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Inside track: Property & Real Estate

15 June 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Foreign investors still keen on Australian commercial property: Dexus
Foreign investment in the commercial real estate sector has dipped significantly during the COVID-19 pandemic but it’s not necessarily for lack of interest, according to industry experts (04 June 2020).  More...

PCA: Homebuilder stimulus package to switch on sentiment and save jobs
Mr Morrison called on state and territory governments to get behind the program by adding further incentives to bring projects forward and support jobs. It will be important for state and territory governments to make sure their titles, planning and building approvals systems are ready to facilitate the new construction activity this scheme will help generate (04 June 2020).  More...

UDIA: Housing and construction stimulus package a plus
The Commonwealth Government’s $25,000 HomeBuilder stimulus package for the housing and construction sector is modelled around the First Home Owners Deposit Gap Scheme it launched in January this year with the same income caps for singles and couples but applied to all home buyers (04 June 2020).  More...

Federal government offers $25,000 home builder grants to support construction sector
The federal government has launched a $688 million HomeBuilder grants scheme it says will keep 140,000 jobs in the construction industry through the recession (04 June 2020).  More...

REIA welcomes Federal Government housing stimulus package
The Real Estate Institute of Australia has welcomed the Government’s announcement of the ‘HomeBuilder’ package to support the residential building sector by providing assistance to owner occupiers to build new. (04 June 2020).  More...

Housing affordability improves marginally in the March quarter
The REIA Housing Affordability Report is out for the March quarter and shows a marginal improvement across the country to housing affordability. The proportion of income required to meet loan (03 June 2020).  More...

Building tomorrow’s homes for the post-COVID economy
The ASBEC has called on Australian governments to build better homes and help Australia’s post-COVID economy. Tomorrow’s Homes, a new platform released, explains that with Australia’s population forecast to reach 41 million people by 2050, we’ll need to build up to 197,000 homes each year (26 May 2020).  More...

Victoria

Property industry to lead Victorian economic recovery
The Property Council of Australia (Victoria) has revealed its plan to help secure Victoria’s long-term prosperity following the COVID-19 pandemic. The plan could see $24.4 billion worth of economic activity injected into the economy. With thousands of jobs at risk from the COVID-19 crisis, the proposal would create or protect as many as 315,000 jobs (05 June 2020).  More...

Vicinity Centres reveals billion-dollar Box Hill precinct plans
Vicinity Centres hopes to build a billion-dollar precinct over two large land holdings in Box Hill including an office tower, hotel, new town square and 1,900 apartments (02 June 2020).  More...

Building recovery taskforce continues fast tracking
The Victorian Government has fast tracked more than $1.2 billion worth of building and development projects as part of its ongoing work to kickstart Victoria’s economy and create thousands of jobs. The Taskforce is calling for submissions of priority projects of state and regional significance that could be considered for development assistance, including those that may be awaiting a decision at VCAT (25 May 2020).  More...

NSW

HomeBuilder package to drive jobs in NSW
Planning and Public Spaces Minister Rob Stokes has welcomed the Commonwealth’s new HomeBuilder package of $25,000 grants for those looking to build or renovate their home (04 June 2020).  More...

Applications open for 14 million Crown reserves improvement fund
Crown land managers and community groups that use Crown land are invited to apply for a share of $14 million in grants to upgrade and maintain community facilities and reserves across NSW (04 June 2020).  More...

NSW Government delivers historic building reforms to restore industry confidence
The NSW Government has passed the Design and Building Practitioners Bill 2019, putting consumers first by giving those entering the property market peace of mind that their home will be expertly designed and built in compliance with the Australian Building Codes (03 June 2020).  More...

Queensland

COVID Safe plans mean more customers for Qld businesses
From 5 June 2020, more Queenslanders can be in pubs, restaurants, surf clubs and RSLs, cafes, gyms, campgrounds and hotels thanks to the approval of COVID Safe Industry Plans (05 June 2020).  More...

The 'missing middle' of housing design a future option for Brisbane
Architecture students at QUT have designed innovative small - but not tiny - homes in a challenge to traditional design thinking (05 June 2020).  More...

Sunland offloads $30m Gold Coast site
ASX-listed developer Sunland Group has offloaded the undeveloped portion of a Gold Coast masterplanned estate to over-50s resort developer Gemlife for more than $29 million (04 June 2020).  More...

Queensland infrastructure project a leader in sustainability
The Logan Enhancement Project has been awarded the first Leading rating in Queensland by the ISCA. The rating is the first and only national sustainability rating tool for infrastructure, measuring sustainability performance across the quadruple bottom line (environmental, social, economic and governance) (29 May 2020).  More...

Queensland commercial leases regulation welcomed by industry
The Property Council has welcomed the announcement that the State Government has passed a regulation under the COVID-19 Emergency Response Act 2020 to enact National Cabinet’s Code of Conduct for commercial leases in Queensland (28 May 2020).  More...

Court approves $900m Sunshine Coast masterplan
The Planning and Environment court has dismissed an appeal against the construction of a $900 million beachfront masterplan and 5 star hotel development on the Sunshine Coast, following a two year legal battle (27 May 2020).  More...

Queensland land sales jump 24 per cent
Queensland land markets showed resilience in the face of Covid-19 with sales surging by 24 per cent during the March quarter (26 May 2020).  More...

While Kingscliff provides the lifestyle to new residents, Chinderah has the industrial space
Proponents of a new industrial development near the NSW–Queensland border say the area has significant potential for interstate residents now comfortable working from home (25 May 2020).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
02/06/2020 Building Approvals, Australia, Apr 2020 (cat no. 8731.0).

In practice and courts

Commonwealth

Australian Institute for Disaster Resilience handbook 2020
This handbook is intended to guide and assist stakeholders (including developers and the public) to build capability in and understanding of land use planning’s role in natural hazard risk management.  More...

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). 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.

Announcements, Draft Policies and Plans released 2020

NSW

NSW Registrar General Reminder: Cooling off warning notices from 2 June 2020
From 2 June 2020, all residential contracts for sale (whether for off-the-plan or established properties) will need to use the new form of warning notice relating to cooling off rights to comply with vendor disclosure requirements.
The Law Society of NSW has updated the standard form Contract for Sale of Land to include the new form of warning notice, which is prescribed by Schedule 5, Form 1 of the Conveyancing Sale of Land Regulation 2017. Practitioners should ensure draft contracts are updated to comply with the new warning notice requirement.
For more information about changes to off-the-plan contracts, please see our off-the-plan page. Note: Updated on 26 May 2020 to confirm transitional period ends on 1 June 2020.  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 payments from the end of March for six months until 30 September 2020, to provide cash flow relief to businesses.  More...

Queensland

Brisbane Airport Corporation: Projects and planning
Brisbane Airport Corporation has invested a further $1.8 billion worth of infrastructure to be delivered between now and 2022. Projects to be delivered include Brisbane's New Runway, the Auto Mall development and Terminal redevelopments. Explore airport plans, major projects and development information below (May 2020).

Is your business eligible for a Temporary Use License
The Queensland Government have published a fact sheet to help businesses understand if they may be eligible for a Temporary Use License (TUL) due to COVID-19. Businesses may need to alter operating arrangements due to COVID-19. A TUL makes a change of operation lawful despite the conditions stated in a development approval or other statutory document. To see whether your business may be eligible for a TUL, please click here (27 May 2020).

PCA: Justice and Other Legislation (COVID-19 Emergency Response) Amendment Bill 2020
The Bill has been passed by parliament, the amendments within this Bill that affect the property industry include:
A range of amendments to the Body Corporate and Community Management Act 1997 that provide for the temporary reduction or deferment of rent from lot owners suffering economic hardship.
Temporary regulation that provides for the ability to enable the modification or suspension of processes for increasing or reducing site rent as well as the processes for disputing a proposed increase in site rent during the COVID-19 emergency period (Manufactured Homes (Residential Parks) Act 2003).  More...

COVID-19 Update on Courts, Commissions, Tribunals, Property law
QLS will provide up to date information on our website regarding the evolving COVID-19 situation and the response of the Courts, Commissions, and Tribunals in Queensland.
Further key updates on information specifically relating to property law, can also be found on the QLS website. Updated 28 June 2020:

Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020
The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 was made and notified on 28 May 2020. The Explanatory Notes are available here.
The purpose of the regulation is to mitigate the effect of COVID-19 and also specifically to give effect to the good faith leasing principles in the ‘National Cabinet mandatory code of conduct—SME commercial leasing principles during COVID-19’. The regulation is intended to provide relief to parties to an “affected lease” by way of a number of measures.  More...

Planning legislation amendment
Urgent amendments to Queensland's planning legislation are now in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19. Temporary use licences updated to 25 May 2020.  More...

Cases

Maguire v Parks Victoria [2020] VSC 303
JUDICIAL REVIEW – standing – whether plaintiff has standing to challenge decision on basis of lack of public consultation – where plaintiff asserts that he would participate in public consultation – Plaintiff does not have a special interest – Plaintiff does not have standing – Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, applied – Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, applied
JUDICIAL REVIEW – whether statement of obligations imposed an obligation on defendant to publicly consult – where statement of obligations required defendant to undertake timely and inclusive engagement – where it is a question of fact for defendant to determine nature of engagement – Defendant was not required to consult – Parks Victoria Act 2018, s 31 – Statement of Obligations (27 October 2018), cls 4.1, 6.1, 6.2, 9.2.1
LEGISLATION – whether management plan is an ‘enactment’ – whether management plan is a ‘subordinate instrument’ – where management plan is an instrument made under an Act – whether management plan contains rules – where management plan merely refers to permissions conferred by other instruments – where management plan is predominantly a strategy document – management plan is not a subordinate instrument nor an enactment – Interpretation of Legislation Act 1984, s 38 – MyEnvironment Inc v VicForests [2013] VSCA 356; (2013) 42 VR 456, distinguished.

White v Woodward [2020] VSC 258
PROPERTY – Contract of sale of land – whether defendant/vendor a party to the contract alleged by plaintiff/purchaser – whether vendor’s signature genuine – whether purchaser has paid purchase price as alleged – whether purchaser entitled to specific performance.

Auastralian Education City v Victorian Planning Authority [2020] VSC 177
JUDICIAL REVIEW – application by the defendants for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) – Plaintiff challenged a decision of a Committee of Cabinet to terminate a tender process for the development of a new residential, educational and employment hub on State owned land – whether the plaintiff’s claim has any real prospects of success – nature and subject matter of decision means that the decision is not justiciable – Minister for Arts, Heritage and Environment v Peko Wallsend Ltd (1987) 15 FCR 274 and Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 referred to and applied, FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 distinguished – no other reason for keeping proceeding on foot – application for discovery and the administration of interrogatories refused.

13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – ERROR OF LAW – where in 2003 Pelican Waters Resort Pty Ltd applied to the respondent for a development approval – where the respondent gave approval to a material change of use for the purpose of “a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling” – where the resort was constructed in accordance with approved plans which were attached to the respondent’s decision notice – where the learned primary judge held that the 102 units on levels 2-4 are restricted by the terms of the approval to accommodation on a temporary basis and for travellers – where the applicants apply to this Court for leave to appeal against that decision, contending that the learned primary judge erred in his construction of the approval and the relevant planning instrument – whether the 102 units can be used for accommodation otherwise than on a temporary basis and for travellers, i.e. for permanent residents
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the conditions attached to the approval referred to the 102 units in slightly differing terms – where the approved plans also made reference to the 102 units – where there are various definitions in Section 9.2 of the Planning Scheme which appear to recognise that the use “Hotel” is distinct from the use “Motel” – where the approval referred to the development application as being “to establish a Hotel/Motel (102 suites), Function Rooms, Restaurant and Multiple Dwelling (62 units) …” – whether the phrase “Hotel/Motel (102 suites)” was the way in which the development application itself phrased the intended development – whether the phrase means the Hotel and Motel will be run in conjunction with another – whether that construction was what was sought in the development application, and what was approved
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants placed considerable reliance upon the fact that the use definition of “Hotel” contained no restriction as to the type of accommodation or residential use that might be involved – where the use is defined by reference to premises “specified in a General Licence granted under the Liquor Act” – whether the Liquor Act grants land use rights – whether the Liquor Act operates to authorise uses under the development approval
Liquor Act 1992 Qld s 3, s 3A, Part 4, s 58, s 58A, s 61A.

Scherbakov v Brisbane City Council [2020] QPEC 29
PLANNING LAW – EASEMENT – definition of “premises” – application for declaration that the subject premises excludes the land identified as easement A – application for declaration that development application was properly sought. Acts Interpretation Act 1954 Qld; Building Units and Group Titles Act 1980 Qld; Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld.

Cases to 01 June 2020

Richards & Ors v Brisbane City Council & Ors [2020] QPEC 26
PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of a development application for a childcare centre in the low density residential zone
PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development – whether the proposed development will serve a local community facility need only – whether there are relevant matters which justify the proposed development
Planning Act 2016 Qld s 45; Planning and Environment Court Act 2016 Qld ss 43, 46.

Latimore Pty Ltd v Lloyd [2020] QSC 136
CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – OTHER PARTICULAR CONDITIONS – where a contract for the sale of real property included a special condition requiring the Seller to provide a Pool Safety Certificate to the Buyer “7 days prior to Settlement” – where the Buyer purported to terminate the contract at 5.03 pm on the relevant day, on the basis that the Seller had breached the special condition – where the Seller provided the Certificate at 6.31 pm on the relevant day – where there is a dispute as to the proper construction of the special condition – where the Seller relies upon the principle that where a contract specifies a date by which something is to occur, satisfaction of the obligation can occur at any time on that day – where the Buyer contends the general notice provision of the contract applied to the special condition, so as to require the Certificate to be provided by 5 pm, failing which it would be treated as provided at 9 am the following day – alternatively, whether the time period under the special condition was properly construed as seven consecutive time periods of 24 hours prior to the event of settlement – whether the Buyer was entitled to terminate the contract.

Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2020] QPEC 25
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – submitter appeal against Council’s decision to approve a development application for a mixed use development – where development application sought preliminary approval for material change of use (request to change the effect of planning instruments) – where the development application sought development permits for reconfiguration of a lot and for material change of use – whether proposed development complies with relevant assessment benchmarks – whether proposed mix of land uses achieves the Planning Scheme’s intention for a tourism focus area – whether the proposed development would involve inappropriate commercial development
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where there are no unacceptable impacts in relation to setbacks, overshadowing, overlooking, overbearing or site cover – whether the proposed development is appropriately designed – whether there is an overdevelopment of the subject land reflected in the scale, height and intensity of the proposed development – whether development was of a bulk and scale compatible with the built form intent of the Emerging community zone code – whether the proposed development will have unacceptable impacts on the character and amenity of the area – whether development sensitively transitions to local setting and enhances the character of the area – whether the proposed development accords with reasonable community expectations
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where the proposed development is proximate a nesting beach for loggerhead turtles – whether the proposed development poses an unacceptable risk to the loggerhead turtle – whether the purpose of the Planning Act 2016 is achieved with respect to the risk to the loggerhead turtle – whether the precautionary principle warrants refusal
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – whether there are relevant matters that support refusal or approval – whether there is an economic, planning or community need for the proposed development – whether there is hotel, residential or retail need for the proposed development – whether the proposed development will provide economic benefits to the locality, region and State – whether the proposed development supports investment in the Sunshine Coast Airport – whether the Hyatt preliminary approval supports approval of the proposed development – whether the locational attributes of the subject land and the design response to it supports approval – whether the proposed development consistent with objectives and planned outcomes in the South East Queensland Regional Plan 2017, the Regional Economic Development Strategy 2013-2033 and the Tourism, Sport and Leisure Industry and Investment Plan 2014-2018 – whether it is within the public interest for the proposed development to be approved
Planning Act 2016 Qld s 45, s 59, s 60, s 85, s 311; Planning and Environment Court Act 2016 Qld s 10, s 43, s 45, s 47; Planning Regulation 2017 Qld s 31.

Craigmoor Pty Ltd v Harvest Investment Co (No 2) Pty Ltd & Anor [2020] QSC 131
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the plaintiff granted an entity related to the second defendant an option for it (or its nominee) to purchase land owned by the plaintiff for $5.25 million – where the second defendant was advised that, to develop the land, telecommunications infrastructure would need to be relocated at a cost of approximately $1 million – where the original option deed was rescinded and the plaintiff granted the first defendant (or its nominee) an option to purchase the land for $4.25 million – where, on the same day that the new option deed was executed, the plaintiff and first defendant executed another deed (the Profit Share Deed), by which the first defendant agreed to pay the plaintiff up to $1 million if, inter alia, it cost less than $1 million to relocate the telecommunications infrastructure – where the first defendant nominated a third party to purchase the land after incurring costs of less than $1 million relocating the telecommunications infrastructure – where a dispute arose as to the liability of the first defendant to the plaintiff under the Profit Share Deed – where the dispute was referred to an expert for determination – where the expert determined the first defendant was liable to pay $1 million to the plaintiff – where the first defendant did not make any payment to the plaintiff pursuant to the expert determination – whether the expert determination was affected by manifest error – whether the first defendant is liable to the plaintiff pursuant to the Profit Share Deed, properly construed.

Hillman & Ors v Australian Securities and Investments Commission & Anor [2020] QSC 129
REAL PROPERTY – TORRENS TITLE – UNREGISTERED INTERESTS – GENERALLY – where applicants purchased property in 1984 from their family company – where formal transfer was not effected – where family company deregistered with ASIC and property vests in Commonwealth of Australia – where no competing interest in property – whether first applicant should be registered as proprietor of the property
Corporations Act 2001 Cth s 601AD; Land Titles Act 1994 Qld s 114.

The Chief Executive, Office of Fair Trading, Department of Justice & Attorney-General v Power [2020] QCAT 159
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Claim Fund under Agents Financial Administration Act 2014 (Qld) – whether reimbursement order should be made – where property agent misused trust funds – where requirements for reimbursement order met – where Tribunal does not have discretion once requirements met
Agents Financial Administration Act 2014 Qld s 64, s 102, s 117, s 118, s 119; Queensland Civil and Administrative Tribunal Rules 2009 Qld r 39.

Legislation

Queensland

Subordinate Legislation as made – 29 May 2020
No 79 Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020
No 81 Disaster Management (Further Extension of Disaster Situation—COVID-19) Regulation (No. 4) 2020

Subordinate Legislation as made – 05 June 2020
No 83 Liquor (Fee Relief) and Other Legislation Amendment Regulation 2020

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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