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Inside track: Planning, Environment & Sustainability

01 September 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Government bonds class action ups the ante on climate
A class action filed over climate change risks related to Federal Government bonds highlights the rising threat of legal proceedings against directors and managers of private companies (17 August 2020).  More...

Farmers call for tougher climate policy and back net zero emissions by 2050
Australia's farmers say the country needs a more rigorous policy on climate, calling on the Morrison Government to commit to an economy-wide target of net zero carbon emission by 2050 (20 August 2020).  More...

Planning minister slams RBA on apartments
In a research paper released, the Reserve Bank of Australia suggested that planning restrictions were adding $355,000, $97,000 and $10,000 to the average cost of apartments across Sydney, Melbourne and Brisbane respectively (17 August 2020).  More...

Insurers set up project to probe coastal erosion threats
The Insurance Council of Australia’s Climate Change Action Committee is seeking tender responses by September 4 for a project to increase understanding of expected rising risks from “actions of the sea” (17 August 2020).  More...

Victoria

Decades-old dispute over 'undevelopable' Ninety Mile Beach blocks ends with compulsory sales
Sold from the 1950s and inappropriate for development, Wellington Shire Council will compulsorily acquire the last 750 lots along a "slice of paradise on Victoria's Gold Coast" (18 August 2020).  More...

Supercharging planning critical to unlocking billions from Victorian precincts
A new report produced by the Property Council of Australia has revealed that billions of dollars of investment and thousands of jobs would be generated by advancing new precinct planning in Victoria but streamlining planning is the key (18 August 2020).  More...

Feasibility study for maritime heritage precinct
A maritime museum and experience hub in Docklands could be a step closer, with City of Melbourne Councillors considering whether to proceed with a feasibility and business case study on developing a museum at the Mission to Seafarers in Docklands (18 August 2020).  More...

Hazelwood mine fire analysis
Environment Protection Authority Victoria has published an analysis of brown coal fire impacts from the Hazelwood mine fire. The Hazelwood Mine Fire Inquiry recommended that EPA coordinate and make this information publicly available. This recommendation is called Affirmation 18 (14 August 2020).  More...

New funding to use recycled materials in infrastructure
Our new fund will increase the use of priority recycled materials – glass, paper, cardboard, plastics and rubber – in infrastructure projects (14 August 2020).  More...

Gage Roads to revitalise Victoria Quay 'dead zone' with new brewery
The development of Victoria Quay’s A Shed into a Gage Roads brewery, restaurant and bar venue is being touted as Perth’s answer to The Rocks in Sydney (11 August 2020).  More...

Hotel Plans for Heritage-Listed Southbank warehouse
IMG Investments Australia are planning to build a 380-room hotel atop a 104-year-old Melbourne warehouse in Southbank (11 August 2020).  More...

NSW

Improved satellite technology is better for farmers and native vegetation
The Department of Planning, Industry and the Environment (DPIE) is rolling out an Early Change Monitoring system to ensure any potential clearing is picked up early and able to be cross checked with landholders and other departments (19 August 2020).  More...

Supplying false information costs project manager $65,000
A project manager convicted of supplying information they knew was false or misleading has been fined $30,000 in the NSW Land and Environment Court, plus costs of $35,000 (19 August 2020).  More...

Inquiry to examine how NSW water projects were chosen for fast-tracking
Submissions are open for a Parliamentary inquiry into the New South Wales Government's decision to fast-track water projects, including dams (17 August 2020).  More...

Bushfire support continues as more families register for clean-up
Support for bushfire-impacted communities continues across the State with an additional 149 property owners registered for the NSW Government’s clean-up program and crews going above and beyond to clear some of the hardest to reach properties (16 August 2020).  More...

Ten projects fast-tracked in Tranche Five
The transformation of an existing warehouse to a hand sanitiser factory in the Shoalhaven is part of the latest tranche of ten fast-tracked projects to be determined through the NSW Government’s Planning System Acceleration Program (15 August 2020).  More...

Tech-hub towers set to rise above Sydney's Central Station
The government has approved major increases to building heights for an area near Sydney's Central Station, removing a major hurdle to new high rises (13 August 2020).  More...

NSW's first Hydrogen Project gets green tick
The NSW Government has approved the development of the State’s first hydrogen gas facility at Horsley Park, paving the way for more clean energy, more jobs and an $18 billion boost to the local economy (12 August 2020).  More...

NSW's first coastal management program certified
The NSW Government has officially certified City of Newcastle’s Coastal Management Program (CMP) for Stockton. Minister for Local Government Shelley Hancock said the program, which outlines Council’s long term management plans for the beach, is the first to be certified under the Government’s Coastal Management Act (08 August 2020).  More...

Queensland

Fresh calls for council to purchase former ABC Toowong site
The site, sold to developers by the federal government in 2009, is back on the market and politicians are keen to see it in public hands (19 August 2020).  More...

First two Brisbane green bridges to cost $257 million
Brisbane City Council is preparing to fork out $257 million for two of its ... their planning was further ahead than two planned West End bridges (18 August 2020).  More...

Morgan Stanley backs Homecorp build-to-rent bid
Homecorp Property Group will now join with Morgan Stanley to complete a $200 million build-to-rent precinct on the Gold Coast (12 August 2020).  More...

Tapered glass tower to rise above historic site in Fortitude Valley
A "derelict" site hosting the remains of a heritage-listed building across from McWhirters could become home to a tapered, glass commercial tower (12 August 2020).  More...

Man fined for illegally dumping tyres
A man has been fined $30,000 in the Ipswich Magistrates Court after pleading guilty to unlawfully transporting and dumping tyres at various locations in south east Queensland. (11 August 2020).  More...

Cornerstone plots Fortitude Valley tower
Brisbane-based developer Cornerstone is pushing ahead with a major commercial project in Brisbane’s Fortitude Valley, lodging plans for a high-rise commercial tower alongside the landmark McWhirters building (10 August 2020).  More...

In Practice and Courts

AWE: Public invited to have their say on the Reef 2050 plan
The Australian and Queensland governments invite Australians to have their say on a draft of the updated Reef 2050 Long-Term Sustainability Plan during a six-week public consultation period which closes on 30 September 2020.  More...

Australian Bushfires Disaster Emergency Declaration — Understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020. The emergency declaration expires on 20 January 2021.

EPBC Act major projects
The Australian Government is working with the states and territories to fast-track approval of 15 major projects.  More...

Victoria

Proposed amendment C187YRAN to the Yarra Ranges Planning Scheme
Amendment C187yran to the Yarra Ranges Planning Scheme proposes to make changes to the planning provisions for surplus VicTrack land at 13 Green Street, Healesville. The amendment proposes to rezone the site from Public Use Zone 4 – Transport to Commercial 1 Zone, and apply the Environmental Audit Overlay to the site (20 August 2020).  More...

Melbourne airport Environs safeguarding standing Advisory Committee
The Melbourne Airport Environs Safeguarding Standing Advisory Committee is currently seeking submissions to advise the Minister for Planning on improvements to the planning provisions safeguarding Melbourne Airport and its environs. Submissions are also welcome on improvements to planning provisions that may help safeguard other airport environs in Victoria (20 August 2020).  More...

Changes to Bushfire Protection exemptions, including the 10/30 rule
For more information on Amendment VC176 which changed clause 52.12 Bushfire Protection Exemptions, including aligning the 10/30 and fence line vegetation clearing exemptions to designated bushfire prone areas see Fact Sheet: Vegetation Clearing Exemptions – Bushfire Protection and Vegetation management for bushfire protection page (13 August 2020).  More...

New DELWP Bushfire Planning Webpages
DELWP has launched new bushfire planning webpages that significantly restructure and expand the information on planning for bushfire. This includes new, updated, or deleted fact sheets and new Design Guidelines: Settlement Planning at the Bushfire Interface (13 August 2020).  More...

SRO: Further land tax relief for landlords and business owners
Commercial landlords who apply for coronavirus land tax relief must continue to provide rent relief that complies with the requirements of the Commercial Tenancy Relief Scheme (20 August 2020).

SRO: HomeBuilder Grant online applications now open
Online applications are now open for the Australian Government’s HomeBuilder Grant. Information about eligibility criteria and the supporting documents you will need to upload with your application is available on our HomeBuilder Grant guidelines web page. Applications must be lodged by no later than 31 December 2020 (10 August 2020).

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...

Approvals

GC170 
Updates the mapping for the Bushfire Management Overlay (BMO) by removing BMO from five sites in four planning schemes where the vegetation no longer meets the criteria as set out in Planning Advisory Note 46 - Bushfire Management Overlay Mapping Methodology and Criteria.

Corangamite C53cora 
Rezones the land at Crown Allotment 1A, Section 32, Curdie Street, Cobden, known as the JH Vagg Memorial Reserve, from Public Park and Recreation Zone to Industrial 1 Zone.

Maroondah C128maro 
Replaces the interim heritage controls with permanent heritage controls and applicable statement of significance for the land at 3-5 Wonga Road, Ringwood North (HO146) by amending Planning Scheme Map No. 1HO, the Schedule to Clause 43.01 (Heritage Overlay) and the Schedule to Clause 72.04 (Documents Incorporated in this Planning Scheme).

Greater Bendigo C250gben 
Facilitates the Bendigo Signalling Upgrade Project to land in the municipality of Greater Bendigo. The project is located on the Bendigo and Echuca railway corridors between Bendigo and Eaglehawk and Bendigo and Epsom.

Latrobe C119latr 
Implements the recommendations of the Latrobe City Council Retail Strategy 2019 (Strategy) by making changes to the local planning policy framework and including the Strategy as a background document at Clause 72.08.

Melton C221melt 
Applies the Heritage Overlay on an interim basis to the former 'Tara Stud' at 2-6 Sherwin Court, 2A Sherwin Court and 2 Killarney Drive, Melton until 1 April 2021.

Port Phillip C163port 
Applies the Specific Controls Overlay and introduces an Incorporated Document titled ‘203-205 Normanby Road, Southbank, July 2020’, to facilitate the demolition of the existing building, use and development of a mixed-use development comprising dwellings and retail premises and alteration of access to a road in Road Zone Category 1.

South Gippsland C115sgip 
Amends local policy and the Schedule 2 to Clause 43.02 Design and Development Overlay (DDO), introduces a new Schedule 13 to Clause 43.02 DDO, and includes the Mirboo North Structure Plan Refresh July 2020 and CFA Landscaping for Bushfire November 2011 in the Schedule to Clause 72.08 Background Documents. The Amendment also updates the structure of Clause 21 to enable the eventual conversion of the planning scheme to an online format. This change has no effect on the form or content of provisions.

Stonnington C306ston 
Inserts a Specific Controls Overlay to the land at 489-505 Toorak Road, Toorak to facilitate the development of an eight-storey (34 metre in height) mixed-use building consisting of a supermarket, food and drink premises and office floorspace, with a three-storey basement car park and includes a public through-block link connecting Toorak Road and Jackson Street and make associated changes to the Stonnington Planning Scheme, and makes changes to the incorporated document titled '285A Burke Road, Glen Iris – July 2020'.

Yarra Ranges C183ryan 
Rezones the land at 150 Cambridge Road, Kilsyth from Public Use Zone 2 to General Residential Zone Schedule 1, applies the Significant Landscape Overlay Schedule 23 and applies a Development Plan Overlay Schedule 10.

Yarra Ranges C194yran
Rezones surplus CFA land from PUZ1 to IN3Z to facilitate disposal.

Lapsings

Bayside C165bays 
Proposed to rezone council owned land at 5 and 7 Well Street, Brighton, from the General Residential Zone Schedule 2 (GRZ2) to the Public Use Zone Schedule 6 (PUZ6).

French Island & Sandstone Island C006Pt2fisi 
Proposed to implement the findings of the French Island and Sandstone Island Planning Scheme Review (2017) in relation to the ESO.

Cardinia C226card 
Proposed to repair inconsistent policy in the Urban Growth Zone Schedule 3 (UGZ3) and the applied Schedule of the Rural Conservation Zone (RCZ) that prevents development in the 3 lots identified from occurring in line with the Officer Precinct Structure Plan (PSP) that was adopted by Council in 2011. The amendment proposed to add a Schedule to the RCZ removing the minimum subdivision requirements for the 3 sites identified, that would otherwise exist in the provision. This would have ensured there was a match between the policy intention of the PSP and the provisions in the UGZ3 and the applied zone (RCZ).

Exhibitions

Baw Baw C139bawb 
Proposes to translate Baw Baw Planning Scheme into the new Planning Policy Framework at Clauses 10-19 and Municipal Planning Strategy at Clause 2 introduced to the Victoria Planning Provisions by Amendment VC148. It also updates local schedules throughout the planning scheme to conform to the current form and content requirements. A limited policy change is proposed, mainly to correct errors and inadequacies of the existing local provisions.

Southern Grampians C54sgra 
Proposes to implement the findings of the Hamilton Flood Investigation 2012 by introducing planning controls that seek to improve the performance of the Southern Grampians Planning Scheme in responding to issues relevant to flooding. The amendment introduces a new Flood Overlay and modifies the existing Land Subject to Inundation Overlays as determined through the 2012 Hamilton Flood Investigation.

Southern Grampians C58sgra 
Proposes to implement the findings of the Coleraine Flood Investigation 2018 by introducing planning controls that seek to improve the performance of the Southern Grampians Planning Scheme in responding to issues relevant to flooding.The Amendment applies to land within and around the Township of Coleraine, as identified within the Coleraine Flood Investigation 2018 to be affected by mainstream flooding during a 100 year ARI flood. The Flood Overlay (FO) is applied to areas that are likely to convey active flood flows and/or store floodwaters to hazardous depths. The Land Subject to Inundation Overlay (LSIO) is applied to land affected with waterways and open drainage systems. Such areas are commonly known as floodplains. These floodplain areas have a lower flood risk than areas in the FO.

Surf Coast C124surf 
Proposes to rezone land at 600, 620, 626 and 640 Cape Otway Road, Moriac from Farming Zone to Low Density Residential Zone. The application is made under section 96A of the Planning and Environment Act 1987 and includes an application for a 29 lot subdivision.

Wodonga C133wdon 
Proposes to correct a number of historical mapping irregularities and anomalies that exist between the zone maps and actual development on the ground. In addition it corrects grammatical errors to ensure consistency in referring to an incorporated document.

Yarra C269yara 
Proposes to rewrite the Yarra Planning Scheme local policy.

Greater Geelong C410ggee
Proposes Public Acquisition Overlays to the Armstrong Creek Urban Growth Area.

Hepburn C77hepb 
Proposes to update the application of the Land Subject to Inundation Overlay across the Hepburn Shire.

Panel Reports

Casey C258case
Implementation of the City of Casey Activity Centre Strategy 2019.

Fishermans Bend Standing Advisory Committee – Tranche 1B 
Development of 203-205 Normanby Road, Southbank (Port Phillip C163port).

Government Land Standing Advisory Committee – Tranche 24
Development of the Kilsyth Secondary College at 150 Cambridge Road, Kilsyth (Yarra Ranges C183yran).

Yarra Ranges C186yran and Planning Permit YR-2019/131
Development of 361-365 Mount Dandenong Road, Sassafras for a tourist information / booking office, artist's studio / shop, a nursery and storage and sales.

NSW

Consultation: 50-year vision for Sydney's open space and parklands
A draft vision has been created to be shared and tested with people who care about Sydney’s parks and open spaces. The draft 50-Year Vision for Greater Sydney’s Open Space and Parklands will be open for consultation until 11 September 2020.  More...

Consultation: Draft state strategic plan for Crown land
Crown land assets now and into the future, with the draft State Strategic Plan released for public feedback. The community will have the opportunity to provide feedback and participate in consultation activities close on 20 August 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...

NSW Planning Department: Have your say - Draft plans and policies

Proposed Natural Disasters clause
Notification start-end date 04/08/2020 - 31/08/2020
The Department is seeking your feedback on a proposed clause for the Standard Instrument LEP that will support better and quicker rebuilds of dwellings following natural disasters.  More...

ISEPP amendment – Wild dog fence
Notification start-end date 03/08/2020 - 30/08/2020
The department has developed a proposed amendment to the State Environmental Planning Policy (Infrastructure) 2007 to clarify and streamline the planning assessment for the extension and maintenance of the Wild Dog Fence.  More...

Proposed new Housing Diversity SEPP Explanation of Intended Effect
Notification start-end date 29/07/2020 - 09/09/2020
Have your say on a proposed new policy that aims to facilitate the delivery of diverse and affordable housing to meet the needs of the State’s growing population and support the development of a build-to-rent sector.  More...

Queensland

Building Acceleration Fund
The funds will be available to eligible developers, councils and industry for infrastructure projects that generate private sector investment and stimulate post–COVID19 economic recovery. Applications for the Building Acceleration Fund will close on 4 September 2020. To download an application form, please click here.  More...

COVID-19 Update on Courts, Commissions, Tribunals, Property 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 (updated August 2020). Extension or suspension of planning framework periods under the Act - Extension to timeframes for undertaking approved development - This notice applies to all of the State of Queensland and has effect from 8 July 2020 to 31 October 2020.

Queensland Planning Legislation
Urgent amendments to the Planning legislation are in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19. Note Temporary use licence updated to 18 August 2020.  More...

Cases

Victoria

Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council (No 2) [2020] VSC 513
ADMINISTRATIVE LAW — Judicial review — Notification to Council of alleged nuisance due to noise from wind farm, under s 62(1) Public Health and Wellbeing Act 2008 (Vic) — Council resolution under s 62(3), recording finding of intermittent nuisance of the kind alleged and Council’s opinion that matter better settled privately — Whether resolution amenable to certiorari — Whether Council failed to have regard to mandatory considerations in finding that a nuisance existed — Whether Council disregarded material essential to performance of its statutory task — No jurisdictional error established — Public Health and Wellbeing Act 2008 (Vic), s 62.

Amira v Port Phillip CC [2020] VCAT 861
Sections 87 & 89 of the Planning and Environment Act 1987; Port Phillip Planning Scheme; Request to cancel permit; Standing; Delay; Failure to give notice; Mis-statement; Concealment of fact; Mistake; Merits; Awareness; Disadvantage; Fairness 

Cottier Estate Pty Ltd v Baw Baw SC [2020] VCAT 824
Section 80 Planning and Environment Act 1987; Urban Growth Zone; Drouin Precinct Structure Plan; Subdivision; Conditions. 

Casale v Melbourne CC [2020] VCAT 886
Construction of a dwelling on a lot less than 300 square metres and waiver of one car space.
Application under section 80 of the Planning and Environment Act 1987 – to review condition 1(a) contained in the permit. 

R & D Finance Consultants Pty Ltd v Darebin CC [2020] VCAT 892
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Darebin Planning Scheme; Commercial 1 Zone (C1Z); Design and Development Overlay – Schedule 17 (DDO17); Substantial Housing Change Area; Strategic Corridor; Construction of two to four storey building; Use of land for retail premises, two apartments and four townhouses; Underdevelopment; Dwelling typology; Car parking reduction; Solar orientation; Amenity impacts. 

Lourey v Mornington Peninsula SC [2020] VCAT 881
Mornington Peninsula Planning Scheme; assessment of alterations and additions to a dwelling within Schedule 18 to the Design and Development Overlay; landscape outcomes within Schedule 18 to the Design and Development Overlay. 

Daffey v Surf Coast SC [2020] VCAT 869
Section 82 Planning and Environment Act 1987; Surf Coast Planning Scheme; General Residential Zone; Design and Development Overlay; Significant Landscape Overlay; Neighbourhood Character Overlay; Bushfire Management Overlay; Dwelling; Inclinator.

Harsley v Wyndham CC [2020] VCAT 876
Subdivision of land into 2 lots. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Rowe v Murrindindi SC [2020] VCAT 875
Three lots used for cattle grazing; Proposal for a dwelling to manage the land; Management of herd and land management plan not sufficient reasons to approve dwelling.

Nolan v Yarra CC [2019] VCAT 842
Section 82 Planning and Environment Act 1987; Yarra Planning Scheme; Public Park and Recreation Zone; Heritage Overlay; Demolition.

Jones v Port Phillip CC [2020] VCAT 873
Section 80 Planning and Environment Act 1987; Port Phillip Planning Scheme; Neighbourhood Residential Zone Schedule 5; Heritage Overlay Schedule (HO8); Special Building Overlay Schedule 1; Subdivision; Resubdivision; Two lots; Public Open Space Contribution; Whether further subdivision unlikely.

Kalex (Gertrude Street) JV Pty Ltd v Yarra CC [2020] VCAT 870
Section 77 of the Planning & Environment Act 1987; Yarra Planning Scheme; Amend permit of existing mixed use development: Off-site amenity impacts.

Maple Media Pty Ltd v Maroondah CC [2020] VCAT 868
Section 77 Planning and Environment Act 1987, electronic major promotion sign, Eastlink, Industrial 1 Zone, Maroondah Planning Scheme, clause 52.05, visual amenity, Eastlink buildings, works and signage policy.

Carroll v Yarra CC [2020] VCAT 778
Sections 80 and 82 Planning and Environment Act 1987; Yarra Planning Scheme; Neighbourhood Residential Zone; Heritage Overlay; Heritage; Neighbourhood character; Amenity.

Acevski v Bayside CC [2020] VCAT 846
Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time. The construction of two dwellings on a lot and alteration of access to a road in a Road Zone Category 1.

Browne v Moreland CC [2020] VCAT 858
Sections 80 & 82 of the Planning & Environment Act 1987; Moreland Planning Scheme; Alterations & additions to single dwelling: Heritage & off-site amenity impacts.

Connor v Nillumbik SC [2020] VCAT 852
Section 82 Planning and Environment Act 1987, Significant Landscape Overlay – Schedule 3, building height, neighbourhood character, landscape character.

James v Bass Coast SC [2020] VCAT 850
Bass Coast Planning Scheme; section 79 of the Planning and Environment Act 1987; proposal for new dwelling; most of proposal deemed acceptable by Council, but Council opposes the proposed road access arrangements; Tribunal review; hearing and focus on road access issue; follow up process; permit approved.

Probert v Greater Geelong CC [2020] VCAT 837
The decision of the Responsible Authority is varied. In permit application PP-689-2019 a permit is granted and directed to be issued for the land at 72-80 Buckley Grove, Moolap in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows: Use of the land for a transfer station and associated advertising signage. 

DFC (Ashbury) Pty Ltd v Greater Geelong CC [2020] VCAT 855
Greater Geelong Planning Scheme; whether an asset relocation is generally in accordance with a Precinct Structure Plan; Horseshoe Bend Precinct Structure Plan; Armstrong Creek East Precinct Structure Plan; environmental impacts of co-locating a wetland and retarding basin with a conservation area.

NSW

Zhiva Living Dural Pty Limited v Hornsby Shire Council [2020] NSWCA 180
APPEAL – appeal against Land and Environment Court judge’s decision to refuse remitter to commissioner after upholding s 56A appeal – whether denial of procedural fairness by not giving parties opportunity to be heard on matters not raised on s 56A appeal – extension of time to file appeal granted – leave to appeal granted – appeal upheld – whether matter to be remitted to judge or commissioner – matter remitted to commissioner.

Jiang v City of Ryde Council [2020] NSWLEC 1378
APPEAL – development application – dual occupancy – whether the lot meets the development standard for minimum road frontage – whether the development is consistent with the desired future character.

Penrith City Council v Dincel Construction System Pty Limited (No 3) [2020] NSWLEC 117
EVIDENCE — Course of evidence — Reopening case — Application to rely upon further updating evidence — Leave granted.

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
APPEAL – appeal against a Commissioner’s decision on questions of law – shoptop housing development contravened height and FSR development standards – decision to grant development consent – objectives of height and FSR development standards – consistency with desired future character of neighbourhood or area – whether misconstruction of “desired future character” – whether to be construed by reference to Woollahra Development Control Plan 2015 (WDCP) – whether approved adjoining development that contravened development standards an irrelevant consideration – whether misconstruction of desired future character provisions in WDCP – whether misdirection in assessing consistency with objective (d) of height development standard to minimise visual intrusion– whether failure to give adequate reasons for satisfaction required by cl 4.6(3) of Woollahra Local Environmental Plan (WLEP) – whether misconstruction of control C3 in s D5.6.2 of WDCP to design for first floor commercial use – no errors of law established.

Kayellou v Canterbury Bankstown Council [2020] NSWLEC 1361
DEVELOPMENT APPLICATION – Weight given to draft Local Environmental Plan – State Environmental Planning Policy (Affordable Rental Housing) – Character of the local area.

Britely Property Pty Ltd v Randwick City Council [2020] NSWLEC 1367
PROCEDURE – application to re-open by Applicants to adduce evidence and make further submission on provision of on-site car parking – motion dismissed.

Calderwood v Department of Planning, Industry and Environment; Calderwood v Campbelltown City Council; Department of Planning, Industry & Environment v City of Ryde [2020] NSWCATAD 200
GOVERNMENT INFORMATION- Combustible [Flammable] Cladding Register- disclosure of addresses of buildings on Register- agency can rely on additional factors in Table negative to disclosure other than those referred to in access decision-denial of access affirmed.

Jarrett v Hutchinson [2020] NSWLEC 1365
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence – whether the tree caused damage – whether the tree must be removed – whether the fence must be replaced or repaired – who should pay for the works.

Kohler Bros Property Group Pty Ltd v Penrith City Council [2020] NSWLEC 1364
APPEAL – development application – boarding house – whether development can be refused on the basis of parking – whether development can be refused on the basis of landscaped area – whether the design is compatible with the character of the local area – adequacy of setbacks.

Thompson Health Care Pty Limited v Ku-ring-gai Council [2020] NSWLEC 1363
DEVELOPMENT APPLICATION– seniors housing development – residential care facility – breach of three development standards in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – neighbour objections.

Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114
ENVIRONMENT AND PLANNING – offences – failure to comply with condition of environmental protection licence – s 64 Protection of the Environment Operations Act 1997 – condition to maintain in a proper and efficient condition – meaning of “maintain” – plant preserved in a state that is able to perform the function it was designed to perform – designed to contain ammonia – circuit is integrated, not comprising of separate components– guilty of the charge.

Sherbrook Group Pty Ltd v Hornsby Shire Council [2020] NSWLEC 1359
DEVELOPMENT APPLICATION – multi-dwelling development – lot amalgamation – amenity – character – accessibility.

Wright v Woollahra Municipal Council [2020] NSWLEC 1357
DEVELOPMENT APPLICATION – alterations and additions to a building identified as contributory to a heritage conservation area – detrimental impact on the heritage significance of the heritage conservation area.

Liverpool City Council v Tirnova [2020] NSWLEC 110
CONTEMPT - orders made in Class 4 proceedings requiring removal of unauthorised development on flood-prone land - orders required removal of masonry front fence (Order (3)) and removal of substantial additions to dwelling house (Order (5)) - three months allowed for compliance with Order (3) and 12 months for compliance with Order (5) - single rolled-up charge laid by Council for non-compliance with Orders (3) and (5) - failure to achieve full compliance with Order (3) within the time allowed by the order but significant compliance achieved - complete compliance with Order (3) achieved by commencement of contempt proceedings - limited compliance with Order (5) by the commencement of these contempt proceedings - consideration of circumstances of Respondent in assessment of appropriate starting penalty - discount for earliest reasonable acknowledgment of guilt - appropriate penalty before consideration of s 6 of the Fines Act 1996 matters found to be $12,000 - consideration of capacity to pay (s 6(a)) and other relevant personal circumstance (s 6(b)) mandates significant moderation of penalty to be imposed - respondent convicted of contempt and fined $3,000.
COSTS - Council seeks its costs on the ordinary basis - part of time of hearing wasted as a consequence of Council having failed to provide proof that the orders had been brought to the Respondent’s attention - part of proceedings concerning Order (3) lacking in proper evidentiary foundation - excessive photocopying - provision of material to the Court but not to the Respondent - provision of unnecessary material to the Court - Council’s costs to be discounted to reflect inappropriate matters.

Royle v Debelak [2020] NSWLEC 1354
TREES (NEIGHBOURS) – bamboo hedge – severe impact on views.

LDC Opco Holding Company Pty Limited v North Sydney Council [2020] NSWLEC 1352
MODIFICATION APPLICATION – whether the application is substantially the same – State Environmental Planning Policy No 64 – Advertising and Signage – consistency with the character of the local area.

Queensland

Mellish v Redland City Council [2020] QLC 31
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where the case was directed to Court Managed Expert Evidence – where the parties could not agree on questions to be included in the consolidated brief to certain experts – where the consolidated brief may include questions which are not agreed – where the relevance of certain questions was in dispute – whether that dispute should be resolved before the meetings of experts – where the Court decided the questions should not be included in the brief.

Kings of Gifts (Qld) Pty Ltd v Redland City Council & Anor [2020] QPEC 42
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – PUBLIC INTEREST – where the appellant applied to the respondent for a material change of use permit to develop land for a service station with associated car wash facility, drive through restaurant and on-site effluent disposal irrigation area – where the land was in the Environmental Protection Zone and Open Space Zone of the Redlands Planning Scheme 2012 Version 4 – where the land was within the Bushland Living Precinct and the Greenspace Network in the Kinross Road Structure Plan Area in the Redlands Planning Scheme – where the proposed development complies with the ecological provisions of the Environmental Protection Zone Code and the Kinross Road Structure Plan Overlay Code – where the proposed development conflicts with the Redlands Planning Scheme by proposing to locate uses that are nominated as inconsistent uses in the zone and because the uses are not low-key in nature – where the proposed development complies with the planning rationale for limiting the uses to low-key uses – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval – whether there are sufficient grounds to justify approval.
Planning Act 2016 Qld s 311; Sustainable Planning Act 2009 Qld s 314, s 324, s 326, s 493, s 495

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – PUBLIC INTEREST – where the appellant applied to the respondent for a material change of use permit to develop land for a service station, convenience store, take-away food premises and a fast food drive through premises – where the land was in the Detached Dwelling Domain and the Residential Choice Domain of the Gold Coast Planning Scheme 2003 – where the proposed use for fast food premises and take-away food premises conflict with the 2003 Planning Scheme and should be considered “undesirable or inappropriate” – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval – whether there are sufficient grounds to justify approval.
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY – CONSIDERATION OF WEIGHT TO BE GIVEN TO NEW PLANNING SCHEME – where City Plan 2016 commenced after the development application was made – where the proposed service station use was not supported by City Plan 2016 – where s 495 of the Sustainable Planning Act 2009 gives a broad discretion to afford weight to a new planning scheme – whether conflict with City Plan 2016 should be given determinative weight.
Planning Act 2016 Qld s 311; Sustainable Planning Act 2009 Qld s 311, s 314, s 324, s 326, s 493, s 495

Legislation

Commonwealth

Reserve Bank of Australia Head Office, 65 Martin Place, Sydney Heritage Management Plan 2020
18/08/2020 - This instrument provides a framework to assist the Reserve Bank of Australia to continue to protect, conserve and manage the identified Commonwealth Heritage values of the Reserve Bank Head Office.

High Court (2021 Sittings) Rules 2020
13/08/2020 - This instrument appoints the High Court days of sitting for 2021.

Greenhouse and Energy Minimum Standards (Registration Fees) Instrument (No. 1) 2020
11/08/2020 - This instrument specifies the fees payable in relation to applications under section 41 of the Greenhouse and Energy Minimum Standards Act 2012.

Victoria

Renewable Energy (Jobs and Investment) Amendment Act 2019 (Vic)
Date of commencement: 13 August 2020 - Sections 1 to 5 of this of this Act came into operation on 13 August 2020 (SG447 6.11.2019). Act Number: 42/2019

Victorian legislation can be accessed here.

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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