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Inside track: Local Government

22 September 2020

#Local Government

Published by:

Sam Marks

Inside track: Local Government

Alfresco dining area on Crown land – what a council as a committee of management needs to consider

In Victoria, land that is managed by a council is generally a combination of freehold land owned by the council and Crown land. The Crown land that a council manages will generally be land that is either temporarily or permanently reserved for a specific purpose, such as for a public park, recreational purposes, historical purposes or tourism purposes.

A council’s responsibility usually arises through its appointment as a committee of management for the relevant Crown land by the relevant Minister, usually the Minister for Energy, Environment and Climate Change, and by order of the Governor in Council according to section 14 (1) or 14 (2) of the Crown Land (Reserves) Act 1978 (CLRA).

A committee of management is appointed by a written instrument. The appointment is usually for a specific term and the instrument of appointment may set out conditions concerning the appointment of a council as a committee.

Council as a committee of management has various duties and obligations that must be fulfilled as a land manager. Council is considered a public entity when acting as a committee of management as set out in section 5(4) of the Public Administration Act 2004 (Vic).

A committee of management has various powers on Crown land and carrying out works on Crown land as set out in section 15 of the CLRA.

A committee of management may grant leases and licences over Crown land as set out in section 17 of the CLRA.

With the emphasis coming out of the COVID-19 restrictions in Victoria on alfresco dining (which we discussed here) to allow restaurants and cafes to open and to reinvigorate Melbourne, councils need to consider its obligations and responsibilities as a committee of management for Crown land, including the granting of leases or licences if Crown land may be required to be used for alfresco dining.

For a lease or licence to be granted over Crown land, there are a number of policy and legal requirements that will need to be met, including:

  • the responsible Minister’s ‘approval in principle’ must be obtained before negotiations begin
  • the lease or licence is consistent with the law and the principles in leasing policy for Victorian Crown land
  • the Victorian State Government Department of Environment, Land, Water and Planning (DELWP) standard lease or licence template is used without alterations
  • market value is charged unless an exemption applies, for example, for certain community uses
  • the Minister’s approval is obtained for the final agreement before the parties sign.

Under section 17B of the CLRA, a committee of management may grant a licence for any person to enter and use any portion of the land or buildings on the land for a term of up to 10 years with the consent of the responsible Minister and for any purpose as approved by the responsible Minister.

According to section 17BAA of the CLRA, licences may be granted with the approval of the Minister for a term of 10 years and not more than 21 years if the proposed licensee is leasing adjacent land and the adjacent land is under the management of the trustees and the committee of management.

Under section 17D, a lease may be granted of Crown land for which a council has been appointed a committee of management with the approval of the responsible Minister for a term of not more 21 years.

Depending on the purpose for which land is reserved, there may be further scrutiny required before a lease or licence may be granted.

If a council is proposed to permit alfresco dining on any Crown land that it is the committee of management for, it needs to consider:

  • the terms and conditions of its appointment as Committee of Management
  • the purpose for which the Crown land has been reserved
  • any lease, licence or other agreements in place in relation to the Crown land
  • any licences that may need to be granted and the Ministerial consent required.

Author: Lisa Cody & Sam Marks

In the media

Council land disposals and acquisitions law under review
Legislation regulating the disposal of Commonwealth land to local governments and the acquisition of council land by the Commonwealth is being reviewed. While the Lands Acquisition Act 1989 (LAA) has not changed substantially since its enactment over 30 years ago, complex land acquisition processes involving compensation payments to landholders have become more difficult to finalise (10 September 2020).  More...

Interim fire report posits standing recovery and resilience agency
The Royal Commission into National Natural Disaster Arrangements released a list of “interim propositions” last week on Friday for local, state and federal governments to consider and respond to (10 September 2020).  More...

Victoria

Victorian government seeking legal advice over draft foreign relations laws
The Andrews government is seeking legal advice on proposed new federal laws which could tear up its controversial Belt and Road agreement with China, potentially setting up another fight over foreign policy with the Commonwealth (10 September 2020).  More...

Mayor welcomes $1 million Financial Assistance Grants instalment
Mayor Neil Trotter has thanked the Federal Government for the quarterly instalment from the Financial Assistance Grants program. Cr Trotter said Council had met with the Victorian Local Government Grants Commission which administers Financial Assistance Grants in this state (08 September 2020).  More...

Mayor takes aim at 'unacceptable' inaction on Fishermans Bend plan
Andrews government accused of stalling development of Fishermans Bend while having 'grand conversations' about infrastructure that has not materialised (07 September 2020).  More...

NSW

NSW Farmers calls on government to find sensible solution for koalas and farmers
Where councils adopt the Koala Plan of Management and classify areas as Core Koala Habitat, they can under the ministerial direction, declare this an environmental zone (EZone), and this curtails some continuing, and any new agricultural activities (11 September 2020).  More...

Dam plan sparks debate about water use
Debate is raging on the New South Wales far north coast about the best way to provide water for a population that is expected to grow by 50 per cent over the next 40 years (10 September 2020).  More...

PIO issued to Wingecarribe Shire Council
The NSW Government issued a Performance Improvement Order (PIO) to improve relationships between councillors at Wingecarribee Shire Council. The PIO focuses on councillor training, the conduct of council meetings and mediation to strengthen relationships between elected representatives and prevent dysfunction (08 September 2020).  More...

'Untold economic damage': Councils demand action to resolve hardships created by border closure
Six local councils from northern NSW are uniting to call for changes to Queensland's border restrictions, which they say are "separating families" and "denying people the ability to earn a living" (04 September 2020).  More...

Queensland

Residents reject 13-storey student accommodation over Langer garden
Spring Hill residents opposed to the proposal say the building will be too big and create more congestion in an already dense suburb (07 September 2020).  More...

'It's not our waste': Dump expands operations without council approval
A landfill site near Ipswich, west of Brisbane, sparks anger by expanding recycling operations without council or community approval (01 September 2020).  More...

Developers who build green will get green back from Brisbane council
Brisbane City Council will allow developers to apply for 50 per cent rebates on infrastructure charges if they meet a host of requirements (01 September 2020).  More...

In practice and courts

Victoria

Last chance to stand for council
The City of Melbourne (Electoral) and Local Government (Electoral) Amendments Regulations 2020 came into operation on 2 September 2020 and end on 26 April 2021. The amendments to the Electoral Regulations apply to candidate nomination and scrutineer provisions as a result of the COVID-19 pandemic.

Local government elections
The Victorian Government has released its mandatory Local Government Candidate Training course. The Local Government Act 2020 requires prospective candidates to complete the course in order to be eligible to nominate with the Victorian Electoral Commission (VEC). This requirement also applies to all serving or former councillors intending to nominate. 
The MAV is also continuing to deliver our Stand for Council Community and Candidate Information Sessions for prospective candidates and community members. Forty-four sessions have been delivered to date, with around 700 participants. The VEC has published its COVIDSafe Election Plan, describing how it will ensure council elections will be safe and accessible for all participants. The Plan identifies a range of issues, including that the Electoral Commissioner has sought authority to vary the requirement for a candidate to sign the declaration on their nomination form in the presence of the Election Manager where a candidate is displaying symptoms indicating they may be unwell or is required to self-isolate. The VEC will post ballot packs to enrolled voters in early October.

Smart Planning PPF translation update
Smart Planning continues to work with councils on their Planning Policy Framework (PPF) translations. To date, PPF translations have been gazetted for Murrindindi, French Island and Sandstone Island, Glenelg, Moonee Valley, Golden Plains, Southern Grampians and Colac-Otway. The PPF translation project is time bound and all planning schemes must be translated by 30 June 2021.  More...

COVID-19 update
On 2 August, the Premier announced Victoria is in a State of Disaster and Stage 4 restrictions are in place for metropolitan Melbourne and Stage 3 restrictions are in place for regional Victoria until at least 13 September. 
The Metropolitan councils have worked quickly over the last week to identify the essential services they deliver which require staff to travel or attend on-site workplaces, and develop and implement COVID-19 Safe Plans. Staff have also been issued with permitted worker permits where travel and on-site work attendance is required. Rural and regional councils have had to implement Stage 3 restrictions, including mandatory wearing of face-coverings in public and closure of libraries and other community services.

Reimagining Health Grants 
The new VicHealth Reimagining Health Grants will open on 16 September and aim to inspire application ideas that reimagine health and wellbeing in 2020 and 2021. VicHealth is encouraging applicants to submit on or as close to 16 September to have the opportunity to get assessed and notified early. Then funds could be provided more than two months ahead of those who wait until the closing date.

Community Sport Sector Short-term Survival Package
Applications are now open for round two of the $40 million Community Sport Sector Short-term Survival Package. The grants are available to help community sporting clubs and associations during the COVID-19 pandemic. Applications close 16 October.  

Streamlining for Growth Program 
The Victorian Government has renewed the Streamlining for Growth program for the 2020/21 Financial Year. Continuing programs like this was a major focus of our advocacy to the Building Victoria’s Recovery Taskforce and will assist councils in progressing vital strategic work. This round of funding will focus on projects to help stimulate investment and economic growth in response to COVID-19 and bushfires. Applications close 9 October.  

2020-21 Sporting Club Grants Program
Applications are open for the latest round of the Victorian Government’s 2020-21 Sporting Club Grants Program. Grants between $1,000 and $5,000 are available to clubs for new uniforms, new equipment, training coaches, to improve operations and more. Applications close 29 September.   

Sustainable Infrastructure Fund Grants
Grants of up to $300,000 are open to local councils and alpine resort management boards to use recycled materials such as glass, paper, cardboard, plastics and rubber to build new infrastructure including roads, footpaths, outdoor park equipment, drainages and cycleways. Applications close 8 October.  More... 

Minister’s Good Practice Guideline MGPG-1: Virtual Meetings
Issued by the Minister for Local Government pursuant to section 87 of the Local Government Act 2020. The Victorian Government’sCOVID-19 Omnibus (Emergency Measures) Act 2020 has introduced into the Local Government Act 2020 (the Act) new mechanisms that allows for virtual council meetings –to ensure local government decision-making can continue during the coronavirus pandemic. These new measures will be in force from1 May 2020 until 1 November 2020.  More...

Melbourne Airport Environs Safeguarding Standing Advisory Committee
The Melbourne Airport Environs Safeguarding Standing Advisory Committee is currently seeking submissions to advise the Minister for Planning on improvements to the planning provisions safeguarding Melbourne Airport and its environs. Submissions are also welcome on improvements to planning provisions that may help safeguard other airport environs in Victoria. Submissions close 18 September 2020.  More...

City of Melbourne
See Tenders for more information on the tendering process and procurement policy, closed and awarded tenders (August – September 2020).  More...

s.186 exemption for council recycling contracts
The Victorian Local Government Minister has announced a state-wide s.186 exemption for local councils to extend their recycling collection contracts to 30 June 2021. Here is a copy of the letter sent to all councils co-signed by Minister Somyurek and the Minister for Energy, Environment and Climate Change, the Hon. Lily D’Ambrosio MP.

SRO: Register interest for HomeBuilder
Victoria has signed up to the National Partnership Agreement that facilitates the HomeBuilder scheme. Eligible recipients will be able to access grants of up to $25,000 to build a new home or substantially renovate an existing home. We encourage you to register for our HomeBuilder email subscription service so that you can receive progress updates.  More...

NSW

LGNSW: Submissions
Draft Submission to NSW Department of Planning, Industry and Environment – September 2020.  More...

Office of Local Government: Survey of seizures of cats and dogs 2019-20 due
Due: 31 August 2020 - Survey of seizures of cats and dogs 2018-19 due.  

Office of Local Government Circulars

20-36 End of Year Financial Reporting 2019-20
Category: Circular to Councils Status: Active (7 September 2020).  More...

20-35 2019-20 Survey of Seizures of Cats and Dogs – Extension of Due Date
Category: Circular to Councils Status: Active (7 September 2020).  More...

Consultation: 50-Year Vision for Sydney's Open Space and Parklands
A draft vision has been created to be shared and tested with people who care about Sydney’s parks and open spaces. The draft 50-Year Vision for Greater Sydney’s Open Space and Parklands will be open for consultation until 11 September 2020.  More...

NSW Public Spaces Legacy Program
This new program is only available to the 68 councils currently participating in the e-planning system.  More...

Queensland

Queensland Planning Legislation
Urgent amendments to the Planning legislation are in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19. Note Temporary use licences for Councils (28 August 2020).

Cases

Commonwealth

Clarence City Council v Commonwealth of Australia (No 2) [2020] FCAFC 147
COSTS – appellants successful in appeal – first respondent advanced both written and oral submissions in support of the appellants’ position on appeal – whether in such circumstances first respondent entitled to its costs of the appeal, notwithstanding first respondent’s opposition to the ultimate relief sought by the appellants at first instance – whether it is reasonable for the unsuccessful litigant to bear more than one set of costs
Held: appellants will have their costs paid by the second respondent in each of the appeals – not reasonable or fair in all the circumstances for the second respondents to also pay the first respondent’s costs of the appeals – costs of the proceeding at first instance reserved, pending final determination of the proceedings by the primary judge 

Victoria

Anderson v Stonnington Council [2020] VSCA 229
STATUTORY INTERPRETATION – Subordinate instruments – Subordinate instrument amended to extend heritage overlay to property while development works in progress – Whether ‘right’ to complete works for purpose of Interpretation of Legislation Act 1984 s 28(2)(e) – ‘Right’ to be identified by reference to instrument – Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, applied – Resort Management Services Ltd v Noosa Shire Council [1996] QCA 441; [1997] 2 Qd R 291, considered – Common opportunity to take advantage of absence of regulation not a ‘right’ – Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, applied – Asserted right defined imprecisely – Asserted right a mere opportunity – Leave to appeal granted – Appeal dismissed.
PLANNING AND ENVIRONMENT – Existing uses – Whether development works ‘use’ for purpose of Planning and Environment Act 1987 s 6(3)(d) – ‘Use’ does not extend to development – Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974)
PRACTICE AND PROCEDURE — Application for leave to amend application for leave to appeal— Appeal from decision of judge of Trial Division to dismiss appeal on questions of law from Tribunal – Amendment sought to reintroduce issue withdrawn before Tribunal — Whether in interests of justice to permit amendment – Medical Practitioners Board v Lal [2009] VSCA 109; (2009) 23 VR 702, Commissioner of State Revenue v Mondous (2018) 55 VR 643, applied – Proposed amendment raised confined legal issue – Any evidentiary deficiencies to applicants’ disadvantage – Leave to amend granted 

Taha v Mornington Peninsula SC [2020] VCAT 989
Section 77 Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone; Three dwellings; Neighbourhood character

Greater Geelong CC v Transformer Metals Pty Ltd [2020] VCAT 984
Section 114 of the Planning and Environment Act 1987; Greater Geelong Planning Scheme; Urban Growth Zone; Materials Recycling & Refuse disposal; Rectification

Eunson Pty Ltd v Darebin CC [2020] VCAT 976
Section 77 of the Planning and Environment Act 1987, impact on significant tree on neighbouring property, design response, whether it is a site responsive design, proximity to Merri Creek environs, landscape response

Madden v Nillumbik SC [2020] VCAT 968
Sections 82 and 80 of the Planning and Environment Act 1987; Nillumbik Planning Scheme; General Residential Zone; Seven dwellings (six new dwellings to rear of existing dwelling); Native vegetation removal. Neighbourhood character. Off-site amenity impacts. Vehicle access. Traffic impacts.

Vimalanathan v Banyule CC [2020] VCAT 977
Two attached double storey dwellings; Site constraints; Neighbourhood character – planning policy versus existing contexts; Vehicle access.

Krestyn v Boroondara CC [2020] VCAT 974
Two double storey dwellings with basement floor levels; Heritage considerations; Amenity of adjoining properties; Neighbourhood Character. No permit

Chios v Yarra CC [2020] VCAT 970
Section 82 of the Planning & Environment Act 1987; Yarra Planning Scheme; General Residential Zone Schedule 2; Construction of a three storey dwelling; Neighbourhood Character;, Amenity Impacts; internal amenity

Bryant v Yarra CC [2020] VCAT 963
Market; Residential amenity; Car parking; Permit expiry each year; Enforcement and review by the Council.

Stock Corporation Pty Ltd v Yarra CC [2020] VCAT 958
Mixed use development; Activity Centre expectation of development; Extreme flood risk; Managing flood risk.

KM Develop Pty Ltd v Banyule CC [2020] VCAT 946
Section 77 Planning and Environment Act 1987; Banyule Planning Scheme; Height; Visual Bulk; Overlooking; Mixed Use – retail and residential; interface between a mixed use and residential zone.

Muir v Bayside CC [2020] VCAT 889
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. The construction of a dwelling extension on a lot of less than 500 square metres.

Conway v Moreland CC [2020] VCAT 953
Moreland Planning Scheme; repeat appeal; neighbourhood character; landscaping; loss of existing vegetation; views from adjoining park; waste collection; secondary consent process.

Sharma v Monash CC [2020] VCAT 951
Two double-storey dwellings (with a basement) in a one-behind-the-other layout. Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.

Singh v Lugondela [2020] VSC 544
DAMAGES – Breach of contract for the sale of land – Whether rule in Bain v Fothergill applicable – Whether damages to be measured at time of breach or at a later time – Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351; Noske McGinnis [1932] HCA 32; (1932) 47 CLR 563; Wroth v Tyler [1974] Ch 30; Holmark Construction Company Pty Ltd v Tsoukaris (1986) 4 BPR 9131; Vouzas v Bleake House Pty Ltd [2012] VSC 534.

Anderson v Stonnington CC [2020] VCAT 956
Stonnington Planning Scheme; medium density development in an incremental change area; assessment of medium density housing adjacent to a heritage place; visual bulk impacts of two-storey medium density housing; landscaping outcomes as part of a medium-density housing development.

McCartin v South Gippsland SC [2020] VCAT 949
Extension to dwelling; Relevant planning permissions; Adequacy of documentation; Relevance of bed and breakfast as of right use. No permit 

Nelson Street Pty Ltd v Mornington Peninsula SC [2020] VCAT 945
To construct three dwellings and subdivision into three lots. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

McKenzie v Campaspe SC [2020] VCAT 943
Section 75 and 109 of the Planning and Environment Act 1987 (Vic); Costs application
Pursuant to section 75(2) of the Victorian Civil and Administrative Tribunal Act 1998, the applicants are ordered to pay costs fixed in the sum of $9,450.00 to Jenmar Drive Owners Corporation

Freeman v Boroondara CC [2020] VCAT 912
Boroondara Planning Scheme; Neighbourhood Residential Zone, Schedule 3; Tree retention; Overshadowing; Visual Bulk. 

Flack v East Gippsland SC [2020] VCAT 939
Section 82 of the Planning and Environment Act 1987 (Vic); East Gippsland Planning Scheme; Low Density Residential Zone; Erosion Management Overlay; Low density 213 lot subdivision; Stormwater; Response to slope of the site and erosion risks; Landscaping and waterway management. No permit

Mitchell v Banyule CC [2020] VCAT 935
Two side-by-side dwellings. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 

Modus CD Pty Ltd v Frankston CC [2020] VCAT 934
Sections 79 and 149 of the Planning and Environment Act 1987. Frankston Planning Scheme. General Residential Zone. 162 dwellings. Subdivision. Native vegetation removal. Amendment of Outline Development Plan.

Campbell v Nillumbik SC [2020] VCAT 933
Two lot subdivision, vegetation removal, creation of an easement, earthworks and associated works such as driveway construction. Section 77 of the Planning and Environment Act 1987 - to refuse to grant a permit. No permit 

L & D Property Enterprises Pty Ltd v Greater Geelong CC [2020] VCAT 927
Buildings and works to create a second dwelling. Section 77 of the Planning and Environment Act 1987 - to refuse to grant a permit. 

Cruz v Glen Eira [2020] VCAT 894
Section 82 of the Planning & Environment Act 1987; Glen Eira Planning Scheme; General Residential Zone Schedule 1; Construction of one double storey dwelling; Overshadowing; Daylight to Windows; Daylight to Open Space; Bulk; Side and Rear Setbacks; Development Opportunities.

NSW

Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2020] NSWSC 1201
Plaintiffs entitled to damages; Council’s claim for misleading or deceptive conduct to be dismissed
CONTRACTS – joint venture to develop Council’s land into car park and residential-commercial development
CONTRACTS – parties – whether second plaintiff a successor to first plaintiff and able to sue under joint venture agreement
CONTRACTS – where land contaminated with asbestos and other substances – whether council liable under indemnity – whether claim under indemnity out of time
CONTRACTS – where council agreed to grant easement - where council granted easement and then rescinded motion granting easement – proper construction of easement provision – whether plaintiffs suffered loss
CONSUMER LAW – misleading or deceptive conduct – whether first plaintiff’s failure to provide Council with geotechnical report prior to entry into joint venture agreement was misleading or deceptive – whether warranties and indemnities in joint venture agreement should be declared void
Local Government Act 1993 (NSW)

Kastanias v Georges River Council [2020] NSWCATAD 213
Administrative Law – access to government information - confidential information – whether prejudice to the effective exercise of that agency's functions – whether prejudice to a deliberative process – whether prejudice to exercise of the agency's functions – breach of confidence – whether prejudice to conduct, effectiveness or integrity of any audit, test, investigation or review conducted – whether disclosure reveals personal information – whether disclosure contravenes an information protection principle – whether disclosure reveals false or unsubstantiated allegations – whether disclosure prejudices legitimate business, commercial, professional or financial interests- whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure. Local Government Act 1993

Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185
APPEAL - government information – access application – whether information “excluded information” – whether consent to disclosure
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Government Information (Public Access) Act 2009; Government Information (Public Access) Amendment Act 2018; Local Government Act 1993; Local Government Amendment (Early Intervention) Act 2013
Local Government (General) Regulation 2005; Royal Commissions Act 1923

Brown v Wingecarribee Shire Council (No 2) [2020] NSWCATAD 225
COSTS – administrative review proceedings – whether special circumstances established – fixed sum costs order

HGM Corp Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1418
DEVELOPMENT APPLICATION – mixed use development – site amalgamation / isolated site

Damerau v Central Coast Council [2020] NSWLEC 1417
DEVELOPMENT APPLICATION – Torrens title subdivision – essential services – insufficient information in order to assess development application – flood risk

Gunnedah Shire Council v Woodhead [2020] NSWLEC 131
CIVIL ENFORCEMENT - failure to comply with clean-up orders made pursuant to s 124 of the Local Government Act 1993 - premises in an unhealthy and unsafe condition - owner of premises ordered to clean them up within 60 days - substitute performance order appropriate if premises not cleaned up as ordered COSTS - Council seeks gross sum costs order - appropriate that gross sum costs order be made - property owner ordered to pay Council’s costs in the gross sum of $8,500 within 28 days

Penrith City Council v Settlers Estate Pty Ltd (No 2) [2020] NSWLEC 128
SEPARATE QUESTION: civil enforcement – whether the construction of a drainage line, culvert and channel were carried out contrary to approval by reason of their location – issues narrowed upon tender of further revised works as executed plan – construction contrary to stage 3 consent and stage 3 roads and drainage construction certificate – construction contrary to controlled activity approvals – separate questions answered in favour of the council – respondents to pay applicant’s costs.

Bobolas v Waverley Council [2020] NSWCA 201
APPEAL – application for order staying the hearing of judicial review proceedings in the Land and Environment Court – no basis demonstrated for appellate intervention in respect of a matter of practice and procedure

Lakiss v Piangas [2020] NSWLEC 1405
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to driveway and fence – whether the damage is caused by neighbouring trees – whether the trees should be removed – whether damage requires repairs – whether the tree owner should pay for repairs

Jones v Moser [2020] NSWLEC 1399
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to a retaining wall – whether the retaining wall is on the common boundary – who is responsible for the retaining wall – whether the wall must be replaced – whether consent is required to replace the wall – whether the tree must be removed – whether a paling fence must be replaced – who should pay the costs of the works

Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1398
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) – boarding house development in R4 High Density Residential zone – weight given to draft Local Environmental Plan – clause 30A character of the local area

Queensland

Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – IN RELATION TO INSTRUMENTS – where s 630(1) Sustainable Planning Act 2009 (Qld) (SPA) permitted a council, by resolution, to adopt charges for providing trunk infrastructure for development – where s 635 SPA permitted a council to give an infrastructure charges notice if a development approval had been given and an adopted charge applied for providing the trunk infrastructure – where s 636 SPA provided that a levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development – where the Council issued an infrastructure charges notices for the development – whether the identification of additional demand generated by the development was a threshold issue for issuing the notice or whether the notice must issue for the additional demand generated by the development
STATUTES – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – IN RELATION TO INSTRUMENTS – where the respondents were the developers for a new airport and business park development – where the Council under the charges resolution issued infrastructure charges notices for the respondents’ development – where the development was classified as “air services” – where “air services” fell within the “special uses” development category in the table of adopted charges for non-residential development – where the charges resolution provided for the adopted charge for the “specialised uses” charges to be “the charge the Council determines should apply for the use at the time of assessment based on an assessment of use and demand” – where the Council assessed use and demand by selecting a development category from the table that best related in general terms to the proposed use of air services and the demand from that use – whether the Council was required to make a development specific assessment of use and demand
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where the respondents were the developers for a new airport and business park development – where the Council issued infrastructure charges notices for the development – where the respondents seek to appeal against the infrastructure charges notices – where s 478(2)(b) SPA allows grounds for an appeal where there is an error relating to the application of the relevant adopted charge – where the Council calculated the infrastructure charges notices by applying the adopted charge for the relevant development category to the gross floor area (GFA) of the development – where the primary judge accepted that there was little correlation between GFA and additional demand on trunk infrastructure – whether the challenge to the GFA methodology was precluded by s 478(3)(a) SPA

Legislation

Victoria

The Cladding Safety Victoria Bill
Introduced 03 September 2020 - the Cladding Safety Victoria Bill 2020, introduced on 3 September 2020, formally establishes Cladding Safety Victoria (CSV) to deliver the Cladding Rectification Program. The Bill will empower CSV to carry out all required functions to deliver the program.

Statutory Rules

No 92: City of Melbourne (Electoral) and Local Government (Electoral) Amendment Regulations 2020
01/09/2020; Date of commencement 02/09/2020: reg. 3

Victorian legislation can be accessed here 

NSW

Regulations and other miscellaneous instruments

Environmental Planning and Assessment (Regions) Order 2020
(2020-537) — published LW 11 September 2020

Environmental Planning and Assessment Amendment (Western Sydney Aerotropolis) Regulation 2020
(2020-536) — published LW 11 September 2020

Floodplain Management Plan for the Border Rivers Valley Floodplain 2020
(2020-538) — published LW 11 September 2020

Floodplain Management Plan for the Lower Namoi Valley Floodplain Order 2020
(2020-539) — published LW 11 September 2020

Public Holidays Amendment (Lismore City Council and Grafton City) Order 2020
(2020-533) — published LW 9 September 2020

Environmental Planning and Assessment Amendment (St Leonards and Crows Nest Special Contributions Area) Order 2020
(2020-518) — published LW 31 August 2020

Environmental planning instruments

State Environmental Planning Policy (Western Sydney Aerotropolis) 2020
(2020-545) — published LW 11 September 2020

State Environmental Planning Policy (Koala Habitat Protection) Amendment (Planning for Bush Fire Protection) 2020
(2020-522) — published LW 3 September 2020

State Environmental Planning Policy (State Significant Precincts) Amendment (Barangaroo Site) 2020
(2020-523) — published LW 3 September 2020

State Environmental Planning Policy Amendment (Crows Nest Metro Station) 2020
(2020-520) — published LW 31 August 2020

For the full text of Bills, and details on the passage of Bills, see Bills.

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.

Published by:

Sam Marks

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