Australia: Inside track: Property & Real Estate - In the media, in practice and courts, cases and legislation

Last Updated: 5 September 2019
Most Read Contributor in Australia, August 2019

In the media

Commonwealth

Commercial real estate prices stumble in global capitals
Commercial property prices in major cities around the world tumbled in the second quarter, amid signs of slower global growth and heightened trade tension between China and the U.S. In Australia, where the economic growth has slowed sharply since mid-2018, property prices were down more than 2 per cent in Melbourne and Central Sydney (14 August 2019). More...

CEFC drives $1 billion in smaller-scale clean energy projects as Bank of Queensland comes on board
The CEFC has marked a major milestone in Australia's clean energy transition, helping drive more than $1 billion in new investment in smaller-scale clean energy projects Australia-wide (13 August 2019). More...

Infrastructure report highlights need for extra investment and planning
Australia is sleepwalking its way towards becoming a nation of three megacities with regions which struggle with social and economic equity issues, the Planning Institute of Australia warns (13 August 2019). More...

Infrastructure critical to city transformation: Audit
The Property Council of Australia welcomed the release of Infrastructure Australia's 2019 Australian Infrastructure Audit and its recognition of the critical infrastructure needs of our growing cities, especially the big four of Sydney, Melbourne, Brisbane and Perth (13 August 2019). More...

Significant building reform 'needed to restore insurers' confidence
Insurers won't consider offering unrestricted products in the building industry professional indemnity market until confidence in the sector is restored, Insurance Council of Australia says (12 August 2019). More...

Commercial property rebounds as office, industrial outperform
Growing confidence in the commercial property market, led by gains in the office and industrial sectors in the eastern states, has brought a major indicator of sentiment back into the black. Capital growth and rental returns on industrial properties are also tipped to grow over the next year, if at a more modest rate of 1.0 per cent and 1.1 per cent, respectively (09 August 2019). More...

Why commercial property future could be a growth market for agents
The market sentiment for commercial property has seen "a strong lift in confidence" in the second quarter of 2019, despite retail and CBD hotels showcasing less than stellar performances. The swing has apparently been led by strong optimism across NSW and Victoria, with the report noting that by sector, positive sentiment has increased the most for commercial office spaces (12 August 2019). More...

CEFC backs QSCF Climate Bonds Initiative certified green bond to support sustainable investment market
The CEFC has made a cornerstone investment of $30 million in the QIC Shopping Centre Fund green bond, the first Climate Bonds Initiative certified green bond issued by a retail property landlord globally, and an exciting milestone in the development of Australia's green bond market (09 August 2019). More...

REIA: Housing finance figures show green shoots
The June 2019 Lending to Households and Business Figures released by the Australian Bureau of Statistics show rises in new lending commitments for both owner occupier and investor dwellings (07 August 2019). More...

Unlocking more sustainable finance with GRESB, NABERS and Green Star
The property sector is fast cottoning on to the power of green bonds and other sustainable financing mechanisms to create a more sustainable built environment, including the residential market (06 August 2019). More...

Victoria

Hotel Windsor's controversial revamp all but killed off as permit extension knocked back
Controversial plans for a $330 million redevelopment of Melbourne's historic Hotel Windsor are quashed, after Victorian planning minister Richard Wynne refused the owning Halim family's request for a fourth extension on the 26-storey tower project (09 August 2019). More...

"A sorry tale indeed": Ombudsman calls for end to saga affecting owners of Ninety Mile Beach land
Owners of land that cannot be built on along Gippsland's Ninety Mile Beach should be refunded rates and waste charges, Victorian Ombudsman Deborah Glass has recommended, ending a 65-year-long saga, where a developer lured people, mostly migrants from Europe, to buy land promoted as a 'slice of paradise on Victoria's Gold Coast'. (07 August 2019). More...

Melbourne developer aims to curb Epping congestion
The delivery of new infrastructure could solve congestion issues in Melbourne's growing northern region, with Melbourne-based developer MAB Corporation pledging to deliver an "essential piece of road" in Epping (07 August 2019). More...

Tiny homes unveiled during homelessness prevention week
People experiencing homelessness now have more housing options with the opening of the first six of a planned 57 tiny homes on vacant government-owned land. In an Australian-first project these units will be situated on nine parcels of land owned by VicRoads that have been leased to the Department of Health and Human Services (05 August 2019). More...

NSW

Big off-the-plan reform push launched by REINSW
In response to government proposals for off-the-plan contracts, the REINSW has called for protective financial risk provisions to be extended to all parties involved in these contracts, not just purchasers (14 August 2019). More...

Queensland

The show will go on: Old Burleigh Theatre Arcade given extra protection
The Palaszczuk Government has granted extra planning protection for iconic Gold Coast seaside theatre, the Old Burleigh Theatre Arcade (16 August 2019). More...

Brisbane's narrowest commercial tower approved
A development application has been approved for an ultra-skinny mixed use tower located in Brisbane's CBD. Hames Sharley principal Jason Preston said the building's narrowness meant the design needed to be innovative in dealing with the challenges of structural tension, compression and stability and honoured the heritage status of the existing building (15 August 2019). More...

Gold Coast enters luxury market hit list
The Gold Coast is the newest entry on to a list of international high-end property markets, with a strengthening pipeline of new projects attracting affluent local and interstate buyers (14 August 2019). More...

Koala habitat cleared for housing development against Environment Department's offset policy
The Federal Environment Department approved the clearing of more than 75 hectares of critical koala habitat west of Brisbane in breach of its own policy (13 August 2019). More...

Planning for Oxley sees childcare relocate following three-year consultation period
A new planning framework, designed to guide future development within the Oxley Priority Development Area (PDA), came into effect after three years of research, planning and public consultation. The controversy centered on the nature of PDAs, which remove an application from local government assessment, making applications instead assessed by the state government (13 August 2019). More...

More apartments approved in Sunshine Coast's new CBD
New changes to the state government's priority development scheme will see the delivery of up to 4000 new apartments in the new $2.1 billion Maroochydore CBD (09 August 2019). More...

Yeerongpilly Green masterplan maps out transformative Southside project
The masterplan model for the $850 million Yeerongpilly Green urban renewal project was unveiled, with the development set to generate around 7600 jobs over the next decade (09 August 2019). More...

Maroochydore City Centre Development Scheme approved
Greater housing diversity and a new Maroochydore CBD will be accommodated in the Maroochydore City Centre Priority Development Area after the state government approved changes to the PDA's development scheme (09 August 2019). More...

Development scheme creates planning certainty for Oxley PDA
A new planning framework to guide future development within the Oxley Priority Development Area (PDA) has come into effect, following three years of research, planning and public consultation (09 August 2019). More...

Yeronga PDA development scheme given the green light
A new and permanent home for Yeronga Community Centre is a step closer with the development scheme approved for the Yeronga Priority Development Area (PDA) (09 August 2019). More...

PCA: Brisbane office markets bounce back
The Property Council of Australia's latest Office Market Report shows that vacancy across the CBD has dropped from 12.9 per cent to 11.9 per cent over the last six months. Vacancy in the Brisbane Fringe fell from 15.7 per cent to 13.8 per cent over the same period. The Gold Coast saw a reduction in demand for office space with an increase from 11.6 per cent to 12.9 per cent across the city in the first half of 2019 (08 August 2019). More...

'Enough is enough': Minister, council oppose clearing for Brisbane aged-care centre
The Queensland government is under extreme pressure from one of its own ministers to cancel 15-year-old plans to clear six hectares of "regionally significant" bushland at Stafford Heights (07 August 2019). More...

Silverstone inks deal on Brisbane redevelopment of 458 Wickham Street
Silverstone Developments has entered into an agreement with the Queensland government for the redevelopment of the PCYC and a 12-storey commercial development in Brisbane's Fortitude Valley (07 August 2019). More...

International uni, 30-Storey tower next Step in Fortitude Valley renewal
A new $180 million international university campus and 30-storey tower comprising student accommodation, co-living and co-working space is planned for Brisbane's inner suburb of Fortitude Valley. A 12-year lease agreement has been signed with the international NASDAQ-listed Torrens university for its new Fortitude Valley based campus (06 August 2019). More...

AVJennings lodges plans for 8,700 homes in Caboolture
ASX-listed developer AVJennings has lodged plans for a new masterplanned community spanning 410 hectares north of Brisbane. The greenfield development in Caboolture West has been earmarked for more than a decade, with Australia's population growth continuing to drive demand in "next growth areas (05 August 2019). More...

Published – articles, papers, reports

An assessment of Australia's future infrastructure needs
Infrastructure Australia: 13 August 2019
The 2019 audit covers transport, energy, water, telecommunications and – for the first time – social infrastructure, and looks at the major challenges and opportunities facing Australia's infrastructure over the next 15 years and beyond. More...

Regional population growth – are we ready?
Jack Archer, Kim Houghton, Ben Vonthethoff; Regional Australia Institute: 07 August 2019
The RAI is calling for a new national awareness campaign to promote the opportunities of living in regional Australia, and help drive a population shift in coming decades. More...

Older Australians and the housing aspirations gap
Amity James, Steven Rowley, Wendy Stone, Sharon Parkinson, Angela Spinney, Margaret Reynolds
Australian Housing and Urban Research Institute: 07 August 2019
This research examined the housing aspirations of older Australians (i.e. aged 55 years and over), including home owners and renters in the private market and in social housing, to provide the evidence-base for policies needed to deliver their required housing and housing assistance. More...

In practice and courts

Commonwealth

API Alert: Retail Leases Act 2003 (Victoria) – Definition of 'Retail Premises'
The VCAT recently handed down the decision of Phillips v Abel [2019], further clarifying 'retail premises' under the Retail Leases Act 2003. Significantly, the 'purpose of occupation' and the 'ultimate consumer' test apply when determining whether property is 'retail premises' under the Act. This governs whether a landlord is entitled to recover land tax from a tenant (13 August 2019). More...

RICS draft guidance note - Measurement of Land for Development and Planning Purposes (1st edition)
Once adopted, the guidance will have far-reaching implications for development surveyors, planners, architects and government administrators around the world as the new standards become global best practice for the consistent calculation of land measurement and associated metrics. Consultations close on 17 September 2019 (06 August 2019). More...

ABCB: Energy efficiency scoping study
The ABCB has released an energy efficiency scoping study for public comment. The study outlines an approach and scope for investigating possible changes to the NCC's energy efficiency provisions, with a focus on NCC 2022. This work will consider the COAG Energy Council's Trajectory for Low Energy Buildings.
Consultation closes 8 September 2019. More...

Announcements, Draft Policies and Plans released 2019

Queensland

Parliament: Online tabled papers – 06 August 2019
1084: Professional Standards Act 2004: Instrument amending the Australian Property Institute Valuers Limited Professional Standards Scheme (Refer to Professional Standards (Australian Property Institute Valuers Limited Scheme) Amendment Notice 2019, No. 145 of 2019). More...
Associated Papers
Professional Standards Act 2004: Professional Standards (Australian Property Institute Valuers Limited Scheme) Amendment Notice 2019, No. 145
Professional Standards Act 2004: Professional Standards (Australian Property Institute Valuers Limited Scheme) Amendment Notice 2019, No. 145, explanatory notes

Titles Registry Alert No 154: Important changes to the witnessing requirements for Titles Registry instruments and revised Land Title Practice Manual to commence later this year
New and revised practice requirements have been developed to reflect the upcoming changes and provide additional guidance for witnesses. A new standalone part of the Land Title Practice Manual, Part 61, has been created for this purpose. To give witnesses time to understand the practical effect of the amendments and review their processes the draft Part 61 – Witnessing and Execution of Instruments or Documents with these updated witnessing practice requirements has been made available (06 August 2019).

BCC: Draft design guide - low-to-medium density housing
The draft New World City design guide - Subtropical homes for a Brisbane lifestyle will provide advice and support to encourage quality design of townhouses and apartments up to five storeys. Consultation has now commenced and will close on 13 September 2019. More...

BCC: Design strategy for Brisbane
Design-led City - a design strategy for Brisbane intends to outline a vision for design quality across Brisbane's built environment. The consultation document sets out the draft priorities and design values to guide design outcomes for all development and infrastructure projects, and identifies potential actions to support, regulate, reward and implement quality design in Brisbane. Consultation will close on 13 September 2019. More...

Attorney General: Free state-wide seminars explain body corporate laws
Queensland's Office of Body Corporate and Community Management will host free seminars across the State to help inform community members about body corporate laws. The seminars will be held in late August and September at the Gold Coast, Logan, Brisbane, Sunshine Coast, Hervey Bay, Gladstone, Mackay, Townsville and Cairns. (07 August 2019). More...

PCA: Queensland planning policy update
A number of local and state government related planning decisions impacting the property sector have been released.
New Model Code for Neighbourhood Design
Queensland Government has released a new model code for neighbourhood design, and is proposing to make parts of the code mandatory. The Queensland Government is seeking feedback on what parts of the code to make mandatory with consultation closing on 1 September 2019. More...

Sunshine Coast incentives
Sunshine Coast Council has announced a three-year extension to its Infill Development Incentives Policy which offers incentives for infill development on the Sunshine Coast. All applications for an incentive must be submitted to Council between 1 July 2019 and 30 June 2022. More...

Have your say: Energy from Waste Policy discussion paper
The Queensland Government has released a discussion paper outlining the proposed role for energy from waste, how it could support the implementation of the Waste Management and Resource Recovery Strategy and support the State's transition to the principles underpinning the circular economy. Energy from waste involves converting waste materials into fuels, or energy in the form of electricity, heat, or cooling. Queenslanders can have their say on the Energy from Waste Policy Discussion Paper. Submissions close on 26 August 2019. More...

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows:
Part 2: extended from 29 May 2019 to 31 July 2019
Part 3a: extended from 27 August 2019 to 31 October 2019. More...

Cases

Provans Timber Pty Ltd v Secretary to the Dept of Transport (Costs Judgment) [2019] VSC 537
COSTS – proceedings brought under Land Acquisition and Compensation Act 1986 ('LAC Act') – owner of acquired land claimed for balance of compensation for market value of land – claim successful – Calderbank offer – offer not accepted by Authority – whether Authority's failure to accept Calderbank offer unreasonable – authority to pay indemnity costs after the date the period for acceptance of the Calderbank offer expired – LAC Act, s 91 – Hazeldenes Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 applied.

Key Infrastructure Australia Pty Ltd v Bensons Property Group Pty Ltd [2019] VSC 522
CONTRACT – development management agreement – term that planning permit be issued by a certain date – whether defendant elected to appeal to VCAT pursuant to term of agreement – holding that defendant did not elect to appeal – whether decision by VCAT that permit should be granted satisfied the term – holding that decision by VCAT granting permit did not satisfy term.
CONTRACT – whether terms of development management agreement included implied terms of good faith and co-operation – Duty of co-operation implied – duty of good faith not implied – holding that defendant had breached duty of co-operation – plaintiff entitled to nominal damages.
EQUITY – whether defendant estopped from relying on strict wording of term of development management agreement – Conventional estoppel – equitable estoppel – holding that estoppel not established.

Hawker v Powercor Australia Ltd [2019] VSC 521
PRACTICE AND PROCEDURE – group proceedings – approval of Settlement Application under Supreme Court Act 1986 (Vic), s 33V – in the interests of group members as a whole – whether terms of settlement "fair and reasonable" – settlement Approved.
Mr Hawker commenced a proceeding against Powercor as provided for in Part 4A of the Supreme Court Act 1986 on behalf of himself and other persons who had suffered loss and damage as a result of the Gnotuk bushfire.

Waterfront Place Pty Ltd v Minister for Planning & Ors [No 2] [2019] VSCA 166
PRACTICE AND PROCEDURE – costs – application for leave to appeal – leave to appeal refused – whether applicant should pay costs of two respondents – respondents acting at arm's length during litigation – applicant ordered to pay costs of both respondents on standard basis – Local Democracy Matters Incorporated v Infrastructure New South Wales [No 2] [2019] NSWCA 118 and Statham v Shephard (No 2) [1974] 23 FLR 244, applied.

Mizzii & Anor v Ballin & Anor [2019] QCAT 216
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – where tenant in default of essential terms under Lease – where rent arrears – where rates owing – where cleaning and make-good owing – where amount owing for furniture and equipment sold under Chattels Agreement – whether interest payable – where Tribunal does not have statutory discretion to award interest – where enabling provision did provide for interest.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where strong indicator against awarding of costs – where nothing to displace usual position that each party must pay own costs.
Queensland Civil and Administrative Tribunal Act 2009 Qld s 100, s 102, s 103
Retail Shop Leases Act 1994 Qld s 103

Sunshine Coast Regional Council v Dwyer & Ors [2019] QPEC 36
It is further ordered that pending a decision in proceedings for the enforcement order, interim enforcement orders are made pursuant to section 180(5) of the Planning Act 2016 (Qld) that: 4. The First, Second, Third and Fourth Respondents by themselves, servants or agents stop carrying out all works associated with the Rooftop Work and the Rooftop Area until a development permit for building work is in effect for the development.

Burnett Street Nominees Pty Ltd v Sunshine Coast Regional Council [2019] QPEC 35
ENVIRONMENT AND PLANNING – APPLICATION – where the applicant seeks an order pursuant to s 78 Planning Act 2016 to change a development approval by allowing the development to be in stages – whether the proposed change is a "minor change" – whether the proposed change would not result in a substantially different development.
Planning Act 2016 Qld ss 68, 78(1), 78A, 80, 81(2), 85, 86; Planning Regulation 2017 Qld s 44; Planning and Environment Court Act 2016 Qld s 46(3); Sustainable Planning Act 2009 Qld ss 350, 369

Toula Holdings Pty Ltd & Ors v Morgo's Leisure Pty Ltd & Ors [2019] QSC 196
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS –where the applicants were successful on appeal in an action brought by the respondent plaintiffs concerning the lease of a hotel – where the applicants seek leave to proceed pursuant to r 389 of the Uniform Civil Procedure Rules in an application for compensation for damages pursuant to r 264(3) or r 900(3) of the Uniform Civil Procedure Rules – where the trial judge made orders setting timetables for the action on the respondents' undertaking in the usual form as to damages and the applicants' undertaking not to sell the hotel – where the trial judge subsequently made freezing orders against the applicants on the respondents' undertaking as to damages – whether the respondents breached their undertakings for the purposes of r 264(3) or r 900(3) – whether r 264(4) has any application.

Legislation

High Court (2020 Sittings) Rules 2019
08/08/2019 – These Rules of Court appoint the High Court days of sitting for 2020.

Competition and Consumer (Price Inquiry—Water Markets in the Murray-Darling Basin) Direction 2019
08/08/2019 – This instrument requires the Australian Competition and Consumer Commission to hold a price inquiry into markets for tradeable water rights relating to water in the Murray-Darling Basin.

Queensland

Subordinate legislation as made – 16 August 2019
No 153 Environmental Protection (Air) Policy 2019
The purpose of this policy is to achieve the object of the Act in relation to the air environment. This regulation commences on 1 September 2019.
No 154 Environmental Protection (Noise) Policy 2019
The purpose of this policy is to achieve the object of the Act in relation to the acoustic environment. This regulation commences on 1 September 2019.
No 155 Environmental Protection Regulation 2019
This regulation commences on 1 September 2019.
No 156 Environmental Protection (Water and Wetland Biodiversity) Policy 2019

Subordinate legislation as made – 09 August 2019
No 151 Nature Conservation (Wildlife Management) (Infrastructure) Amendment Regulation 2019
No 152 Building and Other Legislation Amendment Regulation 2019
This Regulation is made under the Building Act 1975 and the State Penalties Enforcement Act 1999. This Regulation permits private building certifiers to continue to perform their function, improves the administrative and regulatory functions of the QBCC in administering the combustible cladding checklist process, imposes penalties against registered owners for not taking required actions, and requires that fire engineers notify building owners and the QBCC when they reasonably believe a private building will require risk mitigation measures. This Regulation was notified on 9 August 2019.

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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