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Inside track: Planning, Environment & Sustainability

23 June 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Australia's largest insurer to pull out of coverage for farmers with CSG infrastructure on properties
Insurance Australia Group confirms its major rural and regional insurer, WFI, will join its other subsidiary, CGU, in no longer providing insurance coverage if there is "unconventional gas" operations on properties (10 June 2020).  More...

Federal government offers $25,000 home builder grants to support construction sector
The federal government has launched a $688 million HomeBuilder grants scheme it says will keep 140,000 jobs in the construction industry through the recession (04 June 2020).  More...

NSW

Affordable housing plan languishing amid COVID-19 building boost
An ambitious affordable housing plan has gone nowhere at the NSW Department of Planning for almost three years despite a renewed welfare agenda prompted by the pandemic (12 June 2020).  More...

HomeBuilder package to drive jobs in NSW
Planning and Public Spaces Minister Rob Stokes has today welcomed the Commonwealth’s new HomeBuilder package of $25,000 grants for those looking to build or renovate their home (04 June 2020).  More...

New powers to prevent defective buildings entering the market
The NSW Building Commissioner will now have boosted powers to stop defective buildings being sold to consumers, thanks to the passing of the Residential Apartment Buildings Bill 2020. The Building Commissioner is now equipped with the power to prevent occupation certificates or strata plan registrations before defective buildings can enter the market (03 June 2020).  More...

NSW Government delivers historic building reforms to restore industry confidence
The NSW Government has passed the Design and Building Practitioners Bill 2019, putting consumers first by giving those entering the property market peace of mind that their home will be expertly designed and built in compliance with the Australian Building Codes (03 June 2020).  More...

Aboriginal Community key to new cultural design principles
Planning experts and Aboriginal Communities across the State are being encouraged to help shape the future of planning design, with the release of a Discussion Paper by the NSW Government today (02 June 2020).  More...

Queensland

Farmers' plans on hold while awaiting inland rail review of Darling Downs route
Queensland farmers say a lack of information about a review of a possible inland rail route through the Darling Downs leaves them unable to plan for the future (11 June 2020).  More...

Twin-tower CBD development to restore heritage riverside residence
The development on Coronation Drive is expected to be approved by Brisbane City Council next week (09 June 2020).  More...

The 'missing middle' of housing design a future option for Brisbane
Architecture students at QUT have designed innovative small - but not tiny - homes in a challenge to traditional design thinking (05 June 2020).  More...

Sunland Offloads $30m Gold Coast Site
ASX-listed developer Sunland Group has offloaded the undeveloped portion of a Gold Coast masterplanned estate to over-50s resort developer Gemlife for more than $29 million (04 June 2020).  More...

Developers shelve 'unviable' Toowoomba housing project
Developers blame the Toowoomba Regional Council for its decision to shelve a big housing development in the city's west (03 June 2020).  More...

Two-storey childcare centre approved despite residents' appeal
The company behind the application promises centres with a professional chef to cook healthy meals, large garden areas, and language, cooking and yoga classes (01 June 2020).  More...

In practice and courts

2019-2020 Water sharing plan reviews
The purpose of water sharing plans is to prescribe how water is managed, firstly to provide for the environment and also to support social and economic outcomes. The Commission is specifically interested in your comments regarding the associated environmental, social and economic outcomes and any opportunities for improvement you have identified. Submissions close on 5 July 2020.  More...

NSW Planning Department: Have your say - Draft plans and policies

Changes to Housing SEPPs
The SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020.  More...

Queensland

PCA: Brisbane Metro Update
11 June 2020 - Brisbane City Council have announced several updates to the Brisbane Metro project.  More...

New or expanded cropping
The Queensland Government will defer the commencement of the new or expanded commercial cropping and horticulture activities requirement (known as ERA 13A), under the Reef protection regulations until 1 June 2021. The deferment is in direct response to COVID-19 (coronavirus) and ensures the agricultural community has a suitable amount of time to prepare for the changes.  More...

Cases

NSW

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 5) [2020] NSWLEC 65
ENVIRONMENTAL OFFENCES: application for orders under ss 10 and 10A of the Crimes (Sentencing Procedure Act) 1999 at commencement of sentencing hearing on the basis of unfairness caused by the prosecutor amending a summons to particularise the charge as a Tier 2 offence instead of a Tier 1 offence – offence remained the same – whether loss of opportunity to plead to a different offence – whether wasted costs in preparing for Tier 1 offence sufficient to warrant making of orders – extent of environmental harm caused by the commission of the offence a relevant sentencing factor - application dismissed – defendant not precluded from making a similar application at conclusion of sentence hearing.

Clearcut Homes Pty Ltd v City of Ryde Council [2020] NSWLEC 1249
APPEAL – development application – dual occupancy (attached) – non-compliance with road frontage development standard – whether cl 4.6 request adequate

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106
ENVIRONMENT AND PLANNING – planning schemes and instruments – State Environmental Planning Policies – secondary dwellings – site area and minimum lot size – whether minimum lot size requirement overridden – State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW), cl 22; State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW), cl 4.1AC
STATUTORY INTERPRETATION – amendment and repeal – implied repeal – harmonious construction – conflict between State Environmental Planning Policies – whether capable of harmonious construction – requirement for actual contrariety
STATUTORY INTERPRETATION – amendment and repeal – implied repeal – clauses in separate instruments each purporting to control inconsistency by prevailing over the other – effect of each clause

Marshall v Bayside Council [2020] NSWLEC 1248
DEVELOPMENT APPEAL – office and warehouse development – societal risk assessment – reliance on a plan of management to limit population of occupants – emergency management plan to manage risk

Palm Lake Works Pty Ltd v Ballina Shire Council [2020] NSWLEC 1247
PROCEDURE – remitted matter – notice of motion for adjournment of hearing – expiration of existing site compatibility certificate – fundamental questions to be addressed on remitter – motion dismissed

Verde Terra Pty Ltd v Central Coast Council (No 6) [2020] NSWLEC 64
PROCEDURE – slip-rule amendment occasioned by mistake of parties in consent orders – inadvertent misleading of court in making order for production in answer to a subpoena – apology to court - application to amend order to ensure compliance with subpoena – order amended.

Munro v Inner West Council [2020] NSWLEC 1240
DEVELOPMENT APPLICATION – heritage conservation area – Birchgrove Distinctive Neighbourhood – building bulk, form and scale – building location zone – view loss

Queensland

Rochedale Piazza Pty Ltd v Brisbane City Council & Ors [2020] QPEC 30
PLANNING LAW – APPLICATION FOR A MINOR CHANGE – whether proposed change fell within the description of a minor change for the purposes of the Planning Act 2016 – where no change to physical aspects of proposed development – where application was impact assessable development – where application as originally formulated was for a Relocatable Home Park – where proposed change was to change the description of the application to Relocatable Home Park (for seniors and retirees). Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld 

Harris v Lagerroth; Lagerroth v Harris Operations Pty Ltd [2020] QDC 111
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where appeal is brought under s. 222 Justices Act 1886 (Qld).
CRIMINAL LAW – APPEAL – CONVICTION – where development permits were granted to the appellant authorising clearing of native vegetation on a large leasehold property – where areas were cleared outside the permitted area – where the appellant was convicted of directing clearing of native vegetation without a development permit – where the appellant responded to a show cause notice from the department referring to the unlawful clearing – whether the appellant’s response to the show cause notice amounted to admissions by the appellant of directing the unlawful clearing – whether the alleged admissions in the response to the show cause notice comprise sufficient evidence to establish the offences beyond reasonable doubt
CRIMINAL LAW – APPEAL – ACQUITTAL – where a director was the controlling mind of a company – where the company was responsible for some operations of the cattle station – where it is alleged that if the director directed unlawful clearing of native vegetation, so must the company – where it is alleged the company retained a contractor to carry out the land clearing – whether there was another reasonable inference other than the company was directing the unlawful clearing
Criminal Code 1899 Qld ss. 7(1)(a), 7(1)(b), 7(1)(c), 7(1)(d); Sustainable Planning Act 2009 Qld ss. 578(1), 611, 624; Vegetation Management Act 1999 Qld

13 Investment Company Pty Ltd & Ors v Sunshine Coast Regional Council [2020] QCA 120
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – ERROR OF LAW – where in 2003 Pelican Waters Resort Pty Ltd applied to the respondent for a development approval – where the respondent gave approval to a material change of use for the purpose of “a Hotel, Motel, Function Rooms, Restaurant and Multiple Dwelling” – where the resort was constructed in accordance with approved plans which were attached to the respondent’s decision notice – where the learned primary judge held that the 102 units on levels 2-4 are restricted by the terms of the approval to accommodation on a temporary basis and for travellers – where the applicants apply to this Court for leave to appeal against that decision, contending that the learned primary judge erred in his construction of the approval and the relevant planning instrument – whether the 102 units can be used for accommodation otherwise than on a temporary basis and for travellers, i.e. for permanent residents
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the conditions attached to the approval referred to the 102 units in slightly differing terms – where the approved plans also made reference to the 102 units – where there are various definitions in Section 9.2 of the Planning Scheme which appear to recognise that the use “Hotel” is distinct from the use “Motel” – where the approval referred to the development application as being “to establish a Hotel/Motel (102 suites), Function Rooms, Restaurant and Multiple Dwelling (62 units) …” – whether the phrase “Hotel/Motel (102 suites)” was the way in which the development application itself phrased the intended development – whether the phrase means the Hotel and Motel will be run in conjunction with another – whether that construction was what was sought in the development application, and what was approved
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants placed considerable reliance upon the fact that the use definition of “Hotel” contained no restriction as to the type of accommodation or residential use that might be involved – where the use is defined by reference to premises “specified in a General Licence granted under the Liquor Act” – whether the Liquor Act grants land use rights – whether the Liquor Act operates to authorise uses under the development approval
Liquor Act 1992 Qld s 3, s 3A, Part 4, s 58, s 58A, s 61A

Scherbakov v Brisbane City Council [2020] QPEC 29
PLANNING LAW – EASEMENT – definition of “premises” – application for declaration that the subject premises excludes the land identified as easement A – application for declaration that development application was properly sought Acts Interpretation Act 1954 Qld; Building Units and Group Titles Act 1980 Qld
Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

The Chief Executive administering the Environmental Protection Act 1994 v Baal Gammon Copper Pty Ltd & Anor [2020] QPEC 28
COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where restraint order made under s 506 of the Environmental Protection Act 1994 – whether order complied with – whether the first and second respondent have a lawful excuse for non-compliance with order – whether the first and second respondent are in contempt of the restraint order
Corporations Act 2001 Cth ss 180, 588G; District Court Act 1967 Qld s 129; Environmental Protection Act 1994 Qld ss 363H, 506; Mineral Resources Act 1989 Qld s 312; Planning and Environment Court Act 2016 Qld s 36

Legislation

Great Barrier Reef Marine Park Amendment (Coronavirus Economic Response Package) Regulations 2020
12/06/2020 - These regulations amend the Great Barrier Reef Marine Park Regulations 2019 to waive permission-related fees for the period 1 July 2020 to 30 June 2021 in order to provide urgent temporary relief from the financial pressures currently faced by Great Barrier Reef Marine Park permission holders and permission applicants, including tourism operators, as a result of the coronavirus pandemic.
NSW

Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Activation Precincts) Regulation 2020 (2020-265) — published LW 12 June 2020
Environmental Planning and Assessment Amendment (Mamre Road Precinct) Regulation 2020 (2020-253) — published LW 11 June 2020
Sydney Water (Area of Operations) Order 2020 (2020-260) — published LW 12 June 2020
Civil and Administrative Tribunal (Amendment No 7) Rule 2020 (2020-250) — published LW 5 June 2020
Community Land Management Amendment (COVID-19) Regulation 2020 (2020-238) — published LW 5 June 2020
Forestry Amendment (Transitional Arrangements) Regulation 2020 (2020-240) — published LW 5 June 2020
Land Acquisition (Just Terms Compensation) Act 1991 — Compensation for disadvantage resulting from relocation (2020-241) — published LW 5 June 2020

Environmental Planning Instruments
State Environmental Planning Policy (Activation Precincts) 2020 (2020-266) — published LW 12 June 2020
State Environmental Planning Policy (Western Sydney Employment Area) Amendment 2020 (2020-252) — published LW 11 June 2020

Bills introduced Government – 05 June 2020
Constitution Amendment (Water Accountability and Transparency) Bill 2020
Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020

Non-Government – 05 June 2020
Water Management Amendment (Transparency of Water Rights) Bill 2020
Water Management Amendment (Water Allocations—Drought Information) Bill 2020

Bills passed by both Houses of Parliament
Design and Building Practitioners Bill 2020
Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020

Bills assented to
Design and Building Practitioners Act 2020 No 7 — Assented to 10 June 2020
Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 No 9 — Assented to 10 June 2020

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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