Australia: Inside track: Planning, Environment & Sustainability: Recent media releases, in practice and in courts, recent cases and legislation

Last Updated: 24 September 2019
Most Read Contributor in Australia, September 2019

In the media

Figures show Australia's carbon emissions continue to rise despite quarterly drop
Data released by Emissions Reduction Minister Angus Taylor show an increase of 0.6 per cent in carbon emissions in the year to March, which he says is due to the growth in Australia's LNG exports (30 August 2019). More...

Climate change key in home-buying process
According to REIQ CEO Antonia Mercorella, climate change has become "the new due diligence", with home buyers putting this on their agenda alongside the typical building and pest inspections, utility access and land boundary checks (28 August 2019). More...

NSW

These Sydney apartments are advertised as 'the sweet life'but owners tell a different story
The owners of a Sydney apartment complex locked out of their million-dollar apartments because of toxic land concerns look set to be barred from entering their homes until at least the end of the year (05 September 2019). More...

Why heritage protection doesn't always stop the bulldozers moving in
As the heavy machinery moved in to tear down a period home more than a century old in Hawthorn, residents could only watch on powerless and bewildered. So why can a heritage-listed home be bulldozed to make way for 14 new apartments? (31 August 2019). More...

Livestock processing company Ridley ordered to pay $105,000 for environmental breaches
The NSW Land and Environment Court has convicted livestock processing company Ridley AgriProducts Pty Ltd and penalised it $105,000 for two breaches of its environment protection licence, following a successful prosecution by the NSW Environment Protection Authority. Ridley is a subsidiary of Ridley Corporation Ltd, an ASX listed company (29 August 2019). More...

'Unprecedented' condition placed on approval for $381m 'super-pit' coal mine approval
The United Wambo coal mine in the NSW Hunter Valley gets the go-ahead, but on the condition that its coal can only be exported to countries that have ratified the Paris climate agreement (29 August 2019). More...

Essential for NSW Planning Minister To 'Clear Decks' For New Development
A statement by NSW Planning Minister, Rob Stokes, that he is clearing the decks' to speed up development assessments is good news says the Urban Taskforce (28 August 2019). More...

Queensland

'The up-yard': Could rooftop gardens save our cities from climate change?
Brisbane is forecast to become a difficult place to live by 2050 and while rooftop gardens could be the ticket to cooling the urban sprawl, developers say local planning laws are holding them back (06 September 2019). More...

Grazier defends burning land in greater glider habitat as necessary, legal 'fire hazard reduction'
The Federal Government approved woodland clearing on a Queensland cattle station despite internal advice. Now a conservation group is alleging the owner has burned the small section set aside for the greater glider (02 September 2019). More...

Developer Shayher Group Buys Bulimba Barracks
A 20-hectare riverside development site has been sold by the federal government to developer Shayher Group in a major transaction that could see up to 855 new homes on the well-known inner Brisbane site, the Bulimba Barracks (29 August 2019). More...

Fraser Island compensation case drags on as unprecedented expiry of land use nears
The Indigenous owners of Fraser Island, the world's largest sand island, are frustrated by delays in their claim for compensation from the Queensland Government (27 August 2019). More...

In Practice and Courts

AS ISO 14044:2019/Amdt 1:2019
Environmental management – Life cycle assessment – Requirements and guidelines
Standards Australia

Announcements, Draft Policies and Plans released 2019
NSW

NRC: Final report on Barwon-Darling Water Sharing Plan review submitted to NSW Government
The Commission has submitted to the Minister for Water its final report on the review of the Water Sharing Plan for the Barwon-Darling Unregulated and Alluvial Water Sources 2012 (06 September 2019). More...

NSW Land and Environment Court appointments
4 September 2019: New Land and Environment Court judge appointed
Ms Duggan SC will be sworn in on 10 September 2019 at 9am in the Banco Court, Law Courts Building.
4 September 2019: New Acting Commissioner Appointments
The Chief Judge, Justice Brian Preston, announces the appointment of Mr Philip Clay SC and Ms Maureen Peatman as Acting Commissioners of the Court for the period commencing 4 September 2019 and expiring on 3 September 2020.

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018 (30 August 2019). More...

Planning Circular – Commencement of Part 6 (building and subdivision certification provisions)
FAQ – Occupation certificate
FAQ – New mandatory compliance powers for private principal certifiers
FAQ – New subdivision works certificate
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
If you have any queries, please contact the Department of Planning, Industry and Environment. More...

EPA updated Contaminated Land Guidelines consultation
The NSW Environment Protection Authority (EPA) is seeking feedback on two draft contaminated land guidelines, one for consultants reporting on contaminated land and the other for assessing and managing hazardous ground gases. To view and submit feedback visit the EPA's consultation website. Consultation is open until 8 October 2019. More...

The Low Rise Medium Density Housing Code deferred
The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) has been amended to extend for a further short period, until 31 October 2019. For landowners, pending recommendations of the review, landowners in deferred council areas will not be able to use the Code to lodge a complying development application for dual occupancies, manor houses or terraces until 1 November 2019 (or 1 July 2020 in the City of Ryde) Current LEP Proposals from 26 August 2019. More...

Queensland

Reef protection laws – keep up to date
The Queensland Government is proposing strengthening Great Barrier Reef protection laws. If you're a commercial cane, banana, horticulture, grain or beef cattle grazing producer operating in Cape York, the Wet Tropics, Burdekin, Mackay Whitsunday, Fitzroy or Burnett Mary regions, this may affect you. It also applies to new, expanded or intensified industrial development with sediment or nutrient releases. More...

DES Prosecution bulletins
A selection of the department's enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (27 August 2019). More...

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...

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...

Cases

NSW

Furia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1409
APPEAL – child care centre – modification of consent granted by the Court – increase in number of children – reliance on on-street parking – whether on-street parking causes adverse amenity impacts to neighbouring residents

Greenfields Development Company No. 2 Pty Ltd v Camden Council [2019] NSWLEC 1412
DEVELOPMENT APPLICATION – application for subdivision and dedication of public roads – including stratum subdivision – precedent – public interest

Creative Drafting Services v City of Parramatta Council [2019] NSWLEC 1413
DEVELOPMENT APPLICATION – Child care centre – location on main road and busy intersection – risks to children's health – air quality impacts – dispute on risk assessment acceptability – acoustic impacts – use of simulated outdoor play areas in lieu of outdoor play areas – Regulatory Authority refuses concurrence – Infrastructure SEPP tests to be met – compatibility with surrounding industrial development – evacuation considerations – disputed conditions of consent

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126
APPEAL – refusal of application for approval of boarding house pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) – issue of whether manager's private open space complied with the SEPP –Commissioner held that the SEPP mandated refusal for non-compliance – ground of appeal that the Commissioner misconstrued the obligation under the SEPP – Council concedes ground made out – ground is made out – Commissioner also refused the proposed development on the basis that it did not demonstrate design excellence as required by cl 7.7(3) of the Blacktown Local Environmental Plan 2015 –two grounds of appeal asserted that Commissioner failed to give reasons for conclusion concerning design excellence – Council concedes grounds made out – grounds are made out – complaint that Commissioner denied the applicant procedural fairness concerning both manager's private open space and design excellence –Council concedes ground made out –ground is made out – application for an exclusionary remitter on the basis the Commissioner would not bring an open mind to the matters of the manager's private open space and design excellence –no basis to complain that the Commissioner could not bring an open mind to the issue of the manager's private open space –reasonable apprehension to conclude that the Commissioner would not bring an open mind to the issue of design excellence –appeal upheld – exclusionary remitter ordered. COSTS – costs ordinarily follow the event in s 56A appeals – Appellant entitled to its costs – application by the Council for a certificate pursuant to s 6(1AA) of the Suitors' Fund Act 1951 on the basis that the Council did not cause or contribute to the errors forming the basis for the successful appeal – appropriate to order that the Council have a certificate if otherwise entitled

Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134
ADMINISTRATIVE LAW – review of decision of Civil and Administrative Tribunal (NCAT) – disciplinary action against local councillor for breaches of Code of Conduct – validity of statutory powers of Council – validity of referral to NCAT – jurisdictional error in disciplining for breach of invalid provision of Code – jurisdiction to inquire into underlying conduct LOCAL GOVERNMENT – powers of local council to discipline councillor – power to censure conferred by statute – validity of further powers contained in Code made under Regulation – whether additional powers consistent with scheme of legislation – Council required councillor to acknowledge breach, apologise, undertake not to repeat conduct and undertake training – councillor referred to Chief Executive for failing to comply – matter referred to NCAT for consideration – powers of NCAT STATUTORY INTERPRETATION – conferral of limited power to take disciplinary action – further powers conferred by code made under regulation – whether code consistent with scheme of legislation

Visy International Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1404
DEVELOPMENT APPLICATION – child care facility for 60 children – impact of the proposed development on the setting of heritage items adjoining and in the vicinity of the site

Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1405
DEVELOPMENT APPLICATION – Residential subdivision – variation to lot size control sought – whether compliance with the control is unreasonable or unnecessary – sufficiency of environmental planning grounds to justify variation – appeal dismissed

Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397
DEVELOPMENT APPLICATION – Torrens title subdivision – development of residences and road – Cumberland Plain Woodland – impacts on Critically Endangered Ecological Community – cumulative impact – Conservation Management Plan – adequacy of amelioration – whether jurisdictional precondition is met

O'Brien v Woollahra Municipal Council [2019] NSWLEC 1402
DEVELOPMENT APPEAL – Paddington Heritage conservation area – heritage conservation – desired future character – rear wing addition – Woollahra development control plan

Touma v Randwick City Council [2019] NSWLEC 1395
DEVELOPMENT APPEAL – interim heritage order – assessing heritage significance – Edgecumbe Estate

95 Regent Street Kogarah Pty Ltd v Georges River Council (No 2) [2019] NSWLEC 1390
PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.17

Chief Executive, Office of Environment and Heritage v Anthony Guy Murphy [2019] NSWLEC 120
ENVIRONMENTAL OFFENCE – sentence – offence under s 12 of the Native Vegetation Act 2003 (NSW) – native vegetation cleared from 528 hectares of land otherwise than in accordance with a development consent or a property vegetation plan – offence within middle range of objective seriousness – plea of guilty – determination of appropriate penalty

Elanor Investors Limited v Sydney Zoo Pty Ltd (No 2) [2019] NSWLEC 121
PRACTICE AND PROCEDURE – review of Registrar's decision not to set aside a notice to produce PRACTICE AND PROCEDURE – review of Registrar's decision not to set aside a subpoena to produce

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202
COSTS – questions of law submitted under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – successful appellant sought costs of s 5AE proceedings – costs ordered to successful appellant

Queensland

Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the Applicant's development approval for demolition of a pre-1947 house had lapsed – where the Applicant failed to make an application to extend the development application before the lapse – where the code with respect to demolition in the planning scheme had been materially amended since the approval was given – whether the court should excuse the failure to make an extension application – whether the court should order the demolition approval to be taken to be effective – Acts Interpretation Act 1954 Qld s 49A; Planning Act 2016 Qld s 86, s 87; Planning and Environment Court Act 2016 Qld s 7, s 11, s 37

Legislation

Regulation

Amendment to the list of threatened ecological communities under section 181 of theEnvironment Protection and Biodiversity Conservation Act 1999 (EC148 and EC61)

04/09/2019 – This instrument amends the list of threatened ecological communities to include in the critically endangered category the Illawarra–Shoalhaven Subtropical Rainforest of the Sydney Basin Bioregion and the Robertson Rainforest in the Sydney Basin Bioregion.
Act Compilation

Environment Protection (Sea Dumping) Act 1981

30/08/2019 – Act No. 101 of 1981 as amended

NSW

Regulations and other miscellaneous instruments

Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (2019-426) – published LW 30 August 2019

Environmental Planning and Assessment Amendment (Project EnergyConnect (SA to NSW Electricity Interconnector)) Order 2019 (2019-439) – published LW 30 August 2019

Environmental Planning Instruments

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2019 (2019-438) – published LW 30 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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