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Inside track: Planning, Environment & Sustainability

14 September 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

New data reveals impact of COVID-19 on emissions
The Morrison Government has released the March 2020 Quarterly Update of Australia’s National Greenhouse Gas Inventory (31 August 2020).  More...

EPBC refusal protects migratory birds
The Hon Sussan Ley MP (Minister for the Environment) has moved to protect one of Australia’s critically endangered migratory birds, the Eastern Curlew, by refusing a development proposal under the Environment Protection and Biodiversity Conservation Act (28 August 2020).  More...

Recycling and Waste Reduction Bill 2020
The Australian Government has introduced landmark legislation into Parliament to ensure Australia takes responsibility for its waste (27 August 2020).  More...

Top developer calls for post-COVID building code for wellness
One of Australia’s top developers is calling on the residential development industry and government to rethink building design standards so that they better foster physical and mental well-being in the post-COVID-19 world (02 September 2020).  More...


Suleman Secures Funding for Build-to-Rent Project
Private investor and fresh flower mogul Sam Suleman is forging ahead with a $275 million build-to-rent project at a two-hectare landholding in Spotswood in Melbourne’s inner west (04 September 2020).  More...

Victoria extends cladding cost claims
The Victorian government will extended the time owners have to launch claims against builders that installed combustible cladding on their buildings (03 September 2020).  More...

$2B urban renewal project ‘New Epping’ moves a step closer
The rehabilitation and future development of the former Epping Quarry into a $2 billion mixed-use development - known as ​New Epping -​ is a step closer following the State Government’s green light to rezone the land (01 September 2020).  More...

Bairnsdale scrap metal dealer fined
A Bairnsdale scrap metal yard that failed to take Environment Protection Authority Victoria’s (EPA) advice about waste oil storage has been fined (02 September 2020).  More...

EPA lays charges for burning industrial waste
Environment Protection Authority Victoria (EPA) has laid one charge each against a company and an individual under the Environment Protection Act 1970 following a comprehensive investigation (01 September 2020).  More...

Chunxing ULAB works approval granted
Following 10 months of public consultation, referral to other agencies, technical assessment of the application and research, Environment Protection Authority Victoria (EPA) has granted a Works (31 August 2020).  More...

Campbellfield auto wreckers fined
A pile of waste six metres high in a Campbellfield motor wrecker’s yard has attracted an $8,261 fine from Environment Protection Authority Victoria (EPA), and a legally enforceable order (31 August 2020).  More...

Riverlee Secures rezoning approval for $2bn masterplan
Developer Riverlee Group has secured rezoning approval for a $2 billion mixed-use development it plans for a 51-hectare site on Melbourne’s fast-growing northern edge (27 August 2020).  More...

Pandemic prompts wild swings in land sales
Wild swings in land sales in Melbourne’s new housing estates are tracking the path of the pandemic and the $25,000 HomeBuilder boost designed to counter it (25 August 2020).  More...

Demolition company fined for illegal dumping
An Altona North demolition and excavation company has received multiple fines for illegally dumping industrial building waste (25 August 2020).  More...

New era dawns at Federation Square – our meeting place
The Victorian Government has unveiled the biggest upgrade in Federation Square’s history and a new vision for the iconic site as a civic and cultural hub that embraces the Yarra and showcases the best of Victoria to locals and visitors (22 August 2020).  More...


'Like the Opera House': Calls for public design competition for Circular Quay
Critics say the redevelopment process was "eerily reminiscent" of that for the Bennelong Apartments, the building commonly referred to as "The Toaster" which was constructed on the eastern side of Circular Quay in the 1990s (02 August 2020).  More...

The NSW bushfire inquiry found property loss is ‘inevitable’
The New South Wales government accepted all 76 recommendations from an independent inquiry into last summer’s devastating bushfire season. Several recommendations called for increased hazard reduction, such as through controlled burning and land clearing (27 August 2020).  More...

'Signatures for sale' days are over, warns Sydney's new building commissioner
The building commissioner estimates up to 20 industry players are responsible for the majority of buildings in Sydney, Newcastle and Wollongong with serious defects (26 August 2020).  More...


Developers who build green will get green back from Brisbane council
Brisbane City Council will allow developers to apply for 50 per cent rebates on infrastructure charges if they meet a host of requirements (02 September 2020).  More...

Building resilient, healthy and active communities post COVID-19
Queenslanders can look forward to living in more walkable neighbourhoods, thanks to new mandatory provisions for the design of residential neighbourhoods. Mr Dick welcomed the release of the Street Design Manual for Walkable Neighbourhoods by the Institute of Public Works Engineering Australasia Queensland (IPWEAQ) and said complementary industry-led guidance materials will also support implementation of the mandatory provisions (02 September 2020).  More...

'Units' pop up in Brisbane through planning loophole
Nicole Johnston moved a motion in council to ban rooming accommodation developments in low-density and character residential suburbs (28 August 2020).   More...

In Practice and Courts

Australian Bushfires disaster emergency declaration — Understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020.The emergency declaration expires on 20 January 2021.

EPBC Act major projects
The Australian Government is working with the states and territories to fast-track approval of 15 major projects.  More...

Industry update on export ban of waste glass
The export ban on waste glass will now commence on 1 January 2021.  More...


Drft Yarra River – Bulleen precinct land use framework plan
The Department of Environment, Land, Water and Planning is seeking feedback on the draft Yarra River - Bulleen Precinct Land Use Framework Plan. The draft plan sets a vision and planning objectives to guide future land use and connections in this important cultural precinct. An advisory committee has been appointed to provide strategic and statutory planning advice on the draft plan and a private development proposal in the precinct. The advisory committee is inviting submissions until 25 September (03 September 2020).  More... 

Amendment VC186
Changes to the Victorian Planning Provisions and to Greater Bendigo, Kingston, Moreland and Murrindindi’s planning schemes by inserting a particular provision at Clause 51.06. The introduction of a code for Secondary Dwellings will facilitate small scale residential accommodation on the same lot as an existing or ‘principal’ dwelling in the Residential Growth Zone, General Residential Zone, Neighbourhood Residential Zone, Township Zone and Mixed Use Zone in the four municipalities. Applications that meet all the code requirements can be considered through the VicSmart pathway. The pilot will run for 7 months. At the conclusion of the pilot program, a further VC amendment may be prepared to introduce the code for Secondary Dwellings into all Victorian planning schemes (27 August 2020).  More...

Melbourne Airport Environs Safeguarding Standing Advisory Committee
The Melbourne Airport Environs Safeguarding Standing Advisory Committee is currently seeking submissions to advise the Minister for Planning on improvements to the planning provisions safeguarding Melbourne Airport and its environs. Submissions are also welcome on improvements to planning provisions that may help safeguard other airport environs in Victoria. To make a submission, visit Engage Victoria. Submissions close 18 September 2020 (27 August 2020).

Golf Course Redevelopment Standing Advisory Committee – Part 1 report and finalised Planning Guidelines for the conversion of Golf Course Land to other purposes
The Part 1 Report is now available. Following consideration of the Golf Course Redevelopment Standing Advisory Committee’s Part 1 Report, the Minister for Planning has released the Planning Guidelines for the Conversion of Golf Course Land to Other Purposes.They set clear expectations for all stakeholders, including the community, about how golf course land should be redeveloped. Stage 2 Workshops now October 2020. The new Ministerial Direction 21 Golf Course Redevelopment directs planning authorities preparing an amendment to a planning scheme to enable the redevelopment of a golf course to have regard to the guidelines and include in the explanatory report for the amendment an explanation of how the amendment addresses the guidelines.

Ballarat C211ball
Applies an interim Heritage Overlay (HO224) to land at part 113 Lofven Street and part Crown Allotment 22C Section AA, Nerrina. The control will expire on 31 March 2021.  More... 

Campaspe C111camp 
Section 96A combined amendment and planning application rezones land at 35-41 Murray Valley Highway, Echuca from C2Z to C1Z, inserts a maximum leasable floor area for Shop and allows for the development of a neighbourhood retail centre.  More... 

Greater Geelong C394ggee
Implements the Bellarine Peninsula - Corio Bay Local Coastal Hazard Assessment (December 2015). It includes policy changes to the Municipal Strategic Statement, introduces a new Land Subject to Inundation Overlay Schedule 2 (LSIO2) and applies the LSIO2 to properties identified as being subject to coastal inundation as a result of the combined effects of storm surge and 0.8 metre sea level rise by 2100.  More...

Greater Shepparton C221gshe 
Corrects inaccurate mapping of the Urban Floodway Zone and the Land Subject to Inundation Overlay at Tatura introduced by Amendment C183gshe.  More... 

Maroondah C138maro
Corrects an error and anomaly in the Maroondah Planning Scheme by amending the Schedule to Clause 43.01 (Heritage Overlay). A Heritage Overlay applies to a portion of the land to protect a tree that no longer exists (has not existed for at least 10 years).  More...

Melbourne C372melb 
Replaces the Incorporated Document titled 'North Melbourne Recreation Reserve Signage, 2012' with an updated version titled 'North Melbourne Recreation Reserve Signage. 2020', introduces a new Schedule to Clause 45.12 (Specific Controls Overlay) and amends the Schedules to Clause 51.01 (Specific Sites and Exclusions), 72.03 (What does this Planning Scheme consist of?) Clause 72.04 (Documents Incorporated in this planning scheme) and changes formatting of the Schedule to 72.01.  More... 

Moonee Valley C210moon
Applies the Heritage Overlay to 81 Charles Street, Ascot Vale on an interim basis until 30 July 2021.  More...

Port Phillip C176port 
Applies the Specific Controls Overlay and introduces an Incorporated Document titled ‘2-28 Montague Street and 80 Munro Street, South Melbourne, August 2020’, to facilitate the demolition of existing buildings and a staged use and development of three multi-storey buildings comprising dwellings, residential hotel (including serviced apartments), hotel, motor vehicle sales, food and drink premises, childcare centre, office, retail premises and create or alter access to a road in a Road Zone Category 1.  More...

Wyndham C219wynd 
Gives effect to the Quandong Precinct Structure Plan, December 2017 by incorporating the document into the Wyndham Planning Scheme, applying zones and overlays to the land and making several associated changes to other schedules and overlays.  More...

Updates the mapping for the Bushfire Management Overlay (BMO) by deleting the BMO from three sites across the Mitchell, Pyrenees and Yarra Ranges Shires and applying the BMO to two sites in Moyne Shire to reflect the criteria as set out in Planning Advisory Note 46 - Bushfire Management Overlay Mapping Methodology and Criteria.  More... 

Introduces a new particular provision at Clause 51.06 (Secondary Dwelling) to facilitate the development of a secondary dwelling in the Victoria Planning Provisions and the Greater Bendigo, Kingston, Moreland and Murrindindi Planning Schemes.  More... 

Whittlesea C213wsea Pt1 
Facilitates the rehabilitation and future redevelopment of the former Epping quarry and landfill site for mixed use purposes by rezoning the land to allow for commercial, retail and housing development and other consequential changes.  More... 

Port Phillip C172port 
Applies the Specific Controls Overlay and introduces an Incorporated Document titled ‘118 Bertie Street, Port Melbourne, July 2020’, to facilitate the demolition, use and development of the land for a mixed-use development comprising dwellings, offices and retail premises.  More... 


Glenelg C104gelg 
Proposes to apply the Specific Controls Overlay (SCO1) to land at 3013 Henty Highway, Heywood and insert a new Incorporated Document titled ‘3013 Henty Highway, Heywood, Service Station Signage, August 2020'.  More... 

Moonee Valley C209moon 
Proposes to remove the Incorporated Plan Overlay, Schedule 6 (IPO6) from the Lowther Hall Anglican Grammar School site and apply the Development Plan Overlay, Schedule 9 (DPO9) to facilitate the new Lowther Hall Master Plan 2017-2027.  More... 

Wodonga C131wdon
Proposes to apply an Environmental Significance Overlay Schedule 7 (Wodonga Water Treatment Plant Buffer Area) to the site and adjoining land.  More... 

Panel Reports

Kingston C180 and Permit Application KP-2019-359 
Apply the Specific Controls overlay to allow for the development of the Hawthorn Football Club Training and Administrative Facility at 94 Tootal Road, Dingley Village.  More... 

South Gippsland Appeal (P427/2020) Call-in Advisory Committee 
Extension of the Nyora Sand Quarry at 80-120 Hookers Road, Nyora.  More... 

Yarra Ranges C177yran 
Amend the Restructure Overlay for all land in the Shire.  More... 

Fishermans Bend Standing Advisory Committee – Tranche 2
Development of 118 Bertie Street, Port Melbourne.  More...

Casey C258case
Implementation of the City of Casey Activity Centre Strategy 2019.  More... 


Developers to lodge strata bonds through NSW Planning Portal
Starting 1 September is the requirement for developers to lodge the 2% strata bond and associated documents via the NSW Planning Portal. This replaces the Strata building bond and inspections scheme (SBBIS) e-Portal, which will remain available for existing projects. The bond provides a fund for the owners corporation for post-construction repairs. Compliance checks will ensure the correct bond is lodged.

NSW Revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. Construction must commence within three months of the contract date.  More...

NSW Revenue Reminder: COVID-19 (coronavirus) and parking space levy
As part of the NSW COVID-19 stage two economic package, the NSW Government has deferred parking space levy (PSL) payments from the end of March for six months until 30 September 2020, to provide cash flow relief to businesses.  More...

Consultation: 50-year vision for Sydney's open space and parklands
A draft vision has been created to be shared and tested with people who care about Sydney’s parks and open spaces. The draft 50-Year Vision for Greater Sydney’s Open Space and Parklands will be open for consultation until 11 September 2020. More...

Consultation: Draft state Strategic Plan for Crown land
Crown land assets now and into the future, with the draft State Strategic Plan released for public feedback. The community will have the opportunity to provide feedback and participate in consultation activities close on 20 August 2020.  More...

NSW Planning Department: Have your say - Draft plans and policies

Proposed new Housing Diversity SEPP Explanation of Intended Effect
Notification start-end date 29/07/2020 - 09/09/2020
Have your say on a proposed new policy that aims to facilitate the delivery of diverse and affordable housing to meet the needs of the State’s growing population and support the development of a build-to-rent sector.  More...


PCA Submission Update: Land Tax Relief, Planning Regulation, and NDIS
The Property Council has provided the following correspondences to government, including a joint industry letter asking for Queensland’s land tax relief to be extended, a submission on proposed changes to Queensland’s Planning Regulation, and a submission on QPC’s inquiry into Queensland’s implementation of NDIS (21 August 2020).  More...

BCC: Waterfront master plan
Brisbane City Council has finalised the City Reach Waterfront Master Plan which establishes a vision to guide future development along a 1.2 kilometre stretch of river frontage extending from the Botanic Gardens to Howard Smith Wharves. To view the Brisbane City Council’s final City Reach Waterfront Master Plan, please click here. (21 August 2020).  More...

Reminder: Planning legislation amendment
The additional time provided through the extension notice applies to development approvals in effect on 8 July 2020 or which come into effect between 8 July 2020 and 31 October 2020. For example, a development approval that would have ordinarily lapsed on 1 August 2020 now won’t lapse until 1 February 2021. To find out more, please click here.  More...



EPA & Anor v Australian Sawmilling Company Pty Ltd (in liq) & Ors [2020] VSC 550
CORPORATIONS – External administration – Duties and powers of liquidators – Disclaimer of land by liquidators – Control of the property of a company in liquidation – Liability of liquidator to incur expenses – Meaning of ‘incur any expense’ – Whether there is ‘sufficient available property’ – Whether standing to apply to set aside a disclaimer – Whether interest in land, or claim to have an interest in land – Whether setting aside disclaimer would cause prejudice grossly out of proportion to the prejudice to creditors – Undertaking as to recourse to assets if disclaimer set aside – Whether direct inconsistency between s 62(2) of the Environment Protection Act 1970 (Vic) and s 545(1) of the Corporations Act 2001 (Cth) – Meaning of direct inconsistency – No direct inconsistency – Concurrent operation of Federal and State provisions – Corporations Act 2001 (Cth) ss 5E(1)–(4), 5G(1)–(3), 5G(11), 474(1)–(2), 545, 568(1), 568B, 568C(1)–(2), 568D; Corporations (Ancillary Provisions) Act 2001 (Vic) ss 8(1), 8(4), 8(6); Companies Act 1961 (Vic) s 287.
ENVIRONMENT PROTECTION – Principles of environment protection – Whether liquidators are occupiers of contaminated land – Dumping and abandonment of waste – Clean up – Whether liquidators cease to be occupiers of land on clean up by the Environment Protection Authority – Recovery of clean up costs – Statutory debt – Charge on land – Environment Protection Act 1970 (Vic) ss 1A, 1D, 1F(2), 1G(1), 1K, 4(1) definitions of ‘occupier’ and ‘premises’, 4(3), 4(3A), 4(4), 62(1)–(3), 66B(1).

Anderson v Stonnington CC [2020] VCAT 956
Stonnington Planning Scheme; medium density development in an incremental change area; assessment of medium density housing adjacent to a heritage place; visual bulk impacts of two storey medium density housing; landscaping outcomes as part of a medium density housing development.

McCartin v South Gippsland SC [2020] VCAT 949
Extension to dwelling; Relevant planning permissions; Adequacy of documentation; Relevance of bed and breakfast as of right use. No permit 

Nelson Street Pty Ltd v Mornington Peninsula SC [2020] VCAT 945
To construct three dwellings and subdivision into three lots. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

McKenzie v Campaspe SC [2020] VCAT 943
Section 75 and 109 of the Planning and Environment Act 1987 (Vic); Costs application
Pursuant to section 75(2) of the Victorian Civil and Administrative Tribunal Act 1998, the applicants are ordered to pay costs fixed in the sum of $9,450.00 to Jenmar Drive Owners Corporation

Freeman v Boroondara CC [2020] VCAT 912
Boroondara Planning Scheme; Neighbourhood Residential Zone, Schedule 3; Tree retention; Overshadowing; Visual Bulk. 

Flack v East Gippsland SC [2020] VCAT 939
Section 82 of the Planning and Environment Act 1987 (Vic); East Gippsland Planning Scheme; Low Density Residential Zone; Erosion Management Overlay; Low density 213 lot subdivision; Stormwater; Response to slope of the site and erosion risks; Landscaping and waterway management. No permit

Mitchell v Banyule CC [2020] VCAT 935
Two side-by-side dwellings. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 

Modus CD Pty Ltd v Frankston CC [2020] VCAT 934
Sections 79 and 149 of the Planning and Environment Act 1987. Frankston Planning Scheme. General Residential Zone. 162 dwellings. Subdivision. Native vegetation removal. Amendment of Outline Development Plan.

Campbell v Nillumbik SC [2020] VCAT 933
Two lot subdivision, vegetation removal, creation of an easement, earthworks and associated works such as driveway construction. Section 77 of the Planning and Environment Act 1987 - to refuse to grant a permit. No permit 

South Gippsland Region Water Corporation v Environment Protection Authority [2020] VCAT 931
(a) Pollution Abatement Notices 90010986 (issued on 23 March 2020) and 90010988 (issued on 3 April 2020) have been validly issued.
(b) The two Pollution Abatement Notices nonetheless contain some errors and inconsistencies that should be clarified and/or resolved prior to any compulsory conference or final hearing.

L & D Property Enterprises Pty Ltd v Greater Geelong CC [2020] VCAT 927
Buildings and works to create a second dwelling. Section 77 of the Planning and Environment Act 1987 - to refuse to grant a permit. 

Cruz v Glen Eira [2020] VCAT 894
Section 82 of the Planning & Environment Act 1987; Glen Eira Planning Scheme; General Residential Zone Schedule 1; Construction of one double storey dwelling; Overshadowing; Daylight to Windows; Daylight to Open Space; Bulk; Side and Rear Setbacks; Development Opportunities.

Holner Pty Ltd v Baw Baw SC (Corrected) [2020] VCAT 890
Section 79 Planning and Environment Act 1987; Baw Baw Planning Scheme; Urban Growth Zone; Drouin Precinct Structure Plan; Drouin Development Contributions Plan; Subdivision; Native Vegetation Removal; Standard of Road Construction; Public Open Space Interface; Interface with Low Density Residential Zone; Provision of Cycle Path and Footpaths

Cumming v Minister for Planning [2020] VSCA 208
PLANNING AND ENVIRONMENT – Appeal – Judicial review – Wind farm –Environmental effects assessment – Ministerial call in of permit application – Panel report – Brolga habitat protection buffers – Wind turbines – Decision to grant permit on conditions – Whether Minister denied applicants procedural fairness by not disclosing letter received from respondent after panel hearing – Whether Minister failed to consider amended planning scheme – Whether permit missing mandatory conditions invalid – Whether slip rule could be used to correct permit to impose missing mandatory conditions – Whether Minister’s assessment under Environment Effects Act 1978 unreasonable, irrational or illogical having regard to Brolga habitat model – No denial of procedural fairness in granting permit after receipt of letter without giving objectors further opportunity to be heard – No failure to consider amended planning scheme provisions – Failure to include mandatory noise monitoring conditions did not render permit wholly invalid – Open to correct permit by substituting mandatory conditions pursuant to s 71 of the Planning and Environment Act 1987 – Minister’s assessment of EES open and not shown to be unreasonable – Planning and Environment Act 1987 ss 71, 72, 87, 97B, 97E, 97F, 97I, 97J; Environment Effects Act 1978 ss 8, 9 – Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; South Australia v O’Shea (1987) 163 CLR 378 – Leave granted – Appeal dismissed.

Skabal Pty Ltd v Boroondara City Council [2020] VSC 532
LOCAL GOVERNMENT – Council granted permit to vary easement – Plan of variation of easement registered on title – Application for leave to appeal from Victorian Civil and Administrative Tribunal’s refusal of request to cancel permit, under s 87 Planning and Environment Act 1987 (Vic) – Whether Tribunal had power to cancel permit under s 88 Planning and Environment Act 1987 (Vic) – Permit related to ‘any other development of land’, within s 88(b) – Permit did not relate to the use of land, within s 88(c) – Whether permit spent – Development ‘substantially completed’ on registration of plan of variation of easement – Tribunal had no power to cancel permit – Planning and Environment Act 1987 (Vic), ss 6A(2), 47(1), 87, 88; Subdivision Act 1988 (Vic), s 23.

WOTCH Inc v VicForests (No 5) [2020] VSC 528
PRACTICE AND PROCEDURE — Interlocutory injunction — Whether serious question to be tried — Whether balance of convenience favours granting injunction — Timber harvesting of State forests — Application of the precautionary principle — Protection of threatened species following 2019/20 Victorian bushfires — Flora and Fauna Guarantee Act 1988 (Vic) — Code of Practice for Timber Production 2014.

JDJ Capital Pty Ltd v Greater Geelong CC [2020] VCAT 920
Planning permit PP-407-2019 was issued by Greater Geelong City Council on 20 December 2019, for the construction of six stores and one warehouse, and a seven lot subdivision of land
Application under section 80 of the Planning and Environment Act 1987 – to review conditions 4(a), 4(c), 9, 18(a) and 18(c) contained in the permit. 

Citizen Outdoor Pty Ltd v Wangaratta RCC [2020] VCAT 925
Section 79 of the Planning and Environment Act 1987; single-sided electronic promotion sign; Industrial 1 Zone; character; amenity; Amendment C79.

Pace Development Co 10 Pty Ltd v Moreland CC [2020] VCAT 905
Moreland Planning Scheme; Section 79 the Planning and Environment Act 1987; former Pentridge Prison site; Expired permit for 7-8 storey building; Development of two 16 storey towers containing apartments, supermarket and retail premises, Pentridge Village Design Guidelines and Master Plan 2019; Pentridge Design Guidelines and Masterplan 2014. 

JDJ Capital Pty Ltd v Greater Geelong CC [2020] VCAT 920
Planning permit PP-407-2019 was issued by Greater Geelong City Council on 20 December 2019, for the construction of six stores and one warehouse, and a seven lot subdivision of land. Application under section 80 of the Planning and Environment Act 1987 – to review conditions 4(a), 4(c), 9, 18(a) and 18(c) contained in the permit. 

Ho v Brimbank CC [2020] VCAT 917
Section 77 of the Planning & Environment Act 1987; Brimbank Planning Scheme; Five dwellings – Neighbourhood character & carparking (GRZ1; Clauses 21.07, 52.06 & 55)

Holahan v Melton CC [2020] VCAT 896
Section 82 Planning and Environment Act 1987; Melton Planning Scheme; Neighbourhood Residential Zone; Childcare centre; Need; Amenity; Traffic and car parking 

Sandhu v Maroondah CC [2020] VCAT 895
Section 77 Planning and Environment Act 1987, Maroondah Planning Scheme, Neighbourhood Residential Zone – Schedule 3, Significant Landscape Overlay – Schedule 3, neighbourhood character, landscape character, three dwellings, paving in front of dwellings.

Sivasubramaniam v Monash CC [2020] VCAT 885
Retrospective application to amend the endorsed plans for Permit TPA/43950 to alter the roof form and façade of Dwelling 2.  Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant an amended permit. 

Walter v Whitehorse CC [2020] VCAT 884
Removal of one tree under the Significant Landscape Overlay Schedule 9 Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Moniton Pty Ltd v Monash CC [2020] VCAT 864
Section 77 Planning and Environment Act 1987; Monash Planning Scheme; Industrial 1 Zone; Amendment to permit; Warehouse; showroom; office uses; Car parking reduction; Access to a road in a Road Zone Category 1.

Stojanovski v Greater Geelong CC [2020] VCAT 897
Section 82 Planning and Environment Act 1987; Section 51(5) Victorian Civil and Administrative Tribunal Act 1998; No appearance by applicant for review; Confirm decision of the Council.

Grodski v Stonnington CC [2020] VCAT 878
Section 77 of the Planning and Environment Act 1987; Stonnington Planning Scheme; General Residential Zone; Heritage Overlay HO374; Medical Centre; Three Practitioners; Appropriateness of Location; Response to Heritage Policy; Built Form; Amenity Impacts; Car Stackers. No permit

Brown v Whitehorse CC [2020] VCAT 891
Section 82 and 80 of the Planning and Environment Act 1987, Whitehorse Planning Scheme, NRZ3, SLO9, Repeat Appeal, Landscape Character, Neighbourhood Character 

Sim v Knox CC [2020] VCAT 900
Section 77 of the Planning & Environment Act 1987; Knox Planning Scheme; General Residential Zone Schedule 2; Construction of three dwellings; policy; neighbourhood character; landscape character

Kimberley Gardens Serviced Apartments PL v Glen Eira CC [2020] VCAT 883
Amendments to planning permit GE/PP-29111/2016, which allows the use and development of the subject land, and associated works, for a three storey retirement village and basement parking. Application under section 87A of the Planning and Environment Act 1987 to amend a permit issued at the direction of the Tribunal.

O'Reilly v Mornington Peninsula SC [2020] VCAT 866
Construction of a hay shed; Loss of neighbour’s view; Section 173 agreement controlling vegetation planting and maintenance; Whether piecemeal application; Whether varying consent position acceptable; Planning merits of hay shed. 

Centraland Project Management No 1 Pty Ltd & Luxe Advisory Pty Ltd v Bayside CC [2020] VCAT 874
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. Decision made on the papers. Construction of a three storey, 4 level building comprising basement car parking and seven apartments 

Hui v Darebin CC [2020] VCAT 887
Section 77 of the Planning and Environment Act 1987; Darebin Planning Scheme; Residential Growth Zone; single site – restricted width; ‘reverse living’ design; building setbacks; construction over driveway; internal amenity; space for landscaping; overdevelopment. 


Anglican Community Services, trading as Anglicare v Wollongong City Council [2020] NSWLEC 1410
DEVELOPMENT APPLICATION – seniors living –amenity – biodiversity conservation for endangered ecological communities – bushfire prone land – height standard non-compliance – cl 4.6 written variation request – conciliation conference – agreement between the parties – orders

Bobolas v Waverley Council [2020] NSWCA 201
APPEAL – application for order staying the hearing of judicial review proceedings in the Land and Environment Court – no basis demonstrated for appellate intervention in respect of a matter of practice and procedure

Lakiss v Piangas [2020] NSWLEC 1405
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to driveway and fence – whether the damage is caused by neighbouring trees – whether the trees should be removed – whether damage requires repairs – whether the tree owner should pay for repairs 

Jones v Moser [2020] NSWLEC 1399
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a retaining wall – whether the retaining wall is on the common boundary – who is responsible for the retaining wall – whether the wall must be replaced – whether consent is required to replace the wall – whether the tree must be removed – whether a paling fence must be replaced – who should pay the costs of the works 

Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1398
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) – boarding house development in R4 High Density Residential zone – weight given to draft Local Environmental Plan – clause 30A character of the local area

Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull (No 4) [2020] NSWLEC 124
CRIMINAL PROCEDURE – stay of proceedings – admissions made in class 4 civil enforcement proceedings – criminal proceedings commenced after conclusions of class 4 proceedings – whether use of admissions in criminal proceedings is a breach of the accusatorial principle – whether admissions were made under compulsion – whether admissions were necessary to the defendant’s class 4 defence

McGargill v The Council of the City of Sydney [2020] NSWLEC 1396
APPEAL – modification application – modification granted by the Council with a condition imposed – condition required upper floor rear addition to be reduced to what was originally approved – application of the relevant development control plan – control requires that additions respect the predominant rear building line - whether flexibility should be exercised APPEAL – development control order – demolish works order – order remains appropriate – extended to provide additional time for compliance

Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121
JOINDER - appeal by Toplace against deemed refusal of an application to modify a condition of development consent - application by the Council to join two further developers with projects in the immediate vicinity of the Toplace development project - all three projects are located at an intersection in Rosebery - intersection requires upgrading - the appealed condition in the Toplace development consent requires the upgrading of the intersection prior to the issue of any occupation certificate for the Toplace development - the amendment sought by Toplace would only require such upgrading prior to the issuing of a Final Occupation Certificate for the Toplace development - whether joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 available - Joinder pursuant to s 8.15(2) not available - whether joinder pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 appropriate - Toplace’s proposed modification has potential to impact directly on the interests of the two developers proposed to be joined - joinder appropriate - joinder ordered MEDIATION - matter potentially amenable to commercial resolution - mediation appropriate in light of joinder - mediation to be ordered

The Beresford Childcare Pty Limited v Strathfield Municipal Council [2020] NSWLEC 1391
DEVELOPMENT APPLICATION – childcare centre – whether acoustic impacts are acceptable

Britely Property Pty Ltd v Randwick City Council (No 2) [2020] NSWLEC 1389
DEVELOPMENT APPLICATION – Boarding house – student accommodation – amended plans – application of the floor space ratio definition – variation to floor space standard – variation to maximum height standard – variation to the motorcycle parking standard – whether environmental planning grounds are sufficient to justify the variation – appeal dismissed

222 Botany Road Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1388
DEVELOPMENT APPLICATION – change in use – conversion of commercial units to serviced apartments – amenity – consistency with residential unit standards

Rodny v Stricke (No 2) [2020] NSWSC 1126
PRACTICE AND PROCEDURE – Civil procedure – Leave to appeal from a costs decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Whether the Tribunal misapplied s 60 in determining that special circumstances existed – Leave to appeal refused

application in the Tribunal under the Strata Schemes Management Act 2015 (NSW) against the Owners Corporation and members of the strata committee for a multi-storied luxury apartment building in Kent Street, Sydney (the strata scheme)


Super Turnkey Pty Ltd & Anor v Queensland Fire and Emergency Service [2020] QPEC 43
PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – where the second appellant approved the first appellant’s application for a development permit for building works – where the respondent, on two occasions, issued a non-compliant inspection report after the development approval took effect – where the first appellant twice had the approval changed to seek to satisfy the respondent – where the respondent appealed to the Development Tribunal against the second appellant’s decision to approve the second change to the development approval – where the Tribunal erred in approaching the appeal on the basis that it was considering whether a development approval should have been granted or withheld, rather than whether an existing changed development approval ought be changed for a second time – where the Tribunal’s reasons for its decision were insufficient – where the Tribunal did not consider or give sufficient reasons with respect to whether the imposition of conditions could have achieved compliance with the assessment benchmarks – whether the matter should be remitted to the Tribunal to redecide the matter according to law – where the parties had reached agreement such that final orders could be made without the need to resolve any dispute of fact or merit
Planning Act 2016 Qld ss 49(1), 60(2)(d), 78(1), 229, sch 1 table 1 item 2, sch 1 table 3 item 1, sch 2

Lipoma Pty Ltd & Anor v Redland City Council & Anor [2020] QCA 180
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the first respondent approved an application for a development permit – where the developer was the second respondent – where the permit sought to reconfigure a lot, and a preliminary approval for material change of use – where the change was for a mixed-use development, including a shopping centre – where the applicants opposed the second respondent’s application in the Planning and Environment Court – where that challenge was upheld – where this Court remitted the matter to the Planning and Environment Court based on certain errors in approach – where, on the second hearing, the Planning and Environment Court came to the opposite conclusion, supporting the first respondent’s position and dismissing the appeal to it by the applicants – where the development application was made under the Sustainable Planning Act 2009 (Qld) when the 2006 Scheme was in force – where the 2018 Redland City Plan (“2018 Scheme”) has been adopted since the matter was before this Court in 2018 – where the learned trial judge concluded that the proposal was in conflict with the 2006 Scheme – where the learned trial judge concluded that it was appropriate to give no weight to the 2018 Scheme in the assessment of the subject application – where that conclusion was attacked as an error before this Court – whether the 2018 Scheme is the Council’s current statement – whether the 2006 Scheme and the 2018 Scheme are an expression of the “public interest” – whether the learned trial judge erred in finding that there were “sufficient grounds”, in the public interest, to depart from the planning instrument
Planning and Environment Court Act 2016 Qld s 63; Sustainable Planning Act 2009 Qld s 242, s 326, s 329



Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020
HR Introduced and read a first time 27 August 2020 Third reading agreed to 03 September 2020
The Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (the Bill) facilitates the legally robust devolution of environmental approvals to the States and Territories


The Cladding Safety Victoria Bill
Introduced 03 September 2020 - The Cladding Safety Victoria Bill 2020, introduced on 3 September 2020, formally establishes Cladding Safety Victoria (CSV) to deliver the Cladding Rectification Program. The Bill will empower CSV to carry out all required functions to deliver the program.

Victorian legislation can be accessed here


Regulations and other miscellaneous instruments

Co-operative Housing and Starr-Bowkett Societies Regulation 2020
(2020-505) — published LW 28 August 2020

Co-operatives (New South Wales) Regulation 2020
(2020-506) — published LW 28 August 2020
(2020-508) — published LW 28 August 2020

National Energy Retail Law (Adoption) Regulation 2020
(2020-511) — published LW 28 August 2020

Royal Botanic Gardens and Domain Trust Regulation 2020
(2020-513) — published LW 28 August 2020

Environmental Planning and Assessment Amendment (St Leonards and Crows Nest Special Contributions Area) Order 2020
(2020-518) — published LW 31 August 2020

Environmental Planning Instruments

State Environmental Planning Policy (Koala Habitat Protection) Amendment (Planning for Bush Fire Protection) 2020
(2020-522) — published LW 3 September 2020

State Environmental Planning Policy (State Significant Precincts) Amendment (Barangaroo Site) 2020
(2020-523) — published LW 3 September 2020

State Environmental Planning Policy Amendment (Crows Nest Metro Station) 2020
(2020-520) — published LW 31 August 2020

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


Subordinate legislation as made

No 162 Planning (Walkable Neighbourhoods) Amendment Regulation 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.

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