In the media
Smart buildings overcoming Australia's energy crisis
through technology and design
Australia is facing its biggest energy crisis to date.
With four of the country's coal-fired power plants closed due
to ageing infrastructure and a wealth of natural gas locked into
export contracts for years to come, it's no surprise that the
World Economic Forum's Global Risk Report 2018 identified
energy as Australia's biggest problem (10 August 2018).
More...
Push for accessible housing regulations
A network of designers, researchers, people living with
disability and seniors are calling on Australian governments to
introduce regulations mandating that new houses meet accessibility
standards (06 August 2018).
More...
The National Energy Guarantee is one step closer
Commonwealth, state and territory energy ministers have
moved one step closer to implementing the National Energy Guarantee
at a meeting in Sydney today. In addition to the NEG, the COAG
Energy Council meeting today advanced important issues around
transmission and the integrated system plan, cybersecurity for our
energy infrastructure, new hydrogen opportune (09 August 2018).
More...
Current NEG 'investment cliff' for
renewables
The Australia Institute's Climate & Energy Program
has released the latest National Energy Emissions Audit electricity
update (The Audit) for July 2018. The Audit shows
that current NEG modelling will effectively create an investment
cliff for the otherwise booming renewables sector, with no
investment in further renewable energy generation after 2021 (09
August 2018).
More...
Current NEG ineffective and expensive band-aid
The Australia Institute Climate & Energy Program has
released a special update of their National Energy Emissions Audit,
assessing the value and effectiveness of the current NEG using
figures from the AEMO. The Audit update shows multiple scenarios in
which much larger emission reductions and levels of renewable
energy generation can be achieved in the National Electricity
Market (NEM) than envisaged in the current NEG,
and at a lower cost (08 August 2018).
More...
Tackling the conundrum of low-carbon, low-income
housing
Comfortable, affordable and low-carbon housing is
possible, but according to experts at Wednesday's National
Forum on Low Carbon Housing for Low Income Households, there are
multiple challenges that need tackling to get there (08 August
2018).
More...
More children are living in high-rise apartments, so
designers should keep them in mind
Australian cities are changing. Instead of families living
in low-density suburban areas, more parents are raising children in
high-rise housing in inner-city areas. Despite this, much of the
high-rise housing stock in Australia has been developed for
residents without children (07 August 2018).
More...
The toxic face of PVC manufacturing exposed
The building design sector should be careful when
selecting building and furnishing materials containing PVC, with a
new report finding mercury, asbestos, PFAS chemicals and other
hazardous substances in the footprint of some chlorine-based
materials (02 August 2018).
More...
House price decline largest in six years
Australia's housing downturn gathered momentum in
July, with national dwelling values reporting the largest annual
fall since August 2012 (01 August 2018).
More...
Transforming non-recyclable waste into solid fuel
Located in Wetherill Park, the resource recovery facility
will transform non-recyclable waste into solid fuel, known as
Processed Engineering Fuel (PEF) which can be used
in high-combustion facilities such as cement kilns. The Turnbull
Government, through the Clean Energy Finance Corporation
(CEFC), lent $30 million to ResourceCo to help
fund the Wetherill Park facility (31 July 2018).
More...
Families in build-to-rent homes to share in clean energy
benefits with new CEFC Mirvac investment
Leading residential developer Mirvac is extending the
benefits of clean energy and energy efficiency to families and
residents in new build-to-rent homes through an Australian-first
investment fund (31 July 2018).
More...
Victoria
New board to guide the future of Fishermans Bend
The Labor Government today announced a dedicated
Fishermans Bend Development Board to ensure the project remains on
track and adheres to the highest levels of governance. The Board
will play a critical role in implementing the Fishermans Bend
Framework (10 August 2018).
More...
Victoria approves Southbank Queenbridge project after
three year wait
A 47-storey residential and hotel tower on Queensbridge
Street in Melbourne has been approved after three years of planning
limbo. The delay stemmed from concerns of the tower overshadowing
the future Boyd Park, while heritage considerations led to
architects retaining and incorporating existing heritage facades
into the design (10 August 2018).
More...
Property Council calls for review of CBD planning
controls; changes must support future pipeline
The Property Council of Australia is calling for both
major parties to commit to the establishment of a City Planning
Advisory Group to review the existing C270 planning controls.
According to the Property Council's Office Market Report,
released today, vacancy rates in Melbourne's CBD have dropped
to 3.6 per cent and are the lowest of any Australian CBD (02 August
2018).
More...
New South Wales
Proposed ban on the use of certain types of aluminium
composite panels
NSW Fair Trading Commissioner, Rose Webb, has today given
notice of her intention to impose a building product use ban under
the Building Products (Safety) Act 2017. It is an offence
for a person to contravene a building product use ban or to
represent that a building product is suitable for use in a building
if its use would contravene the ban. Corporations can be fined up
to $1.1 million and individuals up to $220,000. A copy of the order
can be found
here (10 August 2018).
More...
Crown takes legal action over Barangaroo's harbour
views
Crown Resorts has launched legal action against the
Barangaroo Delivery Authority to ensure the views of its $2.2
billion Crown Sydney Hotel Resort are not blocked by new
development (09 August 2018).
More...
Sydney calls for high-rise apartments to get green
The City of Sydney is looking for 20 high-rise apartments
to join its free 2018-19 Smart Green Apartments program, which
collectively saved last year's cohort $1 million in energy and
water bill savings. The council said this year's cohort could
expect to save an average of $57,000 on annual power bills alone.
And, for the first time, a NABERS Apartment rating will be provided
free of charge (09 August 2018).
More...
Australia's largest waste-to-fuel plant begins
turning rubbish into a replacement for coal-fired power in
Sydney
A multi-million-dollar facility that will turn rubbish
destined for landfill into fuel has been opened. The Process
Engineered Fuel (PEF) produced by the plant will
reduce Australia's dependence on fossil fuels, with more than
20 billion tonnes burned worldwide every year (08 August 2018).
More...
Australia's first build-to-rent club launched
Australia's first build-to-rent club has been
officially formed and the first project for the club will be Indigo
at Sydney's Olympic Park. The club, a coalition between the
Mirvac Group and the Clean Energy Finance Corporation, is committed
to building a residential property at Mirvac's Pavilions
project that will have a clean-energy focus (02 August 2018).
More...
20-year vision for a thriving regional NSW
The NSW Government has unveiled its 20-year vision for a
thriving regional NSW which sets out a framework for investment
that will guide the allocation of resources from the new $4.2
billion Snowy Hydro Legacy Fund (30 July 2018).
More...
Queensland
The information Adani spent a year trying to hide
Documents Adani fought to keep secret appear to show both
the company and the Queensland Government knew it was likely to
breach its licence before it spilled polluted water into the Great
Barrier Reef Marine Park (10 August 2018).
More...
New Bundaberg PFAS testing results available
The Queensland Government's investigation into PFAS
contamination in Bundaberg – which affected the town's
water network – has found a likely source. Soil and surface
water samples taken from within and adjacent to the Bundaberg
Airport returned higher results than other surrounding areas (09
August 2018).
More...
City Plan amended to protect Brisbane's
heritage
Almost 60 pre-1911 homes, as well as several of
Brisbane's well-known landmarks, have been given permanent
protection from development. Brisbane City Council put forward a
major amendment to the Brisbane City Plan 2014 on Tuesday,
following recommendations from Brisbane's Future Blueprint (01
August 2018).
More...
EDOQ: The drain on Acland farmers
It's not just impacts to groundwater that are unclear
in the Oakey Coal Action Alliance cases - it's also who has the
power to hear and assess potential impacts to groundwater. Ahead of
two separate cases, the new Associated Water Licences
(AWLs) have thrown a spanner into the legal mix
(31 July 2018). More...
Current Dissolution of Ipswich City Council draft Bill
fundamentally flawed
The Queensland Government's proposed Dissolution of
Ipswich City Council would deny the electorate democratically
appointed local representatives and improperly impugn the legal
rights of councillors not facing any or not yet convicted of
criminal charges or disciplinary offences, according to
Queensland's peak legal body (30 July 2018).
More...
In practice and courts
Commonwealth
Consultation: draft amendments to the Safeguard
Mechanism
The Government has released exposure draft amendments to
the National Greenhouse and Energy Reporting (Safeguard Mechanism)
Rule 2015 for public comment. The submission period closes on 7
September 2018.
More...
National Energy Guarantee: final detailed design
Energy Security Board
(ESB); COAG Energy Council: 02
August 2018
The proposed final design of the National Energy Guarantee
(NEG) will require retailers to contract for
generation or demand response to meet a minimum level of
dispatchable 'on demand' electricity where there is an
identified gap. Retailers must also keep their emissions below an
agreed level. More...
Review of the national greenhouse and energy reporting
legislation: a consultation paper
Climate Change Authority: 31 July 2018
This review will focus on the three key aspects of the
national greenhouse and energy reporting legislation: emissions and
energy reporting, the safeguard mechanism and the auditing
framework. The review will consider if each of the individual
elements is achieving its objectives, is fit for purpose and if any
improvements can be made. More...
Announcements, Draft Policies and Plans released 2018
Victoria
Amendment VC148 – reforms to the Victoria Planning
Provisions
On 31 July, Amendment VC148 – reforms to the
Victoria Planning Provisions (VPP) was gazetted.
The amendment implemented reforms to simplify and modernise
Victoria's planning policy and rules. The Department has
created the VC148 Clause Finder tool which helps users navigate the
changes on a clause by clause basis. Both the supporting documents
and the VC148 Clause Finder tool can be found on the
Amendment VC148 page ( 31 July 2018).
More...
Approvals
GC106 changes the schedules to the Urban Growth Zone to update
reference to the incorporated Infrastructure Contributions Plan in
the Mitchell and Whittlesea planning schemes.
VC151 corrects obvious and technical errors in the Victoria
Planning Provisions and all planning schemes by replacing the
incorporated document Principal Public Transport Network Area
Maps (State Government of Victoria, 2018) with a corrected
version of the document. The reference to the corrected document is
updated in Clause 72.04 (Documents incorporated in this planning
scheme).
Panel reports
Wangaratta C71: Residential development of the Wangaratta North
West and Wangaratta South Residential Growth Areas.
Boroondara C266: Amend/apply Heritage Overlays HO264 and HO677
- HO704) to implement the recommendations of the Canterbury
Heritage Gap Assessment.
New South Wales
Draft Design Guide for Heritage
The draft Design Guide for Heritage is now on public
exhibition so community members and industry stakeholders can have
their say on what it should include to ensure heritage is protected
for future generations. Submissions closed 17 August 2018.
More...
Queensland
Spring Hill Neighbourhood Plan
Brisbane City Council has adopted the Spring Hill
Neighbourhood Plan, which will come into effect as part of the
Brisbane City Plan 2014 on 14 September 2018. The revised plan aims
to prioritise future growth, protect heritage places and promote
economic development, by supporting well designed urban
environments, improving pedestrian activity and increasing retail
spaces.
More...
Spit vision statement
The State Government has released a final '
vision statement' for The Spit, as part of the ongoing
master planning process. A Report
on the consultation for the draft vision statement, document
has also been released to explain the process of developing this
vision (27 July 2018).
Prosecutions Bulletin July 2018
Prosecution bulletin no 9/2018
Cases
Victoria
Life Design Architecture v Monash CC
[2018] VCAT 1226
Monash Planning Scheme – Commercial 1 Zone –
Office precinct – Amend a permit – Mixed use eleven
storey building – Construct a larger mezzanine floor above
the ground floor – Use the new mezzanine floor for
restaurants – 49 additional patrons – Internal amenity
– Car parking.
Clark v Owners Corporation Rubicon Village PS 529035
(Owners Corporations) [2018] VCAT
1188
Administrator – application for re-appointment of
administrator – sewerage treatment system on land of
applicant (lot owner) – dispute between applicant and other
lot owners – permanent solution requires to secure provision
of water and sewerage services for lot owners – administrator
achieved temporary solution - administrator reappointed –
Owners Corporations Act 2006 ss 125, 126, 127.
Galea v Hobsons Bay CC [2018] VCAT
1128
Section 77 Planning and Environment Act 1987
– Hobsons Bay Planning Scheme – General Residential
Zone Schedule 2 – Design and Development Overlay Schedule 4
– Special Building Overlay – Clause 52.06 - Car Parking
– Neighbourhood Character – Landscaping –
Openness of Rear Yards – Reduction of visitor space
requirement.
Icon Co (Jessamine Avenue) Land Pty Ltd v Stonnington CC
(Red Dot) [2018] VCAT
1134
NATURE OF CASE Demolition of C graded contributory
building in a Heritage Overlay.
LOCATION OF PASSAGE OF INTEREST Paras 33-73.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - APPLICATION
– significant, interesting or unusual use or development
– application of policy, provision or principle – or
circumstances. Consideration of principles of integrated
decision-making in Boroondara City Council v 1045 Burke Road Pty
Ltd – whether need for additional residential development
outweighs objectives to conserve heritage in deciding whether to
grant permit for demolition of a heritage building in the Heritage
Overlay.
New South Wales
Little v Tomicic [2018] NSWLEC
1413
TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta
pipes – when the damage occurred – actions taken by the
applicant – actions taken by the respondent.
Bouveng v Garward [2018] NSWLEC
1411
TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage
or injury – adjoining property – fences not located on
boundaries – parties given an opportunity to make submissions
on property boundaries.
Modog Pty Ltd v North Sydney Council
[2018] NSWLEC 1420
DEVELOPMENT APPLICATION – adaptive reuse of an
existing commercial building to a mixed use – addition of a
storey and roof terraces above; exceedance of the height of
buildings development standard and non-compliance with the
non-residential floor space ratio development standard; whether the
elements that form the roof terraces are architectural roof
features within the meaning of clause 5.6 of the North Sydney Local
Environmental Plan 2013; amenity impacts on neighbouring
properties.
Burgin v Turnbull [2018] NSWLEC
1412
TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta
sewer pipes – the tree was there first – the tree has
been removed – whether the tree caused damage – poorly
constructed retaining wall – whether damage has occurred
since the applicant purchased –applicant made spurious claims
in attempting to reach agreement with the respondent.
Burns v Ku-ring-gai Council
[2018] NSWLEC 1401
DEVELOPMENT APPLICATION – tree – safety
– heritage significance – character.
Cerny v Randwick City Council [2018] NSWLEC
1403
DEVELOPMENT APPLICATION – secondary dwelling –
streetscape – height – juxtaposition of SEPP and
DCP.
Feros Hotel Group Pty Ltd v Northern Beaches
Council [2018] NSWLEC 1404
DEVELOPMENT APPLICATION – alterations to existing
tavern – increased patron levels of tavern sought –
required parking – adequacy of parking surveys and analysis
– disagreement on determination of parking demand for
"pubs" – ability to provide acceptable additional
parking – proportion of parking acceptable on-street –
acoustic impacts – impacts on neighbours –
objections.
Brigham v Canterbury–Bankstown
Council [2018] NSWLEC 1406
APPEAL- development application for alterations and
additions – proposal exceeds the maximum floor space ratio
under cl 4.4 of the Canterbury – Bankstown Local
Environmental Plan- adequacy of the applicant's clause 4.6
written request to vary development standard – whether
compliance with the standard is unreasonable and unnecessary in the
circumstances of the case.
The Owners - Strata Plan 6666 v GSA Australia
Acquisition No 2 Pty Ltd and Kahu Holdings Pty Ltd; The Owners -
Strata Plan 6877 v GSA Australia Acquisition No 2 Pty Ltd and 2-4
Lachlan Avenue Pty Ltd [2018] NSWLEC
115
STRATA REDEVELOPMENT SCHEMES – strata redevelopment
schemes for adjacent properties – common acquiring purchaser
– dissenting owners in each scheme – whether
proceedings should be heard together on application of acquiring
purchaser – application supported by the owners'
corporations of each strata plan – applications opposed by
each dissenting purchaser - matter involving Strata Plan 6666
already set down for hearing for seven days commencing on 5
November 2018 – preferred counsel and town planning expert
for dissenting owner in Strata Plan 6877 not available for these
hearing dates – consideration of likely coincidence of issues
– objective of the "just, quick and cheap"
disposition of the issues genuinely in dispute – balancing of
efficient allocation of court resources with the convenience of
counsel and experts – limited preparation for trial to date
in either matter – availability of trial judge for further
four continuous sitting days if needed – not appropriate to
set matters down to be heard together – however, appropriate
to set matters down in the allocated hearing period with common
commencing time – intensive case management appropriate to
ensure common issues (as relevant) are heard together – both
matters set down to commence on 5 November 2018 – direction
for immediate case management conference.
Hopkins v Quinn [2018] NSWLEC
117
DEVELOPMENT - proceedings commenced pursuant to open
standing provisions of the Environmental Planning and
Assessment Act 1979 - development carried out on adjoining
property without owner's consent - carried out in breach of
court orders - actual and potential functional deficiencies in
works resolved - certification provided to applicant as to adequacy
of drainage works - applicant persisted in pursuing litigation
after adequacy certification provided to him - only outstanding
matter whether agricultural drainage pipe installed across boundary
with property not owned by the applicant - incursion shown to exist
to a maximum of 60 millimetres - no functional impact on enjoyment
of property resulting from incursion.
DISCRETION - proceedings commenced pursuant to s 123(1) of the
Environmental Planning and Assessment Act 1979 not
pursuant to s 123(2) - relevant guidelines from Warringah Shire
Council v Sedevcic [1987] 10 NSWLR 335 set out - analysis of
applicability of relevant guidelines - no appropriate basis to
require rectification in light of trifling extent of incursion -
requirement to rectify would also be contrary to principles of
ecologically sustainable development - no utility in making bare
declaration - summons dismissed.
COSTS - applicant commences Class 4 civil enforcement proceedings -
utility in proceedings up until all functional issues in or
potentially in dispute resolved - certification provided to
applicant on 26 April 2018 demonstrated no functional issues
unresolved - proceedings continued by applicant to a contested
hearing despite no utility - proceedings not compromised or
discontinued after certification provided on 26 April 2018 - no
evidence concerning what took place between the parties after that
date - prima facie appropriate costs outcome that the respondents
pay the applicant's costs up to and including 26 April 2018, as
agreed or assessed, and, from 27 April 2018, the applicant pay the
respondents' costs, as agreed or assessed - opportunity
afforded to seek some alternative costs order - if no alternative
costs order sought within 28 days, costs to be ordered as
proposed.
Scevola v Minister Administering National Parks and
Wildlife [2018] NSWCA 171
LAND AND ENVIRONMENT – application for leave to
appeal from summary dismissal and costs orders – claim for
declaratory and other relief regarding alleged compulsory
acquisition of land in contravention of Land Acquisition (Just
Terms Compensation) Act 1991 (NSW) – no arguable basis
identified that primary judge erred in summary dismissal – no
basis identified on which discretion as to costs miscarried.
Strata Plan 47027 v McGinn [2018]
NSWSC 1228
PRACTICE AND PROCEDURE – applications –
default judgment – defamation – failure to file defence
– failure to plead essential element in cause of action
– application dismissed.
PRACTICE AND PROCEDURE – applications – default
judgment – discretionary considerations – applicant
using default judgment as a tactic to pressure defendant in
circumstances where it is known that proceedings will be
defended.
PRACTICE AND PROCEDURE – applications – strike out
application – defamation – statement of cross-claim
struck out for not pleading publication.
PRACTICE AND PROCEDURE – jurisdiction – transfer of
proceedings – transfer defamation cross-claim from Equity
Division to Common Law Division.
PRACTICE AND PROCEDURE – costs – special costs orders
– indemnity costs – costs payable forthwith - order for
indemnity costs to be payable forthwith refused where both
applicant and cross-defendants responsible for bringing and
prolonging hopeless application.
So Nash Pty Limited v Inner West Council (No
2) [2018] NSWLEC 1391
DEVELOPMENT CONSENT – appeal against the imposition
of a number of conditions on development consent for the adaptive
reuse of a local heritage item, including a condition requiring the
deletion of one off-street car parking space and a condition
notifying the future occupants of the development that they are not
eligible to participate in the Council's Resident Parking
Scheme – deferred commencement conditions deleted and changes
to the proposal described in those conditions incorporated in
amended architectural drawings.
Leda Holdings Pty Ltd v Woollahra Municipal
Council [2018] NSWLEC 1394
DEVELOPMENT APPLICATION – alterations and additions
to an existing dwelling currently under construction – new
tennis court – exceedance of height of buildings development
standard – impact on streetscape.
Hussar Pty Ltd v Northern Beaches Council; Sekulic v
Northern Beaches Council [2018] NSWLEC
1393
ORDER and MODIFICATION APPLICATION – non-compliance
of development consent – deletion of undergrounding of
utility services condition – village streetscape –
landscaping constraints.
Moseley v Queanbeyan-Palerang Regional Council (No
3) [2018] NSWLEC 111
ENVIRONMENTAL OFFENCES – COSTS – exercise of
discretion whether to award costs thrown away in course of
finalising stated case to Court of Criminal Appeal.
Fordham v Environment Protection Agency
[2018] NSWCA 167
DECLARATORY RELIEF – where EPA issued notices to
appellant directors or executives under Protection of the
Environment Operations Act 1997 (NSW), Part 7.5 requiring
answers to questions regarding possible contraventions by a
corporation of provisions which may also give rise to a special
executive liability under s 169 – where appellants sought
declarations that not required to answer questions if did not have
benefit of immunity against self-incrimination conferred by s
212(3) – where primary judge held no legal controversy
capable of being subject of declaratory relief – where
following filing of appeal EPA conceded question in issue, but not
on grounds argued before primary judge – whether primary
judge erred in not making declarations sought – before
concession made there was a sufficient controversy to justify
declaratory relief – after concession declaratory relief in
terms sought not justified.
DECLARATORY RELIEF – where remedial orders sought under
Protection of the Environment Operations Act, s 252 and
declarations made as to breach of offence provision – where
terms of declaration misidentify provision found to have been
breached – where foundation for making remedial orders
removed by making of concession after appeal proceedings commenced
– declarations and remedial orders set aside.
XR Property Developments Pty Ltd v Sekers
[2018] NSWSC 1181
PROCEDURE — Contempt, attachment and sequestration
— Enforcement of undertaking given to the Court to guarantee
payment of costs.
Queensland
Trask Development Corporation No 2 Pty Ltd v Moreton Bay
Regional Council [2018] QSC 170
ADMINISTRATIVE LAW JUDICIAL REVIEW MEANING OF DECISION
GENERALLY where a developer submitted a request for mapping change
of an overlay map to the council via an online form where the
council refused the request where the developer applied for a
statutory order of review of that refusal where the council applied
to have the application summarily dismissed under rule 16 of the
Uniform Civil Procedure Rules 1999 and section 48 if the
Judicial Review Act 1991 whether the refusal was a
decision to which the Judicial Review Act 1991
applied.
ADMINISTRATIVE LAW JUDICIAL REVIEW DECISIONS UNDER AN ENACTMENT
DECISIONS UNDER INSTRUMENTS where the council applied to summarily
dismiss the application by a developer for statutory review of a
refusal to amend an overlay map whether the refusal was made under
an enactment.
ADMINISTRATIVE LAW JUDICIAL REVIEW GENERALLY where the council
applied to summarily dismiss the application by a developer for
statutory review of a refusal to amend an overlay map where the
council alleged that the application did not comply with section 25
of the Judicial Review Act 1991 because it did not set out
the grounds whether the application complied with section 25 of the
Judicial Review Act 1991.
Legislation
New South Wales
Proclamations commencing Acts
Water Management Amendment Act 2018 No 31 (2018-421)
— published LW 8 August 2018
Regulations and other miscellaneous instruments
Biodiversity
Conservation (Savings and Transitional) Further Amendment
Regulation 2018 (2018-423) — published LW 10 August
2018
Inclosed
Lands Protection Regulation 2018 (2018-425) — published
LW 10 August 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.
