Australia: Planning & Environment News – 25 July 2018

Last Updated: 26 July 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, June 2019

In the media

Co-working spaces are part of the new economy, so town planners better get with the times
Cities are seeing a growing number of shared working, or co-working, spaces. They include spaces where individuals and businesses can flexibly rent desks or rooms, or do shared work in "third spaces" such as libraries and cafes (11 July 2018). More...

Australia falls further in rankings on progress towards UN Sustainable Development Goals
Australia is performing worse than most other advanced countries in achieving the Sustainable Development Goals (SDGs), according to the global SDG Index, which compares different nations' performance on the goals (11 July 2018). More...

National Energy Guarantee (NEG) means 4% target for electricity emissions
The Australia Institute Climate & Energy Program has released the latest National Energy Emissions Audit electricity update (The Audit) for July 2018. The Audit shows current policies will reduce National Electricity Market (NEM) emissions to 22% below 2005 levels in 2019-20, effectively meaning electricity sector has an emissions reduction target of only 4% to 2030 (06 July 2018). More...

New guidance on Native title, legal right and eligible interest-holder consent
The Clean Energy Regulator has developed guidance exploring how the Native Title Act 1993interacts with requirements of the Emissions Reduction Fund (ERF), including obtaining legal right and consents from all eligible interest-holders to undertake a project (06 July 2018). More...

Aon warns about PFAS chemicals
Aon has warned property sellers, developers and construction companies to do due diligence on properties to ensure they haven't been contaminated by per-and poly-fluoroalkyl substances, known as PFAS chemicals (02 July 2018). More...


Community energy powers up in Ballarat
The $900,000 Community Power Hubs program, run by Sustainability Victoria, is being trialled for two years in the Ballarat, Bendigo and Latrobe regions. It is helping communities make the transition to community-owned renewable energy systems (11 July 2018). More...

'We must get people out of cars': Coalition to extend train line in Melbourne's south-east
Residents in Melbourne's booming outer south-eastern suburbs are promised new train stations by the Victorian Opposition to help ease peak hour traffic, as the Government's plan to expand the congested Monash Freeway to ten lanes is given the go-ahead (11 July 2018). More...

Minister rejects compulsory acquisition at Marong
A planning scheme amendment in Bendigo that would have seen farmland compulsorily acquired for the development of the Marong Business Park has been rejected by the Minister for Planning Richard Wynne (11 July 2018). More...

Melbourne Airport plans 'huge redevelopment' to cope with passenger boom
Melbourne Airport is set for a major overhaul, including a new domestic terminal and a major refit of international facilities, as it prepares for the number of annual passengers to reach 68 million within the next two decades (09 July 2018). More...

Luxury St Kilda tower takes car parking to new heights
Melbourne-based developer Growland has unveiled plans for its new high-end residential tower featuring Australia's first "sky garage" (09 July 2018). More...

New South Wales

New planning codes to provide more housing choice and greener streets
Homeowners in new release and established areas across NSW will save up to $15,000 in building and administrative costs, under the new Greenfield Housing Code and Low Rise Medium Density Housing Code which both commenced on July 6 2018 (06 July 2018). More...

NSW faces court challenge as Australia tops global charts in natural vandalism
NSW is fast catching up to Queensland for land clearing, having wiped out 90 per cent of koala habitat on private land. This woeful track record has helped Australia become one of the most destructive land clearing countries on the planet, second in the world for biodiversity loss, and in the top 10 globally for emissions from forest clearing (05 July 2018). More...


QFES continues to target illegal and unsafe budget accommodation
Fire safety remains a priority for Queensland Fire and Emergency Services (QFES), as inspectors continue to identify illegal and unsafe budget accommodation buildings (14 July 2018). More...

Mackay innovator takes solar to the mines
An energy and mining specialist based at Paget in Mackay has developed a fully self-contained "EcoHabitat" living unit generating its own electricity through solar power (13 July 2018). More...

Commitment needed to protect prime agricultural land
The inability of the current, overly complicated planning framework to properly protect the state's small amount of truly prime agricultural land (about 3 per cent) has been raised by the Queensland Farmers' Federation (QFF) (04 July 2018). More...

In practice and courts


Building regulations for garden area and siting requirements
The Building Amendment (Garden Area and Siting Requirements) Regulations 2018 were made by the Governor in Council on 10 July 2018. The Regulations insert a new regulation 76A into the Building Regulations 2018. Regulation 76A requires the consideration of a minimum garden area for the construction of a single dwelling in the Neighbourhood Residential Zone and General Residential Zone. This is a mandatory requirement that cannot be varied by a report and consent (12 July 2018). More...

Infrastructure contributions plan public land contribution model
The Planning and Environment Amendment (Public Land Contributions) Act 2018 came into effect on 2 July 2018, and introduces a land contribution model for the Infrastructure Contributions Plan (ICP) system. The land contribution model enables land for public purposes to be provided as part of an infrastructure contribution when land is developed. This replaces the monetary public land component of the standard levy (02 July 2018). More...

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 close 17 August 2018. More...

NSW Low Rise Medium Density Housing Code
The new Code allows one and two storey dual occupancies, manor houses and terraces to be built under fast-track complying development approval across NSW and also promotes good design for medium density housing. The Medium Density Housing Code commenced on 6 July 2018.

Greenfield Housing Code
The changes started on 6 July 2018, and the new Code will be included in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In essence, it is a simplifying of the development process and aligning the requirements for development across greenfield areas. The planning rules and the code are also presented in plain English for clearer explanation. Note: There will be a three-year transitional period, where applicants can choose whether to use the Greenfield Code, or the new simplified Housing Code or Transitional Code (until 13 July 2019). More...

Housekeeping Amendment to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP)
The proposed housekeeping amendment will simplify and improve the policy, clarify definitions and standards, and address other minor technical matters raised by stakeholders. Submissions closed on 18 July 2018. More...


Department of Environment and Heritage Publications
Prosecution bulletin no 8/2018 – recent cases for July 2018


Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011
ENVIRONMENT LAW – application for declaration that a decision of the Minister for the Environment that an action referred to him pursuant to s 69 of the Environment Protection and Biodiversity Conservation Act 1999(Cth) was invalid – Minister determined that the proposed action was not a controlled action if carried out in accordance with specified manner provisions – declaration sought by a company that had proposed to take the relevant "action" – whether relief should be refused assuming invalidity – applicants resiling from seeking to prove that "action" had or would have a significant impact on matters of national environmental significance – principles applying to discretion to grant relief – delay – alternative relief – acquiescence – effect on other parties having ordered their affairs in reliance on the decision – application dismissed


Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360
VALUATION AND COMPENSATION — Amendment to the Melton Planning Scheme — Imposition of Public Acquisition Overlay for Western Grasslands Reserves — Compensation for planning 'blight' - Land-owner died without making a compensation claim - Executors of the estate propose to sell the land and distribute the proceeds to beneficiaries — Executors seek declaratory relief that they are not ineligible to claim compensation for financial loss suffered as a natural, direct and reasonable consequence of the reservation upon on a sale of the land —Availability of declaratory relief — Whether executors are 'owners' of the land affected by the reservation for the purposes of s 98(1) of the Planning and Environment Act 1987— Halwood Corporation Ltd v Roads Corporation[1998] 2 VR 439 and Halwood Corporation Ltd v Roads Corporation [1995] 89 LGERA 280 followed — Planning and Environment Act 1987ss 98, 99(b), 101, 106 and 108.

Mostafa v Moreland CC [2018] VCAT 1037
Application to review a refusal to grant a permit — Section 77 of the Planning and Environment Act 1987— Moreland Planning Scheme — Brunswick Activity Centre — Proposal to provide no resident car parking in a mixed-use building with nine apartments — Car parking reduction considered — Internal amenity of apartments considered — Adequacy of light wells and internal air circulation in response to policy guidance considered — No permit.

Hao Yang Australia Pty Ltd v Mornington Penininsula SC [2018] VCAT 1028
Mornington Peninsula Planning Scheme, Section 77 Planning and Environment Act 1987, hot springs, landscape character, Green Wedge Zone – Schedule 4, Environmental Significance Overlay – schedule 15, Environmental Significance Overlay – Schedule 23, Bushfire Management Overlay, "the cups" landscape, visual impact, intensity of use, native vegetation removal, road access, car parking, civil works, need for additional approval, cultural heritage management plan.

Chapman v City of Greater Bendigo [2018] VSC 358
PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Principles underlying r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015applied – Whether proposed amended statement of claim discloses a cause of action – Defects of form – Leave to file the amended statement of claim refused.
NEGLIGENCE – Plaintiff claims her local council owed her a duty to acquire her land for a public purpose and had failed to do so, causing her loss – Whether the claimed duty inconsistent with the defendant's statutory duties – Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364; (2014) 89 NSWLR 1 considered – Whether this question should be determined at trial – Held no because pleaded facts show the claimed duty not arguable.
BREACH OF STATUTORY DUTY – Plaintiff claims local council breached a duty to her imposed by s 197 of the Planning and Environment Act 1987 (Vic) to promptly acquire her land – Breach of this claimed statutory duty depends on duty to acquire being established – Not arguable on the pleaded facts that there was such a duty – Accordingly no cause of action for breach of statutory duty is disclosed.

New South Wales

Parker Logan Property Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1336
DEVELOPMENT APPLICATION: Residential flat building – SEPP affordable rental housing – view loss.

Chulatunga v Randwick City Council [2018] NSWLEC 1348
DEVELOPMENT APPLICATION: carport – parking at front of dwelling – streetscape – neighbourhood character – visual amenity – structural design – site frontage – on property parking – landscaping – visual domination.

Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339
APPEAL: development application – mixed used development with boarding house – part of land marked for future acquisition – breach of height and FSR standards – whether cl 4.6 inconsistent with cl 29(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 – calculation of FSR – whether cl 4.6 requests should be allowed – amenity of boarding rooms – compatibility – whether condition of consent requiring subdivision should be imposed.

Abou-Anton v City of Ryde Council [2018] NSWLEC 1334
APPEALS: building information certificates – unauthorised works to dwelling house – dwelling not built in accordance with complying development certificate – nominal development application assessment required – amenity impacts – view loss – overheight fence – requirement for stormwater easement.

So Nash Pty Limited v Inner West Council [2018] NSWLEC 1327
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.

Karimbla Properties (No.56) Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1301
DEVELOPMENT APPLICATION: Green Square - Concept development application – Floor space bonus – design quality.

M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101
PRACTICE AND PROCEDURE – notice of motion – whether appropriate to hear issues raised as separate questions – where similar submissions would be made in hearing of another notice of motion in any event.
STATUTORY INTERPRETATION – whether amendments to the Environmental Planning and Assessment Act 1979 (NSW) have the effect of constituting a new statutory entity or continuing an existing entity – application of interpretive principles JOINDER – whether appropriate to join planning panel to Class 1 proceedings – where panel is the consent authority but decision is deemed to be made by Council – where panel has power to control and direct Council.
COSTS – costs sought in relation to conciliation conference – presumptive rule against costs in Class 1 proceedings – costs sought against non-party – where agreement reached in conciliation conference but planning panel exercised its power to control and direct Council.

Kelly v Randwick City Council [2018] NSWLEC 1322
DEVELOPMENT APPEAL: Two- lot strata subdivision of approved dual occupancy – interpretation of clause detailing minimum subdivision allotment size – whether a cl. 4.6 variation request is required.


Ko v Brisbane City Council [2018] QPEC 035
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of an application for a material change of use for Multiple dwelling in the LMR zone – whether development is located within easy walking distance of a public transport node – whether a decision to approve would conflict with City Plan 2014 – whether sufficient grounds to approve despite conflict.

Bowyer Group Pty Ltd v Cook Shire Council & Anor [2018] QCA 159
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – CONSENT AND IDENTITY OF OWNER – where the second respondent was granted development approval for a material change of use of land for an extractive industry – where the applicant, an owner of adjoining land, commenced an appeal against the decision to grant the approval in the Planning and Environment Court – where the applicant contended, as a preliminary issue, that the development application was not a properly made application as it was not accompanied by the consent of the holders of a Crown lease of the land – where the Planning and Environment Court found the application was properly made, being accompanied by the consent of the State as the owner of the land – consideration of the meaning of the word "owner" in the phrase "owner of the land the subject of an application" in s 263(1) of the Sustainable Planning Act 2009– whether the holders of a rolling term lease for pastoral purposes under the Land Act 1994are "owners" of the relevant land within the meaning of that provision.

Bilinga Beach Holdings P/L v Western Downs Regional Council & Anor [2018] QPEC 034
PLANNING AND ENVIRONMENT – APPEAL – applicant appeal against refusal – whether use characterised as Transport terminal – whether a decision to approve would conflict with a planning scheme – weight to be given to new planning scheme.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions