10 June 2020
Health leaders warn over ‘failing’ environmental laws
More than 180 health professionals have signed an open letter to environment minister, Sussan Ley, warning the government to strengthen Australia’s weak environment laws, or risk the future health of the nation. The action comes ahead of the review into Australia’s EPBD Act, with a draft report from the review panel expected in June (25 May 2020). More...
PCA: Building a stronger and cleaner post-pandemic Australia
The Federal and State Governments should integrate recovery plans with their respective clean technology roadmaps and long term emissions strategies, grid modernisation planning, carbon farming development and bushfire recovery to build greater resilience and reduce climate risk (25 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 (SWA) 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...
Sydney stadium first in the world to gain sustainability rating
The Bankwest Stadium in the Greater Sydney City of Parramatta has become the first stadium in the world to announce it has achieved LEED v4 Gold certification for sustainability from the U.S. Green Building Council (USGBC) (29 May 2020). More...
$1 Billion for world class business precincts across regional NSW
The Deputy Premier John Barilaro announced the fifth Special Activation Precinct in NSW to be established in Williamtown, bringing the total investment for Special Activation Precincts to $1 billion, attracting new investment and creating thousands of new jobs (28 May 2020). More...
Thousands of new trees brighten up Greater Sydney
The NSW Government's $4.7 million investment will see 172,000 new trees flourishing in Sydney’s parks, schools and communities, in a partnership with Greening Australia and Landcare NSW to expand the city’s green canopy (27 May 2020). More...
That is not a coincidence': Mascot Towers owners to sue developers over cracks
Apartment owners in Sydney's troubled Mascot
Towers vote to sue the developer of a neighbouring building, claiming it's "not a coincidence" their homes started cracking while excavation work was conducted next door (26 May 2020). More...
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...
Construction and jobs boom for Western Sydney
Western Sydney is set for a further construction boom, with two more projects getting the green light through the NSW Government’s Planning System Acceleration Program. Planning approval has been given to a new recycling facility in Penrith and a major upgrade to a brick production facility in Horsley (21 May 2020). More...
NSW Government to regrow forestry industry following catastrophic bushfires
Fire-affected forests will soon be rejuvenated with new life as the NSW Government embarks on the largest replanting program in the state’s history, beginning with an injection of $46 million into Forestry Corporation (21 May 2020). More...
Glenlee gets go ahead in Sydney’s South West
Planning and Public Spaces Minister Rob Stokes said the Glenlee proposals exemplify what urban renewal is all about – breathing new life and jobs into the Menangle Park area as the old industrial uses of this region come to an end (19 May 2020). More...
Indigenous elder wins 'David and Goliath' battle to stop Lismore development
A major residential development underway on the New South Wales north coast is now in jeopardy after successful court action by a local Indigenous elder (15 May 2020). More...
Queensland infrastructure project a leader in sustainability
The Logan Enhancement Project has been awarded the first Leading rating in Queensland by the Infrastructure Sustainability Council of Australia (ISCA). The rating is the first and only national sustainability rating tool for infrastructure, measuring sustainability performance across the quadruple bottom line (environmental, social, economic and governance) (29 May 2020). More...
How a 115-year-old mortgage helped save a bayside home
A pre-1911 house in Manly in Brisbane's bayside won't be demolished purely because of its age, a court has ruled (27 May 2020). More...
Court Approves $900m Sunshine Coast Masterplan
The Planning and Environment court has dismissed an appeal against the construction of a $900 million beachfront masterplan and 5 star hotel development on the Sunshine Coast, following a two year legal battle (27 May 2020). More...
Sekisui House development at Yaroomba overcomes court hurdle
Court appeal against a $900 million beachfront development at Yaroomba is lost (26 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...
Golfers versus gliders: A peek at Brisbane's first golf course in 70 years
This is the first look at the fairways for Brisbane's first new golf course in 70 years – right beside a crucial squirrel glider habitat (16 May 2020). More...
Industry update on export ban of waste glass
The export ban on waste glass will now commence on 1 January 2021 (26 May 2020). More...
PC Issue Paper: National Water Reform
This issues paper was released on 26 May 2020 to guide people in preparing a submission. It outlines a range of issues on which the Commission is seeking information and feedback by 21 August 2020. More...
Announcements, Draft Policies and Plans released 2020
21 May 2020: Supreme Court news
PROTOCOL: Court Operations - COVID-19. More...
NSW LEC - Microsoft Teams Practitioner's Fact Sheet
27 May 2020 - The Court has issued a fact sheet for using Microsoft Teams at the Land and Environment Court. More...
NSW LEC - Land and Environment Court (Amendment No 1) Rule 2020
15 May 2020 - A Rule has been made to amend the Land and Environment Court Rules 2007 to (a) extend the application of rule 3.10 relating to Court functions not exercisable by Commissioners to Commissioners exercising the jurisdiction of the Land and Environment Court or any other function under the Land and Environment Court Act 1979, and (b) update references to provisions of the Environmental Planning and Assessment Act 1979. More...
COVID-19: Information for attending Court
The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments and includes the updates (21 May 2020).
Planning legislation changes
Changes to planning legislation will extend the usual periods for lapsing of development consents, abandonment of use rights and merit appeals. Include the following changes affecting planning laws outlined here. See COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 No 5 (assented 14 May 2020). More...
NSW Planning Department: Have your say - Draft plans and policies
Flood Prone Land Package
Notification start-end date 30/04/2020 - 25/06/2020
This will build resilience in communities located on floodplains and reduce the extent of property damage and potential loss of life from severe to extreme flooding throughout NSW. More...
Draft special infrastructure contributions (SIC) guidelines
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking to improve the transparency of the application of SICs. The draft SIC guidelines provide guidance regarding the purpose and function of SICs and their application in the new approach to precinct planning. More...
Proposed amendments to the EP&A Regulation
Notification start-end date 15/04/2020 - 12/06/2020
The Department is proposing amendments to the EP&A Regulation to improve transparency in the infrastructure contributions system through better reporting of contributions received and expended for individual contributions plans and planning agreements. More...
Draft planning agreements policy framework
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking feedback on an updated planning agreements policy framework. The proposed changes will result in a clearer and more transparent contributions process and will allow planning agreements to be used for their intended function to fund innovative infrastructure solutions. More...
Changes to Housing SEPPs
Seniors Housing State Environmental Planning Policy – the SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020
Is your business eligible for a Temporary Use License
The Queensland Government have published a fact sheet to help businesses understand if they may be eligible for a Temporary Use License (TUL) due to COVID-19.mA TUL temporarily varies an existing development approval or operating conditions for a business during an extraordinary event. The COVID-19 outbreak was declared as an applicable event under section 275E of the Planning Act 2016 by the Minister for Planning (May 2020). More...
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).
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...
New or expanded cropping
The Queensland Government will defer the commencement of the new or expanded commercial cropping and horticulture activities requirement (known as ERA 13A), under the Reef protection regulations until 1 June 2021. The deferment is in direct response to COVID-19 (coronavirus) and ensures the agricultural community has a suitable amount of time to prepare for the changes. More...
Watson as trustee for the Murrindindi Bushfire Class Action Settlement Fund v Commissioner of Taxation  FCAFC 92
TAXATION – allowable deductions – where the taxpayer is the scheme administrator of the Murrindindi Bushfire Class Action Settlement Scheme – whether the costs and expenses incurred by the taxpayer in administering the Scheme are deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) – whether the costs were incurred in gaining or producing assessable income – whether the costs were incurred in carrying on a business – whether the costs were an outgoing of capital or of a capital nature – appeal dismissed
Friends of Leadbeater’s Possum Inc v VicForests (No 5)  FCA 705
COSTS – late filing of significant evidence by respondent – adjournment of trial – whether applicant entitled to separate order for costs – whether costs payable on party party or indemnity basis
Friends of Leadbeater’s Possum Inc v VicForests (No 4)  FCA 704
ENVIRONMENT LAW – listed threatened species – conduct of past and proposed forestry operations in the Victorian Central Highlands Regional Forest Agreement region – precautionary principle – whether exemption in s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) lost because forestry operations were not or are not likely to be undertaken in compliance with the Code of Practice for Timber Production 2014 (Vic) – whether, if the s 38(1) exemption is lost, forestry operations are an action that was likely to have had or is likely to have a significant impact on the Greater Glider or Leadbeater’s Possum or both
Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 23)  NSWSC 650
REPRESENTATIVE ACTIONS – property damage arising out of widespread urban flooding from Brisbane River escaping its banks in January 2011 – principal judgment delivered in November 2019 – plaintiff successful against all three defendants – consequential issues – form of common or separate questions – formal order made answering questions
DAMAGES – INTEREST – fixtures and fittings of plaintiff’s store damaged by flood – clean up undertaken by volunteer labour before store reopened – plaintiff recovered amount for damage calculated by reference to commercial cost of volunteer labour – whether interest should be allowed – award of interest compensatory – matters irrelevant to recovery of head of damage may be relevant to award of interest – HELD: interest not awarded.
NEGLIGENCE – APPORTIONMENT – plaintiff’s claim “apportionable claim” – whether appropriate apportionment provision is s 31(1) of Civil Liability Act 2003 (Qld) or s 35 of Civil Liability Act 2002 (NSW) – apportionment between defendants found vicariously liable for actions of flood engineers – flood engineers engaged on successive shifts during flood event – difficulties in quantification of “causal potency” of each flood engineers actions – whether comparison of relative flood engineer’s contribution to damage should be taken into account – whether liability should be apportioned equally between defendants or by reference to flood engineers the parties employed – utility of quantitative assessments of causal potency – whether breach finding in respect of one flood engineer should be reviewed or modified –
HELD - Queensland statute applicable – relevant assessment should be by reference to vicarious liability for flood engineer – quantitative assessment of little assistance but qualitative assessment of relative contributions and degree of departure still possible – assessments tempered by common undertaking and common mistakes of flood engineers – First Defendant: 50% responsible – Second Defendant: 30% responsible – Third Defendant: 20% responsible.
Lees v Kennerley  NSWSC 630
CONTRACT – option agreement and collateral deed created to settle a dispute over semi-rural property held by two tenants in common – obligations under the option agreement supported by a mortgage – plaintiff claims defendant’s breaches of the mortgage accelerate her rights to exercise a put option granted under the option deed – whether the defendant is in breach either of the option agreement or the mortgage – whether the plaintiff is entitled to exercise the put option under the option deed. Environmental Planning and Assessment Act, 1979, s76A(1)(a); State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 2.29 and 2.30
Port Macquarie-Hastings Council v David Peter Waite (No 2)  NSWLEC 60
SENTENCING – environmental offences – Environmental Planning and Assessment Act 1979 – carry out development otherwise than in accordance with conditions of development consent – erect structures without development consent – Local Government Act 1993 – carry out an activity without obtaining prior approval – guilty pleas – whether contents of leaflet impacts remorse – defendant not cross-examined – utilitarian value of guilty pleas – penalties reflect proportional criminality not solely general deterrence – proceedings could have commenced in the Local Court – totality principle – monetary orders
Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council  NSWLEC 59
APPEAL – appeal on questions of law from decision of Commissioner dismissing appeal of refusal of modification application of court approved development consent – no vitiating material error in approach to precondition that modification must be substantially the same as original development – no error of law demonstrated by reference to case law
WaterNSW v Goldfinch  NSWCATAD 139
ADMINISTRATIVE LAW – administrative review – Inquiry into desirability of grant of surface water licence – consideration of factors to be taken into account – whether respondents interests may be affected – transfer of existing entitlement – minimal impact. Water Act 2012; Water Management Act 2000. Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000
Jones v Murrumbidgee Irrigation Limited (No 2)  NSWSC 613
AGRICULTURE – Rice growing – Landforming by cutting and filling – Water management – Irrigation bay layout – Urea and nitrogen – Bloodworms dead or alive – Turbidity – Remediation and flocculation
CONTRACTS – Implied terms – Breach of contract – Whether quality of water supplied by irrigator to farmer was contaminated or unfit to be used for irrigation in breach of contract – Deoxygenated water – Ca:Mg ratio of water – Metal toxicity and monosulfidic black ooze – No breach of contract in the circumstances
NEGLIGENCE – Duty of care – Whether duty of care limited by contractual limitation of liability clauses – No breach of duty in the circumstances
TRESPASS – General principles – Wrongful depositing of harmful solids on land as a result of turbid water – Whether consent to entry of turbid water onto land – Where landholder ordered delivery of water and opened outlets to permit entry of turbid water – Trespass not established in the circumstances
Penrith City Council v Dincel Construction System Pty Limited (No 2)  NSWLEC 58
COSTS — Party/Party — Costs orders in interlocutory proceedings - - Penrith City Council (‘Council’) seeks declaratory and consequential injunctive relief against Dincel Construction Systems Pty Ltd and Gaonor Pty Ltd in relation to unauthorised development carried out at premises located at 901-915, 919-929 and 931 Mamre Road, Kemps Creek
Nanevski Developments Pty Ltd v Slaveski  NSWSC 617
CIVIL PROCEDURE — Pleadings — Form and content of pleading — Pleading material facts — Defects —Striking out — Tendency to cause prejudice, embarrassment or delay — Amendment — Late application for amendment. Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64; Civil Procedure Act 2010 (Vic) Competition and Consumer Act 2010 (Cth), Sch 2; Conveyancing Act 1919 (NSW), s 66G Home Building Act 1989 (NSW); Protection of the Environment Operations Act 1997 (NSW)
Stokes v Waverley Council (No 3)  NSWLEC 1224
DEVELOPMENT APPEAL – remitted matter – alterations and additions to approved dwelling that has commenced including change in use – exceedance of the height of building development standard – meaning of existing ground level – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards – excavation – consent orders sought
Eastside Projects Pty Ltd v City of Canterbury Bankstown Council  NSWLEC 1217
DEVELOPMENT APPLICATION – boarding house – character compatibility – amenity
Toplace Pty Ltd v Council of the City of Sydney  NSWLEC 1222
APPEAL – modification application – modification to a condition of consent that requires intersection upgrade to be completed prior to any occupation certificate – wording sought to be amended to allow issue of interim occupation certificate – application made pursuant to s 4.55(1A) – the power to modify under s 4.55(1A) can only be exercised if the modification has minimal environmental impact – whether evidence establishes minimal environmental impact
Lindvest DM Pty Ltd v Ku-ring-gai Council  NSWLEC 1218
DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R4 High Density Residential zone – riparian zone – biodiversity protection – apartment design guide
Richards & Ors v Brisbane City Council & Ors  QPEC 26
PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of a development application for a childcare centre in the low density residential zone
PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development – whether the proposed development will serve a local community facility need only – whether there are relevant matters which justify the proposed development Planning Act 2016 Qld s 45; Planning and Environment Court Act 2016 Qld ss 43, 46
Serratore & Ors v Noosa Shire Council  QPEC 27
PLANNING AND ENVIRONMENT – APPLICATION FOR COSTS – where the respondent made an unsuccessful application for nunc pro tunc orders under rr 250 and 660 of the Uniform Civil Procedure Rules 1999 – whether the application was frivolous or vexatious – whether the respondent defaulted in the Court’s procedural requirements – whether costs should be awarded under s 60(1) of the Planning and Environment Court Act 2016 Uniform Civil Procedure Rules 1999 Qld rr 250, 660(3); Planning and Environment Court Act 2016 Qld s 60(1) Planning and Environment Court Rules 2018 Qld rr 4, 39(1)
Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor  QPEC 25
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – submitter appeal against Council’s decision to approve a development application for a mixed use development – where development application sought preliminary approval for material change of use (request to change the effect of planning instruments) – where the development application sought development permits for reconfiguration of a lot and for material change of use – whether proposed development complies with relevant assessment benchmarks – whether proposed mix of land uses achieves the Planning Scheme’s intention for a tourism focus area – whether the proposed development would involve inappropriate commercial development
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where there are no unacceptable impacts in relation to setbacks, overshadowing, overlooking, overbearing or site cover – whether the proposed development is appropriately designed – whether there is an overdevelopment of the subject land reflected in the scale, height and intensity of the proposed development – whether development was of a bulk and scale compatible with the built form intent of the Emerging community zone code – whether the proposed development will have unacceptable impacts on the character and amenity of the area – whether development sensitively transitions to local setting and enhances the character of the area – whether the proposed development accords with reasonable community expectations
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where the proposed development is proximate a nesting beach for loggerhead turtles – whether the proposed development poses an unacceptable risk to the loggerhead turtle – whether the purpose of the Planning Act 2016 is achieved with respect to the risk to the loggerhead turtle – whether the precautionary principle warrants refusal
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – whether there are relevant matters that support refusal or approval – whether there is an economic, planning or community need for the proposed development – whether there is hotel, residential or retail need for the proposed development – whether the proposed development will provide economic benefits to the locality, region and State – whether the proposed development supports investment in the Sunshine Coast Airport – whether the Hyatt preliminary approval supports approval of the proposed development – whether the locational attributes of the subject land and the design response to it supports approval – whether the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018 – whether it is within the public interest for the proposed development to be approved
Planning Act 2016 Qld s 45, s 59, s 60, s 85, s 311; Planning and Environment Court Act 2016 Qld s 10, s 43, s 45, s 47; Planning Regulation 2017 Qld s 31
Knuth & Ors v Department of Natural Resources, Mines and Energy  QCAT 156
ENVIRONMENT AND PLANNING – TREES AND VEGETATION – NATIVE VEGETATION – where landowners sought approval for a Property Map of Assessible Vegetation (PMAV) over their land – where the PMAV mapped large areas Category X - where the respondent department rejected the applicants’ PMAV – where the department drew a PMAV assessing most of the property as remnant vegetation – where there was historical evidence of timber cutting on the property – where the historical timber cutting did not extend across all the property – where the experts disagreed on evidence of clearing on available imagery – where remnant vegetation found on adjacent areas was consistent with vegetation on the subject property – where there was significant variation of the structure of the vegetation across the regional ecosystem – where similar variation was found on the property - where the recommended methodology for assessment of vegetation as remnant vegetation considered – where the vegetation was determined to be remnant vegetation. Vegetation Management Act 1999 Qld s 3, s 10, s 63B(1), s 20CA(3)(a)
Clermont Quarries Pty Ltd v Isaac Regional Council  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
Western Downs Regional Council v Geldard (No 2)  QLAC 2
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal was allowed by the Land Appeal Court – where the appellant was a ratepayer-funded council – where the costs below were the subject of consent orders – where the question for the Land Appeal Court to decide was a straightforward matter of statutory interpretation – whether costs should follow the event in the Land Appeal Court – whether the respondent should pay the appellant’s costs in the court below notwithstanding that costs in that court were the subject of consent orders
Land Court Act 2000 Qld s 34; Local Government Regulation 2012 Qld 2012
Tokyo 2 Pty Ltd v Brisbane City Council  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
Regulations and other miscellaneous instruments
Electricity Supply (General) Amendment (Remote De-energisation and Re-energisation) Regulation 2020
(2020-226) — published LW 29 May 2020
Liquor Amendment (COVID-19 Licence Endorsements and Temporary Freezes) Regulation 2020
(2020-227) — published LW 29 May 2020
National Energy Retail Law (Adoption) Amendment (De-energisation and Re-energisation Charges) Regulation 2020
(2020-228) — published LW 29 May 2020
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.