Council's obligations to land transactions
When transacting freehold land owned by a council, whether it be granting a lease or selling land, various statutory obligations must be complied with by the council. In addition to the statutory processes and procedures that must be complied with, there are also policy and guidelines that a council is required to comply with when transacting land.
Under section 14(1) of the Local Government Act 2020 (Vic), a council is capable of acquiring, holding, dealing with or disposing of property to perform its functions and exercising its powers. However, the statutory processes applicable to a sale or lease of freehold land are principally contained within the Local Government Act 1989 (Vic) (LGA) (in particular within Part 9).
If the relevant land has the status of a public road, there may be additional processes and procedures that need to be complied with. This article relates to the transacting of freehold land owned by a council, other than land that has the status of a road.
Section 189 of the LGA sets out the obligations of the council if it sells or exchanges land. These obligations include:
- ensuring that the public notice of intention to sell the land is given at least four weeks prior to selling the land
- obtaining a valuation from a valuer with the qualifications or experience under the Valuation of Land Act 1960 (Vic), which is made not more than six months prior to the sale or exchange of land.
It should be noted, however, that in the current COVID-19 period, it has been our experience that valuers have been reducing the currency period of their valuation. Accordingly, notwithstanding a valuation is obtained six months prior to the proposed transaction, the currency of the valuation may have expired due to limitations by the valuer in the valuation. In the course of negotiating a transaction, it may be necessary to obtain various updates of a valuation prior to an exchange.
Under section 189(3) of the LGA, a person has a right to make submissions on a proposed sale or exchange and the procedures of section 223 of the LGA apply to the submission process.
Under section 190 of the LGA, a council's power to lease land to any person is limited to leases for a term of 50 years.
A council is required to publish a public notice of a proposed lease at least four weeks before the lease is entered into if the lease falls into the following categories:
- the lease is for a term of a year or more and the rent for any period of the lease is $50,000 or more or the current market rental value of the land is $50,000 or more
- the lease is for a term of 10 years or more; or
- the lease is to be a building or improving lease.
Under section 190 (3) of the LGA, where a public notice of a lease is required, a person has a right to make submissions in relation to the proposed lease and the procedures in section 223 of the LGA apply to the submission process.
Under section 191 of the LGA, there is an exemption from the requirement to comply with the procedures and requirements set out in section 189 and 190 of the LGA in relation to the transfer, exchange or lease of land with or without consideration to:
- the Crown
- a Minister
- any public body
- trustees appointed under any Act when the land is to be held on trust for public or municipal purposes
- a public hospital or other hospital carried on by an association or society otherwise than for profit or gain to the members of the association or organisation.
A public body is defined in the LGA as:
"any government department or municipal council or body established for a public purpose by an Act of Parliament of Victoria, any other State or Territory of the Commonwealth, or the Commonwealth."
As a result of the exemption under section 191 of the LGA, land transactions with a number of Victorian State Government departments, authorities or entities will not require compliance with the requirements of section 189 or section 190 of the LGA. However, those government departments, authorities or entities will have a number of statutory and policy procedures to comply with before acquiring land or entering into a lease which will include Valuer General approval and may require Victorian Government Land Monitor approvals.
Councils may still decide to follow the processes in section 189 or 190 of the LGA notwithstanding the exemption.
In addition to the statutory requirements, there are policy and guidelines that are required to be adhered to by councils.
One such guideline is the Local Government Best Practice Guideline for the Sale, Exchange and Transfer of Land 2009 (Guideline) which was prepared jointly by Local Government Victoria, the Victorian Government Land Monitor and the Department of Planning and Community Development (now the Department of Environment Water and Planning). The Guideline can be found here.
The Guideline sets out various principles that are to be complied with by a council in relation to the exchange or transfer of land, including:
- sales should be conducted through a public process in the interests of probity, public accountability and transparency
- the sales, exchanges and transfers should be in the best interests of the community and provide the best financial and non-financial results for the community
- sales, transfers and exchanges should generally occur at not less than market value
- before the land is offered for sale, it is appropriately zoned to achieve the highest possible sale price
- consideration needs to be given to whether the land is contaminated and the implication for the council.
In addition, each council will have its own published policy and guidelines for land sales and acquisitions.
In the media
National resilience and recovery agency 'in place by
July 2021'
The Commonwealth will set up a standing national
resilience and recovery agency and support other key
recommendations of the bushfires royal commission. The Government
will legislate to give the Commonwealth the power to declare a
national emergency and mobilise resources to help states and local
communities deal with natural disaster emergencies (20 November
2020). More...
Federal Govt 'welcomes partnership with ALGA's
new President'
Local Government Minister Mark Coulton has congratulated
Linda Scott on her election as ALGA President, saying he looks
forward to "a fruitful partnership in joint delivery of
critical infrastructure and services benefitting all
Australians" (20 November 2020). More...
Victoria
Why Victoria's massive public housing build will
change the rules with local councils
The State Government is going to take planning authority
off councils for Big Housing Build projects - in return, promising
"a new partnership with local councils" and to develop a
"social and affordable housing compact". The
Government will centralise approval processes for the project, but
says local councils will still be consulted (22 November 220).
More...
Victoria invests $20m in zero-emission buses
The Victorian budget will fund a $20 million, three-year
statewide trial aimed at transitioning to a zero-emission bus
fleet. The government is trialling its first fully electric bus and
has 40 hybrid buses operating in Melbourne and eight in the Latrobe
Valley (16 November 2020). More...
Voters flock to Victorian LG elections in record
numbers
Average voter turnout at last month's Victoria's
local council elections was a record 81.4 per cent, the Victorian
Electoral Commission said last week. Electoral Commissioner Warwick
Gately congratulated Victorians on their record turnout for the
election - which was conducted entirely by mail ballot because of
COVID-19 (November 2020). More...
Diversity on the up in Victorian councils
The Municipal Association of Victoria
(MAV) extends its congratulations to all of the
successful candidates in the 2020 council elections. With election
results now confirmed by the Victorian Electoral Commission, we are
thrilled to see an increase in the diversity of councillors across
the state (13 November 2020). More...
Greater Shepparton elects its first Indigenous
councillor, and he's still one of few statewide
Greg James is one of two Aboriginal people elected in
Victoria this year, highlighted the chronic under-representation of
First Australians on regional councils (11 November 2020). More...
Warrnambool councillors booted in local election after
controversy-riddled term
The first African-Australian councillor in regional
Victoria is among a new-look council after voters cleaned-out a
controversy-riddled city hall (10 November 2020). More...
NSW
Push for Macquarie River to have Aboriginal name
officially recognised
The Bathurst Regional Council unanimously endorses a push
from local First Nations groups to have the Macquarie River be also
recognised as 'Wambuul', as it is known in the Wiradjuri
language (19 November 2020). More...
Transport Minister requests ICAC to investigate
controversial land deal
Transport Minister Andrew Constance has asked the
state's anti-corruption watchdog to investigate his own
government's purchase of a highly contaminated parcel of land
near Parramatta at three times the estimated value (18 November
2020). More...
NSW Budget brings cash injection for councils
NSW Budget has supported local government's Save Our
Recycling campaign with a $96 million commitment to extend the
Waste Less Recycle More program and finalise the long-term strategy
for waste (17 November 2020). More...
Queensland
Nobbys could be 'important, central point' of
Gold Coast light rail, but what of its chilled vibe?
Nobbys' "pretty chilled vibe" acts as an
important counterbalance to other Gold Coast precincts, one local
says, but that could change in 2024 when light rail arrives (21
November 2020). More...
Residents force council to backtrack on New Farm Park
changes
Locals argued the changes would have brought hundreds more
cars into the park every day, while the council said the proposal
remained "under assessment" (20 November 2020). More...
Digital transformation pays dividends for council
Mr Henderson says Council's decision to adopt a new
strategic IT initiative has, among other things, helped prevent any
losses and provide an insurance policy against ransomware.
According to LGAQ's Digital Productivity Report 2020, 95 per
cent of the state's councils see digital transformation,
including data analytics and cloud computing, as a priority, and 75
per cent have deployed technologies supporting digital services (19
November 2020). More...
'It just kills you': Farmer backlash as council
rates soar by up to 238 per cent
In a landscape where the cost of farming is increasing,
growers say they're struggling to cope with Bundaberg Regional
Council's hefty rates rise (19 November 2020). More...
Top gong for council that won over hostile
community
Isaac Regional Council has taken out Queensland's top
planning award for winning the confidence of hostile residents and
overcoming a community backlash against its coastal planning
scheme. The Isaac regional planning scheme and coastal planning
provisions project included community consultation and
detailed investigation to develop a new sustainable planning
scheme, the judges said (16 November 2020). More...
'Pineapple' Hooper is offered and accepts role
as Rockhampton mayor
Dubbed the "accidental mayor" and the
"Steven Bradbury of politics", the self-funded retiree is
officially offered the role by Electoral Commission Queensland
after his predecessor's shock resignation earlier this month
(18 November 2020). More...
Trees should be viewed as critical Brisbane
infrastructure: Report
A new report commissioned by Greener Spaces Better Places
found nationally, urban spaces were decreasing in green cover
between 2013 and 2016, but are slowly increasing now (14 November
2020). More...
Noosa council backflips on urban beehive ban after
'missing the mark'
After an angry outpouring of opposition from beekeepers
and the public, Noosa council has backflipped on its decision to
ban all new beehives in suburban backyards (12 November 2020).
More...
Councillor vacancy provisions must be repealed
urgently
Local Government Association of Queensland CEO Greg Hallam
has called on the Palaszczuk Government to urgently meet its
commitment to Queensland councils to repeal laws mandating the
automatic election of the runner up in a mayoral or councillor
election if a vacancy occurs within the first 12 months of the term
(10 November 2020). More...
Rockhampton mayor Margaret Strelow in shock resignation
after misconduct findings
Margaret Strelow has resigned as Rockhampton mayor after
being found guilty of misconduct, causing the Queensland Local
Government Minister to announce an impending amendment to the Local
Government Act (10 November 2020). More...
In Practice and Courts
Victoria
MAV Submissions
Transport Submission to NTC Heavy Vehicle National Law
Review Consultation RIS November 2020.
Council Elections
The Victorian Electoral Commission (VEC)
has now announced the elections results for more than 40
councils, following the close of the voting receipt period on
30 October. Congratulations to all of the successful
candidates! It is expected that all final
results will be declared by Friday 13 November.?Follow the
VEC on?Twitter?and?Facebook for results updates. The
MAV's Councillor Induction Program will be held online over two
consecutive sessions on 27 November and 3 December.
Procurement e-learning modules
Visit the MAV Procurement e-Learning portal for free,
introductory modules - Understanding Local
Government and Doing Business with Local Government -
are also available on the portal.
Local government election candidates are reminded that under the
Local Government Act 2020, all candidates must submit a campaign
donation return (whether you received donations or not) to the
council CEO by 3 December 2020. Find out more on the Local Government Inspectorate website.
Last chance to stand for council
The City of Melbourne (Electoral) and Local Government (Electoral) Amendments
Regulations 2020 came into operation on 2 September 2020
and end on 26 April 2021. The amendments to the Electoral
Regulations apply to candidate nomination and scrutineer provisions
as a result of the COVID-19 pandemic.
Proposed changes to regulation of wind farm noise
The Victorian Government has introduced the Public Health and Wellbeing Amendment Bill
2020 into parliament. If passed, the bill would prevent
new nuisance complaints relating to wind farm noise under
the Public Health and Wellbeing Act
2008 being lodged with councils (19 November 2020).
Launch of the Victorian Graffiti Register
The Victorian Graffiti Register (VICGR)
enables users, such as council workers or members of the public, to
record graffiti via the app or website, as soon as they see it and
while they're on the move. It will also enable councils to
identify specific problem taggers or identify graffiti hotspots and
report them to Victoria Police for further investigation. Visit the
VICGR website and download the VICGR app,
available at Apple and Android app stores (19 November 2020).
Container deposit scheme
The MAV has welcomed the release of the Victorian
Government's consultation paper on the design of the
container deposit scheme (CDS). Following
significant advocacy from the MAV, councils, environment groups and
others, the State committed to introducing a CDS by 2023 as
part of its Recycling Victoria policy (05 Novembwer
2020).
Draft urban stormwater management
guidance
The EPA has released a draft urban stormwater management
guidance document for consultation. Background
information and a Review of Stormwater Science have
also been provided to support consultation on the draft
guidance. The MAV will be developing a submission on behalf of
councils. The deadline for comments to the EPA is 16 December.
Further information is available here.
Review of the EPA's recycled water guidance
The Department of Environment, Land, Water and Planning is
leading a review of Victoria's recycled water
guidance. The discussion paper explains the scope of the
review, key changes within the proposed new guideline, and reasons
for these changes. Consultation closes 26 November 2020.
City of Melbourne: View all current tenders
See tenders for more information on the
tendering process and procurement policy, closed and awarded
tenders.
SRO: Further tax and fee relief measures
As part of a $3 billion business support package,
the Victorian Government has announced further coronavirus tax
relief measures, including waiving of liquor licencing fees for
2021, deferral for 2020-21 payroll tax liabilities, and duty
reductions for those buying commercial or industrial property in
regional Victoria.
Note: Following the recent Victorian bushfires, the Victorian
Government passed legislation in April 2020 to bring
forward the 50% stamp duty discount for contracts entered into on
or after 27 January 2020 to buy commercial or industrial property
in bushfire affected LGAs. The 50% stamp duty
discount for commercial and industrial property across all of
regional Victoria will be brought forward to 1 January 2021.
New Animal Welfare Act
The Victorian Government is seeking feedback on proposals
for a new animal welfare Act. The new Act would
replace the Prevention of Cruelty to Animals Act
1986 (POCTA Act). Many of the proposals aim
to improve existing provisions under the POCTA Act. Some would
introduce new features into Victoria's main animal welfare
legislation. Consultation closes 14 December.
Have your say on the Draft Guidelines for Precinct
Structure Planning in Melbourne's Greenfields
The Victorian Planning Authority and DELWP are updating
the Guidelines for Precinct Structure Planning in
Melbourne's Greenfields to make planning for
Melbourne's new neighbourhoods more flexible, responsive and
innovative. Have your say by completing the online survey, making a
submission on behalf of your organisation or registering for a
virtual stakeholder interview here.
Extension to the declaration of Surf Coast, Bellarine
Peninsula and Bass Coast as distinctive areas and landscapes
The Governor in Council, under section 46AT(3) of
the Planning and Environment Act 1987, has approved the
extension of time required to prepare Statements of Planning Policy
for Surf Coast, Bellarine Peninsula and Bass Coast for a further 12
month period.
Smart Planning PPF translation update
Smart Planning continues to work with councils on their
Planning Policy Framework (PPF) translations. To
date, PPF translations have been gazetted for Murrindindi, French
Island and Sandstone Island, Glenelg, Moonee Valley, Golden Plains,
Southern Grampians and Colac-Otway. The PPF translation project is
time bound and all planning schemes must be translated by 30 June
2021. Information on preparing for your PPF translation is
available here.
Outdoor Eating and Entertainment Package business
grants
Applications are now open for the $58 million Outdoor Eating and Entertainment
Package. Grants of up to $5,000 are
available to licensed and unlicensed hospitality
businesses, including restaurants, cafes, pubs/taverns, bars,
clubs and takeaway food venues. Applications close on 11
December 2020.
Applications open for the Licensed Hospitality
Venue Fund
Grants of up to
$30,000 are available through the $251
million Licensed Hospitality Venue Fund
program. The fund supports eligible
liquor licensees with hospitality venues impacted by the
restrictions put in place to slow the spread of
coronavirus. Applications close on 23 November 2020.
$8 million in grants available to deliver Australia Day
2021 events
The National Australia Day Council in collaboration with
Australia Day Victoria, is offering $8 million in
grants for councils to deliver Australia Day 2021
events. Councils are eligible for a $20,000 grant
to ensure their events are COVIDsafe. Councils
can also download a free Australia Day-branded Reflect. Respect.
Celebrate. Find the event artwork here and apply for a $1,000 grant for
production. More...
Aboriginal Community Response and Recovery Fund
The Aboriginal Community Response and Recovery Fund has been established to support Aboriginal Victorians to deliver community-led initiatives to respond to the impacts of coronavirus. The fund's total value is $10 million and applications close 30 November 2020.
Community Sports Infrastructure Loans Scheme
Applications are now open for the second round of the $100
million Community Sports Infrastructure Loans Scheme.
The low-interest government-guaranteed loans from $500,000 to up to
$10 million are available to councils, clubs, associations,
educational institutions and facility managers to develop
high-quality community sport and active recreation infrastructure.
Applications close 15 December 2020.
New funding for primary producers
New funding is available through Disaster
Recovery Funding Arrangements to help grape growers in local
government areas outside bushfire zones who have had their crops
affected by smoke. The grant is available through Rural
Finance (1800 260 425) and is open until 31
December.
Reimagining Health Grants
The new VicHealth Reimagining Health Grants will open on 16
September and aim to inspire application ideas that reimagine
health and wellbeing in 2020 and 2021. VicHealth is encouraging
applicants to submit on or as close to 16 September to have the
opportunity to get assessed and notified early. Then funds could be
provided more than two months ahead of those who wait until the
closing date.
s.186 exemption for council recycling contracts
The Victorian Local Government Minister has announced a state-wide s.186 exemption
for local councils to extend their recycling collection contracts
to 30 June 2021. Here is a copy of the letter sent to all
councils co-signed by Minister Somyurek and the Minister for
Energy, Environment and Climate Change, the Hon. Lily
D'Ambrosio MP.
Surf Coast distinctive area and landscape
DELWP invites written submissions on the draft Surf Coast Statement of Planning Policy (SPP) and
proposed landscape planning controls. The draft SPP creates a
framework for the future use and development of land in the Surf
Coast declared area and seeks to ensure long-term protection of its
unique coastal and rural environments, Aboriginal cultural
heritage, historical features, natural resources and character of
townships. The proposed landscape planning controls ensure areas of
state and national landscape significance are protected for current
and future generations. For further information please
visit Engage Victoria. Submissions close on 22
January 2021 (19 November 2020).
NSW
50-Year vision for Sydney's Open Space and Parklands
[draft] discussion paper
The NSW Minister for Planning and Public Spaces has
announced the 50-Year Vision for Sydney's Open Space and
Parklands. The draft Vision will kickstart a community wide
conversation about how our open and public spaces can grow with us.
Read it here and complete the survey.
Proposed SEPP amendment to allow outdoor dining pilot in
Sydney CBD
City Of Sydney: The department is seeking your feedback on
a proposed amendment to the Codes SEPP which will facilitate a
simplified, streamlined process for small bars and pubs in the City
of Sydney to have outdoor dining. The Outdoor Dining Trial will run
from 30 October 2020 until 31 October 2021. More...
NSW Planning Department: Have your say, draft plans and
policies
Draft local character clause
The department is exhibiting a draft Local Character
Clause which is proposed to be included in the Standard Instrument
Local Environmental Plan. The clause will require the council to
consider its local character statement when addressing development
applications. Notification start to end date 12/11/2020 -
29/01/2021. More...
Draft Illawarra Shoalhaven Regional Plan 2041
Have your say on the draft updated Illawarra Shoalhaven
Regional Plan 2041 that will guide strategic planning and land use
decisions in the region for the next 20 years. Notification start
to end date 02/11/2020 - 17/12/2020. More...
Queensland
Support for the Gold Coast's building and
construction sectors
The City of the Gold Coast has announced a range of
incentives to support the property industry. The measures are
intended to stimulate and accelerate building and construction
work, especially for smaller scale projects. The measures are
outlined here. The measures will be available from 1 October 2020,
with the exception of the Express Development Application process
which will be available from the 27 October 2020. Find out more
about the Council's stimulus measures and Express DA service.
Have your say: Future of South Bank
The Palaszczuk Government is encouraging people to have
their say on the future of the South Bank precinct, with the roll
out of public consultation on the master plan. The master plan
would build on the precinct's iconic features, while harnessing
new ideas. It is expected the master plan process will be completed
by the end of 2020. More...
Open for consultation: Moreton Bay Regional Economic
Development Strategy
Moreton Bay Regional Council has developed a Regional
Economic Development Strategy that is now open for community
consultation. The strategy provides a 20-year economic vision for
Moreton Bay, and a blueprint for sustainable economic growth into
the future. To view the draft strategy and provide feedback,
please click here.
Cases
Melbourne City Council v Telstra
Corporation Limited [2020] FCAFC
200
COMMUNICATIONS LAW - whether New Payphone Cabinets are
"low-impact facilities" within the meaning of clause 6 of
Sch 3 to the Telecommunications Act 1997 (Cth) exempt from planning
laws - where Telstra sought planning approval to display commercial
advertising on New Payphone Cabinets - where New Payphone Cabinets
to be installed only after planning approval to display commercial
advertising obtained - whether primary judge erred in concluding
that the New Payphone Cabinets are "low-impact
facilities" - appeal allowed with costs.
Victoria
Zaric v City of Greater
Dandenong [2020] VSC
756
APPEAL FROM THE DECISION OF VCAT - review of planning powers of
respondent - VCAT summarily dismissed applicant's proceeding
under s 75 VCAT Act on basis of proceedings being misconceived,
lacking substance and abuse of process - VCAT asserted proceedings
sought to re-agitate issues already decided - VCAT asserted
planning permit spent once subdivision work completed - applicants
appeal summary dismissal - applicant sought to set aside decision
of Senior Member Richards - as no appeal has been lodged, this
matter cannot be ruled on - applicants further sought to reinstate
previous proceedings before VCAT under s 149B of the Planning and
Environment Act - Act does enable previous orders of VCAT to
dismissed or set aside - applicants further sought enforcement
orders pertaining to the planning scheme the subject of this
proceeding - matter previously ruled on by VCAT and Court of Appeal
- Council could not be added to this proceeding for enforcement
orders - even if Council were able to be added, enforcement orders
could not be made - applicants argue under s 52 VCAT Act Court of
Appeal had no jurisdiction to hear matter - applicants'
submissions incorrect - Section 52 provided Jurisdiction to Court
of Appeal to hear matter - furthermore, s 52(3) provides rulings of
court in the absence of jurisdiction valid - applicants assert
planning permit cannot be expired as per s 68 Planning and
Environment Act - Section 68 not exhaustive - permit expired by
virtue of development being completed - appeal fails to establish
any ground of appeal, or show any error in VCAT's approach and
conclusion regarding s 75 VCAT Act - Court satisfied Applicants
have no real prospect of success - matters raised in appeal
conclusively ruled upon previously by Court of Appeal - Court needs
to conserve its resources - applicant's application an abuse of
process and vexatious.
260 Lonsdale Street Pty Ltd v Greater
Dandenong CC [2020] VCAT
1283
Section 77 of the Planning and Environment Act 1987 (Vic) - Greater
Dandenong Planning Scheme - Comprehensive Development Zone - Design
and Development Overlay, Schedule 2 - proposal for an electronic
major promotion wall sign - visual impacts. No permit.
Hillas v Towong
SC [2020] VCAT 1284
Towong Planning Scheme - Rural Activity Zone and Bushfire
Management Overlay - use and development of land for leisure and
recreation (paintball games facility) and removal of native
vegetation - consistency with policy and purposes of the zone -
traffic and road safety - suitability of internal access and car
parking - amenity of adjoining land owners - noise and dust -
extent of native vegetation removal and bushfire management - net
community benefit.
Buyck v Yarra
CC [2020] VCAT 1279
In application P1310/2020 the decision of the responsible authority
is affirmed.
Planning permit PLN18/0854.02 must not be amended. Application
under section 77 of the Planning and Environment Act 1987 - to
review the refusal to grant an amended permit.
Cox v Yarra
CC [2020] VCAT 1277
Section 82 Planning and Environment Act 1987 - Yarra Planning
Scheme - Neighbourhood Residential Zone Schedule 1 - Heritage
Overlay Schedule 334 - amenity impacts - visual bulk -
overshadowing - heritage - views.
Zhang v Boroondara
CC [2020] VCAT 1259
Two dwellings - neighbourhood character - amenity - tree
protection.
Lateral Building Design v Maroondah
CC [2020] VCAT 1261
Planning and Environment Act 1987 - Maroondah Planning Scheme -
Neighbourhood Residential Zone, Significant Landscape Overlay - one
double storey and one single storey in front of existing single
storey dwelling - design response to neighbourhood and character,
and retention of trees.
Murcott v South Gippsland
SC [2020] VCAT 1265
Section 82 of the Planning and Environment Act 1987 - South
Gippsland Planning Scheme - free range chicken meat farm -
amendment to existing permit - surface water quality - farming
zone.
J Q Fortune Pty Ltd v Banyule
CC [2020] VCAT 1196
Section 77 of the Planning & Environment Act 1987 - Banyule
Planning Scheme - General Residential Zone Schedule 3 - DDO11-1 -
Vegetation Protection Overlay Schedule 3 - Development
Contributions Plan Overlay Schedule 1 - four dwellings - three
storey - massing, visual bulk, scale - siting - tree removal -
landscaping opportunities.
Livingstone v City of
Melbourne [2020] VCC
1775
Legislation Cited: Wrongs Act 1958. In 1997, Angela Livingstone
bought 50 Dryburgh Street, West Melbourne.. In 2009, the City of
Melbourne planted on the footpath outside 50 Dryburgh Street a
white cedar tree or, more technically, melia azedarch. It was
planted about 3 metres from the western or front wall of the
original building
Held: 340 Despite forming part of the prayer for relief, removal of
the tree did not form part of Dr Livingstone's opening or
closing addresses. 341 Dr Livingstone is entitled to damages in the
sum of $435,510.08 made up as follows:(f) cost of accommodation
while the house is demolished and rebuilt: $41,600.00 - (g) cost of
demolition and rebuild: $346,830.00.
Howard Finance Pty Ltd v Yarra City
Council (No 2) [2020] VSC
742
PRACTICE AND PROCEDURE - costs - Whether costs should be
apportioned according to issues - Supreme Court (General Civil
Procedure) Rules 2015 r 63.04 - no apportionment - costs to follow
the event.
Pogorzelski v Latrobe City
Council [2020] VSC
718
ADMINISTRATIVE LAW - judicial review - application to review
decision of VCAT not to extend planning permit - natural justice -
Whether applicant was put on notice of issues - whether Tribunal
failed to take account of relevant considerations - no error -
Planning and Environment Act 1987 (Vic) s 69(2) - Victorian Civil
and Administrative Tribunal Act 1998 (Vic) s 148 - SZBEL v
Minister for Immigration and Multicultural and Indigenous
Affairs [2006] HCA 63 - (2006) 228 CLR
152, Commissioner for ACT Revenue v Alphaone Pty
Ltd [1994] FCA 1074 - (1994) 49 FCR 576 applied.
Chadwick v Frankston
CC [2020] VCAT 1264
Section 82 Planning and Environment Act 1987 - Frankston Planning
Scheme - General Residential Zone - three dwellings - rear laneway
- amenity.
123 Balcombe Pty Ltd v Kingston
CC [2020] VCAT 1257
Section 79 Planning and Environment Act 1987, Kingston Planning
Scheme, neighbourhood character, incremental housing change,
proximity to Major Activity Centre, housing policy, building
height, building typology, overshadowing, overlooking.
Hargreaves v Melbourne
CC [2020] VCAT 1271
Melbourne Planning Scheme - General Residential Zone, Schedule 2 -
Heritage Overlay, Schedule 3 - partial demolition and construction
of two dwellings on a lot less than 300 square metres - site
coverage - height - massing - visual bulk - heritage significance -
integration with the street - side and rear setbacks - overlooking
- overshadowing - car parking - construction over easement.
Bayside CC v
Nolte [2020] VCAT
1247
Enforcement order - costs application under s109 of the Victorian
Civil and Administrative Tribunal Act 1998 - reimbursement of fees
under section 115B of the Victorian Civil and Administrative
Tribunal Act 1998.
By no later than 26 February 2021 Simon Hikaka and Amanda Nolte,
jointly and severally, must pay the costs of Bayside City Council
fixed in the sum of $4,500.00.
Bellong Pty Ltd v Mitchell
SC [2020] VCAT 1256
Mitchell Planning Scheme - application pursuant to Section 79 of
the Planning and Environment Act 1987 - General Residential Zone
(GRZ1) - 69 lot residential subdivision - Council supports but 2
proposed conditions in dispute - requirement to retain trees within
a reserve - requirement to increase size of lots - seymour
structure plan - balancing policy - character - native vegetation
assessment and retention - opportunity to prepare an amended
proposal.
Melbourne CC v 160 Leicester Pty
Ltd [2020] VCAT 1255
Contempt of Tribunal - failure to comply with terms of Enforcement
Order made by consent - Planning and Environment Act 1987 (Vic) ss
114, 119 - two-director company - where company party to the order
- validity of the order - whether order clear and unambiguous -
whether order capable of compliance - liability of directors -
whether breach deliberately defiant or contumacious - inferential
evidence - no other reasonable explanation as to breach - held -
contempt established beyond reasonable doubt - Victorian Civil and
Administrative Tribunal Act 1998 (Vic) s 137 - Moira Shire
Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556
considered - Christian Youth Camps Ltd v Cobaw Community
Health Services Ltd [2014] VSCA 75 - (2014) 50 VR
256, Australian Competition and Consumer Commission v
Goldstar Corporation Pty Ltd [1999] FCA 585
discussed.
Lamacchia v Darebin
CC [2020] VCAT 1242
Section 77 of the Planning and Environment Act 1987. Darebin
Planning Scheme. General Residential Zone. Two double-storey
dwellings. Neighbourhood character. Off-site amenity impacts.
Glenbothe Pty Ltd v Glen Eira
CC [2020] VCAT 1231
Section 77 of the Planning and Environment Act 1987 - Glen Eira
Planning Scheme - Caulfield South Neighbourhood Centre - adopted
city plan - six storey building - interface with neighbourhood
residential zone - building scale.
Sintra Investments Pty Ltd v Banyule
CC [2020] VCAT 1243
Section 77 Planning and Environment Act 1987 - Banyule Planning
Scheme - demolition - height - visual Bulk - overlooking -
neighbourhood character - housing diversity - housing affordability
- environmental significance.
Binbeal Fields Pty Ltd v Baw Baw
SC [2020] VCAT 1246
The proposal is for a seven lot subdivision of the review site.
Application under section 79 of the Planning and Environment Act
1987 - to review the failure to grant a permit within the
prescribed time.[2]
The Edge Development Group Pty Ltd v
Bayside CC [2020] VCAT
1227
Section 80 of the Planning and Environment Act 1987, electronic
signs, conditions requiring deletion of some signs and restriction
to illumination hours of others, disturbance of neighbours some
distance away.
Williams v Port Phillip
CC [2020] VCAT 1164
Section 79 Planning and Environment Act 1987 - Port Phillip
Planning Scheme - neighbourhood residential zone - heritage overlay
- extension to dwelling - heritage - amenity.
PMT Developers Pty Ltd v Mornington
Peninsula SC [2020] VCAT
1235
Section 77 of the Planning and Environment Act 1987 - Mornington
Peninsula Planning Scheme - General Residential Zone - Design and
Development Overlay - Schedule 1 - four double storey dwellings -
neighbourhood character - amenity.
Victton Pty Ltd v Melbourne
CC [2020] VCAT 1233
Section 149(1)(a) of the Planning and Environment Act 1987 -
extension of time for planning permit - section 81(1) of the
Planning and Environment Act 1987 - extension granted for period
other than what was sought - jurisdiction.
348-354 Hawthorn Road Pty Ltd v Glen
Eira CC [2020] VCAT
1211
Section 77 Planning and Environment Act 1987, Building height,
visual bulk, activity centre planning, access from category 1 road,
overlooking, impact on solar panels.
Michaelidis v Boroondara
CC [2020] VCAT 1239
Section 79 of the Planning and Environment Act 1987 - Boroondara
Planning Scheme - Neighbourhood Residential Zone Schedule 3 - two
side by side double storey dwellings - neighbourhood character -
northern aspect - setbacks - tree protection.
Atkins v Campaspe
SC [2020] VCAT 1229
Campaspe Planning Scheme - General Residential Zone Schedule 1 -
re-subdivision/consolidation of land - partial removal of reserve -
Council as the planning authority and the responsible authority -
amenity impacts - buffer to industrial land.
Central Victorian Welding and
Fabrication Pty Ltd v Greater Bendigo CC (No
2) [2020] VCAT 1225
Greater Bendigo Planning Scheme clause 66.02-7 and clause 53.10 -
Victorian Civil and Administrative Tribunal Act 1998 Schedule 1
clause 62 - industry (manufacture and maintenance of mining and
agricultural equipment) - whether permit application was required
to be referred to the EPA - whether permit application, as amended
by the Tribunal, would have been required to be referred to the EPA
- whether any failure to refer the permit application to the EPA
should be disregarded.
Honghai Investments Pty Ltd v
Whitehorse CC [2020] VCAT
1217
Section 77 of the Planning and Environment Act 1987 - Whitehorse
Planning Scheme - General Residential Zone Schedule 1 - Significant
Landscape Overlay Schedule 9 - multiple dwellings - neighbourhood
character - landscaping - amenity impacts.
Rococo Holdings Pty Ltd v Bayside
CC [2020] VCAT 1228
Section 87A of the Planning & Environment Act 1987 - Bayside
Planning Scheme - Commercial 1 Zone - Category 1 - electronic
signage - major promotion signage - driver distraction - 24 hour
minimum dwell time - 30 second minimum dwell time.
NSW
Aussie Skips Recycling Pty Ltd v
Strathfield Municipal Council [2020]
NSWCA 292
(1) Dismiss the appeal from the judgment and orders in the Land and
Environment Court of 20 March 2020.
LAND LAW - easements - imposition of easement by Court - standard
of appellate review -
requirement that proposed easement be "reasonably necessary
for the effective use or development" of the land -
Conveyancing Act 1919 (NSW), s 88K(1)
LAND LAW - easements - validity - characterisation under general
law - rights not to confer exclusive use of servient tenement -
enclosure of community land for waste transfer and recycling
facility - loss of owner's use of enclosed land and limited use
of residue - whether proposed easement capable of being
characterised as an easement
LAND LAW - community land - inability of Council to grant easement
over community land - whether Court can impose easement where owner
cannot grant it - Local Government Act 1933 (NSW), s 46
and Conveyancing Act 1919 (NSW), s 88K
Conveyancing Act 1919 (NSW), s 88K - Local Government Act
1993 (NSW), s 46 - Ch 6, Pt 2, Div 2.
Palm Beach Protection Group
Incorporated v Northern Beaches
Council [2020] NSWLEC
156
JUDICIAL REVIEW - council decisions to conduct dog off-leash area
trial and to allow dogs on-leash at beach - threatened seagrass
population and threatened seahorse species and their habitats -
application of Part 4 of Environmental Planning and Assessment Act
1979 (EPA Act) - whether decisions authorise use of land - purpose
of use of land - whether for recreation area - whether development
consent required - whether development for purposes of recreation
area on a public reserve under the control of or vested in the
council - whether continuance of a use of land for a lawful purpose
- whether enlargement, expansion or intensification of use -
whether use abandoned - whether use unlawfully commenced -
development consent not required for use - no breach of Part 4 of
EPA Act JUDICIAL REVIEW - council decisions to conduct dog
off-leash area trial and to allow dogs on-leash at beach -
threatened seagrass population and threatened seahorse species and
their habitats - application of Part 5 of EPA Act - whether council
decisions approve an activity - duty to examine and take into
account environmental impact of activity - whether council breached
duty in approving dog on-leash activity - duty to obtain, examine
and consider EIS for activity likely to significantly affect
environment - whether council breached duty in approving dog
off-leash activity and dog on-leash activity - whether each
activity likely to significantly affect the environment - breaches
of Part 5 of EPA Act.
Entrepreneur Enterprises Pty Ltd v
Lane Cove Council [2020] NSWLEC
1572
MODIFICATION APPLICATION - modification of consent - child care
centre - number of children.
Ozaras v Inner West
Council [2020] NSWLEC
1573
APPEAL - stop work order - complying development certificate for
alterations and additions - demolition of walls and roof -
orders.
Environment Protection Authority v
Central Coast Council [2020] NSWLEC
157
EVIDENCE - admissibility - exceptions to the hearsay rule provided
by s 87(1)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) -
alleged admission - whether alleged admission was made with
authority for the purposes of s 87(1)(b) of the Evidence Act -
alleged admission not made with authority - whether alleged
admission was made within the scope of the maker's employment
for the purposes of s 87(1)(b) of the Evidence Act - alleged
admission not made within the scope of the maker's employment -
alleged admission not an admission able to be relied upon because
neither limb of s 87(1)(b) of the Evidence Act satisfied - evidence
rejected - consequential rejection of further evidence that was
contingent on acceptance of rejected "admission".
R.I.G Consulting Pty Ltd v
Queanbeyan-Palerang Regional
Council [2020] NSWLEC
155
CIVIL PROCEDURE - separate determination of questions - where
appropriate - separate questions ordered.
Kilzi v Cowra Shire
Council [2020] NSWLEC
1566
DEVELOPMENT APPLICATION - multi dwelling housing development -
terrestrial biodiversity - effect of proposed development on
heritage significance - likely environmental impacts - solar access
- site analysis.
Hatherly v
Georgalas [2020] NSWLEC
1562
TREES (DISPUTES BETWEEN NEIGHBOURS) - neighbouring hedge - bamboo -
obstruction of views - whether the obstruction is severe - the
bamboo has been pruned - orders for removal - orders to restrict
the height of future hedges.
Gill v Waverley
Council [2020] NSWLEC
1552
MODIFICATION APPLICATION - pergolas on roof terrace with
landscaping - substantially the same assessment - solar access
assessment.
Brazete Investments Pty Ltd v North
Sydney Council [2020] NSWLEC
1544
DEVELOPMENT APPLICATION - alterations and additions to a
residential flat building - draft heritage item - heritage
conservation area.
41 Robey Pty Ltd v Randwick City
Council [2020] NSWLEC
1541
DEVELOPMENT APPLICATION - boarding house development -
compatibility with the character of the local area - side setbacks
- internal amenity - amenity impacts on adjoining development -
impact on the heritage significance of adjoining heritage
items.
Mackenzie Architects International Pty
Ltd v Ku-ring-gai Council [2020] NSWLEC
1540
DEVELOPMENT APPLICATION - seniors housing development - local
heritage item - impact on the heritage significance of the heritage
item - contravention of the accessibility standards for
self-contained dwellings in State Environmental Planning Policy
(Housing for Seniors or People with a Disability) 2004.
Queensland
Brisbane City Council v YQ Property Pty
Ltd [2020] QCA 253
Leave to appeal refused.
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT
CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY -
GENERALLY - DISCRETION OF CONSENT AUTHORITY - where the respondent
lodged a development application with the applicant Council to
construct multiple townhouses in a low-density residential zone -
where the application was properly made at a time where multiple
townhouse developments were permitted in low-density residential
zones under the Brisbane City Plan 2014 - where, after the
conclusion of the hearing before the primary judge, but before
judgment, the applicant Council resolved to amend the Brisbane City
Plan 2014 to prohibit the development of multiple townhouse
developments in low-density residential zones - where the learned
primary judge allowed the respondent's appeal and approved the
development - where the applicant complains that the learned
primary judge did not take the amendments into account as required
by the principle in Coty (England) Pty Ltd v Sydney City
Council (1957) 2 LGRA 117 - whether the learned primary
judge properly considered the principle in Coty (England)
Pty Ltd v Sydney City Council (1957) 2 LGRA 117 -
whether the principle in Coty (England) Pty Ltd v Sydney
City Council (1957) 2 LGRA 117 should be given
determinative weight
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING
SCHEMES AND INSTRUMENTS - QUEENSLAND - GENERALLY - where the
development proposed by the respondent involved the removal of four
native trees - where the learned primary judge characterised the
four native trees as "unremarkable" - where the applicant
Council complains that the learned primary judge's description
of the trees as "unremarkable" was made without evidence
- where the applicant Council contends that the relevant provisions
of the Biodiversity Overlay Code within the Brisbane City Plan 2014
should be interpreted to require the blanket protection of native
trees - whether the learned trial judge erred by describing the
trees as "unremarkable" - whether the learned trial judge
erred by allowing the respondent's appeal and approving the
development notwithstanding the destruction of the four native
trees.
Re: Ipswich City
Council [2020] QIRC
194
EQUAL OPPORTUNITY AND - DISCRIMINATION - exemptions - sex
discrimination - application to grant exemption under s 113(1) of
the Anti Discrimination Act 1991 so the Applicant can recruit only
female waste truck drivers - exercise of discretion
HUMAN RIGHTS - whether Queensland Industrial Relations Commission
acts in an administrative capacity, within the meaning of the Human
Rights Act 2019, when deciding to grant exemption - whether
granting of the exemption sought affects a human right within the
meaning of s 15(5) of the Human Rights Act 2019 - whether decision
to grant exemption is compatible with human rights within the
meaning of the Human Rights Act 2019 - purposive interpretation of
s 113(1) of the Anti-Discrimination Act 1991 in a way that is
compatible with human rights - application granted.
Legislation
Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020
Assent Act no: 95 Year: 2020 10/11/2020
Amends the: Commonwealth Electoral Act 1918 to: clarify the
interaction between federal, state and territory electoral funding
and disclosure regimes following the High Court decision
in Spence v Queensland [2019] HCA 15 - make
technical amendments in relation to entity registration and public
election funding rules - and allow a senior Australian Electoral
Commission staff member rather than a senior Divisional Returning
Officer to be on the Redistribution Committee for the Australian
Capital Territory - Commonwealth Electoral Act 1918 and Referendum
(Machinery Provisions) Act 1984 to amend various aspects of voting
and scrutiny processes - and Referendum (Machinery Provisions) Act
1984 to extend the electronically assisted voting method to
Australians working in Antarctica.
Victoria
Bills
Public Health and Wellbeing Amendment Bill 2020
(Vic)
Date of second reading speech: 11 November 2020
The purpose of this Act is to amend the Public Health and Wellbeing
Act 2008 to exclude noise or emissions from wind turbines at wind
energy 5 facilities from the application of Division 1 of Part 6 of
that Act.
NSW
Regulations and other miscellaneous instruments
Biodiversity Conservation Amendment (COVID-19)
Regulation 2020 (2020-671) - published LW 19 November
2020
Environmental Planning and Assessment Amendment
(Moorebank Avenue Realignment) Order 2020 (2020-675) -
published LW 20 November 2020
Planning and Environment Legislation Amendment
(COVID-19) Regulation 2020 (2020-672) - published LW 19
November 2020
Water Management (General) Amendment (COVID-19)
Regulation 2020 (2020-673) - published LW 19 November
2020
Community Land Management Amendment (COVID-19)
Regulation (No 2) 2020 (2020-659) - published LW 12
November 2020
Environmental Planning and Assessment Amendment
(Western Harbour Tunnel and Warringah Freeway Upgrade Project)
Order 2020 (2020-663) - published LW 13 November
2020
Environmental Planning and Assessment Amendment
Regulation 2020 (2020-662) - published LW 13 November
2020
Environmental Planning Instruments
State Environmental Planning Policy Amendment
(Concurrence and Referrals) 2020 (2020-667) - published LW
13 November 2020
Non-Government - 13 November
Casino Control Amendment (No Compensation) Bill
2020
Environmental Planning and Assessment Amendment
(Review of Land Decisions) Bill 2020
ICAC and Other Independent Commissions Legislation
Amendment (Independent Funding) Bill 2020
Independent Commission Against Corruption
Amendment (Property Developer Commissions to MPs) Bill 2020
Bills passed by both Houses of Parliament - 20
November
Bushfires Legislation Amendment Bill
2020
Liquor Amendment (24-hour Economy) Bill
2020
National Parks and Wildlife Legislation Amendment
(Reservations) Bill 2020
Bills reminder
Statute Law (Miscellaneous Provisions) Bill
2020
1.15 Electoral Funding Act 2018 No 20 Schedule 2 Savings,
transitional and other provisions - Schedule - Part
4 Provision consequent on postponement of September 2020 local
government elections - postponed local government elections To
avoid doubt, for the purposes of sections 28 and 31A of this Act,
the local government elections to be held on 4 September 2021 are
taken to be ordinary.
For the full text of Bills, and details on the passage of Bills,
see Bills.
Queensland
Acts Commencement
Electoral and Other Legislation (Accountability,
Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and
perceived integrity and public accountability of State elections
and ensure public confidence in State electoral and political
processes
Commencement: (1)Chapter 2 commences as follows - (c)the following
provisions commence on 1 July 2022 - (4)Chapter 5 commences as
follows - (b)the remaining provisions of chapter 5 commence on
12 October 2020.
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.