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Inside track: Planning, Environment & Sustainability

21 August 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Environmental sustainability and economic interests
The United Nations recently published a study, involving 400 experts from 50 countries, which predicted that human activities — such as industrial farming, fishing and use of petrochemical energy — will drive nearly a further one million species of plants and animals to extinction in a few decades (09 August 2919).  More...

Unlocking more sustainable finance with GRESB, NABERS and Green Star
The property sector is fast cottoning on to the power of green bonds and other sustainable financing mechanisms to create a more sustainable built environment, including the residential market (06 August 2019).  More...

NSW

Murray Darling Basin plan untenable for NSW
NSW is considering its options, in relation to the Murray Darling Basin Plan, after today’s Ministerial Council meeting failed to deliver for regional communities by refusing to pursue transparency and the threat of buybacks back on the table (04 August 2019).  More...

Court ordered clean-up to cost convicted man millions
The NSW Environment Protection Authority has secured a conviction against Mr Thomas Hughes for two waste offences in the Land and Environment Court (02 August 2019).  More...

Residents fear 'steel box' will ruin million-dollar Sydney Harbour views
A major stoush is brewing on Sydney Harbour's north shore as residents fear a three-storey dry dock in Berrys Bay will destroy their water views and the character of the iconic area (30 July 2019).  More...

Creative Arts Hub Approved for Marrickville
Sydney-based developer Danias Holdings has received the go-ahead for its $48 million creative precinct located on a former industrial site in Sydney’s inner west. Danias received development approval from the Sydney Eastern City Planning Panel for its 18-hectare site (30 July 2019).  More...

Developer Lodges Plans for George Street Skyscraper
An ambitious development proposal for a 43-storey apartment and hotel tower on George Street has been lodged by ASX-listed hospitality giant Event Hospitality and Entertainment (29 July 2019).  More...

Queensland

Planning minister calls time on Windsor Hotel redevelopment saga
Time has run out for a developer planning to build a 93 metre tower behind the historic Windsor Hotel (09 August 2019).  More...

Queensland planning laws risk alienating communities, expert warns
In her new book on the state’s planning legislation, Griffith Law School academic Philippa England warns the laws have created an increasingly disparate planning landscape that risks leaving communities behind (03 August 2019).  More...

Developer Plans Build to Rent Project in West End
A five level mixed-use development project in Brisbane’s inner city will incorporate built-to-rent according to plans lodged by Brisbane-based development company Property Projects Q (01 August 2019).  More...

In Practice and Courts

Announcements, Draft Policies and Plans released 2019

NSW

The Low Rise Medium Density Housing Code deferred
The State Environmental Planning Policy (Exempt and Complying Development Codes) (2008) 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...

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. CPPs must be finalised and published on the ePlanning portal by 1 December 2019

Announcements, Draft Policies and Plans released 2019

Queensland

PCA: Queensland planning policy update
A number of local and state government related planning decisions impacting the property sector have been released.

Have your say: Energy from Waste Policy discussion paper
The Queensland Government has released a discussion paper outlining the proposed role for energy from waste, how it could support the implementation of the Waste Management and Resource Recovery Strategy and support the State’s transition to the principles underpinning the circular economy. Energy from waste involves converting waste materials into fuels, or energy in the form of electricity, heat, or cooling. Queenslanders can have their say on the Energy from Waste Policy Discussion Paper. To make a submission, visit the Queensland Government website. Submissions close on 26 August 2019.

Cases

NSW

Chen v Cumberland Council [2019] NSWLEC 1375
DEVELOPMENT APPLICATION – boarding house – visual and physical character compatibility – amenity – parking – landscaping 

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114
OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused – clearing negligent – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence in low-middle range – subjective circumstances of the offender – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate fine – moiety of fine – costs

Visionary Investment Group Pty Ltd v Wollongong City Council (No 2) [2019] NSWLEC 1364
DEVELOPMENT APPLICATION – subdivision – community title – owner’s consent – golf course – contamination – streambank stabilisation – availability of water and wastewater infrastructure – assessment of off-site impacts – Grampian condition – modification of existing consent

The Bunker 2017 Pty Ltd v North Sydney Council [2019] NSWLEC 1365
DEVELOPMENT APPLICATION AND BUILDING INFORMATION CERTIFICATE APPLICATION – whether the consent of the owners corporation is required for the making of a Building Information Certificate application in respect of works within a lot in the strata plan – whether works that rely or encroach on common property require the consent of the owners corporation as the owner of land to which the development relates – whether the proposal for the use of a commercial lot as an office has an unacceptable impact on the amenity and security of the mixed-use building 

Abrams v The Council of the City of Sydney (No 5) [2019] NSWLEC 1368
DEVELOPMENT APPEAL– new residential flat building – remitted matter – variation to height control – variation to floor space ratio control – whether the variation request is well-founded – whether the objectives of the controls are met – sufficiency of environmental planning grounds

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174
APPEAL AND REVIEW – question of law stated under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – offence of using land as a waste facility without lawful authority – whether prosecutor permitted to make second s 5AE request in substantially different form to first request – meaning of “waste” – whether recycled materials deposited on land in stockpiles met definition of waste – whether stockpiling of materials on land a scheduled activity – whether depositing waste on land was the scheduled activity of waste disposal by application to land – whether temporary stockpiling of waste on land was the scheduled activity of waste storage – meaning of “asbestos waste” – whether waste contained asbestos – application of exemption granted under regulations – effect of exemptions that activity a non-scheduled activity – statutory exception to onus of proof – defendants bore onus of proving lawful authority – defendants bore onus of proving exemptions apply – no lawful authority pursuant to development consent or other approval – whether continuing offence proven – whether offences time barred – errors of law established – proceedings remitted to Land and Environment Court for determination in accordance with the answers given to the submitted questions WORDS AND PHRASES – “waste” – “waste facility” – “waste disposal by application to land” – “waste storage” – “asbestos waste” – “without lawful authority” 

Captive Vision Pty Ltd v Ku-ring-gai Council (No 2) [2019] NSWLEC 109
CIVIL PROCEDURE: application for the determination of a separate question – whether delay in the making of the application – Class 1 appeal to be heard imminently – separate question comprised gravamen of Class 1 appeal – no utility in determining separate question – no evidence of savings in time or costs if question determined separately – application refused – not fair or reasonable to make costs order.

Hansimikali v Bayside Council [2019] NSWLEC 1353
DEVELOPMENT APPLICATION – mixed-use development – exceedance of the height of buildings development standard – whether the proposal is consistent with the desired future character of the locality – amenity of the adjoining low density residential dwellings

Sydney Tools Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1358
DEVELOPMENT APPLICATION – light industrial land use zone – current use not subject of consent – hardware and building supplies store – warehouse and distribution centre – traffic and access – noise.

Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106
ENVIRONMENTAL OFFENCES – sentencing – breach of condition of Environmental Protection Licence – waste recycling facility – waste in excess of prescribed limit received and processed at facility – plea of guilty– sentencing considerations – low to medium objective seriousness – offence committed negligently – no actual environmental harm –– no prior convictions – assistance to authorities – contrition and remorse – order to pay Prosecutor’s costs – order to pay penalty amount to the Environmental Trust – publication orders made.

Environment Protection Authority v Hughes [2019] NSWLEC 108
ENVIRONMENTAL OFFENCES: unlawful transport and disposal of waste – pleas of guilty – sentencing principles – application of De Simoni principle – relevance of offender’s state of mind where De Simoni applies – calculation of volume of waste deposited – actual environmental harm caused by the commission of the offence – potential environmental harm caused by commission of offences – offences committed intentionally – offences committed for financial gain – no prior convictions – no apology – cost of remediation substantial – appropriateness of extent of publication order – application of totality principle – monetary penalty imposed – remediation order made – publication order made. 

Queensland

Bond v Chief Executive, Department of Environment and Science [2019] QCA 153
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERALLY – where the applicant applied for leave to appeal against a decision of the Planning and Environment Court inter alia refusing to stay an appeal in that Court pending the final resolution of a criminal prosecution against the him – where the Court of Appeal granted leave to appeal, and the appeal was allowed in part with leave to make submissions on costs – where the parties agreed as to the appropriate costs order – whether the respondent ought to pay 50 per cent of the applicant’s costs of the application for leave to appeal and of the appeal

Iveson v Scenic Rim Regional Council & Anor [2019] QCAT 197
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – where the applicant was permitted to erect a cabin on land near a caravan park – where the applicant occupied the cabin from time to time from 1990 – where the cabin was used intermittently for recreational purposes – where the land on which the cabin was erected was held under license only – where the licence permitted camping only – where the respondent council was trustee of a reserve on adjacent land at which it operated a caravan park – where the council gave the applicant notice to leave the site –– whether the land on which the cabin was sited was land in a residential park – whether the cabin was a manufactured home – whether the respondents were park owners
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the applicant applied in the Tribunal under manufactured homes legislation for compensation – where the respondents applied in the Tribunal to strike out the applicant’s claim on the basis there was no residential park dispute between the parties giving the Tribunal jurisdiction to determine the applicant’s claim

Acts Interpretation Act 1954 Qld s 14B; Land Title Act 1994 Qld s 184; Manufactured Homes (Residential Parks) Act 2003 Qld ss 8, 11, 12, 13, 14, 14A, 117

Legislation

Criminal Code Amendment (Agricultural Protection) Bill 2019
House of Representatives Third reading agreed to 01 August 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. The Bill contains exemptions for journalists and those who are making lawful disclosures of information, including whistleblowers

Landholders’ Right to Refuse (Gas and Coal) Bill 2015
Senate: Restored to Notice Paper 31 July 2019
The bill: provides that Australian landholders have the right to refuse the undertaking of gas and coal mining activities by corporations on their land without prior written authorisation; sets out the requirements of a prior written authorisation; provides for relief which a court may grant a land owner when prior written authorisation is not provided; prohibits hydraulic fracturing for coal seam gas, shale gas and tight gas by corporations; and provides for civil penalties.

NSW

Regulations and other miscellaneous instruments
Land Management (Native Vegetation) Code Amendment (Monaro and Werriwa Grassy Woodland Critically Endangered Ecological Communities) 2019 (2019-361) — published LW 2 August 2019
Local Land Services Amendment (Critically Endangered Ecological Communities) Regulation 2019 (2019-362) — published LW 2 August 2019
Water Management (General) Amendment (Exemption) Regulation 2019 (2019-367) — published LW 2 August 2019

Environmental Planning Instruments

Bills introduced Non-Government – 09 August 2019
National Parks and Wildlife Amendment (Tree Thinning Operations) Bill 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

Peter Holt

Special Counsel

Sydney

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Gerard Timbs

Gerard Timbs

Partner

Brisbane

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