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Inside track: Property & Real Estate

27 July 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Office property now in COVID-19 firing line
Expectations of a longer and deeper-seated impact from the pandemic have taken root in the property industry, with concerns about a COVID-19 hit to office and residential property increasing over the past three months (15 July 2020).  More...

Mall vacancy hits highest in 20 years as retailers shrink
The vacancy rate across the nation’s shopping malls is the highest in more than two decades as the coronavirus crisis accelerates a wave of store closures in a sector already under challenge (12 July 2020).  More...

Planning rules 'silent' on major risks, bushfire royal commission hears
Planning and property laws aren't fit to manage the growing threats to property, the bushfire royal commission heard. Housing regulations are particularly urgent given the large scale rebuild required in the wake of the Black Summer fires, which destroyed around 3000 homes between NSW, Victoria, South Australia and Queensland (08 July 2020).  More...

Office lease lures surge to entice tenants
Office tenants are being offered higher incentives for leases in a bid to lure them back to major east coast CBDs.
Overall incentives, which can included rent abatements and free office fit-outs, rose substantially as tenants closed down the offices as the global pandemic took hold and many stopped paying rent (08 July 2020).  More...

Will phoenixing finally be stamped out in Australia’s construction industry
When a known loophole isn’t closed, you can expect wide-scale exploitation. This is what has occurred for decades with the issue of illegal “phoenixing”, which has become a common and terrible blight on the construction industry in Australia (17 July 2020).  More...

COVID-19 Keeps property industry confidence down
COVID-19 is keeping property industry confidence at a near-record low level despite an improvement in sentiment for the September 2020 quarter. More than 60 per cent of residential sector firms reported the Federal Government’s HomeBuilder scheme had had a positive impact on their business (16 July 2020).  More...

Demand for 115,000 dwellings lost by 2023
Demand for 115,000 dwellings is set to evaporate over the next three years, putting significant downward pressure on inner-city apartment markets according to research by property consultancy Macroplan (16 July 2020).  More...

Non-bank lenders tighten the reins as sales decline
Non-bank lenders have identified a range of property sectors where they will refuse to provide loans for developers and owners in coming months (15 July 2020).  More...

Pressure on home building prior to COVID
The number of detached houses under construction has dropped by 20 per cent since the building cycle peaked in mid-2018. With around 57,000 under construction at the end of March activity in this part of the market was already below the long term average before COVID19 struck (15 July 2020).  More...

Success for city deals that connect affordable housing and jobs: Report
The report finds that City Deals and similar place-based funding programs can help kick start new economic opportunities in areas, but they need explicit support for affordable housing if lower income workers are to find homes close to employment opportunities (15 July 2020).  More...

Malls fall silent as retail vacancy hits 20 year high
Despite a recent bounce in retail spending after a record-breaking fall in April, the national average shopping centre vacancy rate increased to 5.1 per cent in June from 3.8 per cent in December 2019.According to a recent survey by global agency JLL, CBD locations and traditionally resilient large format retail stores were also affected (13 July 2020).  More...

E-commerce will keep demand high for industrial property
The enforced lockdown due to the global pandemic has seen the rate of online shopping hit new heights with estimations it could reach upwards of 15 per cent of total retail sales (11 July 2020).  More...

Home loan finance records historic fall
New home lending figures produced the largest monthly plunge ever recorded, with the Covid-19 shock starting to show its full impact on housing finance data (10 July 2020).  More...

REIA welcomes decision by banks to extend loan repayment deferral period
The REIA welcomes the announcement by the Australian Banking Association to implement a new phase of support to assist customers, as the six month loan repayment deferral period draws to an end (09 July 2020).  More...

May housing finance shows historical fall
The May 2020 Lending to Households and Business figures released by the Australian Bureau of Statistics show the largest monthly fall in the history of the series with the value of loans for housing falling by 11.6 per cent in seasonally adjusted terms,  according to the Real Estate Institute of Australia (09 July 2020).  More...

Victoria

ESR buys 79ha site in South East Melbourne
Hong Kong-listed logistics platform ESR has honed its focus on Australian industrial property, securing a 79-hectare site in Melbourne’s outer south-east.(17 July 2020).  More...

RMIT lists Melbourne CBD campus
RMIT University is hoping to sell its prominent Bourke Street tower for $120 million and lease it back as part of a long-term strategic plan (16 July 2020).  More...

Mornington Peninsula plan technology park
Plans for a new $540 million tech campus in the Mornington Peninsula have been put to council. The proposal comes as the council has called on state and federal support for a suite of projects valued at $320.8 million for the region, including infrastructure upgrades and the establishment of a technology park near the Port of Hastings (15 July 2020).  More...

Rydges Hotel at centre of COVID-19 spike for sale
The Carlton Rydges Hotel at the centre of the latest devastating community coronavirus outbreak in Victoria has been put up for sale with a $40 million plus price tag (10 July 2020).  More...

Colliers International (Victoria) Pty Ltd - commencement of action
The Director of Consumer Affairs Victoria has started legal action against estate agency Colliers International (Victoria) Pty Ltd for alleged underquoting and making misleading representations about property sale prices (09 July 2020).  More...

Australia’s first self-service Moxy Hotel in Melbourne will be ‘suited well to a COVID world’
The first, Moxy Melbourne, has just been designed for South Yarra, an 150-room standalone hotel expected to start construction in the first quarter of 2021 and open in 2022 (09 July 2020).  More...

Melbourne real estate prepared for stage three restrictions
The State Government has announced a return to stage three lockdown in Melbourne and Mitchell Shire as a response to unprecedented levels of Covid-19 infections (08 July 2020).  More...

Geelong set for economic boost as major civic project gets the green light
Geelong is set to receive an economic and employment boost as diversified property group Quintessential Equity’s development plans for the City of Greater Geelong’s new Civic Precinct, with the Minister for Planning Richard Wynne giving the project the green light (07 July 2020).  More...

University of Melbourne’s $2b campus plan progresses
The University of Melbourne has progressed its plans for a $2 billion campus at Melbourne’s Fishermans Bend, after a stage one planning application was submitted to the Victorian government (06 July 2020).  More...

Exciting news for affordable housing in our most expensive cities
There’s good news for affordable accommodation in Sydney and Melbourne. if you consider the co-living, co-operative and shared equity housing that Landcom in Sydney has in mind, and the twin key apartments in Melbourne (06 July 2020).  More...

Council unveils new vision for Macaulay precinct
The City of Melbourne has unveiled a new vision for the Macaulay precinct, covering 90 hectares of land to the north-west of the central city (06 July 2020).  More...

NSW

NSW reforms cut red tape, planning simes
The New South Wales government will spend $83 million on a long-awaited reform of state’s planning process, cutting the time and paperwork required for developments (16 July 2020).  More...

New rules leave Sydney homeowners fearing late notice on developments
Residents might not find out about terraces and duplexes being built next door until shortly before construction starts, under the new state government housing code (13 July 2020).  More...

Government planning improvements and commitment to prevent associated cost shifting welcomed
Local Government NSW (LGNSW) has welcomed new State Government initiatives to ease the application process for development approvals, with Government assurances they wouldn’t add to council running costs or be detrimental to existing residents in local communities. (07 July 2020).  More...

Queensland

PCA: Survey shows confidence is returning as restrictions ease
Confidence levels in Queensland improved slightly from 58 index points in June 2020 to 71 points in September 2020 (with 100 being a neutral level of confidence). Queensland has Australia’s lowest expectations for state economic growth over the next 12 months (16 July 2020).  More...

Land council purchased for koala habitat still not open to public
The Mt Gravatt East site was purchased by the council using the bushland acquisition fund despite having no bushland on it (15 July 2020).  More...

Riverside land the size of 12 football fields to be Queen's Wharf parks
The multibillion-dollar project next to the Riverside Expressway has released new plans for landscaping public spaces (14 July 2020).  More...

PCA: Survey shows confidence is returning as restrictions ease
The latest results from the ANZ/Property Council Survey show confidence in the Queensland property industry has improved slightly since the start of the COVID-19 pandemic with the further easing of restrictions set to provide a greater boost to confidence in future (14 July 2020).  More...

Cbus, Nielson Properties unveil winning skyscraper
Super fund developer Cbus Property has lodged plans for a $600 million commercial development in Brisbane's fast-growing North Quarter precinct (09 July 2020).  More...

Brisbane tower sprouting 1,000 trees proposed
Koichi Takada Architects has designed a 30-storey tower for South Brisbane that is being touted as the “world’s greenest residential building.” (07 July 2020).  More...

Queensland planning law changes may support smoother ECEC builds
Changes to Queensland’s planning laws will allow certain infrastructure projects to keep progressing across the state during the COVID-19 pandemic, and may impact on the development of early childhood education and care (ECEC) facilities in the state (07 July 2020).  More...

Published – articles, papers, reports

Australia Bureau of Statistics
15/07/2020 Building Activity, Australia, Mar 2020 (cat no. 8752.0).

In practice and courts

Commonwealth

API State of Emergency Declaration- Updated Valuation Protocol – Significant Valuation Uncertainty
Due to current economic uncertainty and the rising unemployment rate in Australia, the API declared State of Emergency needs to remain in place until further notice. We have reviewed and refined the existing version of the Significant Valuation Uncertainty Protocol which applies to Valuer Members when undertaking valuations. View a copy of the updated valuation protocol here.

GBCA: Transitioning to Green Star – Design & As Built v1.3, Green Star – Interiors v1.3 and Green Star
Railway Stations v1.1
As the new section J provisions are now mandatory in most of the country, GBCA will be closing down registrations under Green Star – Design & As Built v1.2, Green Star – Interiors 1.2, and Green Star – Railway Stations v1 at the end of September 2020.  More...

PC Issue Paper: National Water Reform
This issues paper was released on 26 May 2020 to guide people in preparing a submission. It outlines a range of issues on which the Commission is seeking information and feedback by 21 August 2020.  More...

Announcements, Draft Policies and Plans released 2020

Metropolitan Melbourne and Mitchell Shire - activities and access to public land
Changed coronavirus (COVID-19) restrictions on public land in metropolitan Melbourne and Mitchell Shire from 8 July 2020.  More...

Consumer Affairs: Estate Agents (Education) Interim Regulations 2019 - Legislation update
The Estate Agents (Education) Interim Regulations 2019 (Interim Regulations) will remain in force until 22 October 2020. A public consultation on the new regulations will take place in the first half of 2020.  More...

Title Registry Alerts No 173: Updated arrangements for titles registry lodgements and searches
14 July 2020
Titles Registry LodgementsThe preferred way for professionals to lodge Titles Registry documents is through eLodgement or eConveyancing. Lodgements can also be made at a number of regional business centres*. See the Titles Registry contacts page for lodgement hours and street addresses.
For more information, see Payments and lodgement of Titles Registry forms.
Titles Registry Searches (and copies of documents)
Visit the Titles Registry contacts page for regional business centre Titles search hours and street addresses. You can buy titles searches and copies of survey plans online. See the Title searches and copies of documents page for further information, including a list of approved distributors.

Revised Queensland Titles Registry fees will take effect from 1 August 2020
The revised fees are prescribed in the Natural Resources, Mines and Energy Legislation (Fees) Amendment Regulation 2020 which is available on the Office of the Queensland Parliamentary Counsel website.
A summary listing the revised Titles Registry fees that will apply from 1 August 2020 are here.
The Titles Registry online fee calculator will be updated on 1 August 2020 to reflect the revised fees that commence on that date.

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. Learn more Note Temporary use licence updated 08 July 2020.

PCA: Redland Coastal Hazard Adaption Strategy
Redland City Council is inviting community members to provide input into Phase 6 of its Coastal Hazard Adaptation Strategy, a city-wide strategy for the protection of the city’s coastline, including islands and inland rivers and creeks. For more information about the strategy and to take the online survey, please visit here (July 2020).  More...

Cases

DJP Scoria Pty Ltd v Mount Road Nominees Pty Ltd (No 3) (Building and Property) [2020] VCAT 742
PRACTICE AND PROCEDURE – application to amend points of claim – s 127 Victorian Civil and Administrative Tribunal Act 1998
Proposed claim in contract based on express terms of the agreement – claim that the respondent refused to do certain things as allegedly required by the terms, and embarked on an alleged course of conduct allegedly “inconsistent” with the terms, both allegedly causing the applicant loss and damage – existence and scope of the alleged contractual duty doubted – no arguable case that compliance with the alleged contractual obligation would have avoided the claimed loss and damage – cause of action in contract found not to be sufficiently arguable as to allow amendment – application refused
Proposed claim based on unconscionable conduct within the meaning of s 77 Retail Leases Act 2003 and ss 21 and 22 Australian Consumer Law – claim that the respondent’s alleged course of conduct, allegedly inconsistent with the contractual terms, when combined with other claimed facts and matters (including the claimed knowledge of the respondent about certain matters) was in all the circumstances unconscionable – found in the circumstances, particularly the existence of a clause 34 of the agreement, that no arguable case in regard to claimed unconscionable conduct of the respondent – even if unconscionable conduct, found no arguable case that the claimed loss and damage was because of the conduct of the respondent, as opposed to other causes – application refused
Claim by applicant for relief against forfeiture based on alleged breach of contract and unconscionable conduct disallowed – applicant not prevented from applying at hearing for relief on other bases.

Francis v Powercor Australia Ltd [2020] VSC 405
PRACTICE AND PROCEDURE – court approval of costs of a representative proceeding – Lenehan v Powercor Australia Ltd [2010] VSC 82; Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 – Matthews v Ausnet Electricity Services Pty Ltd [2014] VSC 663 – Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 3) [2018] FCA 1842 – Supreme Court Act 1986 (Vic), s 33V – whether costs claimed are reasonable in all the circumstances and proportionately incurred – Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 – Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 – Downie v Spiral Foods Pty Ltd & Ors [2015] VSC 190 – Matthews v Ausnet Electricity Services Pty Ltd & Ors [2014] VSC 663 – Legal Profession Uniform Law (Vic), s 172 – Civil Procedure Act 2010 (Vic), s 24.

Lenehan v Powercor Australia Ltd (No 3) [2020] VSC 404
PRACTICE AND PROCEDURE – court approval of costs of a representative proceeding – Supreme Court Act 1986 (Vic) s 33V – whether costs claimed are reasonable in all the circumstances and proportionately incurred – Modtech Engineering Australia Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 – whether an additional loading for skill care and attention can be approved – Legal Profession Uniform Law (Vic) s 172 – Supreme Court General (Civil Procedure) Rules 2015 (Vic) r 63.48. 

Snowy Mountains Brumby Sustainability & Management Group Incorporated v State of New South Wales and Anor [2020] NSWLEC 92
ENVIRONMENT AND PLANNING – judicial review – Part 5 Environmental Assessment – whether breach of duty to consider environmental impact – s 5.5(1) Environmental Planning and Assessment Act 1979 – s 5.1 Activity relating to the “use of land” – proposed action not exempt development – further consideration required as activity authorised by the plan – compliant with s 81 National Parks and Wildlife Act 1974 COSTS – proceedings brought in public interest – s 4.2(1) Land and Environment Court Rules 2007 discretion exercised – no order for costs.

Coffs Harbour City Council v Noubia Pty Ltd [2020] NSWCA 142
CIVIL PROCEDURE – hearings – procedural fairness – judge preferring evidence of one expert over another – earlier role of expert addressed during proceedings – basis of preference based on earlier role – no unfairness ENVIRONMENT AND PLANNING – consent – conditions – construction – transfer of land to Council – public purpose – importation of valuation principles from the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) JURISDICTION – Land and Environment Court – valuation of land – no compulsory acquisition – proceedings transferred from Equity Division – conferral of jurisdiction on transferee court – Civil Procedure Act 2005 (NSW), s 149B, 149E – Class 4 jurisdiction exercised – Land and Environment Court Act 1979 (NSW), s 20(1(cj) JUDGMENTS AND ORDERS – reasons – duty to give reasons – failure to give reasons – constructive failure to exercise jurisdiction distinguished VALUATION – methods of valuation – “before and after” method – developed land on alluvial floodplain – whether alternative hypothetical developments the most financially advantageous use of land – proposed alternative development subject to natural features of the land and associated constraints on use – whether alternative development would have received approval VALUATION – valuation of land – principles – whether detention and management of upstream water flows by downstream land owner a “public purpose” to be disregarded in a valuation exercise.

Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137
ENVIRONMENT AND PLANNING – development application – power to grant consent – local environmental plan – requirement that proposed development “is compatible” with the “flood hazard” of the land – assessing compatibility at date of determining application – whether future measures to ameliorate flood hazard relevant – future measures not part of application – Wingecarribee Local Environmental Plan 2010 (NSW), cl 7.9(3)(a) STATUTORY INTERPRETATION – extrinsic materials – dictionaries – usefulness of reliance on dictionaries in statutory interpretation STATUTORY INTERPRETATION – immediate context – consistency of operation – local environmental plan – statutory precondition to granting development consent – grammatical tense of clause – requirement for contextual construction of clause.

Conway & Ors v Australia Pacific LNG CSG Transmissions Pty Ltd & Anor [2020] QLC 26
ENERGY AND RESOURCES – GAS – OTHER MATTERS – where the respondent resource authority holders constructed a gas pipeline on the applicant landowners’ grazing property – where the applicants complained to the respondents about the spread of African lovegrass on their property – where the respondents commissioned a weed survey to be carried out on the applicants’ property – where the respondents’ environmental scientists took a sample of a vulnerable ooline tree during that weed survey and sent it to the Queensland Herbarium for identification – where a flora survey trigger map was issued over part of the applicants’ property – whether the respondents were liable to compensate the applicants for having caused the trigger map to issue and, if so, what was the quantum of compensation payable – where the application was dismissed
Mineral and Energy Resources (Common Provisions) Act 2014 Qld s 81
Mineral and Energy Resources (Common Provisions) Regulation 2016 Qld
Nature Conservation Act 1992 Qld s 4, s 5
Nature Conservation (Wildlife Management) Regulation 2006 Qld
Petroleum and Gas (Production and Safety) Act 2004 Qld

Roubaix Properties Pty Ltd v Somerset Regional Council [2020] QPEC 34
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for a Relocatable Home Park ASSESSMENT – compliance with State Planning Policy in respect of flood risk – compliance with the planning scheme – relevant matters. Planning Act 2016 Qld ss 8, 45, 60; Planning and Environment Court Act 2016 Qld ss 43, 45, 46; Planning Regulation 2017 Qld s 30.

Franciskovic v G & J Tenni Pty Ltd & Anor [2020] QSC 215
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY –ABANDONMENT, SUSPENSION, EXTINGUISHMENT OR MODIFICATION – EXTINGUISHMENT – STATUTORY – where an easement dating back to the 1920s ran along three properties, providing access from a main street to the third property – where subsequently another road was laid providing access to all three properties – where there is no physical sign of the easement anymore – where the easement had been abandoned since at least 1984 – where the nature of the neighbourhood has changed – whether the easement has been “abandoned” – whether the easement is “obsolete”
Property Law Act 1974 Qld s 181(1)(a), s 181(1)(c), s 181(2), s 181(4)

Moreton Bay Regional Council v Meredith & Ors [2020] QPEC 36
PLANNING AND ENVIRONMENT – CONTEMPT – where Planning and Environment Court judge has power to punish for contempt. District Court Act 1967 Qld; Planning and Environment Court Act 2016 Qld; Uniform Civil Procedure Rules 1999 Qld 

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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