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Inside track: Planning, Environment & Sustainability

12 November 2018

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Federal Court outcome on Emissions Reduction Fund case
The Federal Court handed down its decision in the case of Country Carbon Pty Ltd v Clean Energy Regulator (01 November 2018).  More...

Blockchain on the cusp of revolutionising housing
Digital planning tools are on the cusp of systematic adoption by councils and metropolitan planning agencies around the world looking to do away with long-standing inefficiencies through data-driven city planning (25 October 2018).  More...

Sydney Opera House makes net zero carbon commitment
The World Green Building Council (WorldGBC) has welcomed two non-profit organisations as new signatories to the Net Zero Carbon Buildings Commitment, which now include 22 cities and four states and regions (25 October 2018).  More...

Why Australian company directors have started caring about climate change
Australian company directors nominate climate change as the number one issue they want the government to address in the long-term, in a survey of more than 1,200 business leaders (24 October 2018).  More...

NABERS’ new tool is looking at you tenants
NABERS ratings have been phenomenally successful for offices: they’ve penetrated 80 per cent of the office space market and saved a mountain in energy costs for landlords. Now there’s a new tool that could do the same for tenants (23 October 2018).  More...

Victoria

ISPT to develop 32-Storey vertical campus in Melbourne's CBD
ISPT has been awarded the tender to develop a new 32-storey vertical campus in the heart of Melbourne CBD. DA approval is already in place for the striking vertical campus building, which has been designed by Daryl Jackson Architects (02 November 2018).  More...

Court orders company to pay EPA $4.5 million for Stawell tyre removal
EPA has begun proceedings against Internet Marketing Solutions Corp (IMSC) in the Supreme Court to recover the costs associated with removing an estimated one million tyres from a stockpile in Stawell (30 October 2018).  More...

200,000 new residents: Melbourne's northern suburbs need huge infrastructure injection
A report for a group representing Melbourne's north calls for a range of big infrastructure projects to be started over the next decade (26 October 2018).   More...

New South Wales

Over 4500 hectares added to New South Wales' national park network
Additions include a new koala habitat, a rainforest in the Upper Hunter and sites of significant cultural heritage (29 October 2018).  More...

Tough laws, lower fees for asbestos disposal
Environment Minister Gabrielle Upton said the draft NSW Asbestos Waste Strategy will target the three things that drive illegal asbestos dumping: cost, convenience and awareness (26 October 2018).  More...

Next stage for $57.5 million Australian Museum renovation
The next phase of the $57.5 million renovation of the Australian Museum is now underway with the refurbishment plans on exhibition for public comment (26 October 2018).  More...

Closing loopholes for certifiers
Building and development certifiers are facing the toughest penalties to date, under laws that aim to clean up the industry and give confidence to the community and homebuyers. Minister for Better Regulation Matt Kean said the reforms passed in Parliament would allow the NSW Government to come down hard on dodgy operators (26 October 2018).  More...

New South Wales EPA to end agricultural use of mixed waste organic material
Following comprehensive independent studies, the NSW EPA is stopping the restricted use of mixed waste organic material on agricultural land, and is ceasing use on plantation forests and mining rehabilitation land until further controls can be considered (25 October 2018).  More...

Good urban design a priority for New South Wales regional areas: Government Architect
Urban design has a crucial role to play in regional New South Wales to ensure everyone has the opportunity to enjoy a great quality of life and to help create healthy, happy and prosperous regional communities (24 October 2018).  More...

Calls for Roxy Theatre to be transformed into music venue
It has long been an icon of Sydney's west - and now there are growing calls for authorities to pull together to ensure Parramatta's Roxy Theatre gets a proper second life, before it's too late (24 October 2018).  More...

$20 million in funding to deliver local infrastructure
Minister for Planning and Housing, Anthony Roberts, announced a further $20 million in funding to support local government infrastructure projects that speed up housing delivery across NSW (22 October 2018).  More...

Queensland

Green light for Star's $2 billion Gold Coast masterplan
The Palaszczuk Government has approved plans for an expansion of The Star Gold Coast worth more than $2 billion, which could create 10,000 jobs (02 November 2018).  More...

New online dashboard for monitoring South East Queensland growth
The Palaszczuk Government launched an Australian-first new online dashboard vital to planning for South East Queensland’s projected population growth over the next 25 years (02 November 2018).  More...

The Spit Master Plan options report released
The Palaszczuk Government has released an options report for The Spit Master Plan identifying 72 options across seven precincts – Top of The Spit, Wave Break Island, Federation Walk coastal reserve, Muriel Henchman Park, Village centre, Philip Park and Southern Gateway (27 October 2018).  More...

Latest State of the Environment Report highlights significance of environmental projects
The Palaszczuk Government’s efforts to protect Queensland’s environment have been highlighted in the latest State of the Environment Report (26 October 2018).  More...

Childcare centre proposed for Brisbane's tallest tower
A childcare centre has been proposed to be built within Brisbane’s tallest residential tower. A design plan submitted as part of the development application showed the floor broken into seven different group areas which had varying capacities of 10 to 22 children (25 October 2018).  More... 

$1 million grants to boost access to Containers for Change
November 1 marked the very beginning of the scheme and as more Queenslanders participate and the scheme grows, we expect more and more refund sites will be established across the state. The funding will be used for projects to establish enhanced infrastructure and services, storage and sorting equipment, collection cages, bins and transportation (21 October 2018).  More...

In practice and courts

Victoria

Approvals
VC152 establishes planning policy for the management of land for major hazard facilities and their respective buffer distances; Implements a new particular provision to support a simpler and straightforward development assessment process for residential aged care facilities. Introduces permit exemptions for community care accommodation to enable the streamlined renewal and development of these facilities, and provides clarity on the extent of permit exemptions for rooming houses.
VC154 implements initiatives from Plan Melbourne 2017-2050 and Water for Victoria – Water Plan by modifying the Planning Policy Framework to reflect integrated water management objectives and by introducing a new particular provision for stormwater management in urban development.
VC155 amends the Planning Policy Framework at Clause 15.03 Heritage to introduce a new strategy to consider the restoration or reconstruction of a heritage building that has been unlawfully or unintentionally demolished, and inserts 'The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013' as a policy guideline; Makes minor changes to the wording of the residential rooftop solar energy facility provisions recently introduced by Amendment VC149 to ensure that they are clear and unambiguous with respect to their intended operation.

New South Wales

Too good to waste: discussion paper on a circular economy approach for New South Wales
Environment Protection Authority (NSW); Department of Planning and Environment (NSW): 22 October 2018
This discussion paper presents an overview of the circular economy, how it can be applied in New South Wales, and the benefits it could bring.

Luna Park Consultation
The proposed policy update would ensure families and visitors can have a great time at Luna Park this Christmas whilst not changing existing considerations regarding safety, noise, lighting and heritage protections. Details of the proposed State Environmental Planning Policy (State Significant Precincts) exempt and complying development provisions for Luna Park are available here.

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.  More...

Have your say: Reducing the risk of pollution from service station runoff
The NSW Environment Protection Authority is inviting feedback, particularly from industry and local councils, on a draft guide that outlines how service stations can better protect the environment from potentially polluted run-off from service station forecourts. Submissions close on 30 November 2018.  More...

Dates for Environmental Planning & Assessment Act updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans.
While most of the changes will commenced on 1 March 2018, there will be a number of other changes that will involve further design and consultation from mid to late 2018.  More...

New South Wales 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
Amendments to State Environmental Planning Policy (SEPP) Three Ports 2013 Closes 03/12/2018
Short-term rental accommodation in NSW: explanation of intended effect Closes 16/11/2018
Proposed Special Infrastructure Contribution for Bayside West Closes 23/11/2018
Community participation plan - exhibition draft Closes 06/12/2018

Queensland

PCA: Queensland's Valuer-General 2019 Valuation Program Announced
The local government areas to be included in the 2019 Annual Valuation Program.  18 local government areas have been selected: Brisbane, Burdekin, Cairns, Etheridge, Gympie, Ipswich, Lockyer Valley, Logan, Longreach, Moreton Bay, Noosa, North Burnett, Redland, Somerset, South Burnett, Sunshine Coast, Weipa and Western Downs. Further information on statutory valuations and the 2019 Annual Valuation Program can be found here. (01 November 2018).  More...

Options report for The Spit Master Plan
The final master plan is expected to be completed by mid-2019. The future of The Spit is now open for public comment, closing on November 25 (27 October 2018).  More...

Department of Natural Resources, Mines and Energy: consultations
Proposed Lakeland Wind Farm
Have your say on the proposed Lakeland Wind Farm. Closes 24 November 2018
Review of accepted development vegetation clearing codes
Have your say on the revised draft codes for necessary environmental clearing, managing encroaching and managing weeds. Submissions close on 19 November 2018.

Cases

Victoria

Alpine SC v Gilandos Pty Ltd [2018] VCAT 1609
Section 114 Planning and Environment Act 1987; Section 124 Victorian Civil and Administrative Tribunal Act 1998; Existing use rights; Ancillary use.

Kolovos v Moreland CC [2018] VCAT 1699
Section 81(1) Planning and Environment Act 1987; Moreland Planning Scheme; Request to extend the time to commence a development; General Residential Zone Schedule 1; Application of principles in Kantor v Murrindindi Shire Council.

Waterfront Place Pty Ltd v Minister for Planning [2018] VSC 621
PLANNING – Call in of proceedings in the Victorian Civil and Administrative Tribunal by the Minister for Planning – Calculation of time – Meaning of cl 58(3)(b) in sch 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Application of s 44(1)–(4) of the Interpretation of Legislation Act 1984 (Vic).

Lika v Hobsons Bay CC [2018] VCAT 1664
Hobsons Bay Planning Scheme, Section 77 Planning and Environment Act 1987, Heritage Overlay, General Residential Zone – Schedule 2, visual bulk, heritage streetscape setting, building recession in heritage overlay, neighbourhood character, provision of secluded private open space. No permit.

Surace v Monash CC [2018] VCAT 1608
Monash Planning Scheme; Application under section 80 of the Planning and Environment Act 1987 – to review conditions on a permit; C1Z; DDO12; Proposal for 13 storey mixed use development; Site in Glen Waverley Major Activity Centre; Height and built form response; Car park design and access.

Pedley v Bayside CC [2018] VCAT 1662
Section 82 of the Planning and Environment Act 1987; Bayside Planning Scheme; Commercial 1 Zone; Restricted recreation facility; Noise; Vibration; Amenity. No permit.

Leung v Harris (Building and Property) [2018] VCAT 1630
Water Act 1995 – s.16 – unreasonable flow of water – s.19 – powers of Tribunal – water penetrating tiles and membrane of balcony forming part of Respondent’s Unit – water passing through common property and entering Applicant’s Unit - knowledge of existence of flow – obligation of the Respondent – nature of relief. Apartment block containing the two units was constructed by Maxcon Pty Ltd in about 2011. Expert evidence was given by two building experts Order the Respondent pay to the Applicant $52,250.39.

New South Wales

Melino v Roads and Maritime Services [2018] NSWCA 251
LAND AND ENVIRONMENT – compulsory acquisition of land – compensation – compensation awarded for market value – whether claim for disturbance available – relationship between heads of compensation for market value and disturbance – whether costs claimed were or would be reasonably incurred as a direct or natural consequence of acquisition – whether costs claimed related to the actual use of the acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 59.

Moloney v Roads and Maritime Services [2018] NSWCA 252
ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including loss of amenity to main dwelling on residue land – whether claim for disturbance available for cost of relocation to replacement dwelling on residue land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59 ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including right to potential profits from acquired land – whether claim for disturbance available for loss of profits from acquired land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59.

Jigari Pty Ltd v City of Parramatta Council [2018] NSWLEC 1568
DEVELOPMENT APPEAL: two storey town house redevelopment – infill self-care housing - consistency with the character of the area - variation to standard sought – standard requires single storey development to the rear of the site – potential impacts on the visual and acoustic privacy of adjoining residential lots.

Knight v Coffs Harbour City Council [2018] NSWLEC 1569
APPEAL – development application – residential flat building – breach of the height development standard – bulk and density – visual and acoustic privacy.

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
JUDICIAL REVIEW – decision of Land and Environment Court Commissioner – decision to grant consent to development application for residential flat building that contravened height development standard – decision in accordance with parties’ agreement reached at conciliation conference – whether Commissioner lacked jurisdiction to make decision – development partly on neighbouring owner’s land – whether neighbouring owner’s consent was required to development application – whether Commissioner formed the requisite opinions of satisfaction to justify contravention of development standard – whether decision to grant development consent was legally unreasonable – whether conciliation conference was validly constituted CIVIL PROCEDURE – power to amend orders – “slip rule” – Commissioner’s decision to amend orders under slip rule – amendments to conditions of consent and approved plans – whether order valid – Uniform Civil Procedure Rules 2005, r 36.17.

Karlos v Tweed Shire Council [2018] NSWLEC 164
MODIFICATION APPLICATION - application to Council to modify 2003 development consent for commercial water extraction - modification seeks approval to use 19-metre articulated tankers in lieu of 6-metre rigid tankers - application refused by Council - appeal against refusal - leave granted during hearing to amend modification application to seek further modification by removal of conditions having the effect, relevantly, of imposing a maximum annual volumetric rate of extraction on water for commercial purposes SCOPE Of PERMITTED DEVELOPMENT - development permitted by 2003 development consent specified in notice of determination by reference to Statement of Environmental Effects and plans lodged with development application in 2003 - the use specified in the 2003 consent not the use being carried out on the site in 2018 - nature of development being used for extraction in 2018 significantly different to that permitted by 2003 consent - no approvals for the changes in the operational development JURISDICTION - statutory test that a development, if modified, be substantially the same as the development original approved - jurisdiction must be engaged prior to consideration of any merit matters - proposed modification must satisfy test qualitatively and quantitatively - separate consideration of each element of amended modification application - modification seeking approval to use 19-metre articulated tankers fails jurisdictional test on qualitative and quantitative bases - modification seeking removal of volumetric water extraction limit fails jurisdictional test on two quantitative bases- no jurisdiction to approve modification application - no basis to apply amber light approach - appeal dismissed.

Burrell v Mullin [2018] NSWLEC 165
INTERLOCUTORY APPLICATION: application to restrain building and construction works below residential and commercial premises – serious issues to be tried in relation to the validity of a complying development certificate issued by a private certifier – balance of convenience in favour of granting interim injunctive relief – expedited final hearing ordered.

Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240
ENVIRONMENT AND PLANNING – consent – owner of lot constructed road on adjoining lot – owner of adjoining lot sought relief for trespass and breaches of Environmental Planning and Assessment Act 1979 (NSW) – whether road constructed without development consent – whether road constructed otherwise than in accordance with development consent – whether entry onto land for purpose of construction authorised by general right of access – Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(a), 76A(1)(b), 124. ENVIRONMENT AND PLANNING – erection of buildings – whether roadway following natural lie of land a “building” – whether construction certificate required – Environmental Planning and Assessment Act 1979 (NSW), ss 4, 81A(2). LAND LAW – easements – section 88B instruments – right of access – description of “right of access” in s 88B instrument did not include right to construct trafficable surface – whether instrument’s express terms varied statutory short form meaning of “right of access” – whether construction a trespass – Environmental Planning and Assessment Act 1979 (NSW), Sch 8, Pt 14. STATUTORY INTERPRETATION – contextual construction – use of dictionaries WORDS AND PHRASES – “building” – “erection” – “includes any structure” – “pass over”.

Cmunt v Snowy Monaro Regional Council [2018] NSWCA 237
LAND & ENVIRONMENT – where respondent issued appellants with notice preventing appellants from keeping more than two dogs on property – where respondent issued appellants with orders requiring removal of certain structures and advertisements – where respondent brought proceedings against appellants for failure to comply with notice and orders – where primary judge ordered compliance within 60 days – where appellants appealed primary judge’s decision – whether respondent had jurisdiction to issue notice and orders – whether respondent had standing to bring enforcement proceedings – whether evidence before primary judge supported the respondent’s claims – whether primary judge failed to consider appellants’ evidence.

Queensland

Mirvac Queensland Pty Ltd v Chief Executive, Department of Aboriginal and Torres Strait Islander Partnerships [2018] QSC 248
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant is developing a residential subdivision development project – where the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) imposes on the applicant a cultural heritage duty of care – where the applicant developed and sought approval of a cultural heritage management plan under the Act – where the applicant identified an Aboriginal party (referred to as the applicant to the former Jagera #2 Claim) and an Aboriginal cultural heritage body for the area in respect of which it proposed to developed its cultural heritage management plan – where the applicant to the former Jagera #2 Claim was endorsed by the applicant to take part in developing the cultural heritage management plan – where, as at 1 May 2013, the applicant to the former Jagera #2 Claim was no longer a registered native title claimant under the Native Title Act 1993 (Cth) and no longer an Aboriginal party (as defined in the ACHA) – where the applicant entered into a cultural heritage management plan with the applicant to the former Jagera #2 Claim and the Aboriginal cultural heritage body – where, on 6 September 2017, the applicant submitted the cultural heritage management plan to the respondent for approval under s 107(1)(b) of the ACHA – where two other native title parties were registered for the area (one registered prior to the submission of the cultural heritage management plan and the other subsequent to the submission of the plan but prior to the respondent’s decision) – where the respondent decided that the cultural heritage management plan could not be approved under s 107(1)(b) of the ACHA because the applicant to the former Jagera #2 Claim could no longer be regarded as an endorsed party – where the respondent decided that the cultural heritage management plan also could not be approved under s 107(2) of the ACHA – where the applicant applies for judicial review of the respondent’s decision on the grounds that it involved a number of errors of law – whether the respondent erred in law – whether the respondent’s decision should be quashed or set aside – whether the respondent should be required to approve the applicant’s cultural heritage management plan pursuant to s 107(3) of the ACHA.

Brooks Earthmoving & Quarries Pty Ltd v The Lockyer Valley Regional Council [2018] QPEC 51
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – GENERAL POWERS – where the applicant applies for revival and change to a expired development approval – where the approval expired on 31 December 2015 due to the operation of clause 4 of the approval – where the application was filed on 3 May 2018, being a date after the expiration of the approval – where, consequently, there is non-compliance with the Sustainable Planning Act 2009, the applicable Act at the time – where that legislation is now repealed – where the application is to be brought under the current legislation, by statutory effect – whether the court has power to grant the relief sought – whether the court should exercise its discretion to do so.

Legislation

New South Wales

Regulations and other miscellaneous instruments
Protection of the Environment Operations (Waste) Amendment (Waste Contributions Exemption) Regulation 2018 (2018-618) — published LW 2 November 2018
Environmental Planning and Assessment Amendment (F6 Extension Stage 1) Order 2018 (2018-602) — published LW 26 October 2018

Bills introduced Government
Building and Construction Industry Security of Payment Amendment Bill 2018
Fair Trading Legislation Amendment (Miscellaneous) Bill 2018
Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018
Retirement Villages Amendment Bill 2018
Saint Paul’s College Bill 2018
Snowy Hydro Corporatisation Amendment (Snowy 2.0) Bill 2018

Non-Government – 26 October
Liquor Legislation Amendment (Repeal of Lock-out Laws) Bill 2018

Bills passed by both Houses of Parliament
Building and Development Certifiers Bill 2018
Fair Trading Legislation Amendment (Reform) Bill 2018
Planning Legislation Amendment (Greater Sydney Commission) Bill 2018
Statute Law (Miscellaneous Provisions) Bill (No 2) 2018

Bills assented to
Building and Development Certifiers Act 2018 No 63 — Assented to 31 October 2018
Fair Trading Legislation Amendment (Reform) Act 2018 No 65 — Assented to 31 October 2018
Planning Legislation Amendment (Greater Sydney Commission) Act 2018 No 66 — Assented to 31 October 2018
Government Telecommunications Act 2018 No 67 — Assented to 31 October 2018

For the full text of Bills, and details on the passage of Bills, see Bills

Contacts:
Melbourne

Joseph Monaghan, Partner 
T: +61 3 9321 9857 
E: joseph.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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