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Inside track: Property & Real Estate

22 March 2021

#Property, Planning & Development

Inside track: Property & Real Estate

In the media

Commonwealth

Capital city house prices jumped by 6.6 per cent in 2020
Real Estate Market Facts, a new report by the REIA, revealed that the average capital city median price increased by 6.0 per cent for houses and 0.9 of a percentage point for other dwellings over the December 2020 quarter (11 March 2021).  More...

Government backing firms up PEXA’s future
Commonwealth and state ministers have signed off on a recently proposed model offered by e-conveyancing company Property Exchange Australia (PEXA) that will ensure healthy competition in the $270 million a year electronic property settlement market (11 March 2021).  More...

Cities at risk of becoming 'unliveable' as shrinking green spaces create 'heat islands'
Most major Australian cities will be far hotter than forecast in coming years, as a lack of vegetation creates "heat islands," especially in poorer areas, a new report warns (10 March 2021).  More...

Structural outlook for commercial property slows
ANZ Research expects the dip in major project activity to recover as borders open and the faster-than-expected economic recovery helps confidence. But structural changes, including increased online shopping, remote working and potentially less travel, could slow growth in demand for several years (09 March 2021).  More...

Home loan arrears rising as mortgage deferrals end
Analysts are warning Australian mortgage arrears are starting to rise as mortgage-relief measures taper off at the end of this month (09 March 2021).  More...

How to design smart cities for an ageing population
Australia has a growing population of older adults, the majority living in cities. The challenge, then, is to ensure city environments meet their needs and personal goals (05 March 2021).  More...

Home prices surge at the high end of capital city markets
The latest home value index results from Corelogic showed the strongest monthly rate of growth in national dwellings since August 2003. A striking feature of the current upswing is the pace at which the "high" end of the market has risen in recent months (05 March 2021).  More...

Australian minerals sector takes accountability to new level
Australia’s minerals industry will introduce the Towards Sustainable Mining (TSM) system to improve site-level performance through regular and transparent reporting on safety, environmental and social performance, including partnerships with First Nations landholders and communities (04 March 2021).  More...

National plan to tackle plastic waste
The Morrison Government is taking the fight against plastic waste to a new level, from plastic free beaches, to ending the confusion over household collection systems, declaring war on cigarette butts and putting an end to polystyrene consumer packaging (04 March 2021).  More...

COVID-19 Pandemic sees first home buyers increase market share by 50.4 per cent
Real Estate Institute of Australia’s latest Housing Affordability Report shows that housing affordability in Australia declined nationally in the December quarter 2020 (03 March 2021).  More...

Retail development pipeline to bottom out
The number of new retail developments are forecast to drop dramatically over the next five years, improving existing asset valuations and soaking up oversupply. CBRE’s forecast for retail shows new supply will start to fall in 2022 with asset valuations bottoming out this year (03 March 2021).  More...

The Grenfell Tower inquiry
The Grenfell Tower public inquiry has revealed a catalogue of horrors in the construction trade, implicating manufacturers of plastic insulation that’s widely used to meet regulations focused on reducing carbon emissions and promoting energy efficiency (02 March 2021).  More...

Apartment new-builds down 40pc
Building approvals for apartments and townhouses were down 40 per cent at the end of January, signalling a dramatic downshift in the high-density sector (02 March 2021).  More...

Housing finance records continue to tumble in 2021
The January 2021 Lending to Households and Business figures released by the Australian Bureau of Statistics show that the value of new loan commitments for housing grew for the eighth consecutive month and reached another record high, according to the Real Estate Institute of Australia (01 March 2021).  More...

Victoria

Companies offered ‘rent to buy’ option for office space in a first for Australian commercial real estate
Companies struggling to calculate how much office space they’ll need as staff slowly return to work are being offered a “rent to buy” option in what’s thought to be a first in Australian commercial real estate in Victoria (09 March 2021).  More...

Better apartment designs for our neighbourhoods
The Andrews Labor Government is improving the design of apartments and ensuring they provide more open green space for residents, with new planning rules make sure new apartment designs are attractive, built from durable materials and don’t exacerbatwindy conditions for the street and public spaces (28 February 2021).  More...

NSW

Sydney housing market insights: March 2021
The Urban Developer’s Sydney housing market insights for February reveals that despite volatility across 2020, Sydney’s residential market has remained resilient (10 March 2021).  More...

57 NSW buildings receive funding for free NABERS Energy and Carbon Neutral ratings
The NABERS pilot project offer included waiving both the NABERS rating certification fee and providing a significant financial contribution towards the associated Assessor fees for NSW buildings in specific sectors.
Due to popularity of the pilot, NABERS was able to extend the budget by an additional $20,000, making the total available budget $120,000 (09 March 2021).  More...

Queensland

Smaller businesses shift to Brisbane CBD as lease terms loosen
Brisbane’s commercial leasing market is starting to pick up as smaller companies lead the charge into top-end office space. Agents report more deals have been finalised after a slow 2020 characterised by uncertainty and debate over the long-term future of the traditional office (11 March 2021).  More...

Gold Coast refines city plan
Gold Coast council is making further changes to city planning with the intention to build upward, not outward. Interstate migration is putting pressure on the region with only 20 per cent of homes deemed affordable and land availability becoming scarce (10 March 2021).  More...

Brisbane leads charge on construction sector
Brisbane’s construction market is tipped to have the quickest recovery, driven by a strong pipeline of pre-existing projects like Queen’s Wharf, and the Cross River Rail station developments (10 March 2021).  More...

Caravan park operation to pay $2.3m after losing High Court appeal
Companies operating a NSW Tweed River area caravan park have lost an appeal in the High Court after being ordered to pay more than $2.3 million in compensation plus interest to consumers relating to the sale of waterfront villas as “permanent residences” despite the sites not having development consent for permanent accommodation (09 March 2021).  More...

'Oversupply' of service stations as investors pump up profits with convenience stores
Dozens of new service stations are popping up across south-east Queensland as the fuel industry expands into the space once filled by corner shops (09 March 2021).  More...

Hotels Plans Lodged for Brisbane Fringe Site
Tal Projects have lodged plans for a 15-storey hotel opposite Chinatown Mall in Fortitude Valley.
Currently on the 1,174sq m site near the entrance to the Story Bridge is a two-storey commercial building within Brisbane's nightclub precinct (08 March 2021).  More...

Commercial precinct proposal for Brisbane's Boggo Road Gaol site approved
A proposal to place a two-storey commercial building between the heritage-listed Boggo Road Gaol and the CSIRO precinct at Dutton Park has been approved (08 March 2021).  More...

Bulimba Barracks site must be lifted above flood level, report says
The developers of the Bulimba Barracks site in Brisbane's east have asked the city council to vary an existing masterplan to reflect a need to raise the entire site above flood level. Documents submitted to the council note the 20-hectare site on the banks of the Brisbane River must be almost entirely filled with earth to ensure a planned 855-home master-planned community is safe from flooding. (05 March 2021).  More...

Hope Island multi-tower retirement village under way
Construction on a 348-apartment retirement village in Hope Island is under way after launching to market in October. The Gold Coast project spans the failed Hope Island Village Square marketplace site, a 3.4-hectare waterfront land parcel, that sold for around $17 million in 2019 (05 March 2021).  More...

Cleanaway fined
The Department of Environment and Science (DES) has issued Cleanaway Solid Waste Pty Ltd with two penalty infringement notices (PINs) totalling $26,690. The PINs, each of $13,345, are for two breaches of the company’s environmental authority (EA) for its landfill facility at New Chum (05 March 2021).  More...

Body corporate reforms
The Queensland Government announced changes to modernise body corporate regulations. While the Property Council is pleased to see administrative red tape being reduced for owners, many big-ticket changes to the Body Corporate Community Management Act remain outstanding (04 March 2021).  More...

Lansdown Eco-Industrial Precinct labelled Townsville’s number one City Deal project priority
The Queensland Government and Townsville City Council have joined forces to push for Australia’s first environmentally sustainable industrial precinct to be funded under the Townsville City Deal (04 March 2021).  More...

Protecting Gold Coast waterways and lifestyle at centre of climate adaptation partnership
The Palaszczuk Government and City of Gold Coast will partner to plan and develop new technologies, infrastructure and environmental management practices under a new agreement aimed at tackling climate change (04 March 2021).  More...

Property Council welcomes announcement of Growth Areas Delivery Team
The Property Council of Australia welcomes the announcement of a new Growth Areas Delivery Team by the State Government to tackle South-East Queensland’s population boom and land supply issue (03 March 2021).  More...

Concerns Burpengary housing and marina development will harm endangered wildlife
Conservationists warn a $2.7 billion residential and marina development on the banks of Caboolture River, north of Brisbane, is a threat to Moreton Bay's fragile ecosystem, as the Queensland government considers whether to give Priority Development Area status to the 570-hectare site at Burpengary (03 March 2021).  More...

New team behind ‘fundamental rethink’ of Brisbane’s mega-city planning
A new team has been set up to manage south-east Queensland’s population boom as Brisbane, the Sunshine and Gold Coast are on the verge of morphing into one mega-city (03 March 2021).  More...

New team to lead planning for state’s future growth
A specialist team will be created to ensure Queensland can keep up with population growth and the demand for housing and infrastructure development that comes with it – all part of the Government’s economic recovery plan, to create more jobs and development in our state (03 March 2021).  More...

Honeycombes secures funds for Ferny Grove Village
Queensland developer Honeycombes Property Group has unveiled plans for a $140 million mixed-use development at Ferny Grove train station, in Brisbane’s north-western suburbs (03 March 2021).  More...

Kangaroo Point's high density development leaves residents unhappy
Kangaroo Point is an inner-city suburb undergoing rapid transformation but residents want more infrastructure and consultation on its future (01 March 2021).  More...

Published – articles, papers, reports

Plan to Identify Planning and Zoning Reforms: Information paper
Productivity Commission: Released on 9 March 2021
The Commission was to prepare a plan to identify planning and zoning reforms that jurisdictions could consider as part of their response to, and recovery from, the COVID-19 pandemic. This paper is the result of that request.  More...

Australian Bureau of Statistics
10 March 2021 Building Approvals data for small geographic areas
02 March 2021 Building Approvals, Australia
02 March 2021 Media release - Dwelling approvals fall sharply in January Building Approvals, Australia, January 2021

In Practice and Courts

Commonwealth

Publication of final Version 6 of the MORs and MPRs
The Australian Registrars’ National Electronic Conveyancing Council (ARNECC) has published the final Version 6 of the Model Operating Requirements (MORs) and the Model Participation Rules (MPRs). Version 6 will take effect on 12 April 2021. Both marked-up and clean versions of the documents are available on the ARNECC website. 

API: IVSC Exposure Draft released – IVS Additional Technical Revisions (2021) – Invitation to provide feedback
The IVSC has recently published targeted revisions to IVS based on feedback received since the release of the IVS effective 31 January 2020. The IVSC encourages individuals and organisations to provide feedback and comment during the three-month consultation period ending 30 April 2021 (03 March 2021).  More...

API: New rules of professional conduct effective date postponed from 28 February to 4 April 2021
As a result of recent, important member feedback as well as feedback from the API Complaints Committee, the Rules have been updated and approved by the Board with an effective date of 4 April 2021.
The API encourages all Members to read the new Rules. The new Rules will come into effect from Sunday 4 April 2021. The existing Code of Professional Conduct (dated 15 June 2015) remains in effect until 4 April 2021.

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 open for public consultation. The Scheme is anticipated to come into effect on 1 September 2021. Submissions close on 21 March 2021.
The PSC’s Notice of the proposed APIV Scheme
The proposed APIV Scheme Instrument
The APIV Public Consultation Document

Announcements, Draft Policies and Plans released 2021

NSW

Registrar General: Timetable to digital survey plans in NSW launched
Some important deliverables in the next 12 months are:
July 2021: Surveyors will be able to create survey plan workspaces in the NSW Land Registry Services (LRS) portal and pre-fill titling documents online
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...

Queensland

Practice Directions – Supreme Court of Queensland
The Planning and Environment Court has amended the Application in Pending Proceedings - Form 3 (Version 2) on the Court’s Forms page. Form 3 (version 2) has been approved for use from 1 March 2021. Appellants/applicants are now required to include time estimates.
The Planning and Environment Court has also amended its 2021 court calendar. The new version reflects a change to the pre-callover review date for March.

Summary of body corporate regulation changes
On 1 March 2021, the Body Corporate and Community Management (Standard Module) Regulation 2020 will replace the existing Standard Module regulation from 2008. The government has amended the regulation to: Modernise body corporate procedures, reduce body corporate costs and enhance protection for unit owners. The new Standard Module includes several changes to committee membership, elections and procedures for meetings.  More...

DES Prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (March 2021).  More...

Consultations
Inland Rail – Border to Gowrie project – draft environmental impact statement Closes 19 April 2021

DAMS and SPP IMS updates
3 March 2021 Public safety area
Amendments to the above-mentioned strategic airport and aviation facilities mapping sublayers of the SPP IMS for Sunshine Coast Airport due to the main runway realignment. DTMR SPP IMS

3 March 2021 Light restriction zone
Amendments to the above-mentioned strategic airport and aviation facilities mapping sublayers of the SPP IMS for Sunshine Coast Airport due to the main runway realignment. DTMR SPP IMS

3 March 2021 Lighting area buffer 6km
Amendments to the above-mentioned strategic airport and aviation facilities mapping sublayers of the SPP IMS for Sunshine Coast Airport due to the main runway realignment. DTMR SPP IMS

3 March 2021 Wildlife hazard buffer zone
Amendments to the above-mentioned strategic airport and aviation facilities mapping sublayers of the SPP IMS for Sunshine Coast Airport due to the main runway realignment. DTMR

For more updates see here.

Cases

Victoria

Manor Central Nominees Pty Ltd v Wyndham City Council [2021] VSC 92
LOCAL GOVERNMENT – power of council in s 187, Local Government Act 1989 (Vic) to acquire land – compulsory acquisition of easement – land not reserved for a public purpose under a planning instrument – whether acquisition of land in a prescribed class of land within s 5(2), Land Acquisition and Compensation Act 1986 (Vic) – construction of reg 6(b), Land Acquisition and Compensation Regulations 2010 (Vic) – nature of interest acquired – Local Government Act 1989 (Vic), ss 187, 187A – Land Acquisition and Compensation Act 1986 (Vic), s 5 – Land Acquisition and Compensation Regulations 2010 (Vic), reg 6.
JUDICIAL REVIEW – whether power to acquire land exercised for an improper or ulterior purpose – scope of power of acquisition in s 187, Local Government Act 1989 (Vic) – whether permissible to infer the Council’s purpose from evidence of statements by Council officers and consultants – acquisition within scope of power – Local Government Act 1989 (Vic), ss 3A, 3C, 3E, 3F, 187.

City of Stonnington v Wallish & Ors [2021] VSC 84
PROPERTY LAW – restrictive covenants – public park – covenants restricting excavation – plaintiff’s application to discharge the covenants, alternatively for a declaration, alternatively for modification to the covenants – how the restrictive covenants ought be interpreted – whether plaintiff proved that modification will not cause substantial injury to the beneficiaries of the covenants – whether the restrictive covenants are obsolete – covenants to be discharged – declaration unnecessary – Vrakas v Registrar of Titles [2008] VSC 281 – Clare v Bedelis [2016] VSC 381 – Hivance Pty Ltd v Moscatiello [2020] VSC 183 – Property Law Act 1958 s 84(1)(a), (c) – Application successful.

Lascon Investments Pty Ltd v Phelan [2021] VSC 80
REAL PROPERTY – restrictive covenant – application to modify a restrictive covenant – restrictive covenant on land in a suburban neighbourhood preventing more than one dwelling on the land – plaintiffs fail to establish that modification to the restrictive covenant will not cause substantial injury to the beneficiaries of the covenant – Property Law Act 1958 s 84(1)(c) – Jiang v Monaygon Pty Ltd [2017] VSC 591 – Application unsuccessful.

Izett St Pty Ltd v Applgold Pty Ltd (Building and Property) [2021] VCAT 174
LANDLORD AND TENANT – tenant sublet space to subtenants, subtenancies are retail tenancies, whether premises are ‘retail premises’ for the purpose of the Retail Leases Act 2003 (Vic) – ultimate consumer test, provision of services, whether premises open to the public, determination of preliminary question.
In answer to the preliminary question set out in the Tribunal’s orders dated 17 August 2020, the Tribunal finds and declares that the subject lease is not a lease of retail premises under the Retail Leases Act 2003 (Vic).

Karting Madness Pty Ltd v Daniel Terrence Pty Ltd (Building and Property) [2021] VCAT 159
RETAIL LEASES–INJUNCTION – serious question to be tried concerning the right of the respondent landlord to forfeit the lease by re-entry, and balance of convenience found to favour the applicant tenant.
COVID-19 LEGISLATION–CONSTRUCTION–whether, in respect of a tenant having an eligible lease and having complied with regulations 10(1)–(5) of the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (the “Regulations”) (albeit not having yet resulted in a rent relief agreement), there is a serious question to be tried whether regulations 9(2) and 9(3) of the Regulations continue to apply to such a tenant notwithstanding the differing terms of amended regulations 9(2) and 9(3) expressed as having retrospective effect and, if so, whether there is a serious question to be tried that regulations 9(2) and 9(3), properly construed, prevent re-entry or eviction for any reason.
INJUNCTIONS–UNDERTAKING AS TO DAMAGES–whether the frailty of the tenant’s undertaking as to damages on obtaining injunctive relief should be determinative in respect of the balance of convenience–found that the most substantial possible liability of the landlord by reason of the decision to grant an injunction being wrong is a fine for breach of a Building Order upon prosecution by the relevant authority–found on the facts that the relevant authority had previously expressed itself as amenable to compliance with Building Order being achieved by an alternative process–found that it was therefore in the landlord’s power, and possibly its obligation at law, to participate in the alternative process as would give the tenant the benefit of the lease and, on the balance of probabilities, avoid prosecution–any lack of substance to the undertaking therefore not determinative.

Queensland

Ahwang & Anor v Slatcher [2021] QDC 40
ABORIGINALS - NATIVE TITLE TO LAND- Rights and Interests under traditional laws and customs - whether section 211 of the Native Title Act 2003 (Cth) applied - whether Native Title rights arose under than under the Act
CRIMINAL LAW – DEFENCE – HONEST CLAIM OF RIGHT – TRADITIONAL ABORIGINAL HUNTING PRACTICES – whether defence under s 211 of the Native Title Act 2003 (Cth) available- whether defence of honest claim of right was available at trial- whether defence disproved by the prosecution
Criminal Code 1899 Qld ss 1, 22; Justices Act 1886 Qld ss 43A, 222, 223, 225; Native Title Act 2003 Cth ss 211, 223, 224; Nature Conservation Act 1992 Qld ss 88, 160, 167

Ganthorpe Hill Pty Ltd as Tte v Valuer-General [2021] QLC 8
Jurisdiction - appeal against objection decision on a valuation under the Land Valuation Act 2010
PRACTICE AND PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS OR RENEWAL – where the appellant failed to appeal to the Land Court in time –where the Notice of Appeal was lost or delayed in the post– whether there was a reasonable excuse for the failure to lodge the appeal in time – where the Court found there was a reasonable excuse therefore jurisdiction to hear the appeal
Land Valuation Act 2010 Qld s 155, s 157, s 158

148 Brunswick Street Pty Ltd v Strategix Training Group Pty Ltd [2021] QDC 38
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – PENALTIES AND LIQUIDATED DAMAGES – OTHER PARTICULAR CASES – plaintiff leased premises to defendant – plaintiff and defendant agreed on variation to lease which provided certain financial incentives to defendant – financial incentives conditioned on defendant not exercising option to terminate lease early – defendant exercised option and terminated early – whether clause requiring repayment of incentives amounts to a penalty clause.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – plaintiff applied for summary judgment on claim for damages for breach of a lease as varied – whether defendant has a real prospect of defending the claim
Uniform Civil Procedure Rules 1999 Qld r 292(2)

Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39
EQUITY – EQUITABLE REMEDIES – OTHER REMEDIES – where the parties provided further submissions regarding the appellant’s responsibility for the shower system defects – where it was common ground between the parties that the Court should declare that the appellant is so liable under clause 7.2 of the lease – where the respondent also sought declarations concerning the quality of the appellant’s actions in discharging its liability and the time in which the work ought be carried out
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – PARTIAL SUCCESS –where the parties provided further submissions on the issue of costs – where the appellant succeeded in setting aside all the orders made against its interests in relation to the defects at trial – where the respondent succeeded on the question of liability for a particular defect – whether the general rule that costs should follow the outcome of the appeal should apply – whether, in light of the successful appeal, there should be an order as to the costs of the trial – where the appellant submitted that its success on appeal added to its success at trial – where the respondent contended for an issues-based costs order
Uniform Civil Procedure Rules 1999 Qld r 681, r 766(1)(d)

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the Council refused an application to develop land for multiple dwellings – where the land was in the Low density residential zone – where the land had an area of 8,910 square metres – where the Council conceded that the proposed development does not create any adverse amenity or character consequences for the surrounding area – where the Council conceded that the development does not create any internal amenity issues or traffic issues that warrant its refusal – whether the proposed development was of a house scale – whether the proposed development was low density –whether the proposed development will deliver appropriately located infill development that furthers the planning goals in City Plan – whether the proposed development should be approved in the exercise of the planning discretion. Planning Act 2016 Qld ss 45, 59, 60; Planning and Environment Court Act 2016 Qld ss 43, 45, 47; Planning Regulation 2017 Qld s 31 

KV Projects Pty Ltd v Regal Bridges Pty Ltd and Ors (No. 2) [2021] QDC 37
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where the plaintiff secured default judgment against the defendants – where the plaintiff submits an entitlement to damages under an agreement – where the plaintiff further submits an entitlement to damages under the Australian Consumer Law.
Uniform Civil Procedure Rules 1999 Qld r 284, 367, r 390, r 509, r 685
1)The plaintiff’s damages in respect of the default judgments issued by the Court against each of the first defendant on 11 May 2020, the second defendant on 25 November 2020 and the third defendant on 3 June 2020, are assessed in the sum of $205,363.03 (inclusive of an amount of $26,363.03 as interest).

Symbolic Resources Pty Ltd v Kingham & Ors (No 2) [2021] QSC 40
PROCEDURES – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – EVENT: WHAT CONSTITUTES – where the applicant unsuccessfully opposed a joinder application by the fourth respondents – where costs of the joinder application were reserved – where the applicant was ultimately successful in judicial review proceedings – whether the joinder application was an “event” for which costs should be determined separately
PROCEDURES – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the applicant was successful on one of four grounds of review in judicial review proceedings – where each ground of review involved separate questions and issues – where considerable time and resources were expended on the three unsuccessful grounds of review – where the original proceedings were in the Land Court of Queensland (a “no cost jurisdiction”) – where the applicant briefed both senior and junior counsel but this was not necessary given the complexity of the matter – how costs should be apportioned
gold mining lease over a rural property known as “Milwarpa Station”. Pursuant to section 269 of the Mineral Resources Act 1989 (Qld) (the “MRA”), the Land Court of Queensland recommended the applicant’s mining lease application be rejected.

McPaul v Valuer-General [2021] QLC 7
REAL PROPERTY – VALUATION OF LAND – OBJECTION AND APPEALS – UNIMPROVED VALUE – METHOD OF ASSESSING – VALUATION INCREASE – unimproved value assessed using bona fide sales of comparable land – increase not a relevant issue – no basis upon which Court could act
REAL PROPERTY – VALUATION OF LAND – OBJECTION AND APPEALS – where unimproved value is basis of valuation – method of assessing – where appellant undertook improvements – deduction of added value from improved value – no evidence of improved value – use of analysed unimproved value from sales preferred
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – impact of flooding and drought – date of valuation – onus and burden of proof – sales evidence – no evidentiary basis for either ground
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – where appellant contended that respondents valuation was fabricated due to sales used – sales selection by expert valuer – best evidence – logical explanation for sales selected – application of professional judgment and accepted valuation practice – evidence of insufficient weight to discharge onus of proof
COURTS – JURISDICTION AND POWERS – GENERAL PRINCIPLES – whether the jurisdiction of the Land Court extends to back-dating an alteration in unimproved value – extend powers of Court under section 170 of the Land Valuation Act 2010 – powers under section 7A of the Land Court Act 2000 – no jurisdiction to make Orders sought
PRACTICE AND PROCEDURE – FURTHER EVIDENCE – hearing and submissions completed – generally inappropriate for Court to consider unless leave given – do interests of justice require further evidence to be received – would evidence affect outcome of appeals – relevance/admissibility of further evidence – whether subject matter referrable to ground of appeal. Land Valuation Act 2010 Qld

Solar Panel Xpress Pty Ltd v Wallandale Pty Ltd & Ors [2021] QDC 31
GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where plaintiff contracted to purchase a business conducted by the first defendant – whether on the proper construction of the sale contract, the business sold included PV sales business component of the existing business – where the contract was intended to be entirely in writing – whether extrinsic facts may be considered to assist in construction– whether and to what extent post-contractual events assist in construction
CONTRACT - MISLEADING OR DECEPTIVE CONDUCT – where profit and loss statements were provided to the plaintiff in respect of the business offered for sale by the first defendant – where the profit and loss statements were prepared by the second defendant accountants – where the profit and loss statements included revenue and costs arising from both a 12V and RV sales business and a PV sales business – whether provision of the profit and loss statements and certain alleged oral statements related to them were misleading or deceptive – whether the second defendant accountants were liable for any misleading conduct alleged by the plaintiff where the statements were prepared in accordance with the accountant defendants’ retainer. Competition and Consumer Act 2010 Cth Schedule 2 - Australian Consumer Law, s 18

Foy & Anor v Kleinberg and Eagle Pty Ltd [2021] QCAT 76
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – JUDGMENT IN DEFAULT OF OTHER REQUIRED STEP – where respondent failed to file material despite Tribunal directions to do so – where the failure continued despite warnings – where the matter was directed to be decided on the material filed
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – where a retail shop lease was entered into – where the lessor failed to maintain the premises – where the parties disagreed about the lessees’ responsibility to contribute to outgoings – where the lessor served a Form 7 Notice to Remedy Breach of Covenant – where the lessees accepted the service of the Form 7 and other actions by the lessor as repudiation of the lease. Property Law Act 1974 Qld s 124

Loughnan v The Commissioner of State Revenue [2021] QCAT 72
TAXES AND DUTIES –LAND TAX – EXEMPTIONS –PRINCIPAL PLACE OF RESIDENCE – QUEENSLAND – where applicant was the owner of land and house that had been rented under a residential tenancy agreement – where Commissioner levied land tax as at 30 June 2018 and 30 June 2019 in respect of the land – where applicant contended the residential tenancy terminated on 28 June 2018 – whether tenancy terminated on 28 June 2018 – whether decision to levy land tax should be set aside – whether land the applicant’s principal place of residence as at 30 June 2018 and 30 June 2019. Queensland Civil and Administrative Tribunal Act 2009 Qld ss 20, 23 and 28; Land Tax Act 2010 Qld s 36

Brady & Anor v Commissioner of State Revenue [2020] QCAT 521
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – revenue and taxation – whether ‘eligible transaction’ for first home owner grant – whether property previously sold as place of residence and therefore not a ‘new home’ – where previous contract of sale for vacant land – where property previously transferred as dwelling and attached dwelling notwithstanding previous contract of sale – where property thus sold as place of residence – where Parliament’s policy intent was achieved when home first bought and transferred
First Home Owner Grant and Other Home Owner Grants Act 2000 Qld s 5, s 6, s 10
Queensland Civil and Administrative Tribunal Act 2009 Qld s 20, s 23

Cases to 08 March 2021

Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – MODIFICATIONS – GENERALLY Where the appeal concerns an approval of an application for a material change of use from warehouse to indoor recreation – whether the plan is inconsistent with an existing development condition – whether the proposed development plan is prohibited by previous development plan – where the appellant submits that an earlier development approval is binding – where the respondents submit that the proposed development is independent of the regulated use under the earlier development approval – where it was found that the proposed development is not prohibited Planning Act 2016 Qld s 66(2), s 73 

YFG Shopping Centres Pty Ltd as Tte & Anor v Valuer-General; Shayher Alliance Pty Ltd as Tte v Valuer-General; Leda Commercial Properties Pty Ltd as Tte v Valuer-General; Lipoma Pty Ltd as Tte v Valuer-General (No 2) [2021] QLAC 1
COSTS – where the court gave judgment dismissing each of the appellant’s appeal – where each party delivered written submissions contending that each party bear its own costs of the appeal

Pelican Noosa Pty Ltd v Noosa Council [2021] QPEC 11
ENVIRONMENT AND PLANNING –– DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – GENERALLY – where the appellant was successful in an application to extend a jetty – where the jetty was constructed longer than permitted and contrary to a setback – where the appellant submitted a change application following – where the respondent refused the change application – whether the change application was for a minor change – whether the change should be made
Noosa Plan 2006 Qld; Noosa Plan 2020 Qld; Planning Act 2016 Qld s 45, s 60, s 63, s 68, s 81, s 81A
Planning and Environment Court Act 2016 Qld s 43, s 45, s 46

Marine Engineering Consultants Pty Ltd, Re [2020] QSC 398
CORPORATIONS – WINDING UP – APPLICATIONS FOR WINDING UP BY COURT – WHO MAY APPLY – CREDITORS – APPLICATION FOR SUBSTITUTION AS CREDITOR – where an application to wind up the respondent shipbuilder was filed on 8 June 2020 by Pine Rivers Caboolture and Redcliffe Group Training Scheme Inc – where the respondent reached an agreement with the applying creditor so that it no longer pursues the application – where the applicant seeks an order that it be substituted as the creditor who has the carriage of the application – where the applicant and the respondent had entered into two contracts for the construction of a vessel – where the applicant relies upon two alleged debts to establish its status as a creditor – whether the applicant has established on the balance of probabilities that it is a creditor – whether the applicant should be substituted as the applying creditor on the originating application
Corporations Act 2001 Cth s 459P, s 465B

Baker v Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning & Anor [2021] QPEC 10
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – application seeking declarations and consequential orders as to whether a development application required assessment by the respondent – whether the development application was for high impact earthworks – whether operational work diverts water to or from a wetland in a wetland protection area Planning and Environment Court Act 2016 Qld s 11; Planning Act 2016 Qld ) ss 3, 45, 56, Schedule 2

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4
PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – where proposed development involved largescale residential development
WHERE PROPOSED DEVELOPMENT RAISED NUMEROUS ISSUES – where proposed development did not comply with provisions of the planning scheme concerning ecology – where proposed development raised issues in respect of koala habitat – removal of trees – transport – civil engineering – stormwater
CONFLICT WITH PLANNING SCHEME – whether proposed development complied with provisions of relevant planning scheme – whether proposed development was out of step with strategic objectives of planning scheme – whether proposed development would result in out of sequence development
TOWN PLANNING – whether proposed development would result in developable or developed lots
Planning Act 2016 Qld ss 45, 60; Planning and Environment Court Act 2016 Qld ss 43, 45
Sustainable Planning Act 2009 Qld s 326

Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – APPLICATIONS – where the applicant applied for a statutory order of review pursuant to s 48 of the Judicial Review Act 1991 (Qld) – where the trial judge dismissed the application because it was out of time and an abuse of Court processes – where the applicant seeks leave to appeal the trial judge’s decision – where the applicant submits that the trial judge erred by failing to consider s 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the reasonable prospects of success – whether leave should be granted
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EVIDENCE – where the applicant seeks an order that the Court consider further ‘fresh evidence’ – whether the Court should allow that evidence to be relied upon by the applicant. Real Estate business trust accounts
Agents Financial Administration Act 2014 Qld ss 47, 61(7), 62; Judicial Review Act 1991 Qld ss 26, 48
Queensland Civil and Administrative Tribunal Act 2009 Qld s 52

Legislation

Queensland

Bills

COVID-19 Emergency Response and Other Legislation Amendment Bill 2021
Introduced by: Hon S Fentiman MP on 11/03/2021
Stage reached: Referred to Committee on 11/03/2021
Part 2 Amendment of Body Corporate and Community Management Act 1997
3 Amendment of s 323D (Sinking fund budgets); 4 Amendment of s 323F (Penalties for late payment)
5 Amendment of s 323H (Power to borrow)

Subordinate legislation
No 233 Body Corporate and Community Management (Standard Module) Regulation 2020
This regulation commences on 1 March 2021.

Acts

COVID-19 Emergency Response and Other Legislation Amendment Act 2020
Commencement
(3)Section 39 and schedule 1 commence on 1 March 2021. Schedule 1 amends the regulation modules under the Body Corporate and Community Management Act 1997 it mentions.

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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