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...
Victoria
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...
Queensland
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...
Victoria
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...
Approvals
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
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
Cases
Victoria
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.
Queensland
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 – STATUTORY PROVISIONS FOR PREVENTION
AND SUPPRESSION OF NUISANCES .
TORTS – NUISANCE – WHAT CONSTITUTES – PRIVATE
NUISANCE – PARTICULAR CASES.
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.
Legislation
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
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.