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Inside track: Planning, Environment & Sustainability

25 June 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

PCA: Unlocking the potential of distributed energy
Australia could triple the amount rooftop solar by unlocking the potential of commercial buildings, but only if the property and energy industries work together, finds a new report (11 June 2019).  More...

Brace for impact - climate change litigation is fast approaching
Litigation 2.0 will force companies to assess and report on the risks of climate change and potentially set out plans for mitigating those risks. Companies and their directors could soon face liability (including personal liability) if they fail to assess and address risks relating to climate change (28 May 2019).  More...           

Victoria

Property Council & CEFC: Distributed energy in the property sector: Unlocking the Potential
There is significant opportunity for Australia’s property sector to transform from a passive participant in the energy market to an active electricity producer and energy market participant, according to the latest report from The Property Council and CEFC (11 June 2019).  More...

Ghost shops haunt new apartment blocks as 'perfect storm' hits suburban retailers
An expansion in so-called 'hard-top' shopping centres and 'big box' retailers has taken anchor tenants - plus cash and other tenants - from smaller centres and shopping strips. Massive apartment developments on, and on the periphery of, the strip have added thousands of residents. But it has not stopped a slow rise in vacancy rates (06 June 2019).  More...

Developers seek non bank finance amid lower presales
Tighter finance conditions and less investor activity in the market continues to challenge developers as the retreat of major banks from commercial real estate lending gives way to a rise in demand for alternative lending (03 June 2019).  More...

Mirvac pounces on Queen Victoria Market site in build-to-rent bid
Property giant Mirvac will transform a key site next to the historic Queen Victoria Market into Melbourne's first build-to-rent complex after striking a deal with developer PDG Corporation (03 June 2019).   More...

NSW

Planning Minister Rob Stokes flags medium density housing code review
It could be easier for landowners and developers to build terraces and other medium-density homes in more areas of Sydney by the end of the year. The Planning Minister, Rob Stokes, is a keen supporter of the medium-density housing code as a means to increase the diversity of housing (13 June 2019).  More...

Australia’s biggest airlines sign memoranda of understanding with Western Sydney Airport
The memoranda of understanding (MOU) will see the airlines provide insights into designing and planning Western Sydney International (Nancy-Bird Walton) Airport, as well as having early discussions around future airline services using the airport. The MOU will see the organisations collaborate on a range of elements, including sustainability, including resource reuse and recycling (11 June 2019).  More...

NSW Budget: $19 million to enhance green space
Residents across Sydney will soon have access to new playgrounds, walking trails, and cycleways as part of a $19 million transformation of
government-owned land (10 June 2019).  More...

Queensland

Adani gets final environmental approval for Carmichael mine
Adani has passed its final environmental approval and can now begin work on its Carmichael mine in Central Queensland after nearly nine
years of planning, fierce protests and endless political debate (13 June 2019). More...

Brisbane's 'green' budget aims for more parks and public spaces
Cr Schrinner made several pledges in the weeks leading up to the $3.1 billion budget, not least of which included a plan to close down the council-owned Victoria Park golf course in the heart of the city and convert it to public parkland (12 June 2019).  More...

Planning amendments perfect news for Logan craft brewers
Recently approved amendments to Logan City Council’s (LCC) planning scheme will make it easier for new craft brewing business ventures in Logan (10 June 2019).  More...

Land clearing battle moves to High Court
A battle over how land clearing is regulated across Queensland has moved to Australia’s highest court, which pits the development industry and farming lobby against a South-East Queensland council.(10 June 2019).  More...

Aged Care Village at Indooroopilly Golf Club Gets Green Light
Aura Holdings, previously a joint venture between former RetireAustralia executives and embattled Blue Sky Alternative Investments, has received development approval for a retirement village at a popular golf club in Brisbane’s west (05 June 2019).  More...

In Practice and Courts

Commonwealth

Guide to low carbon precincts: CRC for Low Carbon Living: 05 June 2019
This document is a resource for anyone planning or assessing new low carbon precincts. Its advice complements existing policy and may be of use to developers, planners, policy makers and the community—anyone who is seeking to understand how to create sustainable urban outcomes (05 June 2019).  More...

Victoria

Living Melbourne: our metropolitan urban forest: The Nature Conservancy, Resilient Melbourne
This document outlines a bold new strategy for a greener, more liveable Melbourne. It presents a vision of international significance in its massive scale, its outstanding collaboration, and its use of new and innovative mapping technology (05 June 2019).  More...

Sale of Land Amendment Act 2019 - Legislation update
The Victorian Government has passed new laws that will remove the ability of developers to use sunset clauses to intentionally delay building projects and exploit buyers (05 June 2019).  More...

SRO: State Budget 2019-20 handed down
The State Budget 2019-20 includes a number of announcements related to legislation administered by the State Revenue Office. We have produced an information table providing an overview of the measures contained within the announcements (27 May 2019).

Complex land transfer transactions to be managed online
Land Use Victoria has mandated that complex land transfer transactions, currently managed via paper settlement, must be lodged and managed online from August 2019. This applies to conveyancers and lawyers acting for a party or for themselves.
Duties Online enhancements, which are scheduled to take effect from 17 June 2019, will: Lower administration costs; Improve settlement completion rates; Mean duty is calculated prior to settlement; Increase data security; Ensure information is viewed and agreed to by all parties before settlement.

NSW

New dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. CPPs must be finalised and published on the ePlanning portal by 1 December 2019.

Current LEP Proposals from 31 May 2019
Amendment to SEPP (Sydney Region Growth Centres) 2006 - Reclassification of 15Z Nelson Road, Box Hill

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

Queensland

Mackay PDA Update
Queensland Government has approved the development scheme for the Mackay Waterfront Priority Development Area (PDA). The development scheme includes a land use plan, infrastructure plan and implementation strategy, for the 172-hectare area (14 June 2019).  More...

Department of Environment:  Prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.  More...

Queensland Urban Utilities Announces Increases
Queensland Urban Utilities has announced an increase in charges for residential and commercial properties.
Increased charges apply to water and sewerage. QUU’s website provides a full breakdown of prices across the five regional areas: Brisbane, Ipswich, Lockyer Valley, Scenic Rim and Somerset (June 2019).  More...

Cases

Victoria

Japara Developments Pty Ltd v Knox CC (Red Dot) [2019] VCAT 828
Planning application for a residential aged care facility
LOCATION OF PASSAGES OF INTEREST
Paragraphs 5-8 (Law); Paragraphs 35-41 (Consideration of a VPP provision); Paragraphs 48-70 (Analysis)
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
LAW – issue of interpretation or application - That the requirements of clause 53.17 override requirements of the applicable Zone and Overlays but do not override policy considerations.
PLANNING SCHEME – interpretation or consideration of VPP provision
Consideration of clause 53.17 in a context of policies, zone provisions and overlays that discourage large, bulky built form.
ANALYSIS – exposition of how to asses an issue or matters to consider
Matters to consider when assessing a residential aged care facility

Gray v Minister for Energy, Environment and Climate Change [2019] VSC 382
TOWN PLANNING – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Tribunal decision to refuse permits required with respect to proposed dwelling and proposed works – Authority of Departmental Officer to object to grant of permit – Authority to institute application for review of local Council’s decision – Tribunal finding as to access – Whether access track a public highway – Whether Tribunal’s conclusions as to access track correct – Whether Tribunal’s reasoning with respect to bushfire risk, removal of native vegetation and impact on waterways open – Leave to appeal refused.

Naroghid Wind Farm Pty Ltd v Minister for Planning [2019] VCAT 800
Application under section 79 of the Planning & Environment Act 1987; Corangamite Planning Scheme; Farming Zone; Wind Energy Facility (Wind Farm); Impact on the Cobden aerodrome; Aviation safety; Adequacy of information about potential impact on Southern Bent-wing Bat 

Fonti v Mornington Peninsula SC [2019] VCAT 739
Section 77 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone (GRZ1); proposed three double storey dwellings; policy context, design response to neighbourhood character 

3A Baker St Pty Ltd v Yarra Ranges CC [2019] VCAT 768
Section 77 of the Planning and Environment Act 1987. Yarra Ranges Planning Scheme. Residential Growth Zone - Schedule 1; Design and Development Overlay - Schedule 7; Eight-dwellings on a lot; Visitor parking dispensation; Scale and intensity; Off-site parking and traffic.

Meredith-Aubrey Pty Ltd v South Gippsland SC [2019] VCAT 726
Section 77 Planning and Environment Act 1987; South Gippsland Planning Scheme; Farming Zone; Bushfire Management Overlay; Dwelling; BMO only permit requirement; Bushfire Management; Siting; Length of access way. 

NSW

Environment Protection Authority v Davis [2019] NSWLEC 79
ENVIRONMENTAL OFFENCES – sentencing for five special executive liability offences arising from provision of false information in quarterly reports and annual return required by conditions of environmental protection licence

Jarosz v State of New South Wales [2019] NSWSC 692
HIGHWAYS – creation of – public roads – dedication at common law prior to 1920 – unsealed dirt road connecting several residential properties in the Burragorang State Conservation Area – where the land on which the dirt road runs is Crown land – whether evidence including Crown Plans showed an intention to dedicate land as a public road – whether evidence of use showed that land had been dedicated by the Crown as a public road – effect of the Crown Lands Alienation Act 1861 (NSW) – evidence not sufficient to establish that land became a public road at common law prior to 1920   TORTS – private nuisance – claim by the plaintiffs against the State as occupier of a dirt road on land situated in the Burragorang State Conservation Area – where the dirt road maintained as a fire trail – whether the State’s management of the dirt road amounts to an unreasonable interference with the plaintiffs’ ability to access their land – State’s management of road not shown to be unreasonable

Trustees of the Marist Fathers for the Province of Australia v Hunters Hill Council [2019] NSWLEC 1255
DEVELOPMENT APPLICATION–Subdivision of St Peter Chanel Church land – whether the site is suitable for the proposed development – assessment of visual impact - whether the development has an adverse heritage impact – appeal dismissed

Architecture Design Studio Pty Ltd v Fairfield City Council [2019] NSWLEC 1253
DEVELOPMENT APPLICATION – place of public worship (mosque) and community centre – uses currently operating – parking availability – proportion of parking that should be on-site and on-street – objections based on impact of parking on nearby businesses and in street – proposed cap on numbers – DCP interpretation to determine required parking rate – plan of management

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
APPEAL – appeal against Land and Environment Court judge’s decision to refuse development application – proposed development contravened height development standard – judge not satisfied cl 4.6 request justified contravention – judge not satisfied development consistent with objectives of standard – whether misdirection as to cl 4.6 and objectives of standard – whether denial of procedural fairness by not giving amber light approach

Vella v Penrith City Council [2019] NSWLEC 1247
DEVELOPMENT APPLICATION – 45 place child care centre – adequacy of outdoor play space for child development – noise impact

ZTA Group Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1248
DEVELOPMENT APPLICATION – Torrens title subdivision – attached dual occupancy dwellings – minimum lot size - front building line width – cl 4.6 variation request –amenity – solar access building orientation

Boensch v City of Parramatta Council [2019] NSWLEC 1249
INTERLOCUTORY APPLICATION – application to set aside a Notice to Produce to the Court – relevance – whether legitimate forensic purpose – whether documents sought will materially assist in the identified issue – Notice to Produce unacceptably broad – only some documents would assist

Blacktown City Council v Nitopi [2019] NSWLEC 40
CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove at least half of the 2,600 cubic metres of waste on the site by 31 December 2017 - no waste removed by that date - no waste removed by 31 March 2018 when second undertaking subsumed the effect of the undertaking to remove half the waste - serious criminal activity directed at the Respondent - impact on Respondent significant ameliorating factor - perpetrators arrested in early February 2018 - no reasonable excuse after that time for failure to remove waste - Respondent pleaded guilty but not at the earliest occasion - consideration of the Respondent's subjective circumstances - fine appropriate for breach of first undertaking - Respondent fined $5,400 CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove all of the waste from the site by 31 March 2018 - no waste removed by that date - Respondent relocated to Queensland - relocation said by Respondent to be on the advice of the New South Wales Police - evidence from nominated police officer that no such advice was given - Respondent continued to run a range of business interests while relocated in Queensland - Respondent visited Sydney during period of relocation - no steps taken to commence waste removal process until after commencement of contempt proceedings - waste removal processors supervised by the Respondent personally in order to minimise costs of removal - removal staged to avoid transport of wet material - substantial additional cost savings achieved - during period of waste removal activities, Respondent travelled overseas on business - consideration of Respondent’s subjective circumstances - plea of guilty but not on the earliest occasion - serious, wilful contempt by breach of undertaking to remove the entirety of the waste by 31 March 2018 - specific deterrence needed under the circumstances in addition to general deterrence - substantial fine warranted - Respondent find $72,000 COSTS - Applicant seeks costs on indemnity basis - Respondent proposes that costs should be on an ordinary basis - Applicant public authority seeking to enforce the planning law - Respondent's contempt serious and wilful - customary position that, in such circumstances, Applicant would be awarded costs on the indemnity basis - no valid reason to depart from that position - Respondent ordered to pay the Applicant's costs on the indemnity basis.

Inland Rivers Network Incorporated v Harris [2019] NSWLEC 74
PRACTICE AND PROCEDURE – review of Registrar’s decision fixing hearing dates – in interests of justice to vary hearing dates.

Queensland

Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where the applicant had issued infrastructure charge notices to the respondent – where the respondent appealed the applicant’s decision to issue the infrastructure charge notices to the Planning and Environment Court – where the Planning and Environment Court made declarations overturning the imposition of the infrastructure charge notices – whether the Planning and Environment Court erred in their decision
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the applicant issued notices to the respondent each under s 635 of the Sustainable Planning Act 2009 (Qld) in order to levy charges on the respondent for trunk infrastructure – where the respondent filed an appeal against the appellant’s decision to issue the notices – where the learned primary judge held that the notices were not in accordance with s 637(2) of the Sustainable Planning Act 2009 (Qld) and were not infrastructure charge notices under the Sustainable Planning Act 2009 (Qld) – where the applicant has sought leave to appeal against the declarations of the learned primary judge – whether the learned primary judge erred in declaring that the notices did not comply with the Sustainable Planning Act 2009 (Qld) and were not infrastructure charge notices under the Act
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – where it is contended the questions raised on appeal are of specific importance to the applicant as the entity responsible for issuing infrastructure charge notices in its local government area – where it is contended that the questions raised on appeal are of importance to other local governments throughout Queensland – where the resolution of the issues are relevant to the applicant’s budgeting and financial resources – where it is submitted that the appeal raises critical questions about proper statutory construction – where is its contended that the Planning and Environment Court erred in holding that a failure to comply with s 637(2) of the Sustainable Planning Act 2009 (Qld) rendered the notices invalid – where it is submitted that the Planning and Environment Court erred by not refusing the declarations sought by the respondent – whether s 637(2) of the Sustainable Planning Act 2009 (Qld) was correctly interpreted by the learned primary judge
STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – RETROSPECTIVE OPERATION – where the Court granted the parties leave to make supplementary submissions as to the impact of s 344 of the Planning Act 2016 (Qld) on the appeal – where the applicant contends that s 344 of the Planning Act 2016 (Qld) has a retrospective effect, applying to infrastructure charge notices issued on or after 4 July 2014 – where the respondent contends that the appeal must be determined upon the law as it stood at the hearing below – where it is submitted that as s 344 of the Planning Act 2016 (Qld) was not in existence at the time of the notice and therefore cannot apply – whether s 344 of the Planning Act 2016 (Qld) operates in a retrospective sense or not. Acts Interpretation Act 1954 Qld s 27B; Planning Act 2016 Qld s 344; Sustainable Planning Act 2009 Qld s 478, s 635, s 637(1), s 637(2)

Goldicott House Pty Ltd v Brisbane City Council & Ors [2019] QPEC 25
PLANNING AND ENVIRONMENT – APPLICATION –where orders of this court have previously identified the issues in dispute – where Council now seeks to extend issues in dispute to include the matters dealt with in the reports – where joint expert reports went beyond the identified issues

Legislation

Victoria

Bills
Mineral Resources (Sustainable Development) Amendment Bill 2019
Date of second reading speech: 5 June 2019

NSW

Bills introduced - Non-Government – 07 June 2019
Crown Land Management Amendment (Reservation and Vesting of Crown Land) Bill 2019
Mining Amendment (Compensation for Cancellation of Exploration Licence) Bill 2019
Plastic Shopping Bags (Prohibition on Supply by Retailers) Bill 2019
Uranium Mining and Nuclear Facilities (Prohibitions) Repeal Bill 2019

Environmental Planning Instruments

Contacts:
Melbourne
Joseph Monaghan, Partner 
T: +61 3 9321 9857 
Ejoseph.monaghan@holdingredlich.com

Sydney 
Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Peter Holt, Special Counsel
T: +61 2 8083 0421
E: peter.holt@holdingredlich.com

Brisbane
Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com

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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