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Inside track: Local Government

16 June 2020

#Local Government

Published by:

Alex Buck, Madeleine Pitman

Inside track: Local Government

High Court ruling rejects FMG’s appeal over exclusive native title rights of Western Australia’s Yindjibarndi people

Last month, the High Court refused Fortescue Metals Group’s (FMG) application for special leave to appeal a native title determination that covers its Solomon Hub iron ore mine in Western Australia.

FMG challenged the decision of the Federal Court recognising the Yindjibarndi people’s native title rights, including exclusive possession over land in the Pilbara region that includes the Solomon Hub site.

Summary of prior proceedings

The Yindjibarndi Aboriginal Corporation (YAC) – representing around 800 traditional owners – first lodged a formal native title claim in 2003. The Solomon iron ore deposit was discovered by FMG geologists in 2005, and the company has operated the mining site without an indigenous land use agreement after negotiations ended in 2008.

In 2017, the Federal Court of Australia found that the Yindjibarndi people held exclusive rights and interests over more than 2,700 square kilometres of Pilbara land north of Karijini National Park, on which the company operates Solomon Hub[1]. In that decision, Justice Rares highlighted the presence of the Yindjibarndi in the claimed area well before European settlement and the existence of a number of Aboriginal cultural heritage sites near the Solomon Hub. His Honour held that this finding was consistent with a previous Federal Court decision that had granted non-exclusive native title rights and interests to an adjacent area referred to as “Moses Land” [2].

FMG initially accepted the Federal Court’s ruling and maintained that it would not interfere with its mining tenure or future operations at the Solomon Hub. However, after losing an earlier appeal in the Full Court of the Federal Court last year[3], in which the Full Court unanimously decided to uphold the Yindjibarndi people’s native title rights, FMG subsequently sought leave to appeal to the High Court against the judgment.

The High Court refused to allow FMG to appeal and rejected FMG’s submissions that the Federal Court had failed to adequately consider the Yindjibarndi people’s continuity of connection to the land.

What are the implications of the failed bid?

The High Court’s dismissal of the application reinforces the opportunity for the Yindjibarndi people to pursue a compensation claim against FMG for the impact of the mining operations on their native title.

In the landmark Timber Creek decision[4], the High Court ruled that the Ngaliwurru and Nungali native title holders from the remote Northern Territory of Timber Creek were entitled for compensation for loss of rights, including spiritual connection. The final amount settled on by High Court in this case was divided into three components – economic loss, interest and non-economic loss related to “loss of rights to gain spiritual sustenance from the land”.

Following the principles outlined in the Timber Creek decision, the Yindjibarndi people may ultimately apply for economic loss associated with loss of the freehold value of the affected land, as well as compensation for cultural loss or “spiritual harm”.

The recent conclusion to the legal battle between FMG and the Yindjibarndi people highlights possible compensation consequences for resources companies and other proponents, and the relevance of the legal principles established in Timber Creek, which will no doubt be subject to future judicial consideration.

Authors: Jenny Humphris, Alex Buck & Madeleine Pitman

[1] Warrie v Western Australia [2017] FCA 803; 365 ALR 624.
[2] Moses v Western Australia [2007] FCAFC 78.
[3] Fortescue Metals Group v Warrie [2019] FCAFC 177.
[4] Northern Territory of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor [2019] HCA 7 (Timber Creek decision).

In the media

Review to examine equity of disaster recovery funding
Commonwealth-State/Territory Disaster Recovery Funding Arrangements are to be reviewed to ensure that assistance under the program is fair and equitable. The review will examine how each state applies the DRFA and whether the program should be adjusted to deliver more equitable, needs-based, assistance for all Australians, regardless of where they live (05 June 2020).  More...

More funding needed for social infrastructure: AHURI
Councils need more funding to provide parks and open space for apartment residents, the Australian Housing and Urban Research Institute says. Developer contributions and voluntary agreements are too uncertain to ensure good results, according to a new AHURI report (05 June 2020).  More...

Why Melbourne needs its own version of the Greater Sydney Commission
Population growth has outpaced the provision of parkland and social housing. Many households must look to fringe areas to find housing they can afford. Our cities need city-scale government – here's what it should look like (04 June 2020).  More...

Australian councils struggle with huge rise in household rubbish during Covid-19 lockdown
Councils around Australia have seen a huge increase in volumes of household rubbish and dumping of waste triggered by a combination of more online shopping, home improvements, international workers returning to their home countries and a clearing out of unwanted possessions during the coronavirus lockdown (03 June 2020).  More...

$1.5m to investigate benefits of urban green spaces
Researchers will collaborate with urban planners and policy makers to investigate the health benefits of urban green spaces in a project that has won $1.45 million of funding from an international research collaboration (01 June 2020).  More...

Councils sidelined as COAG abolished
Local government is concerned its voice on national decisions will be diminished after Prime Minister Scott Morrison said COAG will be abolished and replaced with the national cabinet (29 June 2020).  More...

Lack of local government involvement in federation reform process a missed opportunity
The Australian Local Government Association (ALGA) says planned national federation reforms announced today are a lost opportunity to drive jobs growth and economic reform at the local level (29 May 2020).  More...

Consortium plans to roll out hydrogen buses
Australia’a largest bus operator has joined with strategic partners to establish the H2OzBus project which aims to deploy hydrogen powered buses into Australia’s public transport network. Depending on what the approvals are for councils and other regulatory requirements the consortium is looking at between 12 and 18 months (25 May 2020).  More...

Victoria

Greening city – 150,000 new plants and trees
The City of Melbourne and the Victorian Government will plant 150,000 trees, shrubs and grasses in an ambitious project to green our city and respond to the COVID-19 pandemic (05 June 2020).  More...

Investing in waste and recycling solutions
The City of Melbourne will invest $1 million to establish two new waste and resource recovery hubs in the CBD to help businesses reduce waste, limit the number of bins in our laneways and encourage recycling (04 June 2020).  More...

Local Projects For Our Fastest Growing Communities
Minister for Local Government Adem Somyurek today announced a major expansion of the Growing Suburbs Fund, with an extra $25 million to bring forward delivery of new facilities and upgrades that improve communities and their access to vital services (04 June 2020).  More...

Each rural council will receive $100,000 to enhance and improve ICT facilities to engage, consult and support their local communities. Councils are encouraged to apply for the Growing Suburbs Fund.  More...

Veterans speak up after historic cypress trees axed at cherished Avenue of Honour
Century-old trees in a heritage-listed Avenue of Honour have been felled as indecision over a replacement species lingers (04 June 2020).  More...

Councils Come On Board To Create Jobs, Keep Communities Safe
The Government has struck new agreements with 15 councils across Victoria to support more than 1,000 people into jobs. More than half of the councils in the state are now on board with Working for Victoria.This tranche of jobs includes a proportion of outdoor maintenance and land management roles, particularly in regional areas (04 June 2020).  More...

Fresh push to increase female representation on local councils
Only 38 per cent of Victorian councillors are women, and the State Government wants to increase that to 50 per cent (02 June 2020).  More...

A Fairer, Simpler Fire Services Property Levy To Keep Us Safe
From July, all residential properties in Victoria will see a fall in their FSPL rate, while all other properties – such as industrial or commercial properties – in the old CFA district will either see no increase, or a decrease in their rate. The fixed levy will be indexed in accordance with the legislation (30 May 2020).  More...

More Time To Get Your Pool Registered
The Victorian Government is extending the deadline for the mandatory registration of private pools and spas due to the impacts of coronavirus. Private pool and spa owners now have until 1 November 2020 to register their pools with their local council – an extension of five months from the original 1 June deadline (26 May 2020).  More...

Councils support COAG call for long-term preschool funding
The MAV supports the call from the Council of Australian Governments (COAG) to lock in long-term funding for kindergartens. Victoria has a unique model of preschool education, built on a partnership across three levels of government with support from communities and parents. This model has resulted in high participation rates (26 May 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. 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 or a local council. (25 May 2020).  More...

NSW

HomeBuilder package driving jobs in NSW
The new HomeBuilder grant will provide $25,000 for those looking to build or renovate their home. NSW are also rolling out the easy-to-use ePlanning platform to every council in NSW, which means home builders and renovators can process their development applications online and faster than ever before (05 June 2020).  More...

Armidale Regional Council set for three-month suspension
At an extraordinary meeting, it stopped short of acknowledging the "unacceptable" behaviour of councillors or that it has lost the respect of the community (01 June 2020).  More...

Queensland

Cassowary Coast Regional councillor decision
Former Cassowary Coast Regional Councillor Ben Heath has been found to have engaged in misconduct in office for a third time after failing to record his involvement in a seafood business and relationship with the owner on his register of interests (05 June 2020).  More...

Logan welcomes COVID Works for Queensland funding
Logan City Council will receive $6.57 million from the State Government’s $200 million COVID Works for Queensland program. Cr Power said Council will consider a report on how to best use this funding to deliver critical community infrastructure in the city that meets the needs of our residents and businesses (04 June 2020).  More...

Queensland water bills to rise, despite coronavirus
The Queensland Government will bump up the cost of water by 3.5 per cent next month, driving up quarterly utility bills across the state (04 June 2020).  More...

Ten years, $800 million invested. What’s next for Your City Centre – Beyond 2020?
Toowoomba Regional Council (TRC) has today launched a ten-year review of the Toowoomba City Centre Master Plan. Council is urging residents to get involved in the conversation that will help understand community priorities for the remaining ten years of the plan (04 June 2020).  More...

COVID-19 stimulus funding must be shared equally so no community is left behind
The Local Government Association of Queensland is calling on the State Government to ensure economic stimulus is shared equally across Queensland, so no community is left behind amid the COVID-19 pandemic. “The view that SEQ councils can withstand this pandemic on their own due to their larger populations does not hold true (03 June 2020).  More...

South-East Queensland councils benefit from COVID Works for Queensland program
Communities across South-East Queensland will soon see the social, employment and economic benefits of the Palaszczuk Government’s $200 million COVID Works for Queensland program, with council allocations announced today (03 June 2020).  More...

Regional Queensland benefits from COVID Works for Queensland program
Dozens of local government shovel-ready projects across regional Queensland will receive funding from the $200 million COVID Works for Queensland program, with individual council allocations announced today (03 June 2020).  More...

Survey finds locals don't take visitors to 'dirty' Surfers Paradise
The Glitter Strip is marketed as a jewel in the crown of Gold Coast tourism, but a survey finds locals avoid taking visitors there because they believe it's dirty and isn't enough parking (03 June 2020).   More...

Developers shelve 'unviable' Toowoomba housing project
Developers blame the Toowoomba Regional Council for its decision to shelve a big housing development in the city's west (01 June 2020).  More...

Expansion of water bottling industry banned across NSW/QLD border regions
Tweed outlaws new water bottling operations, joining the Scenic Rim and Gold Coast hinterland regions (30 June 2020).  More...

Disaster preparedness goes mobile in Townsville
A Townsville-based online and print disaster management directory has been given a facelift for better mobile phone functionality to make accessing important information even easier for local residents (29 May 2020).  More...

Council reins in funding for rodeo after shift to online competition
Mount Isa City Council pulls some of its funding from the annual Mount Isa Mines Rodeo after it is announced the rodeo will go online (28 May 2020).  More...

Gold Coast council withdraws financial support for 2020 show soon after new date announced
The City of Gold Coast has withdrawn its financial support for this year's Gold Coast Show, barely hours after organisers announced the event would still go ahead (28 May 2020).  More...

Local Government: Roles and Functions of Queensland Integrity Agencies
On 20 May 2020, three of Queensland’s integrity agencies partnered to equip newly-elected and existing Local Government councillors and mayors with information to assist them in understanding the integrity agencies’ roles and functions (25 May 2020).  More...

In practice and courts

PC Audit of national water resources reforms
The Productivity Commission is to inquire into how governments are progressing in achieving the objectives and timelines of the National Water Initiative. The PIC has published an issues paper to guide the inquiry. Submissions on this paper are due by Friday, 21 August 2020 (05 June 2020).  More...

Council views wanted on filling Australia’s IoT skills gap
The IOT skills barometer is designed to see if organisations like councils experience a skills-gap with regards to adopting IoT solutions.It will inform local governments as to which councils are using IoT and for what purpose, how important it is for them in their future strategies, and whether they are missing any skills that university and higher education could remedy (05 June 2020).  More...

Local Roads and Community Infrastructure Program
The Australian Government new $500 million Local Roads and Community Infrastructure Program (LRCI Program) will support local councils to deliver priority local road and community infrastructure projects across Australia, supporting jobs and the resilience of local economies to help communities bounce back from the COVID-19 pandemic (22 May 2020).  More...

National Transport Commission: Draft Guidelines for trials of automated vehicles in Australia
To ensure the changes benefit trialling organisations and road transport agencies, the NTC has published a discussion paper and is seeking submissions from local councils, road managers and others regarding the proposals outlined therein.  More...

Administration of financial disclosure requirements under the Commonwealth Electoral Act
The objective of this audit is to examine the effectiveness of the Australian Electoral Commission’s (AEC's) management of financial disclosures required under Part XX of the Commonwealth Electoral Act 1918, including the extent to which the AEC is achieving accurate and complete financial disclosures. Due to table: June, 2020 Open for contribution.  More...

Commonwealth Department of Communications and the Arts: Telecommunications in new developments review
In light of recent and upcoming changes in the provision of telecommunications in new developments, the Department is undertaking a review of the Telecommunications in New Developments (TIND) Policy, and has released a discussion paper Review of the 2015 TIND Policy, The Department is aiming to complete the review of the 2015 TIND Policy and make any necessary changes before 1 July 2020. 

Victoria

MAV: Councils' response to COVID-19
These snapshots highlight the creative and responsive role Councils are playing to support their local businesses and the broader community through the COVID-19 emergency:
Fact Sheet Summary - Councils supporting their communities during COVID-19 (May 2020)
Victorian Local Government COVID-19 initiatives update May 2020 (May 2020)

Suburban Parks Program: funding grants from 01 June 2020
Funding for the next round of the program will be open to eligible local government area from 1 June, with grants of up to $1.3 million made available for a new pocket park and $275,000 for a new dog park.  More...

SRO: Changes to the fire services property levy
Instead of different levy rates for properties in the Metropolitan Fire Brigade area and the Country Fire Authority area, state-wide rates will apply to properties in the same property classification across Victoria from 1 July 2020. Details about how the revised levy is calculated will be published on our fire services property levy page in the coming days (03 June 2020).  More...

Growing Victoria’s Botanic Gardens Grant Program- Round 2 - 2020
Round Two is now open and closes on 16 July 2020. The purpose of the grants program is to rejuvenate Victoria’s botanic gardens by upgrading and enhancing the physical assets and amenities of the gardens and by growing the gardens’ important role in research, conservation and education.  More...

 Bushfire recovery grants and funding
A range of funding streams have been announced to support bushfire-affected businesses, farmers and organisations as well as individuals and families including: 
2020 Clean-Up Program 
Victorian Bushfires Case Support Program 
Australian Government Disaster Recovery Payment 

Significant Sporting Events Program
 Councils may apply for grants in this funding program to support the assistance, management or strategic planning of sports events. Applications are open until 30 June 2022 in various rounds.

s.186 exemption for council recycling contracts
The Victorian Local Government Minister has announced a state-wide s.186 exemption for local councils to extend their recycling collection contracts to 30 June 2021. Attached is a copy of the letter sent to all councils co-signed by Minister Somyurek and the Minister for Energy, Environment and Climate Change, the Hon. Lily D’Ambrosio MP

Approvals
Ballarat C216ballpt1 The amendment rezones part of Lot 1 PS545482N at Giot Drive Wendouree, from Public Park and Recreation Zone (PPRZ) to General Residential Zone (GRZ), and rezones land at 12A Albert Street, Sebastopol, from Public Use Zone Schedule 6 (PUZ6) and General Residential Zone (GRZ) to Mixed Use Zone (MUZ) and applies an Environmental Audit Overlay.
Darebin C189dare The amendment implements Section 56 of the Heritage Act 2017 to ensure that places in the Planning Scheme are consistently identified with places in the Victorian Heritage Register.   
Glen Eira C206glen The amendment applies the Heritage Overlay to 380 Dandenong Road, Caulfield North on an interim basis until 30 April 2021.
Greater Bendigo C239gben The amendment applies the Environmental Audit Overlay to surplus Department of Education and Training land at 61-77 Nolan Street & 19-39 Dooley Street, North Bendigo.
Greater Dandenong C213gdan The amendment introduces the General Residential Zone Schedule 3 and rezones residential land around the activity centres of Dandenong, Springvale and Noble Park.
Greater Shepparton C212gshe The amendment implements the recommendations of the Greater Shepparton Townships Framework Plan Review 2019 by revising the Framework Plans in the Municipal Strategic Statement of the Greater Shepparton Planning Scheme.
Kingston C191king The amendment corrects obvious and technical errors that occurred as part of the approval of Amendment C132king by correcting a map title in Clause 21.07 (Housing) and inserting omitted content in Clause 22.13 (Environmentally Sustainable Development). 
Maribyrnong C165mari The amendment applies the Environmental Significance Overlay - Schedule 3 to protect trees identified as significant in the draft Maribyrnong Significant Tree Register 2019 on an interim basis until 7 March 2022.
Melbourne C382melb The amendment makes changes to the schedule to clause 72.01 ‘Administration and enforcement of this planning scheme’ to clarify the Minister for Planning’s role as responsible authority for developments exceeding a gross floor area (GFA) of 25,000 sqm. 
Melton C173melt The amendment implements the findings of the Significant Landscape Features Strategy 2016.
Swan Hill C76swan The amendment rezones the site from Public Conservation and Resource Zone to Farming Zone
Melbourne C365melb replaces the interim Heritage Overlay applying to 372-378 Little Bourke Street, Melbourne with a permanent Heritage Overlay and amends the heritage grading to ‘non-contributory’ within the Guildford and Hardware Laneways Precinct (HO1205).
Mornington Peninsula C274morn extends the interim Heritage Overlay to the property at 12 Graydens Road, Tyabb (HO463), by a period 2 months, until 31 July 2020.
Greater Bendigo C252gben The amendment facilitates the Bendigo GovHub by making the following changes to the Greater Bendigo Planning Scheme: rezones 189-229 Lyttleton Terrace, Bendigo and immediate road reserve along St Andrews Avenue, Bendigo to Commercial 1 Zone; amends the schedule to Clause 45.12 (Specific Controls Overlay) to insert the Bendigo GovHub Incorporated Document, November 2019 (incorporated document) facilitating use and development of land for the Bendigo GovHub; amends the schedule to Clause 72.01 (Responsible authority for this Planning Scheme) to make the Minister for Planning the responsible authority for administrating and enforcing the planning scheme as it relates to the incorporated document; and amends the schedule to Clause 72.04 (Documents Incorporated in this Planning Scheme) to list the incorporated document. 
VC175 changes the VPP and all planning schemes in Victoria by improving the way the planning system addresses buffers for amenity, human health and safety impacts by updating the Planning Policy Framework (PPF) and Clause 53.10.

NSW

Minister’s Good Practice Guideline MGPG-1: Virtual Meetings
Issued by the Minister for Local Government pursuant to section 87 of the Local Government Act 2020.
The Victorian Government’s COVID-19 Omnibus (Emergency Measures) Act 2020 has introduced into the Local Government Act 2020(the Act) new mechanisms that allows for virtual council meetings –to ensure local government decision-making can continue during the coronavirus pandemic. These new measures will be in force from1 May 2020 until 1 November 2020.  More...

Office of Local Government Circulars

20-20 Clarification for issuing and collecting 2020-21 single and first quarter rates instalments
June 3, 2020 - Category: Circular to Councils Status: Active Circular Details: 20-20 / 3 June 2020 / A704774 Contact: Council Performance Team / 02 4428.  More...

GC-149 2020-21 Financial Assistance Grants (FAGs) – advance payment
May 27, 2020 - Category: Grants Commission Circular to Councils Status: Active Circular Details: GC 149 / 27 May 2020 / A701633Contact: Helen Pearce – 02.  More...

20-19 Information about Ratings 2020-21
May 26, 2020 - Category: Circular to Councils Status: Active Circular Details: 20-19 / 26 May 2020 / A702258 Contact: Performance Team (02) 4428 4100 /.  More...

eplanning Platform
On 1 July 2020 all Councils across Sydney, Newcastle, the Central Coast and Illawarra will be required to start accepting and processing DAs, complying development certificates and post-consent certificates via the NSW Planning Portal. It will be mandatory for all greater metropolitan councils to process all applications via ePlanning by the end of 2020. The remaining councils must process all applications through the NSW Planning Portal by 1 July 2021.  More...

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

Improving the review of local infrastructure contributions plans - discussion paper
Notification start-end date 15/04/2020 - 12/06/2020
Higher-rate local infrastructure contributions plans are independently reviewed to ensure that they are reasonable. The Department has identified ways to improve the review process of local infrastructure contributions plans to make it more efficient while maintaining its important function.  More...

Changes to Housing SEPPs
Seniors Housing State Environmental Planning Policy – the SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020.

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 (May 2020).

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. Local Government Temporary use licences updated to 25 May 2020.  More...

DSDMIP Consultations
Cross River Rail Project – project change application 7 (Evaluation of design refinements and proposed condition changes) Closes 25 June 2020
Scenic Rim Agricultural Industrial Precinct - draft impact assessment report Closes 26 June 2020

DLGRMA: COVID-19 Works for Queensland program
As part of the Queensland Government’s economic recovery package, the Premier announced on 19 May 2020 an initial $200 million in 2020-21 for a COVID Works for Queensland program that will immediately support jobs over the next year.  More...

DLGRMA: 2019–21 Works for Queensland Program (W4Q)
The $600 million Works for Queensland (W4Q) program supports regional Councils to undertake job-creating maintenance and minor infrastructure projects.The Queensland Government has amended the 2019-21 W4Q guidelines to allow 19 Councils to access unspent W4Q funding for COVID-19 related expenses. Please refer to Appendix 4 of the 2019-21 W4Q Program Guidelines for the list of eligible Councils.  More...

Economics and Governance Committee: Report No. 37, 56th Parliament—Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Bill 2019, interim government response
The Government expresses its appreciation to the Economics and Governance Committee for its consideration of the bill and advises that matters relevant to the bill are still under consideration. The Government's final response to the Report will be tabled by 7 August 2020.  More...

Program - Public briefing - Electoral Commission Queensland - 11 May 2020
Legal Affairs and Community Safety Committee - Inquiry into the Electoral Commission of Queensland’s online publication of preliminary and formal counts of the votes cast in the local government elections and state by-elections held on 28 March 2020 inquiry.  More...
LGAQ: Have you say on the Mobile BlackSpot Program Round 5A
The Australian Government has released a Consultation Paper seeking input on the design of Round 5A of the Mobile Black Spot Program. The consultation paper can be found here. The LGAQ is seeking contributions from councils by 5 June 2020, with Submissions due by 19 June 2020.  More...

LGAQ: Release of the Austroads Guide to Temporary Traffic Management
The formal adoption of the AGTTM in Queensland is planned for July 2020. In preparation for the adoption in Queensland, local government officers involved in traffic management activities can view a Fact Sheet and the new AGTTM and video presentations providing an overview of each section on the Austroads website.

Have your say: future of South Bank
The Palaszczuk Government is encouraging people to have their say on the future of the South Bank precinct, with the roll out of public consultation on the master plan. The master plan would build on the precinct’s iconic features, while harnessing new ideas. It is expected the master plan process will be completed by the end of 2020.  More...

LGAQ: Review of the Strong and Sustainable Resource Communities Act 2017
The Office of the Coordinator-General is leading the review and will be engaging with councils and key stakeholders from the end of January to May 2020.  More...

LGAQ: Key events for Queensland councils in 2020
Events for March – October 2020 are outlined here. Keep an eye on the events page which will be updates as more events are confirmed in the calendar

Cases

Victoria

Piscioneri v Stonnington CC [2020] VCAT 597
Section 77 of the Planning & Environment Act 1987; Stonnington Planning Scheme; General Residential Zone Schedule 10; Special Building Overlay Schedule 2, Construction of two dwellings; planning policy; neighbourhood character; amenity impacts; car parking. 

Cerri v Monash CC [2020] VCAT 601
Construction of four (4) double storey dwellings with Dwelling 1 presenting to Margaret Street and Dwellings 2, 3 and 4 presenting to Flora Road in a side by side formation to the rear of Dwelling 1. Vehicular access to each dwelling will be via individual crossovers leading to integrated single garages. Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.[1]

Rabbani v Knox CC [2020] VCAT 593
Section 80 Planning and Environment Act 1987; Knox Planning Scheme; General Residential Zone; Visual Bulk.

Kuznetsov v Yarra Ranges SC [2020] VCAT 574
Section 77 of the Planning and Environment Act 1987; Yarra Ranges Planning Scheme; Camping and caravan park; Whether a cultural heritage management plan required; Section 52 of the Aboriginal Heritage Act 2006; Waterway; Significant ground disturbance; High impact activity; Regulations 5, 7, 26, 46 & 58 of the Aboriginal Heritage Regulations 2018 

Voumakis v Moonee Valley CC [2020] VCAT 586
Section 77 of the Planning and Environment Act 1987, Moonee Valley Planning Scheme, Proposed amendment to plans, Elevated ground level, Neighbourhood character, Streetscape, Landscaping, Clause 55 ResCode. No permit 

Chen v Monash CC [2020] VCAT 576
Monash Planning Scheme; built form arising from a side-by-side development; achievement of a garden city character. 

NSW

D’Annunzio v North Sydney Council (No 2) [2020] NSWCATAP 98
COSTS - appeal dismissed – whether order for costs should be made

Palm Lake Works Pty Ltd v Ballina Shire Council [2020] NSWLEC 1247
PROCEDURE – remitted matter – notice of motion for adjournment of hearing – expiration of existing site compatibility certificate – fundamental questions to be addressed on remitter – motion dismissed

Verde Terra Pty Ltd v Central Coast Council (No 6) [2020] NSWLEC 64
PROCEDURE: slip-rule amendment occasioned by mistake of parties in consent orders – inadvertent misleading of court in making order for production in answer to a subpoena – apology to court - application to amend order to ensure compliance with subpoena – order amended.

Munro v Inner West Council [2020] NSWLEC 1240
DEVELOPMENT APPLICATION – heritage conservation area – Birchgrove Distinctive Neighbourhood – building bulk, form and scale – building location zone – view loss

Abdallah v Baygan (No. 3) [2020] NSWSC 680
LAND LAW – equitable charge over sale proceeds – priority dispute resolved by consent – declaratory relief appropriate – no issue of principle

Port Macquarie-Hastings Council v David Peter Waite (No 2) [2020] NSWLEC 60
SENTENCING – environmental offences – Environmental Planning and Assessment Act 1979 – carry out development otherwise than in accordance with conditions of development consent – erect structures without development consent – Local Government Act 1993 – carry out an activity without obtaining prior approval – guilty pleas – whether contents of leaflet impacts remorse – defendant not cross-examined – utilitarian value of guilty pleas – penalties reflect proportional criminality not solely general deterrence – proceedings could have commenced in the Local Court – totality principle – monetary orders

Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59
APPEAL – appeal on questions of law from decision of Commissioner dismissing appeal of refusal of modification application of court approved development consent – no vitiating material error in approach to precondition that modification must be substantially the same as original development – no error of law demonstrated by reference to case law

Queensland

Healy v Logan City Council (No.2) [2020] QDC 104
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where plaintiff brought a claim primarily in negligence against defendant – where plaintiff’s claim dismissed – where no award of damages made – where parties ordered to make submissions on costs – whether plaintiff should pay defendant’s costs of the proceedings
Workers’ Compensation and Rehabilitation Act 2003 Qld s 292, s 315, s 316

Goondiwindi Regional Council v Tait [2020] QCA 119
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the respondent was riding her motorcycle through a floodway and struck a large pothole – where the respondent sued the appellant for damages as a result of the injuries she sustained – where the appellant had responsibility for maintaining that section of road as part of its contractual arrangement with the State of Queensland, under a Road Maintenance Performance Contract (RMPC) – whether taking steps to warn motorists was part of or the commencement of the appellant’s performance of its maintenance obligations
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION – GENERALLY – where there was considerable rainfall which brought widespread flooding, including to the floodway – where the appellant’s maintenance crew identified that there was a danger to traffic because of the rough surface of the floodway and the likelihood of potholes – whether the appellant had actual knowledge of the particular risk – whether the particular risk was the particular pothole that the respondent hit
TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – where members of the appellant’s patching crew erected freestanding signs on both approaches to the floodway – where the signs were not secured – where the signage had fallen over at the time of the respondent’s accident – whether the respondent would have been able to avoid the pothole had the temporary signage been up

Legislation

NSW

Regulations and other miscellaneous instruments
Community Land Management Amendment (COVID-19) Regulation 2020 (2020-238) — published LW 5 June 2020

Bills introduced Government
Constitution Amendment (Water Accountability and Transparency) Bill 2020

Non-Government
Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020
Water Management Amendment (Transparency of Water Rights) Bill 2020
Water Management Amendment (Water Allocations—Drought Information) Bill 2020

Bills passed by both Houses of Parliament
Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020

Queensland

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

Acts
No 15 Justice and Other Legislation Amendment Act 2020
No 16 Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020

Bills Updated in the last week
Justice and Other Legislation Amendment Bill 2019
Stage reached: Passed with amendment on 20/05/2020
Assent Date: 25/05/2020 Act No: 15 of 2020 Commences: see Act for details

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.

Published by:

Alex Buck, Madeleine Pitman

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