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Inside track: Property & Real Estate

28 January 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Bushfire-destroyed homes should not be rebuilt in riskiest areas, experts say
Planning experts call for state governments to buy back land from people in most bushfire-prone areas (19 January 2020).  More...

Financial shock looms for those looking to rebuild, RFS boss warns
Those who lost homes during the state’s ravaging bushfires may face higher than expected re-building costs because of the need to comply with tougher standards, Rural Fire Service Commissioner Shane Fitzsimmons has warned. He said the RFS had been given a role in advising on building and planning regulations in bushfire prone areas since the early 2000s, but that left the “legacy development” of the previous 200 years (17 January 2020).  More...

Australian Property Institute’s approach to liability paves a way towards solving PI crisis
In a move that paves a way towards solving the professional indemnity insurance crisis currently gripping the property profession, the Australian Property Institute Valuers Ltd has introduced an innovative two-tier cap approach to professional liability within its industry-leading Professional Standards Scheme (16 January 2020).  More...

Bringing embodied carbon up-front
The community needs to get the settings right on carbon now, and following the release of the recent World Green Building Council Bringing Embodied Carbon Upfront report, we have a plan. The report clearly outlines the coordinated steps across industry, government, and finance that are required to move further and faster to decarbonise across the entire life cycle of a building (15 January 2020).  More...

Reserve Bank documents highlight lack of data on shadow banking and fintech risks
Australia's financial regulators have been navigating largely in the dark when assessing the risks shadow banking and fintech pose to financial stability, particularly in the property market, according to internal Reserve Bank documents (15 January 2020).  More...

Accessibility a hurdle for first home loan deposit scheme
The First Home Loan Deposit Scheme commenced on 1 January. The consensus is that helping FHBs overcome a large deposit hurdle does not address affordability, because it ignores the root causes that make that hurdle so high in the first place (13 January 2020).  More...

Another crack in the wall – when is it worth worrying about?
Australia's record breaking dry spell is not only contributing to catastrophic bushfires and dying crops and livestock, it is also causing many houses across the nation to crack up (10 January 2020).  More...

ASIC encourages fair and effective insurance claims handling for bushfire victims
Australia’s corporate regulator is urging insurers and other key stakeholders to handle claims efficiently and fairly, to help those impacted by the devastating fires rebuild their lives (10 January 2020).  More...

PM argues for 'comprehensive' inquiry into bushfire crisis
Climate change, hazard reduction burns and the national response to the fires will all be considered under a wide-ranging inquiry, Prime Minister Scott Morrison says (09 January 2020).  More...

NSW

Sydney developer Coronation Property plans build-to-rent project following $41 million Merrylands purchase
Sydney-based developer Coronation Property Co has joined a small group of players in the city’s nascent build-to-rent sector, earmarking a recent purchase of a site in the city’s west as the first stage in a plan to add 5000 units to the permanent rental market (17 January 2020).  More...

REINSW: NCAT rules Biowood cladding is combustible
In a major development for the Strata industry, the NSW Civil and Administrative Tribunal (NCAT) has recently held that Biowood cladding installed externally on a Sydney building is combustible and must be removed as it is a major defect (16 January 2020).  More...

NSW housing apartment approvals are up – but overall monthly result is the worst recorded since 2013
Urban Taskforce CEO Tom Forrest welcomed the release by the ABS showing a modest rise in NSW apartment approvals but noted with concern a further drop off in the trend line for private sector stand-alone housing approvals (08 January 2020).  More...

REINSW: Final touches being made on new building laws: What you need to know
Commercial Property Guide reports on another layer of rules and regulations which is about to be added to the business of constructing new buildings, and designers, builders and architects are being advised to familiarise themselves with the NSW Government’s draft Design and Building Practitioners Bill 2019 (NSW) to understand what is coming (07 January 2020).  More...

Queensland

Construction on $20bn Cross River Rail Hits Milestone
Demolition, tunnelling and new stations are on track as the $20 billion Cross River Rail project as major contractors and the state government pass critical project milestones this year (17 January 2020).  More...

Property Council responds to Rental Reform
The Property Council responds to proposed changes to Queensland’s Tenancy Laws, outlined in the Government’s Consultation Regulatory Impact Statement A Better Renting Future – Safety, security and certainty (16 January 2020).  More...

Property Council and UDIA lodge joint submission on Koala Conservation Strategy and Mapping
The submission recognises the need to maintain a healthy koala population in South East Queensland, and emphasises the need for this to occur in the context of the Queensland Government’s broader South East Queensland Regional Plan 2017 (ShapingSEQ) (16 January 2020).  More...

Brisbane needs 'breathing buildings' to adapt to climate change
In 2016, Brisbane City Council released the New World City Design Guide: Buildings that Breathe policy document, which recommended new developments in the city incorporate natural ventilation, porches, basements and tree shading, among other measures. Council planning chairman Matthew Bourke said there were no plans to force developers to include green design elements in new projects (16 January 2020).  More...

New exemption to save state land renters time and money
The Queensland Government has cut red tape for 9450 state land leaseholders by introducing changes for transferring a lease (13 January 2020).  More...

Spit master plan works power into the new year
Work is powering ahead on more projects for The Spit master plan with tenders about to be called for detailed design works for the Moondarewa Spit upgrade and the Seaway Promenade (11 January 2020).  More...

How much are developers contributing to Brisbane's infrastructure?
Infrastructure charges - amounts levied on developers for new developments around the city - can now be seen publicly on the council's website (06 January 2020).  More...

Six-storey proposal for heritage seaside suburb sparks protest
A quiet seaside suburb in Brisbane's north could see six-storey buildings rubbing shoulders with single-storey heritage-listed buildings under a neighbourhood plan being drafted by Brisbane City Council (02 January 2020).  More...

How ratepayers in one of the country's fastest-growing cities 'lost $78 million'
With a report into Ipswich City Council released to the public, ratepayers now have an insight into exactly what went wrong including lost millions through a failed CBD development, a toxic culture of corruption and lack of direction (12 January 2020).  More...

In practice and courts

Commonwealth

Valuation protocol: Inspection requirements for residential property – ABFI RVSI V2.2.1
This Valuation Protocol refers to the requirements for the inspection of residential property, both improved and vacant land when undertaken mortgage valuations using the API PropertyPRO format and as outlined in the ABFI RVSI V2.2.1 which came into effect on 1 October 2019 (17 December 2019).  More...

API: Full launch of low risk valuation scheme amendment on 7 January 2020
The Low Risk Valuation (LRV) Scheme Amendment to the APIV Professional Standards Scheme has been published in all state and territory governments and will come into full force in all jurisdictions from 7 January 2020. To find out more about this innovative API initiative and what the 7 categories of LRV are, please click here.  More...

Bushfire management and national environmental law
Find out how national environmental law applies to firefighting and fire prevention activities (08 January 2020).  More...

Green Building Council of Australia (GBCA) draft credits
GBCA have introduced eight categories to more accessibly define a building’s sustainability. Within these categories there are a number of draft credits that all buildings seeking a Green Star rating are expected to comply with: these are proposed as new Minimum Expectations for every Green Star rated building. Feedback is invited until the end of February 2020.  More...

Announcements, Draft Policies and Plans released 2019

Queensland

QAO: Do you have any ‘lease agreements’ that are not leases, or any hidden leases?
Technical: Published: 13 January 2020
When is a lease not a lease? When it does not meet the definition of a lease.  More...

Review of Queensland Energy Legislation
Following consultation on an Issues paper in 2018, the state government is now seeking feedback on an Options paper that contains proposals to modernise Queensland’s state energy laws. The laws being reviewed are the Electricity Act 1994, the Gas Supply Act 2003, the Energy and Water Ombudsman Act 2006 and the Liquid Fuel Supply Act 1984. The consultation paper proposes options to improve Queensland’s state energy laws by creating a future-focused framework. Submissions close on 31 January 2020.

Department of Environment and Science Consultation: Draft South East Queensland Koala Conservation Strategy
Open to 31 January 2020. Have your say on the draft SEQ Koala Conservation Strategy.  More...

Department of Natural Resources, Mines and Energy: Dispute resolution for residential embedded network customers
Open until 31 January 2020. Have your say about enabling residential customers of embedded networks access to services provided by the Energy and Water Ombudsman Queensland.  More...

Land Restoration Fund – applications opening soon
The State Government has announced the Land Restoration Fund to support farmers, landowners and Traditional Owners develop carbon farming projects. Applications for the 2020 investment round will open on 28 January 2020 and include a financial support package to allow applicants to obtain professional advice, including legal advice. From mid-January, service providers including lawyers can undertake an accreditation process to ensure they are ready to provide advice to applicants. More information on the Land Restoration Fund and eligibility criteria can be found here (January 2020).

Cases

Carta v Tilley (No 2) [2019] QDC 235
LANDLORD AND TENANT – tenant’s obligations – whether particular damage responsibility of tenant – whether some rent payments made – bond recoverable – Residential Tenancies and Rooming Accommodation Act 2008 Qld s188

Benjamin v KMV Constructions Pty Ltd & Ors [2020] QDC 3
APPLICATION – CIVIL PROCEDURE – FREEZING ORDER – SALE OF PROPERTY - where plaintiff contracted the first defendant to construct a residential dwelling on property owned by the plaintiff – where second and third defendants were at the time directors of the first defendant – where dispute arose concerning completion of building contract – where plaintiff brings an application for a freezing order in relation to third defendant’s property – where that property has been advertised for sale – where claim is based solely on contract with First Defendant – where no claim is properly pleaded against Third Defendant where no good arguable case. UCPR r 260A, r 260D(2) and (3)
Uniform Civil Procedures Rules 1999 Qld r260A, r260D(2), r260D(3)

Tremco Pty Ltd v Thomson & Ors [2020] QDC 1
APPLICATION – CIVIL PROCEDURE – STAY OF AN ENFORCEMENT WARRANT – JUDICIAL DISCRETION – where the plaintiff sued the defendant and obtained judgment – where an appeal by the defendant was unsuccessful – where an enforcement warrant for seizure and sale of land relevant to judgment was issued by the court, and subsequently renewed – where there was a public auction of the property but it did not reach reserve price – where the plaintiff obtained an order that the property be sold at the best price obtainable – where the defendant brings an application to stay the enforcement warrant.

Loughnan v Valuer-General [2020] QLC 1
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING ROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the appellant lodged an appeal by fax, but the Court did not receive the fax – whether there was a reasonable excuse for the failure to lodge the appeal in time. Land Valuation Act 2010 Qld ss 155, 157, 158

Cases to 13 January 2020

Grist & Ors v Lenan & Anor [2019] QSC 325
Lessee – under a written lease – of retail premises in Carrara owned by Firestar Convenience Retail Developments Pty Ltd – the first and third plaintiff guaranteed the company’s obligations under the lease. The company operated a “Foodworks” store in the premises. 

Curtain & Anor v Kirk & Anor [2019] QSC 317
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – OTHER PARTICULAR CASES – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract – where the defendants purported to rescind and terminate the contract for breach of the requirement under s 421 of the Environmental Protection Act 1994 (EPA) that they be given written notice that the particulars of the unit were recorded in the Environmental Management Register (EMR) – where the plaintiffs contended that the defendants’ purported termination was unlawful and a repudiation of the contract, which the plaintiffs purported to accept, terminating the contract – whether the unit was, at the time of the sale to the defendants, on the EMR – whether, if the unit was on the EMR, the plaintiffs were aware of that fact at the time of the sale to the defendants – whether the defendants had entered into possession under the agreement before purporting to rescind – whether the defendants’ purported rescission was valid – whether s 421 afforded the defendants a privately actionable right to damages where there had been a breach of the section
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – OTHER PARTICULAR CASES – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract –where the defendants purported to rescind and terminate the contract for breach of a warranty under the sale contract that the plaintiffs were not aware of any facts or circumstances that may lead to the land being classified as contaminated land within the meaning of the EPA – where the plaintiffs contended that the defendants’ purported termination was unlawful and a repudiation of the contract, which the plaintiffs purported to accept, terminating the contract – whether the plaintiffs were aware at the time of the sale to the defendants of any facts or circumstances that may have led to the unit being classified as being contaminated land within the meaning of the EPA – whether the defendants’ purported rescission was valid
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RESCISSION – where the plaintiffs were the owners of a unit – where the plaintiffs agreed to sell that unit to the defendants with settlement to take place a year and a day later – where the defendants took possession of the unit in advance of settlement pursuant to special conditions of the contract – where the defendants submitted they were entitled to rescind the contract because material facts (the existence of the EMR listing and the existence of the facts that led to that listing (“the material facts”)) were not disclosed to them which, if they had been disclosed, would have changed their decision to enter into the contract in the first place – whether the plaintiffs were aware of the material facts – whether the defendants would have entered into the contract had the material facts been disclosed – whether the defendants relied on any failure to disclose – whether the defendants had waived any right to rescission in equity by conduct in April 2010 – whether the defendants’ conduct, viewed objectively, was consistent with exercising a right to press the contract to completion and abide by its terms over exercising a right to rescind or terminate. Environmental Protection Act 1994 Qld s 421; Limitation of Actions Act 1974 Qld s 42

Northern Properties Pty Ltd v Brisbane City Council & Anor [2019] QPEC 66
PLANNING AND ENVIRONMENT – APPEAL – where application for a material change of use for a Childcare centre and a Multiple dwelling (19 units) in the Low-medium density residential zone and Character residential zone – whether noise from the outdoor play areas of the Childcare centre will have an unacceptable impact on the balcony of five units in the proposed development – whether the proposed Childcare centre will serve a local community facility need only – whether the development complies with the respondent’s planning scheme – whether in the exercise of the discretion the application should be approved. 
Planning Act 2016 Qld ss.45 and 60; Planning & Environment Court Act 2016 Qld ss43 and 45

Wilson v Brisbane City Council & Anor [2019] QPEC 64
PLANNING AND ENVIRONMENT – APPEAL – where co-respondent submitted a development application for a residential sub-division – where 38 separate lots are intended on being developed – where the respondent council approved that application subject to conditions – where the appellant appeals against that approval – whether the development is non-compliant with the objectives of the planning scheme – whether the development causes unsatisfactory traffic and town planning impacts – whether notwithstanding non-compliance should the co-respondent’s development be approved
TRAFFIC – whether the local road network can accommodate increased traffic from the proposed development – whether the proposed development would have unacceptable safety impacts on the local road network so as to warrant refusal – whether the proposed development would result in unacceptable queuing times
TOWN PLANNING – where the proposed development is located in the Extractive Industry Zone – whether the proposed land use in non-compliant with the planning scheme – whether the planning scheme contemplated residential development in the zone – whether the proposed development will negatively impact the urban amenity of the locality – whether the proposed development provides a sufficient range of lot sizes – whether the intended land use aligns with community expectations
Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

Body Corporate for Koolamara v Bennett [2019] QMC 15
Default Judgment – application to set aside – irregularly entered – judgment given for more than amount claimed – judgment given for amounts not pleaded
Body Corporate and Community Management (Accommodation Module) Regulation 2008 Qld s139(1)
Building Units and Group Titles Act 1980 Qld ss139, 143

Legislation

Commonwealth

Regulation

06 January 2019

Social Security (Australian Government Disaster Recovery Payment—Victorian Bushfires) Determination 2019 (No. 24)
In this instrument: Act means the Social Security Act 1991.
Destroyed, for a place of residence, include a residence damaged to the extent that it must be demolished.
major damage, for a residence, means:
(a) damage to the interior of the residence; or
(b) that the residence is structurally unsound; or
(c) damage to the residence that exposes the interior of the residence to the elements; or
(d) sewage contamination of the interior of the residence or of the water supply to the residence.

Queensland

Subordinate legislation as made – 13 December 2019
No 246 Economic Development (Roma Street Cross River Rail PDA) Amendment Regulation 2019
Amendment of sch 1 (Priority development areas) Schedule 1, part 2 – insert – Map No. PDA 16 - Roma Street Cross River Rail Priority Development Area
No 249 Land, Explosives and Other Legislation Amendment (Postponement) Regulation 2019

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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