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Inside track: Property & Real Estate

01 June 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Australian property market to recover in 5 Years: PIPA
Although the full impact of Covid-19 is yet to hit the Australian property market, researchers predict the downturn won't last long (22 May 2020).  More...

Doomsday housing price forecasts highly questionable
The REIA says that forecasts of housing price drops of as much as 30 per cent are highly questionable and cannot be relied upon with any degree of confidence (21 May 2020).  More...

The sleeper issue that could collapse the commercial property market
In the enthusiasm of Governments around the nation to be pro-active with financial support for COVID-19, commercial landlords have been abandoned – particularly those who rely on small to medium sized enterprises for their income (21 May 2020).  More...

Property industry can kick-start economic recovery
Incentives for new housing construction, broad-based tax reform, improving the supply of affordable housing, and the renewal of our migration program are among the key areas for action in the Property Council of Australia’s seven-point plan for economic recovery after COVID-19 (20 May 2020).  More...

Safe Work Australia guidance on lifts
The Property Council of Australia has welcomed the updated guidance from Safe Work Australia on the ‘COVIDSafe’ use of lifts in office buildings. The new guidelines on lift usage are sensible and practical, and give our building owners, managers and their tenants the certainty they need to plan their return to the office in coming weeks (20 May 2020).  More...

Lower valuations a challenge for developers: RBA
The Reserve Bank has sounded its second warning in as many months about the risk of deteriorating commercial conditions on financial stability (19 May 2020).  More...

RICS: Valuation during COVID-19
Valuation underpins the financial services sector and, in turn, the national economy. Despite this, valuers are fighting to win designation as an ‘essential service’ to support ongoing demand for valuation. RICS strongly supports the call for state and federal governments to list valuation as an essential activity and is consulting with lenders and valuation firms to secure the designation (14 May 2020).  More...

Inner-City apartment completions to contract until 2021
The Covid-19 crisis is likely to cause more delayed or abandoned apartment projects and in turn cause underlying growth to halve in 2020 with further declines of 25 per cent on the horizon in 2021, JLL says (14 May 2020).  More...

New FIRB rules could derail leasing deals
Tough new foreign investment rules designed to protect local assets and businesses from opportunistic takeovers during the coronavirus crisis could inadvertently derail leasing deals across the office, industrial and retail markets, experts warn (13 May 2020).  More...

Victoria

Rebuilding Melbourne’s economy with stimulus and rates relief
The City of Melbourne will invest $50 million in economic stimulus and implement a freeze on rate increases this year as Council takes action to protect jobs and businesses and responds to the COVID-19 pandemic (19 May 2020).  More...

Victoria unveils $2.7bn construction boost
In a bid to create 3,700 new jobs and get the economy moving following the Covid-19 restrictions Victorian premier Daniel Andrews has announced a $2.7 billion construction stimulus package for the state (18 May 2020).  More...

Social housing fund to deliver 2,200 units
The Victorian government has laid out plans for 2,000-plus new units over the next five years to support “vulnerable Victorians” as part of a $1 billion fund (15 May 2020).  More...

Melbourne’s industrial market proving ‘incredibly resilient’ during coronavirus
Industrial property landlords in Victoria are offering tenants flexibility with their leases, as players in the industrial market adapt to the impacts of the COVID-19 outbreak (12 May 2020).  More...

NSW

More planning projects to propel future of NSW
NSW will lead Australia to economic recovery, with the NSW Government announcing another 24 priority projects, including a new retail centre, industrial precincts, three new schools and the relocated Sydney Fish Markets, that could inject more than $5.37 billion into the State’s economy (22 May 2020).  More...

George Street skyscraper to replace last major cinema in Sydney's CBD if approved
A 270-metre skyscraper planned for George Street is approved as an addition to the Event Cinemas site, alongside a new boutique cinema (14 May 2020).  More...

Statement of expectations for Independent Planning Commission
The state’s Independent Planning Commission has been set new accountability benchmarks to ensure greater timeliness and transparency in decision-making, as part of the roll-out of reforms recommended by the NSW Productivity Commission (14 May 2020).  More...

Queensland

Gold Coast apartment sales pick up, supply falls off
The Gold Coast apartment market has transitioned into the Covid-19 crisis in a much better position than it was going into the global financial crisis, planning and advisory firm Urbis says (19 May 2020).  More...

Barber Property Group lodges plans for medical facility, hotel
Barber Property Group has lodged plans for a “sub-tropical” 15 storey private medical facility and hotel in Spring Hill. It was the second medical facility application lodged in the Brisbane CBD fringe suburb (18 May 2020).  More...

PCA: Establishment of Queensland response and recovery coalition
The Property Council have joined the cross-industry Queensland Response and Recovery Coalition (QRRC) to provide strategic advice to government during the COVID-19 crisis. The QRRC is a collective of industry and peak bodies seeking to inform decision makers in areas such as planning, policy, and investment (13 May 2020).  More...

PCA: Townhouse ban now in effect
Amendments passed in February 2020 to restrict townhouses from single home areas (Major amendment package H) are effective as of 1 May 2020. The amendments are now part of the Brisbane City Plan 2014 (City Plan) (13 May 2020).  More...

Roadmap to easing restrictions revealed
The Queensland Government have released a staged approach to easing COVID-19 restrictions,  likely to coincide with many workers returning to work across various sectors. The Property Council has been communicating with government on the practicality and potential risk of staff returning to work in commercial premises (13 May 2020).  More...

COVID-19 delays infrastructure projects across Brisbane
The coronavirus pandemic has been blamed for delays in environmental restoration and rehabilitation works (12 May 2020).  More...

Published – articles, papers, reports

REIA News - May 2020
In this issue: Landlord Insurer provides COVID-19 clarity; Temporary change to FIRB requirements and Tax tips for rental property owners affected by COVID-19.  More...

How will Australian Property markets fair in the face of COVID-19?
API Research Paper: 19 May 2020
In these unprecedented times, it becomes increasingly difficult to predict the outlook for Australian property markets. The Australian Property Institute provides commentary from some of the country’s most experienced commentators to see how their predictions had changed.  More...

In practice and courts

Commonwealth

Foreign Investment Review Board
The Treasurer has announced changes to Australia’s foreign investment review framework, effective from 29 March 2020, relating to monetary thresholds and timeframes for reviewing applications. Details are available in our Guidance Note, updated on 18 May 2020, which addresses the effects of the changes

Building big to create jobs and drive our state’s recovery
The Victorian Government has announced $2.7 billion to build the projects that matter to Victoria – and create the jobs that matter to Victorians. The Department of Jobs, Precincts and Regions will help deliver the stimulus package, which is supporting: regional and rural areas; community sport; suburban revitalisation (18 May 2020).

SRO Reminder: How to claim coronavirus land tax relief
Landlords who provide tenants impacted by coronavirus with rent relief and those unable to secure a tenant because of the pandemic may be eligible for a 25 per cent reduction on the property’s 2020 land tax. These landlords can also defer payment of their remaining 2020 land tax up to 31 March 2021. You can log in, or create a new registration for My Land Tax.  More...

295-357 Wellington Parade South, Melbourne (Treasury Square)
The Government Land Planning Service, on behalf of the Minister for Planning, is now seeking views from interested parties on a combined planning permit application for a two-lot subdivision and a planning scheme amendment under section 96A of the Planning and Environment Act 1987 for the site at 295 – 357 Wellington Parade South, Melbourne. The site is known as Treasury Square. Please visit the website for more information about the proposal and how to make a submission. Submissions close 29 May 2020

Announcements, Draft Policies and Plans released 2020

NSW

NSW Revenue Reminder: COVID-19 (coronavirus) and gaming machine tax
Gaming machine tax normally paid between 1 March 2020 and 31 August 2020 is deferred to 1 September 2020.  More...

NSW Revenue Reminder: COVID-19 (coronavirus) and parking space levy
As part of the NSW COVID-19 stage two economic package, the NSW Government has deferred parking space levy (PSL) payments from the end of March for six months until 30 September 2020, to provide cash flow relief to businesses.  More...

Brisbane

Brisbane Airport Corporation: Projects and planning
Brisbane Airport Corporation has invested a further $1.8 billion worth of infrastructure to be delivered between now and 2022. Projects to be delivered include Brisbane's New Runway, the Auto Mall development and Terminal redevelopments. Explore airport plans, major projects and development information below (May 2020).

Amendments to QCAT Practice Directions No 6 2020
The updated Practice Directions can be found on the QCAT website.  More...

COVID-19 Update on Courts, Commissions, Tribunals, Property law and Criminal law
QLS will provide up to date information on our website regarding the evolving COVID-19 situation and the response of the Courts, Commissions, and Tribunals in Queensland.
Further key updates on information specifically relating to property law, can also be found on the QLS website.

Planning legislation amendment
Urgent amendments to Queensland's planning legislation are now in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19.
Temporary use licences updated to 22 May 2020.  More...

Title Registry Alerts No 169: Foreign Ownership of Land Register Act 1988 amendments
Amendments to the Foreign Ownership of Land Register Act 1988 (FOLR Act) as a result of the Land, Explosives and Other Legislation Amendment Act 2019 will commence on 1 July 2020. These amendments relate to the definition of a foreign person and changes to the notification requirements.
The Titles Registry is also planning to introduce a new version 5 of the Form 25 – Foreign Ownership Information from 1 July 2020 which will include changes related to the FOLR Act amendments (11 May 2020).  More...

Current Place Name Proposals
Comment on a proposal - All proposals listed here have a public consultation period
Job number 16-073: Marathon
Closing date for comments: 17 July 2020

Cases

Noble v Noble (Building and Property) [2020] VCAT 567
CO-OWNERSHIP – COSTS – application under the Property Law Act 1958 – applicant sought dismissal of the proceeding with no order as to costs – first respondent consented–second respondent sought costs – whether the applicant had an arguable cause of action against the second respondent – if not, whether the circumstances justified an order for costs in favour of the second respondent having regard to considerations in s 109 of the Victorian Civil and Administrative Tribunal Act 1998 – costs awarded against the applicant in favour of second respondent
Whether a special costs order providing for the payment of costs on an indemnity basis should be made – finding that proceeding bound to fail and also commenced for ulterior purpose – ordered that applicant must pay the second respondent’s costs on an indemnity basis. 

Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd & Ors [2020] VSC 242
PRACTICE AND PROCEDURE – application for insolvent trading exoneration defence to be heard separately – application for third party proceeding to be heard separately – utility, economy and fairness of trial of separate questions not beyond question – applications dismissed – application by defendants for leave to commence derivative proceeding in the name of the plaintiff – allegations of breach of trust and fiduciary duties by receivers – potential delay of trial – derivative proceeding inutile if Court rejects aspects of defence and counterclaim – application dismissed – application by third parties for summary judgment – second defendant claiming equitable contribution in respect of liability for insolvent trading – questionable whether limitation period prescribed by s 24(4) Wrongs Act 1958 (Vic) applies to claim for equitable contribution – allegations of unconscionable conduct potentially relevant to application of s 24(4) Wrongs Act 1958 (Vic) – appropriate to determine issue at trial – application dismissed – Corporations Act 2001 (Cth) ss 588G, 588M, 1317S, 1318 – Wrongs Act 1958 (Vic) ss 23B, 24(4) – Civil Procedure Act 2010 (Vic) ss 7, 62, 63 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 11.12, 11.13, 47.04. A joint venture to acquire and develop a property in Ascot Vale.

Foudoulis v O'Donnell [2020] VSC 248
REAL PROPERTY – restrictive covenant on title – ‘not more than one dwelling house shall be erected’ – proposal to build two additional double storey dwellings at rear of existing single storey dwelling – application to modify covenant to enable proposed development – applicant’s statutory burden of proving modification will not substantially injure the persons entitled to the benefit of the restriction – Court’s approach to assessment of substantial injury – covenant not obsolete – relevance of instances of re-subdivisions and numerous dwellings within other Lots in neighbourhood – precedential effect of modification – application refused – Property Law Act 1958 (Vic) s 84(1)(c). 

Gray v Minister for Energy, Environment & Climate Change [2020] VSCA 121
TOWN PLANNING – appeal to Trial Division from decision of Victorian Civil and Administrative Tribunal – decision of Tribunal to refuse permit for proposed dwelling and works – tribunal refused permit on grounds including lack of access to site, failure of plan to comply with environmental requirements and unacceptable bushfire risk – whether judge erred in upholding finding by Tribunal that applicant did not have requisite access to site – whether access track across unreserved Crown land adjoining site a public highway – whether common law principles applicable to determine whether part of Crown land a public highway – whether judge erred in concluding that section of Planning Scheme relating to bushfire risk applied to site – whether judge erred in concluding that Tribunal correct in determining bushfire risk – whether appeal futile if leave granted – leave to appeal refused – Bass Coast Shire Council v King [1997] 2 VR 5 considered – Anderson v City of Stonnington [2017] VSCA 229 distinguished – Yarra Ranges Planning Scheme cls 13.02-IS, 13.05, 35.06.2, 44.06, 53.02, 65.01, 71.02. 

Melbourne Property v St Kilda Estates [2020] VCC 570
SALE OF LAND – Estate Agents – regulated estate agent authority – Estate Agents Act 1980 (Vic), s49A disclosure requirements – agent barred from commission and liable to penalty if exclusive sale authority is non-compliant – whether rebate statement contained in exclusive sales authority was in ‘a form approved by the Director’ of Consumer Affairs, within the meaning of s49A(6) – whether strict or substantial compliance required – whether there was substantial compliance
STATUTORY INTERPRETATION – meaning of ‘in a form approved by the Director’ under s49A(6) of the Estate Agents Act 1980 (Vic). 

Camcom Nominees Pty Ltd v Kubiak (Building and Property) [2020] VCAT 513
Retail Leases Act 2003 – claim by landlord against guarantors of tenant’s obligations under a lease – defence raised by guarantors that tenant was entitled to a reduction of rent and outgoings by reason of operation of s.57 of the Act – issue as to whether s.57 applies where the damage relied on existed before the creation of the lease – other claims for damages determined – the Respondents must pay damages to the First Applicant of $6,221.17.

DJP Scoria Pty Ltd v Mount Road Nominees Pty Ltd (No 2) (Building and Property) [2020] VCAT 552
PRACTICE AND PROCEDURE – INJUNCTIVE RELIEF – land occupied by applicant pursuant to a written agreement with respondent, protected from repossession by injunction granted on 17 January 2018 – hearing date fixed for 27 July 2020 – whether the cessation of the applicant’s business at the land subsequent to the injunction has so changed the balance of convenience since the injunction was granted as to warrant the discharge of the injunction, and leave the applicant to its remedy in damages – applicant’s lack of merit concerning the respective questions to be tried, alleged by the respondent to be the case by reason of subsequent findings of the Tribunal in a related proceeding between the parties, not relied on by respondent for the purpose of the application – held that balance of convenience had not so changed as to warrant discharge of the injunction
SECURITY FOR CROSS-UNDERTAKING – applicant’s cross-undertaking as to damages – whether, the cessation of the applicant’s business at the land has resulted in the applicant and/or its directors not having the means to pay damages, as to now call for security for the undertaking – found that financial support for the applicant’s cross – undertaking is deficient and that security must be given, subject to the respondent better particularising its loss and damage by reason of the injunction.
AMOUNT OF SECURITY FOR CROSS-UNDERTAKING – amount of security to support the applicant’s cross-undertaking – consideration of evidence as to damage that may be suffered by respondent if the injunction is found to have been wrongly made – examination of evidence – in light of inadequacy of material concerning damage to be incurred by the respondent if found that injunction wrongly maintained, further submissions sought from the parties as to the amount of security to be provided
DISCRETIONARY FACTORS – whether alleged failure by applicant to abide by the Tribunal’s condition of the injunction should also, together with other factors, warrant discharge of the injunction–whether words used by counsel for the respondent to the Tribunal on an occasion subsequent to the injunction bore the meaning for which contended by the applicant, such as to relieve it of certain of its obligations previously imposed as a condition of injunctive relief – whether question of construction should be finally determined rather than granting interlocutory relief – found that words used by counsel for the respondent did not amount to a waiver by respondent of the applicant’s duty to the Tribunal to comply with these obligations – the finding of breach by the applicant of terms of injunction held not to be a factor, when considered with other factors, as to warrant discharge of injunction
Injunction maintained and application adjourned for further submissions.

Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18
PLANNING AND ENVIRONMENT – APPEAL – submitter appeal – application for a development permit for a material change of use for an extractive industry and environmentally relevant activities – where the site is listed on the Environmental Management Register pursuant to the Environmental Protection Act 1994 (Qld) because of notifiable activities having been carried out – where the proposed material change of use and environmentally relevant activities involve the extraction, processing, testing and export of gravel from a heap pile at the site left over from a former gold mine – where there are elevated levels of arsenic and copper in the material – whether the material is contaminated – whether the proposal is likely to cause undue land contamination, human health, ecological and/or environmental impacts – whether adequate controls are available to appropriately safeguard against the risks associated with the inappropriate use of the material once it has been exported from the site – whether conditions of approval can be formulated to address those risks
PLANNING AND ENVIRONMENT – EXPERT WITNESSES – where experts remained in disagreement in many respects following the expert meeting and joint report process – where the Court was invited to make adverse findings about the credibility of some experts – whether one or some of the expert witnesses fell short of demonstrating the qualities of a dispassionate and objective expert witness.

Tokyo 2 Pty Ltd v Brisbane City Council [2020] QPEC 23
PLANNING AND ENVIRONMENT – APPLICATION – whether changes to a development application are a minor change – whether changes to a development application result in a substantially different development – what consideration is given to properly made submissions. Planning Act 2016 Qld.

The State of Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – tenancy dispute – Public Housing – where Applicant applied to terminate Respondent’s State tenancy for objectionable behaviour
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION OF LESSEES – statutory criteria for objectionable behaviour – whether tenant behaviour objectionable – whether objectionable behaviour ground made out – discretionary factors
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where Human Rights Act 2019 (Qld) applies in Queensland residential tenancy context – where human rights limited in certain circumstances - whether human rights of tenant to privacy, family and home prevail over right of lessor to evict tenant – whether human rights to freedom to choose residence, not to be treated in cruel, inhuman or degrading way, or freedom of expression limited – where Residential Tenancies and Rooming Accommodation Act 2009 (Qld) valid, effective and limiting according to its provisions – where exercise of discretion requires consideration of human rights and balancing of legislative purposes – whether termination of lease for objectionable behaviour non-arbitrary and lawful – whether termination a proportionate response to objectionable behaviour of tenant. Charter of Human Rights and Responsibilities Act 2006 Vic s 7.

Cases to 18 May 2020

Monaco Street Pty Ltd v Ipswich City Council [2020] QPEC 21
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant says its development approval lapsed – where the applicant sought a declaration about the lapse – whether the court has jurisdiction to grant the declaration sought – whether the declaration should be made in the exercise of the discretion
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant sought an order excusing a lapse of its development approval and reviving the development approval – whether the court has jurisdiction to grant the relief sought – whether the relief sought is appropriate
PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change an existing development approval to extend its operation by a further two years – where the development approval was originally granted in 2011 – whether the applicant has demonstrated that it is the owner – whether the changes were acceptable
Planning Act 2016 Qld s 78, s 79, s 81; Planning and Environment Court Act 2016 Qld s 11, s 37.

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Tivoli Gardens Ipswich Pty Ltd & Ors [2020] QCAT 140
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim Fund under Agents Financial Administration Act 2014 (Qld) – whether reimbursement order should be made – where relevant event was expiry of Resident Letting Agent Corporation Licence – where receiver appointed – where requirements for reimbursement order for receiver remuneration and costs met – where Tribunal does not have discretion when requirements met
Agents Financial Administration Act 2014 Qld s 64, s 75, s 78, s 102, s 116, s 117, s 118, s 119
Property Agents and Motor Dealers Act 2000 Qld s 434
Queensland Civil and Administrative Tribunal Act 2009 Qld s 157
Queensland Civil and Administrative Tribunal Rules 2009 Qld r 39.

Legislation

Queensland

Subordinate Legislation as made – 15 May 2020
No 69 Natural Resources, Mines and Energy Legislation (Safety and Health) Amendment Regulation 2020
No 67 Natural Resources and Other Legislation Amendment (Postponement) Regulation 2020
The period before automatic commencement, under the Acts Interpretation Act 1954, section 15DA(2), of the postponed law is extended to the end of 24 May 2021.

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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