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Inside track: Property & Real Estate

21 September 2021

#Property, Planning & Development

Inside track: Property & Real Estate

In the media

Commonwealth

Timber shortage brings building boom unstuck
Timber supplies were the first to be hit as Australia and other nations around the world, grappling with the impact of the pandemic. The sector is now rife with whispers of rising numbers of developers and builders handing back hundreds of contracts and refunding deposits due to skyrocketing residential construction costs stemming from the supply constraints (10 September 2021).  More...

Reimagining the Australian city
A panel of urban planning experts will explore how COVID-19 is shifting the parameters on how Australia’s future cities should look and examine whether it’s time to revisit some ideas from the past (09 September 2021).  More...

Lockdowns expose challenge for Australia’s CBDs
The Property Council of Australia’s latest office occupancy survey has laid bare the impact of ongoing lockdowns on Australia’s largest city centres. Property Council Chief Executive said that the numbers highlight the challenge ahead for policymakers to restore Australia’s economic engine rooms (09 September 2021).  More...

LMI jumps as house prices boom, but most home buyers don't realise it only protects the bank
Australia's COVID property boom has pushed more people into paying for costly mortgage insurance that protects their bank, while only adding to the borrower's mounting pile of debt (09 September 2021).  More...

Rental affordability improves across Australia
Rental affordability improved marginally across Australia by 0.3 percentage points over the June quarter, the latest quarterly Housing Affordability Report by the Real Estate Institute of Australia has found (08 September 2021).  More...

Property refinancing hits record highs
Mortgage refinancing hit a record high in August, surpassing the record set in June 2020 when the Reserve Bank of Australia’s double rate cut impacted activity (08 September 2021).  More...

Walker Corp goes green with new loans on flagship towers
Property developer Lang Walker has struck an agreement with leading banks to create green loans for its flagship assets (08 September 2021).  More...

REIA: First home buyers flee the market as housing prices continue to soar
The number of first home buyers has plummeted over July as housing affordability continues to be an issue for those entering the market (02 September 2021).  More...

HIA welcomes confirmation that developer contributions add to house prices 
The Housing Industry Association (HIA) is pleased to see clear confirmation in research released today by the National Housing and Finance Investment Corporation that the price of new homes is directly increased by the various developer charges being applied by local and state governments (31 August 2021).  More...

World-first ‘game changer’ Green Home certification released to industry
A Green Star certification that’s set to transform the residential home building market and reduce household energy costs by 75 per cent, is being released by the Green Building Council of Australia. GBCA is calling on the volume home building industry to adopt the Green Star Homes Standard certification system now, ahead of a planned consumer release in 2022 (30 August 2021).  More...

Countdown begins for build-to-rent’s breakthrough year
Australia’s emerging build-to-rent sector has been on the launchpad for a while now but the final countdown has begun for the sector to become one of the country’s major asset classes (26 August 2021).  More...

National infrastructure plan has welcome focus on growing cities
The Property Council of Australia has welcomed the release of Infrastructure Australia’s 2021 Australian Infrastructure Plan, a 15-year roadmap of reforms and investment initiatives. The Australian Infrastructure Plan throws down the gauntlet to governments on how to plan infrastructure in our cities (03 September 2021).  More...

Victoria

Corkman Pub demolition developers lose appeal against jail sentence, $400k fine
Two cowboy developers who demolished the historic Corkman Pub are closer to spending their first night in prison after an appeal is denied by Victoria's highest court (09 September 2021).  More...

Vision for new suburban rail loop station revealed
Renders of the new Monash underground station have been released as part of the Victorian government’s proposed $50-billion suburban rail loop (08 September 2021).  More...

‘Locked down and locked out’: Sector campaigns to open real estate safely
The Real Estate Institute of Victoria, on behalf of the tens of thousands of sector employees and impacted Victorians, has this week mounted a campaign against onerous and unnecessary property market restrictions (07 September 2021).  More...

New strategy, planning controls for Fishermans Bend
A new plan to build a centre of high-value industries and jobs at Fishermans Bend unveiled today positions Victoria at the forefront of global advanced manufacturing, engineering and design innovation. The Advancing Manufacturing statement which outlines five key priorities for the Fishermans Bend National Employment and Innovation Cluster (01 September 2021).  More...

Door-to-door solar sales banned from today
The Victorian Government’s crackdown on dodgy sales tactics comes into force today with a ban on door-to-door sales across all Solar Victoria programs. Solar Victoria engaged with peak bodies and retailers on a prohibition with industry strongly supporting the ban and given almost four-months' notice before it officially commenced (01 September 2021).  More...

NSW

Financial assistance extended for tenants and landlords
The NSW Government has announced an increase to the Residential Tenancy Support Package to up to $4,500 per tenancy and an extension to the eviction moratorium until 11 November 2021, giving increased security to residential tenants impacted by COVID-19 (03 September 2021).  More...

New home buyers being hit with unfair infrastructure contributions
Urban Taskforce today welcomed research released by the NHFIC which confirms that the NSW Government has allowed the scope of local infrastructure contributions to grow to such an extent that they now account for between 8-11 per cent of the total cost of a new home – with NSW being the highest at up to $85,000 per dwelling (compared to $77,000 in Vic and $42,000 in Qld) (31 August 2021).  More...

Queensland

On your marks: The $50b infrastructure blueprint that will carry us to the Olympics
The Palaszczuk Government will today unveil a $52 billion blueprint for providing the transport, energy and other infrastructure to help set south-east Queensland on the road to the 2032 Olympics (09 September 2021).  More...

Gleeson family wins approval for Townsville's hive
Stage one of the Hive was granted approval to build a five-storey contemporary building opposite the Reef HQ Aquarium on Flinders Street in Townsville’s CBD. Townville deputy mayor Mark Molachino said the development would be a welcome addition to the precinct (07 September 2021).  More...

Gold Coast neighbourhoods targeted for growth
Concept planning is about to start on four light-rail station neighbourhoods on the Gold Coast to meet mounting pressure for more homes. The station neighbourhoods would be updated in the council's City Plan in 2022 to 2023, as determined by other amendment packages (03 September 2021).  More...

CBD space fight erupts as developer behind city tower hits out at hotel plan
In an objection lodged with Brisbane City Council, property group Mirvac said its support for city revitalisation could not extend to “unreasonable” hotel plans at the corner of Roma and Turbot streets (01 September 2021).  More...

Published – articles, papers, reports

2021 Australian infrastructure plan
Infrastructure Australia: 02 September 2021
The reforms outlined in this strategy document reflect an industry consensus that was developed in close collaboration with government, industry and communities. Infrastructure Australia completed a comprehensive engagement program that targeted more than 6,500 community members and industry stakeholders across Australia’s cities and regions.  More...

In Practice and Courts

Announcements, Draft Policies and Plans released 2021

Commonwealth

API: Valuation protocol – cladding on buildings
This Member Reminder relates to the Member Reminder published on 1 May 2019. This Valuation Protocol, and its purpose, is to provide guidance for the completion of mortgage security valuations of residential units/apartments in medium or high-rise apartment buildings/developments (that is, above three stories) for banks/lenders, and their LMIs utilising the PropertyPRO Report format (01 September 2021).  More...

API: APIV scheme renewal application 2021-2026
The API announces its Australian Property Institute Valuers Limited (APIV) Professional Standards Scheme renewal application for 2021-2026 has been considered by the Professional Standards Councils (PSC) and is now closed for public consultation. The Scheme is anticipated to come into effect on 1 September 2021
The PSC’s Notice of the proposed APIV Scheme
The proposed APIV Scheme Instrument
The APIV Public Consultation Document

GBCA: Green Star certification 2021 dates for your project
The guidelines below (based on typical time frames), specify the deadlines you’ll need to meet in order to have your project certified as having achieved Green Star certification in time for key milestones (2021).  More...

Victoria

New land transfer duty ruling explaining the meaning of land development
Revenue ruling DA-064 has been published following public consultation.The ruling, provides guidance on the actions and activities which constitute land development in the contexts of both sub-sale transactions and foreign purchaser additional duty. Our web page on sub-sales and duty has also been updated to reflect the new ruling (08 September 2021).

Land tax relief for commercial landlords announced 
03 August 2021 - The Victorian Government today announced it will introduce new legislation to provide rent relief to commercial tenants through the Commercial Tenancy Relief Scheme. As part of this, eligible landlords will receive coronavirus land tax relief of up to 25 per cent, which will be additional to any previous relief they have received.
Further information will be available on our website soon.

NSW

Registrar General: Timetable to digital survey plans in NSW launched
Some important deliverables in the next 12 months are:
End of 2021: Move to 100 per cent online lodgment along with new NSW LRS portal tools that make it easier for surveyors to lodge digital survey plans.  More...

NSW Revenue: How can a commercial tenant demonstrate that they meet the requirement to have less than $50 million in annual turnover?
To be eligible, a commercial tenant must have had, or is part of a group which had, an annual turnover of less than $50 million in the 2019/2020 financial year. This can be demonstrated with documentation such as a letter from an accountant, a tax return, BAS or other financial statements. Any other documentation that helps demonstrate eligibility will be given consideration (08 September 2021).  More...

Queensland

PCA: Extension to approved development timeframes effective 30 September
A six-month extension to timeframes for undertaking approved development under the Planning Act 2016 and the Economic Development Act 2012 has been put in place to enable development approvals that are in effect at the time the extension notice is given, or which come into effect between now and 30 September 2021. For further information, read: Approval under the Planning Act and Approvals under the Economic Development Act (02 September 2021).
This extension does not apply to building development approvals for building works pursuant to s71 of the Building Act 1975.

Public consultation: Queensland’s renewable energy zones (QREZs)
Public consultation would be followed by a technical paper later in the year, for feedback from industry and other energy stakeholders on the framework for QREZ design and access. The online survey is open until 30 September 2021.  More...

Land Restoration Fund: Round 2
Applications are open for the Land Restoration Fund Investment Round 2. For more information about details required under Stage 1 and 2 read the LRF Investment Application Guidelines.
Submissions are now being accepted. Submissions close on 8 October 2021.

Extension of COVID Bill
State Parliament has moved to extend the timeframe for several measures introduced to allow Government to respond to the impacts of COVID-19 through the COVID-19 Emergency Response and Other Legislation Amendment Bill 2021, from 30 April to 30 September, 2021. This timeframe had previously been extended from its initial expiry of December 2020.

City of the Gold Coast: Express DA Service
As part of the City’s economic support during COVID-19, the City is offering a 50 per cent discount on Express DAs for 12 months (from 27 October 2020 to 27 October 2021).  More...

REIQ: Updates to COVID-19 response for residential tenancies
The Queensland Government has recently announced some changes to the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Amendment Regulation 2021. Some important temporary regulatory measures will continue until 30 September 2021. Please take note of the changes listed.  More...

REIQ: Training requirements for the Queensland real estate industry
The Office of Fair Trading has released new training requirements for the Queensland real estate industry. As of 30 September 2021, the current qualification will be superseded and replaced by a new property services training package. At the REIQ, the new training package not only recognises the significance of the work undertaken by real estate professionals, but also better reflects modern day real estate agency practice.

Rockhampton Regional Council expands development incentives policy
Rockhampton Regional Council has expanded its development incentives policy to include multi-residential unit developments within close proximity to the CBD. The policy will apply to DA’s lodged between 1 January 2021 and 31 December 2021.  More...

Cases

Professor Bin Pty Ltd v Australian Waste Recyclers Pty Ltd (Building and Property) [2021] VCAT 1038
Dispute concerning validity of a lease; whether lease subject to condition requiring parties to enter into a contract to purchase the premises; whether term is to be implied, inferred or part of a collateral contract, whether condition failed; whether contract voidable; test in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.

Thorpe v Head, Transport for Victoria & Ors (Ruling No 2) [2021] VSC 533
INJUNCTION – Aboriginal Cultural Heritage – request for directions – whether specified categories of activities are caught by the interlocutory injunction – maintenance works – injunction must be sufficiently clear – purpose and context of injunction – preserving the status quo – proper construction of the term ‘associated works’ - Aboriginal Heritage Act 2006 (Vic) - Aboriginal Heritage Regulations 2018 (Vic) – Deal v Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281 – Kia Australia Pty Ltd v Chief Executive Officer, Customs [1998] 1060 FCA – Owen Daniel (A pseudonym) v Secretary to the Department of Justice [2015] VSCA 10 - Winslow Constructors v Mt Holden Estates [2004] VSCA 159; [2004] 10 VR 435.

Great Union Pty Ltd v Sportsgirl Pty Ltd (No 2) [2021] VSC 542
PRACTICE – application for additional order after authentication – plaintiff’s summons sought inter alia to strike out part of defence and counterclaim – authenticated order did not refer to refusal to strike out – whether jurisdiction to make further order. 1 By writ filed 9 December 2020, the plaintiff (Great Union) claims the sum of $2,307,409.09 plus interest for unpaid rent owing by the defendant (Sportsgirl) under a Deed of Renewal of Lease dated 12 December 2016 between Great Union and Sportsgirl.

Cunningham Pier Pty Ltd v Seabrook Events Pty Ltd (Building and Property) [2021] VCAT 1004
Lease – tenant executing lease as bare agent of partnership that is to operate business to be conducted in the demised premises – agency of Tenant for partnership known to the landlord – partners the actual tenants – subsequent transfers with the landlord’s consent to a further partnership and then to the last remaining partner – remaining partner the actual tenant - Retail Lease Act 2003 – whether act applies – ministerial exemption – whether applies – Covid 19 regulations – tenant seeking rental relief – whether regulations complied with by tenant – whether tenant is entitled to relief – Property Law Act 1958 - s.146 – landlord seeking to re-enter for conduct of tenant said to be in breach of the lease – prior knowledge by Landlord of the conduct complained of – whether Landlord estopped from re-entering – estoppel – acquiescence – alleged illegality – relevance.

Steambrook Pty Ltd v Boulton (Building and Property) [2021] VCAT 996
RETAIL LEASE: Application for declaration that a rental determination by a valuer does not comply with the requirements of s 37 of the Retail leases Act 2003 – discussion of relevant principles – declaration made.

Solitaire Mode Pty Ltd v Diakonidis (Building and Property) [2021] VCAT 918
COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020; request for rent relief; whether tenants complied with regulation 10; Filomeno Nominees Pty Ltd v Crown Group Pty Ltd (Building and Property) [2021] VCAT 81 and Tzilantonis v S & C Thomas Holdings Pty Ltd (Building and Property) [2021] VCAT 486 applied; security deposit under a lease; whether tenants entitled to reduction of deposit by reason of discharging liabilities of outgoing tenant. 2. George Diakonidis, Paulina Theodore and Mamma Pita Pty Ltd must pay $47,236.15 to Solitaire Mode Pty Ltd. 

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – ORIGINATING APPLICATION – where respondent council approved development application for permit for building works and material change of use for multiple dwellings – where development application approved subject to conditions requiring work on Transport Network to remove existing safety barrier for the purposes of refuse collection – where originating application sought declaratory relief – where relief sought concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where application dismissed
ASSESSMENT BENCHMARKS – where development application approved subject to code assessment – whether jurisdictional error as to basis of assessment – whether development application ought have been impact assessable – whether proper construction of development application such that it can be inferred the developer sought approval for four storey dwelling – whether rooftop area comprising lift shaft and stairs constitutes storey – whether approval of development application unreasonable in context – whether council failed to exercise statutory discretion to approve or refuse development application
Planning Act 2016 Qld s 60; Planning and Environment Court Act 2016 Qld s 11

Tulloch Brae Pty Ltd v Environmental Protection Equipment Pty Ltd & Anor [2021] QSC 213
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – COMMERCIAL CONSTRUCTION AND INTERPRETATION – where the plaintiff and defendant entered into a carriage agreement regarding the transportation of waste – where the carriage agreement required the plaintiff to move the containers in a prompt and efficient manner – where the contractual provisions dealing with timeliness of performance were ambiguous – where the Court had regard to the circumstances external to the written contract to interpret those provisions
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION – where defendant gave notice to the plaintiff that it terminated the carriage agreement – where the plaintiff asserted that the termination was a repudiation of the carriage agreement – where the plaintiff accepted the repudiation and purported to terminate the carriage agreement itself – where breaches of the carriage agreement by the plaintiff were so persistent and frequent that defendant was entitled to terminate
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – Australian Consumer Law – where the plaintiff made a number of representations as to its ability to fulfil its obligations under the contract – where those representations were found to be false insofar as they related to future matters and there was no reasonable grounds upon which to make the statements – where the defendant relied on those representations in entering into the carriage agreemen
DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – where the defendant’s claim for damages for breach of contract was assessed by reference to the money it would have made had the plaintiff performed the carriage agreement according to its terms
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – loss and damage – where the defendant pleaded that the plaintiff’s breach of contract resulted in a loss of opportunity – whether there was a contractual promise on the part of the plaintiff “to afford the [defendant] an opportunity to acquire a benefit or avoid a detriment” – whether the proceeding was properly characterised as a loss of opportunity case
DAMAGES – ASSESSMENT OF DAMAGES IN BREACH OF CONTRACT – PARTICULAR HEADS OF LOSS – LOSS OF CHANCE OR OPPORTUNITY – Australian Consumer Law – where defendant claimed that it would not have entered into the carriage agreement were it not for the misrepresentations of the plaintiff – where the defendant claimed it lost the opportunity to make other profitable arrangements – where the defendant was required to prove causation of loss on the balance of probabilities
Competition and Consumer Act 2010 Cth Sch 2 Australian Consumer Law, ss 4(1), 4(2)

Melville & Anor v Body Corporate for Santorini By The Sea [2021] QCAT 285
REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – options for the renewal of Deed of Engagement – whether options exercised in accordance with provisions of the Deed or s.347 of the Property Law Act 1974 (Qld) – whether notice deemed to have been received – whether alternate means of notifying body corporate of the exercise of the option are available – whether notice of exercise of the option was given to the body corporate – whether exercise of the option was valid
REAL PROPERTY – STRATA AND RELATED TITLES – REMUNERATION OF THE CARETAKING SERVICE CONTRACTOR – claim for remuneration – whether payment of remuneration is dependent upon performance of duties – Body Corporate preventing the Contractor from performing duties - Body corporate arranging external Contractors to perform certain duties – duties not being fully performed – whether full remuneration payable or net profits – whether interest is payable on any unpaid remuneration.
Body Corporate and Community Management (Accommodation Module) Regulation 2008 Qld s 59, s 158, s 201, s 201(5), s 202; Property Law Act 1974 Qld s 257 (now s 347), s 347(1)(a), s 347(1)(b), s 347(1)(c), s 347(1)(d), s 347(2)

Trispine Pty Ltd trading as Pacific Commercial and Residential Real Estate & Anor v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading & Ors [2021] QCAT 284
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – where a person collected rent for a property owner – whether the person misapplied rent
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where claim against statutory fund – whether loss established
Agents Financial Administration Act 2014 Qld s 82(1)(b)

Legislation

Commonwealth

Bills

Federal Environment Watchdog Bill 2021
Senate 31 August 2021 - This bill follows this recommendation and establishes the Commonwealth Environment Protection Authority (EPA). The EPA will effectively, efficiently, equitably, and transparently exercise the routine administrative functions currently held by the Commonwealth concerning the EPBC Act as well as any other federal legislation relating to the environment 

Regulations

Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2021 
Tabled Senate: 31 August 2021 - This instrument amends the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 to reflect the commencement of the Federal Circuit and Family Court of Australia. The amendments are minor and consequential and do not substantively change the operation of the instrument.

Queensland

Subordinate legislation as made – 10 September 2021
No 138 Planning Amendment Regulation (No. 1) 2021
8 Amendment of sch 9 (Building work under Building Act)
9 Amendment of sch 23, s 2 (Standard planning and development certificates)
No 139 Planning (Public Health Accommodation Facility) Amendment Regulation 2021

Subordinate legislation as made – reminders
No 49 Water Plan (Mary Basin) (Postponement of Expiry) Notice 2021
For section 56(1) of the Act, the new expiry date for the Water Plan (Mary Basin) 2006, as postponed under section 55 of the Act, is 28 May 2024.
No 50 Planning (COVID-19 Vaccination Service) Amendment Regulation 2021
Insert 20A When material change of use for providing COVID-19 vaccination service is not assessable development. This section expires on 31 December 2021.
No 126 Building Regulation 2021 This Regulation is made under the Building Act 1975, Fire and Emergency Services Act 1990, Major Sports Facilities Act 2001, Planning Act 2016, Queensland Building and Construction Commission Act 1991, and State Penalties Enforcement Act 1999. The policy objective of the Regulation is to remake the Building Regulation 2006 which will expire on 31 August 2021. This regulation commenced on 1 September 2021.

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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