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Inside track: Planning, Environment & Sustainability

11 December 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

The squeeze on Sydney industrial land is a boon for Melbourne and Brisbane
Industrial property occupiers forced out of the constrained Sydney market are flocking to Melbourne for space, and Brisbane is tipped to be next in line (21 November 2019).  More...

Congestion busting for environmental assessments
Communities, environmental groups and businesses will have greater transparency over the progress of major environmental projects as the Morrison government focusses on deregulation reform. The biodiversity database will provide better access to information such as wildlife surveys, allow faster and more comprehensive data for project assessments. (21 November 2019).  More...

Queensland

Plans Lodged for $200m Twin Tower Brisbane Apartments
Maple Development Group, wholly-owned by China-based developer Peng Bo, has lodged plans for a $200 million mixed-use project in Brisbane’s Quay Street precinct (29 November 2019).  More...

Industry welcomes Brisbane City Council Livable Housing incentives
The Property Council has welcomed a new incentive package from Brisbane City Council Budget aimed at encouraging the delivery of ‘livable housing’.  Brisbane City Council has announced the introduction of a 33% infrastructure charges rebate for developers who build properties to a ‘universal housing’ gold or platinum standard.* (28 November 2019).  More...

Arden Group Lodges Plans for East Brisbane Tower
Hong Kong-backed Arden Group, known for its residential developments in Brisbane and Sydney, has submitted a proposal for a 10-storey apartment building in Brisbane's fringe (27 November 2019).  More...

Council Bans Townhouses and Units in Brisbane’s Suburbs
Townhouses and apartment blocks are no longer welcome in Brisbane’s character suburbs after the Brisbane City Council voted to protect single house blocks under a two-year protection order (21 November 2019).  More...

Ruling requires work to stabilise Broadway Hotel
The Palaszczuk Government has called on the owner of the Broadway Hotel to carry out essential work to ensure the historic building is protected (20 November 2019).  More...

Council approves major changes to Brisbane's planning laws
The council voted in multiple large-scale amendments to the city's 2014 planning legislation (19 November 2019).  More...

In practice and courts

Queensland

Brisbane City Council
Livable (or Universal) Housing Design is a set of key construction features which aim to make homes easier and safer to use for all occupants including: people with disability, ageing Australians, people with temporary injuries, and families with young children. A livable home is designed to be easy to enter, easy to move around in, and be capable of cost-effective adaptation (28 November 2019).

Bills and Papers – 02 December 2019
Annual Report on the administration of the Environmental Protection Act | 2019 | Qld
This report is for the period 1 July 2018 to 30 June 2019.

Property Council lodges submission on Gold Coast City Plan
The Property Council has provided a response to the amendments proposed to the Gold Coast City Plan as part of the ‘Our City Our Plan’ package.  The Property Council’s submission provides advice on the key areas. A copy of the submission can be accessed here Gold Coast Planning Amendments (18 November 2019).

Prosecution Bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.
December 2019 Prosecution bulletin no 12/2019
November 2019 Prosecution bulletin no 11/2019

Cases

Queensland

Mirvac Queensland Pty Ltd v Ipswich City Council & Anor [2019] QPEC 62
PLANNING AND ENVIRONMENT – APPLICATION – whether the respondent had power to approve an application pursuant to the Springfield Structure Plan – whether the approval was lawful. Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld; Statutory Instruments Act 1992 Qld

Favero v Council of the City of Gold Coast [2019] QPEC 61
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – COSTS – FRIVOLOUS OR VEXATIOUS PROCEEDINGS – where the appellant appealed an enforcement notice issued by the respondent – where the respondent withdrew the enforcement notice and the court allowed the appeal on that basis – where parties generally bear their own costs – whether a costs order should be made under the Planning and Environment Court Act 2016 s 60, that is; whether the proceeding was started or conducted primarily for an improper purpose; whether it was frivolous or vexatious; whether the respondent introduced or sought to introduce new material; whether the respondent defaulted in the relevant procedural requirements; and whether the respondent properly discharged its responsibilities in the proceedings. Planning and Environment Court Act 2016 Qld s 10(2), s 45(3), s 59, s 60; Planning and Environment Court Rules 2016 Qld; Uniform Civil Procedure Rules 1999 Qld

Abeleda & Anor v Brisbane City Council & Anor [2019] QPEC 58
PLANNING AND ENVIRONMENT – APPEAL – where the co-respondent submitted a development application for a multi-storey car park – where the respondent Council approved that development application – where the appellant has appealed against that approval – where the appellant contends the proposed development is non-compliant with the planning scheme – whether proposed development is non-compliant with planning scheme – whether development complies with relevant assessment benchmarks – whether the respondent Council has correctly interpreted the planning scheme in approving the development application – whether in the exercise of discretion the co-respondent’s proposed development ought be approved
FLOODING AND WATER QUALITY – where the subject site is affected by local flooding events – whether development would cause unacceptable water quality and flooding impacts – whether development adequately addresses associated risks of flooding – where risk of flash flooding with little or no warning – whether risk of flooding warrants refusal
TRAFFIC – whether development has unacceptable impacts on the local road network – whether development would result in unacceptable traffic impacts on the local road network so as to warrant refusal
DESIGN AND AMENITY – whether height of development is non-compliant with the planning scheme – whether development is appropriately designed – whether development would have an unacceptable impact on the visual amenity of the locality – whether there is community need and economic need for the development to allow for the non-compliance
NEED – where the subject land is located proximate to the Royal Brisbane & Women’s Hospital – where development likely to be used by people attending the hospital – whether there is a community need and economic need for an additional multi-storey carpark in the locality
LAND USE – where the development is non-industrial use in the Low Impact Industry Zone – whether proposed land use is non-compliant with the planning scheme – whether there is a departure from intention of the planning scheme so as to warrant refusal
ONUS OF PROOF – where co-respondent developer still bore onus of proof despite being respondent to appeal – Section 45(2) Planning and Environment Court Act 2016. Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld; Sustainable Planning Act 2009 Qld

Vella's Plant Hire Pty Ltd v Mackay Regional Council & Anor [2019] QPEC 60
The appeal is allowed.
PLANNING AND ENVIRONMENT – APPEAL – where the appellant applied to the respondent council for a development permit for a material change of use – where the approval was recommended subject to appropriate conditions – where the material change of use was for the construction of a temporary quarry – where the respondent council refused that development application – where the appellant appeals that decision – where the co-respondent by election is an adjoining land owner to the subject site – where the respondent council changed its position on the application by the commencement of the hearing – where the issues whether the application should be approved subject to appropriate conditions
NEED – where the appellant intends to extract 200,000 tonnes of general fill in a one year period – where uncertainty exists about the need for general fill in the locality – whether projects in the locality requiring general fill will proceed – whether there is a demonstrated need for general fill in the locality – whether other existing quarries are capable of satisfying need for general fill in the locality
CONDITIONS – whether the development should be approved subject to appropriate conditions –whether three environmental corridors need be implemented – whether a farm dam need be constructed – whether the discharge point from diversion drains under the current proposal ought to be changed. Planning Act 2016 (Qld); Planning and Environment Court Act 2016 (Qld); Sustainable Planning Act 2009 (Qld)

Serratore & Ors v Noosa Shire Council [2019] QPEC 57
The application for an inspection is dismissed.
PLANNING AND ENVIRONMENT – APPEAL – PROCEDURE – appeal against enforcement notices given by the respondent – where the respondent made an application for nunc pro tunc orders under rr 250 and 660 of the UCPR to sanction an allegedly unauthorised site inspection – where the respondent wishes to use evidence gathered to discharge its onus in the appeal – privilege against self-incrimination – penalty privilege – where possible consequences in the event of future proceedings for offences – where the nature of the proceeding and the consequences of a favourable exercise of discretion relevant – where the respondent failed to lay a sufficient evidentiary foundation for its application. Local Government Act 2009 (Qld), ss 129, 130 and 146; Planning Act 2016 (Qld), ss 163, 168, 174, 229 and sch 1; Planning and Environment Court Act 2016 (Qld), ss 43, 45 and 47; Planning and Environment Court Rules 2018 (Qld), r 4; Uniform Civil Procedure Rules 1999 (Qld), rr 250 and 660

Skilton v 2PL Superannuation Pty Ltd [2019] QLC 45
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where both parties were automatically referred to the Court after lapsing of period in relevant mining legislation - where a compensation determination was required for the grant of a mining lease – where the landholder sought a stay of the mining lease compensation proceedings pending the judicial review of the mining lease recommendation – whether the balance of convenience favoured the granting of a stay where the judicial review application was framed so that the mining lease recommendation would either confirm or reject the recommendation but would not otherwise alter the conditions attached to the recommendation

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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Peter Holt

Peter Holt

Special Counsel

Sydney

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Gerard Timbs

Gerard Timbs

Partner

Brisbane

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