Australia: Inside track: Planning, Environment & Sustainability: Recent media releases, reports, cases and legislation

Last Updated: 6 December 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, November 2018

In the media

Street smarts are crucial to planning our cities
The congestion on our streets from bikes, dockless bikes, scooters, e-scooters, e-bikes, EV-charging, and even people are making our kerb-side a battleground. We need to think smarter about how these increasing and competing channels can all access the veins of our city (13 November 2018). More...

New South Wales TCorp smashes Australian government green bond record
NSW Treasury Corporation's first record breaking green bond will go towards low carbon transport and sustainable water projects. The green bond means NSW has now joined its eastern seaboard government peers, Victoria and Queensland, and at $1.8 billion the 10-year bond is a record (13 November 2018). More...

ClimateWorks: Decarbonisation futures
Despite good social and economic performance, Australian cities are lagging behind their global counterparts on emissions reduction and waste management according to Arcadis' Sustainable Cities Index 2018. Australian cities performed well in the People pillar and satisfactorily in the Profit pillar yet the Planet pillar was the weakest for all Australian cities (05 November 2018). More...

Victoria

We can't afford bill for Victoria's cladding crisis, pensioners say
The South Yarra apartments are one of 153 residences and offices that a Victorian Building Authority report has revealed are dangerous because of highly flammable polyethylene cladding. In July this year, Planning Minister Richard Wynne brought in new laws allowing owners of apartments with flammable cladding to pay off loans to repair them on their council rates (18 November 2018). More...

Security upgrades begin at Flinders Street Station
The City of Melbourne will begin works to install permanent security measures at Flinders Street Station, as part of the Victorian Government's $50 million CBD security upgrade project (08 November 2018). More...

NSW

New laws to protect off-the-plan buyers
Developer's selling off the plan will now be accountable for contract breaches and compensation claims with a string of new laws aiming to further protect buyers (16 November 2018). More...

Suite of planning measures to assist in development of Aboriginal land on Central Coast released for community to have its say
In a first for the state, the NSW Government has released a set of planning measures to assist the Darkinjung Local Aboriginal Land Council (Darkinjung) achieve better economic outcomes from its land (16 November 2018). More...

More homes for Sydney residents
The NSW Government is continuing to support housing affordability in Sydney with a record net 44,315 new homes built in the 12 months to September 2018 – a new record for housing completions (16 November 2018). More...

Reforms secure sustainability of NSW forests
New rules governing native forestry operations on public land in coastal NSW have been finalised, securing the forestry sector and delivering improved protections for the environment (16 November 2018). More...

Japanese giant Hitachi Partners with NSW on Aerotropolis
Hitachi signed an agreement with the New South Wales government committing to collaborate on the development of the Western Parkland City and Western Sydney Aerotropolis. The Aerotropolis and the region surrounding the airport is a priority for both state and federal governments (15 November 2018). More...

Blue Mountains' world heritage significance 'at risk' under plan to raise dam wall
The Blue Mountains are listed among Machu Picchu and the pyramids in world heritage significance, but that could be at risk if the Warragamba Dam wall is raised, a major international conservation group has warned (14 November 2018). More...

Western Sydney collaborates on global city initiative
Sixteen cities have become founding members of a new global network connecting academia and businesses to identify and combat common challenges that face urban environments (14 November 2018). More...

Pyrmont to rise to the heights of Sydney CBD
Sydney's Pyrmont could one day match the density and height of its high-rise neighbour, with new vision showing the current CBD extending into the Pyrmont peninsular by 2040. The proposed 61-storey tower for the Star Casino begins a rethink of heights on the peninsula along with the proposed tower at Harbourside (13 November 2018). More...

Developer concessions to increase medium density housing in NSW
Low-rise medium-density housing, widely considered "the missing part" of NSW housing stock, could be the way forward as new concessions for developers kick in (09 November 2018). More...

Asbestos waste crackdown
The NSW Government is cracking down on rogue construction and demolition waste operators and providing incentives for good behaviour (07 November 2018). More...

24-hour shopping for Sydney CBD proposed in city planning review
A proposal designed to encourage a more diverse range of people at night would see opening hours for unlicensed venues extend to well after dark, and would allow some licensed establishments to potentially serve alcohol 24/7 (06 November 2018). More...

Revamped Sydney Fish Market hooked on sustainability
Redevelopment plans for the iconic Sydney Fish Market have been lauded by the Green Building Council of Australia (GBCA), with the $250-million revamp aiming to achieve a 5 Star Green Star rating. The plans illustrate the commitment of UrbanGrowth NSW, Sydney Fish Market, Office of the Government Architect, City of Sydney and other key stakeholders (06 November 2018). More...

PCA: Stamp duty reform for NSW welcomed
The NSW Treasurer's announcement of changes to the State's stamp duty system is a much-needed structural reform which, over time, will help reduce the tax burden on people buying a home in NSW (06 November 2018). More...

Last two terraces sold in Millers Point
Property NSW, on behalf of Family and Community Services, announced the sale of the final two heritage-listed terraces in the Millers Point sale program. CEO of Property NSW, Brett Newman, said the auction of these properties marks the end of the Millers Point terrace sale program, which commenced in 2014 (06 November 2018). More...

Queensland

Call-in proposed for Bargara Jewel development
Minister for State Development, Manufacturing, Infrastructure and Planning Cameron Dick has proposed a ministerial call-in of the approved Esplanade Jewel development at Bargara, near Bundaberg (16 November 2018). More...

Miners forced to pool millions towards rehabilitating any future abandoned mines
Instead of a site-by-site approach, companies will be forced to contribute into to a pool of money to be used for rehabilitation for abandoned sites if the owner goes bust. But the new rules don't apply to existing mines (14 November 2018). More...

Mining sector reforms to protect taxpayers and communities
New laws passed by State Parliament will compel mining companies to sign up to progressive rehabilitation plans and safeguard taxpayers from hefty clean up bills for failed mines (14 November 2018). More...

Brisbane classroom powered solely by solar and battery
A Brisbane school goes "off grid", saying it is the first in Australia to rely entirely on renewables to continuously power a classroom (01 November 2018). More...

In practice and courts

Commonwealth

The dirty truth: Australia's most polluted postcodes
The burden of air pollution rests disproportionately on the shoulders of poorer Australians. This report shows 90% of polluting facilities reported in the National Pollutant Inventory (NPI) are in postcodes with low-middle weekly household incomes (16 November 2018). More...

Social housing as infrastructure: An investment pathway
This research modelled five alternative pathways to funding social housing and found the 'capital grant' model, supplemented by efficient financing, provides the most cost effective model for Australia (15 November 2018). More...

Deluge and drought: Australia's water security in a changing climate
This report argues that significant impacts on and risks to Australia's water security are already evident, and these risks will continue to escalate unless deep and rapid reductions in global greenhouse gas pollution can be achieved. More...

Draft native title reforms
The Attorney-General and the Minister for Indigenous Affairs on 30 October 2018 released exposure drafts of the Native Title Legislation Amendment Bill 2018 and Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018. Copies of the exposure draft legislation, along with a public consultation paper and fact sheets summarising the proposed amendments are available here. Submissions should be provided by 10 December 2018.

Announcements, Draft Policies and Plans released 2018

New South Wales

Biodiversity Values Map
Biodiversity Values Map

New South Wales Revenue: Stamp duty reform
From 1 July 2019, stamp duty on property will be pegged to Consumer Price Index (06 November 2018). More...

Draft Asbestos Waste Strategy 2018-22
The EPA is seeking feedback on its draft NSW Asbestos Waste Strategy 2018-22 which proposes innovative measures to reduce illegal dumping and unsafe disposal and promotes lawful and appropriate disposal of asbestos waste.

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...

Cases

Victoria

Finocchiaro v Owners Corporation No 1 Plan No PS543333S (Owners Corporations) [2018] VCAT 1737
Alteration to plan of subdivision – contaminated soil on part of common property – proposed removal of that part from common property and transfer of it to a person which would bear the cost of remediation of the land – Subdivision Act 1988 s 34D(1)(a), (c).

Parmar v Frankston CC [2018] VCAT 1764
Section 77 Planning and Environment Act 1987 – variation of a restrictive covenant- Clause 52.02 Frankston City Planning Scheme – Construction of three double storey dwellings – Section 60(5) Planning and Environment Act 1987 – detriment as a consequence of variation of covenant – objection vexatious or not made in good faith. No permit.

Surf Coast SC v D.P & J.L Dunoon Pty Ltd [2018] VCAT 1551
Section 114 of the Planning and Environment Act 1987 – Surf Coast Planning Scheme – Low Density Residential Zone – Use of land for garden supplies – Whether use authorised by existing planning permit or by clause 63 (existing use rights) – Accuracy of endorsed plans – Whether exemptions of clause 62 apply to development – Compliance with permit conditions requiring landscaping.

New South Wales

Vision Land Glebe Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1593
DEVELOPMENT APPLICATION: Concept Development application – demolition of MRC – approval of building envelopes for residential use and basement parking – impact on heritage item Bidura House and heritage conservation area – distribution of floor space and height on the site – building separation.

UMA Centre Limited v Canterbury-Bankstown Council [2018] NSWLEC 1591
APPEAL – development application – existing prayer room within approved community facility – application for use as place of public worship – application to construct car parking spaces - traffic and parking concerns – management through Plan of Management – acoustic impact – BCA compliance – contamination – trial period.

Hopkins v Quinn (No 2) [2018] NSWLEC 187
COSTS - reason to depart from "costs follow the event" on hearing - offers made - none effectual - costs to be on ordinary basis - finding in substantive judgment of "tipping point" on issues - appropriate to apportion costs - costs orders made concerning substantive hearing on apportioned basis COSTS - costs of costs hearing - view put in substantive proceedings as to proposed costs outcome - position accepted by respondent - position challenged by applicant - position advanced by applicant entirely without merit - appropriate to make special costs orders for costs hearing - applicant to pay respondents' costs of costs hearing on an indemnity basis.

Fagin v Australian Leisure and Hospitality Group Pty Limited [2018] NSWCA 273
ENVIRONMENT AND PLANNING – development consent – where subject matter of consent "Internal alterations, enclosure of rear patio, awning over patio and part of beer garden and use of beer garden" of hotel – where works authorised by consent never undertaken – where appellant sought to enforce consent condition prohibiting the playing of music in hotel beer garden – whether consent lapsed – whether certain works undertaken before consent granted prevented its lapse – whether the "use" of beer garden after consent granted prevented its lapse – whether Court would decline to grant relief on basis that a later consent sufficiently regulated noise.

Pymble Villas Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1586
DEVELOPMENT APPLICATION: seniors housing development – whether the development standards contained in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 are capable of variation by way of clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 – non-compliance with development standards in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

Antoniou v Bayside Council [2018] NSWLEC 1584
DEVELOPMENT APPLICATION: Child care centre – to what extent current development consent is a matter for consideration – streetscape character – above ground outdoor space – large balconies and FSR controls – proportion of places for under two year old children.

Ferrier Hodgson v Lake Macquarie City Council [2018] NSWLEC 1585
APPEAL – conciliation – parties agreed to a decision being made on the basis of what occurred at conciliation – former Cockle Creek Smelter and Incitec site – site specific clause applies requiring Planning Secretary certification – no known date by which certification could be obtained – no power to grant development consent.

Moss Vale Projects Pty Limited v Wingecarribee Shire Council [2018] NSWLEC 180
COSTS: Discontinued Class 1 appeal – application by Respondent Council for all of its costs of the appeal – principles to apply – costs on the motion.

Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King [2018] NSWLEC 182
PRACTICE AND PROCEDURE – whether leave granted to Roads and Maritime Services (RMS) to institute a prosecution with respect to offences under the Protection of the Environment Operations Act 1997 (POEO Act) – RMS "an appropriate regulatory authority" to bring proceedings for the offence – leave granted pursuant to s 219(1A) of the POEO Act.

Monti v Roads and Maritime Services (No 3) [2018] NSWLEC 183
COMPULSORY ACQUISITION – whether the applicants should be ordered to pay the respondent's costs thrown away occasioned by changes to the applicants' claims for compensation during the course of the hearing that were subsequently abandoned – new claims resulted in additional legal costs incurred by the respondent to meet the claims – costs ordered against the applicants.

Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179
JUDICIAL REVIEW – integrated development – whether permissible for approval authority Heritage Council to provide comments, rather than general terms of approval, with respect to portion of development application – general terms of approval with respect to development outside curtilage of heritage item required where there is a relevant nexus – relevant nexus apparent from Heritage Council decision – misconstruction of statutory power – jurisdictional error established.
WORDS AND PHRASES – "land" – definition of land in s 57(1)(e) not restricted to curtilage of item or to lot on which item sits – to be determined on a case by case basis WORDS AND PHRASES – "in relation to" – protective purpose of the Heritage Act 1977 – interpretation promoting that purpose preferred to interpretation not promoting that purpose

Australian Commercial Marketing Pty Ltd v Gold [2018] NSWSC 1701
LAND LAW – licences – written agreement for defendant to occupy part of premises for one year with option to renew for further three years – whether agreement included additional oral terms – whether option to renew could be validly exercised by notice given verbally – rent review clause too uncertain to be enforceable – unenforceability of rent review clause does not render the option unenforceable – option validly exercised – whether further agreement reached as to occupation of additional space in the premises – defendant not entitled to occupy additional space and exclude plaintiff from premises – defendant liable to pay outstanding rent and damages for trespass.

INA Operations Pty Ltd ATF INA Operations Trust No. 6 v Hawkesbury City Council [2018] NSWLEC 1582
DEVELOPMENT APPLICATION – expansion of an existing caravan park to add 208 long term residential sites – whether the development is inconsistent with the zone objectives – whether the development, including the increase in residential density, is incompatible with the rural character of the area – whether the necessary community facilities and services are available in the locality – whether separation to adjoining land is adequate – resident objectors.

Queensland

Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53
PLANNING AND ENVIRONMENT – APPEAL – where approval for reconfiguring a lot – where approval includes conditions requiring the amalgamation and dedication of two lots for environmental conservation purposes – where Council concedes only one lot is required to be dedicated for environmental conservation purposes – whether alternative condition should be imposed – where alternative condition limits future development to defined building envelope – where alternative condition requires erection of fauna friendly fencing and rehabilitation of land – where alternative condition prohibits keeping of domestic dogs – whether alternative condition is lawful under s.65(1) of the Planning Act 2016.

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52
PLANNING AND ENVIRONMENT – APPLICATION – where applicant seeks a declaration and enforcement orders about the use of premises for overnight parking of RVs in a public park – where applicant contends the start of the use is a new use and constitutes assessable development requiring an effective development permit – where applicant contends use is a not a lawful use – where respondent contends the use is an ancillary use for which no development permit is required – whether a development offence has been committed under ss.163 and 165(a) of the Planning Act 2016 – whether enforcement orders should be granted restraining the commission of a development offence.

New Acland Coal Pty Ltd v Ashman & Ors (No 7) [2018] QLC 41
Remitted hearing of applications for, and objections to, mining leases and related environmental authority.
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority – objections to applications – where mining objections hearing resulted in recommendations to refuse applications – where that decision set aside for errors of law on judicial review.
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority – objections relating to noise further considered – whether noise limits in the draft environmental authority are adequate to regulate the noise impacts of the mine – whether an area being mined on an existing mining lease under the existing environmental authority was part of the application to amend the environmental authority – whether revised noise conditions should apply to that area when the amended environmental authority commences (if granted).

Legislation

Commonwealth

Act Compilation

Great Barrier Reef Marine Park Act 1975
14/11/2018; Act No. 85 of 1975.

Building Energy Efficiency Disclosure Act 2010
13/11/2018; Act No. 67 of 2010.

Regulation

Income Tax Assessment (Environmental and Natural Resource Management in relation to the Establishment of Trees for the purposes of Carbon Sequestration) Guidelines 2018
16/11/2018 - These guidelines set out the requirements carbon sink forest planting must meet to be eligible for a tax deduction for establishment costs, including (1) adhering to best practice approaches for achieving water and land environmental benefits, (2) guided by regional natural resource management plans and water sharing plans, (3) comply with applicable regulatory requirements, and (4) registration of legal rights concerning carbon sequestration in carbon sink forests on the land title.

Greenhouse and Energy Minimum Standards (Three Phase Cage Induction Motors) Determination 2018
14/11/2018 - This determination prescribes the Greenhouse and Energy Minimum Standards (GEMS) requirements for three phase cage induction motors with a rated output power greater than or equal to 0.73 kilowatts but less than 185 kilowatts and with a rated voltage of up to 1100 volts alternating current.

Greenhouse and Energy Minimum Standards (Registration Fees) Instrument 2018
13/11/2018 - This instrument specifies the fees payable for applications made to register a product under section 41 of the Greenhouse and Energy Minimum Standards Act 2012. This instrument revokes the Greenhouse and Energy Minimum Standards (Registration Fees) Instrument 2017 (No. 2).

NSW

Proclamations commencing Acts
Forestry Legislation Amendment Act 2018 No 40 (2018-620) — published LW 9 November 2018.
Western City and Aerotropolis Authority Act 2018 No 53 (2018-622) — published LW 9 November 2018.

Regulations and other miscellaneous instruments
Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2018 (2018-643) — published LW 16 November 2018.
Biodiversity Conservation Act 2016 — Determination (2018-625) — published LW 9 November 2018.
Biodiversity Conservation Act 2016 — Final Determination (2018-626) — published LW 9 November 2018.
Forestry Amendment Regulation 2018 (2018-627) — published LW 9 November 2018.
Local Land Services Amendment (Private Native Forestry) Regulation 2018 (2018-628) — published LW 9 November 2018.

Environmental Planning Instruments

Non-Government – 16 November 2018
National Parks and Wildlife Legislation Amendment (Riverina) Bill 2018
Protection of the Environment Operations Amendment (Clean Air) Bill 2018

Bills passed by both Houses of Parliament – 16 November 2018
Conveyancing Legislation Amendment Bill 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
Gerard Timbs
Jenny Humphris
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