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Inside track: Property & Real Estate

20 May 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

During COVID-19 crisis, one type of commercial property stands above all others
News of tenants across different sectors requesting rent relief will likely see investors gravitate toward an asset where the state or federal governments are a tenant (08 May 2020).  More...

Micro-weddings and private dining rooms: How Australian hotels are adapting during coronavirus
Australia’s struggling hotels are going all out to innovate in order to stay in business, converting serviced suites into residential apartments or temporary offices, allocating beds for the homeless and offering special isolation packages with reduced prices for long-term stays (07 May 2020).  More...

Catalyst infrastructure fund proposal
The Property Council, Urban Development Institute of Australia and Housing Industry Association have written to the Minister for State Development, Manufacturing, Infrastructure and Planning to advocate for a new approach to catalyst infrastructure funding (06 May 2020).  More...

How will buildings adapt to the new realities of home?
As the world has responded to COVID19, working life has instantly shifted from offices and co-working to working from home. This will change the way we design and use our workplaces, schools and homes. While we expect the physical changes to offices and classrooms to happen over time, the changes to our homes could be far more rapid (29 April 2020).  More...

A sensible step to support housing construction
The Property Council of Australia has called on state and territory governments to consider housing and display home inspections as they look at easing social distancing restrictions (29 April 2020).  More...

New standard to transform Australian homes of the future
An ambitious new standard for Australian homes will help drive the transformation of the housing market to ensure new homes are built to a higher standard which is focused on health, resilience and net zero energy (07 May 2020).  More...

KPMG: Potential economic pay-off of a circular economy for Australia
A circular economy could deliver Australia a $23 billion GDP boost by 2025, according to a new report produced by KPMG. Commissioned by the CSIRO, Potential economic pay-off of a circular economy for Australia investigates the potential economic effects of circular opportunities in three key sectors of interest: Food, Transport and the Built Environment (07 May 2020).  More...

AHURI: Trends show that home ownership is unlikely to increase in the future
The research suggests that while no single policy failure, single political decision or single market or state failure has eroded the ability to achieve the ownership dream, the change has come from complex shifts throughout the entire institutional environment. (07 May 2020).  More...

March housing finance numbers a high tide mark
The March 2020 Lending to Households and Business figures released today by the Australian Bureau of Statistics show the value of loans for housing continued to increase, albeit at a slower rate, with the increase being driven by owner occupiers, according to the Real Estate Institute of Australia (REIA). (06 May 2020).  More...

A good old-fashioned commercial property crisis could wreck recovery
History shows that trouble in commercial property ends up roiling the broader economy. That sector is facing both a pandemic shock and longer-term changes that could smash investment plans (30 April 2020).  More...

If more of us work from home after coronavirus we’ll need to rethink city planning
If, as some expect, people are likely to work from home more often after the pandemic, what will this mean for infrastructure planning? Will cities still need all the multibillion-dollar road, public transport, telecommunications and energy projects, including some already in the pipeline (28 April 2020).  More...

Fast-tracked planning for the coronavirus recovery: Can triage help?
Fast-tracked planning approvals could accelerate the low carbon transition, fix social problems and boost the economy at the same time. Western Australia and NSW are using State Emergency powers to accelerate planning decisions and to extend planning permissions already granted but not yet started due to the lockdown (27 April 2020).  More...

Victoria

Making rebuilding easier for bushfire affected Victorians
Under the new streamlined process, applications to rebuild dwellings or businesses damaged or destroyed by bushfire after 1 January 2019 will be exempt from some planning requirements – meaning permit applications can be assessed much faster (06 May 2020).  More...

Planners say pandemic shows farmland on city fringes is crucial
Melbourne has withstood the pandemic by feeding itself on largely locally grown foods from here and interstate. But for how long if urban sprawl continues (06 May 2020).  More...

Free mediation service for commercial tenancy disputes
The service is provided through the Victorian Small Business Commission and is part of the Government’s commercial tenancy relief scheme. Regulations to deliver the scheme come into effect, implementing the commercial tenancy principles agreed by the National Cabinet (01 May 2020).  More...

NSW

Green light for thousands of new homes thanks to fast-tracked approval
More than 3,000 new homes, a new primary school and town plaza in Sydney’s North West have been given the green light, with the NSW Government approving the concept plans for Ivanhoe Estate (03 May 2020).  More...

Fast tracking projects key to economic recovery
Property Council of Australia has today welcomed the NSW Government’s announcement of the first tranche of 24 fast-tracked projects providing nearly 9500 jobs, $7.5 billion worth of investment and 4400 new dwellings to drive the recovery of the NSW economy (28 April 2020).  More...

Queensland

Further stop order for the Broadway Hotel
Environment Minister Leeanne Enoch has issued an eighth Stop Order under the Queensland Heritage Act, preventing any demolition that would impact the heritage significance of the Woolloongabba’s Broadway Hotel, ensuring the heritage-listed building is protected as essential repairs (08 May 2020).  More...

Major Qld shopping centres to go green as part of ground-breaking partnership
Five major shopping centres in Australia, including four here in Queensland will soon have solar panels covering their entire roofs as part of the first phase of a new partnership to deliver 15MW of renewable energy (06 May 2020).  More...

PCA: Priority development area updates
Economic Development Queensland have made some key announcements pertaining to Priority Development Areas in South-East Queensland for Woolloongabba Cross River Rail, Ripley Valley PDA and Oxley PDA (30 April 2020).  More...

Queensland’s residential developers upbeat despite headwinds
Keep calm, and communicate: That’s the general consensus from some of Brisbane’s private residential developers on how to manage the uncertainty surrounding the impact of the coronavirus pandemic (30 April 2020).  More...

H&F Property gets green light for controversial tower
Developer H&F Property plans for a controversial 14-storey tower in Palm Beach at Gold Coast were conditionally approved during council’s first round of meetings since the election and Covid-19 restrictions started in Queensland (29 April 2020).  More...

State land rent waived for farmers, tourism and clubs
More than 6000 farmers, businesses, tourism operators, and community and sports clubs, won’t have to pay state land rent for six months (29 May 2020).  More...

First look: Queen’s Wharf Brisbane River park
A suspended concrete platform will support a new 6,500sq m park on Brisbane River as part of the $3.6 billion Queen’s Wharf development by the privately-owned Destination Brisbane Consortium (29 April 2020).  More...

Fears some tenants will be 'picked off' amid government's rent law changes
Some renters face uncertain futures, unsure if their landlords' notices to vacate are legal given the state government's new protections and reasons to vacate (27 April 2020).  More...

Published – articles, papers, reports

Australian home ownership: past reflections, future directions
Terry Burke; Christian Nygaard; Liss Ralston; AHURI: 07 May 2020
The research examines the growth of home ownership and its tenure dominance in Australia after the Second World War, together with its fading, most notably for younger households (ages 25–44) over the last four decades.
Citation: Burke, T., Nygaard, C. and Ralston, L. (2020) Australian home ownership: past reflections, future directions. AHURI Final Report No. 328.  More...

In practice and courts

Commonwealth

SRO: Claim coronavirus land tax relief for landlords
Residential and commercial landlords who provide tenants impacted by coronavirus with rent relief and those unable to secure a tenant because of the pandemic may be eligible for a 25 per cent reduction on the property’s 2020 land tax via My Land Tax. For commercial landlords to be eligible, the property must be rented to a tenant with an annual turnover of up to $50 million who is also eligible for the Commonwealth Government’s JobKeeper Payment (01 May 2020).

Announcements, Draft Policies and Plans released 2020

NSW

NSW Revenue: 2020 land tax COVID-19 relief - guidelines
05 May 2020 - The NSW Government has introduced measures to provide relief to commercial and residential landowners.  More...

NSW Revenue: COVID-19 (coronavirus) and gaming machine tax
01 May 2020 – Gaming machine tax normally paid between 1 March 2020 and 31 August 2020 is deferred to 1 September 2020.  More...

NSW Revenue: COVID-19 (coronavirus) and parking space levy
29 April 2020 - As part of the NSW COVID-19 stage two economic package, the NSW Government has deferred parking space levy payments from the end of March for six months until 30 September 2020, to provide cash flow relief to businesses.  More...

Queensland

REIQ COVID-19 Update: Permissible real estate activities
While in-room auctions and traditional open homes are still not permitted in Queensland, some restrictions have been eased as of 1 May 2020. The following real estate activities outlined here  are now permissible. For more information please visit the  Queensland Health website, which has further details on restrictions and exemptions for non-essential business (02 May 2020).  More...

Planning legislation amendments
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. Note: 06 May 2020 Amendments to Temporary Use Licences (updated 30 April 2020).  More...

COVID-19 update on Courts, Commissions, Tribunals, property law and criminal law
QLS will provide up to date information on their website regarding the evolving COVID-19 situation and the response of the Courts, Commissions, and Tribunals in Queensland. View further key updates on information specifically relating to property law.
Updated  06 May 2020 – includes Treasurer’s determination under Corporations Act 2001 – execution of company documents and holding meetings  available here. The instrument is valid for 6 months from 5 May 2020.

Commercial and residential tenancies
QLS has prepared a Frequently Asked Questions document for our members on the recent changes to residential tenancies in Queensland, as outlined below.  The material and information in this document does not constitute legal advice.  QLS members are reminded that you can contact the Solicitor Assist program for free legal advice (28 April 2020).

Attendance for conveyancing settlements
The Titles Office continues to receive documents. The Office of State Revenue is maintaining usual services. Social distancing restrictions announced by the Government in the Home Confinement, Movement and Gathering Direction (No 3) (01 May 2020) do not prevent settlements from occurring. Settlements are not restricted by the Non-essential business, activity and undertaking Closure Direction (No.8) (01 May 2020).

State land rent relief – COVID-19 assistance
Under the proposed plans, the following categories of leases, licences or permits will be eligible for a rent waiver:
Category 11 (primary production); Category 13 (business); Category 14.2 (large sporting and recreational clubs with over 2000 members); Category 15 (communication sites); Category 16 (divestment i.e. industrial estates) (29 April 2020).  More...

Oxley priority development area master plan - submissions
This will feature 80 residential lots, 10 hectares of public open and green space, and a site for retirement and community facilities, as well as supporting the relocation of the Yuingi childcare centre. Submissions close 11 May via email.  More...

Consultation: Yeronga proposed development scheme for a mixed-use precinct in the Yeronga Priority Development Area (PDA)
The scheme establishes a planning framework to transform the site and sets out intended land uses, development criteria and infrastructure envisaged for the PDA. Submissions can be made between 1 April and 17 May.  More...

Brisbane City Council: Draft Central Park masterplan
The draft plan is now out for public consultation following the release of five creative concepts from architecture and planning firms last year. The Victoria Park concept plan is now open to the public until April 28 on the Brisbane City Council’s website.

Cases

196 Hawthorn Road Pty Ltd v Duszniak [2020] VSC 235
REAL PROPERTY – restrictive covenant – preliminary questions relating to proper construction of covenant – not to erect any building other than one private dwelling house of stated minimum cost without the consent in writing of the transferor – transferor now deceased – whether power to consent applied only to cost restriction – whether restrictions became absolute or spent on death of the transferor – principles of construction considered – Barport Pty Ltd v Baum [2019] VSCA 167 – admissibility of evidence of the existence and content of other covenants imposed by the transferor in relation to the purpose of the restrictions – Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528; Prowse v Johnston & Ors [2012] VSC 4; Suhr v Michelmore [2013] VSC 284; Clare v Bedelis [2016] VSC 381 – consideration of previous decisions – Bell v Norman C. Ashton Ltd (1956) 7 P & CR 359; In Re Beechwood Homes Ltd application [1994] 2 EGLR 178; Briggs v McCusker [1996] 2 EGLR 197; Crest Nicholson Residential (South) Ltd v McAllister [2003] All ER 46; Margerison v Bates [2008] EWHC 1211; [2008] 3 EGLR 165; Churchill v Temple [2011] 1 EGLR 73; Woodhouse v Woodhouse [2010] UKUT 235 (LC) – restrictions held to become absolute on death of transferor – Property Law Act 1958 (Vic) s 84(2).

Wegner & Anor v Mayberry [2020] VSC 239
REAL PROPERTY – caveats – application to remove caveat under s 90(3) Transfer of Land Act 1958 (Vic) – where defendant adduced no evidence to support interest – where any interest of defendant had already vested in trustee in bankruptcy – balance of convenience also favoured removal of caveat – order for removal made – Transfer of Land Act (Vic) s 90(3) – Chan and Wong v Liu and the Registrar of Titles [2020] VSCA 28
COSTS – indemnity costs – where caveat lodged for improper purpose – where caveat lodged in disregard of known facts – order for indemnity costs made.

Omar Property Pty Ltd & Ors v Amcor Flexibles (Port Melbourne) Pty Ltd (No 4) [2020] VSC 216
LANDLORD AND TENANT – tenant’s breaches of lease by performing structural works without a building permit – tenant’s failure to seek prior consent from landlord for works - whether breaches of lease were remedied – default notice – purported renewal of lease – Effect of Building Act 1993 (Vic) and Building Regulations 2006 (Vic) sch 8 item 4(a)(iii) – whether landlord required not to unreasonably refuse retrospective application for consent – whether consent was refused unreasonably – Building Act 1993 (Vic) ss 4(1), 4(2), 16 – Building Regulations 2006 (Vic) reg 1801, sch 8 item 4(a)(iii) – Property Law Act 1958 (Vic) s 146(1).

Anderson v Holden Peel Projects Pty Ltd (Building and Property) [2020] VCAT 538
Claim by apartment owner for damages arising from water entering her apartment made against the builder and the Owners Corporation – issues with expert evidence when multiple authors of one report – Dura (Aust) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99 – VCAT Practice Note PNVCAT2: Expert Evidence – the causes of the water entry – whether a breach by the builder of the s8 warranties under the Domestic Building Contracts Act 1995 – whether conduct of Owners Corporation was in breach of s4(b)(i), s5, s46 of the Owners Corporation Act 2006 – liability of builder and Owners Corporation under s16 of the Water Act 1989 – heads of loss and damage – diminution in value of property or rectification costs – claims in the nature of personal injury – whether the Tribunal has jurisdiction – logistics of hearing by video link.

Bennett v Estate of Talacko [2020] VSCA 99
DAMAGES – tort of unlawful means conspiracy – loss of opportunity damages – transfer of foreign properties to impede recovery of anticipated judgment debt – loss of opportunity to recover judgment debt against foreign properties – chance of recovering judgment debt against properties by succeeding in foreign proceedings assessed at 20 per cent – whether judge’s uncontested findings compelled assessment that no, or lesser, chance of recovery – Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, applied – Malec v JC Hutton Pty Ltd (1990) 169, considered – no error shown – appeal dismissed
COURTS – judgments and orders – special leave to appeal judgment refused – enforcement of judgment debt stayed because of bankruptcy of judgment debtor – whether judgment ‘final and unappealable’ for purposes of foreign law, notwithstanding stay – judgment ‘final and unappealable’ – Talacko v Bennett [2017] HCA 15; (2017) 260 CLR 124, considered. 

Zekry v Zekry [2020] VSC 221
EQUITY & TRUSTS – common intention constructive trust – joint endeavour constructive trust – financial and non-financial contributions allegedly made by plaintiff towards property – legal title to property held by defendant – whether defendant’s interest in property held on constructive trust for the plaintiff – whether parties expressed a common intention to hold properties for the benefit of the plaintiff – whether common intention implied from parties’ actions – whether parties entered into a joint endeavour concerning properties – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583; Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137; Sivritas v Sivritas [2008] VSC 374; Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460; McDonald v Dunscombe [2018] VSC 283; Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413.

SMAV Nominees Pty Ltd v Bakal Enterprises Pty Ltd [2020] VSC 203
CAVEAT – removal of caveat – caveat lodged by person claiming interest under a resulting or constructive trust by virtue of an alleged contribution to the purchase price – caveat prevents sale of property and may effect sale price and any potential settlement – caveat lodged without proper basis – no prima facie case established – no adequate interest in the property capable of supporting the caveat lodged – Piroshenko v Gosjman, [2010] VSC 240; (2010) 27 VR 489; Carbon Black Pty Ltd v Launer [2015] VSCA 126.

Argyle Building Services v Franek [2020] VSC 166
EQUITY – conspiracy – equitable fraud – claim under Barnes v Addy principles - liability for knowing receipt – liability for knowing assistance – whether defendant received trust property – whether defendant knew of dishonest and fraudulent design – whether funds transferred in breach of fiduciary duty – whether loss suffered – exercise of Mortgagees rights - Barnes v Addy (1874) LR 9 Ch App 244 - Property Law Act 1958 (Vic), s 172
PRACTICE AND PROCEDURE – freezing order – arguable case - risk of dissipation of assets – ex parte application – requirements of proper disclosure – allegations involving alleged dishonesty – Supreme Court (General Civil Procedure) Rules 2015 r 37A. 

Cobram & District Pony Club Inc v Muckatah Recreation Reserve Committee of Management (Building and Property) [2020] VCAT 529
LEASES AND LICENCES – contractual interpretation - meaning of “Exclusive use” – exclusive possession – lease or licence – sections 4, 8 and 17B of the Crown Land (Reserves) Act 1978 (Vic).

Smogurzewski v AIT Investment Group Pty Ltd [2020] NSWSC 490
LAND LAW – conveyancing – contract for sale – off-the-plan purchase – purchase of home unit and carspace – where home unit constructed as an adaptable unit and carspace marked with symbol for disabled persons access – purchaser rescinds contract under rule in Flight v Booth – whether presence of symbol means that owner would not have exclusive use of carspace or gave rise to risk of unauthorised use – held that owner would have exclusive right to possess and enjoy carspace – held that owner would have right to remove or conceal the symbol – purchaser not entitled to rescind contract – contract remains on foot – no warrant for deposit to be returned to purchaser   MISLEADING OR DECEPTIVE CONDUCT – off-the-plan purchase of home unit and carspace – purchaser not informed that unit would be constructed as an adaptable unit and that carspace would be marked with symbol for disabled persons access – not shown that at time of contract vendor had that intention – no false or misleading representations made by vendor – conduct of vendor not misleading or deceptive or likely to mislead or deceive.

Bowman Development Corporation Pty Ltd v Young Forever Property Pty Ltd (No 2) [2020] QDC 77
CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – SPECIFIC PERFORMANCE – plaintiff as vendor agreed to sell real property to first defendant as purchaser – earlier judgment entered against first defendant specifically to perform, execute and complete contract – first defendant did not complete contract – plaintiff seeks order for specific performance against second and third defendants as guarantors – second and third defendants submit they do not have the financial resources to complete the contract – whether evidence of second and third defendants’ inability to complete the contract is adequate – whether an order for specific performance would be futile.

Bowman Development Corporation Pty Limited v Young Forever Property Pty Ltd [2020] QDC 73
CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – SPECIFIC PERFORMANCE – plaintiff as vendor agreed to sell real property to first defendant as purchaser – deposit paid – first defendant failed to complete contract – plaintiff claimed order for specific performance – plaintiff submits first defendant is impecunious – plaintiff claims simultaneous order for specific performance of guarantee by second and third defendants – whether order for specific performance against first defendant would be futile – whether order for specific performance against the second and third defendants is premature
GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – neither purchaser nor guarantors had performed contract – whether orders for specific performance should be made against all defendants – whether order should only be made against the second and third defendants if the first defendant fails to comply with an order for specific performance
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – first defendant did not oppose the orders sought – defendants submitted a trial was still required in regard to the second and third defendants – claim for interest and equitable damages against the first defendant required a trial – no contractual right to indemnity costs – whether an indemnity costs order would be appropriate.

The Agile Wallaby Project Inc. v Department of Environment and Science [2020] QCAT 121
ENVIRONMENT AND PLANNING – ENVIRONMENTAL IMPACT ASSESSMENT AND APPROVAL – OTHER STATES AND TERRITORIES – environmental assessment – impact upon release site habitat relating to the large scale capture and translocation of agile wallabies – application for damage mitigation permit to undertake the translocation of agile wallabies – the suitability of the habitat at the proposed release sites – the staffing and financial capacity of an organisation to undertaken the large scale capture and translocation – whether applicant has the experience to undertake the large scale translocation – whether there is a risk posed to the translocated agile wallabies by the translocation generally – whether the applicant poses a risk to the agile wallabies if a damage mitigation permit is issued
EVIDENCE – MISCELLANEOUS MATTERS – RULES OF EVIDENCE – ORDERS – public interest test – fit and proper person test – rules of evidence – Briginshaw test – onus of proof not required in administrative review proceedings – what weight, if any, to be placed upon evidence – public interest the balancing of interests including competing public interests – applying a distinction between public interest and a matter of public interest – the interests of the public are distinct from the interests of an individual or individuals – whether the applicant is suitable to be issued with a damage mitigation permit – appropriateness – value judgment to be exercised – the seriousness of a person’s conduct is a factor to be evaluated by the decision maker – there is no precise meaning of the term fit and proper.

Cases to 04 May 2020

GPS Power Pty Ltd & Ors v CS Energy Ltd [2020] QSC 93
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – OTHER CASES – where in SC 761/18 the applicant applied for declaratory relief regarding the proper construction of clauses contained within the Interconnection and Power Pooling Agreement (‘IPPA’) – where in SC 13392/17 the parties applied for declaratory relief regarding the proper construction of the IPPA with reference to the Upper Estimate and Lower Estimate – where in both proceedings the parties also applied for orders that certain paragraphs of the applications be dismissed
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT– PARTIAL SUCCESS – where the respondents in SC 761/18 and applicants in SC 13392/17 submit that the other party pay 50 per cent of the costs of the preliminary hearing assessed on the standard basis – where the applicant in SC 761/18 and respondent in SC 13392/17 submits that there should be no order as to costs of the preliminary hearing – where it is submitted that each party enjoyed success before the court – whether the court should make an order for costs in relation to a particular part of a proceeding
Civil Proceedings Act 2011 Qld s 10; Property Law Act 1974 Qld s 70; Rules of the Supreme Court 1900 Qld O 4 r 16, O 64 r 1A, O 54A; Supreme Court of Queensland Act 1991 Qld s 10; Uniform Civil Procedure Rules 1999 Qld r 10, r 681(1), r 684.

Ward & Anor v Commissioner of State Revenue [2020] QSC 59
TAXES AND DUTIES – STAMP DUTIES – APPEAL, CASE STARTED ETC – QUEENSLAND – where the appellants held a joint interest in residential land in Queensland with two others – where the other two joint interest holders sold their interests to the appellants who purchased those interests jointly – where a half interest in the land was transferred to the appellants – where the appellants occupied the land as their home both before and after the transfer – where the respondent Commissioner assessed the dutiable transaction on the basis that section 93 of the Duties Act 2001 (Qld) applied – where the appellants objected to the respondent Commissioners assessment on the basis that section 93 did not apply– where the respondent Commissioner dismissed the appellants objection – whether section 93 applied to the transaction – where the Court found that ss 93(1) and 93(6) of the Act applied to calculate the concessional amount – where the Court held that the appeal be allowed.

Gold Coast City Council v Sunland Group Limited & Anor [2020] QCA 89
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES –– where one of the respondents purchased land at Mermaid Beach – where the land was then subject to a preliminary approval which had been granted by the Planning and Environment Court under the now repealed Integrated Planning Act 1997 (Qld) (“the IPA”) in 2007 – where the preliminary approval made provision for the development of the land by a multi-stage residential development – where the preliminary approval made provision for contributions to the cost of relevant infrastructure to be paid by developers to the applicant – where those contributions were to be made under planning scheme policies which had been made by the applicant under a regime set out in the IPA – where those planning scheme policies were expressed to be temporary measures – where under the statute which now governs the development of this land, namely the Planning Act 2016 (Qld) (“the Planning Act”), there is no provision for a local government to make any further planning scheme policy for infrastructure – where the respondents say that the only infrastructure charges which can be levied and become payable on the occasion of any development permit issued for this land, are charges calculated by reference to the planning scheme policies – where the applicant says that infrastructure charges must be levied and paid, not according to the policies, but pursuant to the regime for the giving of an infrastructure charges notice under s 119 of the Planning Act – where the Planning and Environment Court made declarations in the respondents’ favour – whether the primary judge erred in finding in favour of the respondent
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – where the primary judge found that the preliminary approval imposed a present obligation to pay contributions at a later date – where, in 2011, amendments to the Sustainable Planning Act 2009 (“the SPA”) introduced a new regime for local governments to recover from developers their contributions towards the cost of infrastructure which would be used by their development – where s 880 of the SPA stated that a local government must not levy certain infrastructure charges or impose a condition under a planning scheme policy to which s 847 applies – whether the effect of s 880 of the SPA was to prevent the Council from collecting the contributions under the preliminary approval – whether the primary judge erred in interpreting the preliminary approval and s 880 of the SPA.

Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17
PLANNING AND ENVIRONMENT – APPEALS – appeals against a preliminary approval for a Shopping Centre and Health Care Services and a development permit for a Child Care Centre, Service Station and Food and Drink Outlet and reconfiguring a lot and operational work in the Low-medium density residential zone
ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – whether the proposed development complies with the planning scheme – whether there is a need for the proposed development – whether the proposed development would compromise the existing hierarchy of centres – whether there are relevant matters which justify approval. Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld.

Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 19
PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change an existing development approval to change lot sizes and create further sub-staging – whether the change is a minor change – whether changes would result in substantially different development – whether the changes were acceptable – Planning Act 2016 Qld s 69, s 78, s 79, s 81, s 81A.

Redman v The Proprietors - Fairway Island [2020] QDC 68
REAL PROPERTY – STRATA AND RELATED TITLES MANAGEMENT AND CONTROL – BYLAWS – CONTROL OF OR RESTRICTION ON USE OF LOTS – respondent passed a by-law that purported to prevent lot owners renting out their lots for less than one month at a time – respondent contended that pre-existing by-laws had that effect – whether by-laws were within the scope of the body corporate’s powers – whether by-laws restricted the devolution of lots by preventing an owner from leasing or otherwise renting out lots on a short-term basis – whether by-laws were valid
REAL PROPERTY – STRATA AND RELATED TITLES MANAGEMENT AND CONTROL – BYLAWS – CONTROL OF OR RESTRICTION ON USE OF LOTS – respondent passed a by-law that purported to prevent lot owners renting out their lots for less than one month at a time lots were permitted to be used for “residential purposes” – whether the leasing or renting of lots on a short-term basis falls within the scope of “residential purposes” – whether by-laws valid
REAL PROPERTY – STRATA AND RELATED TITLES MANAGEMENT AND CONTROL – BYLAWS – CONTROL OF OR RESTRICTION ON USE OF LOTS – respondent passed a by-law that purported to prevent lot owners renting out their lots for less than one month at a time – whether by-law was unreasonable or oppressive
COURTS AND JUDGES – COURTS – OTHER MATTERS – denial of natural justice – tribunal, having found by-laws to be otherwise valid, did not give the appellants the opportunity to call further evidence or make further submissions as to whether by-laws were unreasonable or oppressive – whether procedural fairness afforded to appellants – Building Units and Group Titles Act 1994 Qld s 27, s 30, schedule 3
Uniform Civil Procedure Rules 1999 Qld r 745, r 765.

Legislation

Commonwealth

Corporations (Coronavirus Economic Response) Determination (No. 1) 2020
05/05/2020 - This instrument modifies the Corporations Act 2001 to enable Annual General Meetings to be run electronically, and to enable electronic signatures to be used, to address the impacts of the Coronavirus.

Clean Energy Finance Corporation Investment Mandate Direction 2020
05/05/2020 - This direction updates the Clean Energy Finance Corporation’s Investment Mandate to facilitate the introduction of the newly established Advancing Hydrogen Fund. It repeals the Clean Energy Finance Corporation Investment Mandate Direction 2019.

Queensland

Subordinate Legislation as made – 01 May 2020
No 61 Disaster Management (Further Extension of Disaster Situation—COVID-19) Regulation (No. 2) 2020
The purpose of the Regulation is to further extend the period of the disaster situation declared for the whole of the State of Queensland on 22 March 2020 and extended by regulation on 2 and 16 April 2020.

Subordinate Legislation as made – 08 May 2020
No 65 Land (COVID-19 Emergency Response—Waiver and Deferral of Rents and Instalments) Regulation 2020

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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