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Inside track: Planning, Environment & Sustainability

20 February 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Australia on track to meet Paris Agreement targets five years earlier than expected, research finds
Australia is on track to meet its Paris climate commitments five years earlier than expected — in 2025 — according to new research from the Australian National University. Lead researcher Professor Andrew Blakers said we have a very vigorous rooftop solar industry and very experienced ground-mounted solar farm and wind farm industry (8 February 2019).  More...

Damning royal commission report leaves no doubt that we all lose if the Murray-Darling Basin Plan fails
Evidence uncovered by the Royal Commission showed systemic failures in the implementation of the Murray-Darling Basin Plan. The damning report must trigger action by all governments and bodies involved in managing the basin (4 February 2019).  More...

Murray-Darling Basin Royal Commission slams authority for 'maladministration'
The Murray-Darling Basin Royal Commission finds Commonwealth officials committed gross maladministration, negligence and unlawful actions in drawing up the multi-billion-dollar deal to save Australia's largest river system (31 January 2019).  More...

Why outer suburbs lack inner city’s ‘third places’: A partial defence of the hipster
The independent owner-operated businesses that bring life to run-down neighbourhoods often have a hipster ethos. One of the stark differences between neighbourhoods in the inner city and outer suburbs in Australia is the quality and type of retail offerings (31 January 2019).  More...

Australia’s record on emissions and sustainability condemned by OECD review
The OECD’s damning report says the status of Australia’s biodiversity is poor and worsening and the country is increasingly exposed to floods, heatwaves and bushfires. Australia is not on track to meet its 2030 emissions targets under the Paris agreement and needs to bring its environment policies into line with the “scale of the challenge” the country is facing (30 January 2019).  More...

Creating a new project finance market for the war on waste
As more local governments around Australia seek new ways to treat food waste, councils in southeast Melbourne will meet the challenge of bulging landfill and increasing greenhouse emissions by composting household organic waste on an industrial scale (30 January 2019).  More...

Commission findings to show parts of Murray-Darling-Basin Plan breached the Water Act
Commissioner Bret Walker SC dismisses recollections from former water minister Tony Burke that the sustainable level of water "take" was determined purely by environmental concerns, saying it was not consistent with contemporaneous records (28 January 2019).  More... 


City of Melbourne: Updated statement on fire at 200 Spencer Street
The City of Melbourne’s Municipal Building Surveyor is assisting the building manager and body corporate (on behalf of the owners) to reinstate essential safety measures. Until this work is completed residents are unable to return to the building (5 February 2019).  More...

Federation Square management push for demolition
Plans for one of Apple’s largest stores to be built at Melbourne's landmark Federation Square continue to gather pace, despite it being considered for a heritage listing (31 January 2019).  More...

New South Wales

'Dire consequences': New South Wales court quashes plans for new coal mine
Plans for a new coal mine near Gloucester, on the NSW mid-north coast, are scuttled by the Chief Justice of the Land and Environment Court, who claimed it would be in the "wrong place at the wrong time" (8 February 2019).  More... 

New planning measures to help Darkinjung determine use of its land
Minister for Planning and Housing, Anthony Roberts, has announced a suite of pioneering planning measures to help the Darkinjung Local Aboriginal Land Council better utilise its land. The measures align the planning system more sympathetically with the ALR Act, stimulating improved governance, empowerment, strategic planning and more efficient land use (6 February 2019).  More...

Operation Rubble state-wide crackdown on rogue waste transporters
A coordinated state-wide multi-agency crackdown on the illegal transportation and dumping of waste, held throughout November 2018 disrupted the criminal waste trade (5 February 2019).  More... 

'Locked in': Ice rink's future guaranteed with heritage recognition
The New South Wales government has granted an interim heritage order for the Macquarie Ice Rink (2 February 2019).  More...

Terraces before towers: Sydneysiders want more medium-density housing
As debate rages over residential development in Sydney, new polling shows widespread support for more terraces and townhouses (30 January 2019).   More...

Taronga Zoo awarded six-star environmental rating
Taronga Zoo is the first zoo in Australia to receive a six-star environmental rating from the Green Building Council of Australia (29 January 2019).  More...


New south-east Queensland environment alliance calls for planning overhaul
An alliance of community and environmental groups says the 'community voice' in development applications is being lost within Queensland's complex and unwieldy planning system (10 February 2019).  More...

Townsville floods reveal weak protections for real estate assets
There seems to be no nationally consistent policies to protect assets and the investment they represent from the impacts of rising sea levels, more frequent storm surges and increased erosion in the coastal zone (7 February 2019).  More...

Townhouses to be kept out of suburbs if council approves temporary ban
Townhouses and apartment blocks may no longer be welcome in Brisbane's character suburbs after Brisbane City Council votes on a temporary local planning instrument to protect the backyard from being built out (4 February 2019).  More...

Mt Coot-tha zip-line given go-ahead by Brisbane City Council
The controversial Mt Coot-tha zip-line has been given the go-ahead by the Brisbane City Council, despite opposition council claims the project still needs approval from the state government (4 February 2019).  More...

Recycling and waste report highlights need for action on waste
A report released by the Palaszczuk Government shows more waste was coming from interstate last financial year, and Queensland’s reported waste generation exceeded 10 million tonnes for the first time (5 February 2019).  More...

EDO Queensland eyes in the sky: Drones and environmental monitoring
One important use they’re being put towards is environmental monitoring that allows community members to observe and record activities such as mining operations, vegetation clearing and urban development if they are concerned about lawfulness of the activities. But what does the law say about using drones for this purpose (1 February 2019).  More...

In practice and courts


Trajectory for low energy buildings
On 1 February 2019 Energy Ministers agreed the Trajectory for Low Energy Buildings, a national plan that sets a trajectory towards zero energy (and carbon) ready buildings for Australia. The Trajectory, and its underlying reports, seek to inform the future activities of the Building Ministers' Forum and the Australian Building Codes Board when developing and implementing updates to the NCC, and to inform further Energy Council activities around building policy measures.  More...

RICS consultation: Valuation of development land - new draft guidance note
The aim of this guidance note is to assist the valuer in their approach to development property valuations. The principles set out in this guidance note apply to all valuations of development property and should be read in conjunction with RICS Valuation – Global Standards 2017 (the Red Book) – incorporating the International Valuation Standards (IVS) 2017. Submissions closed on 18 February 2019.  More...

NABERS Strategic Plan 2019-2023 – Open for consultation
Nabers has released their draft Strategic Plan and welcome your feedback which closes on 28 February 2019. The Strategic Plan sets out a new vision for NABERS to scale up its role in driving sustainable change to a larger part of the Australian economy going forward.  More...

NABERS Plans for 2019
Preparation for the inclusion of Commitment Agreements as a Verification Method for office buildings into the National Construction Code 2019

Public authority directors’ duties and climate change
This paper argues that while some public authorities are responding in a sophisticated way to climate risk, changes are needed to support wider adoption of best-practice approaches (1 February 2019).  More...

Call for nominations - Threatened species, ecological communities or key threatening processes
Nominations are invited for species, ecological communities or key threatening processes to be considered for listing under national environment law during the assessment period starting 1 October 2019. Nominations close on Thursday 28 March 2019.  More...

Weather gone wild: Climate change-fuelled extreme weather in 2018
As many Australians already believe, this report finds that climate change is increasing the frequency and/or severity of extreme weather and that Australians are suffering as a result (6 February 2019).  More...

Announcements, Draft Policies and Plans released 2019


Consumer Victoria: Residential Tenancies Amendment (Long-term Tenancy Agreements) Act 2018 - Legislation update
As of 1 February 2019, the Residential Tenancies Act 1997 applies to all fixed-term residential tenancy agreements, regardless of length (1 February 2019).  More...

New South Wales

New 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 will commence on 1 March 2018, there will be a number of other changes that will involve further design and consultation.

NSW Revenue: Ten-minute grace period for parking tickets
The NSW Government has introduced a 10-minute grace period for at least one hour of paid ticketed parking, which has been effective from Thursday 31 January 2019. It does not apply to certain areas such as bus lanes, clearways and transit lanes. One of the Government key changes are parking fines reductions. The NSW Fines Review is ongoing and you are invited to provide your feedback on the NSW fines review website (2 February 2019).

Combustible cladding registration due 22 February 2019
Under the new Regulations, owners of certain buildings with external combustible cladding are required to register their building with the NSW Government through the Cladding Registration portal, the deadline for registration is 22 February 2019. Owners of new buildings will be required to register their building within four months of the building first being occupied.  More...


A city for everyone: Brisbane plan open for consultation
Brisbane City Council has released ‘A City for Everyone: Draft Inclusive Brisbane Plan 2019-2029,’ for public consultation. The draft plan proposes 67 possible actions under five themes: connect, work, live, enjoy and engage. An online survey can be completed here, and will close on 15 February 2019. To find out more visit Council’s website.

SEQ People Mass Movement Study
The Council of Mayors (SEQ) SEQ People Mass Movement Study, is a strategic transport road map report, that addresses SEQ’s current transport strategies, services and infrastructure, and examines how it will cope with the State’s anticipated population growth. The report predicts that a combination of population and employment growth will increase transport demand across the region by 30 per cent by 2031.

Department of State development consultations
Dunwich (Goompi) Master Plan Stage 2: Ideas and Scenarios survey Closes 28 February 2019
Six Mile Creek Dam Safety Upgrade project – draft impact assessment report Closes 11 March 2019



Winky Pop Pty Ltd v The State of Victoria & Mobil [2019] VSCA 9
ESTOPPEL – Issue estoppel – negligence, nuisance – damages – contamination of land – applicants sought identical relief against both respondents – second respondent admitted liability – trial proceeded against second respondent only – Pre-trial order that first respondent be bound by trial findings – first respondent participated in trial – applicant’s claims dismissed as against second respondent – whether applicant estopped from proceeding against first respondent on identical claims – whether abuse of process – leave to appeal refused – Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589, Tomlinson v Ramsay Food Processing [2015] HCA 28; (2015) 256 CLR 507 applied.

Block v Powercor Australia Ltd [2019] VSC 15
NEGLIGENCE – Duty of care – bushfire – fire ignited by contact between tree and power conductor – responsibility to clear vegetation – tree outside minimum clearance space and not hazardous – statutory and common law duties of care alleged – whether alleged duties known to the law – interpretation of statutory regime for tree clearance around powerlines – whether general duty inconsistent with specific statutory duties and powers – whether such duties have any real prospect of being successfully established – Electrical Safety Act 1998 (Vic) pt 8, pt 10, ss 1, 3, 82, 84, 85, 86, 98, 151, 151A; Electrical Safety (Electric Line Clearance) Regulations 2015 (Vic) regs 6, 7, sch 1.
PRACTICE AND PROCEDURE – Summary judgment – defendant’s application for summary dismissal – Civil Procedure Act 2010 (Vic) ss 63, 64 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 23.01. 

Fivex Pty Ltd v Melbourne CC (Red Dot) [2019] VCAT 138
NATURE OF CASE – Characterisation of signs – expiry of permit for signs – role of estoppel in planning cases.
LEGISLATION – Interpretation or application of statutory provision - operation of section 68 Planning and Environment Act 1987, clause 52.05-4 of the planning scheme and expiry condition in a permit – consideration of the ways in which a permit can expire under the Planning and Environment Act 1987, the planning scheme and conditions in a permit.
PLANNING SCHEME – Interpretation or consideration of VPP provision - consideration of definitions of major promotion sign and business identification sign in clause 73.02 – operation of expiry date provisions in clauses 52.05-4 and 52.05-9. 

Beaton v Department of Environment, Land, Water and Planning (Review and Regulation) [2019] VCAT 137
Review and Regulation List – wildlife – applicant licensed to keep dingoes – review of decision to cancel licence – dingoes escaped from enclosure on multiple occasions – dingo killed pet dog – matters of discretion to cancel licence – Wildlife Act 1975 s.25B, 25D and 86C, Wildlife Regulations 2013, Regulation 57(2)(b) and (g).

Croke v Moira SC [2019] VCAT 112
Application pursuant to Section 82 of the Planning and Environment Act 1987 – renewable energy facility – solar energy – flooding – bushfire – cultural heritage – landscaping – native vegetation.
Land use – visual impact – state and local policy – net community benefit.

New South Wales

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7
APPEAL – Open cut coal mine – impacts on existing, approved and likely preferred uses of land in the vicinity – high visual impact – negative social impacts – impacts of the mine on climate change – economic and public benefits of the mine and other land uses – impacts and costs of mine outweigh benefits of mine – development consent refused. 

Stratford Coal Pty Ltd v Minister for Planning [2019] NSWLEC 8
APPEAL – Modification application – modification of consent to transport and process coal from another mine – consent for other mine refused – no purpose in modification application as a consequence – modification application refused. 

Aslan Investments Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1042
DEVELOPMENT APPLICATION – Residential flat building comprising 20 apartments over basement car parking pursuant to Division 1 of State Environmental Planning Policy (Affordable Rental Housing) 2009 – conciliation conference – agreement between the parties – orders. 

Whittaker v Northern Beaches Council [2019] NSWLEC 1038
DEVELOPMENT APPLICATION – Seniors living – permissibility of use determined by the Court as a preliminary issue – building height – streetscape compatibility – tree removal – neighbourhood amenity and impacts – privacy for future residents – safe pedestrian access to bus stop for future residents – resolution of contentions by amended plans and new footpath – neighbour objections. 

Pennine Developments Pty Ltd v Cumberland Council [2019] NSWLEC 1031
DEVELOPMENT APPLICATION – Multi dwelling housing – affordable rental housing – compatibility of the development with the locality – appropriateness of two storey development at the rear of the site – streetscape presentation of the development – application warrants refusal. 

Summers v Kumar [2019] NSWLEC 1041
TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 – damage to driveway – compensation – has causation been shown – Part 2A – cypress hedge – obstruction of views – severity of obstruction – can trees be pruned to restore views. 

Owen v Coffs Harbour City Council [2019] NSWLEC 1032
DEVELOPMENT APPLICATION – subdivision – compliance with requirements of DCP. 

Landmark Group Australia Pty Limited v Lane Cove Council [2019] NSWLEC 1034
DEVELOPMENT APPLICATION – Demolition and construction of residential flat development – principal issue whether the development creates an isolated site – minimum site area standard not achieved – variation to the site area control reasonable – approval warranted.

Progress East Pty Ltd v Randwick City Council [2019] NSWLEC 1029
DEVELOPMENT APPLICATION – Modification of development consent – s 4.55(1A) of EPA Act – whether substantially the same development – whether minimal environmental impact – amenity – objections – consent orders. 

Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6
PRACTICE AND PROCEDURE – Review of the Registrar’s decision to allow amendment of a development proposal before the Court. 

Blairgrove Pty Ltd v Burwood Council [2019] NSWLEC 1027
DEVELOPMENT APPLICATION – Hotel – pub – relative disadvantage – social impact – alcohol related harm – trading hours – street crime – amenity – noise – trial period. 

Morad v Inner West Council [2019] NSWLEC 1005
DEVELOPMENT APPLICATION – Heritage item – heritage significance – stormwater. 

Lu Projects Pty Ltd v Fairfield City Council [2019] NSWLEC 1021
DEVELOPMENT APPLICATION – Commercial/retail space – child care centre – cl 4.6 variation to height standard – vehicle emissions – classified road – roof top outdoor play area – ventilation and solar access – waste management. 


Swan v Santos GLNG Pty Ltd & Ors [2019] QCA 6
PLANNING AND ENVIRONMENT – ENVIRONMENTAL LAW – Where part of the respondent’s [Santos’] gas pipeline was built on the applicant’s properties – where Environmental Authorities were granted to Santos – where the applicant filed an originating application applying for declarations under s 505 of the Environmental Protection Act 1994 (Qld) that Santos was in breach of various conditions of the Environmental Authorities – where the applicant sought the appointment of an independent expert to report to the court on the extent of the breaches and the rehabilitations required – where the primary judge found that the orders sought at trial were beyond power – where Santos’ expert believed that all recommended rehabilitation had been undertaken except those obligations that required ongoing maintenance – where Santos undertook to continue that ongoing maintenance.
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – COSTS – GENERALLY – Where the applicant was wholly unsuccessful in the proceeding below – where the primary judge ordered the applicant to pay the respondents’ costs of the proceedings on the standard basis or as agreed – where s 457(1) of the Sustainable Planning Act 2009 (Qld) provides that the costs of the proceeding are in the discretion of the Planning and Environment Court – where it was accepted that the general rule that costs follow the event did not apply and instead the non-exhaustive list of considerations in s 457(2) should be considered – where the primary judge observed that the court never ruled against the no case submission – where the court did in fact rule against the no case submission – where the primary judge considered the factor in s 457(2)(d) of whether a party commenced or participated in the proceeding without reasonable prospects of success in light of this error – whether the primary judge erred in ordering the applicant to pay the respondents’ costs of the proceeding on the standard basis.

Jenkinson v Tablelands Regional Council [2018] QPEC 69
PLANNING AND ENVIRONMENT – Application to extend a lapsed development approval – where the development permit lapsed pursuant to s 341 of the Sustainable Planning Act 2016 (Qld) – whether the non-compliance ought be excused and orders made to review and extend the development permit.

Tissizis & Anor v Cassowary Coast Regional Council [2018] QPEC 68
PLANNING AND ENVIRONMENT – Appeal against council decision to issue a development permit for a material change of use for medium impact industry.

Heuvel & Anor v Cairns Regional Council [2018] QPEC 67
PLANNING AND ENVIRONMENT – Appeal against Council for condition imposed on permit – partial approval of development permit for operational clearance – resolution reached by parties.

Harris v Minister For Department Of Natural Resources And Mines [2018] QPEC 66
PLANNING AND ENVIRONMENT – Appeal on whether a development permit was required for the clearing of native vegetation – whether the enforcement notice was unlawfully interfering in respect of permits.


New South Wales

Regulations and other miscellaneous instruments

Biodiversity Conservation (Savings and Transitional) Amendment (Threatened Species Conservation) Regulation 2019 (2019-57) — published LW 8 February 2019
Electoral Funding Amendment (Savings and Transitional) Regulation 2019 (2019-58) — published LW 8 February 2019
Biodiversity Conservation (Savings and Transitional) Amendment (Upper Hunter Strategic Assessment Agreement) Regulation 2019 (2019-42) — published LW 1 February 2019

Environmental Planning Instruments

State Environmental Planning Policy (Aboriginal Land) 2019 (2019-55) — published LW 6 February 2019
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Inland Code) 2019 (2019-67) — published LW 8 February 2019

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. 

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