Off-the-plan apartment pain as property prices fall
Off-the-plan apartment buyers are being hit with the double-whammy of tougher home loan rules and falling property prices, leaving many struggling to complete their purchases (3 October 2018). More...
Affordable home-ownership scheme offers a pathway out of social housing
Social housing is in crisis in Australia, with almost 200,000 people on waiting lists. Social housing made up 8% of all housing stock in Australia in 1966. This had fallen to just 4.3% at July 2016. As a result, governments have tightened eligibility (3 October 2018). More...
Extensive land clearing in Barrier Reef catchment revealed in Government climate report
New data released in the Government's quarterly emissions update reveals land clearing in the Great Barrier Reef catchment was at its second highest in a decade during the year to June 2017 (29 September 2018). More...
Industry moves on labelling and recycling targets
The new labelling system developed by Planet Ark, PREP Design and the Australian Packaging Covenant Organisation (APCO) provides easy-to-understand recycling information when we need it most – in those few seconds when Australians are deciding which bin to use (26 September 2018). More...
A new planning Framework for Fisherman’s Bend has been released
The Framework has been designed to meet the needs of the new vibrant neighbourhood in Fishermans Bend. Under the new Framework it will be a low carbon, climate resilient community, with world-leading sustainability initiatives. To view the Framework and planning controls, click here (5 October 2018). More...
Height restrictions for developers at urban renewal zone in inner-Melbourne
Developers at Fishermans Bend say they have been given six weeks to re-submit plans worth billions of dollars, after "radical" changes to height restrictions were introduced by the Victorian Government (5 October 2018). More...
On why Victoria is picking sustainability as a vote winner and why others should pay attention
Sustainability Victoria is bracing for a busy 2019 with a raft of programs to manage on behalf of the state government. Queensland is another state that’s clearly picked renewables as a vote winner, committing to 50 per cent renewables by 2030 and a government-owned company called CleanCo to oversee Queensland’s renewable energy (4 October 2018). More...
Critical works reduce bushfire risk in north-east Victoria
Firefighter access to some of the region’s most fire prone areas of public land is being improved through the Victorian Government’s $272.3 million Reducing Bushfire Risk program (1 October 2018). More...
PCA: Victorian Government to support greater housing choice
The Victorian Government’s measures to support a new Build-to-Rent asset class will see apartments with longer lease terms and access to more amenities on the market in two years that simply would never have been built without these measures. The announcement has been made following a focused campaign of advocacy from the Property Council of Australia (27 September 2018). More...
Wellington finds 112 buildings with flammable cladding
Wellington City Council has identified 112 buildings featuring flammable cladding similar to the material that contributed to London’s devastating Grenfell Tower blaze (24 September 2018). More...
New South Wales
Funding to support local infrastructure for 25000 new homes in NSW
The NSW Government is investing more than $10 million to help local councils deliver more than $165 million worth of essential infrastructure to support growing communities across metropolitan and regional NSW (5 October 2018). More...
New seniors housing planning rules to benefit all
The NSW Government has responded to community concerns about the incremental creep of seniors' housing developments in rural and semi-rural areas, including Terrey Hills and Dural, by amending the policy governing such developments (3 October 2018). More...
Conservation landholders earn millions
Wagga Wagga is one of 7 regions that will soon be participating in a program that has already converted some 11,000 hectares of private land into conservation areas (3 October 2018). More...
Dodgy certifiers on notice with new laws
Conflicts of interest between building certifiers and developers will be stamped out by tougher regulations being proposed in NSW. Minister for Better Regulation Matt Kean said an options paper is being released which sets out new ways of improving transparency around the appointment of certifiers (2 October 2018). More...
Koalas get 2000 hectares of safety
Nearly 2000 hectares will be added to NSW's conservation estate to fulfil its pledge to protect the longer-term future of the State's iconic koala population (1 October 2018). More...
More red tape cut for rural and regional NSW through Inland Code
Approvals for new homes, home renovations and farm buildings will be made easier and faster for property owners and farmers in regional NSW through the new Inland Code (28 September 2018). More...
Planning controls not keeping pace with online holiday rentals
Australia needs new planning tools to manage the rapid growth in listings on Airbnb and other online holiday rental platforms, according to a new study by researchers at The University of Sydney. The study found that in some areas of coastal Australia online listings of holiday lets far exceed existing tourism accommodation (26 September 2018). More...
$39 million road upgrade in North West Sydney is just the beginning
A revised North West Special Infrastructure Contribution (SIC) will deliver $1.5 billion for infrastructure in Sydney’s north-west over the next 30 years. The revised SIC ensures strategic delivery of infrastructure as development takes place and ensures developers and land-owners contribute their fair share (26 September 2018). More...
New University for Aerotropolis
The NSW Government has announced that four of NSW’s leading universities are joining forces to create a world class university in the new Western Sydney Aerotropolis. It is expected that Stage One of the new university will open by 2026, at the same time the new airport is expected to be operational (21 September 2018). More...
Palaszczuk Government’s solar interest free loans roll out in Cairns
Cairns families are being urged to take advantage of tropical North Queensland’s sunny climate by applying for an interest free loan of up to $4500 from the Palaszczuk Government to help purchase a new solar system (3 October 2018). More...
New solar farm guidelines bring community, industry certainty
New guidelines will help communities have their say in the next phase of Queensland’s solar farm boom. For industry, these guidelines provide a one-stop-shop guide on navigating government development approvals, expectations about best practice to engage the local community, location guidance and the legal framework which governs solar farm developments (27 September 2018). More...
Landmark trees to make way for new casino bridge
Four big trees will be removed at South Bank to make way for the new Neville Bonner Bridge. There will also be a major reshaping of the Cultural Centre forecourt near the Wheel of Brisbane. It is unclear whether the public would have any way to make comment on the proposal and its possible impact on the South Bank Parklands (25 September 2018). More...
Victoria Bridge goes 'green' in new plan for separated cycleway
The plan to convert one lane of Victoria Bridge into a two-way pedestrian and bike lane was a "massive win" for Brisbane cyclists, an interest group says. The new design reduces the number of metro and bus lanes from four to three, allocating space for a "green" bridge to improve cyclist access into the city from South Bank (25 September 2018). More...
NABERS Annual Report 2017-2018
The 2017-18 financial year saw NABERS certify record-levels of shopping centres throughout Australia, and increase their NABERS Indoor Environment ratings in offices by 32%. The year also witnessed the debut of NABERS for Public Hospitals which certified 274 hospitals within a year of its launch, making it the fastest uptake of any new NABERS tool to date (3 October 2018). More...
New South Wales
Changes to Seniors Housing SEPP
The Seniors Housing SEPP has been amended to limit the incremental expansion of land for seniors housing through the site compatibility certificates (SCC) process. The purpose of SCCs is to ensure development proposals are broadly compatible with surrounding land uses before a development application is lodged.
Land and Environment Court news
The Chief Judge is pleased to announce the appointment of a new Commissioner to the Court. Mr Timothy Horton has been appointed a Commissioner of the Court from 5 November 2018 for a period of seven years (27 September 2018). More...
Dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. While most of the changes commenced on 1 March 2018, there will be a number of other changes that will involve further design and consultation from mid to late 2018.
NSW water metering framework
The NSW Government is committed to implementing a robust new metering framework to measure and meter water take in NSW. The new framework is a commitment under the NSW Government’s Water Reform Action Plan. The regulation will commence on 1 December 2018.
Urban Design for Regional NSW Draft Guide Closes 31/10/2018
Proposed amendments for short-term rental accommodation Closes 16/11/2018
A Practitioner’s Guide to Victorian Planning Schemes (Version 1.0)
A Practitioner’s Guide to Victorian Planning Schemes (Version 1.0) is now ready to use. The guide has been designed to help practitioners in the day to day formulation and drafting of planning scheme provisions (4 October 2018).
Introducing the Amendments Register
Finding amendments has never been easier. The Smart Planning team have implemented an Amendments Register on the portal so you can find an amendment and see how it is progressing (27 September 2018).
City of Melbourne: Draft Climate Change Mitigation Strategy to 2050
The strategy sets out our commitment to science-based targets in the Paris Climate Agreement and we call on the community to have their say on how we can take collective action on climate change. Opinions, ideas, and feedback could be submitted via Participate Melbourne and closed on 14 October 2018.
Prohibited Donor Legislation Declared
Legislation banning political donations from ‘property developers’ in Queensland came into effect on 2 October 2018. However, the prohibition has retrospective effect from 12 October 2017. The Electoral Commission Queenland (ECQ) has released a number of factsheets outlining information on the definitions that will be used to determine prohibited donors. The application process for individuals and entities to seek a determination from the Electoral Commission in relation to their status is also now open (4 October 2018).
Queensland Solar Farm Guidelines
Solar projects should be developed in harmony with other land uses, take into account the interests of all stakeholders and be supported by the community. The Queensland Solar Farm Guidelines: Practical guidance for communities, landowners and project proponents educates local communities and project developers about best practice at each stage of the project development cycle. It provides guidance about development assessment and approvals, as well as the community engagement process (27 September 2018). More...
DNRME: Review of accepted development vegetation clearing codes: consultation
Have your say on the revised draft codes for necessary environmental clearing, managing encroaching and managing weeds. Submissions close on 19 November 2018. More...
PBJ Blackburn Road Pty Ltd v Yarra Valley Water  VCAT 1530
Review of the imposition of water and sewerage service charges to a property.
The application for review is allowed. VCAT declines to make any declaration under s 305A of the Water Act 1989.
Kavellaris v Stonnington CC  VCAT 1522
Stonnington Planning Scheme - Construct buildings and works for an underground car stacker in Special Building Overlay - VicSmart Application requirements - Melbourne Water Guidelines for Development in Floodprone Areas (2003) and Planning Practice Note 11 – Applying for a Planning Permit under the Flood Provisions.
Nolan v Kingston CC  VCAT 1512
Section 82 Planning and Environment Act 1987 – Public Park & Recreation Zone – Road Zone Category 1 – Design & Development Overlay Schedule 1 – removal of native vegetation – alteration to access to Beach Road – safety in relation to cyclists.
Braybon v Owners Corporation 317860 (Owners Corporations)  VCAT 1505
Subdivision Act 1988 – s 12(2) – whether implied easement exists for air-conditioning unit sought to be installed on common property.
Kong v Monash CC  VCAT 1462
Monash Planning Scheme - Monash Housing Strategy 2014 - Student accommodation in a preferred location - Neighbourhood character outcomes in the Clayton Activity Centre - internal amenity for student accommodation - car parking for student accommodation.
New South Wales
Oboodi v Hornsby Shire Council  NSWLEC 1512
MODIFICATION APPLICATION - Layout and detailed design of driveway crossover and modification of part of the approved driveway - impact of the driveway construction on trees in the road reserve identified as a heritage item - access requirements of the Rural Fire Service - no issues pressed by the respondent following the amendment of the application - no power to impose a new condition on an aspect of the development which is unaffected by the modification sought in the application.
Turland v Wingercarribee Shire Council  NSWLEC 1511
DEVELOPMENT APPLICATION - Construction of a three storey residential flat building over a basement - exceedance of the height of buildings development standard in the Wingecarribee Local Environmental Plan 2010 - high flood hazard affected land - no issues pressed by the respondent following the amendment of the application - whether conditions should be imposed on the development consent as deferred commencement conditions.
One Funds Management Ltd ATF Kingsgrove Property Trust v Georges River Council  NSWLEC 1508
DEVELOPMENT APPLICATION - Appeal of refusal of consent - alterations to existing industrial unit to provide new dock and loading - tree removal - streetscape impact - impacts balanced against aim to maximise functional industrial space - appeal refused.
ZGWH Holdings Pty Limited v Sydney Metro (ABN 12 354 063 515)  NSWLEC 154
CIVIL PROCEDURE - Application by applicant to vacate hearing dates – claim formulated on a basis now found to be unsound – experts ought have identified that error earlier – inadequate time to now reframe its case in time for hearing – costs orders against applicant. The proceedings are stood over to the Land Valuation and Compensation List on 12 October 2018.
PSEC Project Services Pty Ltd v Kiama Municipal Council  NSWLEC 1501
APPEAL – Development application – residential flat building – consent orders – objections raised by residents – height, bulk and scale – streetscape – amenity and safety – overshadowing – view loss – car parking – capacity of laneway.
Young v King (No 13)  NSWLEC 150
COSTS - Application by successful Respondents for special and/or personal costs orders against the legal representatives of the unsuccessful Applicant – principles to be applied – behaviour of the lawyers and their conduct of the proceedings – indemnity costs order already made.
Gungor v Canterbury-Bankstown Council  NSWLEC 1500
DEVELOPMENT APPLICATION - Ashbury Heritage Conservation Area – dual occupancy – respecting traditional character of Ashbury while facilitating healthy renewal – significance of localised erosion of heritage character.
Balnaves Foundation Pty Ltd v Minister for Planning  NSWLEC 152
JUDICIAL REVIEW - Whether an extension of time within which to commence judicial review proceedings was required – applicant seeking to set aside condition of consent – extension of time to commence proceedings required – applicant was two years out of time – reason for delay was due to the applicant misguidedly seeking to resolve dispute by a Class 1 appeal – no evidence of intentional delay of use of Class 1 proceedings to circumvent time limit within which to commence judicial review proceedings – no prejudice to parties – application not opposed – public interest demonstrated – fairly arguable case – finely balanced but time extended – applicant to pay respondents’ costs.
Gillion Pty Ltd v Scenic Rim Regional Council  QPEC 47
PLANNING AND ENVIRONMENT – APPLICANT APPEAL – Against council’s refusal of an application for a material change of use to facilitate the defined use “Commercial Groundwater Extraction” on land – where development involves extraction of groundwater from a “sweet spot” – where the proposed development is not a consistent use - whether there is tension between applying the planning scheme and the public interest because it fails to anticipate the need for the use in the public interest that amount to an exceptional case – whether there are grounds of economic need, community need, planning need or other public benefit to fire fighting or charitable supply - whether there is sufficient grounds of to justify conflict with the planning scheme.
Perivall Pty Ltd v Rockhampton Regional Council  QPEC 46
PLANNING AND ENVIRONMENT – APPEAL – PRELIMINARY DETERMINATION OF SEPARATE QUESTION – Where the appellant filed an appeal against Council’s decision to approve a development application for an extractive industry use – where the appellant sought determination, at a preliminary stage of the proceeding, of issues with respect to the validity of the development application and public notification – whether the relief sought by the appellant was sought in the wrong proceeding – whether the existing extractive industry use on the subject land is an existing lawful use – whether the development application was properly made having regard to the extent of any existing lawful use rights and the description in the development application – whether the development application has lapsed – whether the public notification was misleading.
Gold Coast City Council v Adrian's Metal Management Pty Ltd  QPEC 45
DECLARATIONS AND ORDERS – Where the local authority sought declaratory relief and other orders against the respondents – where first respondent was a company carrying out alleged unlawful works on subject land – where second respondent was the sole director of the first respondent – where third respondent was the owner of the subject land – where primary use of subject land involved the dismantling and crushing of car bodies for scrap metal purposes – where other scrap metal activities also carried out – where current use extended over two separate parcels of land.
WHERE ALLEGED USE OF THE LAND WAS UNLAWFUL – Where respondents sought to rely on a development permit issued in 2001 in respect to only one of the lots – where no relevant development approval or permission had been granted in respect of the other lot – where originally scrap metal/junk yard uses were contained to one lot – where other lot historically used for sand blasting purposes – where intensification of the operations being conducted on the land expanded into second lot without necessary approvals in place.
WHETHER THE 2001 DEVELOPMENT APPROVAL AUTHORISED THE RESPONDENTS’ USE OF THE LAND OVER BOTH LOTS – Whether an alternative respondents enjoyed the benefit of historical existing lawful user rights.
WHETHER OPERATIONS BEING CONDUCTED IN BREACH OF THE 2001 DEVELOPMENT APPROVAL – Where the noise emanating from the land amounted to an environmental nuisance for the purposes of the Environmental Protection Act 1997 – where primary source of noise was caused by the use of an excavator – where use of excavator an integral part of respondents’ operations being conducted on the subject land – where subject land located in an industrial estate but where recipients of noise were residents of a nearby group title residential development.
WHETHER DECLARATIONS OUGHT BE MADE – Concerning the validity and/or currency of the 2001 Development Permit – whether in the event that it was found that the use being made of the land was unlawful and the use of the land was creating an environmental nuisance the use of the land ought be ordered to be ceased.
WHETHER DISCRETIONARY GROUNDS MILITATED AGAINST GRANTING THE RELIEF SOUGHT – Where operations being conducted on the land were achieving material environmental benefits – where operations being conducted on the land employed an excess of 40 employees – where current operations on the land had been in existence for a number of years – whether the local government was estopped from seeking relief sought.
JOINDER – Whether another director of first and third respondent ought be joined to the proceedings – where primary purpose of joinder was a concern that the existing corporate entities would be dissolved but the operations on the land continued but under new corporate names.
New South Wales
Environmental Planning Instruments
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment 2018 (2018-570) — published LW 2 October 2018
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Inland Code) 2018 (2018-569) — published LW 28 September 2018
Bills introduced Government – 28 September 2018
National Park Estate (Reservations) Bill 2018
Bills passed by both Houses of Parliament – 28 September 2018
Impounding Amendment (Shared Bicycles and Other Devices) Bill 2018
Western City and Aerotropolis Authority Bill 2018
For the full text of Bills, and details on the passage of Bills, see here.
Joseph Monaghan, Partner
T: +61 3 9321 9857
Breellen Warry, Partner
T: +61 2 8083 0420
Peter Holt, Special Counsel
T: +61 2 8083 0421
Gerard Timbs, Partner
T: +61 7 3135 0644
Jenny Humphris, Partner
T: +61 7 3135 0690
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.