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Inside track: Planning, Environment & Sustainability

14 September 2021

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Commonwealth

Draft NCC 2022 provisions an important step change for energy efficient homes
The ABCB released draft National Construction Code provisions on energy efficient residential buildings for public consultation. The ASBEC welcomes the release of the public consultation draft as an important step change towards more healthy and comfortable homes for Australian families (30 August 2021).  More...

Climate risk governance guide
Climate risk is no longer an issue facing select sectors, but a standing item on many board agendas. To assist directors address climate change governance, the AICD has developed a practical guide. The Climate risk governance guide provides a plain-language introduction to fundamental climate change concepts, and considers this issue in the context of the non-executive directors’ role and duties (24 August 2021).  More...

Finance accepts new land acquisition laws
The Department of Finance has released the findings of a Review of the Lands Acquisition Act 1989 and accepted all 16 recommendations in full. The Review found that most acquisitions occur relatively quickly, providing mutually agreed compensation to landholders, however, it also identified a subset of cases where landholders could benefit from more (23 August 2021).  More...

Australian environmental group sues Santos over clean energy claims
The ACCR filed a lawsuit in the Federal Court on Thursday, and says it is the first case in the world to challenge the validity of a company's net zero emissions target. The ACCR is suing Santos Ltd alleging the company's statements about gas being "clean" and having a clear pathway to net zero by 2040 were deceptive (26 August 2021).  More...

Victoria

Gurner files plans for $250m Southbank tower
Gurner plans to build a $250 million, 40 storey apartment tower at Southbank, adding to its $7 billion pipeline and signalling confidence in a resurgent Melbourne apartment market (01 September 2021).  More...

New strategy, planning controls for Fishermans Bend
A new plan to build a centre of high-value industries and jobs at Fishermans Bend unveiled today positions Victoria at the forefront of global advanced manufacturing, engineering and design innovation. The Advancing Manufacturing statement which outlines five key priorities for the Fishermans Bend National Employment and Innovation Cluster (01 September 2021).  More...

Updated plans for Junction Place
A revised masterplan for the landmark Junction Place precinct in Wodonga will be shared in the coming weeks, with a refreshed vision for the site aimed at creating jobs and stimulating economic growth, while also responding to renewed interest in regional Victoria (31 August 2021).  More...

Fortis adds $90m tower plan to Melbourne pipeline
Sydney-based developer Fortis’ burgeoning Melbourne pipeline has expanded with plans for a $90-million mixed-use development in Richmond now before the council (31 August 2021).  More...

Powering the potential of neighbourhood batteries
The Victorian Government has awarded grants to jumpstart the roll-out of neighbourhood-scale batteries and energy storage studies to maximise benefits of solar for households, businesses and community (20 August 2021).  More...

NSW

Delay to removal of flammable cladding from NSW apartment buildings
The removal of cladding from the apartment towers as part of a state government project has been delayed until early next year (02 September 2021).  More...

‘Most risky’ certifiers of NSW apartment buildings in watchdog’s sights
Almost a dozen certifiers will be put under intense scrutiny by the state’s building watchdog as it attempts to boost public confidence in apartments (31 August 2021).  More...

NSW government finally sees the light, ditches dark roofs
The NSW government has finally responded to the pressing issues of urban heat islands and energy efficiency by prohibiting dark coloured roofs on new developments in the suburb of Wilton in Sydney’s south-west (The Wilton Development Control Plan (25 August 2021).  More...

“Great day for environmental justice” as EPA ordered to take action on climate change
A landmark ruling by the NSW Land and Environment Court will require the state EPA to take action on greenhouse gas emissions and climate change. It follows a case launched by Bushfire Survivors for Climate Action against the EPA. Read the EPA statement here (26 August 2021).  More...

Green ban on Willow Grove lifted
NSW Minister for the Arts Don Harwin has announced that the green ban imposed by the Construction, Forestry, Maritime, Mining and Energy Union on Parramatta’s Willow Grove site will be lifted today. This decision follows consultation with the community resulting in the retention of significant heritage items (24 August 2021).  More...

Queensland

CBD space fight erupts as developer behind city tower hits out at hotel plan
In an objection lodged with Brisbane City Council, property group Mirvac said its support for city revitalisation could not extend to “unreasonable” hotel plans at the corner of Roma and Turbot streets (01 September 2021).  More...

New Palaszczuk Government regional quarantine facility to keep Queenslanders safe
A dedicated regional quarantine facility will be built at Wellcamp, Toowoomba under a joint agreement between the Palaszczuk Government and the landowner, Wagner Corporation (26 August 2021).  More...

Broken ground for Queensland’s first Build-to-Rent project
Work is officially underway on the Palaszczuk Government’s first Build-to-Rent development, providing a boost to jobs in the construction sector and making affordable housing more accessible (24 August 2021).  More...

City centres evolve as the pandemic changes the way we work
The COVID-19 pandemic will mean 10 per cent fewer people will work in Australia’s city centres, while CBD office spaces will get smaller, Australia’s chief infrastructure body believes. The changes will mean more professional workers will shift to regional centres close to capital cities, including the Gold and Sunshine coasts, Ipswich and Logan (22 August 2021).  More...

In Practice and Courts

Commonwealth

PCA: Draft Recovery Plan for the Koala released for public consultation
The Federal Government has released the draft National Recovery Plan for the EPBC Act-listed Koala, identifying strategic actions to support recovery of the nationally threatened species. The public consultation period is open until 24 September 2021.
The draft conservation advice listing assessment for the koala is also open for consultation until 30 July 2021. This document will be incorporated into the draft National Recovery Plan as well.
For more information on the draft national recovery plan, please click here.
For more information on the draft conservation advice and listing assessment for the koala , please click here.

Register of Foreign-owned Water Entitlements
This draft report was released on 17 August 2021.The draft report presents the Commission’s preliminary analysis and views on the rationales for the Register, its effectiveness, costs and benefits, and possible improvements, for both its current and future forms.The Commission will seek further information and feedback following the release of a draft report in August 2021. Draft report expected to be released in August 2021.  More...

Announcements, Draft Policies and Plans released 2021

Victoria

Ministerial Direction No. 1 – Potentially Contaminated Land
An updated Ministerial Direction No. 1 – Potentially Contaminated Land incorporating changes to align with the Environment Protection Act 2017 was gazetted on 27 August 2021 and is available on the DELWP website.  More...

Approvals
Melbourne C371melb applies the Specific Controls Overlay to part of the land at 221-245 Salmon Street, Port Melbourne to facilitate its use and development for a new campus for the University of Melbourne by inserting an incorporated document titled 'The University of Melbourne Fishermans Bend Campus, August 2020' and making other consequential changes to the Melbourne Planning Scheme.
Melbourne C392melb introduces new policy direction for the Fishermans Bend Employment Precinct at Clause 21.16 (Other local areas), applies a new schedule 74 to the Design and Development Overlay to the precinct on an interim basis until 31 January 2022 and makes other associated changes to the Melbourne Planning Scheme.

NSW

Telecommunications and other communication facilities
Notification start-end date 16/08/2021 – 13/09/2021
We have prepared an amendment to the Infrastructure SEPP to help speed up the delivery of new telecommunications infrastructure. The proposed amendments will simplify planning pathways for telecommunications infrastructure.  More...

Electricity generating works or solar energy systems
Notification start-end date 16/08/2021 – 13/09/2021
The NSW Government is making it easier to install solar energy battery systems in your home. The proposed changes will make household scale solar batteries systems exempt development. This means you will not need development consent, under the amended the State Environmental Planning Policy (Infrastructure) 2007.  More...

Proposed Environmental Planning and Assessment Regulation 2021
Notification start-end date 05/08/2021 – 22/09/2021
We are seeking feedback on proposed changes to the Environmental Planning and Assessment Regulation 2000. These changes are detailed in the exhibition draft of the proposed Environmental Planning and Assessment Regulation 2021 and supporting materials at the attached link.  More...

Industrial lands policy review
The Greater Sydney Commission is undertaking a review of the Industrial and Urban Services Lands Retain and Manage policy under the Greater Sydney Region Plan. The policy applies to industrial areas in Greater Sydney that should be safeguarded from competing land use pressures. Submission close on13 August 2021. The review is scheduled to be completed by the end of 2021.  More...

Draft Noise Guide for Local Government
Public consultation closes on 27 September 2021. The draft Guide makes it easier to find information on the legislative framework to manage noise, who is responsible for managing noise, and the options for management. The draft Guide also reflects changes introduced by the Protection of the Environment (Noise Control) Regulation 2017 and other legislative changes since 2013. View the Draft Noise Guide for Local Government and frequently asked questions and have your say on the proposed changes.

Queensland

Public consultation: Queensland’s renewable energy zones (QREZs)
Public consultation would be followed by a technical paper later in the year, for feedback from industry and other energy stakeholders on the framework for QREZ design and access. The online survey is open until 30 September 2021.  More...

Proposed citywide amendment to Brisbane City Plan 2014 (Amendment K)
Brisbane City Council was seeking public consultation on proposed changes to Brisbane City Plan 2014 – Major Amendment package K. Public consultation has now closed (24 August 2021). The changes proposed to City Plan under Major amendment package K are summarised  here. The full details of the proposed amendment can be found on City Plan online and the details of zone and overlay mapping changes can be found in the schedule of amendments.

Land Restoration Fund: Round 2
Applications are open for the Land Restoration Fund Investment Round 2. For more information about details required under Stage 1 and 2 read the LRF Investment Application Guidelines.
Submissions are now being accepted. Submissions close on 8 October 2021.

Cases

Victoria

Thorpe v Head, Transport for Victoria & Ors (Ruling No 2) [2021] VSC 533
INJUNCTION – Aboriginal Cultural Heritage – request for directions – whether specified categories of activities are caught by the interlocutory injunction – maintenance works – injunction must be sufficiently clear – purpose and context of injunction – preserving the status quo – proper construction of the term ‘associated works’ – Aboriginal Heritage Act 2006 (Vic) – Aboriginal Heritage Regulations 2018 (Vic) – Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281 – Kia Australia Pty Ltd v Chief Executive Officer, Customs [1998] 1060 FCA – Owen Daniel (A pseudonym) v Secretary to the Department of Justice [2015] VSCA 10 - Winslow Constructors v Mt Holden Estates [2004] VSCA 159; [2004] 10 VR 435. 

Willis v Johnson [2021] NSWLEC 1513
TREES (DISPUTES BETWEEN NEIGHBOURS) – part 2 application – overhanging tree – damage to property – risk of injury – brush turkeys – brush turkey faeces – fire – debris – mould – remedy or prevention is not available under the Trees Act.

Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507
MODIFICATION APPLICATION – seeks to modify 101 lot residential subdivision – increase in number of lots to 110 – extension of approved road, deletion of open space to be dedicated to Council from one location and to be provided in another location –whether the development as proposed to be amended is substantially the same as the development as originally approved – other merit issues not necessary to consider.

The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504
TREES (DISPUTES BETWEEN NEIGHBOURS) – part 2 application – damage to property – trees have been removed but stumps remain – consent orders other than apportionment – actions and omissions of the parties.

Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92
JUDICIAL REVIEW – public duty – failure to perform – duty to develop environmental quality objectives, guidelines and policies to ensure environment protection – meaning and content of duty – discretion in performing duty – controls on the exercise of discretion – duty requires the development of objectives, guidelines and policies to ensure environment protection from climate change – breach of duty – mandamus to compel performance of duty.

Queensland

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – ORIGINATING APPLICATION – where respondent council approved development application for permit for building works and material change of use for multiple dwellings – where development application approved subject to conditions requiring work on Transport Network to remove existing safety barrier for the purposes of refuse collection – where originating application sought declaratory relief – where relief sought concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where application dismissed
ASSESSMENT BENCHMARKS – where development application approved subject to code assessment – whether jurisdictional error as to basis of assessment – whether development application ought have been impact assessable – whether proper construction of development application such that it can be inferred the developer sought approval for four storey dwelling – whether rooftop area comprising lift shaft and stairs constitutes storey – whether approval of development application unreasonable in context – whether council failed to exercise statutory discretion to approve or refuse development application
Planning Act 2016 Qld s 60; Planning and Environment Court Act 2016 Qld s 11.

The Proprietors Cathedral Village BUP 106957 v Cathedral Place Community Body Corporate [2021] QCA 186
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – OTHER CASES – where the applicant paid the respondent an amount pursuant to a District Court judgment – where that judgment was successfully appealed and remitted to the District Court – where the respondent did not repay the judgment amount to the applicant – whether the judgment amount should be repaid to the applicant with interest and costs. Civil Proceedings Act 2001 Qld s 58(3), s 59(3); Mixed Use Development Act 1993 Qld s 193.

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42
PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application seeking a development permit for material change of use for a six storey multiple dwelling in the Medium density residential zone – whether the proposed development is of an appropriate height, bulk and scale – whether the proposed development will contribute to a cohesive streetscape – whether the proposed development will be compatible with the existing and intended character of the area – whether the proposed development will cause any unacceptable amenity impact – whether the proposed development provides for adequate deep planting and landscaping – whether there is a need for the proposed development – whether there are relevant matters that support approval of the proposed development – whether the development application for the proposed development should be approved in the exercise of the planning discretion
Planning Act 2016 Qld s 45, s 59, s 60; Planning and Environment Court Act 2016 Qld s 43, s 45, s 47.

Krieg v Woolgar Valley Aboriginal Corporation [2021] QLC 28
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicant requires compensation to be decided – where the respondent at different stages of negotiations referred to conduct and compensation – where the respondents offer was contingent on agreement to pay legal and valuation costs ¬– where the respondent is an Aboriginal Corporation – where the applicant is subject to the laws of general application including the Aboriginal Cultural Heritage Act 2004 (Qld) – where valuer’s report was provided – where compensation was determined
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – OTHER MATTERS – where costs were considered –– where the Court considered the discretion to award costs for ‘legal costs’ ought not be exercised – where the Court was assisted by the valuer’s report – where each party should bear half the cost of the valuation report Mineral Resources Act 1989 Qld s 281(3); Land Court Act 2000 Qld s 7, s 34.

Odna Group Pty Ltd v Logan City Council [2021] QPEC 41
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for operational works for an electronic advertising device – whether the development conflicts with the advertising device code in the planning scheme – whether the advertising device would materially affect the safety of the movement network – whether the proposal complies with either the performance outcome or the purpose and overall outcome of the code, given the operation of the acceptable outcomes is excluded in relation to safety – whether the advertising device would materially adversely affect, rather than protect, the visual amenity of the surrounding area – whether the acceptable outcomes are met where, in part, they refer to standards for various signs, none of which fit the description of the proposal – whether the proposal meets the performance outcomes or the purpose and overall outcomes in relation to visual amenity – whether public benefit supports the favourable exercise of discretion Planning Act 2016 Qld ss 45(3), 60(2); Planning and Environment Court Act 2016 Qld ss 43, 45, 47.

Legislation

Victoria

Statutory Rules
No 107 Land Amendment Regulations 2021 31/08/2021
No 109 Land (Regulated Watercourse Land) Regulations 2021 31/08/2021
No 110 Conservation, Forests and Lands (Infringement Notice) Amendment (Flora and Fauna Guarantee) Regulations 2021 31/08/2021

NSW

Regulations and other miscellaneous instruments
Residential Apartment Buildings (Compliance and Enforcement Powers) Amendment (Miscellaneous) Regulation 2021 (2021-510) – published LW 3 September 2021
Contaminated Land Management (Adjustable Amounts) Notice 2021 (2021-478) – published LW 27 August 2021
Protection of the Environment Operations (Clean Air) Regulation 2021 (2021-485) – published LW 27 August 2021
Protection of the Environment Operations (General) Regulation 2021 (2021-486) – published LW 27 August 2021

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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