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Inside track: Planning, Environment & Sustainability

01 March 2021

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Commonwealth

Productivity Commission report charts change in social housing provision
The annual 2021 Productivity Commission report on government services and housing reveals that the ongoing long-term reduction in the number of public housing dwellings (17 February 2021).  More...

Victoria

Designs and tender released for eighth vertical school
Victoria will soon have another new vertical government school to address population growth across the inner city. The project has been funded by the Labor Government with more than $36 million invested in the Victorian Budget 2020-21, a further $5 million delivered from the Infrastructure Planning and Acceleration Fund (17 February 2021).  More...

Electric vehicle technology pulls in to Maryborough
One of the world’s most advanced electric vehicle (EV) rapid chargers has been installed at Maryborough in Central Victoria as part of 17 EV chargers under construction throughout the region, due to the Andrews Labor Government’s work to boost tourism, reduce emissions and support the uptake of electric vehicles (16 February 2021).  More...

Backing our environmental volunteers
The Andrews Labor Government is funding 20 new and innovative volunteer projects, including creative ideas to restore koala habitat. The $2 million Fund supports conservation projects by helping with the costs of training, delivery and equipment, making sure people from all walks of life are able to volunteer in our parks and forests (16 February 2021).  More...

Experts to lead major independent review of Wildlife Act
The Andrews Labor Government has appointed an independent expert advisory panel to lead a review of the key Act that protects and manages our state’s unique wildlife (15 February 2021).  More...

Docklands office tower gets green light
Digital Harbour Holdings’ has plans to build a $195 million, 22-storey office building on the western edge of the Docklands after receiving the final nod of approval. The state minister for planning referred the application to council who voted to support the plans at 208-226 Harbour Esplanade, Docklands at the newly-rebranded City Harbour (09 February 2021).  More...

Ten year vision for social and affordable housing
The Andrews Labor Government is inviting Victorians to have their say on social and affordable housing as part of a 10-year strategy that will ensure more Victorians have safe, suitable and secure housing (09 February 2021).  More...

Review to determine growth boundary in booming Surf Coast
Spring Creek has become the latest flashpoint in a controversial planning review looking at how the Torquay area can accommodate massive growth (07 February 2021).  More...

NSW

Developers forced to fix defects after commissioner wields new powers
The NSW Building Commissioner has shown he will not hesitate using one of his strongest powers to clean up the construction industry, issuing prohibition orders on several projects (19 February 2021).  More...

Central Waste Plant Pty Ltd to pay over $125,000 for alleged licence breach
Central Waste Plant Pty Ltd has entered into an Enforceable Undertaking with the NSW Environment Protection Authority to pay $111,000 towards conservation and clean-up programs after it received more than double the amount of waste allowed, through its Kurri Kurri facility (18 February 2021).  More...

Forestry Corporation fined for failing to mark out a prohibited logging zone
The NSW Environment Protection Authority has fined Forestry Corporation of NSW for allegedly failing to mark up a protected zone during a logging operation on the NSW Central Coast (18 February 2021).  More...

Green light for more solar in strata
The NSW Government has delivered on its promise to drive clean, reliable and affordable energy in NSW through the passage of new amendments in Parliament that make it easier to install renewable energy into strata buildings (17 February 2021).  More...

$16.5 million for more green space
More than $16 million from the NSW Government’s COVID-19 stimulus fund will help deliver more quality green public space on Crown land across Greater Sydney (16 February 2021).  More...

Green light for $1 billion metro town centre
The creation of a town centre in Sydney’s thriving north-west, which will feature new homes, create more than 2,000 jobs and provide the public with more open space, has been approved by the NSW Government (14 February 2021).  More...

Parramatta Powerhouse plans given green light
Plans for the new Powerhouse Museum at Parramatta have been approved by the NSW Government, ensuring the city’s future as the jobs and cultural powerhouse of Western Sydney. The inclusion of green open space as part of the overall plans will be beneficial for locals and visitors to Parramatta (13 February 2021).  More...

National art school site joins the State Heritage Register
The former Darlinghurst Gaol, now the site of the National Art School, has been listed on the State Heritage Register. The listing protects an important part of NSW’s historical and cultural history (12 February 2021).  More...

Housing reforms a win for renters
Renters will have more choice and the property industry will be transformed by a raft of planning and tax reforms that will make build-to-rent housing a reality in NSW (12 February 2021).  More...

New Build to Rent policy changes show the way for Planning Reform
Urban Taskforce Chief Executive, Tom Forrest, said that the new state planning rules for Build to Rent showed the way forward for solving the growing Sydney housing supply crisis. The new State Environmental Planning Policy Amendment for Build to Rent housing, gazetted, combined with modest tax concessions could result in greater investment in housing and more supply (12 February 2021).  More...

NSW Government starts process to remove high-risk cladding
The NSW Government has announced further details of the project to facilitate the removal of high-risk combustible cladding from residential apartment buildings across the State (10 February 2021).  More...

Keating, Turnbull behind Macquarie Street shake-up
Sydney’s “overlooked” Macquarie Street could be revived into a cultural hub as part of a major shake-up of the historical stretch on the city’s eastern fringe. Macquarie Street houses some of the state’s most significant cultural and historic buildings and forms the civic spine of Sydney, its authors said in its Macquarie Street East Precinct Review (09 February 2021).  More...

New homes forecast for Sydney over next five years stuck in slow lane
Under the most likely scenario, the government estimates about 31,000 new dwellings a year will be built over the period (06 February 2021).  More...

Queensland

$100,000 in fines for illegal waste operators
More than $100,000 in fines have been issued in the past three months to people who have been illegally operating in the waste industry in Queensland (12 February 2021).  More...

Brisbane approves wave of waterfront developments
Brisbane’s city skyline will continue to transform with a wave of major development projects receiving the official tick of approval. Council’s decisions reflect major development taking place in Brisbane CBD (09 February 2021).  More...

Quarry company fined for EA offences
A quarry company has been fined $60,000 in the Toowoomba Magistrates Court after pleading guilty to two offences of the Environmental Protection Act 1994 (09 February 2021).  More...

Brisbane historic riverside mansion Lamb House protected from development under council planning amendments
The Brisbane City Council has approved planning amendments that prevent the grounds of the heritage-listed, riverside mansion, Lamb House, from being developed. The Queensland Government also imposed an enforcement notice on the house preventing demolition or the removal of any structures (09 February 2021).  More...

Kangaroo Point residents question developer influence on neighbourhood plan: Courts
Councillor Jonathan Sri, said the arrangement for constituting Community Planning Teams as part of Council’s drafting process for neighbourhood plans, “is not transparent, representative or democratic.” (08 February 2021).  More...

In Practice and Courts

Governors Domain and Civic Precinct recognised on the National Heritage List
An outstanding historic precinct with a diversity of historic parks, gardens, streets, archaeological sites and buildings has been added to the National Heritage List (10 February 2021).  More...

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 2021.  More...

Victoria

Victoria’s draft 30-Year Infrastructure Strategy
We have released Victoria’s Draft 30-Year Infrastructure Strategy and are inviting all Victorians to have their say. Community consultation ends on February 26, 2021. The final 30-year infrastructure strategy will be presented to the Victorian Government in mid-2021. To read the draft strategy, or participate in community consultation opportunities visit here.

New Environment Protection Act postponed to July 2021
The legislation has been postponed and is intended to commence on 1 July 2021. On that basis, EPA will continue to regulate under the Environment Protection Act 1970, including all existing subordinate legislation (Regulations and statutory policies including state environment protection policies and waste management policies) until the new commencement date.  More...

Announcements, Draft Policies and Plans released 2020

NSW

Have your say on changes to how building design and construction is regulated in NSW
The development of supporting regulations is the next step on delivering on this piece of the Government’s building reform agenda, with the scheme commencing on 1 July 2021. The Design and Building Practitioners Regulation commences on this date.  More...

NSW Revenue: Extension to HomeBuilder Grant
On 29 November 2020 the Australian Government announced an extension to the HomeBuilder program until 31 March 2021.  More...

Strata statutory review: Consultation now open
The Government has commenced a wide-ranging review of the laws affecting strata schemes under the Strata Schemes Management Act 2015 and the Strata Schemes Development Act 2015.
Public consultation is now open and will close on 7 March 2021. Please visit the Have your say - strata statutory review website to access the Strata Discussion Paper and for surveys on management and development issues.

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...

EPA draft Construction Noise Guideline to drive reduced impact on community
The NSW Environment Protection Authority (EPA) has published a draft Construction Noise Guideline for public consultation that improves and modernises the current Interim Construction Noise Guideline. We are seeking feedback on the guideline until 15 March 2021. Have your say here.

Agricultural Land Use Planning Strategy
The NSW Agriculture Commissioner is seeking feedback on options to improve certainty and consistency for agriculture in the planning framework. The Agriculture Commissioner recommends the development of an Agriculture Land Use Planning Strategy to address three key issues. Have your say by 28 February 2021.  More...

Proposed special infrastructure contribution for Western Sydney Aerotropolis
The proposed Special Infrastructure Contribution for Western Sydney Aerotropolis is on exhibition until 18 December 2020. Have your say by 26 February 2021.  More...

Queensland

Moreton Bay Economic Strategy
Moreton Bay Regional Council has released its Regional Economic Development Strategy 2020 – 2041 to support its ‘Bigger, Bolder, Brighter’ vision. The strategy recognises the construction industry as a big contributor to the local economy and capitalises on the region’s access to major road and rail (18 February 2021).

Roma Street Cross River Rail Priority development area
Submissions are now being invited to contribute on the proposed Roma Street CRR PDA Development Scheme, Draft Development and Offset Plan. With a new underground Roma Street Cross River Rail station being constructed, the PDA will be used to guide a coordinated development of the surrounding precinct. Submissions close on 1 April 2021. 

Gold Coast Coastal Adaptation Plan
The City of the Gold Coast has released its draft Coastal Adaptation Plan for feedback. The plan outlines a long-term strategy for how the Gold Coast responds to the impact of climate change. Community engagement runs from 19 January to 19 February 2021. To read the draft plan or to provide feedback, please click here.

Rockhampton Regional Council expands development incentives policy
Rockhampton Regional Council has expanded its development incentives policy to include multi-residential unit developments within close proximity to the CBD. The policy will apply to DA’s lodged between 1 January 2021 and 31 December 2021. For more information, please click here.

Build-to-Rent update - approved projects
The Queensland Government has approved two Brisbane-based affordable housing projects by developers following a Request for Detailed Proposals from shortlisted applicants from the Expression of Interest Phase of the Pilot Project. It is anticipated construction will commence mid-2021 following the finalisation of designs for the projects, with operations expected to commence in 2023.  More...

Consultations
SDA application for a material change of use for a transport depot (hardstand truck pad) in the Townsville State Development Area Closes 09 March 2021
Inland Rail – Calvert to Kagaru project – draft environmental impact statement Closes 8 March 2021
Inland Rail – Border to Gowrie project – draft environmental impact statement Closes 19 April 2021

Cases

Victoria

Mason v Head, Transport for Victoria [2021] VSCA 19
LAND VALUATION AND COMPENSATION – determination of questions reserved by order of trial judge pursuant to Supreme Court Act 1986, s 17B – rights of owners of land to compensation in circumstances where value of land is adversely affected by imposition of reservation for public purposes pursuant to planning scheme – interpretation of ss 98(1) and 108 of the Planning and Environment Act 1987 (‘P&E Act’) – subject land reserved for a public purpose under a planning scheme; registered proprietor at the time reservation was imposed, died without having sold the land; applicants became registered proprietors as beneficiaries under the land owner’s will – Whether applicants precluded from claiming compensation under s 98(1)(a) of the P&E Act on the basis that they were not owners of the land at the time of the imposition of the planning reservation – reconsideration of Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 – reasoning with respect to s 98(1) – Sufficient that claimant be owner or occupier at the date the right to compensation arises – claim limited to financial loss suffered as the natural, direct and reasonable consequence of the reservation – whether in circumstances where applicants became registered proprietors as beneficiaries under the will of the former registered proprietor, they have ‘acquired’ the land within the meaning of s 108(2) of the P&E Act – applicants have not since the reservation ‘acquired’ the land within the meaning of that word understood in its context – leave for consideration of questions granted – both questions answered ‘no’ – Planning and Environment Act 1987 ss 98, 99, 108 – Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 reconsidered.

Warburton Environment Inc v VicForests (No 3) [2021] VSC 35
PRACTICE AND PROCEDURE – timber harvesting of State forests – standing where plaintiff is an environment group – statement of claim – claim for declarations of criminal conduct in civil proceedings – adequacy of prayer for relief – interlocutory injunction – confidentiality of documents to be produced – Civil Procedure Act 2010 (Vic) s 47 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 29.10, 29.11, 47.04 – Sustainable Forests (Timber) Act 2004 (Vic) ss 14(2), 16, 46(a) – Illegal Logging Prohibition Act 2012 (Cth) – Code of Practice for Timber Production 2014 – management Standards and Procedures for timber harvesting in Victorian State forests 2014.

Barnsley v Darebin CC [2021] VCAT 104
Planning and Environment List – whether s 77 of the Planning and Environment Act 1987 (Vic) is an exercise of judicial or administrative power – Chapter III Australian Constitution ss 71, 75, 76 – Judiciary Act 1903 (Cth) s 39 – preliminary matter to determine jurisdiction of the Victorian Civil and Administrative Tribunal – Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30 considered – Burns v Corbett [2018] HCA 15 [43] considered – Krause v Williams [2020] VCAT 479 distinguished – Bennett v Depke [2020] VCAT 942 distinguished – held the Tribunal is exercising administrative power pursuant to s 77 of the Planning and Environment Act 1987 (Vic) – Held the Tribunal has jurisdiction to determine the matter.

NSW

Australian Village No. 12 – Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080
DEVELOPMENT APPLICATION – change of use from commercial to residential – proper characterisation of development application – whether provision in local environmental plan requiring 60 per cent commercial floor space a prohibition or development standard – clause 4.6 objection – whether compliance is unreasonable or unnecessary – whether in the public interest.

Sawaqed v City of Ryde Council [2021] NSWLEC 1070
DEVELOPMENT APPLICATION – mixed use building – alterations and additions – parking – direct access to classified road.

Simon v Goltsman [2021] NSWLEC 1069
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – cypress – obstruction of sunlight and views – whether the obstruction is severe – whether the applicant had access to sunlight and views – whether access to sunlight and views resulted from non-compliance with conditions of development consent – whether the extent of obstruction has increased since the applicant has owned the property – privacy and other benefits – avoiding adverse impacts to amenity.

Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Emission Incidents) [2021] NSWLEC 13
ENVIRONMENT AND PLANNING – offences – air pollution – sentencing.

Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12
ENVIRONMENT AND PLANNING – offences – breach of licence condition – sentencing.

Stock v Wingecarribee Shire Council [2021] NSWLEC 1066
DEVELOPMENT APPLICATION – secondary dwelling – characterisation of secondary dwelling – permissible development – location of the secondary dwelling would result in an adverse impact of the character of the rural area.

Manly Developments 2016 Pty Ltd v Northern Beaches Council [2021] NSWLEC 1008
DEVELOPMENT APPLICATION – residential flat building – existing use rights – bulk and scale – stormwater – privacy – excavation - contentions largely resolved – resident submissions – conditions in dispute.

Triple Blue Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1065
DEVELOPMENT APPLICATION – alterations and additions to an existing residential flat building – impact on the heritage significance of the adjoining heritage item.

Grant William Clarke v Shoalhaven City Council (No 2) [2021] NSWLEC 8
ENVIRONMENT AND PLANNING – Appeal - Development application – Shoalhaven Local Environmental Plan 2014 – Statutory construction – Application of clause 4.2B – Relationship between clause 4.2B and clause 4.E ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – time for 56A appeal – extension of time – exercise of discretion – leave granted.

Hejtmanek v Byron Shire Council [2021] NSWLEC 1058
DEVELOPMENT APPLICATION – alterations and additions to existing dwelling plus secondary dwelling – flooding risk mitigated – solar access amenity to adjoining property.

Queensland Rifle Association Inc v State of Queensland [2021] FCA 110
NATIVE TITLE – non-claimant application for determination of native title under s 61(1) Native Title Act 1993 (Cth) – negative determination – subject land used as a rifle range – whether within power and appropriate for Court to make orders sought – application granted. Native Title Act 1993 (Cth) ss 13, 61, 66, 81, 86G, 225 and 253.

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
 Appeal allowed – Administrative law – apprehended bias – relief – jurisdiction of inferior courts – where first respondent applied for additional mining leases and amendment to existing environmental authority ("applications") – where appellant and others lodged objections to applications – where first decision of Land Court of Queensland ("Land Court") recommended that both applications be rejected – where Supreme Court of Queensland rejected arguments by first respondent that recommendations made by Land Court affected by apprehended bias, but held recommendations involved errors of law and remitted certain matters to Land Court for reconsideration – where second decision of Land Court constituted by different Member recommended applications be approved subject to conditions – where amendment to environmental authority granted by delegate of second respondent – where Court of Appeal allowed cross-appeal by first respondent and held that recommendations in Land Court's first decision affected by apprehended bias – whether open to Court of Appeal, after finding that recommendations in Land Court's first decision affected by apprehended bias, not to refer matters to which recommendations related back to Land Court for full reconsideration, and instead to make consequential orders limited to declaration that procedural fairness not observed – whether matters to which recommendations related should not be referred back to Land Court on basis of discretion to refuse relief.
Environmental Protection Act 1994 (Qld), Ch 5. Judicial Review Act 1991 (Qld), s 30. Land Court Act 2000 (Qld).
Mineral Resources Act 1989 (Qld), Ch 6. 

Queensland

Sunshine Coast Regional Council v Gavin & Anor (No. 2) [2021] QPEC 2
ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the first and second respondents constructed a building and used it as an ‘accommodation building’ in a zone where this use was not permitted – where respondents accepted they had committed development offences – what enforcements orders are appropriate to secure compliance with the legislative scheme
ENVIRONMENT AND PLANNING – OTHER MATTERS – STAY OF ORDERS – where enforcement orders to be made requiring building works to be carried out – where respondents have commenced proceedings in the Court of Appeal – where respondents seek a stay of the orders – whether prejudice to applicant or respondent
ENVIRONMENT AND PLANNING – OTHER MATTERS – COSTS – where application for enforcement orders – jurisdiction to award costs – where applicant largely successful – whether respondents should only pay a part of the applicant’s costs – whether applicant should have its costs of briefing senior and junior counsel
Planning Act 2016 Qld s 180; Planning and Environment Court Act 2016 Qld s 58, s 59, s 61(1), s 63
Planning and Environment Court Rules 2018 Qld r 4; Uniform Civil Procedure Rules 1999 Qld r 680, r 686, r 687, r 702, r 742.

Powe v David Hansen on behalf of Logan City Council [2021] QDC 12
CRIMINAL LAW – PLANNING ACT OFFENCES – APPEAL FROM MAGISTRATES COURT – interpreters not sworn – inadmissible evidence tendered – whether miscarriage of justice
Justices Act 1886 Qld; Local Government Act 2009 Qld; Oaths Act 1967 Qld; Planning Act 2016 Qld; Sustainable Planning Act 2009 Qld.

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4
HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the objectors contended that the grant of a mining lease and environmental authority would be incompatible with the Human Rights Act 2019 – where the objectors provided particulars to that effect – where the applicant contended that particulars provided did not adequately inform the applicant as to the case they had to meet nor the real issues in dispute – where the applicant sought further and better particulars – where the Department of Environment and Science identified five steps for the Court in complying with s 58 of the Human Rights Act 2019 – where the Department of Environment and Science submitted that the human rights case raised by the objectors was not adequately articulated – where the human rights case involves questions of law and policy as well as facts and circumstances – where the Court concluded requiring further particulars was not the best way to fully articulate the human rights case – where the Court identified different processes for that to occur
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – PROCEDURE – PARTICULARS – where the objectors contended that a mining lease and environmental authority should not be granted – where the objectors provided some particulars of their objections – where the applicant contended the particulars did not adequately inform the applicant as to the case they had to meet nor the real issues in dispute – where the applicant sought further and better particulars – where the Court has wide discretion in its procedure but must afford procedural fairness – where the Court must assess what particulars are necessary in order for the other party to know what case they must meet – where the applicant sought particulars based on five categories defined by the objectors’ reasons for refusing to provide them – where the Court considered whether other processes could clarify the real issues – where the Court ordered the objectors to provide an exhaustive list of classes of individuals whose human rights they say will be limited by the application being granted – where the Court did not order further particulars on other matters at this stage of the case
Environmental Protection Act 1994 Qld s 182, s 185, s 186(a)
Human Rights Act 2019 Qld s 13, s 15, s 16, s 24, s 25(a), s 26(2), s 28, s 58, s 58(1)(a), s 58(1)(b), s 58(2)
Mineral Resources Act 1989 Qld s 265(1), s 265(2), s 265(10), s 268
Uniform Civil Procedure Rules 1999 Qld r 157.

Legislation

NSW

Regulations and other miscellaneous instruments
Final Determination (2021-59) — published LW 19 February 2021
Final Determination (2021-60) — published LW 19 February 2021
Biodiversity Conservation Act 2016 — Determination (2021-37) — published LW 12 February 2021
Biodiversity Conservation Act 2016 — Final Determination (2021-38) — published LW 12 February 2021
Biodiversity Conservation Act 2016 — Final Determination (2021-39) — published LW 12 February 2021
Environmental Planning and Assessment Amendment (Build-to-rent Housing) Regulation 2021 (2021-41) — published LW 12 February 2021
Environmental Planning and Assessment Amendment (Development Contributions) Regulation 2021 (2021-40) — published LW 12 February 2021
Natural Resources Access Regulator Amendment (Relevant Agencies) Regulation 2021 (2021-43) — published LW 12 February 2021

Environmental Planning Instruments
State Environmental Planning Policy Amendment (Build-to-rent Housing) 2021 (2021-52) — published LW 12 February 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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