not keeping pace with online holiday
rentals
Australia needs new planning tools to manage the rapid
growth in listings on Airbnb and other online holiday rental
platforms, according to a new study by researchers at The
University of Sydney. The study found that in some areas of coastal
Australia online listings of holiday lets far exceed existing
tourism accommodation (26 September 2018).
More...
$39 million road upgrade in North West Sydney is just
the beginning
A revised North West Special Infrastructure Contribution
(SIC) will deliver $1.5 billion for infrastructure
in Sydney's north-west over the next 30 years. The revised SIC
ensures strategic delivery of infrastructure as development takes
place and ensures developers and land-owners contribute their fair
share (26 September 2018).
More...
New University for Aerotropolis
The NSW Government has announced that four of NSW's
leading universities are joining forces to create a world class
university in the new Western Sydney Aerotropolis. It is expected
that Stage One of the new university will open by 2026, at the same
time the new airport is expected to be operational (21 September
2018).
More...
Queensland
Palaszczuk Government's solar interest free loans
roll out in Cairns
Cairns families are being urged to take advantage of
tropical North Queensland's sunny climate by applying for an
interest free loan of up to $4500 from the Palaszczuk Government to
help purchase a new solar system (3 October 2018).
More...
New solar farm guidelines bring community, industry
certainty
New guidelines will help communities have their say in the
next phase of Queensland's solar farm boom. For industry, these
guidelines provide a one-stop-shop guide on navigating government
development approvals, expectations about best practice to engage
the local community, location guidance and the legal framework
which governs solar farm developments (27 September 2018).
More...
Landmark trees to make way for new casino bridge
Four big trees will be removed at South Bank to make way
for the new Neville Bonner Bridge. There will also be a major
reshaping of the Cultural Centre forecourt near the Wheel of
Brisbane. It is unclear whether the public would have any way to
make comment on the proposal and its possible impact on the South
Bank Parklands (25 September 2018).
More...
Victoria Bridge goes 'green' in new plan for
separated cycleway
The plan to convert one lane of Victoria Bridge into a
two-way pedestrian and bike lane was a "massive win" for
Brisbane cyclists, an interest group says. The new design reduces
the number of metro and bus lanes from four to three, allocating
space for a "green" bridge to improve cyclist access into
the city from South Bank (25 September 2018).
More...
In practice and courts
Commonwealth
NABERS Annual Report 2017-2018
The 2017-18 financial year saw NABERS certify
record-levels of shopping centres throughout Australia, and
increase their NABERS Indoor Environment ratings in offices by 32%.
The year also witnessed the debut of NABERS for Public Hospitals
which certified 274 hospitals within a year of its launch, making
it the fastest uptake of any new NABERS tool to date (3 October
2018). More...
New South Wales
Changes to Seniors Housing SEPP
The Seniors
Housing SEPP has been amended to limit the incremental
expansion of land for seniors housing through the site
compatibility certificates (SCC) process. The
purpose of SCCs is to ensure development proposals are broadly
compatible with surrounding land uses before a development
application is lodged.
Land and Environment Court news
The Chief Judge is pleased to announce the appointment of
a new Commissioner to the Court. Mr Timothy Horton has been
appointed a Commissioner of the Court from 5 November 2018 for a
period of seven years (27 September 2018). More...
Dates for Environmental Planning & Assessment Act
Updates
Councils, certifiers and other industry practitioners have
more time to implement some of the recent EP&A Act updates.
Changes affect new provisions for
building and subdivision certification,
Local Strategic Planning Statements for councils in the Greater
Sydney Region and
Community Participation Plans. While most of the changes
commenced on 1 March 2018, there will be a number of other changes
that will involve further design and consultation from mid to late
2018.
NSW water metering framework
The NSW Government is committed to implementing a robust
new metering framework to measure and meter water take in NSW. The
new framework is a commitment under the NSW Government's Water Reform
Action Plan. The regulation will commence on 1 December
2018.
Policies
Urban Design for Regional NSW Draft Guide Closes
31/10/2018
Proposed amendments for short-term rental accommodation Closes
16/11/2018
Victoria
A Practitioner's Guide to Victorian Planning Schemes
(Version 1.0)
A Practitioner's Guide to Victorian Planning Schemes
(Version 1.0) is now ready to use. The guide has been designed to
help practitioners in the day to day formulation and drafting of
planning scheme provisions (4 October 2018).
Introducing the Amendments Register
Finding amendments has never been easier. The Smart
Planning team have implemented an
Amendments Register on the portal so you can find an amendment
and see how it is progressing (27 September 2018).
City of Melbourne: Draft Climate Change Mitigation
Strategy to 2050
The strategy sets out our commitment to science-based
targets in the Paris Climate Agreement and we call on the community
to have their say on how we can take collective action on climate
change. Opinions, ideas, and feedback could be submitted via
Participate Melbourne and closed on 14 October 2018.
Queensland
Prohibited Donor Legislation Declared
Legislation banning political donations from 'property
developers' in Queensland came into effect on 2 October 2018.
However, the prohibition has retrospective effect from 12 October
2017. The Electoral Commission Queenland (ECQ) has
released
a number of factsheets outlining information on the definitions
that will be used to determine prohibited donors. The application
process for individuals and entities to
seek a determination from the Electoral Commission in relation
to their status is also now open (4 October 2018).
Queensland Solar Farm Guidelines
Solar projects should be developed in harmony with other
land uses, take into account the interests of all stakeholders and
be supported by the community. The
Queensland Solar Farm Guidelines: Practical guidance for
communities, landowners and project proponents educates local
communities and project developers about best practice at each
stage of the project development cycle. It provides guidance about
development assessment and approvals, as well as the community
engagement process (27 September 2018).
More...
DNRME: Review of accepted development vegetation
clearing codes: consultation
Have your say on the revised draft codes for necessary
environmental clearing, managing encroaching and managing weeds.
Submissions close on 19 November 2018.
More...
Cases
Victoria
PBJ Blackburn Road Pty Ltd v Yarra Valley
Water [2018] VCAT
1530
Review of the imposition of water and sewerage service
charges to a property.
The application for review is allowed. VCAT declines to make any
declaration under s 305A of the Water Act 1989.
Kavellaris v Stonnington CC [2018]
VCAT 1522
Stonnington Planning Scheme - Construct buildings and
works for an underground car stacker in Special Building Overlay -
VicSmart Application requirements - Melbourne Water Guidelines for
Development in Floodprone Areas (2003) and Planning Practice Note
11 – Applying for a Planning Permit under the Flood
Provisions.
Nolan v Kingston CC [2018] VCAT
1512
Section 82 Planning and Environment Act 1987
– Public Park & Recreation Zone – Road Zone
Category 1 – Design & Development Overlay Schedule 1
– removal of native vegetation – alteration to access
to Beach Road – safety in relation to cyclists.
Braybon v Owners Corporation 317860 (Owners
Corporations) [2018] VCAT 1505
Subdivision Act 1988 – s 12(2) –
whether implied easement exists for air-conditioning unit sought to
be installed on common property.
Kong v Monash CC [2018] VCAT
1462
Monash Planning Scheme - Monash Housing Strategy 2014 -
Student accommodation in a preferred location - Neighbourhood
character outcomes in the Clayton Activity Centre - internal
amenity for student accommodation - car parking for student
accommodation.
New South Wales
Oboodi v Hornsby Shire Council
[2018] NSWLEC 1512
MODIFICATION APPLICATION - Layout and detailed design of
driveway crossover and modification of part of the approved
driveway - impact of the driveway construction on trees in the road
reserve identified as a heritage item - access requirements of the
Rural Fire Service - no issues pressed by the respondent following
the amendment of the application - no power to impose a new
condition on an aspect of the development which is unaffected by
the modification sought in the application.
Turland v Wingercarribee Shire Council
[2018] NSWLEC 1511
DEVELOPMENT APPLICATION - Construction of a three storey
residential flat building over a basement - exceedance of the
height of buildings development standard in the Wingecarribee Local
Environmental Plan 2010 - high flood hazard affected land - no
issues pressed by the respondent following the amendment of the
application - whether conditions should be imposed on the
development consent as deferred commencement conditions.
One Funds Management Ltd ATF Kingsgrove Property Trust
v Georges River Council [2018] NSWLEC
1508
DEVELOPMENT APPLICATION - Appeal of refusal of consent -
alterations to existing industrial unit to provide new dock and
loading - tree removal - streetscape impact - impacts balanced
against aim to maximise functional industrial space - appeal
refused.
ZGWH Holdings Pty Limited v Sydney Metro (ABN 12 354
063 515) [2018] NSWLEC
154
CIVIL PROCEDURE - Application by applicant to vacate
hearing dates – claim formulated on a basis now found to be
unsound – experts ought have identified that error earlier
– inadequate time to now reframe its case in time for hearing
– costs orders against applicant. The proceedings are stood
over to the Land Valuation and Compensation List on 12 October
2018.
PSEC Project Services Pty Ltd v Kiama Municipal
Council [2018] NSWLEC 1501
APPEAL – Development application – residential
flat building – consent orders – objections raised by
residents – height, bulk and scale – streetscape
– amenity and safety – overshadowing – view loss
– car parking – capacity of laneway.
Young v King (No 13) [2018]
NSWLEC 150
COSTS - Application by successful Respondents for special
and/or personal costs orders against the legal representatives of
the unsuccessful Applicant – principles to be applied –
behaviour of the lawyers and their conduct of the proceedings
– indemnity costs order already made.
Gungor v Canterbury-Bankstown Council
[2018] NSWLEC 1500
DEVELOPMENT APPLICATION - Ashbury Heritage Conservation
Area – dual occupancy – respecting traditional
character of Ashbury while facilitating healthy renewal –
significance of localised erosion of heritage character.
Balnaves Foundation Pty Ltd v Minister for
Planning [2018] NSWLEC 152
JUDICIAL REVIEW - Whether an extension of time within
which to commence judicial review proceedings was required –
applicant seeking to set aside condition of consent –
extension of time to commence proceedings required –
applicant was two years out of time – reason for delay was
due to the applicant misguidedly seeking to resolve dispute by a
Class 1 appeal – no evidence of intentional delay of use of
Class 1 proceedings to circumvent time limit within which to
commence judicial review proceedings – no prejudice to
parties – application not opposed – public interest
demonstrated – fairly arguable case – finely balanced
but time extended – applicant to pay respondents'
costs.
Queensland
Gillion Pty Ltd v Scenic Rim Regional Council
[2018] QPEC 47
PLANNING AND ENVIRONMENT – APPLICANT APPEAL –
Against council's refusal of an application for a material
change of use to facilitate the defined use "Commercial
Groundwater Extraction" on land – where development
involves extraction of groundwater from a "sweet spot"
– where the proposed development is not a consistent use -
whether there is tension between applying the planning scheme and
the public interest because it fails to anticipate the need for the
use in the public interest that amount to an exceptional case
– whether there are grounds of economic need, community need,
planning need or other public benefit to fire fighting or
charitable supply - whether there is sufficient grounds of to
justify conflict with the planning scheme.
Perivall Pty Ltd v Rockhampton Regional
Council [2018] QPEC
46
PLANNING AND ENVIRONMENT – APPEAL –
PRELIMINARY DETERMINATION OF SEPARATE QUESTION – Where the
appellant filed an appeal against Council's decision to approve
a development application for an extractive industry use –
where the appellant sought determination, at a preliminary stage of
the proceeding, of issues with respect to the validity of the
development application and public notification – whether the
relief sought by the appellant was sought in the wrong proceeding
– whether the existing extractive industry use on the subject
land is an existing lawful use – whether the development
application was properly made having regard to the extent of any
existing lawful use rights and the description in the development
application – whether the development application has lapsed
– whether the public notification was misleading.
Gold Coast City Council v Adrian's Metal Management Pty
Ltd [2018] QPEC 45
DECLARATIONS AND ORDERS – Where the local authority
sought declaratory relief and other orders against the respondents
– where first respondent was a company carrying out alleged
unlawful works on subject land – where second respondent was
the sole director of the first respondent – where third
respondent was the owner of the subject land – where primary
use of subject land involved the dismantling and crushing of car
bodies for scrap metal purposes – where other scrap metal
activities also carried out – where current use extended over
two separate parcels of land.
WHERE ALLEGED USE OF THE LAND WAS UNLAWFUL – Where
respondents sought to rely on a development permit issued in 2001
in respect to only one of the lots – where no relevant
development approval or permission had been granted in respect of
the other lot – where originally scrap metal/junk yard uses
were contained to one lot – where other lot historically used
for sand blasting purposes – where intensification of the
operations being conducted on the land expanded into second lot
without necessary approvals in place.
WHETHER THE 2001 DEVELOPMENT APPROVAL AUTHORISED THE
RESPONDENTS' USE OF THE LAND OVER BOTH LOTS – Whether an
alternative respondents enjoyed the benefit of historical existing
lawful user rights.
WHETHER OPERATIONS BEING CONDUCTED IN BREACH OF THE 2001
DEVELOPMENT APPROVAL – Where the noise emanating from the
land amounted to an environmental nuisance for the purposes of the
Environmental Protection Act 1997 – where primary
source of noise was caused by the use of an excavator – where
use of excavator an integral part of respondents' operations
being conducted on the subject land – where subject land
located in an industrial estate but where recipients of noise were
residents of a nearby group title residential development.
WHETHER DECLARATIONS OUGHT BE MADE – Concerning the validity
and/or currency of the 2001 Development Permit – whether in
the event that it was found that the use being made of the land was
unlawful and the use of the land was creating an environmental
nuisance the use of the land ought be ordered to be ceased.
WHETHER DISCRETIONARY GROUNDS MILITATED AGAINST GRANTING THE RELIEF
SOUGHT – Where operations being conducted on the land were
achieving material environmental benefits – where operations
being conducted on the land employed an excess of 40 employees
– where current operations on the land had been in existence
for a number of years – whether the local government was
estopped from seeking relief sought.
JOINDER – Whether another director of first and third
respondent ought be joined to the proceedings – where primary
purpose of joinder was a concern that the existing corporate
entities would be dissolved but the operations on the land
continued but under new corporate names.
Legislation
New South Wales
Environmental Planning Instruments
State
Environmental Planning Policy (Housing for Seniors or People with a
Disability) Amendment 2018 (2018-570) — published LW 2
October 2018
State
Environmental Planning Policy (Exempt and Complying Development
Codes) Amendment (Inland Code) 2018 (2018-569) —
published LW 28 September 2018
Bills introduced Government – 28 September
2018
National Park Estate (Reservations) Bill 2018
Bills passed by both Houses of Parliament – 28
September 2018
Impounding Amendment (Shared Bicycles and Other Devices) Bill
2018
Western City and Aerotropolis Authority Bill 2018
For the full text of Bills, and details on the passage of Bills, see here.
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.