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Inside track: Planning, Environment & Sustainability

27 November 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

‘Missed opportunity’: Australia to fall short of Sustainable Development Goals by 2030
Rapid progress for Australia on the UN’s Sustainable Development Goals is possible and could deliver a fairer, greener, more prosperous nation in 2030 – if managed properly – new UNSW research has found (12 November 2019).  More...

Emergency, emergency: What are we waiting for
There are way too many similarities between California and Australia when it comes to fire risk. In the US, more than 12.7 million homes were built in the high-risk wild lands-urban interface in the 20 years to 2010. In 2011, Australia had 3.3 million people in similar outer metropolitan fringe areas – by 2021, that will rise to about 4.5 million people (12 November 2019).  More...

No Australian city has a long-term vision for living sustainably. We can't go on like this
International and internal migration trends have driven rapid growth in the big cities. This has created major problems with providing adequate housing, infrastructure and services. The fundamental issue is the reluctance of urban communities and their leaders to discuss what might be sustainable populations (05 November 2019).  More...

Defence faces new class action over chemical contamination
Another class action will soon be launched against the Department of Defence over synthetic chemicals that leaked from military sites into surrounding areas, including residential properties (04 November 2019).  More...

Attorney-General sees 'clear need' for class action reform
Federal Attorney-General Christian Porter says there is a clear need for reform on class actions and he is “actively engaging” over issues raised by a Government inquiry earlier this year (04 November 2019).  More...

NSW

'Locked up and forgotten': Farmers taking fire management into their own hands
Desperate farmers are doing their own controlled burns to protect property, prompting the Shooters, Fishers and Farmers to draft a bill to give them more control over protecting their land (16 November 2019).  More...

Winning Solar Powers Australia's biggest wholesale market
The 43-hectare site in Flemington houses Australia’s largest private sector rooftop solar set up, with an expansive 8594 solar panels capable of generating more than 3 MW of electricity. The $8.9 million investment means that solar now provides 11 per cent of Sydney Markets’ annual power consumption (15 November 2019).  More...

NSW Planning Minister rejects claims of mining lobby influence as bill delayed
NSW Planning Minister Rob Stokes says he did not cave to demands from the powerful mining lobby, as a controversial bill dealing with greenhouse gas emissions was delayed until next year (12 November 2019).  More...

Lendlease Wins Approval for Barangaroo Tower
Plans for Lendlease's 30-storey residential and retail development at Sydney’s Barangaroo has received the green light from New South Wales Independent Planning Commission (10 October 2019).  More...

Urban Taskforce Supports A Review Of The Independent Planning Commission
The Urban Taskforce supports the recent announcement by the Planning Minister Rob Stokes, to review the Independent Planning Commission after a series of unfortunate blunders by the organisation. The conflict of interest policy regarding Commissioners eliminates many potential commissioners with a strong knowledge of property development (10 October 2019).  More...

Planning Minister Rob Stokes blames Baby Boomers for NIMBYs blocking growth
We actually are fighting against a great weight of cultural development over the last 40 or 50 years, Mr Stokes said (10 November 2019).  More...

Company behind Opal Tower fiasco caught up in new building defect row
Residents of yet another Sydney apartment block have been rocked by alarming safety fears — this time allegedly involving their balconies. The warning comes after an investigation allegedly revealed the block’s balustrades were “structurally defective” and of “inadequate strength” (09 October 2019).  More...

Political donations hidden from NSW planning authorities by big corporations
Some of Australia’s biggest corporations have hidden political donations from planning authorities, which is a criminal offence in New South Wales (07 October 2019).  More...

Reforms to reduce illegal asbestos dumping
The NSW Government is working to remove the levy on asbestos waste to make it easier and cheaper for the community to lawfully dispose of asbestos waste (05 November 2019).  More... 

Developer Fined for Illegal Works to Heritage-Listed Building
A Sydney developer has been fined $55,000 for illegally demolishing parts of a heritage-listed former sports club building in the CBD (04 October 2019).  More...

Queensland

Fine minds to advise on mine rehabilitation
Ten of Queensland’s leading resource, environmental and academic experts will join forces to advise the Palaszczuk Government on the allocation of funds to rehabilitate failed resource sites (14 November 2019).  More...

Queensland Airbnb hosts warned hundreds could be operating outside the law
Hundreds of Airbnb rentals could be operating unlawfully in Queensland due to little-known laws which require hosts to get planning approval (07 November 2019).  More...

In practice and courts

The second independent review of the EPBC Act commenced on 29 October 2019
The review will be led by Professor Graeme Samuel AC, supported by a panel of experts. A report will be presented to the Minister for the Environment within 12 months of commencement of the review (28 October 2019).  More...

Reef protection Bill passed by Parliament
The Environment Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019 was passed on 19 September 2019 with the new Reef protection regulations proposed to come into effect on 1 December 2019 and rolled out over the next three years. Learn more about the new Reef regulations including the draft standards for agriculture and what it means for new, expanded or intensified industrial activities with sediment or nutrient releases, and find out about the support and new funding available. 

Announcements, Draft Policies and Plans released 2019

NSW

Building standards and building quality in NSW
While there is still much more to do to rebuild community confidence in building standards and building quality in NSW, I am pleased to report that Public Accountability Committee’s first report, Regulation of building standards, building quality and building disputes, was tabled in the Legislative Council this week. It corresponds with Parliamentary debate about the Design and Building Practitioners Bill - an important piece of legislation that seeks to address accountability issues in the building and construction sector (14 November 2019).

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018.  More...

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 deferred
The Low Rise Medium Density Housing Code has been amended to extend for a further short period, until 31 October 2019. For landowners, pending recommendations of the review, landowners in deferred council areas will not be able to use the Code to lodge a complying development application for dual occupancies, manor houses or terraces until 1 November 2019 (or 1 July 2020 in the City of Ryde).  More...

Queensland

Reef protection Bill passed by Parliament
The Environment Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019 was passed on 19 September 2019 with the new Reef protection regulations proposed to come into effect on 1 December 2019 and rolled out over the next three years. Learn more about the new Reef regulations including the draft standards for agriculture and what it means for new, expanded or intensified industrial activities with sediment or nutrient releases, and find out about the support and new funding available. 

North Queensland Regional Plan
The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville. Consultation on the draft document closes on 22 November 2019.  More...

Prosecution Bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (November 2019).  More...

Cases

NSW

Cittrus Pty Ltd v Inner West Council [2019] NSWLEC 1558
DEVELOPMENT APPLICATION – roof signage – Parramatta Road transport corridor – desired future character – State Environmental Planning Policy No 64 – Advertising and Signage – height standard

CVC Capital Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1554
DEVELOPMENT APPLICATION – alterations and additions to an existing building listed as a local heritage item – change of use of the first floor to retail – impact on the heritage significance of the heritage item.

RD Miller Pty Ltd v Roads and Maritime Services NSW (No. 2) [2019] NSWLEC 173
ENVIRONMENT AND PLANNING – Land and Environment Court – Jurisdiction and powers – procedure – Civil Procedure Act s 64 – amendment to points of claim – Roads Act 1993

Stokes v Waverley Council (No 2) [2019] NSWLEC 174
APPEAL – appeal against a Commissioner’s judgment on questions of law – whether Commissioner erred in finding that she did not have jurisdiction to grant consent to the development application – whether Commissioner erred in finding that the consent of the owner of adjoining land was required pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) – whether Commissioner erred in finding that the location of existing piles used for structural stability raised an issue of jurisdiction – whether the Commissioner erred in finding that jurisdiction to determine the appeal was only provided if the piles were structurally isolated from the proposed development – whether Commissioner erred in dismissing the appeal without giving the parties an opportunity to make submissions as to whether the consent of the owner of adjoining land was required and whether she had jurisdiction to grant consent to the development application – appeal upheld

Gurr v Waverley Council [2019] NSWLEC 1548
DEVELOPMENT APPEAL – modification of consent – exceedance of height – privacy impacts – view loss

Beaini Projects Pty Ltd v Cumberland Council [2019] NSWLEC 1547
MODIFICATION APPLICATION – developer contributions – conditions require public road to be constructed over land dedicated as a laneway – agreed material public benefit – whether there is power to amend the contribution – basis for reducing contribution

Sleiman v Central Coast Council [2019] NSWLEC 1549
DEVELOPMENT APPLICATION – multi-dwelling development – flood risk – reliance on evacuation plan with safe egress - tree protection plan – absence of root mapping – character and streetscape consistency

Doyle v North Sydney Council [2019] NSWLEC 1545
DEVELOPMENT APPLICATION – masonry wall and new fence – consent orders – character – amenity – heritage conservation area – works wholly on applicants land

Syncept Chatham Pty Ltd v City of Ryde Council [2019] NSWLEC 170
LAND AND ENVIRONMENT COURT – Jurisdiction and Powers – Class 4 – Heritage Act – Interim Heritage Order – statutory authorisation – local council – statutory construction – conditions of minister’s authority under Heritage Act – discretionary powers – invalidity

Natural Resources Access Regulator v Budvalt Pty Ltd; Harris; Harris; Timmins [2019] NSWLEC 169
ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’

Wise v Hickey [2019] NSWLEC 1524
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction

Chan v City of Canada Bay Council [2019] NSWLEC 1530
DEVELOPMENT APPLICATION – boarding house – whether the proposal is compatible with the character of the local area – the proposal does not meet the parking standard – overshadowing of adjoining property – impact on views across the site – amenity of boarding rooms – vicinity of heritage conservation areas and impact on setting – management of tandem car parking

Queensland

Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 253
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where an applicant for a development permit (Traspunt) and the relevant council each applied for leave to appeal against a judgment of the Planning and Environment Court – where the council succeeded in its challenge to that judgment – where Traspunt failed in its challenge, for reasons consistent with the council’s arguments – where Traspunt submits that the council did not succeed in the appeal entirely, in the sense that it retreated from a position opposing the development application entirely, to one opposing a significant part of it – where, despite that retreat, the council’s legal arguments remained relevant and the council sought that the limited work be permitted pursuant to an order in terms different to those made by the Planning and Environment Court – whether the council in substance succeeded entirely – whether there are sufficient reasons to depart from the usual rule that costs should follow from the event
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where a planning and environment applicant (Traspunt) and the relevant council each applied for leave to appeal against a judgment of the Planning and Environment Court – where the council succeeded in its challenge to that judgment – where Traspunt failed in its challenge, for reasons consistent with the council’s arguments – where Traspunt submits that each party should bear its own costs as the applications to the Court of Appeal raised and resolved significant issues relating to the interrelationship of planning and environment statutes and instruments – where the applications did raise questions of importance beyond the present proceeding – where Traspunt was not litigating in the public interest but was doing so for its own commercial purposes – whether there are sufficient reasons to depart from the usual rule that costs should follow from the event

Bunnings Group Limited v Sunshine Coast Regional Council & Ors [2019] QCA 252
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the applicant sought two alternative development permits for a material change of use to establish a Bunnings Warehouse at Coolum – where the relevant council refused to issue either permit and the Planning and Environment Court dismissed appeals against those refusals – where the applicant seeks leave to appeal against the decision of the Planning & Environment Court – whether the judge misconstrued the relevant planning scheme – whether the judge placed undue reliance upon a previous decision of the Court of Appeal that dismissed a similar application – whether the judge failed to give adequate reasons – whether any error of law consequential to the outcome of the judge’s decision is demonstrated

HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56
PLANNING AND ENVIRONMENT – APPEAL – where existing use of land for the disposal of non-putrescible waste in a former mining void – where appeal against refusal of a development application seeking approval to materially increase the scale and intensity of the existing use – whether proposed increase in scale and intensity will compromise the rehabilitation and future use of the land – whether the increase in scale and intensity will have an unacceptable visual amenity impact – whether the increase in scale and intensity complies with the respondent’s planning scheme – whether there is a planning, community and economic need for the proposed increase in scale and intensity – weight to be given to Temporary Local Planning Instrument No. 1 of 2018 (Waste Activity Regulation) – whether the development application should be approved or refused in the exercise of the planning discretion.Planning Act 2016 Qld s3, s4, s5, s25, s45, s60; Planning Regulation 2017 Qld s30; Planning & Environment Court Act 2016 Qld s43, s45

Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors [2019] QPEC 52
PLANNING AND ENVIRONMENT – APPLICATION – PRELIMINARY POINT – PROPER CONSTRUCTION OF DEVELOPMENT APPROVAL – where a decision notice gave approval for the construction of a multi-level resort – where approval was to “establish a Hotel/Motel (102) suites, Function Rooms, Restaurant and Multiple Dwelling (62 units)” – dispute about use of particular allotments – whether some allotments can only be used for temporary accommodation – meaning of approval – meaning of “temporary accommodation”

Planning and Environment Court Act 2018 Qld s 11; Planning Regulation 2017 Qld Schedule 24; Uniform Civil Procedure Rules 1999 Qld r 117

Legislation

NSW

Bills introduced Non-Government
Independent Commission Against Corruption Amendment (Ministerial Code of Conduct—Property Developers) Bill 2019

Bills revised following amendment in Committee
Design and Building Practitioners Bill 2019
Fines Amendment Bill 2019
Right to Farm Bill 2019
Water Supply (Critical Needs) Bill 2019

Bills passed by both Houses of Parliament
Electoral Funding Amendment (Local Government Expenditure Caps) Bill 2019
Fines Amendment Bill 2019
Right to Farm Bill 2019
Water Supply (Critical Needs) Bill 2019

Regulations and other miscellaneous instruments
Biodiversity Conservation Act 2016 — Final Determination (2019-543) — published LW 15 November 2019
Environmental Planning and Assessment Amendment (Central Coast Council Local Planning Panel) Regulation 2019 (2019-544) — published LW 15 November 2019
State Emergency and Rescue Management Act 1989 — Order declaring state of emergency in relation to bushfires (2019-540) — published LW 11 November 2019
State Emergency and Rescue Management Act 1989 — Order regarding volunteers taking part in emergency operations (2019-541) — published LW 11 November 2019
Forestry Amendment (Transitional Arrangements) Regulation 2019 (2019-498) — published LW 11 October 2019
Dams Safety Amendment (Prescribed Dams) Proclamation 2019 (2019-489) — published LW 4 October 2019

Queensland


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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Peter Holt

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Sydney

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Brisbane

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