Australia: Inside Track: Planning, Environment & Sustainability - In the media, In practice and courts, Cases and Legislation

In the media

Commonwealth

ASX companies name greenhouse gas emissions as top ESG priority
According to a new survey by investment firm, Perennial Partners, more than 88 per cent of companies that responded had a board member or senior executive responsible for ESG, and a further 81 per cent had a business strategy that specifically referenced ESG and sustainability (14 October 2021). More...

Victoria

At what point do we say no?': Development to destroy laneway street art
One of Melbourne's most significant street art laneways will be destroyed under a proposal for a 41-storey development near the Queen Victoria Market (15 October 2021). More...

Combatting congestion and supporting city recovery
The City of Melbourne is delivering improvements to the city transport network to make it easier for more people to get back into and around the city (15 October 2021). More...

Audit finds threatened species at risk
A performance audit into the Department of Environment, Land, Water and Planning's (DELWP) protection of threatened species has found DELWP could not demonstrate whether or not it was halting the decline of threatened species populations (14 October 2021). More...

Guide clears path to fire protection
the Country Fire Authority has partnered with the CSIRO and the University of Melbourne to develop an online Bushfire Best Practice Guide provided a range of advice on building and retrofitting to improve the bushfire resilience of Victorian homes and gardens (14 October 2021). More...

Melbourne faces a stark choice – liveability or alienation
When it comes to planning Melbourne's future, the needs of the community should be equal to the short-term profit motive of developers (13 October 2021). More...

Footpath blitz to prepare city for reopening
The City of Melbourne is undertaking a $2.4 million footpath repair blitz as the city counts down to the easing of COVID-19 restrictions and the return of visitors (13 October 2021). More...

Designs for Victoria's newest rail stations revealed
Melbourne's newest suburb is about to become home to two new train stations with planning in Pakenham fast tracked by the Victorian government (11 October 2021). More...

More than a thousand homes bought for Victorians
The Victorian Government's historic Big Housing Build is stimulating the Victorian economy, generating more than $1 billion in construction and development activity – creating 356 direct jobs and 1,246 indirect jobs (10 October 2021). More...

Victorian Homebuyer Fund announced
The Victorian Government announced the $500 million Victorian Homebuyer Fund to support more than 3,000 aspiring homeowners to purchase a residential property in eligible Victorian locations (08 October 2021). More...

NSW

New research on koala response to forestry
The Commission has released findings from a three-year research program investigating how koalas and their habitat respond to selective harvesting on north coast state forests (12 October 2021). More...

Leading fire researchers deliver advice on the implications of future fires
Researchers at the University of Wollongong have delivered independent research on the implications of changing fire regimes on the Coastal IFOA meeting its desired objectives and outcomes (12 October 2021). More...

Councils urge joint approach to tackle housing crisis in regions
Local Government NSW has called on the government to invest at least $2 billion in 5000 extra units of social housing across NSW (11 October 2021). More...

Community voices vital in Aerotropolis exhibition
The final planning package to unlock the potential of the Western Sydney Aerotropolis is a step closer to completion (08 October 2021). More...

Environment consultant fined for providing misleading information
An environment consulting business has been fined for allegedly providing false and misleading information to the NSW Environment Protection Authority (06 October 2021). More...

Queensland

Farmers turn reef action into income
A unique collaboration between the Palaszczuk Government, business and landholders is seeing Queensland farmers earn additional income and prevent 18,000kg of nitrogen from reaching the Great Barrier Reef (15 October 2021). More...

New State Government Portfolios
The Property Council welcomes the creation of the new portfolios which reflect the importance of the 2032 Games, including the appointment of an Olympic Infrastructure Minister as a key step in ensuring that the Olympics catalyse the development of critical infrastructure to service Queensland both during the lead up to and following the Olympics (13 October 2021). More...

Application Submitted for $300 Million Surf Resort at Parkwood
A development application has been lodged by Parkwood Golf Club for a large $300 million 'Integrated Surf Park Village' located at the Parkwood International Golf Course on the Gold Coast (13 October 2021). More...

In Practice and Courts

Victoria

Have your say on draft Water Restrictions by-laws
Water restrictions are important for saving water and ensuring everyone has enough water during critical water shortages and other supply emergencies such as infrastructure failure or bushfires.
You can have your say on renewing Victoria's urban water restriction by-laws by visiting the Engage Victoria website between now and 9 November to complete the survey or make a submission (15 October 2021).

SRO: Proposed land tax discount for build-to-rent projects
It is proposed that eligible build-to-rent developments may be able to receive a 50 per cent discount on the taxable value of the land for up to 30 years. The SRO website will be updated with further information once the measure becomes law. In the meantime, please refer to the Department of Treasury and Finance website for more information (12 October 2021).

New educational requirements for prospective conveyancers
On 30 September 2021, changes to the educational requirements for conveyancers will take effect.
To learn more, view Apply for a conveyancer's licence – individual. Those undertaking the current course have until 19 April 2022 to complete that course (30 September 2021). More...

Government Land Planning Service: Have your say
The Minister for Planning has referred the following site to the Government Land Standing Advisory Committee for advice on future planning provisions.
Amendment C241gben – 6 Laurel Street, Golden Square
Further information is available via engage.vic.gov.au/glsac/tranche-32. Submissions close on 24 October 2021.
Mildura – C113mild – 13 Jenner Street Merbein; Mildura – C115mild – 456 Paschendale Avenue Merbein West
Further information is available via engage.vic.gov.au/glsac/tranche-33. Submissions close on 31 October 2021

Approvals
GC182 facilitates the Western Port Highway Upgrade Project (project) by applying the Specific Controls Overlay to land required for the project and allowing the use and development of that land in accordance with the specific control in the Western Port Highway Upgrade Project Incorporated Document, August 2021; amending the Schedule to Clause 72.03 of the Frankston Planning Scheme to insert reference to the new Map No. 6SCO; amending the Schedule to Clause 72.04 to list the incorporated document; and amending the existing PAO1 to make the Head, Transport for Victoria the acquiring authority.
VC202 changes the VPP and all planning schemes in Victoria by: Introducing a land use term and definition for 'Rural worker accommodation' in clauses 73.03 (Land use terms) and 73.04 (Nesting diagrams). The amendment also modifies clause 35.07 (Farming Zone) to introduce a planning permit exemption for use of land for Rural worker accommodation that accommodates no more than 10 persons; and to introduce a permit requirement for use of land for Rural worker accommodation that accommodates more than 10 persons.

Australian Heritage Grants 2021-22 are open
Grants totalling $5.3 million are now available for projects that protect Australia's rich tapestry of cultural, natural and historic heritage sites. Applications for Round 4 of the Australian Heritage Grants are open until 28 October 2021. More...

Announcements, Draft Policies and Plans released 2021

Draft Greater Sydney Water Strategy Open for Comment
The Draft Strategy charts a direction for delivering sustainable and resilient water services to Greater Sydney for the next 20 to 40 years. It covers the Greater Sydney region which reaches out to the Illawarra and the Blue Mountains and aims to safeguard against extreme weather events and prolonged drought. The NSW Government has created a survey for public feedback which is open until November 8, 2021.

Greater Sydney Parklands Exposure Bill
Out for comment is a draft Bill proposing a Greater Sydney Parklands Trust to manage existing parklands including Centennial Park, Callan Park, Parramatta Park and Western Sydney, and any new and expanded public parklands in Western Sydney. Consultation closes on 29 October 2021. The Exposure Bill follows on from consultation on the Greater Sydney Parklands White Paper. For further details, including a guide to the Bill, see www.dpie.nsw.gov.au/draft-exposure-bill.

NSW Land and Enviroment Court
14/10/2021 New Acting Commissioner Appointments

Kosciuszko wild horse management plan
DPIE is seeking your feedback on the draft Kosciuszko National Park wild horse heritage management plan. Have your say by 2 November 2021. More...

NSW Revenue: Land Tax Build to Rent
The NSW Government is introducing a land tax discount for new build-to-rent housing projects until 2040 and a new Housing Diversity SEPP to provide more housing options, greater surety for renters, boost construction and support jobs during the COVID-19 recovery. Guidelines for the land tax reduction for build-to-rent properties can be read here). More...

Further extension of strata and community lands COVID-19 Regulations
The Strata Schemes Management Amendment (COVID-19) Regulation 2021 and Community Land Management Amendment (COVID-19) Regulation 2021 commenced on 12 May 2021. Practitioners should note that the relief measures introduced for the holding of meetings have not been extended. The temporary measures for execution of documents have been extended until 12 November 2021.
The effect of these changes, together with amendments to the Conveyancing Rules, means that owners corporations and community associations can sign land dealings and plan documents electronically. More information about alternative signing options for owners corporations and community associations can be found here.

Short-Term Rental Accommodation policy
This framework includes limits on the number of days' properties can be rented out in certain circumstances, new fire safety standards, a government-run register, mandatory Code of Conduct and an exclusion register to ensure properties are up to scratch. The policy comes into effect on 30 July 2021. For more information visit www.planning.nsw.gov.au/STRA. Policy update Government to delay introduction to November 1 2021.

NSW Planning Department: Have your say – draft plans and policies

Cemeteries as State Significant Development

Notification start-end date
12/10/2021 – 24/11/2021
A review into the cemetery and crematoria sector has identified that Greater Sydney is running out of burial space. The review recommended changes to enable cemeteries to be considered as State Significant Developments. More...

Queensland

Koala Habitat Mapping update
The Queensland Government has released its annual update of the State's Koala Habitat and Regulated Vegetation mapping. Koala Habitat now spans 714,040 hectares of land across South-East Queensland, which includes 332,278 hectares of Koala Priority Area- heavily protected under the planning framework.
To access the updated Koala Habitat maps and the updated Regulated Vegetation Management maps, click here. More...

Cases

Victoria

Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191
PLANNING - Question of law – review of a failure to grant planning permit – proposed parking above statutory rate – permit not required for car parking above statutory rate – whether car parking above statutory rate is inconsistent with sustainable transport policy in the planning scheme – relevant considerations – ambit of discretion to be exercised - whether Tribunal can refuse permit on grounds related to oversupply of car parking or impose a condition requiring a reduction of car parking – whether Tribunal must have regard to local and state policy in consideration of oversupply of car parking – Moreland Planning Scheme - Clause 33.03 Industrial 3 Zone - Clause 52.06 Carparking – Clause 65 -Clause 71.02-3 Integrated decision making - Planning and Environment Act (Vic) 1987 ss 60(1) 62(2), 84B National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592; Boroondara City Council v 1045 Burke Road Pty Ltd & Ors [2015] VSCA 27; Stogdale v Stonnington CC [2004] VSC 348 considered.

Queensland

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – COSTS – where relief sought in substantive proceeding concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where originating application dismissed – where respondents to substantial proceeding sought costs – whether costs should be awarded under s 60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis
Planning Act 2016 QLD s 60; Planning and Environment Court Act 2016 QLD s 11, 59, 60; Sustainable Planning Act 2009 QLD s 457.

Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 52
PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse an application for a material change of use comprising an extractive industry, concrete batching plant and environmentally relevant activity – whether the development is a single planning unit – whether the development will have unacceptable visual amenity and character impacts – whether the development will have unacceptable noise impacts – whether the development will have sufficient access to water – whether operational characteristics of the development warrant refusal – whether the development complies with the respondent's 2005 planning scheme – the weight to be given to the respondent's 2016 planning scheme – whether the development complies with the respondent's 2016 planning scheme – whether there is a town planning, community, and economic need for the development – whether there are discretionary matters that support approval – whether the planning discretion should be exercised in favour of approval
Planning Act 2016 QLD ss 45, 59 and 60; Planning and Environment Court Act 2016 QLD ss 43, 45 and 46
Water Act 2000 QLD s 119.

Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217
ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the applicants constructed a building which was used contrary to s 162 and s 165 of the Planning Act 2016 (Qld) – where the building was used as an "accommodation building" instead of a "dwelling house" – where the Planning and Environment Court made orders to prevent further unlawful use of the building including orders compelling significant changes to the building – whether the orders were within power of the Planning and Environment Court
Planning Act 2016 Qld s 162, s 165, s 180; Planning and Environment Court Act 2016 Qld s 63.

Stephen Family Pastoral Pty Ltd v Logan City Council & Ors [2021] QPEC 43
PLANNING AND ENVIRONMENT – APPLICATION IN PENDING PROCEEDING – where original appeal concerned refusal of development application for supermarket-based shopping centre – where Appellant sought preliminary approval for material change of use including variation request – where first co-respondent by election sought order to protect disclosure of privileged materials contained in Appellant's List of Documents by way of application in pending proceeding – where first co-respondent by election submitted documents identified as privileged were produced as part of commercial negotiations with Appellant
DISCLOSURE – WITHOUT PREJUDICE PRIVILEGE – where first co-respondent by election nor related entity waived privilege in respect of identified documents – whether litigation as between parties contemplated when identified documents produced – whether identified documents relied on by Appellant materially relevant for disclosure – whether identified documents subject of a confidentiality deed poll as between first co-respondent by election and Appellant – where application refused.

Redland City Council v King of Gifts (Qld) and HTC Consulting Pty Ltd & Anor [2021] QCA 210
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where, in 2018, the primary judge granted an appeal pursuant to s 461(1) of the Sustainable Planning Act 2009 (Qld) ('SPA') against the applicant's refusal of a development application for a material change of use to develop land for a service station, drive through restaurant and an on-site effluent disposal irrigation area – where, in 2020, this Court granted an application for leave to appeal and allowed an appeal against the 2018 judgment upon the ground that the primary judge had erred in principle in the application of s 326 of the SPA – where in this Court's 2020 decision the orders made by the primary judge were set aside and the matter was remitted to the Planning and Environment Court to be determined according to law – where no additional evidence was adduced at the remitted hearing – where, on rehearing, the primary judge allowed the appeal, and approved the development application subject to conditions – where the applicant seeks leave to appeal against that judgment upon the ground that the primary judge erred by finding in fact that there was a need for the proposed development and its constituent elements, at the proposed location, in the absence of any evidence of that fact – where in the 2017 reasons the primary judge described the proposed development as "fundamentally different in nature and size (in terms of its footprint) to the types of uses and development that the Redlands Planning Scheme envisages on the subject site" – where the primary judge also found there was a need for the proposed development that was sufficient to justify approval despite the conflicts with the Redlands Planning Scheme – where the primary judge relied on economists' and town planners' reports for that finding – where the primary judge found there was a "clear and strong level of economic need" – where the primary judge found that the combined effect of six matters established that "the public interest in approval of the proposed development is greater than the public interest in upholding strict compliance with the Redlands Planning Scheme by refusing the development" – whether the primary judge erred in law by making that finding in the absence of supporting evidence Sustainable Planning Act 2009 Qld s 326(1)(b).

NSW

Wainidiva Pty Ltd v Waverley Council [2021] NSWLEC 1615
DEVELOPMENT APPLICATION – boarding house – whether Applicant's written request to vary height of buildings development standard is well founded – whether existing dwellings are contributory items – whether existing dwellings can be demolished – whether proposed development is compatible with the character of the local area – whether proposed development is compatible with character of heritage conservation area – whether design of boarding house is acceptable.

Balestriere v Council of the City of Ryde [2021] NSWLEC 1600
DEVELOPMENT APPLICATION – dwelling house – alterations and additions – view loss – heritage conservation.

Mirvac Retail Sub SPV Pty Limited v City of Canada Bay Council [2021] NSWLEC 1598
DEVELOPMENT APPLICATION – 'blanket application' for fitout works for retail tenancies within shopping complex identified as heritage item – deficiency of application.

Mateer v Byron Shire Council [2021] NSWLEC 1597
Development application – alterations and additions to an existing dwelling – conciliation – agreement – orders.

Bathurst Regional Council v Department of Planning, Industry and Environment trading as Natural Resources Access Regulator [2021] NSWLEC 109
JUDICIAL REVIEW – decision of the Natural Resources Access Regulator to give official caution – alleged breach of Water Management Act 2000 – function to give official caution conferred by Natural Resources Access Regulator Act 2017 and Fines Act 1996 – jurisdiction of Land and Environment Court to review decision to give official caution – transfer of proceedings to Supreme Court.

Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 108
CIVIL PROCEDURE – notice of motion – application to amend development application – cl 55 Environmental Planning and Assessment Regulation 2000 – discretion – s 39 Land and Environment Court Act 1979 – application to have application considered a concept development application – s 4.22 of Environmental Planning and Assessment Act 1979 – change proposed by amendment significant – insufficient particulars included in application – notice of motion dismissed.

Legislation

NSW

Proclamations commencing Acts
Community Land Development Act 2021 No 6 (2021-598) – published LW 14 October 2021
Community Land Management Act 2021 No 7 (2021-599) – published LW 14 October 2021

Regulations and other miscellaneous instruments
Community Land Development Regulation 2021 (2021-600) – published LW 14 October 2021
Community Land Management Regulation 2021 (2021-601) – published LW 14 October 2021
Crown Land Management Amendment (Reserve Trusts) Regulation (No 2) 2021 (2021-602) – published LW 15 October 2021
Determination (2021-605) – published LW 15 October 2021
Local Government (General) Amendment (Miscellaneous) Regulation 2021 (2021-603) – published LW 15 October 2021
Local Government (General) Amendment (Rates) Regulation 2021 (2021-604) – published LW 15 October 2021
Uniform Civil Procedure (Amendment No 98) Rule 2021 (2021-585) – published LW 8 October 2021

Environmental Planning Instruments
State Environmental Planning Policy (Infrastructure) Amendment (Water Supply Infrastructure) 2021 (2021-611) – published LW 15 October 2021
State Environmental Planning Policy Amendment (Western Gateway Sub-precinct) 2021 (2021-612) – published LW 15 October 2021

Bills introduced – Government – 15 October 2021
Coastal Management Amendment Bill 2021
Energy Legislation Amendment Bill 2021
Water Industry Competition Amendment Bill 2021

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.