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Inside track: Local Government

01 December 2020

#Local Government

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Inside track: Local Government

Council’s obligations to land transactions

When transacting freehold land owned by a council, whether it be granting a lease or selling land, various statutory obligations must be complied with by the council. In addition to the statutory processes and procedures that must be complied with, there are also policy and guidelines that a council is required to comply with when transacting land.

Under section 14(1) of the Local Government Act 2020 (Vic), a council is capable of acquiring, holding, dealing with or disposing of property to perform its functions and exercising its powers. However, the statutory processes applicable to a sale or lease of freehold land are principally contained within the Local Government Act 1989 (Vic) (LGA) (in particular within Part 9).

If the relevant land has the status of a public road, there may be additional processes and procedures that need to be complied with. This article relates to the transacting of freehold land owned by a council, other than land that has the status of a road.

Section 189 of the LGA sets out the obligations of the council if it sells or exchanges land. These obligations include:

  • ensuring that the public notice of intention to sell the land is given at least four weeks prior to selling the land
  • obtaining a valuation from a valuer with the qualifications or experience under the Valuation of Land Act 1960 (Vic), which is made not more than six months prior to the sale or exchange of land.

It should be noted, however, that in the current COVID-19 period, it has been our experience that valuers have been reducing the currency period of their valuation. Accordingly, notwithstanding a valuation is obtained six months prior to the proposed transaction, the currency of the valuation may have expired due to limitations by the valuer in the valuation. In the course of negotiating a transaction, it may be necessary to obtain various updates of a valuation prior to an exchange.

Under section 189(3) of the LGA, a person has a right to make submissions on a proposed sale or exchange and the procedures of section 223 of the LGA apply to the submission process.

Under section 190 of the LGA, a council’s power to lease land to any person is limited to leases for a term of 50 years.

A council is required to publish a public notice of a proposed lease at least four weeks before the lease is entered into if the lease falls into the following categories:

  • the lease is for a term of a year or more and the rent for any period of the lease is $50,000 or more or the current market rental value of the land is $50,000 or more
  • the lease is for a term of 10 years or more; or
  • the lease is to be a building or improving lease.

Under section 190 (3) of the LGA, where a public notice of a lease is required, a person has a right to make submissions in relation to the proposed lease and the procedures in section 223 of the LGA apply to the submission process. 

Under section 191 of the LGA, there is an exemption from the requirement to comply with the procedures and requirements set out in section 189 and 190 of the LGA in relation to the transfer, exchange or lease of land with or without consideration to:

  • the Crown
  • a Minister
  • any public body
  • trustees appointed under any Act when the land is to be held on trust for public or municipal purposes
  • a public hospital or other hospital carried on by an association or society otherwise than for profit or gain to the members of the association or organisation.

A public body is defined in the LGA as:

“any government department or municipal council or body established for a public purpose by an Act of Parliament of Victoria, any other State or Territory of the Commonwealth, or the Commonwealth.”

As a result of the exemption under section 191 of the LGA, land transactions with a number of Victorian State Government departments, authorities or entities will not require compliance with the requirements of section 189 or section 190 of the LGA. However, those government departments, authorities or entities will have a number of statutory and policy procedures to comply with before acquiring land or entering into a lease which will include Valuer General approval and may require Victorian Government Land Monitor approvals.

Councils may still decide to follow the processes in section 189 or 190 of the LGA notwithstanding the exemption.

In addition to the statutory requirements, there are policy and guidelines that are required to be adhered to by councils.

One such guideline is the Local Government Best Practice Guideline for the Sale, Exchange and Transfer of Land 2009 (Guideline) which was prepared jointly by Local Government Victoria, the Victorian Government Land Monitor and the Department of Planning and Community Development (now the Department of Environment Water and Planning). The Guideline can be found here.

The Guideline sets out various principles that are to be complied with by a council in relation to the exchange or transfer of land, including:

  • sales should be conducted through a public process in the interests of probity, public accountability and transparency
  • the sales, exchanges and transfers should be in the best interests of the community and provide the best financial and non-financial results for the community
  • sales, transfers and exchanges should generally occur at not less than market value
  • before the land is offered for sale, it is appropriately zoned to achieve the highest possible sale price
  • consideration needs to be given to whether the land is contaminated and the implication for the council.

In addition, each council will have its own published policy and guidelines for land sales and acquisitions.

Author: Lisa Cody

In the media

National resilience and recovery agency ‘in place by July 2021’
The Commonwealth will set up a standing national resilience and recovery agency and support other key recommendations of the bushfires royal commission. The Government will legislate to give the Commonwealth the power to declare a national emergency and mobilise resources to help states and local communities deal with natural disaster emergencies (20 November 2020).  More...

Federal Govt ‘welcomes partnership with ALGA’s new President’
Local Government Minister Mark Coulton has congratulated Linda Scott on her election as ALGA President, saying he looks forward to “a fruitful partnership in joint delivery of critical infrastructure and services benefitting all Australians” (20 November 2020).  More...

Victoria

Why Victoria's massive public housing build will change the rules with local councils
The State Government is going to take planning authority off councils for Big Housing Build projects – in return, promising "a new partnership with local councils" and to develop a "social and affordable housing compact". The Government will centralise approval processes for the project, but says local councils will still be consulted (22 November 220).  More...

Victoria invests $20m in zero-emission buses
The Victorian budget will fund a $20 million, three-year statewide trial aimed at transitioning to a zero-emission bus fleet. The government is trialling its first fully electric bus and has 40 hybrid buses operating in Melbourne and eight in the Latrobe Valley (16 November 2020).  More...

Voters flock to Victorian LG elections in record numbers
Average voter turnout at last month’s Victoria’s local council elections was a record 81.4 per cent, the Victorian Electoral Commission said last week. Electoral Commissioner Warwick Gately congratulated Victorians on their record turnout for the election – which was conducted entirely by mail ballot because of COVID-19 (November 2020).  More...

Diversity on the up in Victorian councils
The Municipal Association of Victoria (MAV) extends its congratulations to all of the successful candidates in the 2020 council elections. With election results now confirmed by the Victorian Electoral Commission, we are thrilled to see an increase in the diversity of councillors across the state (13 November 2020).  More...

Greater Shepparton elects its first Indigenous councillor, and he's still one of few statewide
Greg James is one of two Aboriginal people elected in Victoria this year, highlighted the chronic under-representation of First Australians on regional councils (11 November 2020).  More...

Warrnambool councillors booted in local election after controversy-riddled term
The first African-Australian councillor in regional Victoria is among a new-look council after voters cleaned-out a controversy-riddled city hall (10 November 2020).  More...

NSW

Push for Macquarie River to have Aboriginal name officially recognised
The Bathurst Regional Council unanimously endorses a push from local First Nations groups to have the Macquarie River be also recognised as 'Wambuul', as it is known in the Wiradjuri language (19 November 2020).  More...

Transport Minister requests ICAC to investigate controversial land deal
Transport Minister Andrew Constance has asked the state's anti-corruption watchdog to investigate his own government's purchase of a highly contaminated parcel of land near Parramatta at three times the estimated value (18 November 2020).  More...

NSW Budget brings cash injection for councils
NSW Budget has supported local government’s Save Our Recycling campaign with a $96 million commitment to extend the Waste Less Recycle More program and finalise the long-term strategy for waste (17 November 2020).  More...

Queensland

Nobbys could be 'important, central point' of Gold Coast light rail, but what of its chilled vibe?
Nobbys' "pretty chilled vibe" acts as an important counterbalance to other Gold Coast precincts, one local says, but that could change in 2024 when light rail arrives (21 November 2020).  More...

Residents force council to backtrack on New Farm Park changes
Locals argued the changes would have brought hundreds more cars into the park every day, while the council said the proposal remained "under assessment" (20 November 2020).  More...

Digital transformation pays dividends for council
Mr Henderson says Council’s decision to adopt a new strategic IT initiative has, among other things, helped prevent any losses and provide an insurance policy against ransomware. According to LGAQ’s Digital Productivity Report 2020, 95 per cent of the state’s councils see digital transformation, including data analytics and cloud computing, as a priority, and 75 per cent have deployed technologies supporting digital services (19 November 2020).  More...

'It just kills you': Farmer backlash as council rates soar by up to 238 per cent
In a landscape where the cost of farming is increasing, growers say they're struggling to cope with Bundaberg Regional Council's hefty rates rise (19 November 2020).  More...

Top gong for council that won over hostile community
Isaac Regional Council has taken out Queensland’s top planning award for winning the confidence of hostile residents and overcoming a community backlash against its coastal planning scheme. The Isaac regional planning scheme and coastal planning provisions project included community consultation and detailed investigation to develop a new sustainable planning scheme, the judges said (16 November 2020).  More...

'Pineapple' Hooper is offered and accepts role as Rockhampton mayor
Dubbed the "accidental mayor" and the "Steven Bradbury of politics", the self-funded retiree is officially offered the role by Electoral Commission Queensland after his predecessor's shock resignation earlier this month (18 November 2020).  More...

Trees should be viewed as critical Brisbane infrastructure: Report
A new report commissioned by Greener Spaces Better Places found nationally, urban spaces were decreasing in green cover between 2013 and 2016, but are slowly increasing now (14 November 2020).  More...

Noosa council backflips on urban beehive ban after 'missing the mark'
After an angry outpouring of opposition from beekeepers and the public, Noosa council has backflipped on its decision to ban all new beehives in suburban backyards (12 November 2020).  More...

Councillor vacancy provisions must be repealed urgently
Local Government Association of Queensland CEO Greg Hallam has called on the Palaszczuk Government to urgently meet its commitment to Queensland councils to repeal laws mandating the automatic election of the runner up in a mayoral or councillor election if a vacancy occurs within the first 12 months of the term (10 November 2020).  More...

Rockhampton mayor Margaret Strelow in shock resignation after misconduct findings
Margaret Strelow has resigned as Rockhampton mayor after being found guilty of misconduct, causing the Queensland Local Government Minister to announce an impending amendment to the Local Government Act (10 November 2020).  More...

In Practice and Courts

Victoria

MAV Submissions
Transport Submission to NTC Heavy Vehicle National Law Review Consultation RIS November 2020.

Council Elections
The Victorian Electoral Commission (VEC) has now announced the elections results for more than 40 councils, following the close of the voting receipt period on 30 October. Congratulations to all of the successful candidates! It is expected that all final results will be declared by Friday 13 November. Follow the VEC on Twitter and Facebook for results updates. The MAV’s Councillor Induction Program will be held online over two consecutive sessions on 27 November and 3 December.

Procurement e-learning modules
Visit the MAV Procurement e-Learning portal for free, introductory modules – Understanding Local Government and Doing Business with Local Government – are also available on the portal.
Local government election candidates are reminded that under the Local Government Act 2020, all candidates must submit a campaign donation return (whether you received donations or not) to the council CEO by 3 December 2020. Find out more on the Local Government Inspectorate website.

Last chance to stand for council
The City of Melbourne (Electoral) and Local Government (Electoral) Amendments Regulations 2020 came into operation on 2 September 2020 and end on 26 April 2021. The amendments to the Electoral Regulations apply to candidate nomination and scrutineer provisions as a result of the COVID-19 pandemic.

Proposed changes to regulation of wind farm noise
The Victorian Government has introduced the Public Health and Wellbeing Amendment Bill 2020 into parliament. If passed, the bill would prevent new nuisance complaints relating to wind farm noise under the Public Health and Wellbeing Act 2008 being lodged with councils (19 November 2020).

Launch of the Victorian Graffiti Register
The Victorian Graffiti Register (VICGR) enables users, such as council workers or members of the public, to record graffiti via the app or website, as soon as they see it and while they're on the move. It will also enable councils to identify specific problem taggers or identify graffiti hotspots and report them to Victoria Police for further investigation. Visit the VICGR website and download the VICGR app, available at Apple and Android app stores (19 November 2020).

Container deposit scheme
The MAV has welcomed the release of the Victorian Government’s consultation paper on the design of the container deposit scheme (CDS). Following significant advocacy from the MAV, councils, environment groups and others, the State committed to introducing a CDS by 2023 as part of its Recycling Victoria policy (05 Novembwer 2020).

Draft urban stormwater management guidance
The EPA has released a draft urban stormwater management guidance document for consultation. Background information and a Review of Stormwater Science have also been provided to support consultation on the draft guidance. The MAV will be developing a submission on behalf of councils. The deadline for comments to the EPA is 16 December. Further information is available here

Review of the EPA's recycled water guidance
The Department of Environment, Land, Water and Planning is leading a review of Victoria's recycled water guidance. The discussion paper explains the scope of the review, key changes within the proposed new guideline, and reasons for these changes. Consultation closes 26 November 2020.

City of Melbourne: View all current tenders
See tenders for more information on the tendering process and procurement policy, closed and awarded tenders. 

SRO: Further tax and fee relief measures
 As part of a $3 billion business support package, the Victorian Government has announced further coronavirus tax relief measures, including waiving of liquor licencing fees for 2021, deferral for 2020-21 payroll tax liabilities, and duty reductions for those buying commercial or industrial property in regional Victoria.
Note: Following the recent Victorian bushfires, the Victorian Government passed legislation in April 2020 to bring forward the 50% stamp duty discount for contracts entered into on or after 27 January 2020 to buy commercial or industrial property in bushfire affected LGAs. The 50% stamp duty discount for commercial and industrial property across all of regional Victoria will be brought forward to 1 January 2021.

New Animal Welfare Act
The Victorian Government is seeking feedback on proposals for a new animal welfare Act. The new Act would replace the Prevention of Cruelty to Animals Act 1986 (POCTA Act). Many of the proposals aim to improve existing provisions under the POCTA Act. Some would introduce new features into Victoria’s main animal welfare legislation. Consultation closes 14 December.

Have your say on the Draft Guidelines for Precinct Structure Planning in Melbourne’s Greenfields
The Victorian Planning Authority and DELWP are updating the Guidelines for Precinct Structure Planning in Melbourne’s Greenfields to make planning for Melbourne’s new neighbourhoods more flexible, responsive and innovative. Have your say by completing the online survey, making a submission on behalf of your organisation or registering for a virtual stakeholder interview here.

Extension to the declaration of Surf Coast, Bellarine Peninsula and Bass Coast as distinctive areas and landscapes
The Governor in Council, under section 46AT(3) of the Planning and Environment Act 1987, has approved the extension of time required to prepare Statements of Planning Policy for Surf Coast, Bellarine Peninsula and Bass Coast for a further 12 month period.

Smart Planning PPF translation update
Smart Planning continues to work with councils on their Planning Policy Framework (PPF) translations. To date, PPF translations have been gazetted for Murrindindi, French Island and Sandstone Island, Glenelg, Moonee Valley, Golden Plains, Southern Grampians and Colac-Otway. The PPF translation project is time bound and all planning schemes must be translated by 30 June 2021. Information on preparing for your PPF translation is available here.

Outdoor Eating and Entertainment Package business grants
Applications are now open for the $58 million Outdoor Eating and Entertainment Package. Grants of up to $5,000 are available to licensed and unlicensed hospitality businesses, including restaurants, cafes, pubs/taverns, bars, clubs and takeaway food venues. Applications close on 11 December 2020.

Applications open for the Licensed Hospitality Venue Fund
Grants of up to $30,000 are available through the $251 million Licensed Hospitality Venue Fund program. The fund supports eligible liquor licensees with hospitality venues impacted by the restrictions put in place to slow the spread of coronavirus. Applications close on 23 November 2020.

$8 million in grants available to deliver Australia Day 2021 events
The National Australia Day Council in collaboration with Australia Day Victoria, is offering $8 million in grants for councils to deliver Australia Day 2021 events. Councils are eligible for a $20,000 grant to ensure their events are COVIDsafe. Councils can also download a free Australia Day-branded Reflect. Respect. Celebrate. Find the event artwork here and apply for a $1,000 grant for production.  More...

Aboriginal Community Response and Recovery Fund

The Aboriginal Community Response and Recovery Fund has been established to support Aboriginal Victorians to deliver community-led initiatives to respond to the impacts of coronavirus. The fund’s total value is $10 million and applications close 30 November 2020.

Community Sports Infrastructure Loans Scheme
Applications are now open for the second round of the $100 million Community Sports Infrastructure Loans Scheme. The low-interest government-guaranteed loans from $500,000 to up to $10 million are available to councils, clubs, associations, educational institutions and facility managers to develop high-quality community sport and active recreation infrastructure. Applications close 15 December 2020.

New funding for primary producers
New funding is available through Disaster Recovery Funding Arrangements to help grape growers in local government areas outside bushfire zones who have had their crops affected by smoke. The grant is available through Rural Finance (1800 260 425) and is open until 31 December. 

Reimagining Health Grants 
The new VicHealth Reimagining Health Grants will open on 16 September and aim to inspire application ideas that reimagine health and wellbeing in 2020 and 2021. VicHealth is encouraging applicants to submit on or as close to 16 September to have the opportunity to get assessed and notified early. Then funds could be provided more than two months ahead of those who wait until the closing date.

s.186 exemption for council recycling contracts
The Victorian Local Government Minister has announced a state-wide s.186 exemption for local councils to extend their recycling collection contracts to 30 June 2021. Here is a copy of the letter sent to all councils co-signed by Minister Somyurek and the Minister for Energy, Environment and Climate Change, the Hon. Lily D’Ambrosio MP.

Surf Coast distinctive area and landscape
DELWP invites written submissions on the draft Surf Coast Statement of Planning Policy (SPP) and proposed landscape planning controls. The draft SPP creates a framework for the future use and development of land in the Surf Coast declared area and seeks to ensure long-term protection of its unique coastal and rural environments, Aboriginal cultural heritage, historical features, natural resources and character of townships. The proposed landscape planning controls ensure areas of state and national landscape significance are protected for current and future generations. For further information please visit Engage Victoria. Submissions close on 22 January 2021 (19 November 2020).

NSW

50-Year vision for Sydney's Open Space and Parklands [draft] discussion paper
The NSW Minister for Planning and Public Spaces has announced the 50-Year Vision for Sydney’s Open Space and Parklands. The draft Vision will kickstart a community wide conversation about how our open and public spaces can grow with us. Read it here and complete the survey.

Proposed SEPP amendment to allow outdoor dining pilot in Sydney CBD
City Of Sydney: The department is seeking your feedback on a proposed amendment to the Codes SEPP which will facilitate a simplified, streamlined process for small bars and pubs in the City of Sydney to have outdoor dining. The Outdoor Dining Trial will run from 30 October 2020 until 31 October 2021.  More...

NSW Planning Department: Have your say, draft plans and policies
Draft local character clause
The department is exhibiting a draft Local Character Clause which is proposed to be included in the Standard Instrument Local Environmental Plan. The clause will require the council to consider its local character statement when addressing development applications. Notification start to end date 12/11/2020 – 29/01/2021.  More...

Draft Illawarra Shoalhaven Regional Plan 2041
Have your say on the draft updated Illawarra Shoalhaven Regional Plan 2041 that will guide strategic planning and land use decisions in the region for the next 20 years. Notification start to end date 02/11/2020 – 17/12/2020.  More...

Queensland

Support for the Gold Coast’s building and construction sectors
The City of the Gold Coast has announced a range of incentives to support the property industry. The measures are intended to stimulate and accelerate building and construction work, especially for smaller scale projects. The measures are outlined here. The measures will be available from 1 October 2020, with the exception of the Express Development Application process which will be available from the 27 October 2020. Find out more about the Council’s stimulus measures and Express DA service.

Have your say: Future of South Bank
The Palaszczuk Government is encouraging people to have their say on the future of the South Bank precinct, with the roll out of public consultation on the master plan. The master plan would build on the precinct’s iconic features, while harnessing new ideas. It is expected the master plan process will be completed by the end of 2020.  More...

Open for consultation: Moreton Bay Regional Economic Development Strategy
Moreton Bay Regional Council has developed a Regional Economic Development Strategy that is now open for community consultation. The strategy provides a 20-year economic vision for Moreton Bay, and a blueprint for sustainable economic growth into the future. To view the draft strategy and provide feedback, please click here.

Cases

Melbourne City Council v Telstra Corporation Limited [2020] FCAFC 200
COMMUNICATIONS LAW – whether New Payphone Cabinets are “low-impact facilities” within the meaning of clause 6 of Sch 3 to the Telecommunications Act 1997 (Cth) exempt from planning laws – where Telstra sought planning approval to display commercial advertising on New Payphone Cabinets – where New Payphone Cabinets to be installed only after planning approval to display commercial advertising obtained – whether primary judge erred in concluding that the New Payphone Cabinets are “low-impact facilities” – appeal allowed with costs.

Victoria

Zaric v City of Greater Dandenong [2020] VSC 756
APPEAL FROM THE DECISION OF VCAT – review of planning powers of respondent – VCAT summarily dismissed applicant’s proceeding under s 75 VCAT Act on basis of proceedings being misconceived, lacking substance and abuse of process – VCAT asserted proceedings sought to re-agitate issues already decided – VCAT asserted planning permit spent once subdivision work completed – applicants appeal summary dismissal – applicant sought to set aside decision of Senior Member Richards – as no appeal has been lodged, this matter cannot be ruled on – applicants further sought to reinstate previous proceedings before VCAT under s 149B of the Planning and Environment Act – Act does enable previous orders of VCAT to dismissed or set aside – applicants further sought enforcement orders pertaining to the planning scheme the subject of this proceeding – matter previously ruled on by VCAT and Court of Appeal – Council could not be added to this proceeding for enforcement orders – even if Council were able to be added, enforcement orders could not be made – applicants argue under s 52 VCAT Act Court of Appeal had no jurisdiction to hear matter – applicants’ submissions incorrect – Section 52 provided Jurisdiction to Court of Appeal to hear matter – furthermore, s 52(3) provides rulings of court in the absence of jurisdiction valid – applicants assert planning permit cannot be expired as per s 68 Planning and Environment Act – Section 68 not exhaustive – permit expired by virtue of development being completed – appeal fails to establish any ground of appeal, or show any error in VCAT’s approach and conclusion regarding s 75 VCAT Act – Court satisfied Applicants have no real prospect of success – matters raised in appeal conclusively ruled upon previously by Court of Appeal – Court needs to conserve its resources – applicant’s application an abuse of process and vexatious.

260 Lonsdale Street Pty Ltd v Greater Dandenong CC [2020] VCAT 1283
Section 77 of the Planning and Environment Act 1987 (Vic) – Greater Dandenong Planning Scheme – Comprehensive Development Zone – Design and Development Overlay, Schedule 2 – proposal for an electronic major promotion wall sign – visual impacts. No permit.

Hillas v Towong SC [2020] VCAT 1284
Towong Planning Scheme – Rural Activity Zone and Bushfire Management Overlay – use and development of land for leisure and recreation (paintball games facility) and removal of native vegetation – consistency with policy and purposes of the zone – traffic and road safety – suitability of internal access and car parking – amenity of adjoining land owners – noise and dust – extent of native vegetation removal and bushfire management – net community benefit.

Buyck v Yarra CC [2020] VCAT 1279
In application P1310/2020 the decision of the responsible authority is affirmed.
Planning permit PLN18/0854.02 must not be amended. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant an amended permit.

Cox v Yarra CC [2020] VCAT 1277
Section 82 Planning and Environment Act 1987 – Yarra Planning Scheme – Neighbourhood Residential Zone Schedule 1 – Heritage Overlay Schedule 334 – amenity impacts – visual bulk – overshadowing – heritage – views.

Zhang v Boroondara CC [2020] VCAT 1259
Two dwellings – neighbourhood character – amenity – tree protection.

Lateral Building Design v Maroondah CC [2020] VCAT 1261
Planning and Environment Act 1987 – Maroondah Planning Scheme – Neighbourhood Residential Zone, Significant Landscape Overlay – one double storey and one single storey in front of existing single storey dwelling – design response to neighbourhood and character, and retention of trees.

Murcott v South Gippsland SC [2020] VCAT 1265
Section 82 of the Planning and Environment Act 1987 – South Gippsland Planning Scheme – free range chicken meat farm – amendment to existing permit – surface water quality – farming zone.

J Q Fortune Pty Ltd v Banyule CC [2020] VCAT 1196
Section 77 of the Planning & Environment Act 1987 – Banyule Planning Scheme – General Residential Zone Schedule 3 – DDO11-1 – Vegetation Protection Overlay Schedule 3 – Development Contributions Plan Overlay Schedule 1 – four dwellings – three storey – massing, visual bulk, scale – siting – tree removal – landscaping opportunities. 

Livingstone v City of Melbourne [2020] VCC 1775
Legislation Cited: Wrongs Act 1958. In 1997, Angela Livingstone bought 50 Dryburgh Street, West Melbourne.. In 2009, the City of Melbourne planted on the footpath outside 50 Dryburgh Street a white cedar tree or, more technically, melia azedarch. It was planted about 3 metres from the western or front wall of the original building
Held: 340 Despite forming part of the prayer for relief, removal of the tree did not form part of Dr Livingstone’s opening or closing addresses. 341 Dr Livingstone is entitled to damages in the sum of $435,510.08 made up as follows:(f) cost of accommodation while the house is demolished and rebuilt: $41,600.00 – (g) cost of demolition and rebuild: $346,830.00.

Howard Finance Pty Ltd v Yarra City Council (No 2) [2020] VSC 742
PRACTICE AND PROCEDURE – costs – Whether costs should be apportioned according to issues – Supreme Court (General Civil Procedure) Rules 2015 r 63.04 – no apportionment – costs to follow the event.

Pogorzelski v Latrobe City Council [2020] VSC 718
ADMINISTRATIVE LAW – judicial review – application to review decision of VCAT not to extend planning permit – natural justice – Whether applicant was put on notice of issues – whether Tribunal failed to take account of relevant considerations – no error – Planning and Environment Act 1987 (Vic) s 69(2) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 – (2006) 228 CLR 152, Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 – (1994) 49 FCR 576 applied.

Chadwick v Frankston CC [2020] VCAT 1264
Section 82 Planning and Environment Act 1987 – Frankston Planning Scheme – General Residential Zone – three dwellings – rear laneway – amenity.

123 Balcombe Pty Ltd v Kingston CC [2020] VCAT 1257
Section 79 Planning and Environment Act 1987, Kingston Planning Scheme, neighbourhood character, incremental housing change, proximity to Major Activity Centre, housing policy, building height, building typology, overshadowing, overlooking.

Hargreaves v Melbourne CC [2020] VCAT 1271
Melbourne Planning Scheme – General Residential Zone, Schedule 2 – Heritage Overlay, Schedule 3 – partial demolition and construction of two dwellings on a lot less than 300 square metres – site coverage – height – massing – visual bulk – heritage significance – integration with the street – side and rear setbacks – overlooking – overshadowing – car parking – construction over easement.

Bayside CC v Nolte [2020] VCAT 1247
Enforcement order – costs application under s109 of the Victorian Civil and Administrative Tribunal Act 1998 – reimbursement of fees under section 115B of the Victorian Civil and Administrative Tribunal Act 1998.
By no later than 26 February 2021 Simon Hikaka and Amanda Nolte, jointly and severally, must pay the costs of Bayside City Council fixed in the sum of $4,500.00.

Bellong Pty Ltd v Mitchell SC [2020] VCAT 1256
Mitchell Planning Scheme – application pursuant to Section 79 of the Planning and Environment Act 1987 – General Residential Zone (GRZ1) – 69 lot residential subdivision – Council supports but 2 proposed conditions in dispute – requirement to retain trees within a reserve – requirement to increase size of lots – seymour structure plan – balancing policy – character – native vegetation assessment and retention – opportunity to prepare an amended proposal. 

Melbourne CC v 160 Leicester Pty Ltd [2020] VCAT 1255
Contempt of Tribunal – failure to comply with terms of Enforcement Order made by consent – Planning and Environment Act 1987 (Vic) ss 114, 119 – two-director company – where company party to the order – validity of the order – whether order clear and unambiguous – whether order capable of compliance – liability of directors – whether breach deliberately defiant or contumacious – inferential evidence – no other reasonable explanation as to breach – held – contempt established beyond reasonable doubt – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137 – Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 considered – Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 – (2014) 50 VR 256, Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585 discussed.

Lamacchia v Darebin CC [2020] VCAT 1242
Section 77 of the Planning and Environment Act 1987. Darebin Planning Scheme. General Residential Zone. Two double-storey dwellings. Neighbourhood character. Off-site amenity impacts.

Glenbothe Pty Ltd v Glen Eira CC [2020] VCAT 1231
Section 77 of the Planning and Environment Act 1987 – Glen Eira Planning Scheme – Caulfield South Neighbourhood Centre – adopted city plan – six storey building – interface with neighbourhood residential zone – building scale. 

Sintra Investments Pty Ltd v Banyule CC [2020] VCAT 1243
Section 77 Planning and Environment Act 1987 – Banyule Planning Scheme – demolition – height – visual Bulk – overlooking – neighbourhood character – housing diversity – housing affordability – environmental significance.

Binbeal Fields Pty Ltd v Baw Baw SC [2020] VCAT 1246
The proposal is for a seven lot subdivision of the review site. Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.[2]

The Edge Development Group Pty Ltd v Bayside CC [2020] VCAT 1227
Section 80 of the Planning and Environment Act 1987, electronic signs, conditions requiring deletion of some signs and restriction to illumination hours of others, disturbance of neighbours some distance away.

Williams v Port Phillip CC [2020] VCAT 1164
Section 79 Planning and Environment Act 1987 – Port Phillip Planning Scheme – neighbourhood residential zone – heritage overlay – extension to dwelling – heritage – amenity.

PMT Developers Pty Ltd v Mornington Peninsula SC [2020] VCAT 1235
Section 77 of the Planning and Environment Act 1987 – Mornington Peninsula Planning Scheme – General Residential Zone – Design and Development Overlay – Schedule 1 – four double storey dwellings – neighbourhood character – amenity.

Victton Pty Ltd v Melbourne CC [2020] VCAT 1233
Section 149(1)(a) of the Planning and Environment Act 1987 – extension of time for planning permit – section 81(1) of the Planning and Environment Act 1987 – extension granted for period other than what was sought – jurisdiction.

348-354 Hawthorn Road Pty Ltd v Glen Eira CC [2020] VCAT 1211
Section 77 Planning and Environment Act 1987, Building height, visual bulk, activity centre planning, access from category 1 road, overlooking, impact on solar panels.

Michaelidis v Boroondara CC [2020] VCAT 1239
Section 79 of the Planning and Environment Act 1987 – Boroondara Planning Scheme – Neighbourhood Residential Zone Schedule 3 – two side by side double storey dwellings – neighbourhood character – northern aspect – setbacks – tree protection.

Atkins v Campaspe SC [2020] VCAT 1229
Campaspe Planning Scheme – General Residential Zone Schedule 1 – re-subdivision/consolidation of land – partial removal of reserve – Council as the planning authority and the responsible authority – amenity impacts – buffer to industrial land. 

Central Victorian Welding and Fabrication Pty Ltd v Greater Bendigo CC (No 2) [2020] VCAT 1225
Greater Bendigo Planning Scheme clause 66.02-7 and clause 53.10 – Victorian Civil and Administrative Tribunal Act 1998 Schedule 1 clause 62 – industry (manufacture and maintenance of mining and agricultural equipment) – whether permit application was required to be referred to the EPA – whether permit application, as amended by the Tribunal, would have been required to be referred to the EPA – whether any failure to refer the permit application to the EPA should be disregarded.

Honghai Investments Pty Ltd v Whitehorse CC [2020] VCAT 1217
Section 77 of the Planning and Environment Act 1987 – Whitehorse Planning Scheme – General Residential Zone Schedule 1 – Significant Landscape Overlay Schedule 9 – multiple dwellings – neighbourhood character – landscaping – amenity impacts.

Rococo Holdings Pty Ltd v Bayside CC [2020] VCAT 1228
Section 87A of the Planning & Environment Act 1987 – Bayside Planning Scheme – Commercial 1 Zone – Category 1 – electronic signage – major promotion signage – driver distraction – 24 hour minimum dwell time – 30 second minimum dwell time. 

NSW

Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292
(1) Dismiss the appeal from the judgment and orders in the Land and Environment Court of 20 March 2020.
LAND LAW – easements – imposition of easement by Court – standard of appellate review –
requirement that proposed easement be “reasonably necessary for the effective use or development” of the land – Conveyancing Act 1919 (NSW), s 88K(1)
LAND LAW – easements – validity – characterisation under general law – rights not to confer exclusive use of servient tenement – enclosure of community land for waste transfer and recycling facility – loss of owner’s use of enclosed land and limited use of residue – whether proposed easement capable of being characterised as an easement
LAND LAW – community land – inability of Council to grant easement over community land – whether Court can impose easement where owner cannot grant it – Local Government Act 1933 (NSW), s 46 and Conveyancing Act 1919 (NSW), s 88K
Conveyancing Act 1919 (NSW), s 88K – Local Government Act 1993 (NSW), s 46 – Ch 6, Pt 2, Div 2.

Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156
JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) – whether decisions authorise use of land – purpose of use of land – whether for recreation area – whether development consent required – whether development for purposes of recreation area on a public reserve under the control of or vested in the council – whether continuance of a use of land for a lawful purpose – whether enlargement, expansion or intensification of use – whether use abandoned – whether use unlawfully commenced – development consent not required for use – no breach of Part 4 of EPA Act JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 5 of EPA Act – whether council decisions approve an activity – duty to examine and take into account environmental impact of activity – whether council breached duty in approving dog on-leash activity – duty to obtain, examine and consider EIS for activity likely to significantly affect environment – whether council breached duty in approving dog off-leash activity and dog on-leash activity – whether each activity likely to significantly affect the environment – breaches of Part 5 of EPA Act.

Entrepreneur Enterprises Pty Ltd v Lane Cove Council [2020] NSWLEC 1572
MODIFICATION APPLICATION – modification of consent – child care centre – number of children.

Ozaras v Inner West Council [2020] NSWLEC 1573
APPEAL – stop work order – complying development certificate for alterations and additions – demolition of walls and roof – orders. 

Environment Protection Authority v Central Coast Council [2020] NSWLEC 157
EVIDENCE – admissibility – exceptions to the hearsay rule provided by s 87(1)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) – alleged admission – whether alleged admission was made with authority for the purposes of s 87(1)(b) of the Evidence Act – alleged admission not made with authority – whether alleged admission was made within the scope of the maker’s employment for the purposes of s 87(1)(b) of the Evidence Act – alleged admission not made within the scope of the maker’s employment – alleged admission not an admission able to be relied upon because neither limb of s 87(1)(b) of the Evidence Act satisfied – evidence rejected – consequential rejection of further evidence that was contingent on acceptance of rejected “admission".

R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2020] NSWLEC 155
CIVIL PROCEDURE – separate determination of questions – where appropriate – separate questions ordered.

Kilzi v Cowra Shire Council [2020] NSWLEC 1566
DEVELOPMENT APPLICATION – multi dwelling housing development – terrestrial biodiversity – effect of proposed development on heritage significance – likely environmental impacts – solar access – site analysis.

Hatherly v Georgalas [2020] NSWLEC 1562
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of views – whether the obstruction is severe – the bamboo has been pruned – orders for removal – orders to restrict the height of future hedges.

Gill v Waverley Council [2020] NSWLEC 1552
MODIFICATION APPLICATION – pergolas on roof terrace with landscaping – substantially the same assessment – solar access assessment.

Brazete Investments Pty Ltd v North Sydney Council [2020] NSWLEC 1544
DEVELOPMENT APPLICATION – alterations and additions to a residential flat building – draft heritage item – heritage conservation area.

41 Robey Pty Ltd v Randwick City Council [2020] NSWLEC 1541
DEVELOPMENT APPLICATION – boarding house development – compatibility with the character of the local area – side setbacks – internal amenity – amenity impacts on adjoining development – impact on the heritage significance of adjoining heritage items.

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1540
DEVELOPMENT APPLICATION – seniors housing development – local heritage item – impact on the heritage significance of the heritage item – contravention of the accessibility standards for self-contained dwellings in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

Queensland

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
Leave to appeal refused.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – DISCRETION OF CONSENT AUTHORITY – where the respondent lodged a development application with the applicant Council to construct multiple townhouses in a low-density residential zone – where the application was properly made at a time where multiple townhouse developments were permitted in low-density residential zones under the Brisbane City Plan 2014 – where, after the conclusion of the hearing before the primary judge, but before judgment, the applicant Council resolved to amend the Brisbane City Plan 2014 to prohibit the development of multiple townhouse developments in low-density residential zones – where the learned primary judge allowed the respondent’s appeal and approved the development – where the applicant complains that the learned primary judge did not take the amendments into account as required by the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 – whether the learned primary judge properly considered the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 – whether the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 should be given determinative weight
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the development proposed by the respondent involved the removal of four native trees – where the learned primary judge characterised the four native trees as “unremarkable” – where the applicant Council complains that the learned primary judge’s description of the trees as “unremarkable” was made without evidence – where the applicant Council contends that the relevant provisions of the Biodiversity Overlay Code within the Brisbane City Plan 2014 should be interpreted to require the blanket protection of native trees – whether the learned trial judge erred by describing the trees as “unremarkable” – whether the learned trial judge erred by allowing the respondent’s appeal and approving the development notwithstanding the destruction of the four native trees.

Re: Ipswich City Council [2020] QIRC 194
EQUAL OPPORTUNITY AND – DISCRIMINATION – exemptions – sex discrimination – application to grant exemption under s 113(1) of the Anti Discrimination Act 1991 so the Applicant can recruit only female waste truck drivers – exercise of discretion
HUMAN RIGHTS – whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019, when deciding to grant exemption – whether granting of the exemption sought affects a human right within the meaning of s 15(5) of the Human Rights Act 2019 – whether decision to grant exemption is compatible with human rights within the meaning of the Human Rights Act 2019 – purposive interpretation of s 113(1) of the Anti-Discrimination Act 1991 in a way that is compatible with human rights – application granted.

Legislation

Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020
Assent Act no: 95 Year: 2020 10/11/2020
Amends the: Commonwealth Electoral Act 1918 to: clarify the interaction between federal, state and territory electoral funding and disclosure regimes following the High Court decision in Spence v Queensland [2019] HCA 15 – make technical amendments in relation to entity registration and public election funding rules – and allow a senior Australian Electoral Commission staff member rather than a senior Divisional Returning Officer to be on the Redistribution Committee for the Australian Capital Territory – Commonwealth Electoral Act 1918 and Referendum (Machinery Provisions) Act 1984 to amend various aspects of voting and scrutiny processes – and Referendum (Machinery Provisions) Act 1984 to extend the electronically assisted voting method to Australians working in Antarctica.

Victoria

Bills
Public Health and Wellbeing Amendment Bill 2020 (Vic)
Date of second reading speech: 11 November 2020
The purpose of this Act is to amend the Public Health and Wellbeing Act 2008 to exclude noise or emissions from wind turbines at wind energy 5 facilities from the application of Division 1 of Part 6 of that Act.

NSW

Regulations and other miscellaneous instruments
Biodiversity Conservation Amendment (COVID-19) Regulation 2020 (2020-671) – published LW 19 November 2020
Environmental Planning and Assessment Amendment (Moorebank Avenue Realignment) Order 2020 (2020-675) – published LW 20 November 2020
Planning and Environment Legislation Amendment (COVID-19) Regulation 2020 (2020-672) – published LW 19 November 2020
Water Management (General) Amendment (COVID-19) Regulation 2020 (2020-673) – published LW 19 November 2020
Community Land Management Amendment (COVID-19) Regulation (No 2) 2020 (2020-659) – published LW 12 November 2020
Environmental Planning and Assessment Amendment (Western Harbour Tunnel and Warringah Freeway Upgrade Project) Order 2020 (2020-663) – published LW 13 November 2020
Environmental Planning and Assessment Amendment Regulation 2020 (2020-662) – published LW 13 November 2020

Environmental Planning Instruments
State Environmental Planning Policy Amendment (Concurrence and Referrals) 2020 (2020-667) – published LW 13 November 2020

Non-Government – 13 November
Casino Control Amendment (No Compensation) Bill 2020
Environmental Planning and Assessment Amendment (Review of Land Decisions) Bill 2020
ICAC and Other Independent Commissions Legislation Amendment (Independent Funding) Bill 2020
Independent Commission Against Corruption Amendment (Property Developer Commissions to MPs) Bill 2020

Bills passed by both Houses of Parliament – 20 November
Bushfires Legislation Amendment Bill 2020
Liquor Amendment (24-hour Economy) Bill 2020
National Parks and Wildlife Legislation Amendment (Reservations) Bill 2020

Bills reminder
Statute Law (Miscellaneous Provisions) Bill 2020
1.15 Electoral Funding Act 2018 No 20 Schedule 2 Savings, transitional and other provisions – Schedule – Part 4 Provision consequent on postponement of September 2020 local government elections – postponed local government elections To avoid doubt, for the purposes of sections 28 and 31A of this Act, the local government elections to be held on 4 September 2021 are taken to be ordinary.
For the full text of Bills, and details on the passage of Bills, see Bills.

Queensland

Acts Commencement

Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and perceived integrity and public accountability of State elections and ensure public confidence in State electoral and political processes
Commencement: (1)Chapter 2 commences as follows – (c)the following provisions commence on 1 July 2022 – (4)Chapter 5 commences as follows – (b)the remaining provisions of chapter 5 commence on 12 October 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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