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Inside track: Planning, Environment & Sustainability

21 January 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Queensland, Victoria solar businesses burnt $1.3 million for duty evasion
Unnamed Queensland and Victoria solar businesses have been ordered to pay hefty fines, after being caught misclassifying solar mounting kits imported from China. Earlier this year, the Australian Border Force announced it was tightening screws on the dumping of aluminium extrusions, mostly used to mount solar panels (20 December 2019).  More...

PIA endorse national position statement Planning in a Changing Climate
The Planning Institute of Australia commitment sees PIA adopt a target of net zero embodied carbon in all new buildings and net zero operational carbon in all buildings, including existing buildings, by 2050 (18 December 2019).  More... 

CEFC congratulates Genex Power on continued progress
The CEFC today congratulated Genex Power on its continued progress in developing renewable energy resources. In a statement to the ASX, Genex said it had successfully achieved financial close for the 50MW Jemalong Solar Project in NSW and the refinancing of its existing debt facility for the 50MW Kidston Solar Project in North Queensland (18 December 2019).  More...

Australian cities pay the price for blocking council input to projects that shape them
In many countries, city-shaping mega-projects are generally overseen by local government, but in Australia state governments often step in and exclude council and community representatives from the process (17 December 2019).  More...

NSW

NSW Housing Apartment Approvals are up – but overall monthly result is the worst recorded since 2013
Urban Taskforce CEO Tom Forrest welcomed the release by the ABS today showing a modest rise in NSW apartment approvals but noted with concern a further drop off in the trend line for private sector stand-alone housing approvals ( 08 January 2020).  More...

Change of tack for metro station development on Sydney's north shore
The government has split construction of a new metro train station on Sydney's north shore from the development of towers above it following local opposition (30 December 2019).  More...

Morning commute to be made easy with M6 Motorway approval
A new tunnel from Arncliffe to Kogarah that will shave up to 15 minutes’ off motorists’ commutes will become a reality following NSW Government planning approval (20 December 20 December 2019).  More...

New State Policy to protect koalas
Koala habitats will be better protected under a new State Environmental Planning Policy that has been released by the NSW Government today (20 December 2019).  More...

Queensland

How much are developers contributing to Brisbane's infrastructure?
Infrastructure charges - amounts levied on developers for new developments around the city - can now be seen publicly on the council's website (06 January 2020).  More...

Six-storey proposal for heritage seaside suburb sparks protest
A quiet seaside suburb in Brisbane's north could see six-storey buildings rubbing shoulders with single-storey heritage-listed buildings under a neighbourhood plan being drafted by Brisbane City Council (02 January 2020).  More...

River parkland project feted by Brisbane council now back in court
The development, next to Bulimba ferry terminal, was cause for concern for residents who protested it was inappropriate and oversized (20 December 2019).  More...

$2 billion Brisbane river redevelopment to tower over Eagle Street
After years of negotiations, Dexus has gained state approval for the multibillion-dollar Eagle Street Pier redevelopment (19 December 2019).  More...

Queensland Unveils Brisbane Live Development Plans
The Queensland government has announced it will begin “market sounding” for the new Brisbane Live arena, the 17,000-seat entertainment venue pegged for Brisbane's CBD (16 December 2019).  More...

In practice and courts

Australia’s proposed ‘Kyoto carryover’ - nature, scale, implications, legal issues and environmental integrity of the Paris Agreement
Climate Analytics - This report argues that given Australia's projections, it would almost certainly be best for Australia to openly acknowledge the challenges it faces in meeting its 2020 and 2030 Paris Agreement targets, and do its utmost to put in place policies and measures that can bend its emissions trajectory (12 December 2019).  More...

Bushfire management and national Environmental law
Find out how national environmental law applies to firefighting and fire prevention activities (08 January 2020).  More...

New NatHERS certificate to be rolled out by 30 April 2020
A new NatHERS certificate will soon come into use as software tools transition to Chenath Engine version 3.21. The new NatHERS certificate has been developed after significant consultation with industry users and will replace the previous “universal certificate” for all new assessments from 1 May 2020.   More...

The National Climate Disaster Fund
Mark Ogge; The Australia Institute - This paper argues that a National Climate Disaster Fund should be established to reduce the cost burden of natural disaster response and recovery to Australian households and taxpayers. The Australia Institute suggests that it should be funded by a levy on coal, gas and oil production (20 December 2019).  More...

Announcements, Draft Policies and Plans released 2019

NSW

RFS's Planning for Bushfire Protection guide updated
An updated version of the RFS's Planning for Bushfire Protection 2019 (PBP 2019) for councils, planners, fire authorities and developers promises to provide improved clarity, design flexibility and appropriate bush fire safety outcomes to people building or re-building in bushfire-prone areas (10 January 2020).  More...

NSW Planning Department: Have your say

Western Sydney Aerotropolis Planning Package
The Western Sydney Planning Partnership (Planning Partnership) has the responsibility for delivering the Final Plan and Precinct Plans within the Western Sydney Aerotropolis to the Minister for Planning and Public Spaces. Notification start-end date 06/12/2019 - 28/02/2020.  More...

Queensland

QAO: Are climate-related risks impacting on your financial statements?
Advice Published - Climate-related risks are an emerging area that may have a direct impact on entities’ financial statements (9 January 2020).  More...

Review of Queensland Energy Legislation
Following consultation on an Issues paper in 2018, the state government is now seeking feedback on an Options paper that contains proposals to modernise Queensland’s state energy laws.   The laws being reviewed are the Electricity Act 1994, the Gas Supply Act 2003, the Energy and Water Ombudsman Act 2006 and the Liquid Fuel Supply Act 1984. The consultation paper proposes options to improve Queensland’s state energy laws by creating a future-focused framework. Submissions close on 31 January 2020.

Cases

NSW

Kavanagh v Hawkesbury City Council [2020] NSWLEC 1003
DEVELOPMENT APPLICATION – proposed construction of a dwelling house with on-site sewage disposal – Subject Site is flood liable land – Court cannot be satisfied that flooding risk to property and life is managed – insufficient information to assess adequacy of proposed sewage management

Hyde v Vagg [2020] NSWLEC 1009
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – iconic views

278 Palmer St Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1012
DEVELOPMENT APPLICATION: Conversion of existing building – whether the proposed development will have a detrimental impact on the heritage significance of a contributory building in a heritage conservation area – whether the methodology of retaining the existing fabric is sufficiently certain – whether there is an unreasonable uncertainty of impacts to the building - appeal dismissed.

Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013
APPEAL – development control order – demolish works order – stairway constructed on public reserve – statutory requirements for the issue of the order met – discretion as to whether order should remain or be revoked in circumstances where the Council’s own actions and plan of management supported the construction of the stairs – discretion exercised to vary the order to allow them to remain with work to be carried out

Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 2) [2019] NSWLEC 202
JUDICIAL REVIEW – application seeking declaratory relief in relation to decisions made by the Minister and Council to prepare, certify and adopt the Great Lakes Coastal Zone Management Plan – whether the applicant has standing – whether the impugned decisions were unreasonable – whether there was non-compliance with the Coastal Protection Act 1979 (NSW) and Guidelines for Preparing Coastal Zone Management Plans – whether there was a deficiency of information for the Great Lakes Coastal Zone Management Plan – whether there was a rational basis for the risk assessment in the Great Lakes Coastal Zone Management Plan – application dismissed

Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979 [2019] NSWLEC 203
JUDICIAL REVIEW – identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 being land identified by State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP) of “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” not a jurisdictional fact  
JUDICIAL REVIEW – identification of 100-metre proximity area around coastal wetlands not a disproportionate regulatory approach  
JUDICIAL REVIEW – CM SEPP not invalid because Governor did not approve “Coastal Wetlands and Littoral Rainforests Area Map” at time of making CM SEPP

Queensland

Maroochydore Sands Pty Ltd v Minister for State Development, Manufacturing, Infrastructure and Planning [2019] QSC 319
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY – where the applicant wished to develop commercial plants on a site at Forest Glen – where the applicant’s agent provided a report to a division of the Department of Natural Resources and Mines supporting the inclusion of part of the site as a Key Resource Area (KRA) in the State Planning Policy (SPP) – where the Chief of Staff of the Deputy Premier advised the applicant that the Deputy Premier had decided not to proceed with the inclusion of the site in the SPP guidance or mapping given legal proceedings currently under way in relation to the site – where representatives of the applicant have continued to encourage the Minister and her representatives to make a decision to include the site in the SPP and the SPP guidance material but no such decision has yet been made – where the applicant applied for a statutory order of review – where the respondent Minister applied for the dismissal of the application pursuant to s 48 of the Judicial Review Act 1991 (Qld) because the decision is said not to be one to which the Act applies – whether the Minister is required to make a decision “under an enactment” namely, the Planning Act 2016 (Qld) – whether the decision sought under s 10(5) of the Planning Act is an amendment to a State Planning instrument – whether the decision sought affects legal rights and interests

Curtain & Anor v Kirk & Anor [2019] QSC 317
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – OTHER PARTICULAR CASES – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract – where the defendants purported to rescind and terminate the contract for breach of the requirement under s 421 of the Environmental Protection Act 1994 (EPA) that they be given written notice that the particulars of the unit were recorded in the Environmental Management Register (EMR) – where the plaintiffs contended that the defendants’ purported termination was unlawful and a repudiation of the contract, which the plaintiffs purported to accept, terminating the contract – whether the unit was, at the time of the sale to the defendants, on the EMR – whether, if the unit was on the EMR, the plaintiffs were aware of that fact at the time of the sale to the defendants – whether the defendants had entered into possession under the agreement before purporting to rescind – whether the defendants’ purported rescission was valid – whether s 421 afforded the defendants a privately actionable right to damages where there had been a breach of the section
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – OTHER PARTICULAR CASES – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract –where the defendants purported to rescind and terminate the contract for breach of a warranty under the sale contract that the plaintiffs were not aware of any facts or circumstances that may lead to the land being classified as contaminated land within the meaning of the EPA – where the plaintiffs contended that the defendants’ purported termination was unlawful and a repudiation of the contract, which the plaintiffs purported to accept, terminating the contract – whether the plaintiffs were aware at the time of the sale to the defendants of any facts or circumstances that may have led to the unit being classified as being contaminated land within the meaning of the EPA – whether the defendants’ purported rescission was valid
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RESCISSION – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract – where the defendants submitted they were entitled to rescind the contract because material facts (the existence of the EMR listing and the existence of the facts that led to that listing (“the material facts”)) were not disclosed to them which, if they had been disclosed, would have changed their decision to enter into the contract in the first place – whether the plaintiffs were aware of the material facts – whether the defendants would have entered into the contract had the material facts been disclosed – whether the defendants relied on any failure to disclose – whether the defendants had waived any right to rescission in equity by conduct in April 2010 – whether the defendants’ conduct, viewed objectively, was consistent with exercising a right to press the contract to completion and abide by its terms over exercising a right to rescind or terminate. Environmental Protection Act 1994 Qld s 421; Limitation of Actions Act 1974 Qld s 42

Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council & Anor [2019] QPEC 68
PLANNING AND ENVIRONMENT – whether two development applications made by the appellant were impact assessable or code assessable – whether the respondent Council had the authority to issue the Not Properly Made Notice issued in respect of the first development application lodged by the appellant. Planning Act 2016 Qld

Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67
PLANNING AND ENVIRONMENT – APPEAL – where two submitter appeals against an approval for a Service station, Shop and Food and drink outlet – where proposed in a Rural residential zone – whether development anticipated in the Rural residential zone – whether development constitutes a centre activity in an out-of-centre location – whether development gives rise to unacceptable impacts on character, amenity and privacy – whether development unacceptably impacts on the safety and efficiency of the road network – whether development complies with the respondent’s planning scheme – whether there is a need for the proposed development – whether the application should be approved in the exercise of the planning discretion. Planning Act 2016 Qld ss.3, 45, 59, 60; Planning and Environment Court Act 2016 Qld ss.43, 45; Sustainable Planning Act 2009 Qld ss.3, 8

Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66
PLANNING AND ENVIRONMENT – APPEAL – where application for a material change of use for a Childcare centre and a Multiple dwelling (19 units) in the Low-medium density residential zone and Character residential zone – whether noise from the outdoor play areas of the Childcare centre will have an unacceptable impact on the balcony of five units in the proposed development – whether the proposed Childcare centre will serve a local community facility need only – whether the development complies with the respondent’s planning scheme – whether in the exercise of the discretion the application should be approved.  Planning Act 2016 Qld ss.45 and 60; Planning & Environment Court Act 2016 Qld ss43 and 45

Kenlynn Pty Ltd v Noosa Shire Council [2019] QPEC 65
PLANNING AND ENVIRONMENT – APPEAL – where the appellant submitted a development application for a development permit to reconfigure a lot – where the respondent refused the application – where the appellant appeals against that refusal – where the development application is code assessable – whether non-compliance with assessment benchmarks warrants refusal of the development application – where significant ecological issues for determination – where the appellant proposed offset in respect of vegetation clearing – whether conditions can be imposed to achieve compliance with assessment benchmarks – whether the application ought be approved in the exercise of discretion. Planning Act 2016 Qld ss 43, 45, 60; Planning and Environment Court Act 2016 Qld ss 43, 46; Planning Regulation 2017 Qld s 27

Wilson v Brisbane City Council & Anor [2019] QPEC 64
PLANNING AND ENVIRONMENT – APPEAL – where co-respondent submitted a development application for a residential sub-division – where 38 separate lots are intended on being developed – where the respondent council approved that application subject to conditions – where the appellant appeals against that approval – whether the development is non-compliant with the objectives of the planning scheme – whether the development causes unsatisfactory traffic and town planning impacts – whether notwithstanding non-compliance should the co-respondent’s development be approved
TRAFFIC – whether the local road network can accommodate increased traffic from the proposed development – whether the proposed development would have unacceptable safety impacts on the local road network so as to warrant refusal – whether the proposed development would result in unacceptable queuing times
TOWN PLANNING – where the proposed development is located in the Extractive Industry Zone – whether the proposed land use in non-compliant with the planning scheme – whether the planning scheme contemplated residential development in the zone – whether the proposed development will negatively impact the urban amenity of the locality – whether the proposed development provides a sufficient range of lot sizes – whether the intended land use aligns with community expectations Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

Legislation

NSW

Regulations and other miscellaneous instruments

Environmental Planning Instruments

Proclamations commencing Acts
Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 No 80 (2019-635) — published LW 20 December 2019

Regulations and other miscellaneous instruments
Order declaring state of emergency in relation to bushfires (2019-664) — published LW 19 December 2019

Environmental Planning Instruments
State Environmental Planning Policy (Infrastructure) Amendment 2019 (2019-657) — published LW 20 December 2019
State Environmental Planning Policy (Koala Habitat Protection) 2019 (2019-658) — published LW 20 December 2019
State Environmental Planning Policy Amendment (Repeal of Operational SEPPs) 2019 (2019-659) — published LW 20 December 2019
State Environmental Planning Policy Amendment (Sydney Regional Environmental Plan No 26—City West) 2019 (2019-660) — published LW 20 December 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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