In the media - National
New project to ensure locals have their say on urban
planning
A new project will help locals to have their say when it
comes to urban development, allowing local councils to capture
online opinions from residents to improve decision-making. Federal
Minister for Urban Infrastructure and Cities Paul Fletcher said the
project aimed to increase community involvement in the planning and
evaluation of major projects in the cities (13 June 2018).
More...
Australia Post delivers on sustainability
Australia Post has launched its very first Environmental
Action Plan, committing it to reduce carbon emissions by 25 per
cent by 2020, and saving $10 million every year through
environmentally sustainable programs (07 June 2018).
More...
NABERS for Apartments is a "watershed moment"
for strata sustainability
NABERS for Apartment Buildings has gone live and is
expected to be a major shakeup for owners corporations, investors,
developers and builders. The new NABERS Co-assess and Waste tools
– will measure and score energy and water used in apartment
common property areas (07 June 2018).
More...
In the media - Victoria
Supreme Court backs EPA clean up notice on Sale
land
A Supreme Court ruling on contaminated land at an aged
care facility in Gippsland has confirmed EPA's power to require
the owners of property to take action on pollution that is on their
land (14 June 2018).
More...
Victorian builder is creating Australian-first energy
efficient housing development
A Victorian builder is designing and building Australian
homes greener and more energy efficient than ever before with a
landmark new project (14 June 2018).
More...
Construction Begins On Australia's Largest Wind
Farm
Construction has begun on the Stockyard Hill Wind Farm,
which will see Western Victoria become home to Australia's
biggest wind farm generating enough electricity to power more than
340,000 households (14 June 2018).
More...
Frasers gets green light for "world's most
sustainable shopping centre"
Frasers Property Australia's ambitious plan to create
the world's most sustainable shopping centre has received
planning approval from Melbourne's Whitehorse City Council (12
June 2018).
More...
In the media - New South Wales
NSW Budget 2018: Sustainability Bonds herald new era of
investment
The NSW Government will for the first time issue
sustainability bonds, the proceeds of which will fund projects that
deliver environmental and social benefits to the residents of NSW
(15 June 2018).
More...
NSW budget 2018: $23 million for water reform
The NSW Government is backing its pledge to build a
world-class regional water management and compliance regime with a
2018/19 Budget commitment of more than $23 million over the next
two years (08 June 2018).
More...
Short-term holiday letting plan a win-win
The Government's short-term holiday letting plan will
support the sharing economy and give consumers more choice while
cracking down on bad behaviour, Minister for Better Regulation Matt
Kean said. New state-wide planning rules would also come into force
(05 June 2018).
More...
Update on the Fire Safety and External Wall Cladding
Taskforce
In total, Fire Rescue NSW has visited, inspected and
assessed over 2280 sites identified through the initial audit, as
well as analysis of development approvals by the Department of
Planning and Environment, buildings identified by local councils,
and visual observations by Fire Rescue NSW officers (04 June 2018).
More...
Waste transporter ordered to pay $85,000 for lying about
waste disposal
The NSW Environment Protection Authority
(EPA) welcomed the Land and Environment
Court's decision to penalise a Kemps Creek based waste
transporter $40,000 for providing false information about waste
disposal (03 June 2018).
More...
In the media - Queensland
Tech trial gives Logan locals more say in urban
planning
Logan is one of two Australian cities that will trial new
technology that gives locals more say in shaping cities by allowing
councils to capture online opinions and improve decision making (13
June 2018).
More....
Brisbane council's ban on townhouses, apartments in
low density areas is 'backwards'
A Brisbane City Council plan to stop townhouses and
apartments being built in areas for single homes is "going
backwards" in terms of urban planning, experts say (08 June
2018).
More...
Billion-dollar wind farm approved in central
Queensland
A 195-turbine wind farm approved by the Queensland
Government will be one of the largest in Australia, and is
predicted to generate 3 per cent of the state's electricity
needs (06 June 2018).
More...
Industry responds to developer donation ban Bill
The Property Council has provided a submission in response
to the
Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018. The Bill seeks to give
effect to the Government's proposed ban on political donations
from property developers. This has been opposed by the Property
Council on the basis that it singles out the property sector for
inequitable treatment under electoral laws, and unduly brands
Queensland's biggest non-government employer as a corruption
risk (06 June 2018).
More...
Green light for $1 billion Central Queensland wind
farm
Queensland is hosting wind farms at a rate of knots, with
the Palaszczuk Government providing development approval for up to
195 wind turbines at Clarke Creek, 150 kilometres north west of
Rockhampton (05 June 2018).
More...
In Practice and Courts
Commonwealth
Climate change related risks and opportunities: a
toolbox for organisations
William P. Bell; Energy Economics and Management Group
(UQ), Centre for Policy Futures (UQ)
This presentation provides a toolbox of five tools for
organisations to start their climate change related strategy,
financial disclosure and risk management. The toolbox was presented
to the Governance and Risk Management Forum in Brisbane on the 8th
June 2018. More...
Announcements, Draft Policies and Plans released 2017
Victoria
Guidance on negotiating voluntary affordable housing
agreements under the Planning and Environment
Act
On 1 June 2018 several amendments to the Planning and
Environment Act 1987 (the Act) came into
operation. The amendments to the Act facilitates voluntary
agreements for the provision of affordable housing as part of
development applications. DELWP has released web-based guidance on
negotiating voluntary affordable housing agreements under the Act
(11 June 2018).
More...
City of Melbourne discussion paper
Feedback on the discussion paper is part of consultation
on the Draft Waste and Resource Recovery Strategy 2030. The
community can submit opinions, ideas and feedback via City of
Melbourne's Waste and Resource Recovery Strategy
website (05 June 2018).
Red Dot Decisions
Greater Geelong CC v C D Recycling Pty Ltd (Red Dot)
[2018] VCAT 831 (31 May 2018)
Applications for cancellation and/or enforcement of a permit for
materials recycling.
New South Wales
New short-term holiday letting regulations
The regulatory framework is designed to ensure that local
communities continue to gain from the economic benefits of
short-term holiday letting, while protecting neighbours from
anti-social behaviour. The new framework will include new planning
laws, an industry Code of Conduct and new provisions for strata
scheme by-laws.
More...
New legislation – Crown Land Management Act
The Crown
Land Management Act 2016 (the Act) implements
reforms identified through the comprehensive review of Crown
land management and follows over four years of engagement with the
community on the future of Crown land. The Act will come into force
on 1 July 2018. All existing Crown land legislation remains in
place until the rest of the new Act commences. The
department's policies guide our decisions and actions in
implementing the legislation.
More...
Western Lands Advisory Committee
From 1 July 2018, a new Western Lands Advisory Committee
will be formed. The Western Lands Advisory Committee will continue
the role of the current Western Lands Advisory Council.
More...
Consultation: proposed amendments to cap factors for
water recovery accounting in NSW
The NSW Department of Industry – Water has invited
water entitlement holders and other stakeholders to provide
feedback on proposed amendments to long-term diversion limit
equivalence factors for NSW (also known as cap factors), to replace
those originally adopted in 2011. Submissions may be submitted
here, and will be accepted until 17 July 2018.
More...
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...
Draft Coastal IFOA released
The NSW Government has adopted the Natural Resources
Commission's advice and released the draft Coastal Integrated
Forestry Operations Approval (IFOA) for public
consultation. Read more here or
the Commission's Coastal IFOA webpage.
Consultation ends 29 June 2018.
NSW Low Rise Medium Density Housing Code
The
new Code will allow 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 commences on 6 July 2018.
Greenfield Housing Code
The changes start 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...
The sandstone mega-region: The Committee for
Sydney
The Committee for Sydney has produced this blueprint for
uniting Newcastle, the Central Coast, Sydney and Wollongong into an
economic powerhouse of 10 million people (05 June 2018).
More...
Queensland
Planning and Environment Court practice directions
The Chief Judge of the Planning and Environment Court of
Queensland has issued the following practice directions:
Practice direction
1 of 2018 – Case management procedures
Practice direction
2 of 2018 – Power of ADR registrar to make orders or
issue directions
Abandoned Mines Discussion Papers: consultation
This is an opportunity for Queenslanders to provide
feedback on how to manage old mine sites.
Two discussion papers will be released for feedback on a range of
reform ideas - one paper for feedback on how the state's
abandoned mine sites can be managed, and the other for feedback on
how to monitor and manage risks with current mining operations that
enter the state's care and maintenance, are disclaimed or
change ownership. Public submissions for the reports will close on
July 16. Provide input or view the discussion papers
here.
Cases
Victoria
Sale Elderly Citizens Village Inc v Environment Protection
Authority Victoria [2018] VSC
266
ENVIRONMENTAL LAW – Pollution of groundwater –
Clean up notice – Whether responsibility for pollution lies
with occupier of the land – Whether occupier must have caused
pollution - Environment Protection Act 1970 ss 1A –
1L, 4, 39, 62A, 62C STATUTORY INTERPRETATION - 'occupier'
– 'premises' – 'upon or from which
pollution has occurred or been permitted to occur' –
Whether premises includes subsurface of the land – Whether
groundwater is part of the premises – Whether premises
occupied – Environment Protection Act 1970 s 62A
– Interpretation of Legislation Act 1984 ss 35, 38
JUDICIAL REVIEW – Statutory authority – Discretionary
decision – Whether decision a reasonable exercise of
discretion WORDS AND PHRASES – 'land' –
'groundwater' – 'waters' –
'premises' – 'occupier' –
'upon'.
King v Yarra CC [2018] VCAT
898
Section 82 of the Planning and Environment Act
1987; Yarra Planning Scheme; Neighbourhood Residential Zone
Schedule 1; Heritage Overlay 327; Part demolition and two storey
additions to existing dwelling; Overshadowing; Visual bulk.
Kaimakamis v Monash CC [2018] VCAT
807
Monash Planning Scheme; Application pursuant to Section 82
of the Planning and Environment Act 1987; General
Residential Zone (GRZ2); Six double storey dwellings; Amendment of
permit application; Transitional provisions; Garden Area
requirement; Compliance with ResCode; Neighbourhood character;
Extent of built form; Landscaping; Crossovers.
Coles v Greater Geelong CC [2018]
VCAT 829
Greater Geelong Planning Scheme; Residential Growth Zone
– Schedule 2 (RGZ2); Special Building Overlay (SBO); Proposal
for three dwellings and 3-lot subdivision; Site layout and design;
Private open space; Stormwater drainage; Landscaping opportunities.
No permit.
New South Wales
Legge v North Sydney Council
[2018] NSWLEC 1288
DEVELOPMENT APPLICATION and MODIFICATION APPLICATION: two
separate appeals, the first relating to a development application
that seeks the removal of existing signage and the replacement with
new signage and the second, the modification of an existing sign
approval; both appeals seek the erection of three digital LED roof
top signs/advertising structures on an existing building; whether
power to grant approval or modify existing approval; incompatible
with the surrounding area; unacceptable illumination impacts; out
of character and will dominate the existing building and locality;
exceedance of the maximum height development standard; impact on
existing views and vistas; impact on traffic safety; undesirable
precedent; undesirable heritage impact; resident objections.
Panos v Inner West Council [2018]
NSWLEC 1284
DEVELOPMENT APPLICATION: residential alterations and
additions – carport - view loss - streetscape.
Louden Pty Ltd v Canterbury-Bankstown
Council [2018] NSWLEC
1285
APPEAL – residential flat building – minimum
width at front building line – whether inconsistent with
provisions of the SEPP for affordable rental housing –
whether cl 4.6 request should be allowed – compatibility with
character of local area – setbacks – overshadowing
– privacy – suitability of site – precedent.
Environment Protection Authority v Ditchfield
Contracting Pty Limited [2018] NSWLEC
90
OFFENCES AND PENALTIES – sentence – pollution
of waters – spill of diesel into creek – low objective
seriousness – actual environmental harm of limited extent and
duration – foreseeability of risk of environmental harm
– practical measures to avoid environmental harm not taken
– control over causes giving rise to the offence –
subjective circumstances of offender – no prior convictions
– early plea of guilty – remorse for offence –
good corporate character – unlikely to reoffend –
assistance to authorities – penalty of payment to
Environmental Trust – publication order – costs
order.
Clearstate Development Co Pty Ltd v Liverpool City
Council [2018] NSWLEC
1279
APPEAL: Subdivision certificate – Construction and
interpretation of development consent.
Morrissey v Port Stephens Council
[2018] NSWLEC 1282
DEVELOPMENT APPLICATION: subdivision of land, inconsistent
with the draft amending local environment plan, streetscape
character.
Al Maha Pty Ltd v Huajun Investments Pty
Ltd [2018] NSWSC
867
ADMINISTRATIVE LAW – judicial review – Land
and Environment Court – decision of Commissioner of Land and
Environment Court – relief sought by third party pursuant to
Supreme Court Act 1970 (NSW), ss 65 or 69 CIVIL PROCEDURE
– jurisdiction – transfers to and from other courts
– Land and Environment Court – judicial review of
decision of Commissioner of Land and Environment Court –
application put before Court of Appeal to transfer proceedings to
Land and Environment Court – Civil Procedure Act
2005 (NSW), ss 149B, 149E – where proceedings
erroneously commenced in Common Law Division – whether
transfer application should be determined by single judge in Common
Law Division – Supreme Court Act 1970 (NSW), ss 48,
51 – order for removal of proceedings to Court of Appeal.
Boston Blyth Fleming v Hornsby Shire
Council [2018] NSWLEC
1270
DEVELOPMENT APPLICATION: seniors living development -
residential care facility – compatibility with rural
character.
O.T.A.R Investments Pty Ltd v Burwood
Council [2018] NSWLEC
1272
DEVELOPMENT APPLICATION: Alterations and additions to
heritage buildings for a boarding house; heritage impacts of
height; no parking provided; objections.
Help Save Mt Gilead Inc v Mount Gilead Pty
Limited [2018] NSWLEC
88
PRACTICE AND PROCEDURE – whether orders be granted
giving leave to amend summons, allow the calling of expert evidence
and issue interrogatories in judicial review proceedings 8 days
prior to trial –no leave to amend – no leave to issue
interrogatories – leave to file redacted expert report.
Shoebridge v Office of Environment and
Heritage [2018] NSWCATAP
144
GOVERNMENT INFORMATION - where agency decided not to
determine an application for a discount to a processing charge
until it was ready to make a decision on access to the information
– whether that 'decision' was 'a decision to
refuse a reduction in a processing charge' under s 80(k) of the
Government Information (Public Access) Act 2009 - whether
decision was "a decision to refuse to deal with an access
application" under s 80(c) – NCAT's administrative
review jurisdiction – appeal from obiter dicta –
advisory opinions.
Malton Road Development Pty Ltd v Hornsby Shire
Council [2018] NSWLEC
1265
APPEAL: development application: infill self-care housing;
clause 4.6 variation; access pathway; SEPP seniors housing clause
26.
Governor Wentworth Pty Ltd v Council of the City of
Sydney [2018] NSWLEC
1233
MODIFICATION APPLICATION AND DEVELOPMENT APPLICATION:
modification of Stage 1 development consent; Stage 2 development
application; adaptive reuse of former warehouse building,
demolition of adjoining commercial building and construction of a
19 storey mixed use building for hotel and residential
accommodation; no issues pressed following amendments made to the
proposal.
Maloney v Inner West Council
[2018] NSWLEC 1269
DEVELOPMENT APPLICATION: proposed subdivision of land;
Marrickville DCP 2011 section 3.2.2 Control C5; prevailing
cadastral pattern; anomalous street and lot configurations;
interpretation of the term 'same street'.
Platford v van Veenendaal and Shoalhaven City Council
(No 2) [2018] NSWLEC
86
COSTS – judicial review proceedings –
applicant successfully invalidated development consent –
costs follow the event – both respondents filed submitting
appearances – whether consent authority only should be liable
for costs – costs ordered against both consent authority and
beneficiary of consent.
Queensland
Bond v Chief Executive, Department of Environment and
Heritage Protection (No. 2) [2018] QPEC
031
Applicant is already in breach of the Environmental
Protection Order insofar as it is concerned with the bank guarantee
and the reporting requirement liability, those obligations having
crystallised after the refusal of the High Court to grant special
leave. Held: grant leave for the Appellant to file the amended
notice of appeal but otherwise would dismiss the application for
stays of the operation of the Environmental Protection Order issued
by the Respondent. Dismiss the application for the stay of this
proceeding pending the outcome of the criminal proceedings against
the Applicant dismissed
Klinkert v Brisbane City Council
[2018] QPEC 030
PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of proposed demolition of a dwelling house in the
LMR zone and the Traditional building character overlay –
whether the dwelling house is properly characterised as traditional
building character – where development application was
decided under the Sustainable Planning Act 2009 assessment
regime but appeal commenced under the Planning Act 2016
– whether appeal to be decided under the Planning Act
2016 assessment regime - whether the development application
must be approved by operation of s.60(2)(a) of the Planning Act
2016 – weight to be given to amended planning documents
– whether discretion conferred by s.60(2)(b) of the
Planning Act 2016 should be exercised in favour of
approval.
New Acland Coal Pty Ltd v Smith (No 2)
[2018] QSC 119
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS
OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – GENERALLY
– where the recommendation decisions of the Land Court under
s 269 of the Mineral Resources Act 1989 and s 191 of the
Environmental Protection Act 1994 are set aside and the
matters to which the decisions relate are to be referred back to
the Land Court of Queensland for further consideration –
where there was criticism of the conduct of part of the hearing by
the Land Court member, although not such as to find the ground of
apprehended bias established, and also criticism of parts of the
reasons given for the recommendation decisions by the Land Court
member – where there was also subsequent conduct on the part
of the Land Court member which might reasonably lead a fair-minded
lay observer to apprehend that he might not bring an impartial or
objective mind to further consideration of the matters –
whether it is appropriate, in the interests of justice, to direct
under s 30(1)(b) of the Judicial Review Act 1991 that the
matters be further considered by a different member of the Land
Court.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS
UNDER JUDICIAL REVIEW LEGISLATION – OTHER ORDERS –
consideration of the power of the Court to make directions and
orders under s 30(1)(b) and s 30(1)(d) of the Judicial Review
Act 1991, to narrow the scope of the Land Court's further
consideration of the matters the subject of the recommendation
decisions to avoid unnecessary re- litigation or re-examination of
issues – whether it is appropriate to exercise the power to
make such orders in the circumstances of this case.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND
EVIDENCE – COSTS – where the applicant was successful
in obtaining an order that the Land Court's recommendation
decisions be set aside, but was not successful on a number of its
grounds of review, and was successful on a ground which assumed a
different emphasis on the review proceeding to that which it had
during the original Land Court proceeding – whether costs
should follow the event, or the parties ought to bear their own
costs.
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal
Investments Pty Ltd Ors (No 12) [2018] QLC
15
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
PROCEDURE – where the court directed parties and experts to
engage in court managed expert evidence (CMEE)
pursuant to a draft Guideline – where the applicant submitted
the process was contrary to the Land Court Act 2000 and
the Land Court Rules 2000 – where the applicant
argued the process was not necessary in this case – where a
Practice Direction was issued after the application was filed and
before it was determined – where the Practice Direction
restricted the CMEE convenor's power to make directions –
whether order 6 should be set aside – whether the case should
be directed to CMEE pursuant to the Practice Direction.
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.