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Inside track: Local Government

15 December 2020

#Local Government

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Inside track: Local Government

In the media

Joint effort needed to improve remote-area waste streams: APCO
Greater collaboration will be necessary to ensure packaging and plastic waste in remote and regional areas are properly managed in future, a new report says. The report is part of APCO’s work with all governments to meet the 2025 National Packaging Targets and to deliver on the commitments outlined in the National Waste Policy Action Plan (03 December 2020).  More...

Placing a value on wetlands ‘will improve coastal planning’
Local government planners sometimes fail to appreciate that valuations of coastal wetlands as disaster risk-reduction ecosystems can improve decision-making (03 December 2020).  More...

LG investment in renewables can drive economic recovery: CPP
A new report has identified how councils can invest in renewable energy, urban greening, and climate action to drive local economic recovery. The Clean Jobs for Communities report says towns and cities can play a crucial role in helping overcome Australia overcome its climate and health crises (03 December 2020).  More...

How LG can meet demand for more resilient communications
As the owners of infrastructure valued at more than $345 billion, Australia’s 537 councils are now having to respond quickly to federal government requirements for critical infrastructure assets to be safeguarded against cyber-attacks by criminals, terrorist groups or foreign state actors (03 December 2020).  More...

Bushfire outlook sees new conditions ahead
The Bushfire and Natural Hazards Cooperative Research Centre (BNHCRC) has published its seasonal bushfire outlook, Australian Seasonal Bushfire Outlook: December 2020 – February 2020, finding that grass and crop fires were expected to be an area of concern over the summer months. The BNHCRC’s four-page Seasonal Bushfire Outlook can be downloaded here (30 November 2020).  More...

Victoria

Council scraps Australia Day fireworks to focus community on reconciliation
Ballarat will scrap its Australia Day fireworks and instead run events focused on reconciliation including a Survival Day dawn ceremony (03 December 2020).  More...

Council financial hardship schemes under scrutiny
The state’s ombudsman is investigating whether Victorian councils have fair and accessible financial hardship schemes for ratepayers. Ombudsman Deborah Glass says more ratepayers are likely to be struggling in the wake of COVID-19 and the economic downturn (02 December 2020).  More...

Complaints at second highest level ever
The ombudsman’s Annual Report and Annual Plan, tabled in parliament. Of the complaints we could deal with, prisons and local councils remain the most complained about agencies, although numbers were reduced, likely reflecting the impact of COVID-19 (02 December 2020).  More...

Despite record elections for women, seven Victorian councils include just one woman
Despite a record number of female Victorian councillors elected this year, seven local government areas still have just one female councillor (26 November 2020).  More...

Commitment to rebuild communities welcomed
The 2020/21 Victorian Budget’s strong focus on supporting communities and businesses, as they rebuild in the wake of the COVID-19 pandemic, has been welcomed by the Municipal Association of Victoria (MAV) (25 November 2020).  More...

Fury as Andrews Government approves contaminated soil dump in regional 'food bowl'
Residents of Bacchus Marsh say a State Government decision to store spoil from the West Gate Tunnel dig near the town shows "contempt for regional Victoria" (24 November 2020).  More...

NSW

Aerotropolis must provide for a new hospital, report says
The NSW government should secure land within the planned Aerotropolis to build a future hospital so expected population growth in western Sydney can be met, a report recommends (03 December 2020).  More...

More trees across Greater Sydney
Thanks to $10 million in NSW Government grants, the Greening Our City program will provide grants to 30 councils and two partner organisations across two funding streams: Cooler Suburbs and Green Innovations (01 December 2020).  More...

Level 1 water restrictions lifted in Greater Sydney
From 1 December 2020, Level 1 Water restrictions for Greater Sydney, the Blue Mountains and the Illawarra will be lifted and replaced with Water Wise Guidelines (01 December 2020).  More...

Queensland

State Budget to fund council-led job creation
LGAQ President and Sunshine Coast Council Mayor Mark Jamieson welcomed funding commitments announced in the State Budget including: $200 million for Works for Queensland, $50 million in economic stimulus for SEQ councils and $280 million over four years for the Transport Infrastructure Development Scheme (TIDS) (01 December 2020).  More...

Brisbane council to dissolve year-round boards in favour of panels
The council will replace some long-running boards with advisory panels, and has ended contracts with some experts (26 November 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.

LGs eligible for environmental safe havens funding
Councils have been advised that they can apply for Commonwealth grants to build safe havens for threatened native wildlife species. Local government agencies/bodies can apply for grants ranging from $500,000 up to $1.8 million. The cut-off for grant applications is 11 January 2021, and projects eligible for grants must be completed by 31 May 2023. Click here for more information.

Victoria

The 2020-21 Victorian State Budget
Published: 24 November 2020
This year’s budget focuses on people – protecting and creating jobs, looking after families, building strong and connected communities, and setting Victoria up for a strong recovery. The budget papers are available on the Victorian Budget website. Overview by portfolio; Local Government; the Minister’s media release on the Local Government appropriation is available here.

Procurement e-learning modules
Visit the MAV Procurement e-learning portal for free, introductory modules: Understanding Local Government and Doing Business with Local Government are also available on the portal.

Container deposit scheme
The MAV has welcomed the release of the Victorian Government’s consultation paper on the design of the container deposit scheme (CDS). Following significant advocacy from the MAV, councils, environment groups and others, the State committed to introducing a CDS by 2023 as part of its Recycling Victoria policy.

Draft urban stormwater management guidance
The EPA has released a draft urban stormwater management guidance document for consultation. Background information and a Review of Stormwater Science have also been provided to support consultation on the draft guidance. The MAV will be developing a submission on behalf of councils. The deadline for comments to the EPA is 16 December. Further information is available here

SRO: Further tax and fee relief measures
As part of a $3 billion business support package, the Victorian Government has announced further coronavirus tax relief measures, including waiving of liquor licencing fees for 2021, deferral for 2020-21 payroll tax liabilities, and duty reductions for those buying commercial or industrial property in regional Victoria.
Note: Following the recent Victorian bushfires, the Victorian Government passed legislation in April 2020 to bring forward the 50% stamp duty discount for contracts entered into on or after 27 January 2020 to buy commercial or industrial property in bushfire affected LGAs. The 50% stamp duty discount for commercial and industrial property across all of regional Victoria will be brought forward to 1 January 2021.

New Animal Welfare Act
The Victorian Government is seeking feedback on proposals for a new animal welfare Act. The new Act would replace the Prevention of Cruelty to Animals Act 1986 (POCTA Act). Many of the proposals aim to improve existing provisions under the POCTA Act. Some would introduce new features into Victoria’s main animal welfare legislation. Consultation closes 14 December.

Have your say on the draft Guidelines for Precinct Structure Planning in Melbourne’s Greenfields
The Victorian Planning Authority and DELWP are updating the Guidelines for Precinct Structure Planning in Melbourne’s Greenfields to make planning for Melbourne’s new neighbourhoods more flexible, responsive and innovative. Have your say by completing the online survey, making a submission on behalf of your organisation or registering for a virtual stakeholder interview here.

Extension to the declaration of Surf Coast, Bellarine Peninsula and Bass Coast as distinctive areas and landscapes
The Governor in Council, under section 46AT(3) of the Planning and Environment Act 1987, has approved the extension of time required to prepare Statements of Planning Policy for Surf Coast, Bellarine Peninsula and Bass Coast for a further 12 month period.

Outdoor Eating and Entertainment Package business grants
Applications are now open for the $58 million Outdoor Eating and Entertainment Package. Grants of up to $5,000 are available to licensed and unlicensed hospitality businesses, including restaurants, cafes, pubs/taverns, bars, clubs and takeaway food venues. Applications close on 11 December 2020.

$8 million in grants available to deliver Australia Day 2021 events
The National Australia Day Council in collaboration with Australia Day Victoria, is offering $8 million in grants for councils to deliver Australia Day 2021 events. Councils are eligible for a $20,000 grant to ensure their events are COVIDsafe. Councils can also download a free Australia Day-branded event artwork here and apply for a $1,000 grant for production.  More...

Community Sports Infrastructure Loans Scheme
Applications are now open for the second round of the $100 million Community Sports Infrastructure Loans Scheme. The low-interest government-guaranteed loans from $500,000 to up to $10 million are available to councils, clubs, associations, educational institutions and facility managers to develop high-quality community sport and active recreation infrastructure. Applications close 15 December 2020.

Recycling Victoria Business Support Fund 
The first round of the $10 million Recycling Victoria Business Support Fund is now open. The fund will help businesses, industry groups and not-for-profit organisations to improve resource efficiency, reduce waste to landfill, increase recycling and reduce their operating costs. The first round of the $3 million Recycling Victoria Innovation Fund is also now available.

Building Safer Communities Program 
The $11 million Building Safer Communities Program tackles the causes of crime through innovative, community-based projects. Councils, community organisations and other stakeholders will be able to apply for grants of up to $300,000 for innovative proposals designed to improve community safety and prevent crime before it occurs. The first round will open on 18 January. 

New funding for primary producers
New funding is available through Disaster Recovery Funding Arrangements to help grape growers in local government areas outside bushfire zones who have had their crops affected by smoke. The grant is available through Rural Finance (1800 260 425) and is open until 31 December. 

Surf Coast distinctive area and landscape
DELWP invites written submissions on the draft Surf Coast Statement of Planning Policy (SPP) and proposed landscape planning controls. The draft SPP creates a framework for the future use and development of land in the Surf Coast declared area and seeks to ensure long-term protection of its unique coastal and rural environments, Aboriginal cultural heritage, historical features, natural resources and character of townships. The proposed landscape planning controls ensure areas of state and national landscape significance are protected for current and future generations. For further information please visit Engage Victoria. Submissions close on 22 January 2021.

Approvals
VC180 changes the VPP and all planning schemes in Victoria by facilitating the development of new, and the upgrade and expansion of existing, non-government primary and secondary schools.

New planning rules to support Victoria’s Big Housing Build
Links to Amendments VC187 and VC190 are now available. The amendments introduce clauses 53.20 and 52.20 and amend clause 72.01 to the VPP and all planning schemes to streamline planning permit applications and support the provision of social and affordable housing through Victoria’s Big Housing Build (03 December 2020).  More...

NSW

NSW OLG Circulars

20-39 Constitutional referendums and council polls
Circular Details 20-39 / 30 November 2020 / A716396 / Previous Circular 19-23 Constitutional referendums and council polls / Who should read this: Councillors and General Managers.  More...

20-38 Special Rate Variation and Minimum Rate Variation Guidelines and Process
Circular Details 20-38 / 25 November 2020 / A743632 / Who should read this: Councillors, General Managers, Council Finance and IP&R staff.  More...

Proposed SEPP amendment to allow outdoor dining pilot in Sydney CBD
City Of Sydney – The department is seeking your feedback on a proposed amendment to the Codes SEPP which will facilitate a simplified, streamlined process for small bars and pubs in the City of Sydney to have outdoor dining. The Outdoor Dining Trial will run from 30 October 2020 until 31 October 2021.  More...

NSW Planning Department: Have your say, draft plans and policies

Draft local character clause
The department is exhibiting a draft Local Character Clause which is proposed to be included in the Standard Instrument Local Environmental Plan. The clause will require the council to consider its local character statement when addressing development applications. Notification start-end date 12/11/2020 – 29/01/2021.  More...

Proposed Special Infrastructure Contribution for Western Sydney Aerotropolis
The proposed Special Infrastructure Contribution (SIC) for Western Sydney Aerotropolis is on exhibition until 18 December 2020. Notification start-end date 10/11/2020 – 18/12/2020.  More...

Queensland

Local Government Reform
04 December 2020 – COVID-19 Emergency Response and Other Legislation Amendment Act 2020 including the following amendments to the vacancies process in the Local Government Act 2009 to vacancies in the first 12 months after a quadrennial election:
mayoral vacancies – a by-election is to be held; and
councillor vacancies – local governments are to determine by resolution whether the vacancy is to be filled by a by-election or the appointment of a runner-up.

Temporary use licences – Planning (COVID-19 Emergency Response) Regulation 2020
This temporary regulation establishes requirements for keeping documents physically available for inspection and purchase in recognition of health and safety restrictions. This enables local governments to continue to meet their statutory obligations. The regulation is in effect to 31 December 2020. View the Planning (COVID-19 Emergency Response) Regulation 2020.

Cases

Victoria

McDonald's Australia Limited v Moreland CC [2020] VCAT 1347
Section 77 of the Planning and Environment Act 1987 – Moreland Planning Scheme – Residential Growth Zone – refusal to amend permit condition to allow 24-hour trading, seven days a week. Amenity impacts.

736-742 Hampton Street Developments Pty Ltd v Bayside CC [2020] VCAT 1326
Section 87A of the Planning & Environment Act 1987 – Bayside Planning Scheme – Commercial 1 Zone Schedule 1 – Design and Development Overlay Schedule 14 – Development Contributions Overlay Schedule 1 – Special Building Overlay – Environmental Audit Overlay – Repeat Appeal – Amendment to existing permit to allow fourth storey – environmental sensitive design – Neighbourhood character – amenity impacts – internal amenity.

O'Callaghan v Greater Shepparton CC [2020] VCAT 1345
Section 80 of the Planning and Environment Act 1987 – Greater Shepparton Planning Scheme – permit to subdivide land into 2 lots –condition requiring existing vehicle crossover to be ‘surrendered’ – vagueness – reasonableness – validity.

Truganina Metropolitan Pty Ltd v Wyndham CC [2020] VCAT 1343
Application under s79 of the Planning and Environment Act 1987 – Wyndham Planning Scheme – Urban Growth Zone – gaming venue for a maximum of 80 electronic gaming machines – location of gaming venue – design of gaming venue – net community benefit.

18 Smith Street Pty Ltd v Yarra CC [2020] VCAT 1319
Application under s79 of the Planning and Environment Act 1987 – Yarra Planning Scheme – seven storey mixed use development – response to heritage values – equitable development – height and built form – no permit.

Hubbard v Stonnington CC [2020] VCAT 1219
Stonnington Planning Scheme – application under section 82 of the Planning and Environment Act 1987 – GRZ5 – DDO3-C – extension of a dwelling on a lot less than 300sqm – neighbourhood character – off-site amenity impacts – duplex typology.

Vicinity Centres Pty Ltd v Casey CC [2020] VCAT 1337
Casey Planning Scheme – Activity Centre Zone, Schedule 1 – heritage tree – advertising signage – driver distraction – location where particular concentration is required.

ORB Property Partners Pty Ltd v Whitehorse CC [2020] VCAT 1333
Whitehorse Planning Scheme – partial development of site – neighbourhood character – landscape character – orderly planning – piecemeal application.

Welreagh Pty Ltd v Melbourne CC [2020] VCAT 1305
Section 79 of the Planning and Environment Act 1987 – Melbourne Planning Scheme – Capital City Zone – Design & Development Overlay – construction of 20-storey commercial building – application to amend permit – confined issues in dispute – questions of law – whether permit amendment application is prohibited – whether street wall is an acceptable heritage response.

Jesse Ant Architects v Whitehorse CC [2020] VCAT 1280
Section 77 of the Planning and Environment Act 1987 – Whitehorse Planning Scheme – Dwelling Density – General Residential Zone – existing character – Court location – safety – traffic – car parking – precedent.

Vittorio v Banyule CC [2020] VCAT 1301
Review of a decision to refuse a planning permit – Banyule Planning Scheme – General Residential Zone and Vegetation Protection Overlay apply – risks of impact to neighbouring significant trees – landscape response considered against neighbourhood character policy. 

Yao v Brimbank CC [2020] VCAT 1296
Section 97P and Section 77 of the Planning and Environment Act 1987 (Vic) – Brimbank Planning Scheme – whether site enjoys existing use rights for use as a dwelling – whether retrospective permission should be granted for alterations to existing buildings.

Swirgoski v Bayside CC [2020] VCAT 1273
To construct nine, two storey dwellings above a basement car park – the dwellings are arranged in two groups with six attached dwellings on 444-444A St Kilda Street (Townhouses 1-6) and three attached dwellings on 40A Head Street (Townhouses 7-9).
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.

Gascoigne v Mornington Peninsula SC [2020] VCAT 1198
Section 77 of the Planning and Environment Act 1987, Mornington Peninsula SC planning scheme, Glamping, CFA, Green Wedge Zone.

St John of God Health Care v Melton CC [2020] VCAT 1263
Section 149A application – planning permit application and application for approval of a Development Plan – Melton Planning Scheme – dispute at first instance whether the proposal is or is not exempt from needing planning approval for the requisite ‘use’ and/or ‘development’ approval.

NSW

Lorenzato v Burwood Council [2020] NSWSC 1659
CONVEYANCING – vendor and purchaser – whether council stormwater pipe under property would have given rise to a right of rescission under rule in Flight v Booth – whether the pipe so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all TORTS – negligent misstatement – breach of duty by local council issuing certificate under s 149 Environmental Planning and Assessment Act – misstatement as to council policy resolution for acquisition of easements over property – purchaser’s reliance on certificate – defences under s 43A of the Civil Liability Act and s 733 of the Local Government Act TORTS – negligent misstatement – vendor’s breach of duty in answering requisitions about existence of council stormwater pipe under property – reliance by purchaser through conveyancing solicitor – whether plaintiff would have been entitled to rescind if correct answers given TORTS – professional negligence – whether solicitor exercised reasonable care and skill in obtaining instructions for answers to requisitions – negligence not established TORTS – private nuisance by public authority – interference with use and enjoyment of land – property flooded by overland flows of stormwater – “good faith” – necessity to prove negligence of council – defence under s 733 Local Government Act 1993 – nuisance established – damages VALUATION – land – value impaired by local council stormwater pipe – necessity to create an easement and relocate pipe – necessity to alter pipe connections external to the land – difficulty and uncertainty of dealing with council.

Hewatt Pty Ltd v Orange City Council [2020] NSWSC 1662
CIVIL PROCEDURE – separate question – whether there should be a separate determination of the merits of the plaintiff’s claim under the Building and Construction Industry Security of Payment Act BUILDING AND CONSTRUCTION – whether by reason of s 16(4) of the Building and Construction Industry Security of Payment Act the defendant would not be able to bring a cross claim against the plaintiff.

Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council [2020] NSWSC 1710
TORTS – personal injuries – two cases – psychiatric injury – public authority – Civil Liability Act 2002 (NSW) – flying as dangerous recreational activity – collision between aircraft and Ferris wheel – no damages allowed for Pilot – damages to occupant of Ferris wheel – joint and several liability.

Waverley Council v Ash Samadi and Ors (No 2) [2020] NSWLEC 162
COSTS – indemnity costs basis – sufficiently delinquent conduct – appropriate to fix quantum by percentage and to specific conduct. 

Stalvies v Snowy Monaro Regional Council [2020] NSWCATAD 292
ADMINISTRATIVE LAW – government information – access application – whether disclosure could reasonably be expected to reveal personal information – whether disclosure could contravene an information protection principle – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure. 

TLB Trading Pty Ltd v Mosman Municipal Council (No 2) [2020] NSWLEC 1591
PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.17– orders.

Chahoud v Penrith City Council [2020] NSWLEC 167
APPEAL – appeal against sentence – pleas of guilty entered in the court below – construction of large shed without consent – prohibited use of the land as a truck depot – no actual or potential environmental harm other than to integrity of planning regime – mental state of the offender at the time of the commission of the offences – criminal negligence or recklessness – capacity to pay a fine – application of totality principle – appeal allowed – no order as to costs. 

Funnell v Blayney Shire Council [2020] NSWLEC 170
PROCEDURE – application for a stay of a prevention notice pending the outcome of Class 1 proceedings – applicable principles for the granting of a stay – arguable cause of action – balance of convenience favours granting of stay subject to conditions.

Atkins v Fera [2020] NSWLEC 1615
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of sunlight – whether the obstruction is severe – lack of evidence.

Lendlease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2020] NSWLEC 1608
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders – staged development – Bingara Gorge Estate – Section 4.24 of the Environmental Planning and Assessment Act 1979 – development application in respect of the site consistent with the consent for the concept proposal.

XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607
DEVELOPMENT APPLICATION – residential flat building – orderly development – whether the securing of property-related rights, using easements over adjoining land, should provide the same assistance as site consolidation – interpretation of “site area” and implications for development standards – interpretation of “significant development” for the purposes of site area calculations – interpretation of controls to prevent “double dipping” in relation to floor space – biodiversity protection – Blue Gum High Forest – interpretation of whether potentially adverse environmental impact cannot be avoided – overshadowing – significance of compliance with a design guidance measure vs design criteria under the Apartment Design Guide – interpretation of “neighbouring properties” under the Apartment Design Guide – the need to consider design alternatives in instances of overshadowing – contravention of floor space ratio control.

ERF Hospice Foundation Ltd v Wingecarribee Shire Council [2020] NSWLEC 1604
DEVELOPMENT APPLICATION – heritage significance of local heritage item – heritage conservation area – Bowral Heritage Conservation Area – seniors living development – likely environmental impacts on both the natural and built environment.

Parisi v Inner West Council [2020] NSWLEC 1601
DEVELOPMENT – heritage (cultural and cultural/archaeology) – overshadowing – views – privacy – car parking – setback – FSR. 

Haynes v Northern Beaches Council [2020] NSWLEC 1600
DEVELOPMENT APPLICATION – boarding house – compatibility with character and streetscape – amenity – bulk and scale.

Chahoud v Penrith City Council [2020] NSWLEC 167
APPEAL – appeal against sentence – pleas of guilty entered in the court below – construction of large shed without consent – prohibited use of the land as a truck depot – no actual or potential environmental harm other than to integrity of planning regime – mental state of the offender at the time of the commission of the offences – criminal negligence or recklessness – capacity to pay a fine – application of totality principle – appeal allowed – no order as to costs.

Nicola v Waverley Council [2020] NSWLEC 1599
DEVELOPMENT APPLICATION – dwelling house – clause 4.6 variation to building height – calculation of ground level (existing) – view impacts.

Our Lady Aged Care Centre Ltd v City of Parramatta Council [2020] NSWLEC 1596
DEVELOPMENT APPEAL – modification application – aged care facility – substantially the same development – orders.

Geluk v Mosman Municipal Council [2020] NSWLEC 1592
MODIFICATION APPLICATION – enclosure of approved pergola – whether proposed modification is substantially the same development .

TLB Trading Pty Ltd v Mosman Municipal Council (No 2) [2020] NSWLEC 1591
PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.17– orders.

IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593
DEVELOPMENT APPLICATION – voluntary planning agreement – consideration of the orderly and economic development of land and the public interest.

Boensch v City of Parramatta Council [2020] NSWLEC 163
APPEAL – appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner concerning an order issued pursuant to s 124 of the Local Government Act 1992 – Appellant becomes bankrupt after commencing the appeal – effect of s 60 of the Bankruptcy Act 1966 (Cth) – Council solicitors seek views of bankruptcy trustees – bankruptcy trustees advise they did not intend to prosecute or discontinue the proceedings – bankruptcy trustees’ position triggers the operation of s 60(3) of the Bankruptcy Act deeming that the proceedings are abandoned – meaning of “action” for the purposes of the provision – whether the fact that the appeal has been commenced in circumstances where the applicant is a trustee of real property with no claimed personal interest in the trust property falls within the scope of an “action” for the purposes of s 60 – scope of the term “action” is to be construed as encompassing these appeal proceedings – whether granting an extension of time within which to commence an appeal causes the appeal to be deemed to have commenced from the date upon which the extension is granted – extension merely legitimises the validity of the appeal and does not alter the date of its commencement – whether the proceedings are saved because they fall within the scope of s 60(4) of the Bankruptcy Act – proceedings not saved by s 60(4) of the Bankruptcy Act – necessary consequence of the operation of ss 60(2) and (3) of the Bankruptcy Act is dismissal of the appeal COSTS – costs ordinarily appropriate to be ordered when proceedings dismissed as a consequence of the operation of s 60 of the Bankruptcy Act – such costs, if ordered, are to be personal to the bankrupt and not provable as a debt in the bankruptcy – Council expressly disclaims seeking any order for costs in these proceedings – costs not to be ordered.

Frith v Ku-ring-gai Council [2020] NSWLEC 1588
DEVELOPMENT APPLICATION – Wahroonga heritage conservation area – modification application – whether minimal environmental impacts – front fence and gates.

Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) 2009 – boarding house development – character of the local area – owners consent.

Kovacevic v Maras [2020] NSWLEC 1584
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring tree – whether the tree has damaged the fence – whether the tree is likely to cause damage or injury – implications of proposed development – orders for pruning.

Waverley Council v Ash Samadi and Ors (No 2) [2020] NSWLEC 162
COSTS – indemnity costs basis – sufficiently delinquent conduct – appropriate to fix quantum by percentage and to specific conduct. 

Jeffrey v Canterbury-Bankstown Council [2020] NSWLEC 1581
DEVELOPMENT APPPLICATION – funeral home in R4 zone – proper characterisation – whether mortuary activities prohibited or ancillary – whether provision limiting area of business premises to no more than 100 sqm is a prohibition or development standard – cl 4.6 objection – whether application of the standard is unreasonable or unnecessary – whether the objectives of the standard and of the zone are met.

Franks v Mosman Municipal Council [2020] NSWLEC 1577
DEVELOPMENT APPLICATION – alterations and additions to dwelling house – clause 4.6 variation to floor space ratio – streetscape impacts.

Warnervale Employment Zone Pty Ltd v Central Coast Council [2020] NSWLEC 1571
DEVELOPMENT APPLICATION – vehicle hire or sales premises – legal status of applicants – whether application is a “sham” – whether satisfaction under SEPP 55 as to potentially contaminated land – whether arrangements for the disposal and management of sewage satisfy cl 7.9 Wyong Local Environmental Plan – whether sufficient information about number and nature of vehicle movements – whether access from a classified road (Pacific Highway) is appropriate – whether there is sufficient information to grant the application.

Queensland

Body Corporate For Roydon Community Titles Scheme 1487 & Anor v Cairns Regional Council & Anor [2020] QPEC 60
PLANNING AND ENVIRONMENT – Appeal against approval of a development permit for a material change of use of premises for an indoor sport and recreation use of an F45 gym – impact assessable development under planning scheme – whether inconsistent with scheme benchmarks – whether the proposal will meet an existing community, economic and planning need – whether unacceptable impacts on acoustic amenity – whether unacceptable traffic and parking management – where noise management plan not before the court – development application refused. Acts Interpretation Act 1954 Qld s 14A.
Planning and Environment Court Act 2016 Qld ss 5(2), 45, 60.

Wilhelm v Logan City Council & Ors [2020] QCA 273
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the planning scheme set out a number of “centre activities” – where the planning scheme also established a hierarchy of centres – where “centre” is not defined – where the proposed development consisted of three uses that fell within “centre activities” – where the primary judge found that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre – where the proposed development was of a small scale – whether the proposed development was for a new centre under the planning scheme.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the proposed site was of an urban character – where the anticipated noise, light and activity of the use of the development was inconsistent with the character of the Rural residential zone, but not with the urban character of the site – where the proposed development did not seek approval for any of the uses anticipated in the Overall Outcomes for the precinct in the Rural residential zone in which the site is situated – whether, as a matter of interpretation of the planning scheme, the uses that were not mentioned in the Overall Outcomes for the Rural residential zone were expressly discouraged in that zone.
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the primary judge was satisfied that there was a community and economic need for the Service station and a planning need for the Service station – where the primary judge was satisfied that the development would not adversely affect existing or planned centres – where impact assessment under s 45(5) Planning Act 2016 (Qld) is one assessment that is carried out against the mandatory benchmarks under paragraph (a) and may be carried out having regard to any other relevant matter that is permitted for the purpose of the assessment under paragraph (b) – whether the primary judge erred in exercising the planning discretion under s 60(3) Planning Act 2016 (Qld).

Hampton Irrigators Pty Ltd v Toowoomba Regional Council (No 2) [2020] QSC 345
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the applicant and respondent entered into an agreement for the supply of water – where a dispute arose about which agreement binds the parties and the operation of clause 22 of that agreement – where the respondent gave the applicant notice of a dispute pursuant to the dispute resolution clause – where the applicant applied to the court for directions to determine the issues – where the respondent, relying on the dispute resolution clause of the agreement, seeks an order staying the applicant’s application – where the dispute resolution clause provides for a three-stage dispute resolution process – whether the applicant has met the onus to refuse the stay.

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park near the hospital which was impact assessable – where the planning scheme required development on the subject site to “support non-residential uses that have a close nexus” with the hospital – where the primary judge found that while the proposed car park had a close nexus with the hospital, it would not support a non-residential use that had a close nexus with the hospital – where the primary judge held that there was non-compliance with the planning scheme – where the primary judge took into account that the car park had a close nexus with the hospital – where the primary judge concluded in respect of the decision under s 60(3) of the Planning Act 2016 (Qld) that the balance of factors favoured the approval of the application despite non-compliance with the planning scheme – whether an aspect of non-compliance with the planning scheme can be taken into account as a relevant matter under s 45(5)(b) of the Planning Act 2016 (Qld) in the assessment of the development application.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park on a site near the hospital which was impact assessable – where the relevant Acceptable Outcome under the planning scheme set a limit of three storeys or 10.5m in height for the site – where the height of the proposed development was six storeys and 19.25m – where the primary judge found that a car park of six storeys was not beyond community expectations which therefore complied with the Performance Outcome to which the Acceptable Outcome corresponded – where the primary judge found that there was an economic need and community need for the car park – whether, after accepting that the car park was not beyond community expectations and there was need for the car park, the primary judge had to consider if there was a need for the proposed development at the specific site.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park near the hospital which was impact assessable – where the applicants were the long term developers for the priority development area that included the hospital and a number of car parks both existing and proposed – where the car parks operated by the applicants contributed significant funds to the charitable hospital foundation – where the applicants were concerned about the viability of the ongoing development of the priority development area and the revenue to the charity – where the primary judge found that the height of the proposed development was within community expectations – whether the expectations of the applicants as “significant stakeholders” should have been taken into account when assessing community expectations
Acts Interpretation Act 1954 Qld s 14D – Planning Act 2016 Qld s 3, s 5, s 43, s 44, s 45, s 59, s 60 – Planning and Environment Court Act 2016 Qld s 43, s 46, s 63.

Legislation

Electoral Amendment (Territory Representation) Bill 2020
Senate 03 December 2020 – The Electoral Amendment (Territory Representation) Bill 2020 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) to provide more equitable representation, through changes to the method for determining the number of House of Representatives members for the Northern Territory and the Australian Capital Territory.

Recycling and Waste Reduction Bill 2020
Senate 03 December 2020 – Introduced with the Recycling and Waste Reduction (Consequential and Transitional Provisions) Bill 2020, Recycling and Waste Reduction Charges (General) Bill 2020, Recycling and Waste Reduction Charges (Customs) Bill 2020 and Recycling and Waste Reduction Charges (Excise) Bill 2020, the bill establishes a framework to: regulate the export of waste materials, in line with the agreement to ban the export of waste plastic, paper, glass and tyres by the Council of Australian Governments in 2020; manage the environmental, health and safety impacts of products, in particular those impacts associated with the disposal of products; and provide for voluntary, co-regulatory and mandatory product stewardship schemes.

Native Title Amendment (Infrastructure and Public Facilities) Bill 2020
Finally passed both Houses 03 December 2020 – Amends the Native Title Act 1993 to extend the operation of Subdivision JA, which requires native title holders and claimants to be notified about proposed public works and provides them with an opportunity to be consulted about the impact of the proposed future act on their native title rights and interests, for a further 10 years.

Victoria

Acts

No 3 Building and Environment Protection Legislation Amendment Act 2020 (Vic)
Date of commencement: 1 December 2020
Sections 20 – 21, 23, 31-35, 37-38, 40, of this Act came in by forced commencement on 1 December 2020 s. 2(3).

Part 4 – Amendment of the Environment Protection Amendment Act – Notice of applications for development licences to be published and Amendment of permission on initiative of Authority or council.

No 36 Emergency Management Legislation Amendment Act 2018 (Vic)
Date of commencement: 1 December 2020
Sections 58 – 83 of this Act came in by forced commencement on 1 December 2020 s. 2(3).

No 19 Great Ocean Road and Environs Protection Act 2020 (Vic)
Date of commencement: 1 December 2020
Parts 1 – 11 of this Act came in by forced commencement on 1 December 2020 s. 2(2).

NSW

Bills reminder
Statute Law (Miscellaneous Provisions) Bill 2020
1.15 Electoral Funding Act 2018 No 20 Schedule 2 Savings, transitional and other provisions – Schedule – Part 4 Provision consequent on postponement of September 2020 local government elections – postponed local government elections to avoid doubt, for the purposes of sections 28 and 31A of this Act, the local government elections to be held on 4 September 2021 are taken to be ordinary.

Proclamations commencing Acts
Electoral Funding (Adjustable Amounts) (Administrative and New Party Policy Development Funding) Notice 2020 (2020-701) – published LW 4 December 2020 – for the purposes of Schedule 1, clause 5(6) of the Act, the adjustable amounts that are to apply for a calendar year set out in Schedule 1 are the amounts specified in the Schedule. Fees effective from 01 January 2020.

Regulations and other miscellaneous instruments
Electoral Funding (Adjustable Amounts) (Administrative and New Party Policy Development Funding) Notice 2020 (2020-701) – published LW 4 December 2020 – for the purposes of Schedule 1, clause 5(6) of the Act, the adjustable amounts that are to apply for a calendar year set out in Schedule 1 are the amounts specified in the Schedule. Fees effective from 01 January 2020.
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Amendment (Certification) Regulation 2020 (2020-686) – published LW 27 November 2020
Liquor Amendment (Liquor Licence Freeze) Regulation 2020 (2020-687) – published LW 27 November 2020

Environmental Planning Instruments
State Environmental Planning Policy (Koala Habitat Protection) 2020 (2020-698) – published LW 30 November 2020
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Dining) 2020 (2020-696) – published LW 27 November 2020

Bills assented to
Bushfires Legislation Amendment Act 2020 No 37 – Assented to 25 November 2020
National Parks and Wildlife Legislation Amendment (Reservations) Act 2020 No 38 – Assented to 25 November 2020
For the full text of Bills, and details on the passage of Bills, see Bills.

Queensland

Bills
COVID-19 Emergency Response and Other Legislation Amendment Bill 2020
Introduced by: Hon S Fentiman MP on 26/11/2020
Stage reached: 2nd reading adjourned on 1/12/2020
The objectives of the Bill include:

  • amend the Electoral Act 1992(Electoral Act) to provide flexibility, if required, to facilitate the holding of a by-election in a way that helps minimise serious risks to the health and safety of persons caused by the COVID-19 public health emergency;
  • amend the process for filling a vacancy in the office of a mayor or councillor that arises during the period starting on a quadrennial election and ending on the day before the first anniversary of the election.

Acts Commencement

Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and perceived integrity and public accountability of State elections and ensure public confidence in State electoral and political processes.
Commencement: (1)Chapter 2 commences as follows – Chapter 2 commences as follows – (b)section 22, to the extent it inserts new part 11, division 5, commences on 1 January 2022.

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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