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Inside track: Planning, Environment & Sustainability

21 January 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Fears of 50 per cent loss in value as Opal Tower owners consider legal options
Dozens of owners and tenants at the Opal Tower have met to explore their legal options, as a real estate expert has warned of a 50 per cent drop in the value of apartments in the western Sydney block (3 January 2019).  More...

Millions face high risk of natural disaster
Analysis mapping insurance data and risk levels from natural perils across local government areas in Victoria, New South Wales and Queensland reveals millions of residents across the three states are living with some sort of risk from floods, storms, bushfires and earthquakes (1 January 2019).  More...

Small-scale Renewable Energy Scheme inspection program
The Australian National Audit Office has released an independent performance audit to assess the effectiveness of the Clean Energy Regulator’s administration of the Renewable Energy Target scheme (21 December 2018).  More...

Frasers Property claim first certified carbon neutral commercial building
Frasers Property has pipped the rest of the industry to the post with what it claims is the first carbon neutral certification for a commercial building through the federal government’s Carbon Neutral Program. Also this week, three big names in property committed to zero net carbon emissions: Dexus, Cbus Property and Nightingale Apartments (17 December 2018).  More...

Our cities fall short on sustainability, but planning innovations offer local solutions
Thirty years after the landmark Brundtland report, the debate on urban sustainability continues. Urban planners are still grappling with the challenges of making our cities sustainable (14 December 2018).  More...

Victoria

Golden Plains Wind Farm granted planning permit
Acting Minister for Planning Lily D’Ambrosio has announced planning permit approval for the Golden Plains Wind Farm. The planning permit approval follows the conclusion of the Environment Effects Statement (EES) by the Minister at the end of 2018 (12 January 2019).  More...

Australian first shooting ranges guide published by EPA
Environment Protection Authority Victoria (EPA) has released a new guide for Victorian shooting ranges that will help in the reduction of pollution and contamination from the popular sport (10 January 2019).  More... 

City of Melbourne: Eight new parks
The eight new parks have been made possible through our investments and partnerships in a number of ambitious projects (8 January 2019).  More...

Obtrusive Apollo Bay resort development halted
Planning Minister Richard Wynne has refused to approve a planning permit for a $70 million five-star resort proposed for the small coastal town of Apollo Bay. The proposal was rejected following recommendations by an independent planning panel that condemned the project’s massive scale and environmental impact (8 January 2019).  More...

New communities to ease housing demand and create jobs
The Andrews Labor Government is boosting land supply and making housing more affordable, with three new communities in Melbourne’s suburbs (21 December 2018).  More...

Banning fracking, protecting farmers and supporting jobs
Work to enshrine the Andrews Labor Government’s historic ban on fracking in the Constitution of Victoria has begun. To boost business and promote our frack-free state, the Labor Government will provide $1 million for export focused marketing activities, to promote clean and green food and fibre sector to the world (21 December 2018).  More...

New South Wales

NSW Government vows to 'throw the book' at dodgy building certifiers after Opal Tower fiasco
Up to 30 per cent of certification work will be audited every year in New South Wales as part of a crackdown on dodgy operators following Sydney's Opal Tower fiasco (30 December 2018).  More... 

'Corners are being cut': Opal Tower drama triggers calls for apartment development inquiry
The crack in Sydney's Opal Tower - and subsequent evacuation - has sparked calls for an independent inquiry into the approval process across the New South Wales industry (29 December 2018).  More... 

Sweeping reforms suggested to prevent planning corruption
A review of NSW’s planning rules has suggested several changes to the existing system with a view to preventing corruption in development applications and approvals. Headed by former deputy police commissioner Nick Kaldas, the report made several recommendations to the Berejiklian government, including fixing the tenure for members serving on independent planning panels to prevent corruption in the planning approval process (21 December 2018).  More...

Asbestos dumping fraud jail term
NSW Environment Minister Gabrielle Upton has welcomed an 18-month jail sentence handed down to Paul Mouawad at the Downing Centre Local Court in relation to a fraud charge brought by NSW Police with the assistance of the NSW Environment Protection Authority (EPA) (20 December 2018).  More... 

NSW Government approves amendments to the Natural Resources Commission Act
The NSW Government has approved amendments, which commenced on 10 December 2018. The purpose of this amendment is to ensure that the Commission considers all scientific, environmental, economic, social and cultural knowledge in providing advice to Government (13 December 2018).  More...

Queensland

Innovative council planning projects secure almost $2 million in state funds
Two dozen council-led planning projects have secured backing through the second round of the Palaszczuk Government’s successful $4.5 million Innovation and Improvement Fund (11 January 2019).  More...

Industry welcomes release of Land Supply and Development Monitoring Report
Queensland’s property industry has welcomed the release of the inaugural South East Queensland Land Supply and Development Monitoring Report. The report measures residential and industrial land supply, development activity along with land and housing prices against benchmarks and employment planning baselines contained in the ShapingSEQ Regional Plan (21 December 2018).  More...

Renewables drive falling power prices
Household power prices are falling in south-east Queensland and will continue to fall for another two years, thanks to renewable energy, an independent report has found (21 December 2018).  More...

Bargara Jewel development called in
Queensland Planning Minister Cameron Dick has called in the Esplanade Jewel development at Bargara, near Bundaberg (21 December 2018).  More...

Figures show why Queensland needs vegetation management laws
The latest landcover study figures highlight the importance of Queensland’s strong vegetation management laws, the Palaszczuk Government says (20 December 2018).  More...

Cross River Rail Priority Development Area declared
The Queensland Government has declared a Priority Development Area (PDA) as part of the Cross River Rail Project, which will move forward the development of the new underground Albert Street Station. Acting Planning Minister, Stirling Hinchliffe, said the change would cut red tape for the delivery of the station (18 December 2018).  More...

Sunland dumps stalled Toowong Skyscrapers
After years of uncertainty, Sunland the ASX-listed developer,  said it will respect the Court of Appeal decision handed down earlier this year, which held firm on the strict height limitations outlined in the Brisbane City Council planning scheme (17 December 2018).  More...

In practice and courts

Commonwealth

Australia’s emissions projections 2018
The emissions projections provide detail on emissions trends, including sector specific analysis of factors driving emissions. The projections also track progress against Australia’s emissions reduction targets (21 December 2018).  More...

NABERS: New Waste rating for whole buildings
The NABERS Waste whole building rating for offices is now available (13 December 2018).  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 (18 December 2018).

Victoria

VicPlan Update
VicPlan has recently been updated to version 2.2.0. New features include a data catalogue, overlay inter-sector tool, improved map layer styling and new data (available in new catalogue feature) which include Precinct Structure Plans areas, Historic LGA boundaries 1991 (pre LGA amalgamation) (10 January 2019).

Planning for buffers and separation distances
DELWP is seeking feedback on the management of buffers and separation distances to assist in developing options for future reform. Feedback can be provided on the DELWP website until 5pm Friday 15 February 2019. To make a submission or for further information please click here (10 January 2019).

New South Wales

Kaldas Review released
The NSW Government has accepted all 19 recommendations made by former NSW Deputy Police Commissioner Nick Kaldas in his recently-published Review of Governance in the Planning System. The full report is available on the department’s website (18 December 2018).

NSW Revenue: Revenue Ruling - 18 December 2018
The following revenue rulings have been issued:
LT 104: Exemption - Land Used and Occupied Primarily for a Boarding House - 2019 Tax Year
LT 105: Exemption - Land Used and Occupied Primarily for Low Cost Accommodation - 2019 Tax Year

NSW: Combustible Cladding Regulation
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. For buildings occupied before 22 October 2018, 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...

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.

Inland Code commenced 1 January 2019
The NSW Government has released an inland code, allowing one and two storey homes, home renovations and some farm buildings to be treated as complying development. The inland code commenced on 1 January 2019.  More... 

Queensland

Retirement Village Regulation released
The Queensland Government has notified the Retirement Villages Regulation 2018 (RV Regulation) which will commence on 1 February 2019. The amendments contained in the RV Regulation give effect to the first stage of implementation for the legislative amendments passed in 2017. Accompanying the RV Regulation are a series of new forms that operators will need to implement prior to the 1 February 2019 commencement date. The forms include the new Village Comparison Document and Prospective Costs Document that will replace the Public Information Document for new residents.

State of the Environment Report 2017
The recently released State of the Environment 2017 report (SoE2017) provides a comprehensive assessment of Queensland’s environmental performance over the past two years. SoE2017 is an interactive data-driven website, allowing users to source regionally-specific data and content, across the five report themes—biodiversity, heritage, pollution, climate and human settlements. 

Review of Queensland's Environmental Chain of Responsibility laws
The proposed new financial provisioning scheme in the Mineral and Energy Resources (Financial Provisioning) Bill 2018, will not affect the interaction between financial assurance and an EPO under Chapter 7, Part 5, Division 2 of the EP Act. The administering authority will continue to determine the most appropriate tool on a case-by-case basis. Following the review, DES considers that Chapter 7, Part 5, Division 2 of the EP Act has been used responsibly and remains appropriate.  More...

QDesign guidelines released
Articulating the key values and desired qualities for future development and public works throughout Queensland, QDesign offers a unifying position statement of priority design values for the state and will be a blueprint for design practitioners, developers, community representatives and local councils across Queensland (20 December 2018).  More...
NOTE: QDesign would be followed by a supplementary online design resource, QCompanion, which would provide ideas and techniques for the translation of the priority design principles and strategies.

Managing residual risks in Queensland: Discussion paper

Part of the Financial Assurance Framework Reform package, the discussion paper sets out alternatives for these residual risk payments. It will also help companies plan rehabilitation early to minimise the residual risks left at the end of mining. Public comment on the Managing Residual Risks in Queensland discussion paper closes 1 February 2019. See the discussion paper here.

Regulated waste amendment approved
The Environmental Protection (Regulated Waste) Amendment Regulation 2018 will commence on 4 February 2019. The regulation establishes the types of waste for regulated waste categories 1 and 2. Waste levy commencement update Queensland Government’s waste levy is now proposed to commence on 1 July 2019. As a result the Waste Reduction and Recycling (Waste Levy) and Other Legislation Amendment Bill 2018 is expected to be debated during 2019.  More...

Cases

Victoria

Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768
TORTS — Nuisance — private — herbicide spray drift damage to neighbouring spring onion crop — substantial and unreasonable with use and enjoyment of land.
TORTS — Negligence — duty to take reasonable care, when spraying herbicides, to avoid a foreseeable risk of damage to neighbouring crop — breach established — causation established.
DAMAGES — Quantum — loss to be compensated — method of calculating loss — determination of likely yield rate and likely price. 

Khan v VCAT [2018] VSCA 351
PLANNING AND ENVIRONMENT – Application for enforcement order in relation to plan of subdivision – alleged contravention of planning scheme and planning permit – where plan of subdivision registered – whether planning scheme and planning permit impose obligations surviving registration – leave refused – Subdivision Act ss 5, 6, 21, 22, 24 – Planning and Environment Act ss 114, 119 – Manderson v Wright [2016] VSC 677 considered.
PRACTICE AND PROCEDURE – Decision of Victorian Civil and Administrative Tribunal to reject application on basis of lack of jurisdiction – Whether VCAT lacked jurisdiction – Victorian Civil and Administrative Tribunal Act 1998 ss 43, 71.
PRACTICE AND PROCEDURE – Leave to appeal – Where applicant has established error – Whether applicant would suffer injustice if error were uncorrected. 

Pacific Hydro Yaloak South Pty Ltd v Moorabool SC [2019] VCAT 11
Section 77 Planning and Environment Act 1987 - Moorabool Planning Scheme - farming zone - existing wind energy facility - impacted avifauna species - frequency and duration of surveys on potentially impacted avifauna - whether existing use rights for an existing and continuing use should be restricted as a consequence of a new section 2 use on the same land - whether the Responsible Authority should have authority over conditions on the permit.

New South Wales

Ashcroft Cleaning Services Pty Ltd t/as Wiseberry Acclaim Real Estate v Braganza [2019] NSWCATAP 14
APPEAL – Leave to appeal – finding of misrepresentation in connection with agency agreement – failure to disclose relevant market conditions – decision available on the evidence. 

CMT Architects Australia Pty Ltd v Waverley Council [2019] NSWLEC 1001
JOINDER – Application for joinder – statutory tests – issues proposed to be raised by Applicants for Joinder – interests of justice – public interest – application dismissed. 

Croghan v Blacktown City Council [2019] NSWLEC 2
VALUATION OF LAND – Valuation methodology - whether “piecemeal” or “before and after” approach is most appropriate – degree of flood affectation and effect on development potential – extent to which potential purchaser would seek advice on flood affectation – parameters of “public purpose for which the land was acquired” per s 56(1)(a) of the Valuation of Land (Just Terms Compensation) Act 1991 – whether statutory disregard in this instance requires that s 94 contributions plan, or SEPP or Council flood mapping, be disregarded – statutory disregard of public purpose applies only to the land that has been acquired – whether changed access arrangements constituted injurious affection – whether any betterment offset injurious affection. 

Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6
ADMINISTRATIVE LAW – Administrative review - government information – Cabinet information – whether document would reveal or tend to reveal Cabinet deliberations or decisions – some information in public domain – the document not the information must have been approved for release.
ADMINISTRATIVE LAW – Administrative review - government information – Cabinet information – document that reveal or tends to reveal the position Minister is considering taking to Cabinet – no requirement that position actually taken to Cabinet - meaning of “the position” – not confined to “one” position.
ADMINISTRATIVE LAW – Administrative review - government information – legal professional privilege – privilege claimed by Department which was not Department to which legal advice or services provided – provision of advice etc is to the State not the individual administrative Department – sharing of legal advice between Department – question of waiver does not arise.
ADMINISTRATIVE LAW – Administrative review - government information – public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to found an action for breach of confidence – no requirement that entity likely to commence such an action – whether information has “competitive commercial value”. 

Scenic NSW Pty Ltd v Office of Environment & Heritage [2019] NSWCATAD 7
ADMINISTRATIVE LAW - Government information - decision to defer access after granting access-power to decide to defer access - rights of internal review - sections 80(h), 78,88, 54(6) and (7) Government Information (Public Access) Act 2009. 

Hourigan v Howard [2018] NSWLEC 1686
TREES (DISPUTES BETWEEN NEIGHBOURS) – Hedge – obstruction of sunlight not severe. 

Aidop No. 2 Pty Ltd v North Sydney Council [2018] NSWLEC 1661
CONSENT ORDERS – Residential flat building – existing use rights – merits assessment – retention of affordable rental housing. 

McKenzie v Ku-ring-gai Council [2018] NSWLEC 1683
MODIFICATION APPLICATION AND DEVELOPMENT CONTROL ORDER – Change roof cladding material and colour – impact on heritage significance of the heritage conservation area. 

Varlow v Burgess [2018] NSWLEC 1687
TREES (DISPUTES BETWEEN NEIGHBOURS) – Hedge – tiger grass – obstruction of views. 

Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205
OFFENCES AND PENALTIES – sentence – knowingly harming an Aboriginal object – culturally modified scar tree – cutting down and removal of scar tree – restorative justice intervention in sentencing process – objective circumstances of the offence – undermining the statutory objects to conserve Aboriginal cultural heritage – significantly increased maximum penalty – substantial harm caused – practical measures to prevent harm – control over causes of offence – offence committed recklessly – medium objective seriousness – subjective circumstances of the offender – lack of prior convictions – early plea of guilty – remorse for the offence – assistance to authorities – unlikely to reoffend – retributive, preventative, reparative and restorative purposes of sentencing – monetary penalty directed to Aboriginal cultural heritage projects – publication and notification orders – order to establish training courses – payment of costs Sentencing – restorative justice conference – process for – agreement reached – use of conference and agreement in sentencing. 

Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207
APPEAL – Development applications to carry out works to repair sea walls – sea walls built on public beach – jurisdictional preconditions to the power to grant development consent not satisfied – Court not satisfied that the works will not unreasonably limit public access to or use of the beach – Court not satisfied that the works will not impede or diminish the right of access of the public to or along the coastal foreshore – appeals dismissed. 

Queensland

We Kando Pty Ltd v Western Downs Regional Council [2018] QPEC 65
PLANNING AND ENVIRONMENT – APPEAL – Where applicant seeks a declaration in an applicant appeal about the proposed use of land for a Truck parking use – where the proposed use is not a use for which approval was sought in the development application the subject of the appeal – whether the proposed use is ancillary to existing lawful uses – whether the proposed use will be lawful – whether the court has power to grant the declaration – whether the discretion should be exercised under s.446 of SPA to treat the application as a fresh proceeding for a declaration.

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council [2018] QPEC 63
PLANNING AND ENVIRONMENT – APPLICATION – Applications in pending proceeding – where the substantive proceeding involves two appeals ordered to be heard together – where those appeals concern competing applications for a shopping centre – where in one appeal the appellants are appealing council’s decision to grant the co-respondent’s a development permit for a material change of use to facilitate a local centre – where in the other appeal the appellants are appealing council’s decision to refuse their own application for a preliminary approval for a material change of use to facilitate a local centre – where the plan included in the appellants’ application was not intended for detailed design or assessment and the appellants did not seek approval in accordance with it – where the appeals are part-heard – where the court has been asked to decide four applications in pending proceeding – where the appellants’ applications seek to adduce new evidence and further amended plans and re-open traffic evidence – where the appellants also propose a minor change and then an amended minor change and seek to tie the appellants’ development application to the further amended plans – where the co-respondents seek to de-couple the appeals – whether the appellants’ proposed change is a minor change – whether the appellants should be permitted to change their application – whether the appellants should be ordered to pay costs – whether the appeals should be heard separately.

The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 62
PLANNING AND ENVIRONMENT – APPEAL – Where the appellant seeks a development permit for reconfiguration of one lot into two lots and a development permit for material change of use and preliminary approval for building work for a dwelling house on a small lot and a dwelling house – where the application is code assessable – where the Council refused the development application – whether the proposed development’s height and rear setbacks comply with the assessment benchmarks – whether compliance can be achieved by imposing development conditions – whether the amendments to City Plan 2014 should be given significant weight – whether the court should approve in the event of non-compliance with the benchmarks.

Brisbane City Council v Wu[2018] QMC 19
The complaint is dismissed. No case to answer – section 24 Criminal Code.
In brief, the complaint is that the defendant carried out assessable development, namely building work (demolition of two dwellings) at 36 and 40 Power Street, Norman Park (“the subject properties”) without an effective development permit contrary to section 578(1) of the Sustainable Planning Act.

Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd (No. 2) [2018] QLC 49
ENERGY AND RESOURCES – MINING FOR MINERALS – COMPENSATION – ASSESSMENT – ADJOINING LAND – Where land is divided into lots – where lots operated as a grazing business in aggregation – where proposed leases do not affect all lots in the aggregation – whether applicant entitled to compensation for land not subject to applications – whether applicant entitled to compensation for the cost of obtaining a replacement property – what value is to be given to balance land unaffected by applications.

McKean v Council of the City of Gold Coast [2018] QPEC 61
ENVIRONMENT AND PLANNING – ENVIRONMENTAL IMPACT ASSESSMENT AND APPROVAL – OTHER STATES AND TERRITORIES – Where the respondent refused the appellant’s development application – where the matter was listed for hearing – where prior to the commencement of the hearing the respondent made an application that the hearing be vacated on the basis of a jurisdictional issue – where the appellant erred in lodging the application as being code assessable only and the relevant council officers did not detect the problem – whether the court has jurisdiction to hear the appeal.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – MODIFICATIONS – SUBSTANTIALLY SAME DEVELOPMENT – where the respondent refused the appellant’s application to reconfigure his land – where the matter was listed for hearing – where prior to the commencement of the hearing the respondent became aware that the application was improperly classified as code assessable rather than impact assessable – where the appellant contends that changing it from a community management scheme to freehold title cures this defect – whether this constitutes a ‘minor change’.

Body Corporate for Pine Trees v Brisbane City Council & Ors [2018] QPEC 60
PLANNING AND ENVIRONMENT – APPLICATION IN PENDING PROCEEDING – APPLICATION FOR JOINDER – Where the appellant seeks to extinguish an easement through the appeal proceeding – where the easement benefits the applicant for joinder – where the applicant for joinder applies to be joined to the appeal proceeding – where the applicant for joinder has other remedies available under the Planning Act and these remedies could not be obtained event if it becomes a party to the appeal – whether the applicant for joinder being added as a party to the current proceedings would be desirable, just and convenient.

Legislation

Commonwealth

Conservation Theme for Prioritising Nominations for Listing Threatened Species, Threatened Ecological Communities and Key Threatening Processes for the Assessment Period Commencing 1 October 2019 (210)
10/01/2019 - This instrument determines ‘Species and Ecological Communities that are severely affected by fire regimes’ as the conservation theme that the Minister has determined should be given priority for the assessment period commencing 1 October 2019. 

New South Wales

Regulations and other miscellaneous instruments
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Amendment Regulation 2018 (2018-787) — published LW 21 December 2018
Environmental Planning and Assessment Amendment (False or Misleading Information) Regulation 2018 (2018-755) — published LW 21 December 2018
Environmental Planning and Assessment Amendment (Integrated Development and Concurrences) Regulation 2018 (2018-756) — published LW 21 December 2018

Contacts:
Melbourne
Joseph Monaghan, Partner 
T: +61 3 9321 9857 
Ejoseph.monaghan@holdingredlich.com

Sydney 
Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Peter Holt, Special Counsel
T: +61 2 8083 0421
E: peter.holt@holdingredlich.com

Brisbane
Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com

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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