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Inside track: Planning, Environment & Sustainability

01 April 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

COAG supports plastics ban
The Council of Australian Governments (COAG) has announced it will progressively ban the export of plastic, paper, tyres and glass waste from July, representing an historic change for the recycling industry (16 March 2020).  More...

PCA: Stimulus package welcome but challenges still ahead
The Federal Government’s economic stimulus package will provide welcome support for Australian businesses and households, but there are still significant challenges ahead as governments manage the public health response to the coronavirus outbreak (12 March 2020).  More...

NSW

Instructions to councils and other planning authorities on the COVID-19 pandemic
With the impacts of COVID-19 continuing to impact our usual day-to-day functions, it is vital that we work together to do everything we can to support our communities over the weeks and months ahead (19 March 2020).  More...

'Glacial progress': Minister under fire over flammable cladding crisis
Cabinet is still considering how it should handle the flammable cladding crisis more than six months after recommendations from the building commissioner (17 March 2020).   More...

NSW to lead the nation on emissions reduction
The NSW economy will see over $11.6 billion of private investment and 2,400 new jobs under Stage 1 of the NSW Government’s plan to reach net zero emissions by 2050. The plan is financially supported by the landmark $2 billion bilateral agreement between the Commonwealth and NSW Government announced in January 2020 (14 March 2020).  More...

Queensland

BNE welcomes approval of 2020 Master Plan
 Brisbane Airport Corporation (BAC) has welcomed the approval of its 2020 Master Plan by the Deputy Prime Minister. Providing a 20-year blueprint for development, the Master Plan outlines the land use planning and development intent for BNE, ensuring essential aviation infrastructure is continually delivered in advance of the increased demand (18 March 2020).  More...

Grantham reborn: Meet the little Queensland town that moved
Telve people died in Grantham when a three-metre wall of water rushed through in January 2011. The mayor and an American environmental engineer put together a plan to stop it happening again. This is how Grantham was reborn (14 March 2020).  More...

In practice and courts

New Australian Standards

Call for Nominations - Threatened species, ecological communities or key threatening processes
Nominations are invited for species, ecological communities or key threatening processes to be considered for listing under national environment law during the assessment period starting 1 October 2020. Nominations close 31 March 2020.  More....

Review of the Lands Acquisition Act 1989: Discussion Paper
Details of how to make a submission are available on the Department of Finance’s website. Submissions close on 17 April 2020.

NSW

NSW Land and Environment Courts

20 March 2020 - New filing arrangements at the Land and Environment Court
In order to maintain the practice of social distancing recommended by NSW Health, the Court is strengthening its new arrangements for the filing of documents advised on the website.

19 March 2020 - Application to the Court where self-isolation necessary
The Australian and NSW government require self-isolation to limit the spread of COVID-19 in various circumstances. Anyone required to self-isolate must not attend the Court building or any Court proceedings wherever conducted.

13 March 2020 - Minimising the spread of coronavirus (COVID-19)
In an endeavour to contain its effects and keep the Court operational as much as possible, parties in Classes 1, 2 (excluding tree dispute applications), 3, 4 and 8 are encouraged to use Online Registry and Online Court.  More...

Koala Habitat Protection Guideline
The Koala Habitat Protection Guideline has been develop to support the Koala Habitat Protection SEPP which commenced on 1 March 2020. Between 2 March 2020 until 30 March 2020, the Department is welcoming feedback from stakeholders and the community on the draft Guideline.  More...

Current LEP Proposals from 12 March 2020
Local Heritage Listing - 30 Wyuna Road, Point Piper
Local heritage listing of seven pubs in Paddington.

Queensland

Brisbane City Council: Draft Central Park Masterplan
The draft plan is now out for public consultation following the release of five creative concepts from architecture and planning firms last year. The Victoria Park concept plan is now open to the public until April 28 on the Brisbane City Council’s website.

Applications open for Queensland carbon farming projects
Applications are now open under the 2020 Investment Round of the Land Restoration Fund.
This year, the Queensland Government is investing $100 million for carbon farming projects that deliver extra benefits for our environment, threatened species and regional communities. Applications for the 2020 Investment Round are now open and close 15 April 2020.

Cases

NSW

Wills v North Sydney Council [2020] NSWLEC 1119
APPEAL – development application – existing hotel – heritage item – application to extend trading area on 20 occasions each year with associated structures and storage – impact on significance of heritage item – whether sufficient information provided 

J.K. Williams Staff Pty Ltd v Sydney Water Corporation [2020] NSWSC 220
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Land and Environment Court – Whether, for the purposes of s 149B(2) of the Civil Procedure Act 2005 (NSW), it is more appropriate for the proceedings in the Supreme Court to be transferred to the Land and Environment Court to be heard together with related proceedings in that court – Transfer order made

SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112
DEVELOPMENT APPLICATION – residential flat building – clause 4.6 objections to height and floor space ratio controls – desired future character – economic impact – precedent

Patane v Blacktown City Council [2020] NSWLEC 1111
DEVELOPMENT CONTROL ORDER – whether necessary to comply with BCA – whether demolition required – alternate solutions – discretion

Williamson v Northern Beaches Council [2020] NSWLEC 1110
DEVELOPMENT APPLICATION – boarding house development – R2 Low Density Residential zone – character of local area – visual and acoustic impact –provision of onsite car parking in accessible area

Newland Developers Pty Ltd v Tweed Shire Council [2020] NSWLEC 1107
DEVELOPMENT APPLICATION – subdivision – same or similar to earlier application and appeal – whether abuse of process – nomination in development control plan as school site – whether development control plan should be given little or no weight – strategic provision of education facilities in the area – consideration of future population – application of the development control plan – whether site should remain available for future school

Queensland

Southern Downs Regional Council v Homeworthy Inspection Services [2020] QPEC 7
PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision of the Building and Development Tribunal – where appeal allowed and the decision of the Tribunal set aside – whether matter should be remitted to the Tribunal – whether the re-exercise of the discretion is conducted by way of a hearing anew – whether r 766(1) of the Uniform Civil Procedure Rules 1999 applies to the appeal – whether leave should be granted for the appellant to lead fresh evidence.
Planning Act 2016 Qld ss 45, 229 & Schedule 1.; Planning and Environment Court Act 2016 Qld ss 9, 43 and 47
Planning and Environment Court Rules 2016 Qld s4; Uniform Civil Procedure Rules 1999 Qld rr 766, 782, 785

Logan City Council v Brookes [2020] QDC 24
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – where the respondent, without a permit, moved seven shipping containers onto his property – where the appellant commenced proceedings by way of seven complaints charging the respondent with carrying on assessable development without a permit contrary to s 578 of the Sustainable Planning Act 2009 – where the complaints were particularised as carrying on “building work” as defined in s 10 of the Sustainable Planning Act 2009 – where the learned magistrate found that each shipping container was not a “fixed structure” and as such did not amount to carrying on building work – whether the learned magistrate erred in finding that the movement of the shipping containers was not “building work”
EVIDENCE – GENERAL PRINCIPLES – EVIDENCE LAW – RULINGS AND FINDINGS – where the learned magistrate admitted into evidence an agreed statement of facts containing purported admissions pursuant to s 148A of the Justices Act 1886 – where the respondent was self-represented at trial – where the respondent argues on appeal that he did not consent to the agreed statement of facts – where the agreed statement of facts was tendered by the appellant without objection from the respondent – where the respondent later stated in the trial that some facts were agreed but others were not – whether the respondent should be allowed to resile from the agreed statement of facts
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – where the appellant applied for leave to adduce new evidence – where the appellant seeks to adduce evidence of correspondence between the parties in relation to the agreed statement of facts tendered at trial so as to answer the respondent’s argument on appeal – the test in Pavlovic v Commissioner of Police [2007] 1 Qd R 344 – whether the appellant should be granted leave to adduce new evidence
Justices Act 1886 Qld s 148A, s 222, s 223; Sustainable Planning Act 2009 Qld s 7, s 10, s 578

Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where the applicant seeks leave to appeal from a decision of the Planning and Environment Court pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) – where the primary judge ordered that the appeal be adjourned in November 2017, giving reasons that she intended to allow the appeal and that the purpose of the adjournment was to allow for the “formulation of reasonable and relevant conditions” for approval of the development – where final orders on the appeal were made in June 2018 – where the applicant seeks leave to appeal from the final orders made on June 2018 – whether the appeal to the Court of Appeal was made out of time – whether leave to appeal should be granted
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the primary judge granted an appeal pursuant to s 461(1) of the Sustainable Planning Act 2009 (Qld) (SPA) against the local government’s refusal of a development application for a material change of use to develop land for a service station, drive through restaurant and an on-site effluent disposal irrigation area – where the development application was impact assessable such that it was required to be assessed against all relevant provisions of the applicable planning scheme – where the planning scheme is divided into various zones, including the Open Space Zone and the Environmental Protection Zone (EP Zone) – where the planning scheme also has a number of overlays – where the entirety of the site is contained within the Kinross Road Structure Plan (KRSP) Overlay Code – where the built form of the proposed development is located within the EP Zone and Bushland Living Precinct 6 of the KRSP Overlay Code – where the effluent treatment area of the proposed development is located within the Open Space Zone and Greenspace Precinct 7 of the KRSP Overlay Code – where the primary judge found that the proposed development complied with relevant ecological provisions of the EP Zone Code and the KRSP Code – whether the primary judge misconstrued specific outcome S1.1 of the EP Zone Code – whether the primary judge erred in concluding that the proposed development complied with overall outcomes 4.6.7(2)(a)(i)c. and e. of the EP Zone Code – whether the primary judge erred in concluding that the proposed development complied with overall outcome 5.15.8(f) and specific outcome 1.7(2)(b) of the KRSP Overlay Code – whether the primary judge erroneously took into account an irrelevant consideration by having regard to the maintenance and protection of ecological values of Hilliards Creek, which was located in the Northern Portion of the site
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the first respondents’ economic expert gave evidence before the primary judge that any economic need for the proposed development could be met by a “service station with a smaller convenience store, fewer fuel spots, without the car wash and possibly without the drive through restaurant” – where the primary judge rejected that evidence as irrelevant because it was a “hypothetical alternative” – where the primary judge then made a factual finding that there was a need for the proposed development – whether the primary judge took an erroneous approach in assessing the need for the development as a question of fact, thereby amounting to an error of law
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the primary judge held that while the proposed development conflicted with the planning scheme in some respects, there was otherwise a need for the proposed development that was a sufficient ground to justify approval of the development pursuant to s 326(1)(b) of the SPA – whether the primary judge erred in assessing the need for the proposed developments that would otherwise justify the approval of the development – whether the primary judge correctly applied s 326(1)(b) of the SPA to assess whether the need for the development was a sufficient ground to approve the development in the public interest, despite its conflicts with the planning scheme

Hemmant Property Group Pty Ltd v Brisbane City Council [2020] QPEC 6
In the even that Hemmant Properties were to convince the Court that the appeal ought be allowed, subject to a condition requiring it to, at its expense, upgrade the relevant section of Burnby Road, there would be, in my opinion, no reason why this Court could not allow the appeal subject to such a condition, and that would include, of course, requiring it to get the consent of the council to carry out the necessary roadworks

Legislation

NSW

Environmental Planning Instruments
State Environmental Planning Policy (State and Regional Development) Amendment (State Significant Development) 2020 (2020-94) — published LW 16 March 2020
State Environmental Planning Policy (Koala Habitat Protection) Amendment (Maps) 2020 (2020-84) — published LW 12 March 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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