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Inside track: Planning, Environment & Sustainability

29 March 2021

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Commonwealth

The planning system needs to get “climate conscious”, fast
The Planning Institute of Australia is committed to achieving zero net carbon from the built environment by 2050, if not sooner. But to achieve this goal it is critical that planning systems be a help – not a hindrance – by cutting greenhouse gas emissions and by adapting to climate change (18 March 2021).  More...

Trees can curb urban heatwaves
The heat is on Melbourne, Brisbane and Sydney to increase urban vegetation and prevent scorching summer temperatures. Regions with higher levels of vegetation are cooler regardless of population density, according to Monash University’s temperature check report (18 March 2021).  More...

Victoria

Sustainable village delivering affordable housing
Dozens of Victorians at risk of or experiencing homelessness will benefit from secure housing, reduced power bills and the opportunity to build social connections in a ground-breaking new housing development in Brunswick. Twenty-five new social housing apartments are planned to be acquired in the Nightingale Village, which will be Australia’s first carbon neutral residential precinct (19 March 2021).  More...

Melbourne social housing projects win funding
Social housing projects are continuing to gain momentum with four projects in Melbourne receiving funding through the $1-billion National Housing Infrastructure Facility (17 March 2021).  More...

Developers move in on public transport hubs for new projects around the country
New train, metro and light rail projects around the country are also going to be home to new shopping centres, office towers, industrial hubs and, yes, apartment blocks. Savills Victoria CBD and metropolitan sales director Clinton Baxter said it was an alternative to developing greenfields sites on the urban fringe (15 March 2021).  More...

EPA steps up the attack on recycling fires
Environment Protection Authority Victoria (EPA) is intensifying its enforcement campaign at recycling industry sites, with inspection teams applying a zero-tolerance approach (12 March 2021).  More...

EPA finalises power station licence review
Environment Protection Authority Victoria (EPA) has completed its licence review of Victoria’s three brown coal fire stations: Yallourn, Loy Yang A and Loy Yang B (05 March 2021).  More...

Developers, planners discuss Pakenham East
Developers in Pakenham East are preparing to take advantage of the booming residential market creating 7200 homes in Victoria’s newest suburb. The Victorian Planning Authority fast-tracked the suburb along with five others in response to the pandemic (05 March 2021).  More...

Calls to extend HomeBuilder as Melbourne's growth corridors boom
First home buyers flocked to Melbourne’s western growth corridor making up 40 per cent of all of RPM’s land sales in greater Melbourne last quarter, but there are fears this could dry up when the HomeBuilder scheme finishes at the end of this month (04 March 2021).  More...

Have your say on Riverside Crown Land rules
The Andrews Labor Government is encouraging farmers, fishers, campers and outdoor enthusiasts to have their say on proposed regulations to govern recreational activity on Crown Land with river frontage (03 March 2021).  More...

NSW

City of Sydney’s ‘ambitious’ plan for net-zero buildings from 2026
New developments in Sydney’s CBD and surrounding suburbs must be able to offset as much energy as they expend under a state government-backed plan (16 March 2021).  More...

Waste levy waived in storm and flood affected NSW North Coast
The NSW Government has waived the waste levy fee for residents disposing of storm and flood generated waste in seven North Coast local government areas that have been declared Natural Disaster Areas (16 March 2021).  More...

New lease for Sydney Harbour Trust sites
With $40.6 million already being rolled out to restore historic Sydney Harbour Federation Trust buildings, the Morrison Government has confirmed a future leasing strategy that will ensure the protection of public ownership and access (16 March 2021).  More...

Green lights for Sydney Metro West
The Sydney Metro West project has received two major planning approvals, creating thousands of jobs and paving the way for mega tunnel boring machines to be in the ground by the end of next year (16 March 2021).  More...

Sydney’s third city to be named Bradfield
The city to be developed on the doorstep of Sydney's second airport at Badgery's Creek will be named Bradfield in honour of the engineer who helped shape Sydney (16 March 2021).  More...

Opal Tower hurt values of neighbouring projects
The fallout from Sydney’s disastrous Opal Tower development damaged values of nearby residential developments including Mirvac’s 359-unit Pavilions project in Sydney Olympic Park, Mirvac head of residential Stuart Penklis says (11 March 2021).  More...

Another Sydney Metro milestone reached
The NSW Government has approved a landmark building above the future Pitt Street Sydney Metro station in another milestone for Australia’s largest public transport project (10 March 2021).  More...

Planning changes to boost farm businesses and regional tourism
More farms across regional NSW will be able to open their gates to visitors and diversify their businesses under proposed changes to the planning system as part of COVID-19 recovery measures (09 March 2021).  More...

Caravan park operation to pay $2.3m after losing High Court appeal
Companies operating a NSW Tweed River area caravan park have lost an appeal in the High Court after being ordered to pay more than $2.3 million in compensation plus interest to consumers relating to the sale of waterfront villas as “permanent residences” despite the sites not having development consent for permanent accommodation (09 March 2021).  More...

NSW Government delivers Koala SEPP 2021
Koala SEPP 2019 will be remade across NSW as Koala SEPP 2021. Core rural zones in rural areas will be decoupled from the SEPP as new codes that protect koala habitat under the Local Land Services Act are developed over the next month (08 March 2021).  More...

Roadmap to reform rolled out for infrastructure contributions
The NSW Government will undertake major reforms to the infrastructure contributions system, unlocking up to $12 billion in productivity benefits through changes to how public facilities and services are funded through the planning system (05 March 2021).  More...

Queensland

Luxe eco-tourism resort planned for South Stradbroke Island
Plans for a six-star eco-tourism resort on the Gold Coast’s South Stradbroke Island have been lodged for the abandoned former McLaren’s Landing (19 March 2021).  More...

Legal advice released on possibility of retirement village on former North Lakes Golf Course
A controversial proposal to put a retirement village on a former golf course may have a step closer to reality with legal advice confirming a development application can be made (18 March 2021).  More...

Surf Park planned for Gold Coast resort
Parkwood Village has announced plans to build a ‘world-class’ wave pool by 2023, forming larger plans for its already approved integrated resort and leisure precinct on the Gold Coast (16 March 2021).  More...

Gold Coast refines city plan
Gold Coast council is making further changes to city planning with the intention to build upward, not outward. Interstate migration is putting pressure on the region with only 20 per cent of homes deemed affordable and land availability becoming scarce (10 March 2021).  More...

Caravan park operation to pay $2.3m after losing High Court appeal
Companies operating a NSW Tweed River area caravan park have lost an appeal in the High Court after being ordered to pay more than $2.3 million in compensation plus interest to consumers relating to the sale of waterfront villas as “permanent residences” despite the sites not having development consent for permanent accommodation (09 March 2021).  More...

'Oversupply' of service stations as investors pump up profits with convenience stores
Dozens of new service stations are popping up across south-east Queensland as the fuel industry expands into the space once filled by corner shops (09 March 2021).  More...

In Practice and Courts

Plan to Identify Planning and Zoning Reforms: Information paper
Productivity Commission: released on 9 March 2021
The Commission was to prepare a plan to identify planning and zoning reforms that jurisdictions could consider as part of their response to, and recovery from, the COVID-19 pandemic. This paper is the result of that request.  More...

Announcements, Draft Policies and Plans

Victoria

VCAT Red Dot decision
Owen v Boroondara CC (Red Dot) [2021] VCAT 175 (5 March 2021) 
Application under section 82 of the Planning and Environment Act 1987 to review a decision to amend a permit.

Victoria’s Draft 30-Year Infrastructure Strategy
We have released Victoria’s Draft 30-Year Infrastructure Strategy and are inviting all Victorians to have their say. Community consultation ended on February 26, 2021. The final 30-year infrastructure strategy will be presented to the Victorian Government in mid-2021. To read the draft strategy, or participate in community consultation opportunities visit here.

Extension to the declaration of Surf Coast, Bellarine Peninsula and Bass Coast as distinctive areas and landscapes
The Governor in Council, under section 46AT(3) of the Planning and Environment Act 1987, has approved the extension of time required to prepare Statements of Planning Policy for Surf Coast, Bellarine Peninsula and Bass Coast for a further 12 month period.

NSW

NSW Clean Air Strategy 2021–30
The draft NSW Clean Air Strategy outlines the whole of NSW Government approach to improving air quality and minimising adverse effects on human health (18 March 2021).  More...

Land and Environment Court

NSW revenue: Extension to HomeBuilder grant
On 29 November 2020 the Australian Government Announced an extension to the HomeBuilder program until 31 March 2021.  More...

Have your say on changes to how building design and construction is regulated in NSW
The development of supporting regulations is the next step on delivering on this piece of the Government’s building reform agenda, with the scheme commencing on 1 July 2021. The Design and Building Practitioners Regulation commences on this date.  More...

Registrar general: Timetable to digital survey plans in NSW launched
Some important deliverables in the next 12 months are:
July 2021: Surveyors will be able to create survey plan workspaces in the NSW Land Registry Services (LRS) portal and pre-fill titling documents online
End of 2021: Move to 100 per cent online lodgment along with new NSW LRS portal tools that make it easier for surveyors to lodge digital survey plans.  More...

Registrar General: Strata and community title COVID-19 signing options extended
The Government has passed Regulations to extend temporary arrangements for strata and community schemes which allow alternative signing options during COVID-19. The changes, which permit a scheme to execute an instrument through signature rather than affixing the common seal, have been extended to 13 May 2021.  More...

NSW revenue: Land tax build to rent
The NSW Government is introducing a land tax discount for new build-to-rent housing projects until 2040 and a new Housing Diversity SEPP to provide more housing options, greater surety for renters, boost construction and support jobs during the COVID-19 recovery. Guidelines for the land tax reduction for build-to-rent properties can be read here).  More... 

Proposed SEPP amendment to allow outdoor dining pilot in Sydney CBD
City Of Sydney – The department is seeking your feedback on a proposed amendment to the Codes SEPP which will facilitate a simplified, streamlined process for small bars and pubs in the City of Sydney to have outdoor dining. The Outdoor Dining Trial will run from 30 October 2020 until 31 October 2021.  More...

Have your say on changes to how building design and construction is regulated in NSW
The development of supporting regulations is the next step on delivering on this piece of the Government’s building reform agenda, with the scheme commencing on 1 July 2021. The Design and Building Practitioners Regulation commences on this date.  More...

NSW Planning Department: Have your say – Draft plans and policies

Draft State Environmental Planning Policy Design and Place – on exhibition
Public comment is being invited on a proposed new Design and Place state policy. The Department of Planning, Industry and Environment has released an explanation of intended effect for a proposed new State Environmental Planning Policy for ‘Design and Place’. Submissions close 31 March.  More...

Planning amendments for agriculture
The department is proposing to simplify the planning process and approval pathways for those who wish to do small business activities, such as agritourism, and low-impact agricultural development on NSW farms. Submissions close on 19 April 2021.  More...

Queensland

DES prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.
March 2021 Prosecution bulletin no 3/2021

Build-to-Rent update - approved projects
The Queensland Government has approved two Brisbane-based affordable housing projects by developers following a Request for Detailed Proposals from shortlisted applicants from the Expression of Interest Phase of the Pilot Project. It is anticipated construction will commence mid-2021 following the finalisation of designs for the projects, with operations expected to commence in 2023.  More...

Consultations
Inland Rail – Border to Gowrie project – draft environmental impact statement. Closes 19 April 2021.

Cases

Victoria

Owen v Boroondara CC (Red Dot) [2021] VCAT 175
Application under section 82 of the Planning and Environment Act 1987 to review a decision to amend a permit
POTENTIAL GUIDELINE DECISION Law, Planning Scheme, Practice and Procedure and Analysis
LOCATION OF PASSAGE OF INTEREST Garden Area
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE LAW – issue of interpretation or application
Whether Clause 32.09-15 of the Boroondara Planning Scheme applies to application to amend permit. Whether Clause 32.09-4 of the Boroondara Planning Scheme applies and to what extent. Accrued rights are limited
LEGISLATION – interpretation or application of statutory provision Clause 32.09-4
PLANNING SCHEME – interpretation or consideration of VPP provision Garden Area
PRACTICE OR PROCEDURE – consideration of individual instance or systemic issues
Assessing garden area in circumstances where an amendment is sought to a planning permit granted prior to the introduction of the garden area provisions. ANALYSIS – exposition of how to assess an issue or matters to consider Garden area applies in such circumstances, subject to any accrued right.

NSW

J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23
CIVIL ENFORCEMENT – discharge of treated effluent from sewage treatment plant into creek – erosion of bank of creek – whether breach of planning or environmental laws – approval under Part 3A of Environmental Planning and Assessment Act 1979 – approval condition that proponent comply with statement of commitments – commitment not to cause degradation of bed or bank stability of creek – effect of statement of commitments – commitment breached – whether erosion is pollution of land – no land pollution established – condition of operating licence for sewage treatment plant to meet objectives of Sydney Water Act 1994 – effect of principal objectives and special objectives – no breach of operating licence TORTS – duty of care in relation to support for land under s 177 of the Conveyancing Act 1919 – whether bank erosion removed support – breach of duty of care – defence under s 43A of Civil Liability Act 2002 not established – defence of statutory authority not established – nuisance action not maintainable.

Penrith City Council v Dincel Construction System Pty Limited (No 5) [2021] NSWLEC 22
CIVIL PROCEDURE – judgments and orders – amending, varying and setting aside – correction under slip rule – Uniform Civil Procedure Rules – Rule 36.16 JUDGMENTS AND ORDERS – application for stay of operation COSTS – Party/Party – general rule that costs follow the event – application of the rule and discretion. Civil Procedure Act 2005 (NSW) ss 56, 67; Environmental Planning and Assessment Act 1979 (NSW) Div 9.3, ss 4.2, 4.3; Land and Environment Court Act 1979 (NSW) ss 22, 23; State Environmental Planning Policy (Western Sydney Employment Area) 2009.

Joint Venture Pty Ltd v Mid-Coast Council [2021] NSWLEC 1138
DEVELOPMENT APPEAL – Manufactured Home Estate – permissibility – innominate use – site contamination – Biodiversity Development Assessment Report – avoidance, mitigation and offsetting of impacts on flora and fauna – adequacy of biodiversity assessment – intensity of development – visual impact – reasonableness of impacts arising from the development – character – public interest – appeal dismissed – development refused.

Ingenia Communities Pty Ltd v Mid-Coast Council [2021] NSWLEC 1131
APPEAL – development application – alterations and additions to caravan park – consistency with zone objectives – contamination – access to services and facilities – displacement of tourist accommodation – density of the proposed development – whether the use for long term accommodation is particularly suitable due to the location and character of the land – amenity impacts – displacement of long term residents.

Vatera Pty Ltd v Lane Cove Council [2021] NSWLEC 1130
DEVELOPMENT APPLICATION – mixed use development – contravention of height of building standard – whether compliance is unreasonable or unnecessary in the circumstances of the case – whether proposed development in the public interest because it is consistent with the objectives of the particular standard.

CE Coogee Development Pty Ltd v Randwick City Council [2021] NSWLEC 1125
(1) The appeal is upheld.
MODIFICATION APLICATION – appeal against imposition of condition – whether substantially the same development – visual privacy – daylight and ventilation Architects Act 1921; Architects Act 2003.

Peric v Bayside Council [2021] NSWLEC 1128
DEVELOPMENT APPEAL – subdivision – character – semi-detached dwelling – orders.

Red Packet Investments Pty Ltd v Blue Mountains City Council [2021] NSWLEC 1126
DEVELOPMENT APPLICATION – construction of two new dwellings on adjacent blocks – alterations and additions to an existing building – whether requests to vary height development standards are well founded.

CE Coogee Development Pty Ltd v Randwick City Council [2021] NSWLEC 1125
MODIFICATION APLICATION – appeal against imposition of condition – whether substantially the same development – visual privacy – daylight and ventilation.

The Trustee for Leppington Central Investments Trust trading as Leppington Central Investments Pty Ltd v Liverpool City Council [2021] NSWLEC 1122
APPEAL – development application – residential subdivision – conciliation conference – agreement reached – orders made.

Voudouris v City of Parramatta Council [2021] NSWLEC 1118
DEVELOPMENT APPLICATION – childcare centre with basement parking – acoustic impacts and treatment – unencumbered outdoor play space – consistency with character and streetscape – basement and street parking.

CMH Design Pty Ltd t/a CM Hairis Architects v Randwick City Council [2021] NSWLEC 1117
DEVELOPMENT APPLICATION: roof top terrace – whether the development exceeds the floor space ratio standard – whether the roof terrace will create unreasonable impacts for adjoining neighbours – the reasonableness of the terrace – appeal upheld.

Johnson Property Group Pty Limited v Cessnock City Council; Mountview Grange 88 Pty Ltd v Cessnock City Council [2021] NSWLEC 1098
DEVELOPMENT APPLICATION – Bellbird North Urban Release area – integrated development – subdivision of land – deemed refusal – conditions of a kind allowed by a contributions plan – impacts on state roads.

Queensland

Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 15
PLANNING AND ENVIRONMENT – APPLICATION – Where the applicant was successful in obtaining a development approval granted by order of this Court on 17 October 2008, for staged sub-division of land at Burnside – Where that development approval has previously been changed by order of this Court on three occasions: On 29 April 2011, 24 June 2016 and 13 April 2017, with a result of 53 separately owned subdivided lots and a yet to be sub-divided balance lot – Where the applicant now seeks that the development approval be changed to facilitate the further staged subdivision of the balance lot – Where the application is considered to be for a “minor change” within the meaning of s 78A of the Planning Act 2016 – Whether the applicant has satisfied all of the requirements of s 79 of the Planning Act 2016 – Whether s 79(1A) of the Planning Act 2016 requires the consent of all the owners – Whether the 53 previously subdivided residential lots are “excluded premises” within the meaning of s 79(1A) and Schedule 2 of the Planning Act 2016 – Whether the application should be approved upon assessment pursuant to s 81 of the Planning Act 2016
Acts Interpretation Act 1954 Qld ss 14, 14B; Building Act 1975 Qld s 65; Integrated Planning Act 1997 Qld ss 3.5.33(3), 4.1.5A; Planning Act 2016 Qld ss 31, 35, 51, 73, 78, 78A(2), 79, 81, 84, 86, 280, Schedule 2
Planning and Environment Court Act 2016 Qld s 37; Planning Bill 2015 Qld; Sustainable Planning Act 2009 Qld ss 200, 245, 263, 367, 371, 379, 383, 440, 704.

Bond v Chief Executive, Department of Environment and Science [2021] QPEC 14
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – PROCEDURE - where the applicant is subject to an Environmental Protection Order as a “related person” under s363AD of the Environmental Protection Act (1994) – where the order required the applicant to lodge a bank Guarantee of $5,500,000 to secure compliance and to carry out specific rehabilitation works – where the operational period of the order has expired – where the rehabilitation works required by the order have been carried out pursuant to a Direction Notice issued to the Department of Natural Resources Mines and Energy
APPLICATION FOR STAY – where the applicant seeks a stay pursuant to s539B(2) of the Environmental Protection Act (1994) of the Environmental Protection Order to which he is subject– where the applicant submits that the stay is necessary to secure the effectiveness of an appeal to this court in relation to the making of the Environmental Protection Order – where a stay has been refused on two earlier occasions – whether “significant” new facts and circumstances have arisen which justify the further application for a stay being made – whether the interests of justice warrant a further hearing of the application – whether it is necessary on the facts to consider competing discretionary factors – whether the application amounts to an abuse of process
Environmental Protection Act 1994 Qld ss 535, 539B, 358, 363AD, 363AG.

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the Council refused an application to develop land for multiple dwellings – where the land was in the Low density residential zone – where the land had an area of 8,910 square metres – where the Council conceded that the proposed development does not create any adverse amenity or character consequences for the surrounding area – where the Council conceded that the development does not create any internal amenity issues or traffic issues that warrant its refusal – whether the proposed development was of a house scale – whether the proposed development was low density –whether the proposed development will deliver appropriately located infill development that furthers the planning goals in City Plan – whether the proposed development should be approved in the exercise of the planning discretion. Planning Act 2016 Qld ss 45, 59, 60; Planning and Environment Court Act 2016 Qld ss 43, 45, 47; Planning Regulation 2017 Qld s 31.

Legislation

Victoria

Acts
Date of assent: 16 March 2021
Constitution Amendment (Fracking Ban) Act 2021 (Vic)
Act Number: 8/2021

Statutory Rules
No 3 Residential Tenancies Regulations 2021
The Regulations use terms that apply from 29 March 2021. These are:
renters – currently called tenants
rental providers – currently called landlords
rental agreements – currently called tenancy agreements
rooming house operators – currently called rooming house owners.

NSW

Regulations and other miscellaneous instruments
Electricity Infrastructure Investment Regulation 2021 (2021-102) — published LW 12 March 2021
Environmental Planning and Assessment Amendment (Inland Rail) Order 2021 (2021-103) — published LW 12 March 2021
Environmental Planning and Assessment Amendment (Subdivision Certificates) Regulation 2021 (2021-104) — published LW 12 March 2021

Environmental Planning Instruments
State Environmental Planning Policy (Koala Habitat Protection) 2021 (2021-115) — published LW 17 March 2021
State Environmental Planning Policy (Western Sydney Aerotropolis) Amendment 2021 (2021-111) — published LW 12 March 2021

Bills introduced Government
COVID-19 Recovery Bill 2021
Local Government Amendment Bill 2021
Real Property Amendment (Certificates of Title) Bill 2021

Bills revised following amendment in Committee
Marine Pollution Amendment (Review) Bill 2021
Property Services Council Bill 2021

Bills passed by both Houses of Parliament
Community Land Development Bill 2021
Community Land Management Bill 2021
COVID-19 Legislation Amendment (Stronger Communities and Health) Bill 2021
Marine Pollution Amendment (Review) Bill 2021

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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