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Inside track: Property & Real Estate

22 October 2019

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Fringe office precincts outperforming the wider market: JLL
Sydney and Melbourne fringe suburbs are achieving some of the highest office rents in Australia, according to JLL's Future Cities report (04 October 2019).  More...

Property Council supplier platform
The Property Council of Australia has launched an online platform that engages suppliers about the actions they are taking to assess and address human rights issues and modern slavery risks across shared operations and supply chains (10 October 2019).  More...

Airbnb to hand over host data in ATO examination
Airbnb has warned its hosts the Australian Taxation Office will seize the personal financial data of hundreds of thousands of sharing-economy accommodation providers as part of a crackdown on tax avoidance in the “largely unregulated” industry (10 October 2019).  More...

Property Council responds to the Low Deposit Home Loan Scheme
The Property Council has responded to the Federal Government’s proposed Low Deposit Home Loan Scheme – an initiative to help eligible first home buyers purchase a house with a deposit as low as 5 per cent (10 October 2019).  More...

PCA: Property Council welcomes Centre for Population
The Property Council of Australia welcomes the launch of the new Centre for Population in Treasury to support the sharing of data, research, ideas and expertise on population. The Centre will make an important contribution to policy and planning by the Commonwealth, state and territory governments that is based on good evidence and better forecasting (04 October 2019).  More...

Commercial Building Disclosure Program: Hotels and tenants in, shopping centres and data centres out
Hotels and office tenancies have got the green light for mandatory energy performance disclosure by independent reviewers of the Commercial Building Disclosure Program. The recommendations haven’t extended to shopping centres (03 October 2019).  More...

New Green Investment Group tool demonstrates the climate benefits of over 40,000 wind and solar assets in partnership with BloombergNEF
Over 60 per cent of wind and solar projects globally will receive a GIG Carbon Score. The Carbon Score will provide robust and comparable data to allow measurement of renewables assets’ contribution to carbon reduction (02 October 2019).  More...

Victoria

Bold transport vision to boost city’s liveability
An ambitious 10-year transport plan to respond to Melbourne’s significant population growth by delivering more space for pedestrians, public transport users and cyclists, will return to City of Melbourne councillors for final consideration (11 October 2019).  More...

Expression of interest open for treasury square site
The Andrews Labor Government has announced the start of an expression of interest process to develop vacant transport land in Melbourne’s CBD which has the potential to create jobs and attract new businesses (10 October 2019).  More...

Property Council of Australia welcomes Geelong City Deal
The Property Council of Australia has welcomed the announcement which will see $370 million invested into Geelong and the broader Great Ocean Road region. The Geelong City Deal, focused on boosting the region’s tourism infrastructure, formalises a commitment from three levels of Government to a long term vision for the region (08 October 2019).  More...

The suburbs set for population explosions over the next 20 years
Rockbank/Mount Cottrell is one of 29 suburbs statewide the Department of Environment, Land, Water and Planning predicts will more than double in size between 2016 and 2036. The growth projections have sparked major concerns by planning experts on whether the areas have infrastructure needed to cope with the population boom (06 October 2019).  More...

Urgent reform required to meet residential demand
The Property Council has called for immediate action by the Government to stimulate new development by removing red tape restraints holding back residential development in the State, and support additional funding for councils to improve planning and manage the backlog in planning applications (01 October 2019).  More...

Improving environmental outcomes for Gippsland lakes
More than $270,000 in project grants will improve habitats, protect native wildlife and help preserve internationally-significant environment. The Grants provide community groups with funding for projects that help tackle key priorities for the Gippsland Lakes (30 September 2019).  More...

NSW

Landcom releases ‘super lots’ in North Ryde
The NSW government's land and property development arm Landcom has announced the sale of two large development sites at Lachlan's Line, near North Ryde station (10 October 2019).  More...

Pyrmont to be the new gateway to Sydney CBD
Pyrmont and the Western Harbour precinct will be transformed into the next jobs hub and economic driver of Sydney under a NSW Government plan to revitalise the key inner-city precinct. Premier Gladys Berejiklian made the announcement following the release of the Greater Sydney Commission’s review into the area’s planning rules (05 October 2019).  More...

PCA: Confidence remains steady for the NSW property industry
The latest ANZ/Property Council Survey has shown NSW property industry confidence decreased slightly overall mainly due to concerns over worsening macroeconomic conditions and a reduction in forward work expectations. NSW property industry confidence has decreased 10 index points from 126 to 116 over the quarter (03 October 2019).  More...

NSW building reforms in the works but not everyone is happy
The proposed Building and Development Certifiers Regulation 2019 is designed to simplify and strengthen the certification system in NSW at a time when certifiers are under increased scrutiny following a spate of high profile apartment evacuations (01 October 2019).  More...

Queensland

Nielson Properties lodge plans for $350m Burleigh Heads project
The fast-growing Gold Coast hot spot of Burleigh Heads may soon welcome two 23-storey towers and its first five-star hotel after developer Nielson Properties lodged a development application (10 October 2019).  More...

The City of Gold Coast releases proposed amendments to the City Plan
In order to accommodate future growth, enhance the City’s unique offering and protect the environment, the City of Gold Coast has released 34 proposed amendments to the City Plan (10 October 2019).  More...

Plans unveiled for $30m Kangaroo Point residential project
Melbourne-based developer Buildcap is facing down headwinds in Brisbane's apartment market, unveiling plans for boutique apartment project in Brisbane's Kangaroo Point (04 October 2019).  More...

PCA: New taxes impact Queensland’s confidence
The confidence levels of Queensland’s property industry have fallen over the last quarter, following the State Government’s announcement of land tax increases and a new foreign land tax surcharge, according to the  latest ANZ/Property Council industry sentiment survey, the first one taken since the State Budget (03 October 2019).  More...

Solar rental dollars racing out the door
Hundreds of Townsville landlords and their tenants are teaming up to take advantage of the Palaszczuk Government’s Solar for Rental trial (01 October 2019).  More...

Kelly Slater’s $100m surf ranch proposed for Sunshine Coast
A proposal has been announced for a $100 million surf ranch on the Sunshine Coast with 11-time world champion Kelly Slater’s name attached and a Brisbane-based heavyweight to develop the project (30 September 2019).  More...

In practice and courts

Commonwealth

Green Star – Design & As Built v1.3 and Green Star – Interiors v1.3 have arrived
Green Star – Design & As Built v1.3 & Interiors v1.3 rating tools have now been released and are available to download from the Green Building Council of Australia website (11 October 2019).

National Airports Safeguarding Advisory Group
The National Airports Safeguarding Advisory Group is undertaking a review of implementation of the National Airports Safeguarding Framework (NASF). The review is intended to consider implementation of NASF across jurisdictions; and seeks submissions from all levels of government, industry and community stakeholders. More information about the review, making a submission and the terms of reference can be found here. Submissions close on 22 November 2019.

API member alert: AVTIP 1 – Retrospective valuations effective 1 October 2019
24 September, 2019 - The previously notified version of the Australian Valuation Technical Information Paper 1 Retrospective Valuations published 1 July 2019 has been amended. The new version is dated 1 October 2019 with earlier adoption recommended.  More...

API Member Alert: Introduction to Valuation and Property Standards published 1 October 2019
24 September, 2019 - The previously notified version of the Introduction to Valuation and Property Standards has been withdrawn.  The new Introduction is dated 1 October 2019.  More...

API: ABFI Residential Valuation standing Instructions Version 2.2
The Residential Valuation Industry Group has conducted a review of V2.1 of the ABFI Residential Valuation Standing Instructions (ABFI RVSI), and have subsequently released a revised version. Version 2.2 of the ABFI RVSI came into effect on 1 October 2019. The current document, namely Version 2.1, will operate until that time.  More...

Australian Heritage Grants – 2019-20 now open
The 2019-20 round of the Australian Heritage Grants program is now open. Through the Program, the Government will invest $5.3 million per year to strengthen the recognition, management, conservation and public engagement on Australia’s National Heritage. Applications are received online through business.gov.au and GrantConnect.

GBCA Important Deadlines - Green Star certification for your project
Many project teams have timelines set around major events. To support this, these guidelines below (based on typical time frames), which specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones in 2019. Deadlines are from 08 April – 04 November 2019.  More...

Announcements, Draft Policies and Plans released 2019

Queensland

No 157: Land Title Practice Manual updates published 1 October 2019

The Land Title Practice Manual (Qld) has been updated, effective from 1 October 2019
Important changes have been made, including the deletion of parts 17, 19 and 22 (which concerned certificates of title) and the creation of a new part, Part 61- Witnessing and Execution of Instruments or Documents.
The Land Title Practice Manual web page contains a link to a tracked changes version which outlines the changes to the relevant parts. The tracked changes version also contains a summary of the published changes.
Details of the changes are available from the Land Title Practice Manual Page

Reminder - Certificates of Title no longer required to be deposited
Further to Titles Registry Alert 151 please be reminded that from 1 October 2019 a paper Certificate of Title (CT) is no longer to be deposited in the Titles Registry when a transaction is lodged over the title. Similarly, from 1 October 2019, there is no longer the option to lodge a Form 19 - Application for Certificate of Title and the Form 17 – Request to Dispense (with production of a CT) is redundant.

North Queensland Regional Plan
The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville. Consultation on the draft document closes on 22 November 2019.  More...

City of Gold Coast City Plan
The amendments span across six different themes including: Height and density, built form and urban design, targeted growth areas, growth and diversification of employment, environment and other land use changes. Lodge a submission here. Public consultation closes 25 October 2019.  More...

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows:
Part 3a: extended from 27 August 2019 to 31 October 2019.  More...

Business Queensland: Land Titles Practice Reminder
New requirements for witnessing will come into effect on 30 September 2019 as a result of upcoming amendments to the Land Act 1994 and the Land Title Act 1994. Find out more by reading the Titles Registry Alert no. 154 or download the final draft of the new Part 61.

DNMRE Current Consultations
Cairns South SDA – potential expansion and draft development scheme
Closing date is 11 October 2019

Cases

Gorog v Stonnington CC [2019] VCAT 1257
Stonnington Planning Scheme – sections 82 and 114 of the Planning and Environment Act 1987 – existing tennis court on residential property, where the court itself is long standing, but where tennis court lights were erected somewhat more recently – dispute has arisen as to the lawfulness and planning merits acceptability of these tennis court lights – council enforcement staff also involved in more recent times – this context has led to a retrospective ‘tennis court lighting’ planning permit application by the owner of the tennis court, which council supports but which has been brought on review to the Tribunal – this merits review concurrently also dealing with a planning enforcement proceeding brought by the same neighbour

Finetea Pty Ltd v Block Arcade Melbourne Pty Ltd (Building and Property) [2019] VCAT 1529
Australian Consumer Law – s.21 – Retail Leases Act 2003 – s. 77 - Unconscionable conduct – what amounts to – s.54 – inhibiting access or disrupting tenant’s business – what amounts to – s.57 – damage to premises – abatement of rent – renovation works by tenant not “damage” – no abatement where damage caused by tenant – repudiation of lease – what amounts to – rent-free period and fit-out contribution by Landlord pursuant to lease – provision that proportion be refunded if lease ended early due to tenant’s default – requirement additional to Landlord’s claim for damages - whether provision requiring refund a penalty - loan agreement – security the borrower’s own shares – borrower itself the security – agreement by borrower to execute transfers of units and shares not belonging to it – effect of – no provision in loan agreement requiring repayment of surplus following realization of security – whether payment of surplus to borrower in effect a payment to the lender – whether a penalty – Personal Property Securities Act 2009 - s.10 - whether section avoids penal effect - whether order can be made by Tribunal for sale of security and disposition of proceeds – contemplated transfers not provided – interpretation of agreement

Resdal Corp (Vic) Pty Ltd v Maliad Pty Ltd (Building and Property) [2019] VCAT 1499
Retail Leases Act 2003: breach of lease of retail premises; tenant, a company, became deregistered – claim by landlord against guarantors – head lease had been assigned to applicant as tenant – assignment of sub-lease made between tenant and landlord not established – issue as to applicant’s ability to sue tenant in absence of express assignment of sub-lease – ss 141(1) and (2) of the Property Law Act 1958 (Vic) considered – P & A Swift Investments (a firm) v Combined English Stores Group plc [1988] UKHL 3 – [1989] AC 632 applied – claim for arrears – claim for damages for loss of bargain – claim for damages in respect of tenant’s failure to make-good – Joyner v Weeks [1891] 2 QB 31 applied – claim for damages in respect of three month rent free period allowed to incoming tenant denied

Forestfield Corporation Pty Ltd v Vanessa Flegg Pty Ltd (Building and Property) [2019] VCAT 1503
RETAIL LEASES – CONSTRUCTION – construction of outgoings provisions in a lease – one clause arguably imposing a lesser liability on the tenant in respect of payment of an outgoing than that purported to be imposed by a latter clause – construction adopted in accordance with the principle that all parts of a commercial contract should be given effect where possible, and that no part of it should be treated as inoperative or surplus – finding that the lease provisions have a plain meaning, and that both clauses could work harmoniously

Reid v Sundale Pty Ltd t/as Monte Carlo Caravan Park [2019] QCAT 296
STATUTES – ACTS OF PARLIAMENT -INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – GENERAL PRINCIPLES – whether section 157 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) applies - whether agreement was entered into under or purportedly under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – whether agreement was for the positioning of a converted caravan on a site
Acts Interpretation Act 1954 Qld s 14B; Manufactured Homes (Residential Parks) Act 2003 Qld s 10, s 10A, s 14, s 25, s 157, s 169, sch 2; Residential Tenancies and Rooming Accommodation Act 2008 Qld s 7

Fisher v Wenzel [2019] QCAT 295
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where long history of fencing disputation between neighbours at The Sovereign Islands – where multiple applications previously filed by applicants against respondents – where only one application resulted in fencing orders by consent – where all other applications failed and were dismissed – where contribution ordered in favour of respondents against applicants not paid - where respondents took enforcement proceedings against applicants in magistrates court – where reopening/renewal application of applicants dismissed
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – fencing dispute – where applicants filed further application for fencing orders and contribution or indemnity from respondents – where new application predicated on fencing notices for four contiguous sections of common boundary of adjoining waterfront properties – whether costs claim for rendering and painting pool pavilion wall on respondents property competent – whether pier and arch fence proposed for section 1 a dividing fence – whether fencing order should be made – whether order for height reduction of nib wall on section 2 should be made – whether indemnity for reduction costs should be ordered – whether claim for contribution to cost of block wall constructed by applicants on section 3 of common boundary should be ordered – whether construction authorised – whether fencing order for aluminium louvre fence on section 4 of common boundary should be ordered – whether application and claims should be dismissed
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where applicants filed application before expiry of 1 month for negotiation prescribed by statute – where applicants did not seek abridgement to validate premature filing of application – where adjudicator raised question of jurisdiction for decision – where tribunal may order abridgement of its own motion where appropriate – whether statutory requirement for negotiation during first month after fencing notice and filing application within second month substantive and fixed or procedural and variable – whether abridgement order ought be made
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – GENERAL MATTERS – STATUTORY BASIS GENERALLY – where applicants filed application because respondents would not waive benefit of contribution order in previous case and agree to pier and arch fence partly on their property – where all but one of claims by applicants had no reasonable prospect of success – where only arguable claim for aluminium louvre fencing order on section 4 of the common boundary and for contribution – where claim for order undermined by construction of the same fence in close proximity – where fencing order impractical and of no utility – whether application an abuse of process – whether conduct of applicants oppressive and vexatious – whether applicants deliberately caused respondents unnecessary inconvenience – whether application should be dismissed pursuant to sections 47 and 48 of Queensland Civil and Administrative Tribunal Act 2009 (Qld)
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – whether cost and compensation orders may be made by tribunal where abuse of process, vexation and unnecessary disadvantage in minor civil dispute results in dismissal of application
Acts Interpretation Act 1954 Qld s 32CA(1), s 39; Building Act 1975 Qld s 231B, s 231D, s 232, s 245XA, s 245XB, s 245XE, s 245XK, s 245XL, s 245XM, s 245XN, s 245XO, s 245XQ, s 245XT, s 245XZ; Building Act 1975 Qld Schedule 2
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Qld s 12, s 31, s 35, s 92; Queensland Civil and Administrative Tribunal Act 2009 Qld s 13, s 47, s 48, s 49, s 61, s 102; Queensland Civil and Administrative Tribunal Act Rules 2009 Qld r 83, r 84

Clarke v Body Corporate for Bell Park [2019] QMC 12
APPEAL – ONUS – BODY CORPORATE – NOTICE REQUIRED FOR MEETINGS – MEETINGS – MOTIONS
Building Units and Group Titles Act 1980 Qld ss 77,106,107

Gold Coast City Council v Anderson [2019] QMC 8
SUSTAINABLE PLANNING ACT – CARRYING OUT ASSESSABLE DEVELOPMENT WITHOUT A PERMIT – TREE CLEARING – FACT FINDING ON SENTENCE – PURPOSE OF CLEARING – COSTS – RECOVERY COSTS – Evidence Act 1977 Qld s132C; Justices Act 1886 Qld; Sustainable Planning Act 2009 Qld s614

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46
PLANNING AND ENVIRONMENT – APPEAL – where BGM seeks a development permit to authorise it to carry out a material change of use to use its land for a proposed local centre – where the council approved BGM’s application –whether BGM’s proposed development complies with the relevant assessment benchmarks – whether BGM’s proposed development is appropriately located – whether BGM’s proposed development is appropriately designed – whether BGM’s proposed development would result in unacceptable headlight glare – whether there is a need for an additional local centre – whether in exercise of the discretion the proposed development ought be approved
PLANNING AND ENVIRONMENT – APPEAL – where ANH sought a preliminary approval for a local centre – where the council refused ANH’s application – where ANH now seeks a preliminary approval generally in accordance with a design – whether ANH’s proposed development complies with the relevant assessment benchmarks – whether ANH’s proposed development is appropriately located – whether ANH’s proposed development is appropriately designed – whether ANH’s proposed development would result in unacceptable noise impacts – whether ANH’s proposed development was unacceptable having regard to traffic engineering considerations – whether in exercise of the discretion the proposed development ought be approved
Planning Act 2016 Qld s 45, s 59, s 60, s 61, s 311; Planning and Environment Court Act 2016 Qld s 43, s 45, s 47
Planning Regulation 2016 Qld s 31

Cases to 07 October 2019

ISPT Pty Ltd v Valuer-General (No 3) [2019] QLC 40
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where site value is the basis of valuation – where highest and best use of the land is in dispute – direct comparison of sales is the best method of valuation – usefulness of sales used by valuers
Land Valuation Act 2010 Qld s 7, s 19, s 33, s 155, s 169, s 170

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2019] QPEC 44
PLANNING AND ENVIRONMENT – APPLICANT APPEAL – COSTS – council applies for costs in wake of refusal of appeal – power to award costs in s 457 of the Sustainable Planning Act 2009 - the relative success of the parties in the proceeding – whether decision appeal conflicts with a relevant instrument - whether a party commenced or participated in the proceeding without reasonable prospects of success - whether the proceeding involved an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest
Sustainable Planning Act 2009 Qld; Planning and Environment Court Act 2016 Qld; Uniform Civil Procedure Rules 1999 Qld 

Legislation

Queensland

Subordinate legislation as made – 11 October 2019
No 204 Mineral Resources and Other Legislation Amendment Regulation 2019

Subordinate legislation as made – 04 October 2019
No 196 Planning (Infrastructure Charges Register and Other Matters) Amendment Regulation 2019
The Amendment Regulation will provide improved transparency in the infrastructure charging and planning framework by requiring local governments to provide additional information in the infrastructure charges register.
No 196 Environmental Protection (Rehabilitation Reform) Amendment Regulation 2019
This Regulation amends the Environmental Protection Regulation 2019 to implement the rehabilitation reforms under the Environmental Protection Act 1994 to support decisions under the EP Act in relation to Progressive Rehabilitation and Closure Plan (PRCP) schedules; support the implementation of Public Interest Evaluations; and set the date for commencement of the PRCP framework as 1 November 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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