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Inside track: Property & Real Estate

12 August 2019

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

House prices see ‘subtle rise’ across most capital cities
Australia’s house prices look to be stabilising with five of the eight capital cities recording a slight rise in values over the month of July, a trend signalling further signs the housing market recovery is becoming more broad based (01 August 2019).  More...

Victoria

New apartment design standards to improve neighbourhoods
The Andrews Labor Government will introduce new design standards for the outside of apartment buildings to ensure new developments are built to a high-quality, and improve the look and feel of local neighbourhoods (02 August 2019).  More...

PCA: Melbourne CBD remains at national low
Melbourne has recorded a CBD vacancy rate of 3.3 per cent - the lowest CBD vacancy rate in the nation according to the Property Council of Australia Office Market Report. A combination of demand, some stock withdrawal and steady population growth are driving low vacancy rates in the state’s capital (01 August 22019).  More...

Residents complain of ‘cracking’ in Melbourne’s tallest tower
Residents of Melbourne's partially completed super-skyscraper Australia 108 have expressed concerns over the structural integrity of the building, claiming to have experienced loud cracking sounds among a number of other defects (29 July 2019).  More...

After years of controversy, protests and a mock beheading, Bendigo's mosque is being built
Accompanied by police, Premier Daniel Andrews takes part in a sod-turning ceremony at the site of the future Bendigo Islamic Community Centre, declaring goodwill had won out over "some pretty dark views" (26 July 2019).  More...

New $260,000 fund for heritage building restoration
The City of Melbourne is inviting heritage building owners to apply for a new $260,000 fund that will provide support to undertake restoration works on community-owned and landmark buildings (22 July 2019).  More...

NSW

Developers still face headwinds in apartment market
Ongoing market headwinds are making it hard for developers to meet pre-commitment hurdles required for finance — with fewer projects proceeding to construction, according to JLL’s second quarter apartment market report (01 August 2019).  More...

Ralan Group collapses leaving creditors $500m in the red
One of the nation's largest property developers, Ralan Group, has gone into voluntary administration, leaving billions of dollars worth of apartment projects in doubt. The Sydney-based developer owes around $500 million to creditors, including Westpac Bank and Melbourne finance house Wingate (01 August 2019).  More...

Construction industry cracks showing as major developer collapses
The cracks first appeared in the buildings. Now they have begun to spread across the industry as major developers start calling in the administrators, leaving tens of thousands of jobs at risk (01 August 2019).  More...

When it comes to urban infrastructure, big doesn’t have to mean bad
Provision of well-engineered transport, energy and other service infrastructure is essential to good urban functionality. But as Australia undergoes an infrastructure boom, lets not forget these major works can and should contribute to the social, cultural and human qualities of our cities (01 August 2019).  More...

New home sales see first improvement since 2017
New home sales recorded a slight uptick in the June quarter in a move marking the first lift since 2017, reveals the Housing Industry Association (31 July 2019).  More...

Improving quality of life with urban resilience
In a world that is increasingly urban — with buildings and other assets being operated as part of the inter-related and inter-dependent systems that keep society running smoothly — resilience is an essential quality to have (30 July 2019).  More...

Australia's solar industry is booming, but so is the amount of valuable waste going to landfill
At the moment, there are no laws regulating the solar industry's waste, but experts have predicted there could be a whopping 1,500 kilotons of it by 2050 (23 July 2019).  More...

Occupant comfort and sustainability a priority for buyers
Sustainable homes with high environmental ratings and features like solar panels attract a price premium in Australia. It's clear that buyers don't need convincing when it comes to sustainable homes, it's just the terminology that creates confusion (23 July 2019).  More...

Queensland

Brisbane office market vacancy at six year lows
Solid demand for office space continues to see vacancy rates fall, with the Brisbane CBD now at its lowest level of vacancy since 2013. A-grade stock located on Brisbane’s fringe has seen increasing demand over the first half-this year, particularly for A-grade assets (02 August 2019).  More...

PCA: Brisbane office markets bounce back
The Property Council of Australia’s latest Office Market Report shows that vacancy across the CBD has dropped from 12.9 per cent to 11.9 per cent over the last six months. Vacancy in the Brisbane Fringe fell from 15.7 per cent to 13.8 per cent over the same period. While there has been some office buildings withdrawn from the market for redevelopment, new demand is playing a big role in bringing down the vacancy rate (01 August 2019).  More...

Developer plans build to rent project in West End
A five level mixed-use development project in Brisbane’s inner city will incorporate built-to-rent according to plans lodged by Brisbane-based development company Property Projects Q (01 August 2019).  More...

Widi people recognised as Isaac region owners
A North Queensland court will recognise the Widi people’s ancestral connection to a quarter-of-a-million hectares in the Isaac region (31 July 2019).  More...

Crown Group delays West End apartment project
Crown Group has pushed back plans to build its residential development in Brisbane's inner suburb West End.
The amended design will see four 12-storey structures over a common podium with increase landscaped walkways connecting with public land along the Brisbane river (30 July 2019).  More...

Developer H&F Property plan Gold Coast tower
Private developer H & F Property has lodged plans for a new residential tower delivering 78 apartments to beachside suburb, Palm Beach, at the Gold Coast. The architectural analysis identifies the suburb's heritage qualities, describing Palm Beach as synonymous with the 'quintessential beach house' (26 July 2019).  More...

Property Council continues strong advocacy against land tax increases
The Property Council states recent increases, implemented through the Queensland State Budget 2019/20, will see Queensland facing a significantly broader foreign land tax surcharge than the comparable surcharges in NSW and Victoria, with far more landowners captured (25 July 2019).  More...

Blue carbon partnership an Australian first
The ‘blue carbon’ project (Blue Heart) will support landholders and local communities to adopt new land management practices that build future economic and environmental resilience, while retaining a focus on flood hazard management (24 July 2019).  More...

Sunshine Coast developer makes first move on new CBD
Construction has officially kicked off at the new Maroochydore City Centre site, with the start of its first commercial building, the $30 million Foundation Place by local developer Evans Long (24 July 2019).  More...

Government statement Infrastructure report highlights strong delivery of infrastructure and jobs
Minister for State Development, Manufacturing, Infrastructure and Planning, Cameron Dick said the annual SIP update outlines the jobs, projects and investment opportunities being delivered by the government. More than 160 infrastructure proposals are in the planning phase of the 2019 pipeline, including 67 new projects, and 40 proposals have moved from planning into delivery since 2018 (23 July 2019).  More...

Published – articles, papers, reports

Association of urban green space with mental health and general health among adults in Australia
Thomas Astell-Burt, Xiaoqi Feng; JAMA Network Open: 26 July 2019
This study suggests that urban greening strategies with a remit for supporting community mental health should prioritise the protection and restoration of urban tree canopy in cities of Australia.  More...

In practice and courts

Commonwealth

API: Valuation Protocol Inspection requirements when undertaking valuations of real property
This Valuation Protocol relates to inspection requirements for API Valuer Members (Valuer) when undertaking valuations of real property assets for mortgage and loan security purposes (31 July 2019).  More...

API: PropertyPRO 2020
The API has undertaken a full review of the API PropertyPRO Residential Valuation & Security Assessment Supporting Memorandum. This review has resulted in a ‘new’ PropertyPRO Supporting Memorandum, including a number of updates, changes and additions as well as eleven Valuation Reports for different residential property types and a Progress Inspection report (updated 31 July 2019).  More...

CER: Public consultation open for changes to solar postcode zones
The Clean Energy Regulator is proposing updates to postcode zones for small-scale technologies under the Small-scale Renewable Energy Scheme. The changes will affect the number of small-scale technology certificates for eligible systems in certain postcodes. If agreed, the changes will come into effect from 1 October 2019.  More... 

GBCA important deadlines - green star certification for your project
Many project teams have timelines set around major events. To support this, these guidelines below (based on typical time frames), which specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones in 2019. Deadlines are from 08 April – 04 November 2019.  More...

Victoria

Draft Marine and Coastal Policy - setting the framework for the future of coastal management in Victoria
DELWP has released a draft Marine and Coastal Policy, which is on public consultation. Once implemented, the Policy will play a central role in guiding decision-making in relation to the planning, management and sustainable use of Victoria’s coastal and marine environment. The panel session will be interactive, and questions from the audience will be encouraged (01 August 2019).  More... 

Update to a Practitioners Guide to Victoria’s Planning Schemes
A Practitioners Guide to Victorian Planning Schemes has been updated. The guide provides a ‘one-stop shop’ for planning practitioners to assist in the application and writing of planning scheme provisions. Updates have been made to chapters 6.3 and 6.4, sections 6.6.2 and 6.7.3, and appendix 1. These changes will further assist with the translation of planning schemes to the Planning Policy Framework. A more comprehensive review of the guide will be undertaken and released later this year (01 August 2019).

Announcements, Draft Policies and Plans released 2019

Queensland

State Infrastructure Plan 2019 update released
The Queensland Government has released the Part B 2019 update of the State Infrastructure Plan (SIP). As part of the release of the SIP update, the Minister also launched the Strategy for Social Infrastructure. The strategy provides a framework for the planning, design, location and use of the state’s social infrastructure (24 July 2019).  More...

eConveyancing — review of the Intergovernmental Agreement for an Electronic Conveyancing National Law
The Draft Final Report – IGA Review is now open for consultation. The Draft Final Report proposes recommendations and options for improvements in relation to a range of current issues, including the future of the regulatory framework, approval processes for operators, enforcement options and change control processes.

PCA: Queensland planning policy update
A number of local and state government related planning decisions impacting the property sector have been released.

New model code for neighbourhood design
Queensland Government has released a new model code for neighbourhood design, and is proposing to make parts of the code mandatory. The Queensland Government is seeking feedback on what parts of the code to make mandatory with consultation closing on 1 September 2019.  More...

Additional consultation for Moreton Bay Planning Scheme Amendment
Moreton Bay Regional Council has extended the consultation on their proposed planning scheme amendment. Consultation closes on 19 August 2019.  More...

Sunshine Coast incentives
Sunshine Coast Council has announced a three-year extension to its Infill Development Incentives Policy which offers incentives for infill development on the Sunshine Coast. All applications for an incentive must be submitted to Council between 1 July 2019 and 30 June 2022.  More...

Cases

Barport Pty Ltd v Baum [2019] VSCA 167
REAL PROPERTY – restrictive covenant – covenant stated that registered proprietor ‘shall not construct any building or hangar that is not in accordance to the height limitations as per Civil Aviation Safety Authority Manual of Standards Part 139’ – whether judge erred in defining term by dictionary definitions without regard to context – Whether applicant breached restrictive covenant – Civil Aviation Safety Authority Manual of Standards pt 139.
EQUITY – estoppel – whether respondents estopped from enforcing restrictive covenant – estoppel by silence – applicant assumed it could construct hangar with walls six metres tall without fear of adverse legal consequences – respondents did not induce assumption – respondents under no duty to correct assumption – Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 applied.
MISLEADING OR DECEPTIVE CONDUCT – applicant alleged misleading or deceptive representations by respondents – alleged representations not made out – no reasonable expectation of disclosure – Competition and Consumer Act 2010 (Cth) sch 2 ss 4, 18.
PRACTICE AND PROCEDURE – relief – whether order affected wrong part of hangar – whether order went too far to remedy breach of restrictive covenant – appeal allowed in part to amend order for purposes of clarity.

Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33
PLANNING AND ENVIRONMENT – APPEAL – where the respondent approved a subdivision intended to be developed by the co-respondent – where appellant has appealed against that decision – where the notice of appeal raised a number of issues – stormwater – bushfire hazard – traffic – conflict with the Planning Scheme – where central issue was whether proposed development provided sufficient connectivity and integration with surrounding land uses and infrastructure
Sustainable Planning Act 2009 Qld; Planning and Environment Court Act 2016 Qld; Planning Act 2016 Qld.

Health Ombudsman v Trotta [2019] QCAT 161
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – where the applicant instituted disciplinary proceedings against the practitioner in relation to criminal convictions – where the criminal convictions related to conduct including the covert recording of female patients attending the practitioner’s physiotherapy practice – where the practitioner accepts that the conduct amounts to professional misconduct – where the parties have reached a joint position as to sanction – whether the sanction proposed is appropriate
Health Ombudsman Act 2013 Qld s 103, s 104, s 107; Health Practitioner Regulation National Law 2009 Qld s5.

Hera Project Pty Ltd v Bisognin [2019] VSC 483
CONTEMPT OF COURT – failure to comply with court orders – continued non-compliance – defendants failed to attend trial – defendants self-represented – contempt proven – deferred determination of penalty – Supreme Court (General Civil Procedure) Rules 2015 rr 66.05, 66.10, 75.06 – Witham v Holloway (1995) 131 ALR 401; Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351; Legal Services Board v Forster (No 2) [2012] VSC 633; CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738. a contract for the sale of their land for $3.6 million (‘the 2012 contract’).

ISPT Pty Ltd v Valuer-General [2019] QLC 30
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – Land Court Rules 2000 – application to set aside subpoena.
EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – RELEVANCE – whether the evidence of a witness is relevant or admissible Land Court Rules 2000 Qld r 24J, r 24L.

ISPT Pty Ltd v Valuer-General (No 2) [2019] QLC 31
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – Land Court Rules 2000 – application to set aside subpoena.
EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – RELEVANCE – whether the evidence of a witness is relevant or admissible Land Court Rules 2000 Qld r 24J, r 24K, r 24L; Land Valuation Act 2010 Qld s 155.

Lu v Yu [2019] VSC 499
SUMMARY RECOVERY OF LAND – application under order 53 – plaintiff registered as proprietor of the land – defendant in possession claiming an equitable interest in the land pursuant to an alleged resulting or constructive trust – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583; Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 – plaintiff’s claim to possession proceeds on the assumption that the defendant may establish an equitable interest in the land and seeks to recover possession in order to exercise the plaintiff’s right to an indemnity out of the trust assets for her personal liabilities incurred as trustee of the trust – tight of indemnity is an interest in the trust assets and constitutes a first charge upon that property – plaintiff entitled to possession of the property in priority to the defendant – Jennings v Mather [1902] 1 KB 1; Savage v Union Bank of Australia [1906] HCA 37; (1906) 3 CLR 1170; Commissioner of Australian Federal Police v Cornwell (1990) 98 ALR 677; Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360; Hayman v Equity Trustees [2003] VSC 353; (2003) 8 VR 557, 566-8 – Order 53 Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241; Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 354; Tajon Pty Ltd v Arvanitis [2017] VSC 130, [27]-[34].

Madiklumi Pty Ltd v Environment Protection Authority [2019] VCAT 1092
Section 31A of the Environment Protection Act 1970 – Industrial Waste Management Policy (Protecting the Ozone Layer) –requirement to avoid or minimise emissions to the atmosphere of an ozone depleting substance – use of methyl bromide in fumigation of fresh produce at premises at the Melbourne Market, Epping – whether there is a practicable alternative – whether it is practicable to recover and either reuse, recycle or destroy methyl bromide.

Vallance v Body Corporate for Silver Birch CTS 19491 & Ors [2019] QCAT 196
REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – OTHER MATTERS – duties and responsibilities of the manager – duty to repair and maintain common property – removal of green waste – where management agreement imposes responsibility on manager for maintenance of the common property – where large complex with multiple body corporates – where extensive grounds with significant vegetation and gardens – where accumulation of large quantities of green waste – whether the Body Corporates responsibility for cost of removal of green waste – where other expenditure items in dispute – whether the manager is entitled to reimbursement for additional costs of maintenance.

Valuer-General v Eastcote Pty Ltd as Tte [2019] QLAC 3
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where the Valuer-General issued a maintenance valuation for the same period as the valuation which was the subject of the appeal in the Land Court – where the parties reached a commercial agreement that they would be bound by the outcome of the appeal to the Land Court despite the maintenance valuation – where the maintenance valuation did not change or nullify the annual valuation, but changed its operation and gave rise to additional objection and appeal rights – where the Valuer-General’s conduct in issuing the maintenance valuation was incongruent with the statutory framework for land valuations under the Land Valuation Act 2010 – where the parties’ agreement was vague and did not sit comfortably with the statutory framework for land valuations under the Land Valuation Act 2010.
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the Member at first instance warned the parties’ expert valuers repeatedly about their conduct in giving evidence – where the Member concluded that the appellant’s valuer was not impartial and rejected his evidence – whether the Member erred in failing to give the appellant notice of his Honour’s intention to reject its valuer’s evidence – where procedural fairness required the Member to give such notice
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the Member at first instance rejected the appellant’s expert valuer’s evidence as partisan – where the Member referenced four warnings his Honour gave the appellant’s valuer about his conduct in giving evidence as his Honour’s reasons for rejecting his evidence – whether the Member provided adequate reasons for rejecting the appellant’s valuer’s evidence – where, having regard to the nature of the appeal and the importance of valuation evidence, the Member did not provide adequate reasons for rejecting the evidence.
EVIDENCE – GENERAL PRINCIPLES – EVIDENCE LAW – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where the Member at first instance concluded that the appellant’s expert valuer was not an independent witness and rejected his evidence entirely – where the learned Member erred in failing to consider the valuer’s evidence, rather than considering any partisanship as affecting the weight to be given to his evidence
Land Valuation Act 2010 Qld s 75(3)(a), s 95(1).

Verraty Pty Ltd v Richmond Football Club Ltd (Building and Property) [2019] VCAT 1073
Retail Leases Act 2003 (Vic), whether a lease can cease to be a “retail premises lease” during the term of the lease by reason of occupancy costs exceeding $1,000,000.
The respondent must pay the applicant $122,034.45 as reimbursement of land tax paid by the applicant.

Legislation

Queensland

Subordinate legislation as made – 02 August 2019
No143 State Development and Public Works Organisation (State Development Areas) Regulation 2019
No 145 Professional Standards (Australian Property Institute Valuers Limited Scheme) Amendment Notice 2019

Subordinate legislation as made – 26 July 2019
No 142 State Buildings Protective Security Amendment Regulation 2019
Amends the State Buildings Protective Security Regulation 2008 (Qld) so that the Queensland Cultural Centre and the Legal Aid Queensland offices are declared to be state buildings until 31 August 2020. Protective Services security officers can continue to exercise certain powers so that the appropriate level of security may be provided for these areas.

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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