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Inside track: Property & Real Estate

24 March 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

PCA: Stimulus package welcome but challenges still ahead
The Federal Government’s economic stimulus package will provide welcome support for Australian businesses and households, but there are still significant challenges ahead as governments manage the public health response to the coronavirus outbreak (12 March 2020).  More...

Stimulus measures will support home building
HIA welcomes the Australian Government stimulus package, particularly the support provided for apprentices. The construction industry employs over 1.1 million people, with residential building work generating over $105 billion for the Australian economy in 2018 and accounting for 5.8 per cent of expenditure in the Australian economy (12 March 2020).  More...

Low rates, stimulus will cushion coronavirus hit: RBA
An expected recovery in residential construction, historic low interest rates and big infrastructure spending could support the economic fall-out from the impact of the Coronavirus outbreak, the Reserve Bank has said (11 March 2020).  More...

Eastern seaboard vacancy rate to remain as supply falls
Australia has experienced solid occupier demand for industrial space in recent years, particularly across the eastern seaboard with the average vacancy rate sitting around 3.8 per cent (10 March 2020).  More...

Construction industry could lead recovery
The construction industry could pave the way for an economic recovery following the shock impacts of COVID-19 with support leading to a knock-on effect to other industries (10 March 2020).  More...

Development cycle returning to undersupply: CBRE
Strong price growth has returned to Sydney and Melbourne and is expected to spread to more affordable Brisbane, according to CBRE research (04 March 2020).  More...

Victoria

Lucent plans $62m Brunswick East project
A $62 million residential development in Brunswick East by Melbourne-based developer Lucent will soon kick off construction. Lucent managing director Panos Miltiadou says the ClarkeHopkinsClarke-designed project, known as the Stewart Collective, which spans the last infill pocket in the Brunswick East location (11 March 2020).  More...

Central Pier next steps
Permanent boarding will be installed around Central Pier in Docklands to secure the site which was closed after engineers assessed the 100-year old structure as no longer safe for public access. Development Victoria has also begun discussions with Heritage Victoria and other key stakeholders around the planning process involved in any redevelopment of the structure (11 March 2020).  More...

Gurner wins approval for Collingwood hotel
Tim Gurner has secured planning approval for a boutique hotel at his Johnston Street site in Collingwood, a year after ditching plans for a residential scheme. Under the partnership Gurner will retain ownership of the hotel and retail components as part of a longer-term buy-and-hold strategy (09 March 2020).  More...

 New chapter for Federation Square
The City of Melbourne wants to invest $22 million to make Federation Square a premier civic space. The funding is contingent on Council being given management responsibilities for the site. Under the arrangement, City of Melbourne would manage the site, including tenancies, maintenance and activation (07 March 2020).  More...

Protecting Victoria’s marine and coastal environments
The new Marine and Coastal Policy guides the planning and management of marine and coastal environments so that ecosystems, communities, industries and built assets are as resilient as they can be in the face of future challenges such as natural hazards, climate change and population growth (06 March 2020).  More...

NSW

Sydney’s top 15 major development projects
Sydney is set to add a spate of new development to its iconic skyline over the coming years, boosted by a now-$55 billion infrastructure and transport pipeline (12 March 2020).  More...

Planning changes for bushfire-affected communities
Small businesses in bushfire-affected communities will be able to operate from portable offices without council approval, under the latest bushfire recovery initiative from the NSW Government (05 March 2020).  More...

Plans for high towers dwarfing Sydney's Central station spark concerns
A high rise for tech giant Atlassian will be among the first buildings to be constructed at the southern end of the CBD as part of a massive redevelopment (05 March 2020).  More...

Queensland

PCA: Valuer-general releases 2020 property market movement report
The Queensland Valuer-General has released the 2020 Property Market Movement Report shows an undersupply of industrial land in Brisbane with good access to major road networks in the prime transport and logistics market has been noted in the report. The report has found that the Brisbane commercial market has remained static over the last year (12 March 2020).  More...

Brisbane’s top 10 major development projects
With $20 billion worth of development projects in its pipeline, Brisbane is fast becoming a city of mega projects. Sizeable residential masterplans and commercial precincts have added to the city's burgeoning development pipeline, with strong population growth continuing to unlock development opportunities (06 March 2020).  More...

Developer lodges plans for $200m Pelican Waters precinct
The Henzell family has lodged a development application for 226 residences at Pelican Waters to be developed over four stages on the Sunshine Coast (05 March 2020).  More...

REIQ: Save time, lodge online
The Office of Fair Trading (OFT) is increasing and enhancing its online services to the real estate industry as part of the Queensland Government’s commitment to reducing red tape and providing simpler, faster processes for the lodgement of documents (04 March 2020).  More...

Brisbane land values remain steady
2020 land valuations show Brisbane median land values have increased by around $5,000 (04 March 2020).  More...

Woolworths plans $184m distribution centre in Brisbane
Supermarket giant Woolworths has lodged a development application for a new 42,000sq m distribution centre in Brisbane (02 March 2020).  More...

In practice and courts

Commonwealth

Enhancements to unfair contract term (UCT) protections
The Treasury is seeking feedback on a range of policy options to address the issues identified by the UCT Review. It also seeks views on whether any enhanced UCT protections for small business contracts should also be extended to consumer and insurance contracts to ensure consistency in the operation of the protections.

API: Valuation protocol: inspection requirements when undertaking valuations of real property
This Valuation Protocol relates to inspection requirements for API Valuer Members (Valuers) when undertaking valuations of real property assets for all purposes excluding statutory valuations. It replaces the previous Valuation Protocol, of the same name, that was published on 31 July 2019 (28 February 2020).  More...

API: PropertyPRO supporting memorandum release date 5 April 2020
The effective date for the ‘new’ PropertyPRO Supporting Memorandum, including full adoption of the report templates, is 5 April 2020. The current PropertyPRO Residential Valuation and Security Assessment Supporting Memorandum remains in effect. A PDF version of the current version is available hereMore...

Governance Institute
Is your business continuity plan ready for coronavirus? 
Be alert, not alarmed, and respond in a measured way. That's the advice from the experts as coronavirus (COVID-19) cases continue to rise in Australia. Organisations are advised to review their pandemic and business continuity policies to ensure these are fit for purpose (March 2020).  More...

Review of the Lands Acquisition Act 1989: Discussion paper
Details of how to make a submission are available on the Department of Finance’s website. Submissions close on 17 April 2020.

Announcements, Draft Policies and Plans released 2019

Annual statutory land valuations 2020
The Valuer-General issued approximately 825,000 new land valuations to landowners across Queensland on 4 March 2020. The land valuations assist in the determination of council rates, state land tax, and rentals for leasehold land.
Landowners who believe their valuation was incorrect and can provide supporting information should lodge their objection online or at the address shown at the top of their valuation notice by 5 May 2020.
The latest valuation data is available using the Find your annual valuation.

REIQ: Property management
Smoke alarm maintenance saves lives 11 March 2020
Navigating new management with an existing tenancy agreement 11 March 2020
Fast facts: dishonoured rental payments 10 March 2020

Cases

AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSCA 43
APPLICATION FOR SECURITY FOR COSTS – real risk that costs order would not be satisfied – impecuniosity arising out of conduct complained of in related proceedings – appeal raising threshold question of law – application refused
The application for leave to appeal is made with respect to orders made in the Trial Division by Ginnane J on 15 October 2019 in which his Honour: (a) dismissed a summons issued by AEB seeking the removal of caveats lodged by UDP on the titles to four separate parcels of land (‘the properties’)

Gebrehiwot v McCutcheon [2020] VSC 109
JUDICIAL REVIEW AND APPEALS – appeal from Magistrates’ Court pursuant to s 272(1) of Criminal Procedure Act 2009 (Vic) – decision of Fines Victoria to cancel enforcement of an infringement notice following review – written notice of cancellation served on Victoria police – decision of Victoria Police to commence proceedings – whether proceedings commenced within applicable time limit under ss 38 and 39 of the Fines Reform Act 2014 (Vic) – appellant’s construction gives no practical effect to s 39 – proceeding commenced within time – appeal dismissed – R v A2 [2019] HCA 35; (2019) 93 ALJR 1106; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied.

Annat v Commissioner of State Revenue [2020] VSC 108
TAXATION – Land Tax – exemption for primary production – whether Land used primarily for the business of primary production – whether a beneficiary of the appellant was normally engaged in a substantially full-time capacity in the business of primary production – whether part of the Land should be regarded as a separate parcel – evidence not reliable – appellant has not discharged onus of proof – assessments confirmed – Abbott v Commissioner of Land Tax [1985] VicRp 15; [1985] VR 164 applied – Sections 64, 67 and 70(2) Land Tax Act 2005 (Vic)

Tasman Logistics Services Pty Ltd v Seaco Global Aust Pty Ltd & Ors [2020] VSC 100
PERSONAL PROPERTY – disposal of uncollected goods – whether pt 4.2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) applies – effect of contract between provider and receiver of goods – Jurisdiction of Courts and VCAT to make orders for the disposal of goods – Jurisdictional facts – disposition of proceeds of sale – disposal of uncollected goods to landfill – priority as between receiver of goods and owner – Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 3, 54, 56, 57, 59, 68, 70, 71, 72, 73 and 75; Goods Act 1958 (Vic) s 27; Corporations Act 2001 (Cth) s 568D(1); Personal Property Securities Act 2009 (Cth) ss 8, 10, 73.

Kestenberg v Kestenberg [2020] VSC 84
TRUSTS – family based discretionary trusts – Trustee company controlled by parents – various claims by beneficiary against parents for exclusionary conduct and breach of trustees’ duties – allegation of trustees’ wrongful payment of plaintiff’s distribution entitlements over to parents – serious dispute whether plaintiff had gifted her beneficiary entitlements to parents – quantum of distributions not in dispute – Plaintiff’s application for particular discovery of trust financial statements and source documents – separation between right to information under trust law and discovery of information on relevant question in proceeding – application as sought refused – limited particular discovery ordered for trustees’ documents showing accounting for effectuation of alleged gifts

WOTCH v VicForests (No 2) [2020] VSC 99
PRACTICE AND PROCEDURE – interlocutory injunction – whether serious question to be tried — whether balance of convenience favours granting injunction – timber harvesting of State forests — whether bushfires affect application of Code of Practice – threatened species of greater glider, powerful owl, sooty owl, smoky mouse and alpine tree frog – conservation, Forests and Lands Act 1987 (Vic) – Flora and Fauna Guarantee Act 1988 (Vic) – Sustainable Forests (Timber) Act 2004 (Vic) – Environment East Gippsland Inc v VicForests [2009] VSC 386 – Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1 – MyEnvironment v VicForests [2012] VSC 91 – Friends of the Leadbeater’s Possum v VicForests (2018) 231 LGERA 75

Rizzo v Head, Transport for Victoria [2020] VSC 89
VALUATION AND COMPENSATION – amendment to Hume Planning Scheme – imposition of Public Acquisition Overlay for Outer Metropolitan Ring/E6 Transport Corridor – referral of disputed claim for compensation for loss on sale under Pt 5, Planning and Environment Act 1987 (Vic) – claim made before completion of contract for sale of land – proceeding held to have no real prospect of success as presently framed – whether applicants can amend notice of claim – whether applicants can amend referral notice – Court’s jurisdiction limited to determining ‘disputed claim’ under Land Acquisition and Compensation Act 1986 (Vic) – application for leave to amend notice of claim and referral notice refused – Planning and Environment Act 1987 (Vic) ss 98(1), 99(b), 105, 106(1) – Land Acquisition and Compensation Act 1986 (Vic), ss 37, 80, 89 – Plunkett v Roads Corporation [2019] VSC 39

Chan v Chan [2020] VSCA 40
LAND – recovery of possession – whether summary procedure for recovery of land under Order 53 County Court Civil Procedure Rules 2018 available or appropriate – dispute between sister and brother about ownership of land – whether brother a tenant at will or a licensee – significant issues of fact in dispute – proprietary estoppel – whether sister held property on constructive trust for brother – leave to appeal granted – appeal allowed

Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITHIN ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – RIGHT AND AVAILABILITY OF APPEAL – where the applicant seeks leave to appeal from a decision of the Planning and Environment Court pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) – where the primary judge ordered that the appeal be adjourned in November 2017, giving reasons that she intended to allow the appeal and that the purpose of the adjournment was to allow for the “formulation of reasonable and relevant conditions” for approval of the development – where final orders on the appeal were made in June 2018 – where the applicant seeks leave to appeal from the final orders made on June 2018 – whether the appeal to the Court of Appeal was made out of time – whether leave to appeal should be granted
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the primary judge granted an appeal pursuant to s 461(1) of the Sustainable Planning Act 2009 (Qld) (SPA) against the local government’s refusal of a development application for a material change of use to develop land for a service station, drive through restaurant and an on-site effluent disposal irrigation area – where the development application was impact assessable such that it was required to be assessed against all relevant provisions of the applicable planning scheme – where the planning scheme is divided into various zones, including the Open Space Zone and the Environmental Protection Zone (EP Zone) – where the planning scheme also has a number of overlays – where the entirety of the site is contained within the Kinross Road Structure Plan (KRSP) Overlay Code – where the built form of the proposed development is located within the EP Zone and Bushland Living Precinct 6 of the KRSP Overlay Code – where the effluent treatment area of the proposed development is located within the Open Space Zone and Greenspace Precinct 7 of the KRSP Overlay Code – where the primary judge found that the proposed development complied with relevant ecological provisions of the EP Zone Code and the KRSP Code – whether the primary judge misconstrued specific outcome S1.1 of the EP Zone Code – whether the primary judge erred in concluding that the proposed development complied with overall outcomes 4.6.7(2)(a)(i)c. and e. of the EP Zone Code – whether the primary judge erred in concluding that the proposed development complied with overall outcome 5.15.8(f) and specific outcome 1.7(2)(b) of the KRSP Overlay Code – whether the primary judge erroneously took into account an irrelevant consideration by having regard to the maintenance and protection of ecological values of Hilliards Creek, which was located in the Northern Portion of the site
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the first respondents’ economic expert gave evidence before the primary judge that any economic need for the proposed development could be met by a “service station with a smaller convenience store, fewer fuel spots, without the car wash and possibly without the drive through restaurant” – where the primary judge rejected that evidence as irrelevant because it was a “hypothetical alternative” – where the primary judge then made a factual finding that there was a need for the proposed development – whether the primary judge took an erroneous approach in assessing the need for the development as a question of fact, thereby amounting to an error of law
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – where the primary judge held that while the proposed development conflicted with the planning scheme in some respects, there was otherwise a need for the proposed development that was a sufficient ground to justify approval of the development pursuant to s 326(1)(b) of the SPA – whether the primary judge erred in assessing the need for the proposed developments that would otherwise justify the approval of the development – whether the primary judge correctly applied s 326(1)(b) of the SPA to assess whether the need for the development was a sufficient ground to approve the development in the public interest, despite its conflicts with the planning scheme

Logan City Council v Brookes [2020] QDC 24
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – where the respondent, without a permit, moved seven shipping containers onto his property – where the appellant commenced proceedings by way of seven complaints charging the respondent with carrying on assessable development without a permit contrary to s 578 of the Sustainable Planning Act 2009 – where the complaints were particularised as carrying on “building work” as defined in s 10 of the Sustainable Planning Act 2009 – where the learned magistrate found that each shipping container was not a “fixed structure” and as such did not amount to carrying on building work – whether the learned magistrate erred in finding that the movement of the shipping containers was not “building work”
EVIDENCE – GENERAL PRINCIPLES – EVIDENCE LAW – RULINGS AND FINDINGS – where the learned magistrate admitted into evidence an agreed statement of facts containing purported admissions pursuant to s 148A of the Justices Act 1886 – where the respondent was self-represented at trial – where the respondent argues on appeal that he did not consent to the agreed statement of facts – where the agreed statement of facts was tendered by the appellant without objection from the respondent – where the respondent later stated in the trial that some facts were agreed but others were not – whether the respondent should be allowed to resile from the agreed statement of facts
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – where the appellant applied for leave to adduce new evidence – where the appellant seeks to adduce evidence of correspondence between the parties in relation to the agreed statement of facts tendered at trial so as to answer the respondent’s argument on appeal – the test in Pavlovic v Commissioner of Police [2007] 1 Qd R 344 – whether the appellant should be granted leave to adduce new evidence
Justices Act 1886 Qld s 148A, s 222, s 223; Sustainable Planning Act 2009 Qld s 7, s 10, s 578

Hemmant Property Group Pty Ltd v Brisbane City Council [2020] QPEC 6
In the even that Hemmant Properties were to convince the Court that the appeal ought be allowed – subject to a condition requiring it to, at its expense – upgrade the relevant section of Burnby Road – there would be in my opinion, no reason why this Court could not allow the appeal subject to such a condition, and that would include, of course, requiring it to get the consent of the council to carry out the necessary roadworks

Cases to 09 March 2020

Body Corporate for Torwood Hill Residential Retreat v Fittell [2020] QSC 32
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE – STATUTORY EASEMENTS – where applicant applies for orders allowing its contractors access to the respondent’s land to rectify a retaining wall sitting on the common boundary between the two properties – where orders made allowing access – where costs submissions sought – where both parties seek their costs – where applicant must show special circumstances to secure such an order – where respondent had legitimate interests to defend – where the respondent contributed to the protraction of the proceedings – whether the respondent should bear some of the costs burden
Body Corporate and Community Management Act 1997, s 94 Property Law Act 1974 Qld s 180
Body Corporate and Community Management (Standard Module) Regulation 1997 Qld r 159
Uniform Civil Procedure Rules 1999 Qld r 681

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; RG Property Three Pty Ltd as Tte v Valuer-General [2020] QLC 10
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – GENERALLY – where the Valuer-General valued a number of shopping centres – whether the Valuer-General’s valuations were excessive – whether the valuations were so obviously excessive that an error could be inferred
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – EVIDENCE – where both parties engaged expert valuers to give evidence – where the expert valuers produced a joint expert report (JER) – where the expert valuers gave concurrent evidence – where the experts considered the size of the sites, the site catchments and the position of the centres in the retail hierarchy to determine site value – Land Valuation Act 2010 (Qld) s 19(1) – whether the expert valuers could have regard to the shopping centres’ trading performance in their valuations
REAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – COMPARABLE SALES – EVIDENCE OF COMPARABLE SALES – where some of the comparable sites had existing agreements for lease – where the expert valuers differed on how to treat the agreements for lease – where some of the sales evidence that was included in the joint expert report was then impugned in cross-examination by one of the expert valuers
Land Valuation Act 2010 Qld s 19(1)

MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science [2020] QLC 9
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – whether the pre-Amended Environmental Protection Act 1994 applies – whether, if the pre-Amended Act does not apply, the Land Court has jurisdiction to hear the appeal – where the Land Court does have jurisdiction
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SEPARATE DECISION OR DETERMINATION OF QUESTIONS – where the Court was asked to determine preliminary questions for the appeal – where the parties could not agree on the formulation of some preliminary questions – whether there was utility in answering some questions – whether there was an adequate factual foundation to answer some questions – where the Court answered some questions and declined to answer one
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the pre-Amended Environmental Protection Act 1994 provides for financial assurances for the cost of taking action because of environmental harm caused by mining activities and imposes a statutory cap on the amount of the financial assurance – where the parties did not agree on the interpretation and application of the cap where there is pre-existing environmental harm – whether the definition of environmental harm in s 14(2) Environmental Protection Act 1994 sets the scope of the financial assurance – where the Court found the cap limited the financial assurance to the cost of taking action to rehabilitate or restore and protect the environment because of any further environmental harm caused by the activity – where the Court found that action may, as a matter of practical necessity, also address pre-existing environmental harm, a matter that could only be determined after hearing evidence
Acts Interpretation Act 1954 Qld s 4, s 20(2)(b), s 20(2)(c), s 20(3)
Environmental Protection Act (as in force 29 March 2019) 1994 Qld s 9, s 14, s 18, s 107, s 110, s 287, s 288, s 290, s 292, s 295(4), s 298, s 426, s 519, s 521, s 524, sch 2, sch 4
Environmental Protection Act 1994 Qld s 112, s 126D, s 296, s 297, s 300, s 753(2), s 757, s 760, s 761, Ch 5, pt 14
Land Court Act 2000 Qld s 5, s 7(b), s 33(1)(b); Land Court Rules 2000 Qld r 19(2)(a)

Legislation

Queensland

Subordinate Legislation as made
No 28 Regional Planning Interests (North Queensland Strategic Environmental Area) Amendment Regulation 2020 06 March 2020
No 29 Rural and Regional Adjustment (Extension of Funding and New Scheme for 2019–2020 Extraordinary Bushfires Disaster) Amendment Regulation 2020 13 March 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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