Australia: Planning & Environment News – 8 August 2018

Last Updated: 9 August 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, July 2019

In the media

New benchmark set for project transparency and accountability
New guidelines to drive greater transparency and accountability in infrastructure decision-making and reduce instances of major projects receiving funding before appropriate planning and assessment have been released by Infrastructure Australia (24 July 2018). More...

Good growth needs good planning
The call from outgoing Infrastructure Australia chief executive Philip Davies for more discipline on infrastructure planning needs to be heeded by all levels of government if Australia is to grow successfully (24 July 2018). More...

States and territories climate leadership declaration
Victorian Minister for Energy, Environment and Climate Change Lily D'Ambrosio, Queensland Deputy Premier Jackie Trad, South Australian Minister for Climate Change Ian Hunter and ACT Minister for Climate Change and Sustainability Shane Rattenbury signed a Climate Leadership Declaration which includes a commitment to help Australia meet its obligations under the Paris Agreement and to achieve net zero emissions in their jurisdictions by 2050 (16 July 2018). More...


Steel manufacturer and tram passengers to benefit from latest CEFC solar finance in Victoria
Clean Energy Finance Corporation (CEFC) finance for the Numurkah Solar Farm is supporting a path-breaking example of how solar energy can deliver a cost-effective solution for Victoria's energy-intensive manufacturers (27 July 2018). More...

Helping remove dangerous cladding and boosting pool safety
New Cladding Rectification Agreements (CRA) will be similar to existing Environmental Upgrade Agreements, which enable owners to upgrade their homes to make them more environmentally friendly and pay it off via their council rates. Also introduced, the Building Amendment (Registration of Trades and other matters) Bill 2018, which is the next step in better protecting children from the dangers of unprotected pools and spas (26 July 2018). More...

The inner west to have their say on air quality
The Andrews Labor Government is giving locals the opportunity to provide input into future improvements for air quality in the inner west, announcing the Inner West Air Quality Community Reference Group (26 July 2018). More...

Airport rail to take off under Labor government
A route options assessment undertaken by Transport for Victoria has shown that of the four routes considered, the Sunshine alignment – previously known as the Albion East alignment – is the Victorian Government's preferred route for this congestion-busting project (22 July 2018). More...

New South Wales

'Zombie blocks' to pull Sydney apartment prices even lower
Sydney's falling apartment prices look set to continue into the next decade, with leading economists and real estate analysts predicting ongoing construction and the rise of so-called zombie blocks will pull prices lower (26 July 2018). More...

Land clearing laws 'statutory theft' says latest NSW Farmers chief
The new president of NSW Farmers fires a warning at the State Government over land clearing issues (26 July 2018). More...

9 million more ways to save threatened species
The NSW Government has put $9 million on the table to deliver more local projects to save threatened species (26 July 2018). More...

Dial-A-Dump found guilty of failing to cover asbestos waste
The NSW Environment Protection Authority (EPA) welcomes the Blacktown Local Court's decision to convict and fine Dial-A-Dump (EC) Pty Ltd following the EPA's successful prosecution of the company for two charges of failing to cover asbestos waste at its Eastern Creek landfill (20 July 2018). More...

$3 million for contaminated land clean-up in NSW
The Environmental Trust has announced funding of up to $3 million over three years to assist eligible councils to investigate and remediate former legacy gaswork sites across NSW (17 July 2018). More...


Government releases The Spit vision statement
The State Government has released a final 'vision statement' for The Spit, as part of the ongoing master planning process. Over the next six months the Government will develop master plan concepts with a view to finalising a draft master plan for consultation in the first half of 2019 (27 July 2018). More...

Relief after a long-running 'nightmare' for Moreton Island property owners
A long-running dispute over service fee hikes for Moreton Island property owners is resolved in a new deal, set to rein in annual fees and fix future increases (20 July 2018). More...

Developers address demand for larger apartments on the Gold Coast
A changing tide in the design of residential dwellings is on the horizon as developers, seeing an increase in demand from the owner-occupier and growing downsizer space, respond with development applications for larger home-style apartments on the Gold Coast (17 July 2018). More...

In practice and courts

Reef 2050 long-term sustainability plan
Department of the Environment and Energy (Australia); Government of Australia: 20 July 2018
This updated reef plan, released by the Australian and Queensland governments, is the overarching framework for protecting and managing the Great Barrier Reef until 2050. More...


Managing the municipal and industrial landfill levy: Victorian Auditor-General
This audit provides an independent assessment of, and insights into, whether the landfill levy system is being managed transparently and is meeting its intended legislative objectives (25 July 2018). More...

Yarra C218 rezones 18-62 Trenerry Crescent, Abbotsford, and applies an Incorporated Plan Overlay and Environmental Audit Overlay to the site.
Yarra C219 rezones land at 112-124 and 126-142 Trenerry Crescent, Abbotsford, from Commercial 2 Zone to Mixed Use Zone.

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...


Queensland Government Publications released on 26 July 2018

Annual update of the State Infrastructure Plan (SIP)
The revised SIP program commits the Government to a total infrastructure investment of $11.6 billion in 2018-19, and $45.8 billion over the next four years. Program updates for 2018 include a $21.7 billion investment in transport and road infrastructure and upgrades for the Logan, Caboolture and Ipswich hospitals. The Government anticipates expending $733 million on the Cross River Rail project this financial year.Further information on the State Infrastructure Plan can be found here.

Building Queensland Infrastructure Pipeline Report
The report has confirmed that detailed business cases are being developed by the authority for the Brisbane Live and the Gold Coast Light Rail Stage 3A projects. Among the 19 unfunded proposals included in the Report are potential Gold Coast Rail Line capacity improvements from Kuraby to Beenleigh, and upgrades to the Bruce Highway from Pine River to Caboolture/Bribie Island Road and Steve Irwin Way to Caloundra Road Interchange. Building Queensland's Infrastructure Pipeline Report can be accessed here.

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 (July 2018). More...

Prosecutions Bulletin July 2018
Prosecution bulletin no 9/2018

Prosecutions finalised in July 2018
Bundaberg logger fined $2K for cutting down and selling trees from a national park
Agriculturalist fined $8K for undertaking dredging works on a sacred site in Atherton Tablelands
Commercial fishers fined over $12K for setting a mesh net in a conservation park zone
Beenleigh civil construction company fined $4K for clearing vegetation and constructing an artificial drainage channel



Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning (No 2) [2018] VSC 407
WILDLIFE – Authorisation to cull kangaroos – Protected wildlife – Whether the delegate of the Secretary is satisfied that an authorisation is necessary to support a recognised wildlife management plan – Meaning of 'necessary' and 'recognised' wildlife management plan – Panel recommendations – Jurisdictional fact – Whether decision to grant an authorisation is unreasonable, illogical or irrational – Wildlife Act 1975 (Vic) ss 1A, 28A(1)–(2), 28B, 28C, 28F, 43, 47.

Melbourne CC v Tymstock Pty Ltd [2018] VCAT 1178
Melbourne Planning Scheme – Capital City Zone, Schedule 5 – Application for declaration under section 149A that land is being used as a Function Centre – Real and substantial purpose of the use – Consideration of land use terms of Place of Assembly, Function Centre.

Planning and Design Pty Ltd v Maroondah CC [2018] VCAT 1159
Maroondah Planning Scheme – General Residential Zone – Schedule 1 (GRZ1) – Significant Landscape Overlay – Schedule 4 (SLO4) – Neighbourhood character – Landscape character – Side-by-side dwellings – Solar panels.

Alkero Development Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1120
NATURE OF CASE Section 87A amendment of permit where development is now prohibited.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE LAW – issue of interpretation or application.
Section 87A of the Planning and Environment Act 1987 – application to amend permit subsequent to amendment of planning scheme, which makes permitted development now prohibited – changes proposed considered to be a transformation of the permit, not an amendment – consideration of whether a development that is now prohibited can be amended even though proposed changes will still be prohibited – consideration of accrued right under the permit pursuant to section 28(2)(e) of the Interpretation of Legislation Act 1984.
PLANNING SCHEME – interpretation or consideration of VPP provision.
Significant Landscape Overlay Schedule (SLO1) Stonnington Planning Scheme – controls and policies applicable to the Yarra River corridor.

Shayher Properties Pty Ltd v Moreland CC [2018] VCAT 1094
Moreland Planning Scheme – Section 77 the Planning and Environment Act 1987 – former Pentridge Prison site – Permit already granted for a 19 storey tower – Incremental redevelopment of the former prison site – Development of a 19 storey tower containing hotel and apartments, Adaptive reuse of the B Division and B Division Annexe heritage buildings – Display of internally illuminated business identification signs – Part-oral decision at the end of the hearing; Interim decision.

New South Wales

Wilkie v Canterbury Bankstown Council [2018] NSWLEC 1381
DEVELOPMENT APPLICATION: Mixed use development – height – architectural roof feature.

Phillips v KC Enterprises (NSW) Pty Ltd t/as Love Realty [2018] NSWCATAP 181
APPEAL – Consumer claim – Breach of Managing agency agreement – Whether error in finding of no actual loss – whether error in finding failure to act with due care and skill not established.

Ritchie v The Hills Shire Council [2018] NSWLEC 1376
APPEAL – Development consent – dual occupancy under the State Environmental Planning Policy (Affordable Housing) 2009 (SEPP ARH) – location of site within "accessible area" as defined under cl 4 of the SEPP ARH.

Regent Land Pty Ltd ATF Regent Land Unit Trust v Georges River Council [2018] NSWLEC 1370
DEVELOPMENT APPLICATION – compliance with new high density controls for the Kogarah North Precinct – strategic intent of controls – planned density – height breach – clause 4.6 – site amalgamation requirement – site isolation – development if not amalgamated – precedent – objections.

Adam Hughes Pty Ltd v Penrith City Council [2018] NSWLEC 1369
DEVELOPMENT APPEAL – residential flat building – area in transition – urban design of the building – amenity of future residents – building height exceedance - desired future character – site isolation and orderly development –weighing of impact of site isolation in overall merit assessment – appeal upheld.

Donnellan v Armidale Regional Council [2018] NSWLEC 1372
APPEAL – development application – two-lot subdivision of land – weight to be given to DCP – lot layout and design – whether kerb and guttering required – whether consent would create an undesirable precedent.

Luna Park Sydney Pty Ltd v Minister for Planning [2018] NSWLEC 89
JUDICIAL REVIEW- staged development – distinction in question between consent for use of land and consent for works to enable that use – approvals encompassed only use of land – proceedings dismissed.

Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133
POSSESSION OF LAND – trespass – trespass to land – declaration sought that plaintiff has no right to enter, occupy, or remain on land – orders made – costs.

Lane Cove Council v The Owners – Strata Plan No 88649 [2018] NSWCATAP 171
HOME BUILDING CLAIM – defects and statutory warranties – no evidence or no reasonable basis for conclusion – failure to provide proper reasons – whether rectification work was a necessary and reasonable course to adopt – failure to provide procedural fairness.

Bardari Pty Ltd ATF the BHK Trust v Waverley Council [2018] NSWLEC 1363
DEVELOPMENT APPLICATION – Mixed use development – impact on neighbouring properties – heritage – height.

Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107
SUBPOENA – Application to set aside subpoenas to two companies on several grounds – whether they inappropriately rely on information obtained by the tainted use of a coercive investigation power – legitimate forensic purpose – abuse of process – ulterior purpose – other subsidiary objections.

Ardestani v Doss [2018] NSWSC 1084
EQUITY – Equitable remedies – Alleged oral arrangement under which plaintiffs provided funds to the defendants as contribution to the purchase price of real property and later its renovation – Defendants later sold property – Declarations sought on the basis of existence of express or resulting trust – Declarations alternatively sought that defendants bound by an estoppel or contract.


State of Queensland v Baker Superannuation Fund Pty Ltd & Anor; Aurizon Operations Limited v Baker Superannuation Fund Pty Ltd & Anor [2018] QCA 168
STATUTES – THE RAILWAY ACT 1864 (QLD) –INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – INJURIOUS AFFECTION – REFERENCE TO CONTEXT – where the first respondent owned land bordering a railway – where the railway was over a hundred years old – where culverts were constructed underneath the rail line to allow for the natural flow of water – where over time, an increased flow of water through the culverts caused significant erosion on the first respondent's land – where in 1884, the land for the railway was bought off the previous titleholder to the first respondent's land – where the appellants submitted at trial that the payment given for that land included an additional amount that was on account of injurious affection – where the learned primary judge observed that ss 46 and 94 of the Railway Act 1864 told against a conclusion that the compensation was to be considered for all time in respect of any damage or nuisance in the context of the construction of the culverts – whether the learned primary judge erred.
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – STATUTORY IMMUNITY – where the railway line was owned by the State of Queensland and Aurizon Operations Limited at various times – where both Aurizon and the State of Queensland contended that the terms of the legislation in force when the culverts were originally built in 1956 created statutory protection that inured for the benefit of each of them – where, despite the repeal of each Act over time, the preserving effect of the common law was subject to the Acts Shortening Act 1867 (Qld) and the Acts Interpretation Act 1954 (Qld) – whether the relevant provisions of the Railway Act 1864, the Railways Act 1914, the Transport Infrastructure (Railways) Act 1991 and the Transport Infrastructure Act 1994 created statutory immunity in respect of all damage caused by the rail line over one hundred years.
ENERGY AND RESOURCES – WATER – SURFACE WATER – RIGHTS OF PROPRIETORS OF ADJOINING LAND – IN GENERAL – where the railway line ceased to operate in 1993 and the tracks were removed in 2003 – where the rail line became instead a walking, cycling and horse-riding track – where, despite this, the respondent contended that the appellants had responsibility for the maintenance of the structures on the railway land during their period of ownership and that they had failed to remedy, abate or take steps to prevent the nuisance – where the learned primary judge found that the "mothballing" of the railway did not affect the liability of the appellants for damage caused by remaining structures on the railway land – where the erosion of the respondent's land was the result of increased water flow through the culverts under the railway line – where there was considerable land clearing uphill from the railway line, increasing the volume of water flowing through the culverts – whether the primary judge failed to consider whether the circumstances otherwise constituted a nuisance according to the Gartner v Kidman principles
TORTS – NUISANCE – DEFENCES – CAUSATION – where the appellants submitted that a combination of events had caused the erosion of Baker's land and thus the culverts could not be shown to be a material cause of the damage – where two possible causes of the erosion were identified, the first being that the flow of water had been concentrated by the installation of the culverts under the rail line and the second being that the water flow rate had been increased by altered conditions in the nearby catchment – where those altered conditions were a result of land clearing upstream – whether it was sufficient to establish that the alleged wrong was a cause of the harm without establishing that it was the only cause.


Instrument under section 270B of the Environment Protection and Biodiversity Conservation Act 1999 to make a Threat Abatement Plan
20/07/2018 - This plan provides the objectives and actions necessary to respond to the impact of marine debris on vertebrate marine life, and identifies the research, management and other actions needed to reduce the impacts of marine debris on affected species. More...

New South Wales

Regulations and other miscellaneous instruments
Community Housing Providers (Adoption of National Law) Regulation 2018 (2018-385) — published LW 20 July 2018

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