Australia: Planning & Environment News – 3 October 2018

Last Updated: 5 October 2018
Article by Joseph Monaghan, Breellen Warry, Peter Holt, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, June 2019

In the media

PIA wins federal parliamentary support for National Settlement Strategy
The Planning Institute of Australia (PIA) has strongly endorsed a federal parliamentary inquiry's call for the development of a national plan of settlement to help guide the growth of Australia's cities and regions (18 September 2018). More...

ClimateWorks: Tracking Progress to Net Zero Emissions report
The ClimateWorks' report does find that the building sector has the potential to reach 69 per cent below 2005 levels by 2030 if it pursues a net zero pathway. Alongside efficiency and clean electricity technologies, stronger standards for buildings and appliances are expected to drive the majority of emissions improvements (17 September 2018). More...

GBCA: Aussie big business signs up to Net Zero Carbon Commitment
Australia's position as a green building world-leader looks set to continue with a raft of leading companies signing up to the World Green Building Council's (WorldGBC) Net Zero Carbon Buildings Commitment being announced in San Francisco (14 September 2018). More...

Australian property companies top the GRESB table again in 2018
For the eighth successive year, the Australia and New Zealand real estate sector has outperformed other regions in the world's sustainability benchmark, the Global ESG Benchmark for real estate assets (GRESB). Australia and New Zealand achieved an average GRESB Score of 76 and outperformed the global average of 68 (12 September 2018). More...

New guide does hard work on energy costs and emissions for Australian property industry
Australian property owners – from residential to large-scale commercial – can immediately cut their energy costs and reduce their emissions thanks to a timely new guide from the Clean Energy Finance Corporation and the Property Council of Australia (12 September 2018). More...


Andrews pledges $230m for Cats' stadium as Guy drops plan to scrap grand final holiday
The Victorian Premier promises Geelong's home of AFL will get a new 14,000-seat grandstand, and the city's performing arts centre will be upgraded, if Labor wins November's state election (21 September 2018). More...

Slashing red tape to boost local businesses and create jobs
More than 250 new initiatives have been put in place to reduce Victoria's gross regulatory burden by 25 per cent. These include streamlining the way Councils require, access and collect developer contributions to pay for infrastructure; making retail leases fairer and easier to understand; making it easier for businesses to set up events and festivals and allowing people to take away unfinished open bottles of liquor from licenced venues (14 September 2018). More...

New South Wales

Over 100 actions taken by new water regulator
The Natural Resources Access Regulator (NRAR) took 109 compliance actions, with four progressing to prosecutions under the Water Management Act 2000. Eight landholders were also required to remediate the areas they disturbed (19 September 2018). More...

City of Sydney targets net zero carbon buildings by 2050
Sydney has partnered with more than 100 other cities from around the world in committing to strong action on climate change (19 September 2018). More...

Greater Newcastle Metropolitan Plan unveiled
Minister for Planning and Housing, Anthony Roberts, has announced a new period of investment and growth for Greater Newcastle following the launch of the city's first-ever metropolitan plan (17 September 2018). More...

Commission to lead new koala research on north coast state forests
As a part of the NSW Koala Strategy, the Commission will lead new independent research on how koalas respond to native forests (13 September 2018). More...

Fresh new look for Sydney's Martin Place
Better access to public transport, upgraded public spaces and new commercial buildings will be part of the Martin Place station redevelopment (12 September 2018). More...

Heritage protections to save historic Kings Cross
In a bid to protect Sydney's iconic Kings Cross, the City of Sydney has released new planning controls for Australia's red light capital (12 September 2018). More...

New development precinct Marsden Park North to thrive under new masterplan
Marsden Park North, a new development precinct for Sydney's North West, will become a thriving new community under a NSW Government Masterplan (10 September 2018). More...


Gold Coast council asks court to reject a development it approved
A Queensland council has recommended a court refuse a planning application its own councillors signed off on (21 September 2018). More...

Planning for growth sees change in legislation
The Palaszczuk Government has introduced legislation to modernise economic development and planning legislation in Queensland and support job creation. Repealing outdated legislation will mean certainty for landowners that they are required to abide by zoning requirements set out in the Redlands City Plan (19 September 2018). More...

Queensland welcomes new Land Access Ombudsman
Landholders and resource companies have a new avenue to resolve disputes over conduct and compensation agreements and make good agreements with the appointment of Queensland's first Land Access Ombudsman (14 September 2018). More...

Investigation into claims Adani bores put 'sensitive one-million-year-old springs' at risk
The Queensland environment department launches an investigation into a series of groundwater bores drilled by Adani, which conservationists say were sunk without approval, contrary to the miner's claim it had permission for the works (12 September 2018). More...

In practice and courts

Announcements, Draft Policies and Plans released 2018

New South Wales

The New South Wales Critical Infrastructure Resilience Strategy 2018
The Strategy commits to delivering: more resilient critical infrastructure to reduce service disruptions; better emergency management arrangements; stronger relationships between government, business and communities; planning for critical infrastructure that prioritises resilience, adaptation and mitigation investment. For more about the Resilient Sydney strategy, click here (14 September 2018). More...

New dates for Environmental Planning & Assessment Act updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans.

New South Wales water metering framework consultation
The NSW Government is committed to implementing a robust new metering framework to measure and meter water take in NSW. The new framework is a commitment under the NSW Government's Water Reform Action Plan. You are invited to comment on the policy and draft regulation by 30 September 2018. The regulation will commence on 1 December 2018


Gazetted: Notice of a Major Amendment to Brisbane City Plan 2014 made under the Sustainable Planning Act 2009
Brisbane City Council has adopted amendments to Brisbane City Plan 2014 to include the Ferny Grove—Upper Kedron neighbourhood plan together with necessary consequential amendments. The amendments apply to parts of the suburbs of Upper Kedron, and commenced on 21 September 2018. The amendments can be accessed by searching for 'Ferny Grove-Upper Kedron neighbourhood plan' here.

EHP Prosecutions: $250,000 fine for Dianne Mining for evading environmental responsibilities
The Cairns Magistrates Court issued a $250,000 fine to the company—as well a $50,000 fine to an executive officer—for actions which posed a very serious risk of harm to the environment. More...

Revised contaminated land auditor handbook released
In consultation with the Australian Contaminated Land Consultants Association, a revised version of the Queensland auditor handbook for contaminated land is now available. The handbook is an important resource for people who are, or want to become, auditors for contaminated land in Queensland. It also provides information to those people who investigate and write contaminated land investigation documents as well as providing the community with details about how contaminated land is regulated (12 September 2018).

PCA: Combustible Cladding Safe Buildings website
The 'Safer Buildings' website will be the portal through which building owners register and begin the new statutory three stage process, aimed at identifying buildings in Queensland that may have potentially combustible cladding. Details ore outlined here.

Department of Environment and Science: Current prosecutions
Prosecution bulletin no 12/2018



Aquadonis Pty Ltd v Kingston CC (Red Dot) [2018] VCAT 1407
NATURE OF CASE - Application under section 79 of the Planning and Environment Act 1987 - whether CHMP required - whether application should be dismissed in accordance with the reasoning in Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - LAW – Issue of interpretation or application. The Tribunal has jurisdiction to determine a section 79 application if the requirement to prepare a CHMP arises after the date the application is made.

New South Wales

Cole v Pilowsky [2018] NSWLEC 1495
TREES (DISPUTES BETWEEN NEIGHBOURS) – Hedges – obstruction of sunlight – consent orders – one tree not situated on adjoining land – one of respondents' two trees removed – no jurisdiction for orders

Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145
ENVIRONMENTAL OFFENCES – Defendants charged under s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – offence of carrying out development without a construction certificate where a construction certificate was required – alternative charge of aiding, abetting or procuring carrying out of offence – whether alternative charge available.
CRIMINAL LAW – Hearing on separate questions before matters proceed to trial – whether proceedings brought out of time – when evidence of the offence was brought to the attention of an investigations officer – whether Land and Environment Court has power to hear proceedings brought in relation to accessorial liability pursuant to common law principles.

Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning [2018] NSWLEC 151
JUDICIAL REVIEW - Application for extension of time to commence proceedings - arguable case established - adequate explanation for delay - balancing interests warrants granting extension - extension granted.

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
ENVIRONMENT AND PLANNING – Consent – conditions – construction – condition required development to be carried out substantially in accordance with a statement of environmental effects – whether statement imposed a limit on the maximum daily production of a plant. ENVIRONMENT AND PLANNING – Offences – prosecutions – practice and procedure – charges laid for breach of conditions imposing maximum daily limits on plant operations without specifying particular day – whether charges bad for duplicity.

Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149
JUDICIAL REVIEW - Requests for statements of reasons - document provided by Council not a statement of reasons - document provided by Department not a statement of reasons of the Minister's Delegate - documents rejected.
JUDICIAL REVIEW - Making of amendment of local environmental plan - provision of zoning map with application for gateway determination - complaint no zoning map provided - indicative layout plan provided - held plan provided sufficient detail to satisfy statutory provision - if plan did not do so, failure did not vitiate process for seeking of gateway determination - Ground 1 rejected.
JUDICIAL REVIEW - Allegation of defective air quality report as part of public consultation process - ground seeks impermissible factual review of report's conclusion - report's conclusion not manifestly unreasonable - Ground 2 rejected.
JUDICIAL REVIEW - Failure of Council to consider report lodged concerning desirable curtilage of items listed as local heritage items in LEP - holding out that report would be considered - circumstances of holding out limited - circumstances not satisfied - unnecessary to consider if power to waive requirement for timings of lodgement of submissions - community consultation process did not fail as a consequence of non-consideration of report - Ground 3 rejected.
JUDICIAL REVIEW - Alleged failure to consider likelihood of state heritage listing of expanded curtilage - no basis to believe OEH would have advised expanded curtilage being considered - statutory heritage listing process not commenced prior to making of LEP amendment - expanded curtilage not necessarily in conflict with rezoning - three separate reasons to reject Ground 4 - Ground 4 rejected.
COSTS - Multiple respondents - potential for public interest challenge argument available to Applicant - costs reserved.

Johnston v Wollongong City Council [2018] NSWLEC 1331
APPEAL – Development application – dwelling on headland – coastal processes – precedent – visual impact of the development on a prominent headland.

Soligo v Fairfield City Council [2018] NSWLEC 1484
DEVELOPMENT APPLICATION – Subdivision – non-compliance with LEP standard, whether cl 4.6 of FLEP is satisfied.

Wilson v MidCoast Council [2018] NSWLEC 1489
APPEAL - Modified development consent granted for a service station and convenience store - appeal against the terms of a condition of consent requiring a levy contribution under s 94 - whether the formula used to calculate the monetary contribution for a petrol station and convenience store should include a discount for passing trade trips - whether there is power to modify the terms of the condition - whether the condition is unreasonable in the particular circumstances of the case.

McEwan v Port Stephens Council [2018] NSWCATAP 211
APPEAL – ADMINISTRATIVE LAW – Access to objections to development application – balancing of interests for and against disclosure where information sought is open access information – public interest considerations against disclosure – application of appeal right where part of reasons not disclosed to appellant – adequacy of reasons – need to address material evidence against existence of factor relied upon to refuse disclosure.

Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143
SEPARATE QUESTION - Whether proposed development is permissible with consent or is prohibited – applicable principles of construction of an environmental planning instrument – meaning of "geotechnical hazard" and "natural hazard" – whether the term "geotechnical hazard" is a "like description" for "natural hazard" – held it is not – development permissible with consent.

Charitable Islamic Association of Beirut City Incorporated v The Owners Strata Plan No 75506 [2018] NSWCATAP 207
APPEAL – Whether Tribunal below erred in the exercise of its discretion to refuse an adjournment application made at the commencement of the hearing below – no error of the exercise of discretion established.

Castle 78 Pty Ltd (ABN 57 606 424 720) v Liverpool City Council [2018] NSWLEC 1476
DEVELOPMENT APPLICATION - Conciliation conference - agreement between the parties - orders.


Albion Mill FCP Pty Ltd & Anor v FKP Commercial Developments Pty Ltd [2018] QCA 229
CONTRACTS – VENDOR AND PURCHASER – DISCLOSURE OF MATERIAL FACTS – Where the respondent entered into a contract with the appellant in July 2015 for the sale of a development site – where three of the lots comprising part of the development site were contaminated and included in the environmental management register – where the former s 421 Environmental Protection Act 1994 (Qld) required a vendor of contaminated land recorded in the environmental management register to give written notice to a potential purchaser of the particulars of the land recorded in the register and details of any site management plans prior to any agreement for disposal of the land – where the appellant attempted to rescind the contract in reliance upon s 421(3) Environmental Protection Act 1994 (Qld) – where the employee of the related company who was granted access to the data room was the sole director of the appellant – where the learned trial judge was satisfied that notice under s 421 Environmental Protection Act 1994 (Qld) had been given to the appellant by the respondent – whether written notice had been given to the appellant by the respondent as required by s 421(2) Environmental Protection Act 1994 (Qld), such that the appellant was not entitled to rescind the contract under s 421(3) Environmental Protection Act 1994 (Qld).

Waterman v Logan City Council [2018] QPEC 44
PLANNING AND ENVIRONMENT COURT – APPLICATION – Where in the substantive proceedings the Appellants are challenging a decision by the Council to grant preliminary approvals only with respect to the Appellants' development application – where in those proceedings the Appellants are also challenging conditions of the preliminary approvals – where orders of this court have previously identified the issues in dispute by reference to the Notice of Appeal and the Co-Respondent by Election's issues in dispute – where the disputed issues refer to the Council's decision to grant preliminary approval only and to some conditions – where Council now seeks to contend that the development application should be refused – whether the Planning and Environment Court has jurisdiction to hear Council's issues – whether the Court should, in the exercise of its discretion, permit the Council to expand the issues in dispute.

Beauchamp v Brisbane City Council [2018] QPEC 43
PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of proposed partial demolition of pre 1947 dwelling house – whether proposed partial demolition would result in loss of integral component, whether development would result in a narrow building with a width-to-height proportion out of character – whether development would diminish traditional building form – whether development would result in a loss of traditional building character – whether compliance with relevant overall outcomes.

Bunnings Group Ltd v Sunshine Coast Regional Council & Ors [2018] QPEC 42
PLANNING AND ENVIRONMENT – APPEAL – Appeals against refusals – refusals of development applications for a material change of use of premises to establish a Bunnings Warehouse.
CONFLICT – Conflict with the superseded planning scheme – whether proposed developments conflict with the superseded planning scheme.
PLANNING NEED – Whether there is a need for a Bunnings Warehouse at Coolum Beach.
GROUNDS – Whether there are sufficient grounds to justify an approval of a Bunnings Warehouse on the land despite the conflicts.

Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41
PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of a proposed partial demolition of a pre-1946 dwelling house – whether the partial demolition results in the loss of integral components which contribute to streetscape character – whether the proposed partial demolition diminishes traditional building form – whether the partial demolition will result in loss of traditional building character – whether the partial demolition reduces the building's positive contribution to the visual character of the street – whether the development ought be approved having regard to relevant matters.


Airports Amendment Bill 2018
Finally passed both Houses 12 September 2018.
Amends the Airports Act 1996 to: implement a differential master plan submission cycle for federal leased airports (excluding Mount Isa and Tennant Creek); mandate the inclusion of an Australian Noise Exposure Forecast in each new master plan; increase the monetary trigger for major development plans (MDPs) from $20 million to $35 million and enable the minister to review and revise the monetary trigger every three years; specify a 15 business day statutory timeframe within which the minister must consider applications from airport-lessee companies for reduced consultation periods for MDPs.

New South Wales

Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Bill 2018
Marine Parks Amendment (Moratorium) Bill 2018

Bill passed by both Houses of Parliament – 21 September 2018
Strata Schemes Management Amendment (Building Defects Scheme) Bill 2018

For the full text of Bills, and details on the passage of Bills, see here.



Economic Development and Other Legislation Amendment Bill 2018
Introduced on 19/09/2018 Referred to Committee on 19/09/2018
Part 3 Amendment of Building Act 1975
Amendment of s 83 (General restrictions on granting building development approval); Part 20 Transitional provision for Economic Development and Other Legislation Amendment Act 2018; 346 Existing building development applications.
Part 4 Amendment of Building Queensland Act 2015
Amendment of s 14 (Preparation of business cases for infrastructure proposals); Amendment of s 15 (Preparation of infrastructure pipeline document.

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.

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