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Inside track: Property & Real Estate

03 December 2018

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Lack of network planning threatens Australia's renewable electricity future, expert warns
Huge renewable energy resources have been identified across Australia, but planning is lagging to develop a grid network suitable for the transformation that gives certainty to stakeholders (22 November 2018).  More...

Author and property spruiker Rick Otton fined record $18 million
A property spruiker who charged investors tens of thousands of dollars to learn “how to buy a house for $1” has been slapped with a record $18 million fine. The Federal Court handed down the penalty after finding last August that Rick Otton and his company We Buy Houses Pty Ltd had engaged in misleading and deceptive conduct (15 November 2018).  More...

The RBA is worried about the increased risk to property developers from tighter lending standards
The biggest risk to the Australian economy from tighter lending standards is not the impact on households, but rather property developers, according to Guy Debelle, Deputy Governor at RBA (15 November 2018).  More...

Metro Property and H&T Realty in court over defaulting apartments
Real estate agency H&T Realty is suing developer Metro Property Development over $4 million in off-the-plan apartment sales commissions. H&T, which sells apartments in Sydney, Melbourne and Brisbane, alleges Metro withheld commissions after blaming the agent for a 20 per cent to 25 per cent default rate at seven of its Brisbane projects (14 November 2018).  More...

Victoria

Fawkner residents lose fight on former Agent Orange site's development
A toxic site in Fawkner where the component parts of the deadly chemical Agent Orange were once manufactured and stored will be redeveloped, despite protests from locals concerned over contamination left in the soil for decades ( 25 November 2018).  More...

Melbourne's Festival Hall wins heritage protection, complicating redevelopment plans
An iconic 63-year-old Melbourne venue which has played host to The Beatles, Frank Sinatra and Lorde is given heritage protection, posing challenges to plans by its owners for a major redevelopment (21 November 2018).  More...

ISPT announce construction contractor for $200 million vertical campus
Developer ISPT has announced construction giant Probuild as the head contractor for the upcoming Victoria University City West Tower. Victoria University is expanding their CBD presence in order to provide industry-best learning spaces (21 November 2018).  More...

Wodonga’s first cinema complex at Junction Place gets green light
Construction of Wodonga’s first cinema and entertainment complex will commence at Junction Place in mid-2019, following approval of the plans by the City of Wodonga (20 November 2018).  More...

New South Wales

New laws to protect off-the-plan buyers
Developer's selling off the plan will now be accountable for contract breaches and compensation claims with a string of new laws aiming to further protect buyers (16 November 2018).  More...

Queensland

Brisbane developer plans $83m Sunshine Coast towers
Habitat Development Group will deliver a $83 million plan for two towers as part of the new Maroochydore city centre. Habitat is currently preparing designs for lodgement with Economic Development Queensland for its project (22 November 2018).  More...

Brisbane’s first high rise school
Construction has kicked-off on Queensland’s first vertical school set to call Brisbane’s city-fringe suburb of Fortitude Valley home (14 November 2018).  More...

Gladstone port plan an Australian first
A master plan to ensure the long-term growth of the Port of Gladstone and protect the Great Barrier Reef is being hailed an Australian first (12 November 2018).  More...

In practice and courts

Commonwealth

Draft native title reforms
The Attorney-General and the Minister for Indigenous Affairs on 30 October 2018 released exposure drafts of the Native Title Legislation Amendment Bill 2018 and Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018. Copies of the exposure draft legislation, along with a public consultation paper and fact sheets summarising the proposed amendments are available here. Submissions should be provided by 10 December 2018.

Victoria

SRO reminder: Declaring properties that are vacant in 2018
Homes left unoccupied for more than six months a year, which are located in 16 specified council areas, attract vacant residential land tax. If you own a property in one of these council areas and it will be unoccupied for six months or more in 2018, you can notify us here. Notifications are due by 15 January 2019.

Cases

Victoria

Secretary to the Department of Economic Development, Jobs, Transport and Resources v Caradi Pty Ltd [2018] VSC 696
LAND ACQUISITION AND COMPENSATION – Compulsory acquisition of the whole of land for the Melbourne Convention Centre Development – Market value of the land at the date of acquisition – Comparability of sales – The use of sales evidence which occurred after the date of acquisition – Land purchased as a long term real estate investment – Impact of remediation costs – Effect on the highest and best use of the land – Claim for disturbance – Whether applicant entitled to compensation for replacement land costs where replacement land has not been purchased – Claim for professional expenses – Claim for solatium – Land Acquisition and Compensation Act 1986 ss 40, 41(1)(d), 41(1)(f), 44 – Valuation of Land Act 1960 s 5A.

631 Plenty Road Preston Pty Ltd v Darebin CC (Red Dot) [2018] VCAT 1849
Interpretation of Standard D24 of clause 58.07-1 which relates to functional layout objectives.
LOCATION OF PASSAGE OF INTEREST Paragraphs 65 - 96
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE PLANNING SCHEME – interpretation or consideration of VPP provision - Interpretation of Standard D24 of clause 58.07.

Boyles v Greater Bendigo CC [2018] VCAT 1815
Section 80 of the Planning and Environment Act 1987; Greater Bendigo Planning Scheme; Animal Boarding; Amenity Impacts; Noise, Clause 22.07; Rural Living Zone; Visual Bulk; Business identification sign in rural area and Native vegetation removal.

MAAG Developments Pty Ltd v Oxanda Childcare Pty Ltd [2018] VSCA 289
LEASES – Construction and interpretation – Applicant purchased land from related company of respondent and respondent agreed to lease land from applicant – Land to be used to build childcare centre run by respondent – Council approvals required to build childcare centre – Termination clause in agreement for lease gave either party right to terminate at certain date if: (1) approvals not obtained; and (2) settlement of sale of land not yet occurred (‘failure to settle requirement’) – Contractual scheme inconsistent with failure to settle requirement, as parties intended settlement of land to occur at same time as execution of agreement for lease – Termination clause with failure to settle requirement inconsistent with contractual intention – Whether failure to settle requirement surplus words to be ignored – Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 applied; Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 considered – Appeal allowed. APPEALS – Whether applicant able to raise new argument not expressly put to trial judge – Where basis of new argument was before trial judge – Where new argument as to contract interpretation a question of law only – Where no prejudice identified by respondent – Applicant permitted to raise argument on appeal.

Bonney v Mornington Peninsula SC [2018] VCAT 1749
Section 82 of the Planning & Environment Act 1987; Mornington Peninsula Planning Scheme;
Addition to a dwelling (Amendment to a permit): GRZ1; DDO2; VPO1 – Off-site amenity impacts (shared views)

Queensland

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52
PLANNING AND ENVIRONMENT – APPLICATION – where applicant seeks a declaration and enforcement orders about the use of premises for overnight parking of RVs in a public park – where applicant contends the start of the use is a new use and constitutes assessable development requiring an effective development permit – where applicant contends use is a not a lawful use – where respondent contends the use is an ancillary use for which no development permit is required – whether a development offence has been committed under ss.163 and 165(a) of the Planning Act 2016 – whether enforcement orders should be granted restraining the commission of a development offence.

McVicker & Anor v Valuer General [2018] QLC 43
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – Queensland – where site value is the basis of valuation – where the highest and best use of the land is not in dispute – direct comparison of sales is the best method of valuation – onus of proof on the appellants

Tseng v Valuer-General [2018] QLC 42
REAL PROPERTY – VALUATION OF LAND – METHOD OF ASSESSING – SALE OF SUBJECT – whether sale to appellant was bona fide – prudent purchaser – limited enquiries – motivation of purchaser – proposed use not feasible – purchase not for highest and best use – rural zoning – clearing permit not granted – sale not accepted as evidence of value – Spencer Test – Land Valuation Act s 18.
REAL PROPERTY – VALUATION OF LAND – METHOD OF ASSESSING – VEGETATION PROTECTION ORDER – order imposed after sale – native vegetation on land at valuation date – highest and best use – vegetation clearing not permitted – mango orchard not feasible – rural home site – impact on unimproved value – no evidentiary basis to correct unimproved value.
REAL PROPERTY – VALUATION OF LAND ¬ METHOD OF ASSESSING ¬ unimproved value – availability of water, sewerage and stormwater to subject land – assumed unimproved state – no evidence of connection costs – use of comparable sale to correctly make valuation – no basis to correct unimproved value – Land Valuation Act s 170.
REAL PROPERTY – VALUATION OF LAND – METHOD OF ASSESSING – unimproved value – drainage easement on subject land – valuation date – impact of easement use – no basis demonstrated to correct unimproved value.
REAL PROPERTY – VALUATION OF LAND – METHOD OF ASSESSING – unimproved value—comparability – comparison of sales – whether similarly affected – impact of arterial road – impact of flooding – location and surrounding amenity – adjustment to sales – analysed unimproved value – issued value – speaking report and reasoning – lack of comparability – all sales superior to subject – reduction to issued value necessary to correctly make valuation.
REAL PROPERTY – VALUATION OF LAND – METHOD OF ASSESSING – unimproved value – impact of flooding – comparison of sales – basis of comparison – similar flooding issues – extent of flooding on subject – sales not comparable – inadequate allowance on subject – reduction necessary to correctly make valuation.
PRACTICE AND PROCEDURE – FURTHER EVIDENCE hearing and submissions completed – no formal application to reopen hearing – generally inappropriate for Court to consider unless leave given – do interests of justice require further evidence to be received – would evidence affect outcome of appeals.
Land Valuation Act 2010 Qld; Local Government Act 2009 Qld.

Contacts:

Melbourne
Chris Lovell, Chairman
T: +61 3 9321 9832
E: chris.lovell@holdingredlich.com

Lou Farinotti, Senior Partner
T: +61 3 9321 9861
E: lou.farinotti@holdingredlich.com

Chris Brodrick, Partner
T: +61 3 9321 9804
E: christopher.brodrick@holdingredlich.com

Lisa Cody, Partner
T: +61 3 9321 9872
E: lisa.cody@holdingredlich.com

Richard Skopal, Partner 
T: +61 3 9321 9866
E: richard.skopal@holdingredlich.com

Joseph Monaghan, Partner 
T: +61 3 9321 9857
E: joseph.monaghan@holdingredlich.com

Sydney
Robina Kidd, Partner
T: +61 2 8083 0454
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner
T: +61 2 8083 0462
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner
T: +61 2 8083 0461
E: cameron.sheather@holdingredlich.com

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

Brisbane
Ron Eames, Partner
T: +61 7 3135 0629
E: ron.eames@holdingredlich.com

Katie Miller, Partner
T: +61 7 3135 0606
E: katie.miller@holdingredlich.com

Peter Nugent, Partner
T: +61 7 3135 0632
E: peter.nugent@holdingredlich.com

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

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.


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