In the media – National
Payment demands from shopping centre car parks 'may
be unenforceable'
Lawyers demanding payment from drivers who overstay time limits in
shopping centre car parks are operating in a grey area that is
unlikely to be upheld in court, a legal expert says (02 February
2018).
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Ensuring Australians can purchase agricultural land
while foreign investment is geared toward jobs and
growth
Subject to exceptional circumstances, foreign investors will need
to demonstrate that agricultural land they intend to acquire has
been part of a public sales process and marketed widely to
potential Australian bidders for a minimum of 30 days. All
acquisitions of agricultural land by foreign investors for
residential development will also be subject to standard
development conditions requiring development to commence within a
five year period to prevent land banking (01 February 2018).
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Tighter office markets reflect strengthening
economy
Overall demand for CBD office space has grown for the seventh
straight period, with Australia's tightening office markets
reflecting a strengthening economy new figures show. Vacancy across
Australia's office market fell from 10.2 per cent to 9.6 per
cent over the six months to January 2018, according to the latest
Office Market Report released by the Property Council today (01
February 2018).
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New 'IBodies' needed to keep infrastructure
independent, says Consult Australia
Australia needs independent statutory infrastructure bodies in
every state and territory to take the politics out of
infrastructure planning and stop the waste of taxpayer funds,
Consult Australia says. Governments that wanted to build projects
that were not in the official pipeline or change the order in which
projects were built would have to get parliamentary approval (29
January 2018).
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CER: Record year of investment means Australia's
2020 Renewable Energy Target will be met
The CER has today released new information to the market that
shows Australia will meet the 2020 Renewable Energy Target. Of the
6,532 megawatts of new large-scale generation firmly announced
since 2016, more than 4,900 megawatts is fully financed, with most
already under construction or operating, while the rest is expected
to begin construction early this year (23 January 2018).
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In the media – Victoria
More problems, scant solutions with Victoria rental
reforms
Victoria's recently proposed Residential Tenancies Act
1997 reforms will produce more problems than solutions,
according to a council of experts. The Property Investors Council
of Australia (PICA) has claimed that the rental
reforms, announced in October 2017, would result in rents being
raised, investors going interstate and the removal of many rights
of landlords in favour of tenants (02 February 2018).
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Wantirna Caravan Park resident wins legal fight against
developer
Mr Bedwell found the eviction notice in his letterbox, but it was
not sent by registered post, and while it was also emailed to him,
he had never agreed to use email to receive notices. The VCAT found
the notices to vacate did not comply with the Residential Tenancies
Act. Unlike in New South Wales and Queensland, those living in
residential parks in Victoria are not entitled to compensation when
the land is sold from underneath them (29 January 2018).
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Major Road Changes Ahead For Metro Tunnel
Works
Road closures, lane reductions and major construction will begin
next month as part of the biggest public transport project in
Victoria's history – the Metro Tunnel, which will connect
the Parkville and Domain precincts to the train network for the
first time – creating a world-class, turn-up-and-go train
system (22 January 2018).
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In the media – New South Wales
Promoting the remediation of contaminated land in
NSW
The NSW Government is proposing planning policy improvements that
will provide greater clarity, guidance and consistency for the
remediation of contaminated land. The Department is exhibiting an
Explanation of Intended Effect (EIE) for a new
Remediation of Land SEPP, as well as draft Planning Guidelines and
is seeking comment from the community (30 January 2018).
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In the media – Queensland
Gold Coast office vacancy continues to
decline
Healthy demand for office space on the Gold Coast has seen vacancy
rates fall over the final half of 2017. The Property Council of
Australia's latest Office Market Report, released today, shows
that over the last six months of 2017, Gold Coast office vacancy
fell from 11.3 to 10.6 per cent off the back of positive market
demand and building withdrawals (01 February 2018).
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New office developments impact Sunshine Coast vacancy Despite healthy demand for office space on the Sunshine Coast, the completion of significant new office developments in 2017 have affected the region's vacancy rate. The 2018 Office Market Report, released today, has found that over the course of 2017 the office vacancy rate on the Sunshine Coast rose from 6.9 per cent to 15 per cent (01 February 2018). More...
Indigenous groups return to court over disputed Adani
native title deal
Two Indigenous groups are in Federal Court working to prevent
Adani completing work that would extinguish their native title over
part of the proposed Carmichael mine site (30 January 2018).
More...
Australian Hotel Sector Shines Brightest in North
Queensland
Cairns has retained the top position as the nation's best
performing hotel market, as it continues to experience growth in
travel and tourism (30 January 2018).
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In Practice and Courts
Commonwealth
Funding for National Historic Sites
2017-18
The 2017-18 round of the Protecting National Historic Sites
Program provides funding for activities that will maintain, protect
and conserve the places on Australia's National Heritage List
that are listed for their historic heritage values. Protecting
National Historic Sites grant opportunities now open until 8 March
2018 (02 February 2018).
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Property and GST
In May last year, the Federal Government announced that it will
strengthen compliance with the GST law by requiring purchasers of
newly constructed residential properties or new subdivisions to
remit the GST directly to the ATO as part of settlement.
The ATO reports that under the current law (where the GST is
included in the purchase price and the developer remits the GST to
the ATO), some developers are failing to remit the GST to the ATO
despite having claimed GST credits on their construction costs. As
most purchasers use conveyancing services to complete their
purchase, they should experience minimal impact from these changes.
This change takes effect from 1 July 2018.
Announcements, Draft Policies and Plans released 2018
New South Wales
Proposed Reforms for Buildings with Combustible
Cladding
The NSW Department of Planning and Environment
(DP&E) has released a package of proposed
reforms requiring owners to: register their building/s with the NSW
Government and engage an expert to do a fire risk assessment of the
cladding. Councils and Fire and Rescue NSW will have powers to
direct owners to register their buildings within a set timeframe if
they have not already done so. The package is on exhibition until
16 February 2018.
More...
Cases
Victoria
Loustas v Sier & Ors [2018] VSC 13
CONTRACT – Construction – Written agreement –
Language susceptible of more than one meaning – Second and
third mortgagee purchased land at public auction from first
mortgagee in possession – Purchasers entered agreement with
previous proprietor to continue development of the land –
Profit share arrangement – Whether previous proprietor was a
joint venturer or merely a development manager – Whether
second mortgagee breached agreement by accepting repayment of
mortgage loan from receiver after auction – Electricity
Generation Corporation (t/a Verve Energy) v Woodside Energy
Ltd [2014] HCA 7; (2014) 251 CLR 640 applied. CONTRACT –
Termination – Inability to obtain construction finance to
complete development – Whether a contractual obligation is
incapable of being performed – Shevill v Builders
Licencing Board [1982] HCA 47; (1982) 149 CLR 620 applied
– Frustration – Common assumption that construction
finance could be obtained – Codelfa Constructions Pty Ltd
v State Rail Authority of NSW (1982) 149 CLR 337 applied
– Breach – Purchasers entered a second agreement with a
new syndicate of investors to complete development – Whether
first agreement was breached.
EQUITY - Fiduciary duties – Solicitor-client relationship
– Second mortgagee had acted for previous proprietor for many
years as solicitor – Whether the retainer was terminated
prior to auction when solicitor purchased client's land –
Whether the solicitor should have advised his client to receive
independent legal advice – Whether the solicitor had a
conflict of interest in drafting the agreement entered into with
the client – Whether any loss or damage was suffered –
Whether the solicitor entering into the second agreement involved a
breach of fiduciary duties owed to his former client.
Caydon Cremorne No 2 Development Pty Ltd v Yarra CC [2018]
VCAT 85
Application under section 77 of the Planning and Environment
Act 1987 – to review the refusal to grant a permit.
Lendlease Primelife Limited v Greater Dandenong CC [2018] VCAT 14 Section 77 of the Planning and Environment Act 1987. Greater Dandenong Planning Scheme. General Residential Zone, Schedule 1. Amendment C182. Retirement village. Building height. Neighbourhood character. Car parking.
Queensland
Brodsky v Willi [2018] QDC 001
EASEMENTS, REAL PROPERTY: where defendants have right of way
easement over plaintiff's land, where disputes arose between
the parties over their respective rights under the Grant.
TRESPASS/NUISANCE: where plaintiffs constructed a cross-over on the
easement area to enable them to more safely access the lower part
of their property which is bisected by the easement; where
defendants caused contractors to remove the cross-over without the
consent of the plaintiffs, whether in so doing the defendants
committed the tort of trespass; whether the cross-over
substantially interfered with the rights of the defendants pursuant
to the grant.
DAMAGES, EXEMPLARY & AGGRAVATED DAMAGES: where from the time
they first met the defendants adopted an aggressive and
intimidating attitude towards the plaintiffs asserting that they
"owned" the easement and that the plaintiffs could
exercise no rights in relation to the easement without the consent
of the defendants; whether the actions of the defendants involved
contumelious disregard for the plaintiffs legal rights.
COSTS: whether there was some special or unusual feature of the
case which required the Court to depart from the ordinary course of
standard costs to follow the event.
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.