In the media
Household waste set to generate clean energy as CEFC
finances landmark West Australian project
The CEFC is committing up to $90 million towards
Australia's first large-scale energy from waste
(EfW) project – a state-of-the-art plant at
Kwinana in Western Australia capable of producing 36MW of
electricity, enough to power up to 50,000 homes (18 October 2018).
More...
Developers shift industrial assets to 'mini
warehouse' concept
Developers are repositioning industrial assets to cater to
smaller industrial users in an increasingly costly market,
according to a new Colliers International's radar report (11
October 2018).
More...
New South Wales still stuck in the slow lane on
renewables, Climate Council says
New South Wales is barely off the starting blocks in the
race to transition to renewable energy, with Tasmania, the
Australian Capital Territory and South Australia leading the pack
(16 October 2018).
More...
Victoria
Heritage Victoria's recommendation on Federation
Square
The Executive Director of Heritage Victoria has
recommended that Federation Square be included on the Victorian
Heritage Register for its historical, architectural, aesthetic,
cultural and technical significance to the State of Victoria. The
recommendation will be advertised for 60-days to allow the
community to have its say (18 October 2018).
More...
Melbourne's eight cities: Mini-CBDs to transform
Victoria's capital
The idea of one single city centre is being challenged in
Melbourne, where the population has surged beyond 5 million people.
There are now plans for another seven CBDs, to stop the city being
choked by growth — but not everyone is convinced it will work
(16 October 2018).
More...
Bendigo becomes first regional Victorian council to
include environmentally sustainable design policy for large
developments
Medium to high density developments in Bendigo with at
least three dwellings will need to adhere to a new environmentally
sustainable design policy, including seven-star energy ratings (11
October 2018).
More...
Solar Energy Facilities - Design and Development Draft
Guidelines
The Victorian Government has approved a major new solar
farm north of Shepparton and released draft planning guidelines for
the development of large solar farm projects across the state (08
October 2018).
More...
New South Wales
New South Wales grows its national park estate
Environment Minister Gabrielle Upton said: "More than
seven million hectares in NSW is now managed and protected for
conservation with our National Parks Estate (Reservations) Bill
being passed in Parliament." (17 October 2018).
More...
New New South Wales Regional Commissioners to advise on
planning issues
Minister for Planning and Housing, Anthony Roberts, has
announced the appointment of two Regional Commissioners, Miriam
Dayhew and Frank Holles. They will help to facilitate greater
consultation and engagement with stakeholders, including
government, community, farmers and industry on regional planning
issues (16 October 2018).
More...
All smiles balancing Luna Park fun and protections for
the community
The NSW Department of Planning and Environment is
consulting on plans to allow Sydney's iconic Luna Park to
introduce new rides for the Christmas holidays with strict
protections around safety, noise, lighting and heritage (15 October
2018).
More...
Local character statements a win for community
planning
The NSW Government's first local character statement
is a win for communities wanting more say in how their
neighbourhoods evolve and respond to growth, Minister for Planning
and Housing, Anthony Roberts said, showcasing the St Leonards-Crows
Nest plan as the first to feature such a statement (14 October
2018).
More...
'Inappropriate locations': Why childcare centres
are not welcome in parts of Sydney
The NSW government introduced new planning rules to
address demand for childcare centres. But not everyone is happy (13
October 2018).
More...
Rezoning of Arncliffe and Banksia brings Bayside 2036 to
life
Open space, well-designed buildings, homes and jobs close
to public transport has been secured for Bayside West, with the
rezoning of the Arncliffe and Banksia Precincts. A draft Special
Infrastructure Contribution (SIC) is also
on exhibition for feedback from the community that will ensure the
right infrastructure is in place (12 October 2018).
More...
Sydney Opera House ads may break National Heritage
Law
The repeated nature of the use of the Opera House sails to
project night-time images that are potentially inconsistent with
the design of the building or its values requires the matter to be
referred to the Federal Environment Department under s 68 of the
Environment Protection and Biodiversity Conservation Act
1999 (Cth), according to analysis by The Australia Institute
(08 October 2018).
More...
Independent Planning Commission to rule on Bylong
The NSW Department of Planning and Environment has
completed its comprehensive assessment of the Bylong Coal Project
referring to the Independent Planning Commission
(IPC) for approval, subject to stringent
conditions (08 October 2018).
More...
Queensland
Brisbane developer delivers inner-city West End
park
A Brisbane developer has delivered on its promise to
deliver an inner-city public park the size of Brisbane's Post
Office Square (19 October 2018).
More...
The future of more than 1.2km of Brisbane CBD riverfront
land reviewed
More than 1.2-kilometres of Brisbane's riverfront land
could look different in the future as Brisbane City Council moves
to revise its plan for the city's waterfront. The council has
launched the Waterfront Master Plan and is now turning to the
public for feedback as it attempts to deliver an area that is
accessible for pedestrians, cyclists, workers and visitor (08
October 2018).
More...
In practice and courts
CER: September Large-scale Renewable Energy Target
market data now available
The Clean Energy Regulator has released September 2018
large-scale Renewable Energy Target market data. 34 power
stations were accredited with a combined capacity of 667 megawatts.
This is the largest amount of solar and wind capacity accredited in
a single month since April 2001 (17 October 2018).
More...
Victoria
Ministerial Direction No.19
The Minister for Planning has issued a new
Ministerial Direction No.19 and a new Ministerial Requirement
for information to ensure that a planning authority seeks early
advice from Environment Protection Authority Victoria
(EPA) when undertaking strategic planning and
preparing a planning scheme amendment that may result in
significant impacts on the environment, amenity and human health
due to pollution and waste.
Planning Advisory Note 73 provides more information (18 October
2018).
Approvals
GC110 introduces a new Environmentally Sustainable Development
Local Planning Policy into the Brimbank, Greater Bendigo, Greater
Dandenong, Hobsons Bay, Kingston, Whittlesea and Wyndham Planning
Schemes.
GC96 inserts the Melbourne Metro Rail Project: Upgrades to the
Rail Network Incorporated Document, May 2018 into the Brimbank,
Casey, Cardinia, Glen Eira, Greater Dandenong, Hume, Kingston,
Maribyrnong, Melton, Monash, Stonnington, Whittlesea and Yarra
planning schemes.
Panel reports
Greater Shepparton Permit Applications (2017-162, 2017-274,
2017-301, 2017-344) Call-in: Development of Solar Farms at
Congupna, Lemnos, Tallygaroopna and Tatura.
New South Wales
Dates for Environmental Planning
& Assessment Act Updates
Councils, certifiers and other industry practitioners have
more time to implement some of the recent EP&A Act updates.
Changes affect new provisions for
building and subdivision certification,
Local Strategic Planning Statements for councils in the Greater
Sydney Region and
Community Participation Plans. While most of the changes will
commence on 1 March 2018, there will be a number of other changes
that will involve further design and consultation from mid to late
2018 outlined here.
New South Wales water metering framework
The NSW Government is committed to implementing a robust
new metering framework to measure and meter water take in New South
Wales. The new framework is a commitment under the NSW
Government's Water Reform
Action Plan. The regulation will commence on 1 December 2018.
More...
Department of Planning: Have Your Say
Policies:
Amendments to State Environmental Planning Policy (SEPP) Three
Ports 2013 Closes 01/11/2018
Proposed Special Infrastructure Contribution for the North West
Growth Area Closes 02/11/2018
Proposed Special Infrastructure Contribution for Wilton Closes
09/11/2018
Urban Design for Regional NSW Draft Guide Closes
31/10/2018
Proposed amendments for short-term rental accommodation Closes
16/11/2018
SEPP (State Significant Precincts) Amendment - Luna Park Closes
09/11/2018
Queensland
Reminder: Proposed changes to the
Economic Development Act and more
The Economic Development and Other Legislation Amendment
(EDOLA) Bill 2018 was introduced into the
Queensland Parliament on 19 September 2018 and has been referred to
the State Development, Natural Resources and Agricultural Industry
Development Committee for detailed consideration. A copy of the
Bill and the Explanatory Notes is available from the Queensland
Parliament website.
Key dates: Public Hearing 22 October 2018; Committee report due
date: 8 November 2018.
DES Prosecution bulletins
A selection of the department's latest enforcement
actions are summarised
here.
Cases
Victoria
Makhmalbaf v Monash CC (Red Dot)
[2018] VCAT 1641
NATURE OF CASE – Identifies inconsistencies with
three preferred character statements applicable to the same
property, and consideration of the weight to be given to
each.
LOCATION OF PASSAGE OF INTEREST Paragraphs 15-24.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
PLANNING SCHEME – Interpretation or consideration of VPP
provision. The weight to be given to various parts of the Monash
Planning Scheme, including Amendment C125 (Part 2).
POLICY – Interpretation or application of policy. The weight
to be given to the three preferred but inconsistent character
statements currently available to decision makers.
CHANGE TO LEGISLATION OR VPPS – Whether change to VPPs or
statutory provisions is required or desirable.
The decision raises discrepancies that the Monash City Council and
the Minister for Planning should consider prior to the gazettal of
Amendment C125 (Part 2) to the Monash Planning Scheme.
Grebe Investments Pty Ltd v Bass Coast SC (Red
Dot) [2018] VCAT
1570
Need for an approved cultural heritage management plan
before application under s 79 of the Planning and Environment
Act 1987 is lodged.
LOCATION OF PASSAGE OF INTEREST – Paragraphs 25 to 46.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
LEGISLATION – Interpretation or application of statutory
provision Relationship between s 52(4) of the Aboriginal
Heritage Act 2006 and s 79 of the Planning and Environment
Act 1987.
LAW – Issue of interpretation or application.
Whether an application under s 79 of the Planning and
Environment Act 1987 to review the failure to decide a permit
application should be dismissed, in accordance with the reasoning
in Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36, if
an applicant filed an approved cultural heritage management plan
before lodging the review application and if that plan is for only
part of the activity area for the activity in the permit
application.
O'Kane v Macedon Ranges SC (Red Dot)
[2018] VCAT 1562
NATURE OF CASE – Application to construct eight
dwellings on a lot in a Neighbourhood Residential Zone and the
meaning and effect of the transitional provision at clause
32.09-6.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
PLANNING SCHEME – Interpretation or consideration of VPP
provision.
Clause 32.09-6 in the Neighbourhood Residential Zone; Transitional
provision; Whether it preserves a different clause 55 standard
specified in a schedule that existed on 13 April 2017.
New South Wales
Baron Corporation Pty Ltd v The Council of the City of
Sydney [2018] NSWLEC 1552
APPEAL – Development application – alterations
and additions to an approved residential flat building for which
development consent has not yet commenced – increase in floor
space by in-filling of voids – contravention of the FSR
development standard - increase in the number of units – no
adverse impacts – increased intensity - whether consent
should be granted notwithstanding contravention of FSR development
standard – whether state of satisfaction required by cl
4.6(4)(a) has been reached.
Young v King (No 14) [2018]
NSWLEC 162
COSTS - Application by a successful respondent for the
personal costs order already made in his favour to be satisfied by
a specified gross sum instead of assessed costs – principles
to be applied – costs on the disputed gross sum application.
BIAS: Application for the trial judge to recuse himself from
hearing the gross sum costs application made by the respondent in
whose favour he had already made a costs order – principles
to apply – costs on the disputed recusal application.
Balnaves Foundation Pty Ltd v Minister for Planning (No
2) [2018] NSWLEC 163
JUDICIAL REVIEW – Whether the consent authority had
the power to impose a condition requiring contributions to be paid
– whether a regulation empowering the imposition of a
condition is inconsistent with the primary enactment authorising
the making of the regulation – whether the regulation is
"of a savings or transitional nature" – whether the
regulation is "consequent on" the enactment of a later
Act – regulation validly enacted and the imposition of
condition of consent lawful.
STATUTORY CONSTRUCTION – Whether delegated legislation is
inconsistent with primary legislation authorising the making of the
delegated legislation – applicable principles of statutory
construction – proper construction of transitional and
savings provisions.
ADM Projects (Australia) Pty Ltd t/as ADM Architects v
Wollongong City Council [2018] NSWLEC
1541
DEVELOPMENT APPLICATION – Partial demolition of
existing building and the construction of new commercial building
– consent orders – variation to Building Separation
Standard – public objections.
Dwyer v Sutherland Shire Council
[2018] NSWLEC 1543
DEVELOPMENT APPLICATION – Two studios above detached
garages – FSR – ancillary dwelling use –
characterisation – bulk and scale.
Deng v Burwood Council [2018] NSWLEC 1536
DEVELOPMENT APPLICATION – Residential flat building
– SEPP affordable rental housing – visual privacy
– amenity.
Peric v Randwick City Council
[2018] NSWLEC 1509
DEVELOPMENT APPLICATION – Torrens title subdivision
of land – minimum subdivision lot area development standard
– whether the Applicants' environmental planning grounds
are sufficient to uphold a cl 4.6 written request under RLEP.
Boustany v Canterbury-Bankstown Council
[2018] NSWLEC 1531
DEVELOPMENT APPLICATION – Dual occupancy –
basement parking.
Ahmad Corp Pty Ltd v Fairfield City
Council [2018] NSWLEC 1526
MODIFICATION APPLICATION – Development consent
granted by the Court following conciliation – modification
seeks an additional storey for the proposed development –
whether substantially the same development – weight to be
given to an urban design study and a planning proposal –
whether intended character of the area should be taken from current
controls or planning proposal – whether proposed modified
development consistent with future desired character –
whether proposed modified development minimises overshadowing.
Ikus Pty Ltd t/as U+I Building Studio v Northern
Beaches Council [2018] NSWLEC
1534
DEVELOPMENT APPLICATION – Alterations and additions
to dwelling – garage, workshop and storage area in front
setback and forward of the established building line –
variations to DCP controls sought but not justified –
adequacy of landscaping – neighbour objections.
The Uniting Church in Australia Property Trust (NSW) v
Parramatta City Council [2018] NSWLEC
158
APPEAL – Appeal against Commissioner's decision
on questions of law – refusal of development consent to
concept development application – design excellence clause
– whether applies to concept proposals – whether
Commissioner misconstrued or misapplied design excellence clause
– whether Commissioner misconstrued or misapplied FSR
development standard – whether Commissioner failed to
consider relevant consideration – potential social benefits
of concept proposals as an aspect of public interest –
whether denial of procedural fairness – no grounds of appeal
established.
Nerringillah Community Association Inc v Laundry Number
Pty Ltd [2018] NSWLEC 157
COSTS – Application for a protective (or maximum)
costs order – applicable legal principles and relevant
factors – whether matter in the public interest –
whether costs proportional - unidirectional order sought –
whether quantum of protective costs order sought enough –
protective costs order made but amount increased.
Queensland
Springfield Land Corporation Pty Limited v Cherish
Enterprises Pty Ltd & Anor [2018] QCA
266
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING
– PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
DEVELOPMENT CONTROL PLANS – where the first respondent made a
development application to the second respondent in relation to an
area of land at Springfield – where pt 14 of the Ipswich
Planning Scheme 2006 ("IPS 2006")
contained a development control plan called the Springfield
Structure Plan ("SSP"), which applied to
the land – where the first respondent had not applied for, or
sought approval of, a precinct plan or an area development plan
under the SSP – where the primary judge made a declaration
that the first respondent was entitled to have its development
application assessed even though, inter alia, no precinct plan or
area development plan had been approved by the second respondent
– where s 857(5) of the Sustainable Planning Act
2009 (Qld) ("SPA") validates
development control plans under the repealed Local Government
(Planning and Environment) Act 1990 to the extent that they
include "a process for making and approving plans, however
called, with which development must comply" – whether
the SSP engages s 857(5) by providing a process for making and
approving area development plans with which development must comply
– whether the SSP engages s 857(5) by providing a process for
making and approving precinct plans with which development must
comply.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING –
PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND –
DEVELOPMENT CONTROL PLANS – where the first respondent made a
development application to the second respondent in relation to an
area of land at Springfield – where the application sought
preliminary approval under s 242 of the SPA to vary the effect of a
planning instrument, namely, the IPS 2006 – where pt 14 of
the IPS 2006 contained a development control plan called the
Springfield Structure Plan, which applied to the subject land
– where the first respondent had not applied for, or sought
approval of, a precinct plan or an area development plan under the
SSP – where the primary judge made a declaration that the
first respondent was entitled to have its development application
assessed even though, inter alia, no precinct plan or area
development plan had been approved by the second respondent –
where s 857(5) of the SPA validates development control plans under
the repealed Local Government (Planning and Environment) Act
1990 to the extent that they include "a process for
making and approving plans, however called, with which development
must comply" – whether s 857 of the SPA prevents the
first respondent from making an application for preliminary
approval under s 242 of the SPA to vary the effect of the IPS 2006
so as to dispense with the requirements for a planning scheme and
an area development plan.
WOL Projects Pty Ltd v Gold Coast City
Council [2018] QPEC 48
PLANNING AND ENVIRONMENT – APPEAL – Appeal
against refusal of development application for material change of
use to establish four multiple dwellings.
ASSESSMENT – Compliance with the planning scheme –
whether the proposed development complies with the planning scheme
– whether there are relevant matters to justify approval of
the proposed development.
Hyacinth Developments Pty Ltd v Scenic Rim Regional
Council [2018] QSC
230
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY
COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL
– SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – OTHER
CASES AND MATTERS – Where the plaintiff obtained approvals
from the first defendant to develop land – where the
plaintiff purchased the land and commenced the development –
where the approvals were declared invalid by the Planning and
Environment Court – where the invalidity of the approvals
caused the plaintiff to cease development and enter into
liquidation – where the plaintiff commenced proceedings
almost ten years after the land was originally purchased and almost
six years after the approvals were declared invalid – where
the defendants brought a summary judgment application on the basis
that the proceedings were commenced out of time – whether the
limitation issue ought to be decided at an interlocutory
stage.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS
– PLEADINGS – STRIKING OUT – OTHER CASES AND
MATTERS – where the defendants brought a strike out
application on the basis that the proceedings were commenced out of
time – whether the limitation issue ought to be decided at an
interlocutory stage.
LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF
ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD
– AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR
PARTICULARISING CAUSE OF ACTION – where it was unclear
whether the proceedings were commenced outside the limitation
period – where the plaintiff sought to amend the pleadings
three years after the proceedings were commenced – where the
purported amendments were outside the limitation period –
whether the amendments introduced a new cause of action –
whether the amendments caused prejudice to the defendants –
whether the plaintiff ought to be granted leave to amend.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS
– PLEADINGS – PARTICULAR PLEADINGS – ORIGINATING
PROCESS – where the plaintiff sought to amend the pleadings
three years after the proceedings were commenced – where the
defendants argued that there had been delay – whether the
plaintiff ought to be granted leave to amend.
Legislation
New South Wales
Regulations and other miscellaneous instruments
Environmental
Planning and Assessment Amendment (Gosford City Centre Special
Contributions Area) Order 2018 (2018-593) — published LW
12 October 2018
Growth
Centres (Development Corporations) Amendment (Hunter and Central
Coast Development Corporation) Order 2018 (2018-581) —
published LW 12 October 2018
Growth
Centres (Development Corporations) Savings and Transitional
Amendment Regulation 2018 (2018-582) — published LW 12
October 2018
Bills introduced to Government
Planning Legislation Amendment (Greater Sydney Commission) Bill
2018
Non-Government
National Parks and Wildlife Amendment (Tree Thinning Operations)
Bill 2018
Bills passed by both Houses of Parliament
National Park Estate (Reservations) Bill 2018
Residential Tenancies Amendment (Review) Bill 2018
Water NSW Amendment (Warragamba Dam) Bill 2018
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.