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Inside track: Planning, Environment & Sustainability

13 November 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Graeme Samuel to lead environment review
The Federal Government has commenced a once in a decade review of Australia’s environmental law to tackle green tape and deliver greater certainty to business groups, farmers and environmental organisations (29 October 2019).  More...

NSW

'Liveable and loveable': A new approach to planning for Sydney
It sounds wishy-washy, but the Loveable City concept is designed to encourage better urban planning (01 November 2019).  More...

Climate impacts from NSW mines - a local problem requiring a local solution
The NSW Planning Minister introduced a bill into Parliament that, if passed, will significantly limit the powers of planning approval bodies in NSW to address the climate change impacts of new coal mining projects (31 October 2019).  More...

47 experts urge NSW Government to defend NSW law and climate
47 scientists and experts have signed an open letter urging the NSW Government not to overrule NSW laws that require climate change impacts to be considered in the assessment of new coal mines (30 October 2019).  More...

The next Barangaroo': Dramatic makeover of Central to hide train lines
The redevelopment of land and "unfriendly railway tracks" around Central Station will be the state’s largest urban renewal project (27 October 2019).  More...

Emissions legislation ‘retrograde’ and ‘pure politics’
The New South Wales Government has introduced legislation to prevent the regulation of greenhouse gas emissions from Australian coal burned overseas. The move came just days after the Government launched a review of the Independent Planning Commission (25 October 2019).  More...

NSW building reforms 'step one of 100' to restore confidence in sector
The government's long-anticipated building industry reforms will provide "zero" help to owners of existing faulty buildings in NSW, lawyers say (24 October 2019).  More...

Barangaroo remediation
The EPA has surrendered the Environment Protection Licence held by Infrastructure NSW for the remediation work at Barangaroo which has been underway since 2010 (23 October 2019).  More...

In practice and courts

Independent review of the Harbour Trust
The Sydney Harbour Federation Trust (the Harbour Trust) was established in 2001. Its role is to rehabilitate prominent former Defence sites on Sydney Harbour and open them for public access as per the Sydney Harbour Federation Trust Act 2001 (30 October 2019).  More...

The second independent review of the EPBC Act commenced on 29 October 2019
The review will be led by Professor Graeme Samuel AC, supported by a panel of experts. A report will be presented to the Minister for the Environment within 12 months of commencement of the review (28 October 2019).  More...

NGER: Amendments to the National Greenhouse and Energy Reporting Regulations and Auditor Instrument
On 22 October 2019, amendments came into force under the National Greenhouse and Energy Regulations 2008 (the Regulations) and the National Greenhouse and Energy Reporting (Auditor Registration) Instrument 2019. Amendments to the Regulations will not impact NGER reports due on Thursday, 31 October 2019.
Visit the Audit Hub for more information on changes to the Audit Framework (24 October 2019).  More...

Announcements, Draft Policies and Plans released 2019

NSW

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018.  More...

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 deferred
The Low Rise Medium Density Housing Code has been amended to extend for a further short period, until 31 October 2019. For landowners, pending recommendations of the review, landowners in deferred council areas will not be able to use the Code to lodge a complying development application for dual occupancies, manor houses or terraces until 1 November 2019 (or 1 July 2020 in the City of Ryde).  More...

Queensland

Reef protection Bill passed by Parliament
The Environment Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019 was passed on 19 September 2019 with the new Reef protection regulations proposed to come into effect on 1 December 2019 and rolled out over the next three years. Learn more about the new Reef regulations including the draft standards for agriculture and what it means for new, expanded or intensified industrial activities with sediment or nutrient releases, and find out about the support and new funding available. 

Stage 2 changes
Stage 2 commences on 1 July 2019 and introduces the remaining waste-related ERAs.
The information sheet Fees for new waste environmentally relevant activities (ERAs) details the new fees that apply for waste-related ERAs from the first anniversary day after 15 November 2019 or the next anniversary day if the environmental authority is amended before 15 November 2019.

North Queensland Regional Plan
The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville. Consultation on the draft document closes on 22 November 2019.  More...

Prosecution Bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (October 2019).  More...

Cases

NSW

Agar Developers Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1505
DEVELOPMENT APPLICATION – residential apartment development – retention of mature trees – protection of trees – stormwater drainage – desired future character of Bellevue Hill North Precinct

Nielsen v Wingecarribee Shire Council [2019] NSWLEC 1529
COSTS – judicial review proceedings – principles governing exercise of discretion to order costs – costs order made 

Icon Construction Group Pty Ltd v Georges River Council [2019] NSWLEC 1517
MODIFICATION APPLICATION – remove one level of basement car parking and reduce the total number of off street car parking spaces from 70 to 56 – conciliation conference – agreement between the parties

Boyce v Inner West Council [2019] NSWLEC 1521
DEVELOPMENT APPLICATION – boarding house – breach of LEP height and FSR standards – whether cl 4.6 written request required in light of cl 29(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 – desired character – height transition to adjacent development

Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155
CRIMINAL OFFENCES – whether commencement of criminal proceedings time barred – onus of proof – construction of statutory time – whether prosecutor had to elect which time period applied to commencement of proceedings – meaning of “any act or omission constituting the offence” – proceedings commenced within time

Application by the Owners – Strata Plan No 61299 (No 2) [2019] NSWLEC 154
JUDGMENTS AND ORDERS – exercise of liberty to apply to enforce earlier orders made giving effect to strata renewal plan – appointment of trustee to one lot where non-compliance by owner with requirement to execute contract of sale of lot – costs considered

Zhiva Living Dural Pty Limited v Hornsby Shire Council (No 3) [2019] NSWLEC 152
APPEAL – appeal against Commissioner's refusal of development application for seniors living project – appeal confined to question of law – Commissioner dismissed the development appeal on the basis of failure to satisfy a precondition set by State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (the SEPP) – matter not raised in the Council’s contentions – Applicant proposed a condition of consent to satisfy requirement – Commissioner's request for further submissions did not request submissions as to whether a condition could satisfy the requirements of the SEPP – Commissioner dismissed the appeal without providing the parties with an opportunity to make submissions as to why a condition could provide a proper basis to satisfy the provision – applicant complains of denial of procedural fairness in circumstances where, in earlier unrelated proceedings, the same Commissioner had accepted a condition of consent in near identical wording to the proposed condition to satisfy the same provision in the SEPP – procedural fairness denied to the Applicant - appeal upheld DEVELOPMENT APPLICATION – approval of the proposed development required a site compatibility certificate – without a current site compatibility certificate, the proposed development was prohibited – the proposed development had been given a site compatibility certificate but it had expired as at the date of this appeal against the Commissioner's decision – no basis upon which the Court would have power utilising s 39(2) of the Land and Environment Court Act 1979 (the Court Act) to consider whether to issue a fresh site compatibility certificate – in the absence of a current site compatibility certificate, there is no development application capable of approval – remitter to Commissioner futile – appropriate course to exercise power pursuant to s 56A(2)(b) of the Court Act to determine the proceedings by refusal of development consent – Class 1 appeal dismissed and proposed development refused development consent

Byron Shire Council v Ardill Payne & Partners [2019] NSWLEC 153
ENVIRONMENT AND PLANNING - Land and Environment Court – practice and procedure – extension of time for appeal – UCPR 50.3 - exercise of discretion – leave granted

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O’Haire [2019] NSWLEC 158
CRIMINAL OFFENCES – whether entry of guilty pleas amenable to correction under slip rule – application of slip rule to criminal proceedings in Class 5 of the Court’s jurisdiction – scope of slip rule – entry of plea of guilty not amenable to correction under slip rule because it is not a judgment or order of the Court – BIAS: whether the judge hearing the notice of motion ought recuse herself on the grounds of apprehended bias by reason of prejudgement – test for apprehended bias – whether application for recusal should be adjourned to allow the party making the application the opportunity to obtain the transcript – application for adjournment refused – application for recusal dismissed

Thomas v Randwick City Council (No 3) [2019] NSWLEC 161
JOINDER – notice of Motion seeking setting aside of costs order made concerning costs thrown away as a result of ex parte application requiring vacation of conciliation conference process – no basis to disturb costs order for costs thrown away made against moving party seeking joinder – application for joinder successful – applicant for joinder seeks costs of hearing at which joinder was granted – basis for consideration of costs application – application for costs to be determined on the basis of application of Land and Environment Court Rules 2007 requiring that it be “fair and reasonable” to make costs order in favour of successful party – not fair and reasonable to make costs order in favour of successful applicant for joinder – costs application dismissed – COSTS – costs of Notice of Motion seeking costs orders – costs’ proceedings not subject to “fair and reasonable” test in Land and Environment Court Rules 2007 – costs of costs applications usually dealt with on the basis that costs follow the event – no basis to depart from that position in these proceedings – applicant for joinder ordered to pay costs as agreed or assessed of the Applicant and of the First Respondent of the costs Notice of Motion

S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North (ABN 56 291 496 553) v Northern Regional Planning Panel [2019] NSWLEC 156
PROCEDURE – leave to re-open case when judgment reserved and rely on amended summons refused

Poletto v Mosman Council [2019] NSWLEC 1513
DEVELOPMENT APPLICATION – dwelling alterations and additions including additional storey – whether compliant with LEP development standards of wall height and FSR – whether clause 4.6 written requests required – side setback non-compliances – bulk and scale – view impacts – privacy impacts – streetscape impacts – whether adjournment should be allowed for clause 4.6 request – request for ‘amber light’ consideration

Fuller v Inner West Council [2019] NSWLEC 1506
DEVELOPMENT APPLICATION – subdivision of one lot into two – whether subdivision is consistent with existing subdivision pattern

Saha Builders Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1497
DEVELOPMENT APPLICATION – seniors housing development – calculation of the rear 25 per cent setback on an irregularly shaped parcel of land – whether the built form of the proposal maintains reasonable neighbourhood amenity and appropriate residential character

Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151
ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – time for 56A appeal – extension of time – exercise of discretion – leave granted

Queensland

Cadmium Holding FW Pty Ltd v Gold Coast City Council [2019] QPEC 51
PLANNING AND ENVIRONMENT – APPEAL – where appeal against refusal of a development application seeking approval for 111 townhouses – whether proposed development is consistent with the preferred and intended settlement pattern – whether proposed development is an appropriate land use – whether the proposed development is an appropriate density – whether the development application should be approved in the exercise of the planning discretion. Planning Act 2016 Qld ss45 and 60; Planning and Environment Court Act 2016 Qld ss43 and 45

Irvine v Brisbane City Council [2019] QPEC 50
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for demolition of a dwelling house constructed in 1946 or earlier ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – exercise of discretion pursuant to s 60(2) of the Planning Act 2016 (Qld); Legislation cited; Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld 

Annandale v Cairns Regional Council [2019] QPEC 49
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – DECLARATORY PROCEEDING – where the applicant’s material change of use approval had lapsed – where the period of approval was extended on two earlier occasions – where the applicant failed to make an application to extend the currency period of the approval before the lapse – where the planning scheme’s treatment of the bushfire risk assessment of the land had changed since the approval was given – whether the Court should excuse the failure to make an extension application – whether the material change of use approval should be revived and extended – where the respondent does not oppose the application. Planning Act 2016 Qld s86; Planning and Environment Court Act 2016 Qld ss11, 37, 76, 81; Sustainable Planning Act 2009 Qld 

Legislation

Commonwealth

Environment Protection and Biodiversity Conservation (Jabiru Town Plan) Approval 2019
30/10/2019 - This approval is a town planning scheme for the town of Jabiru in Kakadu National Park. This instrument was made under subregulation 11.10(2) of the Environment Protection and Biodiversity Regulations 2000 for the purposes of sections 388 and 389 of the Environment Protection and Biodiversity Conservation Act 1999 and subsection 8.2.7 of the Kakadu National Park Management Plan 2016-2026.

National Greenhouse and Energy Reporting (Auditor Registration) Instrument 2019
23/10/2019 - This instrument revokes the National Greenhouse and Energy Reporting (Auditor Registration) Instrument 2018 and sets out the knowledge, qualifications and experience requirements to be met by applicants for registration as greenhouse and energy auditors.

NSW

Bills introduced Government – 25 October 2019
Better Regulation Legislation Amendment Bill 2019
Design and Building Practitioners Bill 2019
Environmental Planning and Assessment Amendment (Territorial Limits) Bill 2019

Non-Government – 25 October 2019
Central Coast Drinking Water Catchments Protection Bill 2019

Bills revised following amendment in Committee – 25 October 2019
Water Supply (Critical Needs) Bill 2019

Bills revised following amendment in Committee – 25 October 2019
Right to Farm Bill 2019

Environmental Planning Instruments
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Low Rise Medium Density Housing Code) (No 2) 2019 (2019-519) – published LW 25 October 2019

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

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Brisbane

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