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Inside track: Property & Real Estate

03 November 2021

#Property, Planning & Development

Inside track: Property & Real Estate

In the media

Commonwealth

Consortium breaks retail record with $2.2bn acquisition
A consortium including UniSuper, Cbus Property and the AMP Capital Finance has shattered the record for Australia’s largest retail transaction, picking up stakes in two nationally recognised shopping centres in Sydney and the Gold Coast (21 October 2021).  More...

Green buildings worth more to investors
The greener the building, the more it is worth. That is the key finding from Knight Frank’s new Active Capital Report, which also forecasts 2022 will be a record year for global cross-border commercial real estate investment (21 October 2021).  More...

How to navigate ESG products to build a greener portfolio
Wading into environmentally responsible investment products can be a minefield and, with this corner of the investment industry still in its infancy, it is a real challenge for investors to build diversified portfolios that fully meet expectations (12 October 2021).  More...

Pallas courts Build-to-Rent with tax relief sweetener
Build-to-rent developments will be exempted from absentee owner surcharges for up to 30 years under changes unveiled by the Victorian government in an effort to bolster the burgeoning sector (12 October 2021).  More...

Victoria

Creating more rental housing choices for Victorians
The Victorian Government is continuing to ensure more people have the safety, security and stability of a home, thanks to new incentives for investors to build rental properties (12 October 2021).  More...

More than a thousand homes bought for Victorians
The Victorian Government’s historic Big Housing Build is stimulating the Victorian economy, generating more than $1 billion in construction and development activity – creating 356 direct jobs and 1,246 indirect jobs (10 October 2021).  More...

NSW

Façade experts appointed for cladding removal program
Australian engineering firm ACOR Consultants has been appointed the Global Façade Consultant for Project Remediate, the NSW Government’s landmark program to remove flammable cladding from high-risk residential apartment buildings (22 October 2021).  More...

NSW shows it can be done: Building starts rise thanks to Homebuilder in first half of 2021
The flow of new approvals increased in NSW in the first half of 2021, but it still did not keep pace with the demand from the property development community or the demand from new home buyers (13 October 2021).  More...

Record low rent collection as NSW reopens
Retail landlords in NSW have pocketed just over half of the rent owed in September, highlighting the deep hit to the sector due to prolonged shutdowns—and the long road to recovery (11 October 2021).  More...

Queensland

Monaco, polites plan $100m rRunaway Bay tower
The residential market at Runaway Bay is heating up with plans for a $100-million, 31-storey tower and three villas filed by Monaco Property Group and Polites Property Group (21 October 2021).  More...

New dual tower development proposed for 26 Balaclava Street, Woolloongabba
A development application has been submitted by GENC Investments Pty Ltd for the construction of two 20 storey residential buildings located at 26 Balaclava St, Woolloongabba. While the towers themselves have increased slightly in height, the overall density has decreased by two apartments to 240 in total. The updated application also proposes to convert a quarter of the dwellings within the development to be short term accommodation (19 October 2021).  More...

Farmers turn reef action into income
A unique collaboration between the Palaszczuk Government, business and landholders is seeing Queensland farmers earn additional income and prevent 18,000kg of nitrogen from reaching the Great Barrier Reef (15 October 2021).  More...

Queensland schools bypass communities by asking state to approve expansion plans
In a growing trend, schools are seeking development approval from the state rather than councils, and one community group is concerned that noise and congestion issues are being ignored (15 October 2021).  More...

Queensland World Heritage national park expanded
Close to 6,300 hectares of land south-west of Brisbane will be protected with the Palaszczuk Government announcing the expansion of a World Heritage-listed national park and the creation of a new conservation estate (14 October 2021).  More...

Rental reform legislation passes Parliament
Legislation to make renting fairer has passed Queensland’s Parliament. The new laws would end ‘without grounds’ evictions, make it easier for Queensland renters to keep a pet and extend protections for renters who have experienced domestic and family violence (14 October 2021).  More...

Application submitted for $300 million surf resort at Parkwood
A development application has been lodged by Parkwood Golf Club for a large $300 million ‘Integrated Surf Park Village’ located at the Parkwood International Golf Course on the Gold Coast (13 October 2021).  More...

In Practice and Courts

Commonwealth

API: ACCC authorisation
To ensure we continue to set high standards of professional behaviour and have a range of powers to impose certain membership requirements and sanctions on any Member who has been found guilty of professional misconduct, we have conducted an extensive review and refinement of our complaints and disciplinary framework. Effective 16 September, after receiving final ACCC approval, we now have in place a new modern suite of Professional Conduct policies, oversight practices and procedures. Please click here to see the new suite of policies.

ABCB: Residential Energy Efficiency Consultation RIS now open for comment
We are now seeking comment on a CRIS providing an analysis of proposed amendments to the residential energy efficiency provisions included in stage 2 of NCC 2022 public comment draft. The CRIS will be available for comment until 7 November 2021.  More...

GBCA: Registrations for Green Star – Design & As Built close 17 December 2021
At the time of launch we announced a transition period: Whereby applicants could register projects using either Green Star – Design & As Built, or Green Star Buildings. This transition period ends on 17 December 2021 and applicants will no longer be able to register their projects under Green Star – Design & As Built (21 October 2021).  More...

Australian Heritage Grants 2021-22 are open
Grants totalling $5.3 million are now available for projects that protect Australia’s rich tapestry of cultural, natural and historic heritage sites. Applications for Round 4 of the Australian Heritage Grants are open until 28 October 2021.  More...

LPLC - We've updated our Tax Checklist
Practitioners who deal with conveyancing matters need to be both aware of tax issues in this area of law, and actively keep up to date with new developments.
LPLC has a dedicated webpage for all resources and publications relating to property tax. Including our recent articles and flowcharts about duty. We have updated our Tax issues checklist with more detail about foreign person additional duty surcharge, and extra duty where there is land development and nominations (October 2021).

Victorian Homebuyer Fund – October 2021
You may be eligible to receive a contribution of up to 25 per cent of the purchase price of your home. Go to the Homebuyer Fund webpage for eligibility criteria, how to apply, participating lenders, case studies that illustrate how the scheme works over time, eligible locations, FAQs and much more..

SRO: Proposed land tax discount for build-to-rent projects
It is proposed that eligible build-to-rent developments may be able to receive a 50 per cent discount on the taxable value of the land for up to 30 years. The SRO website will be updated with further information once the measure becomes law. In the meantime, please refer to the Department of Treasury and Finance website for more information (12 October 2021).

Announcements, Draft Policies and Plans released 2021

NSW

NSW Revenue: 2021 land tax COVID-19 relief - Guidelines (1 July 2021 – 1 December 2021)
The NSW Government has introduced measures to provide relief to commercial and residential landowners, 1 July 2021 - 31 December 2021.  More...

Queensland

PCA Submissions

Draft State Infrastructure Strategy
The Property Council has provided feedback on the Draft State Infrastructure. In the submission, the Property Council reinforces the importance of delivering crucial infrastructure to maximise the opportunity presented by the 2032 Olympic Games. To read the submission, please click here (14 October 2021).

Amendment of Planning Regulation 2017
The Department of State Development, Infrastructure, Local Government and Planning has advised that the Planning Regulation 2017 was amended on 17 September by the Planning Amendment Regulation (No.1) 2021.
The amendments: Extend the expiry date of the economic support instrument provisions by 12 months until 17 September 2022 make several minor changes to increase the efficiency of the Planning Regulation. These clarify provisions relating to the content of planning and development certificates and referral agency requirements for end-of-trip facilities.

City of the Gold Coast: Express DA Service
As part of the City’s economic support during COVID-19, the City is offering a 50 per cent discount on Express DAs for 12 months (from 27 October 2020 to 27 October 2021).  More...

Rockhampton Regional Council expands development incentives policy
Rockhampton Regional Council has expanded its development incentives policy to include multi-residential unit developments within close proximity to the CBD. The policy will apply to DA’s lodged between 1 January 2021 and 31 December 2021.  More...

DAAMs planning and mapping updates
13 October 2021 - Planned upgrade for state-controlled road
The 'planned upgrade for state-controlled mapping' layer has been updated to: Alter existing planned upgrade state-controlled roads; add new planned upgrade state-controlled roads; remove previous planned upgrade state-controlled roads. DTMR DAMS.  More...

DSD consultations
Inland Rail – Gowrie to Helidon project – draft environmental impact statement 25 October 2021

Cases

The Trust Company (Australia) Limited as trustee of the ALE Direct Property Trust v Australian Leisure and Hospitality Group Pty Limited [2021] VSC 670
LEASE – hotels with gaming machines – valuation – profits method – whether valuer erred in determining fair rent for premises – matters to be taken into consideration in determining fair rent – whether valuer erred in taking into account submissions as to confidential trading information provided by tenant – whether valuation made in accordance with lease and valuation methodology in lease – effects of non-compliance with instructions by expert valuer – Ricciardello v Caltex Oil (Australia) Pty Ltd [1991] ANZ ConvR 445; Veba Oil Supply & Trading GmbH v Petrotrade Inc [2001] EWCA Civ 1832; [2002] 1 All ER 703.

Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284
ADMINISTRATIVE LAW – application for leave to appeal the decision of trial judge with respect to appeal on question of law – application at first instance for leave to appeal decision of Victorian Civil and Administrative Tribunal granting planning permit for use of land as life saving club, multi-purpose function space, and café – whether powers and restrictions imposed by An Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877 (Vic) (Vesting Act) on land owner were required to be taken into account in Tribunal’s review of a decision under the Planning and Environment Act 1987 about land the subject of the Vesting Act – whether trial judge erred in concluding the Tribunal was not required to consider the effect of the Vesting Act in reaching its decision as to whether a planning permit should be granted for the proposed uses – whether mandatory consideration – whether open to Tribunal to conclude that proposed uses will be ancillary to use of the land as a place of public resort or recreation – whether trial judge erred in analysis of application of the Vesting Act to the proposed uses by presupposing that the respondent Council had the power to lease part of the subject land; by accepting that the proposed uses might be permissible as incidental or ancillary uses to the use of the land subject to the Vesting Act as a ‘place of public resort or recreation’; in failing to have proper regard to whether any monetary profits to arise from the proposed uses would be devoted to the public purpose contemplated by the Vesting Act – leave to appeal refused – City of Dandenong v Woolley (1983) 57 LGRA 315, Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54, Municipal Council of Mosman v Spain [1929] NSWStRp 45; (1929) 29 SR (NSW) 492, Trustees of Royal Botanic Gardens and Government Domain v Sydney City Council (1965) 11 LGRA 407, Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 139 CLR 633 considered; Walker v Shire of Flinders [1984] VicRp 33; [1984] VR 409, Storey v North Sydney Municipal Council [1970] HCA 44; (1970) 123 CLR 574, Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 distinguished – an Act to vest land in the Mayor Councillors and Burgesses of the Borough of Brighton for purposes of Public Recreation 1877, Local Government Act 1874 s 483, Planning and Environment Act 1987 ss 60(1), 60(1A), 84B(1), 84B(2), Victorian Civil and Administrative Tribunal Act 1998 s 148.

Riverside Development Pty Ltd v Brisbane City Council & Ors [2021] QPEC 56
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – where applicant seeks orders for further disclosure – whether documents sought are directly relevant to an issue in dispute – whether order for further disclosure should be made.
Planning & Environment Court Rules 2018 QLD r 4; Uniform Civil Procedure Rules 1999 QLD rr 209, 211 and 223

Sunshine Coast Regional Council v Dwyer [2021] QPEC 53
COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where an enforcement order was made in the Planning and Environment Court – where the order required the removal or demolition of rooftop structures – where the order required the rooftop to be restored to an earlier condition – whether and to what extent the respondent has not complied with the enforcement order – whether the respondent had a lawful excuse – whether the respondent is in contempt of the enforcement order
PLANNING AND ENVIRONMENT – PROCEDURE – ORDERS – VARYING AND STAYING – EXTENSION OF TIME TO COMPLY – where an enforcement order was made in the Planning and Environment Court – where there has not been compliance with the whole of the order – where there is a pending development application for the approval of some of the structures the subject of the enforcement order – whether the order should be varied to defer or delay its effect

Breeze Mr Pty Ltd v Body Corporate for Bay Village [2021] QSC 263
PRINCIPLES – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – DECLARATIONS – JURISDICTION – GENERALLY – where the respondent is a body corporate – where the respondent assigned a management agreement to the applicant – where the management agreement provided for the agreement could be terminated – where the respondent purported to terminate the management agreement without ordinary resolution in general meeting – where the applicant has brought an application in Supreme Court seeking declaration that termination of no force and effect – where the respondent argues QCAT has exclusive jurisdiction – where the Body Corporate and Community Management Act 1997 (Qld) provides that disputes which are not complex dispute must be resolved by a dispute resolution process or order of the Appeal Tribunal – whether this is a dispute under the provisions whether the Supreme Court has jurisdiction to determine the application – whether this was a “dispute” for the purposes of the exclusivity of dispute resolution provisions of the Body Corporate and Community Management Act 1997 (Qld)
REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – GENERALLY – where respondent body corporate purported to terminate a service contractor without ordinary resolution in general meeting – whether this was a valid termination pursuant to s 100 of the Body Corporate and Community Management (Commercial Module) Regulation 2020 (Qld) – whether this was a decision on a “restricted issue” under the Regulation – whether the purported termination should be declared of no force and effect
Body Corporate and Community Management Act 1997 Qld s 15, s 100, s 226, s 227, s 229
Body Corporate and Community Management (Commercial Module) Regulation 2020 Qld s 17, s 99, s 100

Cases to 18 October 2021

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 54
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – COSTS – where relief sought in substantive proceeding concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where originating application dismissed – where respondents to substantial proceeding sought costs – whether costs should be awarded under s 60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis
Planning Act 2016 QLD s 60; Planning and Environment Court Act 2016 QLD s 11, 59, 60; Sustainable Planning Act 2009 QLD s 457 

Dunlop & Anor v Body Corporate for Port Douglas Queenslander CTS 886 & Ors (No 2) [2021] QSC 265
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – OTHERWISE AN ABUSE OF PROCESS – where the first respondent defendant was a body corporate which terminated letting and caretaking agreements with the first applicant plaintiff – where the body corporate’s committee members and its solicitor were included as defendants – where the first plaintiff seeks damages for breach of contract as against the first defendant only – where both the first and second plaintiffs seek damages pursuant to s 236 Australian Consumer Law (Schedule 2 Competition and Consumer Act) 2010 (Cth) against all six defendants – where the contravening conduct is said to be the making of “representations” by the second to fifth defendants and giving of “advice” by the sixth defendant, respectively constituting misleading or deceptive conduct or false or misleading conduct contrary to ss 18(1) and 37(1) Australian Consumer Law – where the defendants advance an application to strike out paragraphs of the Further Further Amended Statement of Claim – whether the Further Further Amended Statement of Claim adequately pleads material facts in support of the allegation that the first to fifth defendants were acting trade or commerce – whether the parts of the Further Further Amended Statement of Claim which pleads the first to fifth defendants were acting in trade or commerce should be struck out pursuant to r 171(1)(a) and (e) Uniform Civil Procedure Rules 1999 (Qld) on the basis they disclose no reasonable cause of action or are otherwise an abuse of process
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – OTHERWISE AN ABUSE OF PROCESS – where the defendants advance an application to strike out paragraphs of the Further Further Amended Statement of Claim – whether the Further Further Amended Statement of Claim adequately pleads material facts as to how the conduct of the second to sixth defendants caused loss – whether the parts of the Further Further Amended Statement of Claim which pleads the advice and representations were misleading, deceptive or false conduct and which pleads the causal consequences of that conduct should be struck out pursuant to r 171(1)(a) and (e) Uniform Civil Procedure Rules 1999 (Qld) on the basis they disclose no reasonable cause of action or are otherwise an abuse of process
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – OTHERWISE AN ABUSE OF PROCESS – where the defendants advance an application to strike out paragraphs of the Further Further Amended Statement of Claim – whether the Further Further Amended Statement of Claim adequately pleads material facts in support of the causation of damages for lost opportunity –whether the parts of the Further Further Amended Statement of Claim which plead the liability of all defendants to each plaintiff for damages under s 236 of the Australian Consumer Law as well as the second plaintiff’s entitlement to interest should be struck out pursuant to r 171(1)(a) and (e) Uniform Civil Procedure Rules 1999 (Qld) on the basis they disclose no reasonable cause of action or are otherwise an abuse of process
Australian Consumer Law (Schedule 2 Competition and Consumer Act) 2010 Cth s 18(1), s 37(1), s 236
Body Corporate and Community Management (Accommodation Module) Regulation 2008 QLD s 8, s 128(1)(c)
Body Corporate and Community Management Act 1997 QLD s 96, s 100(1)

Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 52
PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse an application for a material change of use comprising an extractive industry, concrete batching plant and environmentally relevant activity – whether the development is a single planning unit – whether the development will have unacceptable visual amenity and character impacts – whether the development will have unacceptable noise impacts – whether the development will have sufficient access to water – whether operational characteristics of the development warrant refusal – whether the development complies with the respondent’s 2005 planning scheme – the weight to be given to the respondent’s 2016 planning scheme – whether the development complies with the respondent’s 2016 planning scheme – whether there is a town planning, community, and economic need for the development – whether there are discretionary matters that support approval – whether the planning discretion should be exercised in favour of approval. Planning Act 2016 QLD ss 45, 59 and 60; Planning and Environment Court Act 2016 QLD ss 43, 45 and 46; Water Act 2000 QLD s 119

Landel Pty Ltd & Anor v Insurance Australia Ltd [2021] QSC 247
INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – CONDITIONS, WARRANTIES AND EXCEPTIONS – FLOOD DAMAGE – where the plaintiffs owned a shopping centre that was inundated by floodwater – where the defendant insured the plaintiffs under an industrial special risks policy – where the insurance policy contained a perils exclusion which operated to limit the insurer’s liability to the plaintiff for flood damage to $250,000 – where the flood exclusion applied to “damage occasioned by or happening through flood” – where “occasioned by or happening through” provided for a wide causal relationship
INSURANCE – THE POLICY – PRINCIPLES OF CONSTRUCTION – causation of damage – application of Wayne Tank principles – where various water sources contributed to the inundation – where defendant insurer proved there was a single, proximate cause of the loss or damage caused by inundation to the shopping centre
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where the cause of the inundation was the subject of expert evidence of water and flood engineers – where the expert witnesses conferred with one another before expert reports were written – where two experts called by the defendant gave evidence on the same subject – where leave was not given under rule 423 of the Uniform Civil Procedure Rules – where expert witness was asked to adjudicate on reports of other expert witnesses – where expert witness briefed with matters pertaining to legal issues – role of lawyers in editing expert reports for Court – where expert witnesses undertook work before formal written instructions were given

Gavin & Anor v Sunshine Coast Regional Council [2021] QCA 217
ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the applicants constructed a building which was used contrary to s 162 and s 165 of the Planning Act 2016 (Qld) – where the building was used as an “accommodation building” instead of a “dwelling house” – where the Planning and Environment Court made orders to prevent further unlawful use of the building including orders compelling significant changes to the building – whether the orders were within power of the Planning and Environment Court
Planning Act 2016 Qld s 162, s 165, s 180; Planning and Environment Court Act 2016 Qld s 63

Legislation

Climate Change (National Framework for Adaptation and Mitigation) (Consequential and Transitional Provisions) Bill 2021
Introduced HR 18/10/2021 - The Climate Change (National Framework for Adaptation and Mitigation) Bill 2021 (Substantive Bill) sets out a clear framework for national plans for protection and prosperity as our climate changes, and for progress to be rigorously monitored and reported.

Queensland

Bills

Acts – 20 October 2021
No 18 Resources and Other Legislation Amendment Act 2021
No 19 Housing Legislation Amendment Act 2021
Amends the Residential Tenancies and Rooming Accommodation Act 2008.

Subordinate legislation as made – 15 October 2021
No 154 Survey and Mapping Infrastructure (Survey Standards) Notice 2021
No 155 Queen’s Wharf Brisbane (Relevant Entity) Declaration 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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