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Inside track: Property & Real Estate

16 November 2021

#Property, Planning & Development

Inside track: Property & Real Estate

In the media

Commonwealth

How COVID is transforming Australia’s commercial property sector
The COVID-19 pandemic has had a significant influence on where we work. It has caused much uncertainty about the future workspace conditions as organisations try to deal with the problem of abundant space (04 November 2021).  More...

Building approvals remained elevated in September
“Detached building approvals continue to suggest there is still strong demand for housing six months after the HomeBuilder stimulus ended in March,” stated HIA Economist Tom Devitt (03 November 2021).  More...

No easy pickings in RSL redevelopment
The combination of long- and short-term trends in the hospitality and clubs sector have made RSLs and other community clubs an enticing target for developers in recent years, with the number and scale of projects accelerating. But proponents involved in club redevelopment ventures warn that the sector comes with a its own set of considerations and requirements (03 November 2021).  More...

Get ready for Green Star Buildings coming in December
The transition period is coming to an end on 17 December so project stakeholders intending to use Green Star – Design & Built on an upcoming build must execute their project’s Certification Agreement by this date (29 October 2021).  More...

Knight Frank finds green buildings attract price premium
Green-rated office buildings in Sydney and Melbourne enjoy a premium on sales prices depending on their NABERS rating, a new report by real estate services firm Knight Frank has found, suggesting a strong, global pattern between sustainability and value (25 October 2021).  More...

Property industry to play critical role in the race to net zero
Australia’s transition to sustainable housing could both protect the home building sector, as well as spur growth in delivering more than half a billion dollars of additional investment in the construction industry by 2030 (29 October 2021).  More...

Victoria

Saving renters money and creating more comfortable homes
Rental providers are now eligible for a rebate to upgrade inefficient heating and cooling systems to make homes more comfortable, drive down power bills and reduce greenhouse gas emissions (01 November 2021).  More...

Victoria continuing to cut greenhouse gas emissions
Victoria’s emissions are continuing to fall with an emissions report clearly demonstrating the state’s transition to a net zero emissions economy by 2050 is on track. The Government has set targets to halve emissions by 2030 as part of its Climate Change Strategy released in May this year (29 October 2021).  More...

Longer tunnel and a green light for North East Link
The North East Link project will deliver a longer tunnel to Watsonia, a new tree-lined boulevard for Greensborough Road and more than 50 MCGs of new, revived and reconnected parklands, with the major contract now awarded (28 October2021).  More...

Samma, Brightlight plot $750m in build-to-rent projects
Melbourne is continuing to claim the lion’s share of build-to-rent apartments with Samma Property Group the latest developer preparing to break ground on a number of build-to-rent projects following a $750-million capital-raising (28 October 2021).  More...

Crackdown on dodgy operators dumping asbestos-riddled soil
EPA and Hume City Council are encouraging members of the public to report dumpers who unload piles of asbestos-contaminated soil in streets or on public land (26 October 2021).  More...

Building new regional homes for those who need it most
The Andrews Labor Government is getting on with delivering the state’s biggest ever social housing build and calling on all community housing agencies to put forward proposals for new social housing in regional Victoria (25 October 2021).  More...

NSW

Sydney set for thousands of new homes
A further 8,000 jobs will be created and almost 6,000 new homes built following the finalisation of two important projects supporting the growth of Greater Sydney (03 November 2021).  More...

NSW government & NABERS: $4.8M Accelerating Net Zero Buildings
Under this initiative, the National Australian Built Environment Rating System (NABERS) will investigate and develop a world-leading framework for measuring, benchmarking, and certifying emissions from construction and building materials (01 November 2021).  More...

Queensland

Green light for Spit funding set to boost local construction
A four-year works program worth $16.95 million has been approved by the Palaszczuk Government, giving the green light to a series of job-creating infrastructure projects on The Spit (04 November 2021).  More...

Construction begins on $850 million Yeerongpilly Green Riverside community
Deputy Premier and Minister for State Development Steven Miles said projects such as Yeerongpilly Green Riverside help address land supply challenges, catering for Queensland’s booming population whilst creating local jobs. EDQ, in partnership with the developer, invested over $30 million to deliver the parks and public infrastructure (03 November 2021).  More...

4101 - South Bank, South Brisbane, West End Design Update for 2 Cordelia Street, South Brisbane
A minor change development application for a 30 storey residential tower located at 2 Cordelia Street, South Brisbane. The majority of the changes to the previous application which was approved in 2017 is involving changing of dwelling mix, an increase in communal space, removal of a lift and facade detail changes (02 November 2021).  More...

Joe Adsett Architects propose 15 storey ‘River Arc’ for Kangaroo Point
A development application has been submitted by developer-architect Joe Adsett Architects for a 15 storey residential building located at 44 O’Connell Street, Kangaroo Point. Architects have deliberately chosen to limit the density of the development to 14 sky homes in order to differentiate their offering from other projects in the area (02 November 2021).  More...

Morris Property Group’s $250m office plans for North Quarter
Morris Property Group has unveiled plans for a $250-million office tower in Brisbane’s North Quarter precinct, in a vote of confidence for the office sector (27 October 2021).  More...

'World's greenest residential building' cut down to size
A planned 32-storey apartment tower with impeccable green credentials is significantly scaled back after Brisbane City Council expressed concerns about its size (27 October 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
03 November 2021 Building Approvals, Australia

In practice and courts

Commonwealth

Ministerial direction on implementation dates to deliver a secure national interoperability regime and effective competition (29 October 2021)
Ministers and industry continue to work together to implement this important national reform so that effective market competition can be achieved in order to facilitate an environment so all Australians may benefit from lower prices, better service and more innovation. Ministers noted progress with the reform outlined here.

API: Residential Valuation Standing Instructions V3 module released
The Residential Valuation Industry Group has prepared a revised version of the ABFI Residential Valuation Standing Instructions Version 3, which is effective from the 6 of December 2021.  More...

ABCB: Residential Energy Efficiency Consultation RIS now open for comment
We are now seeking comment on a CRIS providing an analysis of proposed amendments to the residential energy efficiency provisions included in stage 2 of NCC 2022 public comment draft. The CRIS will be available for comment until 7 November 2021.  More...

GBCA: Registrations for Green Star – Design & As Built close 17 December 2021
At the time of launch we announced a transition period: Whereby applicants could register projects using either Green Star – Design & As Built, or Green Star Buildings. This transition period ends on 17 December 2021 and applicants will no longer be able to register their projects under Green Star – Design & As Built (21 October 2021).  More...

GBCA: Green Star certification 2021 dates for your project
The guidelines below (based on typical time frames), specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones (2021).  More...

Announcements, Draft Policies and Plans released 2021

NSW

NSW Registrar-General: New community land laws to start in NSW on 1 December 2021
2 Nov 2021 - The Community Land Management Act 2021 No 7 - NSW Legislation and Community Land Development Act 2021 No 6 - NSW Legislation and their respective regulations modernise the development and management of community land schemes in NSW will start on 1 December 2021.
These reforms align the community schemes legislation with the Strata Schemes Management Act 2015 and the Strata Schemes Development Act 2015. View the NSW legislation website Home - NSW legislation.
For more information visit the NSW Fair Trading website Community and neighbourhood schemes | NSW Fair Trading.
Note: The Office of the Registrar General is working with NSW Land Registry Services to update approved community scheme forms. These updated forms will not be accepted for lodgment until 1 December 2021.

Queensland

Queensland Housing Investment Growth Initiative (QHIGI) procurement process
The Queensland Housing Investment Growth Initiative procurement process has now opened. The QHIGI is being delivered through three funding initiatives:
Housing Investment Funding - funding to develop partnered projects to increase social and affordable housing supply
QuickStarts Qld - capital investment program to accelerate planned acquisitions, new construction and redevelopment opportunities to deliver new homes
Help to Home - partnerships with property owners, landlords and registered community housing providers to headlease homes to people who are eligible for social housing
The procurement process is now open and you can register your interest in developing a strategic partnership with the Queensland Government here (01 November 2021).

Residential Tenancies and Rooming Accommodation (Tenants' Rights) and Other Legislation Amendment Bill 2021
The Bill was referred to the Community Support and Services Committee for detailed consideration and report by 26 November 2021. The explanatory notes state that the objective of the Bill is to improve rights for renters in Queensland, address rental affordability concerns and improve access to safe and secure housing.

REIQ: Updates to COVID-19 Response for Residential Tenancies
The Queensland Government has recently announced some changes to the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Amendment Regulation 2021. Some important temporary regulatory measures will continue until 30 September 2021. Please take note of the changes listed.  More...

PCA Submissions

Small Business Commissioner Bill 2021
28/10/2021 Submission on the Small Business Commissioner Bill 2021 - State Parliament’s Education, Employment and Training Committee. The Property Council supports the establishment of the role of a Small Business Commissioner. View the submission here.

PCA Advocacy Alert: Olympics Legislation
Today the Government has introduced the Brisbane Olympic and Paralympic Games Arrangements Bill 202into the Queensland State Parliament. This bill will provide the framework for the establishment of the Brisbane Organising Committee for the 2032 Olympic and Paralympic Games. It is anticipated that the composition of the board will be made up of nominations from across three levels of government, with directors appointed for an initial four year term (27 October 2021).

Queensland Parliament Publications
Tabled Document - Queensland Conservation Council
State Development, Infrastructure and Industry Committee - Report No. 23, 54th Parliament - Vegetation Management Framework Amendment Bill 2013
Government Response - to Report No. 13 - Sustainable Planning and Other Legislation Amendment Bill 2012
State Development, Infrastructure and Industry Committee - Report No. 13, 54th Parliament - Sustainable Planning and Other Legislation Amendment Bill 2012

Northshore Hamilton PDA – Development Scheme Amendment
Economic Development Queensland (EDQ) has commenced a review of the development scheme to ensure it continues to operate effectively as the overarching planning document for the PDA. EDQ has now announced that the proposed Development Scheme Amendment and DCOP is open for public review and comment from 22 October - 3 December 2021.  More...

PCA: Sunshine Coast Mass Transit Passes Council: Mass Transit Options Analysis
The options analysis will be sent to the State Government to help form a $15 million business case. Included in the analysis were all five options for the mode of transport including light rail, wireless light rail, trackless trams, bus rapid transit and a quality bus corridor from Maroochydore to Kawana. Read more about the Mass Transit Project here (27 October 2021).

Amendment of Planning Regulation 2017
The Department of State Development, Infrastructure, Local Government and Planning has advised that the Planning Regulation 2017 was amended on 17 September by the Planning Amendment Regulation (No.1) 2021.
The amendments: Extend the expiry date of the economic support instrument provisions by 12 months until 17 September 2022 make several minor changes to increase the efficiency of the Planning Regulation. These clarify provisions relating to the content of planning and development certificates and referral agency requirements for end-of-trip facilities.

Rockhampton Regional Council expands development incentives policy
Rockhampton Regional Council has expanded its development incentives policy to include multi-residential unit developments within close proximity to the CBD. The policy will apply to DA’s lodged between 1 January 2021 and 31 December 2021. For more information, please click here.

Cases

Great Union Pty Ltd v Sportsgirl Pty Ltd [2021] VSCA 299
ARBITRATION – application for stay and referral to arbitration – claim for abatement of rent by reason of COVID-19 pandemic – whether dispute is a matter which is the subject of an arbitration agreement – proper construction of arbitration agreement – only quantification of proportion of rent abatement to be decided by arbitrator – Appeal allowed – Commercial Arbitration Act 2011 s 8(1) – Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442, discussed.
PRACTICE AND PROCEDURE – pleadings – whether rent abatement claim ought be struck out – no error established – Supreme Court (General Civil Procedure) Rules 2015 r 23.02.

Lee v Yap [2021] VSCA 297
REAL PROPERTY – caveat – appeal against dismissal of application to remove caveats – where applicant contracted to sell property subject to caveats – where respondents claim interest in property in separate proceeding – whether judge erred in refusing to remove caveats – whether balance of convenience favoured removal – whether judge placed undue weight on proposed undertaking proffered by applicant in separate proceeding – whether judge erred in making certain findings with respect to proposed undertaking – specific error established – appeal allowed – caveats removed – Bradto Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65; Piroshenko v Grojsman (2010) 27 VR 389; Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, considered – Transfer of Land Act 1958 s 90(3).
PRACTICE AND PROCEDURE – application for extension of time – delay of two business days in filing application for leave to appeal – no satisfactory explanation for delay given – whether lack of satisfactory explanation outweighed by merits of appeal – extension granted – Supreme Court (General Civil Procedure) Rules 2015 r 64.08.

Helman v Strathbogie SC (Red Dot) [2021] VCAT 1274
NATURE OF CASE permit to use and develop land for a ‘warehouse (fireworks, explosives and ammunition)’ - whether the applicants have standing under sections 89(1)(a) or 89(1)(b) of the Planning and Environment Act 1987 to request cancellation of the grant of the permit
LOCATION OF PASSAGE OF INTEREST Paragraphs 50-69, 70-76, 77-93, 190-209, 252-302.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
LEGISLATION – interpretation or application of statutory provision
Section 52(1)(a) – what is ‘adjoining’ land?
Section 52(2)(a)(ii) – what is a ‘newspaper’ and what does ‘generally circulating in the area in which the subject land is located’ now mean in a world of online publishing?
Section 89(1)(a) – does a person requesting cancellation of a permit have standing if notice was not given under section 52(1)(a) to an owner or occupier who has not requested cancellation?
Section 89(1)(b)(iii) – was a failure to include permit conditions requested by an objector in exchange for withdrawal of the objection a material mistake in relation to the grant of a permit?
CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable
The decision has been referred to the Minister for Planning to consider a review of the newspaper notice provisions in section 52(2)(a)(ii) because they were enacted before the advent of online publishing

The Australian Sawmilling Co Pty Ltd (in liq) v Environment Protection Authority [2021] VSCA 294
CORPORATIONS – external administration – liquidation – application to set aside disclaimer of land by liquidators – where liquidators were indemnified against environmental liabilities – where respondents gave undertaking to limit liquidators’ liability for clean up costs to that recoverable through the indemnity – whether setting aside disclaimer would cause prejudice to respondents grossly out of proportion to the prejudice to creditors – prejudice to respondents because they could not recover clean up costs if disclaimer took effect – whether judge erred in exercising discretion to set aside disclaimer – no error established – Corporations Act 2001 (Cth) s 568B.
ENVIRONMENT PROTECTION – clean up of environmental hazard – recovery of clean up costs against ‘occupier’ of land – whether ‘occupier’ permits only single, exclusive person – whether liquidators are occupiers – duties and powers of liquidators – no error established – Environment Protection Act 1970 ss 1A, 1D, 1F(2), 1G(1), 1K, 4(1), 4(3), 62, 66B – Interpretation of Legislation Act 1984 s 37(c) – Corporations Act 2001 (Cth) pts 5.4–5.6 – Re Amerind Pty Ltd; Commonwealth of Australia v Byrnes [2018] VSCA 41; (2018) 54 VR 230, applied.
CONSTITUTIONAL LAW – inconsistency of federal and state legislation – Commonwealth Constitution s 109 – whether direct inconsistency between Environment Protection Act 1970 s 62 and Corporations Act 2001 (Cth) s 545 – whether recovery of clean up costs makes liquidator ‘liable to incur any expense’ – no inconsistency arises where Corporations Act 2001 (Cth) s 545 not engaged – Scope of Corporations Act 2001 (Cth) s 5G(11) unnecessary to determine.

T & L Byrne Excavations Pty Ltd & Anor v Robinson [2021] QSC 279
REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the plaintiffs allege the first defendant, a former employee, misappropriated and misapplied funds belonging to them to the benefit of herself and her husband, the second defendant, also an employee, either by overpayments of wages or other unauthorised payments – where the plaintiffs lodged a caveat over the defendants’ family home, which had been purchased prior to the defendants being employed – where the defendants seek the removal of the caveat, in order to sell the property to fund their legal expenses – whether there is a serious question to be tried as to the plaintiffs’ claim to an interest in the property
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DETENTION, INSPECTION AND PRESERVATION – FREEZING ORDERS – where the plaintiffs apply for a freezing order, preventing the defendants from disposing of their assets to the value of their home property – where there has been significant and unexplained delay in bringing the application, since the proceedings were commenced in January 2020 – whether on the evidence before the court there has been shown to be a risk of unjustifiable disposal of assets Land Title Act 1994 Qld s 127

QCoal Pty Ltd & Anor v Isaac Regional Council [2021] QPEC 60
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for a Works Camp in the Rural zone PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with regional plan and planning scheme – whether there is a need for the proposed development – whether there are relevant matters which justify the proposed development - Planning and Environment Court Act 2016 Qld ss 43, 45 and 46; Planning Act 2016 Qld ss 45 and 60

Hill & Ors v Sunshine Coast Regional Council [2021] QPEC 59
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST REFUSAL – where the appellants submitted a development application for a material change of use for use as multiple dwelling units – where the subject site is located in a low density residential zone – where the development is to be located on a battle axe lot – where the respondent refused the application – whether the proposed development is inconsistent with the character of the local area – whether the proposed development would result in an unacceptable negative effect on the amenity of the local area –
Planning Act 2016 Qld s 60; Planning and Environment Court Act 2016 Qld s 43, 45, 46

Weedon and Roberts v Place 57 Pty Ltd [2021] QCAT 365
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – consumer trader dispute - Queensland Civil and Administrative Tribunal Act 2009, schedule 3, “Trader”, 2(a) – MEANING AND EFFECT – whether real estate agent excluded from the definition of Trader – whether Tribunal has jurisdiction – whether matter can be dealt with as minor civil dispute – minor debt – whether claim for liquidated amount or damages - Queensland Civil and Administrative Tribunal Act 2009 Qld s 3, s 11, s 32

Cases to 01 November 2021

Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council [2021] QPEC 58
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – REFUSAL AND REASONS FOR REFUSAL – where the appellant appeals against the refusal of an application for land reconfiguration – where the proposed reconfiguration is to split one lot into eight lots – where the development is for a residential care facility – where the local city council refused the application – where there is non-compliance with the existing planning scheme – whether there are adverse consequences due to non-compliance – where respondent submits that the proposed reconfiguration would result in overdevelopment
Planning Act 2016 Qld s 45; Planning and Environment Court Act 2016 Qld s 43

Romantica DK Pty Ltd v Pennidan Pty Ltd [2021] QCAT 361
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – retail shop lease – assignment – security bond held – state of leased premises on assignment – owner’s consent – assignment effected – liability to return security bond on assignment Retail Shop Leases Act 1994 Qld Part 5 Division 3 

Ferguson v Rossiter [2021] QCAT 359
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – where land is rural land – whether tribunal has jurisdiction
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes - where land rural
Land Title Act 1994 Qld; Land Valuation Act 2010 Qld s 9, s 10, s 11; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Qld s 42(1), s 42(2), s 42(3), s 42(4), s 45, s48(1), s 52, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 Qld s 3(b), s 4(b), 4(c), s 13, s 32(2), s 62(1), s 95(1)

Legislation

Queensland

Subordinate legislation as made – reminders
No 138 Planning Amendment Regulation (No. 1) 2021
The objectives of the Amendment Regulation are to extend the expiry date of economic support instrument provisions under the Amendment Regulation by 12 months until 17 September 2022 to continue to assist Queensland’s economic recovery from COVID-19, and make minor amendments to increase the efficiency of the

No 50 Planning (COVID-19 Vaccination Service) Amendment Regulation 2021
Insert 20A When material change of use for providing COVID-19 vaccination service is not assessable development. This section expires on 31 December 2021.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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