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Inside track: Planning, Environment & Sustainability

02 October 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Urban Water Update 2019: Drought, Growth and Liveability
The Urban Water Update 2019: Drought, Growth and Liveability reflects on a year dominated by severe drought, and explores future challenges and opportunities including population growth, climate change and water’s broader role in people’s lives (13 September 2019).  More...

Parliament backs farmers with Criminal Code Amendment Bill set to become law
The Australian Senate passed the Criminal Code Amendment (Agricultural Protection) Bill, meaning tough new penalties for those who incite trespass, property damage or theft on agricultural land will soon become law (12 September 2019).  More...

Australia’s property industry global leader on ESG
Australia’s property industry has strengthened its position as a world-leader on environmental, social and governance (ESG) performance. The Australian and NZ real estate sector has again outperformed other regions in the world’s most trusted sustainability benchmark, the Global ESG Benchmark for real estate assets (09 September 2019).  More...

NSW

Missing Middle Delay Allows Councils To Define Appropriate Locations For Townhouses
The Urban Taskforce says it will be some years since the initial announcement by the NSW Government that a new complying code for town houses and terrace houses will increase density without the need for taller towers (19 September 2019).  More...

Fish Market redevelopment costs blow out by $500 million
Premier Gladys Berejiklian said the redevelopment was "a significant investment, but well worth it" and that detailed plans for the project will soon be placed on public exhibition (19 September 2019).  More...

New EPA guides to help the construction industry properly dispose of waste
The NSW EPA has published two new guidance documents to help the construction and demolition industry strengthen their procurement and contract processes around waste disposal (17 September 2019).  More...

What has skewed Sydney's population growth?
Labor's planning spokesman said there was a "clear political dimension" to Sydney's uneven population growth (09 September 2019).  More...

Queensland

Heritage projects across Queensland receive more than $940,000 in funding
Owners and custodians of heritage-listed places will share in more than $940,000 in funding to help protect Queensland’s important state heritage places (20 September 2019).   More...

Cul de sac safe after huge response to walkability strategy
The Palaszczuk Government has received an overwhelming response to public consultation on a new model code for neighbourhood design (20 September 2019).  More...

Delay in Qld prosecution of Adani slammed
A court case over Adani allegedly providing false information has been delayed before it started, after Adani applied for the adjournment late on Thursday for more time to consider the matter. Adani has claimed the allegations are over an "administrative error", which was self-reported in September 2018 (20 September 2019).  More...

AgForce, Local Government Association disagree on land clearing rule
A decision by the High Court last week to uphold the power of Queensland councils to control vegetation management on category X land will make the process even more confusing for primary producers, according to AgForce (18 September 2019).  More...

Barrier Reef facing endangered list if run-off laws don't pass, Environment Minister warns
The Queensland Government is expected to pass a bill today to introduce new mandatory farm run-off regulations to protect the reef, despite opposition from agricultural groups (18 September 2019).  More...

Flood mitigation works reduce risk for 500+ Roma properties
The flood risk for more than 500 Roma properties has been officially downgraded, with the Palaszczuk Government approving updated flood maps for the area after the completion of $8.3 million in flood mitigation works (17 September 2019).  More...

Peet Wins Approval for 1700 Lots in Logan Satellite City
The Queensland government has approved the development of 1700 new lots in a $6.7 billion satellite city development in Logan. Part of the priority development area, Flagstone was earmarked by the Queensland government to fast track the supply of affordable housing in what is considered as one of South East Queensland’s fastest-growing corridors (16 September 2019).  More...

Planning schemes to support ATSI knowledge, culture and tradition
Queensland’s planning legislation is leading Australia in its recognition of the need to value, protect and promote Aboriginal and Torres Strait Islander knowledge, culture and tradition (12 September 2019).  More...

High Court ruling makes managing vegetation ‘virtually impossible’
A decision by the High Court this week has made vegetation management for Queensland primary producers even more confusing, exposing them to fines of up to $600,000 per breach. The High Court decision upheld the power of councils to control vegetation management on ‘Category X’ land – about 20 per cent of Queensland’s landmass – where there is a local planning scheme in place (13 September 2019).  More...

High Court boosts Queensland councils' power to limit land clearing
The Queensland Court of Appeal upheld the original finding in the Planning and Environment Court in favour of the council, that affects one-fifth of the state’s landmass (12 September 2019).  More...

Judge overrules council on rejected aged care high-rise in Taringa
A planning court judge has overturned Brisbane City Council’s decision to reject a three-building high-rise aged care centre in Taringa, after the applicants agreed to reduce the size of the facility. The development on an 11,830-square-metre block, submitted by TriCare in 2017, was rejected by the council on grounds including that it was oversized and “dwarfed” the low-lying suburb (12 September 2019).  More...

North Queensland Regional Plan released
The Property Council has welcomed the announcement that the first-ever draft Regional Plan for North Queensland has been released. The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville (12 September 2019).  More...

New Tower Planned for 10 St Kilda Ave Broadbeach
A vacant 607sq m block at Broadbeach will have a 21-storey tower comprising 60 units delivered to the slight site, if approved by the Gold Coast City Council. The application, which seeks code assessment for a mixture of 36 residential apartments and 24 short-term accommodation (10 September 2019).  More...

In Practice and Courts

Announcements, Draft Policies and Plans released 2019

NSW

Environment Protection and Biodiversity Conservation Act 1999 [Gaz September 2019]
For further information see the referrals list.  More...

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018.  More...

Planning Circular – Commencement of Part 6 (building and subdivision certification provisions)
FAQ - Occupation certificate
FAQ - New mandatory compliance powers for private principal certifiers
FAQ - New subdivision works certificate
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
If you have any queries, please contact the Department of Planning, Industry and Environment.
More...

The Low Rise Medium Density Housing Code deferred
The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) has been amended to extend for a further short period, until 31 October 2019. For landowners, pending recommendations of the review, landowners in deferred council areas will not be able to use the Code to lodge a complying development application for dual occupancies, manor houses or terraces until 1 November 2019 (or 1 July 2020 in the City of Ryde).  More...

EPA: Updated Contaminated Land Guidelines Consultation
The NSW Environment Protection Authority (EPA) is seeking feedback on two draft contaminated land guidelines, one for consultants reporting on contaminated land and the other for assessing and managing hazardous ground gases. To view and submit feedback visit the EPA’s consultation website. Consultation is open until 8 October 2019.   More...

Queensland

Waste tyre receivers in Queensland now need an environmental authority
An environmental authority (EA) is now required for activities that involve receiving and sorting, dismantling, baling or storing greater than 4t or 4m3 of end-of-life tyres at any one time. This activity is regulated under Environmentally Relevant Activity (ERA) 62 - Resource recovery and transfer facility operation in accordance with the Environmental Protection Regulation 2019.  Learn more about the waste changes, including ERA 62.
Operators who were carrying out this activity prior to 23 November 2018 have until 23 November 2019 to hold an EA. For operators that have not already lodged an EA application, it is recommended that they submit one as soon as possible to allow enough time for the department to process the application.
Stage 2 changes
Stage 2 commenced on 1 July 2019 and introduces the remaining waste-related ERAs.
The information sheet Fees for new waste environmentally relevant activities (ERAs) (PDF, 73K) details the new fees that apply for waste-related ERAs from the first anniversary day after 15 November 2019 or the next anniversary day if the environmental authority is amended before 15 November 2019.

North Queensland Regional Plan
The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville. Consultation on the draft document closes on 22 November 2019 (12 September 2019).  More...

Environment Protection and Biodiversity Conservation Act 1999 [Gaz September 2019]

For further information see the referrals list
2019/8508 ADANI INFRASTRUCTURE PTY LTD/Transport - Water/Galilee Basin/Queensland/North Galilee Water Scheme Water Infrastructure, near Clermont, Qld (13/09/2019)

DES Prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.
Prosecution bulletin no 8/2019 (PDF, 143K) (September 2019)

Cases

NSW

Bouchard v Waverley Council [2019] NSWLEC 1449
DEVELOPMENT APPLICATION – alterations and additions including an additional level to a development for which consent has been granted but has not yet been constructed – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards have not demonstrated that compliance with the development standards is unreasonable or unnecessary to justify the contravention.

Goldfields Central Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1434
DEVELOPMENT APPLICATION – seniors housing development – whether the proposal is consistent with the existing and future desired character of the locality

Hatch v Northern Beaches Council [2019] NSWLEC 1422
MODIFICATION APPLICATION: whether substantially the same development; gymnasium in a dwelling; habitable room and BCA; basement

Koresoft Pty Ltd v Natural Resources Access Regulator [2019] NSWLEC 1421
ORDERS: conciliation conference; agreement between the parties; orders to stop work on channel network

Larry Karlos v Tweed Shire Council; Matthew Karlos v Tweed Shire Council [2019] NSWLEC 1418
APPEAL – development applications – helipad – Council agrees to grant of consent – objector concerns – acoustic impact – compatibility with the zoning of the land – availability of another site

Heazlewood v Byron Shire Council [2019] NSWLEC 1429
DEVELOPMENT APPLICATION: change of use to detached dual occupancy and strata subdivision – existing secondary dwelling approved under State Environmental Planning Policy (Affordable Rental Housing) 2009 – contravention of numerical development standard for minimum lot size for dual occupancies – written request seeking to justify the contravention has not demonstrated that compliance with the development standard is unreasonable or unnecessary to justify the contravention 

Winten (No 21) Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 1426
The orders of the Court are: (1) Newcastle City Council is joined as the Fifth Respondent to these proceedings. JOINDER – application for joinder – statutory tests
Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005

KAR Group Pty Ltd v Canterbury Bankstown Council [2019] NSWLEC 1407
DEVELOPMENT APPEAL – residential apartment development – affordable rental housing – whether sufficient environmental planning grounds to justify contravention of development standard

RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129
NOTICE OF MOTION – compensation claim in relation to loss or damage arising from right of access across the boundary between land and a road being restricted and/or denied – motion filed by respondent seeking strike out and dismissal under rr 14.28 and 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – paragraphs from Points of Claim struck out

Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd [2019] NSWSC 1201
CONTRACT – defendant’s obligation to consent to development application prepared by plaintiff qualified by right to refuse consent if development application is not based on “Jago Concept Plans”. ESTOPPEL – representations made by defendant to plaintiff after development application relied upon different architectural plans – whether defendant waived right of refusal and is estopped from relying upon it – appropriate remedy.

Queensland

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 184

APPEAL AND NEW TRIAL –APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where applications for mining leases and an amendment to an environmental authority to expand a mine owned by Acland were referred to the Land Court – where the Land Court hearing commenced on 7 March 2016 and recommendations were reserved on 7 October 2016 – where Acland filed an application on 16 December 2016 to reopen the hearing to tender new evidence – where a hearing was listed on 2 February 2017 to determine the application to reopen and address errors with the e-trial software – where the Member arranged to go on leave in February and March 2017 as long as a year before – where media reports in January 2017 commented on the delay of the Land Court’s recommendations and concern that it would impact upon jobs at the mine – where the Member interpreted the media reports as Acland criticising the Member for taking leave as it would delay the delivery of the recommendations and affect jobs – where the Member considered that the comments about his leave could be regarded as contempt of court – where the Member asked Acland at the 2 February 2017 hearing to explain the media reports – where Acland’s counsel submitted that the comments about the Member’s leave in the media reports were not attributed to Acland nor could they be interpreted as being in contempt of court – where at the end of the hearing the Member stated that he considered “the matter closed” and that he would not refer it for contempt of court proceedings – where Acland’s counsel did not make an application for the Member to disqualify himself for apprehended bias – where the Land Court delivered the recommendations and reasons on 31 May 2017 – where Acland applied for judicial review of the recommendations on various grounds including apprehended bias – where the learned primary judge concluded that there were reasonable grounds upon which to apprehend bias but Acland had waived its right to complain at the 2 February 2017 hearing and the Member’s reasons did not “re-enliven” that apprehension – where Acland filed a cross-appeal that the learned primary judge erred in failing to conclude that a fair minded lay observer would reasonably apprehend from the reasons that the Member might still be affected by his personal offence, feelings and views formed at the 2 February 2017 hearing – where claims of apprehended bias strike at the validity of the hearing and outcome below and should be dealt with before other substantive issues are decided – where Acland accepts that it elected to waive its right to make an application for the Member to disqualify himself following the 2 February 2017 hearing – whether the Member’s reasons for the recommendations raise a fresh apprehension of bias
ENERGY AND RESOURCES – WATER – WATER MANAGEMENT – SUBTERRANEAN WATER – where applications for mining leases and an amendment to an environmental authority to expand a mine owned by Acland were referred to the Land Court – where s 269(4) of the Mineral Resources Act 1989 (Qld) and s 191 of the Environmental Protection Act 1994 (Qld) provide the relevant considerations the Land Court is required to take into account – where the Member determined that the Land Court’s jurisdiction permitted it to consider the effect of the proposed mining operations upon groundwater in the area – where there is a separate provision under s 206 of the Water Act 2000 (Qld) to apply for a licence that would permit the holder of a mining tenement to interfere with water under the relevant land – where the learned primary judge, on judicial review, found that due to the separate statutory authority concerning the interference of groundwater, the Land Court did not have jurisdiction to consider the impacts upon groundwater – where the statutory regime has been amended following Acland’s application for judicial review so as to include interferences with groundwater as a relevant consideration under referrals to the Land Court from the Mineral Resources Act and Environmental Protection Act – whether the Land Court, in this matter, had jurisdiction to consider the impact of the proposed mining operation on groundwater
Environmental Protection Act 1994 Qld s 190, s 191; Mineral Resources Act 1989 Qld s 269; Water Act 2000 Qld s 206 

Legislation

Bills

Criminal Code Amendment (Agricultural Protection) Bill 2019
House of Representatives Message from Senate reported 12/09/2019
Consideration of Senate message Details: House agreed to Senate amendments 12/09/2019
Amends the Criminal Code Act 1995 to introduce two new offences in relation to the incitement of trespass or property offences on agricultural land

NSW

Regulations and other miscellaneous instruments
Natural Resources Access Regulator Amendment Regulation 2019 (2019-464) — published LW 20 September 2019
Protection of the Environment Operations (Waste) Amendment Regulation 2019 (2019-465) — published LW 20 September 2019
Environmental Planning and Assessment Amendment (Artificial Waterbodies) Regulation 2019 (2019-452) — published LW 13 September 2019

Environmental Planning Instruments
State Environmental Planning Policy (State Significant Precincts) Amendment (Sydney Olympic Park) 2019 (2019-460) — published LW 13 September 2019
State Environmental Planning Policy Amendment (Artificial Waterbodies) 2019 (2019-459) — published LW 13 September 2019
State Environmental Planning Policy Amendment (Waterloo Metro Quarter) 2019 (2019-449) — published LW 12 September 2019

Queensland

Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019
Introduced by: Hon L Enoch MP on 27/02/2019
Stage reached: 2nd reading adjourned on 18/09/2019

Subordinate legislation as made – 20 September 2019
No 187 Environmental Protection (Financial Provisioning) (Transitional) Regulation 2019
No 188 Nature Conservation (Wildlife) and Other Legislation Amendment Regulation 2019
No 189 Waste Reduction and Recycling (Container Refund Scheme—Material Recovery Agreements) Amendment Regulation 2019

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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Peter Holt

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Sydney

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Brisbane

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