In the media
Debugging watergate: interpreting official
responses
The Australia Institute has released analysis of official
responses to the Watergate scandal surrounding Murray Darling water
purchases, covered by The Project, Guardian and other outlets. The
analysis finds that official responses are misleading and in some
cases incorrect (21 April 2019).
More...
Queensland's property developer donation ban is
valid
The High Court has ruled Queensland laws banning property
developers from donating to political parties and candidates are
valid. The Palaszczuk Labor government passed laws last year,
backdated until before the 2017 Queensland election, banning
property developers from donating money to state and local
government politicians, candidates and parties (17 April 2019).
More...
Animal rights group Aussie Farms faces crackdown after
nationwide protests
The attorney general has asked the privacy commissioner to
investigate Aussie Farms and called on states to increase trespass
penalties in response to the animal rights group (08 April 2019).
More...
Australia's current building compliance issues
With the Lacrosse fire in Melbourne, the Opal Tower
scenario in Sydney, along with other fires and building safety and
defect issues in buildings in Australia and overseas, we are
increasingly seeing that prior to the drama occurring, the problems
or potential problems with the building were known (18 April 2019).
More...
NABERS releases strategic plan
NABERS announces the release of our five-year
strategic plan following a successful consultation period and
endorsement by the NABERS Steering Committee (18 April 2019).
More...
The ultimate challenge for sustainable building
A push to net zero carbon buildings is among the raft of
changes proposed in the next evolution of the Green Building
Council of Australia's Green Star system (10 April 2019).
More...
Victoria
Dead livestock odour leads to George Weston Foods
fine
A food processing company has been fined $8,060 after
Environment Protection Authority Victoria (EPA)
discovered that that they failed to comply with a notice for the
company's Girgarre piggery requiring environmental controls
around deceased animals composting on open ground with no controls
to prevent impacts to stormwater and groundwater (17 April 2019).
More...
Church to sell head office for hotel development
The Uniting Church in Melbourne will offload its block in
Little Collins Street after finally being granted a planning permit
by council (17 April 2019).
More...
New electronic tracking system for waste sector
Chemical waste will be electronically monitored from July
this year under an Andrews Labor Government crackdown on the
illegal storage of hazardous material. A new integrated waste
tracking tool, with improved data analytics and reporting, will
also be developed over the next 12 months to deliver insights on
sector activity, trends and highlight potential illegal activity
(15 April 2019).
More...
Community to have their say on North East Link
The planning approvals process for Victoria's biggest
road project has started, with an Environment Effects Statement
(EES) for North East Link now out for public
comment. The Andrews Labor Government is working to support
potentially impacted residents, businesses, sports clubs and
community groups when delivering the long-awaited project (10 April
2019).
More...
Dozens of homes, 102 businesses to go to make way for
Melbourne road
Dozens of homes and more than 100 businesses will be
compulsorily acquired to make way for Melbourne's $16 billion
North East Link, but the Victorian Government says some properties
that were likely to go have been saved (10 April 2019)
More...
Geelong recycler told to stop accepting combustible
timber waste
An alleged failure by Geelong recycler NATJON Pty Ltd to
meet the requirements of the Victoria Waste Management Policy
(Combustible Recyclable and Waste Materials) has seen Environment
Protection Authority Victoria (EPA) issue the
company a notice that requires it to immediately stop accepting
combustible recycling materials (09 April 2019).
More...
NSW
Poly wins approval for 620 apartments in Sydney
Developer Poly Australia has won approval for more than
$260 million of residential projects in one day, with its Bankstown
RSL redevelopment and Stanley Street Kogarah project getting the
green light from the Sydney South Planning Panel (12 April 2019).
More...
'This changes everything': System displays new
DAs in real-time
The public will now be able to view a development
application less than a day after it is lodged with a local
council, rather than having to wait six to 18 months. The
government has been trialling a new online tool called ePlanning,
which requires homeowners and developers to submit DAs online (22
April 2019).
More...
Brothers who claimed 'exemption' from law fined
$100,000 for contempt
The NSW Land and Environment Court heard Mustapha Kara-Ali
and his brother Diaa Kara-Ali had a "religious issue with the
court" and had ignored court orders to cease construction at a
site in Colo in north-west Sydney, for which they did not have
development consent (18 April 2019).
More...
World-first relocatable solar pods power up commercial
rooftops
Solpod today launches a potential game changer in
commercial solar PV. Substantially funded by ARENA, supported by
energy retailer, ERM Power, and trialling across 25 shopping
centres and NSW Government sites, this innovation has the legs to
go global (12 April 2019).
More...
Queensland
It is now law – landholders to be reimbursed
during negotiations
Queensland landholders can be reimbursed for out of pocket
expenses incurred in negotiating conduct and compensation
agreements with a resource company - as of April 19 - regardless of
whether or not an agreement is reached (19 April 2019).
More...
New lord mayor scraps the Mount Coot-tha zipline
Brisbane City Council's controversial Mt Coot-tha
zipline project has been terminated by lord mayor Adrian Schrinner,
ending months of protest and community concern (11 April 2019).
More...
In Practice and Courts
Commonwealth
Grattan Institute: Commonwealth Orange
Book 2019: policy priorities for the federal government
This report rates Australia's performance against
similar countries and proposes policy reforms for schools and
universities, hospitals and housing, roads and railways, cities and
regions, budgets and taxes, retirement incomes, and climate change
(16 April 2019). More...
Announcements, Draft Policies and Plans released 2019
Victoria
Environment effects statement (EES) for North East Link:
public comment
An Environment Effects Statement (EES)
has been released for the North East Link Project and is now open
for public submissions, closing on 7 June 2019. The EES also
includes a
Draft Planning Scheme Amendment and a
Works Approval Application for the construction of the tunnel
ventilation system.
More...
Bushfire Prone Area (BPA) map updated
The Minister for Planning has made a determination that
the BPA will be removed from certain areas in 19 municipalities,
effective Thursday 4 April 2019. The updated map can be viewed at
VicPlan and
Land Vic (11 April 2019).
NSW
Community participation plan updated FAQs
The Environmental Planning and Assessment Act
1979 has been updated to make community participation central
to the planning system. Supporting this objective is a new measure
requiring all public authorities that have planning functions under
the EP&A Act, including councils, to develop community
participation plan (CPP). CPPs must be finalised
and published on the ePlanning portal by 1 December 2019. The link
to the FAQs is
here.
Changes to housing SEPPs
Seniors Housing State Environmental Planning Policy – the
SEPP will not apply in heritage conservation areas in Greater
Sydney until 1 July 2020.
Queensland
Accessing private land for resource activities:
Guide
Before entering private land to carry out authorised
activities, resource companies must comply with land access laws
and follow set procedures to gain access. There are also special
requirements that restrict access around certain buildings,
structures and areas (18 April 2019).
More...
Department of Environment and Science
The Queensland Government is undertaking a comprehensive
review of the Queensland environmental offsets framework.
More...
Cases
Triabunna Investments Pty Ltd v Minister for Environment
and Energy [2019] FCAFC
60
ENVIRONMENT LAW — application for judicial
review of a referral decision made under the Environment
Protection and Biodiversity Conservation Act 1999
(Cth) — where the second respondent lodged a
proposal with the Department of Environment and Energy to farm
Atlantic salmon on an existing marine lease — where a
delegate of the Minister for Environment and Energy decided under s
75 of the Act that the proposed action was not a "controlled
action" if undertaken in a "particular manner"
within the meaning of s 77A of the Act — where the delegate
issued a written notice under s 77(1) of the Act and a statement of
reasons under s 77(4) of the Act — where the delegate
provided the statement of reasons to the appellants in accordance
with s 13 of the Administrative Decisions (Judicial Review) Act
1977 (Cth).
ENVIRONMENT LAW — whether the primary judge erred in finding
that the delegate, having made all the necessary findings, did not
err in law by failing to include in the notice issued under s 77 of
the Act the conclusion that the use of K-Grid and of bundled feed
and servicing lines by the second respondent were "particular
manner" requirements — whether the primary judge erred
in confining the operation of s 77A(1) to matters additional to
that which was contained in the second respondent's original
proposal — whether the primary judge erred in finding that
the delegate did not err by failing to take into account all
"adverse impacts" of the proposed action as required by s
75(2) of the Act — where the primary judge inferred from the
delegate's reasons that the delegate had considered the visual
impact of two permanently moored barges — whether the primary
judge erred in failing to deal with the appellants' contentions
about how the delegate's decision addressed the use of bundled
feed and servicing lines by the second respondent.
ADMINISTRATIVE LAW — whether the primary judge erred in
failing to give adequate reasons for rejecting certain contentions
made by the appellants — whether the primary judge erred by
mischaracterising and incorrectly describing certain arguments
advanced by the appellants.
Erskine, in the matter of North Shore Property Developments Pty Ltd
(in liq) [2019] FCA 476
CORPORATIONS – application by liquidator
for approval to enter deeds for indemnity and funding on behalf of
the Company under s 477(2B) of the Corporations Act 2001
(Cth) – where one deed requires retrospective
approval – whether entering into the deeds is in the best
interests of creditors – Robinson, re Reed Constructions
Australia Pty Ltd (in liq) [2017] FCA 594 considered –
application granted
Kinjun on behalf of the Gulngay People and State of
Queensland [2019] FCA 446
NATIVE TITLE – determination of native title by
consent – exercise of powers under s 87 of the Native
Title Act 1993 (Cth)
Victoria
Glenroy RSL Sub Branch Inc v Moreland CC
[2019] VCAT 583
Planning and Environment Act 1987 s 80; Moreland
Planning Scheme; Local planning policy on gaming Clause 22.10;
Particular provision on gaming Clause 52.28; installation and use
of additional ten gaming machines in existing venue; scope of
remittal from Supreme Court; socio-economic impact assessment; net
community benefit; acceptable planning outcome. Application
refused.
Guo v Monash CC [2019] VCAT 570
Application under Section 77 of the Planning and
Environment Act 1987 (the Act) to review a decision
to refuse a permit. Construction of thirteen dwellings and
alteration of access to a road in a Road Zone Category 1.
Fernandes v Mornington Peninsula SC
[2019] VCAT 517
Section 77 of the Planning and Environment
Act 1987, Housing and Settlement Strategy, neighbourhood
character, flat and skillion roof form, mix of materiality.
Mornington Peninsula SC v Hycenko
[2019] VCAT 494
The application for an enforcement order pursuant to
section 114 of the Planning and Environment Act 1987 is allowed.
Use of land as a Store in contravention of clause 37.01-1;
unauthorised buildings and works contrary to clause 37.01-4 of the
Mornington Peninsula Planning Scheme.
NSW
Office of Environment and Heritage v Scenic NSW Pty
Ltd [2019] NSWCATAP 87
PRACTICE AND PROCEDURE – joinder- where 3rd
parties object to government agency disclosing information under
Government Information (Public Access) Act 2009 –
where 3rd parties not parties to first instance decision on
jurisdiction – whether applicant for access appealed from
first instance decision – whether 3rd parties should be
joined to the appeal proceedings.
Tanous v Hunter's Hill Council
[2019] NSWLEC 1175
DEVELOPMENT APPLICATION: landscaped area and height
non-compliance – cl 4.6 written request for variation –
character – bulk and scale – driveway access.
Coronation (33 Shepherd St) Pty Ltd v Liverpool City
Council [2019] NSWLEC 1170
DEVELOPMENT APPLICATION: apartment design guide
– residential apartment development – design excellence
– Liverpool city centre.
Khan Owen Horne v The Water Administration Ministerial
Corporation [2019] NSWLEC 1172
Appeals and applications under the Water Act and
Water Management Act – Jurisdiction of the Court under Class
1 and Class 3.
IPM Holdings Pty Ltd v Inner West Council
[2019] NSWLEC 1182
DEVELOPMENT APPLICATION: shop top housing development
– whether the proposed development is compatible with the
desired future character of the area – whether clause 4.4A of
Leichhardt LEP 2013 applies – overlooking and overshadowing
impacts.
Sixto Properties Pty Ltd v Waverley
Council [2019] NSWLEC 1171
DEVELOPMENT APPLICATION: new attached dual
occupancies – Torrens title subdivision – variation to
minimum lot size – variation to floor space ratio –
planning experts agree development warrants approval – appeal
upheld.
Aloke Holdings Pty Ltd v Council of the City of
Sydney [2019] NSWLEC 1177
DEVELOPMENT APPLICATION: New terraces proposed in the
rear of a listed heritage item – whether the proposed
terraces will have an adverse impact on the heritage significance
of the item – whether the internal and street setbacks are
acceptable – amenity impacts – whether the development
exhibits design excellence.
Elanor Investors Limited v Sydney Zoo Pty
Limited [2019] NSWLEC 1173
CIVIL PROCEDURE: Notices to Produce and Subpoenas
– application to set aside.
Maham Group Pty Ltd v Blacktown City
Council [2019] NSWLEC 1168
DEVELOPMENT APPLICATION: boarding house; breach of
LEP height control; whether cl 4.6 written request required;
isolated site; consideration of local character; design excellence;
requirements of a Plan of Management; waste requirements; gradient
of basement ramp; disputed conditions.
Georges River Council v Stojanovski (No
2) [2019] NSWLEC 53
CONTEMPT: Disobedience of the Court's orders that
certain works carried out without necessary consent be
demolished.
Saffioti v Kiama Municipal Council
[2019] NSWLEC 57
APPEAL – appeal against Commissioner's
decision on questions of law – development application to
enlarge, expand or intensify existing use – proposal to erect
new dwelling and decommission existing dwelling – significant
adverse impact on terrestrial biodiversity – uncertainty and
inconsistency in applicant's evidence – applicant
requested Commissioner give amber light – Commissioner did
not give amber light and refused development consent –
whether denial of procedural fairness by not giving amber light
– Commissioner found development breached DCP controls
– whether denial of procedural fairness by not giving
opportunity to provide alternative solutions to achieve objects of
controls – LEP provision setting factual preconditions before
consent can be granted – whether LEP provision derogated from
incorporated provisions for existing use – whether
misdirection as to derogation test – whether conflation of
LEP provisions and DCP controls – error on question of law
not established.
Chief Executive, Office of Environment and Heritage v
Boyle [2019] NSWLEC 54
SENTENCE – charge of unlawful clearing of
native vegetation – plea of guilty – consideration of
potential aggravating factors – substantial environmental
harm a factor of aggravation – clearing carried out for
financial gain a second factor of aggravation – consideration
of defendant's subjective factors – defendant's lack
of insight into his offending conduct demonstrates lack of
contrition and remorse – no likelihood of reoffending –
other subjective factors favourable to defendant – agreed
remediation plan - consideration of other potentially relevant
prosecutions – appropriate starting penalty just below the
middle of the range – plea of guilty entered – not
entered at earliest opportunity but of significant utilitarian
value – discount of 22.5% on starting penalty appropriate
– fine of $348,750 imposed.
Weber v Greater Hume Shire Council
[2019] NSWCA 74
TORTS — negligence — duty of care —
duty of care owed by operator of waste disposal tip — escape
of fire – whether class to whom duty owed indeterminate TORTS
— negligence — standard of care — whether Council
exercising special statutory power under Civil Liability Act
2002 (NSW), s 43A TORTS — negligence — breach of
duty — whether adequate precautions taken to prevent escape
of fire – allocation of resources by local council —
application of Civil Liability Act, s 42 — whether
inaction of local council unreasonable — whether financial
resources available to take precautions TORTS — negligence
— causation — where multiple possible causes of fire
— whether probable causes arising from breaches of duty were
sufficient to establish causation — whether precautions would
have prevented damage to the plaintiff.
Community Association DP270447 v ATB Morton Pty
Ltd [2019] NSWCA 83
JUDICIAL REVIEW – late application to quash
orders of Land and Environment Court granting development consent
– substantial unexplained delay – weakness of case
sought to be advanced – application to extend time refused
PRACTICE – parties – appeal against refusal of
development consent – where development contemplated
obtaining access across neighbouring land – whether
neighbouring landowner a necessary party to appeal – whether
Land and Environment Court lacked jurisdiction to impose easement
in separate proceedings commenced while appeal was pending –
Land and Environment Court Act 1979 (NSW), s 40, considered
PRACTICE – parties – whether lot owners of land subject
to Community Land Development Act 1989 (NSW) necessary parties to
application for easement over Community Association's land
– whether other persons with registered easements over the
land sought to be burdened by the proposed easement were necessary
or proper parties – effect of non-joinder in circumstances
where third parties were informed of application and requested not
to be joined – UCPR r 6.23 and Land and Environment Court Act
1979 (NSW), s 40(3), considered REAL PROPERTY – easements
– power of court to impose easement – whether easement
reasonably necessary for effective use and development of dominant
tenement – whether error of law in formulation or application
of test.
Henroth Investments Pty Ltd v Sydney North Planning
Panel [2019] NSWCA 68
ENVIRONMENT AND PLANNING – environmental
planning instruments – local environmental plan
–proposal to rezone land – review of rejection by
planning panel – power of panel to consider proposal –
power of panel to recommend replacement of local council as
relevant planning authority – no recommendation made –
whether panel obliged to have regard to a local strategy endorsed
by the Department – whether panel obliged to consider
requirements of Secretary with respect to determination of planning
proposal JUDICIAL REVIEW – availability of judicial review
– whether power to review an administrative decision not to
make recommendation at a preliminary stage of decision-making
process – whether failure to take a particular matter into
account could have affected legal interests – whether matter
not taken into account COSTS – party/party – orders
when proceedings involve multiple parties – parties with same
interests –whether party inappropriately joined to primary
proceeding and appeal should be awarded costs – whether
improper for decision-maker to take an active role in proceedings
where no other party with interest.
Elhazouri v Subsidence Advisory NSW
[2019] NSWLEC 41
MINE SUBSIDENCE – compensation claim for damage
to dwelling and other ancillary structures under now repealed Mine
Subsidence Compensation Act 1961 – subsidence at least
partial cause of damage claimed – dispute as to extent damage
caused by subsidence – competing expert evidence from
structural engineers – held causation of damage to dwelling
and incorporated garage was mine subsidence – no evidence to
support claim for damage to ancillary structures – two months
to be allowed to parties to seek to resolve scope and methods of
rectification of damage to dwelling MINE SUBSIDENCE –
compensation claim for damage to dwelling under Coal Mine
Subsidence Compensation Act 2017 not subject to proceedings –
no findings with respect to claim under 2017 legislation COSTS
– Applicant self-represented – Applicant entitled to
limited costs consistent with approach in Cachia v The Hills Shire
Council [2010] NSWLEC 136 – contingent costs order
appropriate to permit Respondent to make submissions on costs
– if no request to be heard within 28 days, limited costs
order in Applicant's favour.
Urbanesque Planning Pty Ltd v Ku-ring-gai
Council [2019] NSWLEC 1163
Modification of a development application:
development contributions, whether granting of consent for works on
a constrained residential block could be adjudged likely to
increase the demand for public amenities and public services,
vacant lots, remnant vegetation, environmental constraints.
Rod Zoabi t/a ZTA Architects v Georges River
Council [2019] NSWLEC 1164
DEVELOPMENT APPLICATION: dual occupancy; bulk and
scale; streetscape; precedent; contamination; stormwater; accuracy
of survey levels.
SNL Building Construction Pty Ltd v Lake Macquarie City
Council [2019] NSWLEC 1147
Development Application: mixed use development;
proposed addition to approved development; additional storey
breaches height of buildings development standard; is the
Applicant's written request under cl 4.6 of Lake Macquarie LEP
well founded; is compliance with the standard unreasonable or
unnecessary; whether the Applicant's environmental planning
grounds are sufficient.
Vortex Property Group (NSW) Pty Ltd v Georges River
Council [2019] NSWLEC 1153
DEVELOPMENT APPLICATION: compliance with density controls
for the Kogarah North Precinct –apartment design guide
– heritage – developer contributions –
contributions plan.
Codling v Central Coast Council
[2019] NSWLEC 1158
APPEAL: development application – mixed use
development in business park zone – shop top housing –
permissibility – whether there is compliance with a provision
limiting shop top housing – weight to be given to draft
clause in a draft consolidating local environmental plan –
consistency with zone objectives – conflict of residential
use with other permissible uses – consistency with the
development control plan.
UTSG Pty Ltd v Sydney Metro (No 4)
[2019] NSWLEC 51
EVIDENCE: whether expert accounting reports should be
admitted into evidence in proceedings in Class 3 of the Court's
jurisdiction where the rules of evidence do not apply –
assertions and assumptions presented as established facts –
reasoning not elucidated – conclusions and opinions stated
absent explanation or foundational basis – intemperate
language used – scandalous allegations made in respect of
another expert and expert report – whether expert lacking in
impartiality and independence – report rejected.
Brewster Murray Pty Ltd v Northern Beaches
Council [2019] NSWLEC 1152
DEVELOPMENT APPLICATION: seniors' housing
development comprising 40 residential units –consistency with
the desired future character of the locality – impact on
ecological values – flood affected land.
Secretary, Department of Planning and Environment v
SingTel Optus Pty Ltd [2019] NSWLEC 44
ENVIRONMENT AND PLANNING: Prosecutions for failing to
disclose political donations – pleas of guilty entered
– sentencing principles – totality in sentencing
– moieties to the prosecutor – publication orders
– principles to apply – costs.
Legislation
Privacy
Amendment (Protection of Australian Farms) Regulations 2019
05/04/2019 - These regulations amend the Privacy
Regulation 2013 to prescribe Aussie Farms Inc as an organisation
for the purposes of the Privacy Act 1988. Subsection 7(1A)
applies in relation to acts done, and practices engaged in, after
the commencement of the Privacy Amendment (Protection of Australian
Farms) Regulations 2019 (whether in relation to personal
information collected before or after that commencement).
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.
