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Inside track: Planning, Environment & Sustainability

10 December 2018

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Lack of network planning threatens Australia's renewable electricity future, expert warns
Huge renewable energy resources have been identified across Australia, but planning is lagging to develop a grid network suitable for the transformation that gives certainty to stakeholders (22 November 2018).  More...  

Global efforts 'need to triple' by 2030 to hold warming at 2C
The UN's 2018 Emissions Gap Report sounds yet another dire warning for global policy makers, listing Australia as one of a number of G20 countries that will not meet their Paris targets by 2030 (28 November 2018).  More...  

Greater Commonwealth leadership needed on cities
Prime Minister Scott Morrison’s comments about setting migration caps to alleviate congestion pressures in in our biggest cities are an interesting response to a highly contentious issue, according to the Planning Institute of Australia (PIA) (21 November 2018).  More... 

Queensland

Stop Order extended for Broadway Hotel
The Palaszczuk Government is taking further action to protect the historical Broadway Hotel at Woolloongabba and has extended a Stop Order notice (30 November 2018).  More... 

Show-cause notice issued to owner of fire-ravaged Broadway Hotel
The owner of the fire-ravaged Broadway Hotel in Brisbane's south has been issued with a 'show cause' notice from Brisbane City Council over the building's dilapidated state. In September, the derelict Woolloongabba pub on Logan Road was gutted by a suspicious fire, further destroying the building's fragile infrastructure (27 November 2018).  More...  

South Bank master plan to guide future of the people’s place
Thirty years since South Bank hosted World Expo ’88, the Palaszczuk Government and South Bank Corporation will develop a new master plan to revitalise the ‘people’s place’ for the next 30 years and beyond (27 November 2018).  More...  

Palaszczuk Government takes next step in mining rehabilitation
The Palaszczuk Government released a discussion paper on options for residual risk management of mine sites. Minister for Environment Leeanne Enoch said the environmental regulator can request a residual risk payment from resource companies to cover potential rehabilitation costs incurred after surrender of an EA has been accepted and financial assurance has been returned (19 November 2018).  More...  

Battery grants drive next renewable wave
The next wave of Queensland’s renewable revolution will start, when grants become available for households and small businesses to install batteries to store their solar power (18 November 2018).  More...  

More than 10,000 responses to The Spit master plan options
Gold Coast residents have logged more than 10,000 responses on the 72 options presented for the seven Spit precincts, with the Top of The Spit so far drawing the most feedback (17 November 2018).  More...  

Call-in proposed for Bargara Jewel development
Minister for State Development, Manufacturing, Infrastructure and Planning Cameron Dick has proposed a ministerial call-in of the approved Esplanade Jewel development at Bargara, near Bundaberg (16 November 2018).  More...  

NSW

Sydney apartment owners face $12.5 million bill to remove flammable cladding
Hundreds of apartment owners in an inner-city development have been told they may have to cough up $45,000 each in special levies to cover the estimated $12.5 million cost of removing and replacing 10,000 square metres of potentially deadly flammable cladding (02 December 2018).  More... 

Planning reforms proposed for boarding houses
The NSW Government is considering reforms to cap the number of boarding rooms allowed in a boarding house development in low-density residential zones to a maximum of 12 per site (28 November 2018).  More... 

Multi million dollar asbestos dumping fines
Asbestos dumpers now face multi-million dollar fines under new laws passed by the NSW Government  (22 November 2018).  More...  

NSW Water Regulator increases reach to help communities comply
The Natural Resources Access Regulator (NRAR) Chief Regulatory Officer Grant Barnes said getting more boots on the ground is crucial for effective education and enforcement of the water regulation laws. (22 November 2018).  More... 

Ten minute grace period for parking fines
From 31 January 2019 motorists will be given a ten minute grace period for parking fines after paying for at least one hour of parking and receiving a physical ticket or coupon (20 November 2018).  More... 

EPA targets illegal waste transporters
The NSW Environment Protection Authority (EPA) has joined forces with police, the ACT Government and local councils, targeting rogue operators supplying waste soil from construction sites marketed as “clean fill” to unsuspecting property owners (19 November 2018).  More...  

Victoria

Apple at Fed Square pushed back a year, as Andrews confirms support
Plans to demolish part of Federation Square to make way for a new Apple store have been pushed back a year but Premier Daniel Andrews says his re-elected government continues to support the project. The plan was set back by a Heritage Victoria recommendation the civic space be added to the heritage register (30 November 2018).  More...  

EPA grants Australian Paper waste facility works approval
EPA has granted Paper Australia Pty Ltd (Australian Paper) a Works Approval to develop a large-scale, waste to energy facility in Victoria (29 November 2018).  More... 

Wodonga’s first cinema complex at Junction Place gets green light
Construction of Wodonga’s first cinema and entertainment complex will commence at Junction Place in mid-2019, following approval of the plans by the City of Wodonga (20 November 2018).  More... 

In practice and courts

Commonwealth

Draft native title reforms
The Attorney-General and the Minister for Indigenous Affairs on 30 October 2018 released exposure drafts of the Native Title Legislation Amendment Bill 2018 and Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018. Copies of the exposure draft legislation, along with a public consultation paper and fact sheets summarising the proposed amendments are available here.  

Announcements, Draft Policies and Plans released 2018

Queensland

PCA: Brisbane City Council Planning Amendments
Proposed changes to the Brisbane City Plan (2014) would see retirement and aged-care incentives provide developers with an additional two storeys in any zone, which would allow the industry to more easily meet the increasing housing demands of the aging population (29 November 2018).  More...  

City Plan amendments: Adopted
Current Amendment v13.00/2018 - effective 23 November 2018
Minor and Administrative Amendment included: update and reflect the regulated requirements of the Planning Regulation 2017; update mapping to reflect current development approvals including Consent Orders of the Planning and Environmental Court; update and reflect current Council policies and infrastructure design standards.

Notice of Adoption of adopted minor and administrative amendments to Brisbane City Plan 2014 pursuant to Section 3 of Part 1 (administrative), Section 6 of Part 2 (minor) of Chapter 2 of the Minister’s Guidelines and Rules and minor and administrative amendments to planning scheme policies pursuant to Section 5 of Part 1 of Chapter 3 of the Minister’s Guidelines and Rules
The amendments apply citywide and to land in parts of Banyo, Belmont, Boondall, Bracken Ridge, Bridgman Downs, Brighton, Calamvale, Carina Heights, Carindale, Carseldine, Chapel Hill, Clayfield, Doolandella, Ellengrove, Enoggera, Everton Park, Fig Tree Pocket, Hawthorne, Heathwood, Hemmant, Kenmore, Manly West, McDowall, Milton, Mitchelton, Nudgee, Oxley, Pallara, Parkinson, Richlands, Rochedale, Seven Hills, Stones Corner, Stretton, Upper Kedron, Wacol, Wakerley and Yeronga and will commence on Friday 23 November 2018. The amendments can also be accessed by searching for ‘Brisbane City Plan amendments’ here (23 November 2018). 

Prosecution Bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.   More... 

Department of State Development Consultations
Draft Townsville State Development Area Development Scheme
Australia Pacific LNG project - application for proposed change to a condition of the project Closes 14 December 2018
Cross River Rail Project – application for proposed change to the project Closes 21 December 2018
Gladstone Energy and Ammonia project - draft terms of reference for environmental impact statement Closes 21 December 2018
Draft EIS for KUR-World Integrated Eco-Resort Project Closes 14 January 2018
Investigation into a potential state development area to support the Tropical North Global Tourism Hub Closes 15 February 2018

NSW

Apply to become a NSW Site Auditor
The EPA is calling for applications from appropriately qualified and experienced people to become accredited site auditors (25 November 2018).  More...  

NSW Land and Environment Court
The Practice Note – Class 2 Tree Applications dated 13 May 2014 has been replaced with a new Practice Note that adds a paragraph to direction 10 of the Usual Directions found in Schedule A. The new Practice Note commences on 1 December 2018 (22 November 2018).  More...  

St Leonards and Crows Nest 2036
The Department has released a draft planning package for St Leonards and Crows Nest for community feedback. The draft planning package is on public exhibition until 3 December 2018. You are invited to review and provide feedback on the documents here

NSW water metering framework
The NSW Government is committed to implementing a robust new metering framework to measure and meter water take in NSW. The new framework is a commitment under the NSW Government’s Water Reform Action Plan. The regulation will commence on 1 December 2018.  More...  

Department of Planning: Have Your Say

Policies
Draft amendment to the Affordable Rental Housing SEPP Closes 19/12/2019

Cases

Queensland

Hobson Constructions (Qld) Pty Ltd v Chief Executive Administering the Planning Act & Anor [2018] QPEC 56
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND - STATUTES - INTERPRETATION - FUNCTION OF COURT Where a development approval has been given by the Court – where conditions which were the subject of a response of a referral agency were part of that approval - where application is subsequently made for minor change to development approval – whether the referral agency or the Court is the responsible entity under section 78 of the Planning Act. 

Body Corporate for Lindor and Planit Consulting Pty Ltd v Gold Coast City Council [2018] QPEC 54
PLANNING AND ENVIRONMENT – SUBMITTER APPEAL AGAINST APPROVAL of a high rise mixed use development – where the council approved the application but contended that the appeal should be allowed – extent of conflict with 2003 planning scheme – weight to be given to 2016 planning scheme – height and scale, density, site coverage, set backs, amenity, plot ratio, landscaped areas, minimum site area, podium and tower design, reasonable expectations – whether sufficient grounds to justify approval notwithstanding conflict – whether height and density provisions overtaken by events – infill higher density development – character, amenity and consistency of built form, traffic benefit, open space, need and economic benefits, optimising development, whether conflict mitigated by 2016 planning scheme. 

Baker v Department of Natural Resources & Mines [2018] QCAT 375
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant had been convicted of a vegetation clearing offence – where the applicant was consequently issued with a restoration notice and new Property Map of Assessable Vegetation (PMAV) by an authorised delegate of the Chief Executive of the Department of Natural Resources and Mines pursuant to the Vegetation Management Act (VMA) – where applicant applied for internal review of that decision and was unsuccessful – where applicant applied to the Tribunal for external review of that decision – where interim application filed to address jurisdictional matters – where the applicant contends the Tribunal does not have jurisdiction on the basis that s 54B of the VMA required the Respondent to ‘reasonably believe’ a person has committed a vegetation clearing offence which does not extend to actual knowledge of a criminal conviction – where the applicant contends the Tribunal does not have jurisdiction on the basis that the Respondent’s decision to issue a new PMAV was defective as it should have been made under only one subsection of s 20B of the VMA. 

Compost Works Pty Ltd v Bundaberg Regional Council [2018] QPEC 55
PLANNING AND ENVIRONMENT – APPLICATION TO STRIKE OUT APPEAL – where the appellant does not own the land the subject of the appeal – where the registered owner gave consent but has purported to withdraw it – where the respondent brings an application to strike out or dismiss the appeal on the basis the owner no longer consents – where there has been no disclosure – whether the proceeding is a clear futility. 

McDonald v Holeszko [2018] QDC 204
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the appellant was found guilty of six offences of carrying out assessable development without an effective development permit – whether the learned magistrate had fallen into error in finding the appellant guilty – whether the fine and costs imposed by the learned magistrate were manifestly excessive – whether the appellant was bound by the provisions of the Sustainable Planning Act in respect of the vegetation on his freehold land, despite being the registered title owner of that land – whether a belief by the appellant that he was entitled to clear vegetation was a defence to the charges.
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – where the appellant sought to rely on new evidence – where the appellant was granted leave to argue the issue of the admissibility of an affidavit – where the respondent was not taken by surprise – where the material was available to the appellant at the time of the Magistrates’ Court trial.

NSW

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3) [2018] NSWLEC 193
JUDICIAL REVIEW – whether condition of mine approval requiring rehabilitation strategy to be prepared imports objective requirements as to content of the strategy – whether rehabilitation strategy meets the definition of rehabilitation strategy in the conditions of consent – whether Secretary was able to form opinion of satisfaction in respect of the strategy prepared JUDICIAL REVIEW – whether Secretary failed to take mandatory considerations into account – whether Secretary’s state of satisfaction with respect to rehabilitation strategy was legally unreasonable EVIDENCE – admissibility of expert evidence – criteria which need to be established for expert evidence to be admitted – considerations which go to admissibility – considerations which go to weight PLANNING AND ENVIRONMENT – construction of development consents – whether document explicitly incorporated into development consent – circumstances in which it is appropriate to consider extrinsic material in construing development consent.  

Duong v Wollongong City Council [2018] NSWLEC 1606
APPEAL – development application – boarding house – resident objections – whether compatible with character of local area. 

AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council [2018] NSWCA 289
PLANNING LAW – existing use rights – development consents granted in 1980 and early 1983 for use as a caravan park – conditions restricted use of the caravan park to short term accommodation – use as a caravan park prohibited from 5 May 1983 – whether existing use rights as a caravan park limited to short term accommodation – whether conditions can be taken into account in characterising existing use – whether a condition referring to the Council’s Caravan Code had an ambulatory operation.

Geeves v Inner West Council [2018] NSWLEC 1601
DEVELOPMENT APPLICATION: Boarding house – whether the floor space ratio control is exceeded – whether the maximum room size standard is exceeded - no variation to development standard sought - no power to consent to application – directions not warranted. 

Lee v Woollahra Municipal Council [2018] NSWLEC 1597
DEVELOPMENT APPLICATION: refusal of the application by the Local Planning Panel; no contentions raised by the respondent; contributory building in the Woollahra Heritage Conservation Area; demolition of existing dwelling house and construction of a new dwelling house, pool and landscaping works.

Victoria

Residential Aged Care Services v Stonnington City Council [2018] VSC 652
PLANNING – Residential aged care facility – Decision of Victorian Civil and Administrative Tribunal – Leave to appeal – Appeal – Mixed use zone – Heritage overlay control – Minimal change area – Failure to consider relevant matters – Unreasonableness – Disclosure of a path of reasoning – Denial of natural justice – Built form – Urban design – Heritage Guidelines – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 117(5), s 148; Planning and Environment Act 1987 (Vic), s 60(1), s 84B(1), s 84B(2).

631 Plenty Road Preston Pty Ltd v Darebin CC (Red Dot) [2018] VCAT 1849
Interpretation of Standard D24 of clause 58.07-1 which relates to functional layout objectives.
LOCATION OF PASSAGE OF INTEREST Paragraphs 65 - 96
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE PLANNING SCHEME – interpretation or consideration of VPP provision - Interpretation of Standard D24 of clause 58.07-.

Brooks v Victoria Police (Review and Regulation) [2018] VCAT 1833
Freedom of Information Act 1982 ss 25, 31(1)(d), 33(1), 35(1)(b) and 50(4) – Access sought to affidavit supporting application for search warrant – Whether document exempt as law enforcement document, document affecting personal privacy or document containing information obtained in confidence – Whether practicable for document to be released with deletion of exempt material – Whether Tribunal should exercise public interest override.

Boyles v Greater Bendigo CC [2018] VCAT 1815
Section 80 of the Planning and Environment Act 1987; Greater Bendigo Planning Scheme; Animal Boarding; Amenity Impacts; Noise, Clause 22.07; Rural Living Zone; Visual Bulk; Business identification sign in rural area and Native vegetation removal.

Eric Salter Pty Ltd v Macedon Ranges SC [2018] VCAT 1800
Macedon Ranges Planning Scheme; s77 of the Planning and Environment Act 1987; proposed sub-division of review site; objections received and Council does not support proposal; Tribunal hearing; key issue being the ‘neighbourhood character’ merits of the proposal, plus associated issues.

Zeqaj v Victoria Police (Human Rights) [2018] VCAT 1733
Privacy and Data Protection Act 2014 (Vic), section 15 – alleged breaches of Schedule 1, Information Privacy Principles 2.1 and 3.1 – Charter of Human Rights and Responsibilities Act 2006 (Vic), section 13 – alleged unlawful attack on reputation. 

Legislation

NSW

Proclamations commencing Acts
Impounding Amendment (Shared Bicycles and Other Devices) Act 2018 No 51 (2018-674) — published LW 30 November 2018
Water Management Amendment Act 2018 No 31 (2018-678) — published LW 30 November 2018

Contacts:
Melbourne
Joseph Monaghan, Partner 
T: +61 3 9321 9857 
Ejoseph.monaghan@holdingredlich.com

Sydney 
Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Peter Holt, Special Counsel
T: +61 2 8083 0421
E: peter.holt@holdingredlich.com

Brisbane
Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com

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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