In the media
Federal Court outcome on Emissions Reduction Fund
case
The Federal Court handed down its decision in the case of
Country Carbon Pty Ltd v Clean Energy Regulator (01
November 2018).
More...
Blockchain on the cusp of revolutionising housing
Digital planning tools are on the cusp of systematic
adoption by councils and metropolitan planning agencies around the
world looking to do away with long-standing inefficiencies through
data-driven city planning (25 October 2018).
More...
Sydney Opera House makes net zero carbon
commitment
The World Green Building Council
(WorldGBC) has welcomed two non-profit
organisations as new signatories to the Net Zero Carbon Buildings
Commitment, which now include 22 cities and four states and regions
(25 October 2018).
More...
Why Australian company directors have started caring
about climate change
Australian company directors nominate climate change as
the number one issue they want the government to address in the
long-term, in a survey of more than 1,200 business leaders (24
October 2018).
More...
NABERS' new tool is looking at you tenants
NABERS ratings have been phenomenally successful for
offices: they've penetrated 80 per cent of the office space
market and saved a mountain in energy costs for landlords. Now
there's a new tool that could do the same for tenants (23
October 2018).
More...
Victoria
ISPT to develop 32-Storey vertical campus in
Melbourne's CBD
ISPT has been awarded the tender to develop a new
32-storey vertical campus in the heart of Melbourne CBD. DA
approval is already in place for the striking vertical campus
building, which has been designed by Daryl Jackson Architects (02
November 2018).
More...
Court orders company to pay EPA $4.5 million for Stawell
tyre removal
EPA has begun proceedings against Internet Marketing
Solutions Corp (IMSC) in the Supreme Court to
recover the costs associated with removing an estimated one million
tyres from a stockpile in Stawell (30 October 2018).
More...
200,000 new residents: Melbourne's northern suburbs
need huge infrastructure injection
A report for a group representing Melbourne's north
calls for a range of big infrastructure projects to be started over
the next decade (26 October 2018).
More...
New South Wales
Over 4500 hectares added to New South Wales'
national park network
Additions include a new koala habitat, a rainforest in the
Upper Hunter and sites of significant cultural heritage (29 October
2018).
More...
Tough laws, lower fees for asbestos disposal
Environment Minister Gabrielle Upton said the draft NSW
Asbestos Waste Strategy will target the three things that drive
illegal asbestos dumping: cost, convenience and awareness (26
October 2018).
More...
Next stage for $57.5 million Australian Museum
renovation
The next phase of the $57.5 million renovation of the
Australian Museum is now underway with the refurbishment plans on
exhibition for public comment (26 October 2018).
More...
Closing loopholes for certifiers
Building and development certifiers are facing the
toughest penalties to date, under laws that aim to clean up the
industry and give confidence to the community and homebuyers.
Minister for Better Regulation Matt Kean said the reforms passed in
Parliament would allow the NSW Government to come down hard on
dodgy operators (26 October 2018).
More...
New South Wales EPA to end agricultural use of mixed
waste organic material
Following comprehensive independent studies, the NSW EPA
is stopping the restricted use of mixed waste organic material on
agricultural land, and is ceasing use on plantation forests and
mining rehabilitation land until further controls can be considered
(25 October 2018).
More...
Good urban design a priority for New South Wales
regional areas: Government Architect
Urban design has a crucial role to play in regional New
South Wales to ensure everyone has the opportunity to enjoy a great
quality of life and to help create healthy, happy and prosperous
regional communities (24 October 2018).
More...
Calls for Roxy Theatre to be transformed into music
venue
It has long been an icon of Sydney's west - and now
there are growing calls for authorities to pull together to ensure
Parramatta's Roxy Theatre gets a proper second life, before
it's too late (24 October 2018).
More...
$20 million in funding to deliver local
infrastructure
Minister for Planning and Housing, Anthony Roberts,
announced a further $20 million in funding to support local
government infrastructure projects that speed up housing delivery
across NSW (22 October 2018).
More...
Queensland
Green light for Star's $2 billion Gold Coast
masterplan
The Palaszczuk Government has approved plans for an
expansion of The Star Gold Coast worth more than $2 billion, which
could create 10,000 jobs (02 November 2018).
More...
New online dashboard for monitoring South East
Queensland growth
The Palaszczuk Government launched an Australian-first new
online dashboard vital to planning for South East Queensland's
projected population growth over the next 25 years (02 November
2018).
More...
The Spit Master Plan options report released
The Palaszczuk Government has released an options report
for The Spit Master Plan identifying 72 options across seven
precincts – Top of The Spit, Wave Break Island, Federation
Walk coastal reserve, Muriel Henchman Park, Village centre, Philip
Park and Southern Gateway (27 October 2018).
More...
Latest State of the Environment Report highlights
significance of environmental projects
The Palaszczuk Government's efforts to protect
Queensland's environment have been highlighted in the latest
State of the Environment Report (26 October 2018).
More...
Childcare centre proposed for Brisbane's tallest
tower
A childcare centre has been proposed to be built within
Brisbane's tallest residential tower. A design plan submitted
as part of the development application showed the floor broken into
seven different group areas which had varying capacities of 10 to
22 children (25 October 2018).
More...
$1 million grants to boost access to Containers for
Change
November 1 marked the very beginning of the scheme and as
more Queenslanders participate and the scheme grows, we expect more
and more refund sites will be established across the state. The
funding will be used for projects to establish enhanced
infrastructure and services, storage and sorting equipment,
collection cages, bins and transportation (21 October 2018).
More...
In practice and courts
Victoria
Approvals
VC152 establishes planning policy for the management of land
for major hazard facilities and their respective buffer distances;
Implements a new particular provision to support a simpler and
straightforward development assessment process for residential aged
care facilities. Introduces permit exemptions for community care
accommodation to enable the streamlined renewal and development of
these facilities, and provides clarity on the extent of permit
exemptions for rooming houses.
VC154 implements initiatives from Plan Melbourne 2017-2050 and
Water for Victoria – Water Plan by modifying the Planning
Policy Framework to reflect integrated water management objectives
and by introducing a new particular provision for stormwater
management in urban development.
VC155 amends the Planning Policy Framework at Clause 15.03
Heritage to introduce a new strategy to consider the restoration or
reconstruction of a heritage building that has been unlawfully or
unintentionally demolished, and inserts 'The Burra Charter: The
Australia ICOMOS Charter for Places of Cultural Significance,
2013' as a policy guideline; Makes minor changes to the wording
of the residential rooftop solar energy facility provisions
recently introduced by Amendment VC149 to ensure that they are
clear and unambiguous with respect to their intended operation.
New South Wales
Too good to waste: discussion paper on a circular
economy approach for New South Wales
Environment Protection Authority (NSW); Department of
Planning and Environment (NSW): 22 October 2018
This discussion paper
presents an overview of the circular economy, how it can be applied
in New South Wales, and the benefits it could bring.
Luna Park Consultation
The proposed policy update would ensure families and
visitors can have a great time at Luna Park this Christmas whilst
not changing existing considerations regarding safety, noise,
lighting and heritage protections. Details of the proposed State
Environmental Planning Policy (State Significant Precincts) exempt
and complying development provisions for Luna Park are available
here.
St Leonards and Crows Nest 2036
The Department has released a draft planning package for
St Leonards and Crows Nest for community feedback. The draft
planning package is on public exhibition until 3 December 2018. You
are invited to review and provide feedback on the documents.
More...
Have your say: Reducing the risk of pollution from
service station runoff
The NSW Environment Protection Authority is inviting
feedback, particularly from industry and local councils, on a draft
guide that outlines how service stations can better protect the
environment from potentially polluted run-off from service station
forecourts. Submissions close on 30 November 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 will 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.
More...
New South Wales 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.
More...
Department of Planning: Have your say
Policies
Amendments to State Environmental Planning Policy (SEPP) Three
Ports 2013 Closes 03/12/2018
Short-term rental accommodation in NSW: explanation of intended
effect Closes 16/11/2018
Proposed Special Infrastructure Contribution for Bayside West
Closes 23/11/2018
Community participation plan - exhibition draft Closes
06/12/2018
Queensland
PCA: Queensland's Valuer-General 2019 Valuation
Program Announced
The local government areas to be included in the 2019
Annual Valuation Program. 18 local government areas have been
selected: Brisbane, Burdekin, Cairns, Etheridge, Gympie, Ipswich,
Lockyer Valley, Logan, Longreach, Moreton Bay, Noosa, North
Burnett, Redland, Somerset, South Burnett, Sunshine Coast, Weipa
and Western Downs. Further information on
statutory valuations and the 2019 Annual Valuation Program can be
found here.
(01 November 2018).
More...
Options report for The Spit Master Plan
The final master plan is expected to be completed by
mid-2019. The future of The Spit is now open for public comment,
closing on November 25 (27 October 2018). More...
Department of Natural Resources, Mines and Energy:
consultations
Proposed Lakeland Wind Farm
Have your say on the proposed Lakeland Wind Farm. Closes
24 November 2018
Review of accepted development vegetation clearing
codes
Have your say on the revised draft codes for necessary
environmental clearing, managing encroaching and managing weeds.
Submissions close on 19 November 2018.
Cases
Victoria
Alpine SC v Gilandos Pty Ltd
[2018] VCAT 1609
Section 114 Planning and Environment Act 1987;
Section 124 Victorian Civil and Administrative Tribunal Act
1998; Existing use rights; Ancillary use.
Kolovos v Moreland CC [2018] VCAT
1699
Section 81(1) Planning and Environment Act 1987;
Moreland Planning Scheme; Request to extend the time to commence a
development; General Residential Zone Schedule 1; Application of
principles in Kantor v Murrindindi Shire Council.
Waterfront Place Pty Ltd v Minister for
Planning [2018] VSC
621
PLANNING – Call in of proceedings in the Victorian
Civil and Administrative Tribunal by the Minister for Planning
– Calculation of time – Meaning of cl 58(3)(b) in sch 1
to the Victorian Civil and Administrative Tribunal Act
1998 (Vic) – Application of s 44(1)–(4) of the
Interpretation of Legislation Act 1984 (Vic).
Lika v Hobsons Bay CC [2018] VCAT
1664
Hobsons Bay Planning Scheme, Section 77 Planning and
Environment Act 1987, Heritage Overlay, General Residential
Zone – Schedule 2, visual bulk, heritage streetscape setting,
building recession in heritage overlay, neighbourhood character,
provision of secluded private open space. No permit.
Surace v Monash CC [2018] VCAT
1608
Monash Planning Scheme; Application under section 80 of
the Planning and Environment Act 1987 – to review
conditions on a permit; C1Z; DDO12; Proposal for 13 storey mixed
use development; Site in Glen Waverley Major Activity Centre;
Height and built form response; Car park design and access.
Pedley v Bayside CC [2018] VCAT
1662
Section 82 of the Planning and Environment Act
1987; Bayside Planning Scheme; Commercial 1 Zone; Restricted
recreation facility; Noise; Vibration; Amenity. No permit.
Leung v Harris (Building and Property)
[2018] VCAT 1630
Water Act 1995 – s.16 – unreasonable
flow of water – s.19 – powers of Tribunal – water
penetrating tiles and membrane of balcony forming part of
Respondent's Unit – water passing through common property
and entering Applicant's Unit - knowledge of existence of flow
– obligation of the Respondent – nature of relief.
Apartment block containing the two units was constructed by Maxcon
Pty Ltd in about 2011. Expert evidence was given by two building
experts Order the Respondent pay to the Applicant $52,250.39.
New South Wales
Melino v Roads and Maritime Services
[2018] NSWCA 251
LAND AND ENVIRONMENT – compulsory acquisition of
land – compensation – compensation awarded for market
value – whether claim for disturbance available –
relationship between heads of compensation for market value and
disturbance – whether costs claimed were or would be
reasonably incurred as a direct or natural consequence of
acquisition – whether costs claimed related to the actual use
of the acquired land – Land Acquisition (Just Terms
Compensation) Act 1991 (NSW), ss 55, 59.
Moloney v Roads and Maritime Services
[2018] NSWCA 252
ENVIRONMENT AND PLANNING – acquisition of land
– compensation – compensation awarded for market value
including loss of amenity to main dwelling on residue land –
whether claim for disturbance available for cost of relocation to
replacement dwelling on residue land – relationship between
heads of compensation for market value and disturbance –
Land Acquisition (Just Terms Compensation) Act 1991 (NSW),
ss 54, 55, 59 ENVIRONMENT AND PLANNING – acquisition of land
– compensation – compensation awarded for market value
including right to potential profits from acquired land –
whether claim for disturbance available for loss of profits from
acquired land – relationship between heads of compensation
for market value and disturbance – Land Acquisition (Just
Terms Compensation) Act 1991 (NSW), ss 54, 55, 59.
Jigari Pty Ltd v City of Parramatta
Council [2018] NSWLEC
1568
DEVELOPMENT APPEAL: two storey town house redevelopment
– infill self-care housing - consistency with the character
of the area - variation to standard sought – standard
requires single storey development to the rear of the site –
potential impacts on the visual and acoustic privacy of adjoining
residential lots.
Knight v Coffs Harbour City Council
[2018] NSWLEC 1569
APPEAL – development application – residential
flat building – breach of the height development standard
– bulk and density – visual and acoustic privacy.
Al Maha Pty Ltd v Huajun Investments Pty
Ltd [2018] NSWCA
245
JUDICIAL REVIEW – decision of Land and Environment
Court Commissioner – decision to grant consent to development
application for residential flat building that contravened height
development standard – decision in accordance with
parties' agreement reached at conciliation conference –
whether Commissioner lacked jurisdiction to make decision –
development partly on neighbouring owner's land – whether
neighbouring owner's consent was required to development
application – whether Commissioner formed the requisite
opinions of satisfaction to justify contravention of development
standard – whether decision to grant development consent was
legally unreasonable – whether conciliation conference was
validly constituted CIVIL PROCEDURE – power to amend orders
– "slip rule" – Commissioner's decision
to amend orders under slip rule – amendments to conditions of
consent and approved plans – whether order valid –
Uniform Civil Procedure Rules 2005, r 36.17.
Karlos v Tweed Shire Council
[2018] NSWLEC 164
MODIFICATION APPLICATION - application to Council to
modify 2003 development consent for commercial water extraction -
modification seeks approval to use 19-metre articulated tankers in
lieu of 6-metre rigid tankers - application refused by Council -
appeal against refusal - leave granted during hearing to amend
modification application to seek further modification by removal of
conditions having the effect, relevantly, of imposing a maximum
annual volumetric rate of extraction on water for commercial
purposes SCOPE Of PERMITTED DEVELOPMENT - development permitted by
2003 development consent specified in notice of determination by
reference to Statement of Environmental Effects and plans lodged
with development application in 2003 - the use specified in the
2003 consent not the use being carried out on the site in 2018 -
nature of development being used for extraction in 2018
significantly different to that permitted by 2003 consent - no
approvals for the changes in the operational development
JURISDICTION - statutory test that a development, if modified, be
substantially the same as the development original approved -
jurisdiction must be engaged prior to consideration of any merit
matters - proposed modification must satisfy test qualitatively and
quantitatively - separate consideration of each element of amended
modification application - modification seeking approval to use
19-metre articulated tankers fails jurisdictional test on
qualitative and quantitative bases - modification seeking removal
of volumetric water extraction limit fails jurisdictional test on
two quantitative bases- no jurisdiction to approve modification
application - no basis to apply amber light approach - appeal
dismissed.
Burrell v Mullin [2018] NSWLEC
165
INTERLOCUTORY APPLICATION: application to restrain
building and construction works below residential and commercial
premises – serious issues to be tried in relation to the
validity of a complying development certificate issued by a private
certifier – balance of convenience in favour of granting
interim injunctive relief – expedited final hearing
ordered.
Hakea Holdings Pty Ltd v Louisiana Properties Pty
Ltd [2018] NSWCA
240
ENVIRONMENT AND PLANNING – consent – owner of
lot constructed road on adjoining lot – owner of adjoining
lot sought relief for trespass and breaches of Environmental
Planning and Assessment Act 1979 (NSW) – whether road
constructed without development consent – whether road
constructed otherwise than in accordance with development consent
– whether entry onto land for purpose of construction
authorised by general right of access – Environmental
Planning and Assessment Act 1979 (NSW), ss 76A(1)(a),
76A(1)(b), 124. ENVIRONMENT AND PLANNING – erection of
buildings – whether roadway following natural lie of land a
"building" – whether construction certificate
required – Environmental Planning and Assessment Act
1979 (NSW), ss 4, 81A(2). LAND LAW – easements –
section 88B instruments – right of access – description
of "right of access" in s 88B instrument did not include
right to construct trafficable surface – whether
instrument's express terms varied statutory short form meaning
of "right of access" – whether construction a
trespass – Environmental Planning and Assessment Act
1979 (NSW), Sch 8, Pt 14. STATUTORY INTERPRETATION –
contextual construction – use of dictionaries WORDS AND
PHRASES – "building" – "erection"
– "includes any structure" – "pass
over".
Cmunt v Snowy Monaro Regional Council
[2018] NSWCA 237
LAND & ENVIRONMENT – where respondent issued
appellants with notice preventing appellants from keeping more than
two dogs on property – where respondent issued appellants
with orders requiring removal of certain structures and
advertisements – where respondent brought proceedings against
appellants for failure to comply with notice and orders –
where primary judge ordered compliance within 60 days – where
appellants appealed primary judge's decision – whether
respondent had jurisdiction to issue notice and orders –
whether respondent had standing to bring enforcement proceedings
– whether evidence before primary judge supported the
respondent's claims – whether primary judge failed to
consider appellants' evidence.
Queensland
Mirvac Queensland Pty Ltd v Chief Executive, Department of
Aboriginal and Torres Strait Islander Partnerships
[2018] QSC 248
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS
OF REVIEW – ERROR OF LAW – where the applicant is
developing a residential subdivision development project –
where the Aboriginal Cultural Heritage Act 2003 (Qld)
(ACHA) imposes on the applicant a cultural
heritage duty of care – where the applicant developed and
sought approval of a cultural heritage management plan under the
Act – where the applicant identified an Aboriginal party
(referred to as the applicant to the former Jagera #2 Claim) and an
Aboriginal cultural heritage body for the area in respect of which
it proposed to developed its cultural heritage management plan
– where the applicant to the former Jagera #2 Claim was
endorsed by the applicant to take part in developing the cultural
heritage management plan – where, as at 1 May 2013, the
applicant to the former Jagera #2 Claim was no longer a registered
native title claimant under the Native Title Act 1993
(Cth) and no longer an Aboriginal party (as defined in the ACHA)
– where the applicant entered into a cultural heritage
management plan with the applicant to the former Jagera #2 Claim
and the Aboriginal cultural heritage body – where, on 6
September 2017, the applicant submitted the cultural heritage
management plan to the respondent for approval under s 107(1)(b) of
the ACHA – where two other native title parties were
registered for the area (one registered prior to the submission of
the cultural heritage management plan and the other subsequent to
the submission of the plan but prior to the respondent's
decision) – where the respondent decided that the cultural
heritage management plan could not be approved under s 107(1)(b) of
the ACHA because the applicant to the former Jagera #2 Claim could
no longer be regarded as an endorsed party – where the
respondent decided that the cultural heritage management plan also
could not be approved under s 107(2) of the ACHA – where the
applicant applies for judicial review of the respondent's
decision on the grounds that it involved a number of errors of law
– whether the respondent erred in law – whether the
respondent's decision should be quashed or set aside –
whether the respondent should be required to approve the
applicant's cultural heritage management plan pursuant to s
107(3) of the ACHA.
Brooks Earthmoving & Quarries Pty Ltd v The Lockyer
Valley Regional Council [2018] QPEC
51
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING
– DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS
AND AGREEMENTS – GENERAL POWERS – where the applicant
applies for revival and change to a expired development approval
– where the approval expired on 31 December 2015 due to the
operation of clause 4 of the approval – where the application
was filed on 3 May 2018, being a date after the expiration of the
approval – where, consequently, there is non-compliance with
the Sustainable Planning Act 2009, the applicable Act at
the time – where that legislation is now repealed –
where the application is to be brought under the current
legislation, by statutory effect – whether the court has
power to grant the relief sought – whether the court should
exercise its discretion to do so.
Legislation
New South Wales
Regulations and other miscellaneous instruments
Protection
of the Environment Operations (Waste) Amendment (Waste
Contributions Exemption) Regulation 2018 (2018-618) —
published LW 2 November 2018
Environmental
Planning and Assessment Amendment (F6 Extension Stage 1) Order
2018 (2018-602) — published LW 26 October 2018
Bills introduced Government
Building and Construction Industry Security of Payment Amendment
Bill 2018
Fair Trading Legislation Amendment (Miscellaneous) Bill
2018
Protection of the Environment Operations Amendment (Asbestos Waste)
Bill 2018
Retirement Villages Amendment Bill 2018
Saint Paul's College Bill 2018
Snowy Hydro Corporatisation Amendment (Snowy 2.0) Bill 2018
Non-Government – 26 October
Liquor Legislation Amendment (Repeal of Lock-out Laws) Bill
2018
Bills passed by both Houses of Parliament
Building and Development Certifiers Bill 2018
Fair Trading Legislation Amendment (Reform) Bill 2018
Planning Legislation Amendment (Greater Sydney Commission) Bill
2018
Statute Law (Miscellaneous Provisions) Bill (No 2) 2018
Bills assented to
Building and Development Certifiers Act 2018 No 63 —
Assented to 31 October 2018
Fair Trading Legislation Amendment (Reform) Act 2018 No 65 —
Assented to 31 October 2018
Planning Legislation Amendment (Greater Sydney Commission) Act 2018
No 66 — Assented to 31 October 2018
Government Telecommunications Act 2018 No 67 — Assented to 31
October 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.