In the media
The biggest ever change to building Green Star
ratings
The Green Building Council of Australia
(GBCA) is preparing to evolve its Green Star
rating system, encouraging the built environment to achieve net
zero carbon emissions (30 April 2019).
More...
Other countries around the world are planning new cities
– so why aren't we in Australia?
Future Australian city planning and development focuses
largely on enlarging and intensifying the footprints of existing
major cities. The current urban policy trajectory is in-fill
development and expansion of the existing state capital mega-city
regions, where two-thirds of the population live. But what is lost
through this approach (02 May 2019).
More...
ATO to scrutinise property investor claims
The Tax Office has warned that it will be scrutinising
claims by property investors in the upcoming tax season. As part of
its crackdown, the Tax Office's focus will be on
"over-claimed interest, capital works claimed as repairs,
incorrect apportionment of expenses for holiday homes let out to
others, and omitted income from accommodation sharing" (24
April 2019).
More...
Queensland
Build-to-Rent pilot project seeks industry
interest
The Palaszczuk Government's innovative Build-to-Rent
pilot project is calling for expressions of interest to help
deliver subsidised affordable rental housing (02 May 2019).
More...
Seymour Group wins approval for Broadbeach project
Private developer Seymour Group has unveiled its debut
into the Gold Coast market with a $32 million residential
development in Broadbeach (24 April 2019).
More...
Victoria
Ten year transport plan to create more space for
people
City of Melbourne Councillors will consider an ambitious,
draft 10-year plan to create a more enjoyable, safer central city
which is easier to connect and travel within and better supports
our shops, eateries and businesses to flourish (02 May 2019).
More...
Sky's the limit for Melbourne urban farm
The Skyfarm proposal for Melbourne's 2000 square metre
Siddeley Street car park rooftop includes a working farm, bee
hives, licensed cafe and workshops at an eco education centre (01
May 2019).
More...
New deal to reduce emissions and keep water
affordable
Thirteen of Victoria's water corporations have
partnered to purchase clean energy from the Kiama Solar Farm in
north-west Victoria. The innovative venture is the first of its
kind for Australia's water sector and will operate under a new
organisation called Zero Emissions Water Ltd (ZEW)
(23 April 2019).
More...
New South Wales
Regulating run-off: Polluters targeted during May
inspection blitz
Building sites that fail to control their runoff will be
in the firing line as the Get the Site Right campaign gets underway
(02 May 2019).
More...
Private developers pay millions for Sydney's
'air rights' above heritage sites
As development and density reaches capacity in Sydney,
purchasing the empty skies above heritage-listed sites remains one
of the few avenues for developers to outgrow planning controls (02
May 2019).
More...
Crookwell 3 wind farm referred to IPC
The Department of Planning and Environment has referred
Crookwell 3 Wind Farm to the Independent Planning Commission
(IPC) for final decision, saying it should be
refused due to significant cumulative visual impacts on the
landscape and residents (02 April 2019).
More...
Port Kembla gas terminal approved
Deputy Premier John Barilaro and Minister for Planning Rob
Stokes announced planning approval for the vital $250 million Port
Kembla Gas Terminal (29 April 2019).
More...
In practice and courts
Commonwealth
Climate cuts, cover-ups and censorship
Climate Council of Australia: 30 April 2019
This publication provides a detailed overview of the Australian
government's approach to climate change since the election of
the Liberal-National Coalition government in 2013. The period is
characterised by cutting effective climate change programs,
rejecting expert advice, ministers making publicly misleading
claims, and a lack of a credible climate change policy. More...
Announcements, draft policies and plans released 2019
Queensland
PCA: Environmental Offsets discussion paper
feedback
The Property Council has provided feedback to the State
Government's review of Queensland's Environmental Offsets
Framework. The Property Council maintains that a holistic strategic
assessment of environmental matters is needed, particularly in the
high growth region of SEQ, as it would provide the most consistent
delivery of offsets in Queensland, and would provide improved
environmental protection (02 May 2019).
More...
PCA: Government calls for Build-to-Rent EOIs
The Queensland Government has called for Expressions of
Interest (EOI) for its Build-to-Rent Pilot
Project, announced in December 2018. The call for EOIs follows the
Registration of Interest process undertaken in early 2019. For more
information on the Build-to-Rent pilot project, or to register an
EOI, visit the
government's website. EOI Stage 1 closes on 24 May
2019.
Victoria
Environment Effects Statement (EES) for North East Link:
Public comment
An Environment Effects Statement (EES)
has been released for the North East Link Project and is now open
for public submissions, closing on 7 June 2019. The EES also
includes a
Draft Planning Scheme Amendment and a
Works Approval Application for the construction of the tunnel
ventilation system.
More...
DELWP / EPA Council Planner Forums - Geelong
The Department of Environment, Land, Water and Planning
(DELWP) and Environment Protection Authority
Victoria (EPA) are holding a series of
professional development forums for statutory and strategic
planners and other local government staff to provide an update on
the delivery of the Government's environment protection reform
agenda, to demonstrate new data tools and to seek feedback on key
planning reform projects.
More...
New South Wales
Community Participation Plan updated FAQs
The Environmental Planning and Assessment Act
1979 has been updated to make community participation central
to the planning system. Supporting this objective is a new measure
requiring all public authorities that have planning functions under
the EP&A Act, including councils, to develop community
participation plan (CPP). CPPs must be finalised
and published on the ePlanning portal by 1 December 2019.
More...
Changes to Housing SEPPs
Seniors Housing State Environmental Planning Policy - the SEPP
will not apply in heritage conservation areas in Greater Sydney
until 1 July 2020.
Cases
Croft v State of South Australia (Port Augusta Overlap
Proceeding) (No 2) [2019] FCA 581
NATIVE TITLE - application for one of the three
overlapping claims for the determination of native title to be
summarily dismissed pursuant to s 31A(2) of the Federal Court
of Australia Act 1976 (Cth) and/or r 26.01 of the
Federal Court Rules 2011 (Cth) - effect of findings in the
determination of nearby claims - effect of the Barngarla People
having been recognised as holding native title over area separating
the claim area from the area over which the claim has been
recognised as having native title - effect of claim groups being
members of different cultural groups - consideration of historical
and ethnographic material provided in resistance to the summary
judgment application - application allowed and native title claim
summarily dismissed.
State of Queensland (Department of Agriculture and
Fisheries) v Humane Society International (Australia)
Inc [2019] FCA 534
ADMINISTRATIVE LAW - application for an interim stay
of a decision of the Administrative Appeals Tribunal - where
Tribunal imposed conditions on licence issued to the applicant -
Administrative Appeals Tribunal Act 1975 (Cth) s
44A - relevant considerations - whether stay is necessary for
securing the effectiveness of the hearing and determination of the
statutory appeal - whether the applicant has an arguable case -
whether "special circumstances" need to be demonstrated -
balance of convenience - where Tribunal decision will impose
substantial compliance costs - risk of environmental harm if stay
not granted.
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44,
44A; Great Barrier Reef Marine Park Act 1975
(Cth) ss 2A, 3, 3AB; Great Barrier Reef Marine Park
Regulations 1983 (Cth).
Queensland
Moramou2 Pty Ltd v Brisbane City Council
[2019] QPEC 18
PLANNING AND ENVIRONMENT - APPEAL - appeal against the
decision to give an enforcement notice in respect of a backpacker
hostel - whether there has been an unlawful increase in the number
of residents. Planning and Environment Court Act 2016
(QLD).
Ashvan Investments Unit Trust v Brisbane City Council &
Ors [2019] QPEC 16
PLANNING AND ENVIRONMENT - APPEAL - where application
for a material change of use for a childcare centre in the Low
density residential zone - whether development would serve a local
community facility need only - whether development was of a bulk
and scale compatible with the built form intent of the Low density
residential zone - whether the development would be appropriately
located - whether development would be compatible with residential
amenity - whether development sensitively transitions to
surrounding residential uses - whether the development would
unacceptably impact on amenity - whether the development would
introduce non-residential traffic into a residential street.
Lennium Group Pty Ltd v Brisbane City Council &
Ors [2019] QPEC 17
PLANNING AND ENVIRONMENT - APPEAL - where the
appellant seeks approval for a three-storey unit complex with 30
units on part of the Yeronga Bowls Club - where the land is in the
Sport and recreation zone - where the land is protected as a local
heritage place - where the Council refused the development
application - whether the impact of the proposed development on the
cultural heritage significance of Yeronga Bowls Club is acceptable
- whether the land is still required for sport and recreation uses
or community facilities - whether the proposed development will
have an unacceptable storm water impact - whether there are grounds
that justify approval of the development application despite
conflict with City Plan 2014.
Victoria
Primrose Meadows Pty Ltd v River View Pty Ltd
[2019] VSC 263
LEASES AND TENANCIES - Retail leases - Renewal of
lease upon exercise of option by tenant - Landlord bound to grant
and tenant bound to take lease upon terms stipulated in lease -
Lease in equity arises upon tenant exercising option to renew even
where rent to be applied for further term has not been agreed or
determined - Tenant entitled to option to renew – No evidence
of evidence of any notice of default - Todburn Pty Ltd v
Taormina International Pty Ltd (1990) 5 BPR 11,173 -
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd
(1982) 149 CLR 600 - Retail Leases Act 2003, s 27.
AGENCY - Where agent authorised both to negotiate agreement and to
enter agreement – Berkely Pty Ltd v Millbrook Finance Pty
Ltd [2018] VSC 213 - Crabtree-Vickers Pty Ltd v Australian
Direct Mail Advertising & Addressing Company Pty Ltd
[1975] HCA 49; (1975) 133 CLR 72 - Where there is no disposition of
interest in land there is no requirement that the agent be
authorised in writing – Instruments Act 1958, s
126(1).
EVIDENCE - Failure to call witness - Rule in Jones v
Dunkel [1959] HCA 8; (1959) 101 CLR 298 - Does not apply
against a defendant until the plaintiff has proved a case for the
defendant to answer - Does not require a party to give cumulative
evidence – Tenth Vandy v Natwest Markets Australia
[2012] VSCA 103; (2012) VConvR 64,366 - Does not directly apply to
Victorian Civil and Administrative Tribunal proceedings - Maund
v Racing Victoria Ltd [2016] VSCA 132 - Victorian Civil and
Administrative Tribunal not compelled to apply rule - Manly
Council v Byrne [2004] NSWCA 123 - Rule only applies where the
missing witness would be expected to be called by one party rather
than another - Payne v Parker [1976] 1 NSWLR 191 - An
adverse inference may only be drawn where failure to call witness
is not satisfactorily explained - Cadwallader v Bajco Pty
Ltd [2002] NSWCA 328.
Leung v Harris (Building and Property)
[2019] VCAT 608
Victorian Civil and Administrative Tribunal Act
1998 - s.109 - order for costs - claim under the Water Act
1995 - s.16 - unreasonable flow of water - damages awarded in
favour of the Applicant but claim for declaratory and injunctive
relief refused - Applicant seeking an order for costs - relevant
factors - order for costs on standard basis.
Wusty Holdings Pty Ltd v Moreland CC
[2019] VCAT 551
Section 79 of the Planning and Environment Act
1987, Subsequent refusal position, Five dwellings, Residential
Growth Zone, Design and Development Overlay - Schedule 24, Setbacks
and landscaping opportunities, Equitable development potential.
Williams Point Pty Ltd v Hobsons Bay CC
[2019] VCAT 591
Section 80 of the Planning & Environment Act
1987; Hobsons Bay Planning Scheme; Industrial 3 Zone -
Subdivision: impact of additional crossovers on bicycle
network.
New South Wales
Le Bron v Chidiac [2019] NSWLEC
1194
TREES (DISPUTES BETWEEN NEIGHBOURS): risk of injury -
damage to fence and pool cover - tree was there first.
Darr v Keating [2019] NSWLEC
1196
TREES (DISPUTES BETWEEN NEIGHBOURS) - damage or injury -
damage to fence - debris - fire - termites - orders for fence
repair - owner of the land includes the occupier of the land.
Equity Land Holdings Pty Ltd v Inner West
Council [2019] NSWLEC 1157
DEVELOPMENT APPLICATION: conciliation conference -
agreement of the parties - mixed use development - exceedance of
height of buildings and floor space ratio development standards -
orders.
Burbridge v Gounakis [2019]
NSWLEC 1202
TREES (DISPUTES BETWEEN NEIGHBOURS) - falling limbs - risk
of damage and injury – change in circumstance since previous
decision - root damage - respondents not aware of damage prior to
application - orders for tree removal - no orders for
compensation.
Limousin No.1 Estate Pty Ltd v Liverpool City
Council [2019] NSWLEC 1192
DEVELOPMENT APPEAL: against refusal of subdivision - site
contamination - certainty of remediation - agreement between the
parties.
Council of the City of Sydney v Vision Land Glebe Pty
Ltd [2019] NSWLEC 60
APPEAL - appeal against Commissioner's decision on
questions of law - concept development application - demolition of
existing building and approval of envelope of replacement building
- issue of whether existing building of heritage significance -
Commissioner found building not to be of heritage significance -
Commissioner preferred one witness over another - Commissioner
found adaptive reuse not economically viable - Commissioner
accepted only witness as not contradicted - adequacy of reasons for
findings - alleged irrationality of findings - whether denial of
procedural fairness in making findings - delay in judgment -
whether delay affected findings.
Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd; TWT
Property Group Pty Limited v Cenric Group Pty Limited
[2019] NSWCA 87
APPEAL - contract - where parties entered into various
contractual arrangements to undertake excavation works including
harvesting natural sandstone - whether the primary judge erred in
finding the parties formed a concluded agreement to vary the terms
of the head contract and the sub-contract - where credit findings
are challenged - importance of establishing a Fox v Percy
type error.
APPEAL - contract - whether the primary judge erred in finding the
cross-appellant's show cause notice and termination of the head
contract were invalid - effect of variation of the head contract -
whether the primary judge erred in finding a breach of an implied
term of good faith and reasonableness.
APPEAL - contract - where parties entitled to share in royalties
from sale of sandstone – whether the primary judge's
construction of the term capping the contractor's share of the
royalties was wrong. Environmental Planning and Assessment Act
1979 (NSW), s 96.
Huang v Ku-ring-gai Council
[2019] NSWLEC 1186
DEVELOPMENT APPLICATION: conciliation conference -
agreement between the parties - modification of consent -
orders.
FLDC Architects v City of Canada Bay
Council [2019] NSWLEC 1188
DEVELOPMENT APPLICATION: child care facility - visual
impact - over-development.
Feletti v Eales [2019] NSWCATAP
100
APPEAL - strata scheme - noise transmission - compliance
by tenant with by-laws - objective test - whether function
conferred or imposed by legislation or by-laws - whether error of
law.
Hu v Kim [2019] NSWSC
448
COSTS - Party/Party - General rule that costs follow the
event - Application of the rule and discretion - Defendants conduct
of proceedings unreasonable notwithstanding settlement at
hearing.
GUARANTEE AND INDEMNITY - Indemnities - Construction - Whether
liability "as a result of" specified contract -
proceedings between Mr Morton and Lane Cove Council were resolved
by the NSW Land and Environment Court making orders pursuant to
what was referred to as a "Section 34 Agreement".
Legislation
Victoria
Owners Corporations and Other Acts Amendment Bill –
Exposure Draft
The Bill represents an opportunity to update and modernise
the Owners Corporations Act 2006, which has not been
substantially reformed since it commenced in 2007.
New South Wales
Regulations and other miscellaneous
instruments
Electoral Funding (Adjustable Amounts) Amendment (Public
Funding) Notice 2019 (2019-177) - published LW 26
April 2019.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
