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Inside track: Planning, Environment and Sustainability

30 April 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment and Sustainability

In the media

Debugging watergate: interpreting official responses
The Australia Institute has released analysis of official responses to the Watergate scandal surrounding Murray Darling water purchases, covered by The Project, Guardian and other outlets. The analysis finds that official responses are misleading and in some cases incorrect (21 April 2019). More...

Queensland's property developer donation ban is valid
The High Court has ruled Queensland laws banning property developers from donating to political parties and candidates are valid. The Palaszczuk Labor government passed laws last year, backdated until before the 2017 Queensland election, banning property developers from donating money to state and local government politicians, candidates and parties (17 April 2019). More...

Animal rights group Aussie Farms faces crackdown after nationwide protests
The attorney general has asked the privacy commissioner to investigate Aussie Farms and called on states to increase trespass penalties in response to the animal rights group (08 April 2019). More...

Australia's current building compliance issues
With the Lacrosse fire in Melbourne, the Opal Tower scenario in Sydney, along with other fires and building safety and defect issues in buildings in Australia and overseas, we are increasingly seeing that prior to the drama occurring, the problems or potential problems with the building were known (18 April 2019). More...

NABERS releases strategic plan
NABERS announces the release of our five-year strategic plan following a successful consultation period and endorsement by the NABERS Steering Committee (18 April 2019). More...

The ultimate challenge for sustainable building
A push to net zero carbon buildings is among the raft of changes proposed in the next evolution of the Green Building Council of Australia’s Green Star system (10 April 2019). More...


Dead livestock odour leads to George Weston Foods fine
A food processing company has been fined $8,060 after Environment Protection Authority Victoria (EPA) discovered that that they failed to comply with a notice for the company’s Girgarre piggery requiring environmental controls around deceased animals composting on open ground with no controls to prevent impacts to stormwater and groundwater (17 April 2019). More...

Church to sell head office for hotel development
The Uniting Church in Melbourne will offload its block in Little Collins Street after finally being granted a planning permit by council (17 April 2019). More...

New electronic tracking system for waste sector
Chemical waste will be electronically monitored from July this year under an Andrews Labor Government crackdown on the illegal storage of hazardous material. A new integrated waste tracking tool, with improved data analytics and reporting, will also be developed over the next 12 months to deliver insights on sector activity, trends and highlight potential illegal activity (15 April 2019). More...

Community to have their say on North East Link
The planning approvals process for Victoria’s biggest road project has started, with an Environment Effects Statement (EES) for North East Link now out for public comment. The Andrews Labor Government is working to support potentially impacted residents, businesses, sports clubs and community groups when delivering the long-awaited project (10 April 2019). More...

Dozens of homes, 102 businesses to go to make way for Melbourne road
Dozens of homes and more than 100 businesses will be compulsorily acquired to make way for Melbourne's $16 billion North East Link, but the Victorian Government says some properties that were likely to go have been saved (10 April 2019) More... 

Geelong recycler told to stop accepting combustible timber waste
An alleged failure by Geelong recycler NATJON Pty Ltd to meet the requirements of the Victoria Waste Management Policy (Combustible Recyclable and Waste Materials) has seen Environment Protection Authority Victoria (EPA) issue the company a notice that requires it to immediately stop accepting combustible recycling materials (09 April 2019). More... 


Poly wins approval for 620 apartments in Sydney
Developer Poly Australia has won approval for more than $260 million of residential projects in one day, with its Bankstown RSL redevelopment and Stanley Street Kogarah project getting the green light from the Sydney South Planning Panel (12 April 2019). More...

'This changes everything': System displays new DAs in real-time
The public will now be able to view a development application less than a day after it is lodged with a local council, rather than having to wait six to 18 months. The government has been trialling a new online tool called ePlanning, which requires homeowners and developers to submit DAs online (22 April 2019). More...

Brothers who claimed 'exemption' from law fined $100,000 for contempt
The NSW Land and Environment Court heard Mustapha Kara-Ali and his brother Diaa Kara-Ali had a "religious issue with the court" and had ignored court orders to cease construction at a site in Colo in north-west Sydney, for which they did not have development consent (18 April 2019). More...

World-first relocatable solar pods power up commercial rooftops
Solpod today launches a potential game changer in commercial solar PV. Substantially funded by ARENA, supported by energy retailer, ERM Power, and trialling across 25 shopping centres and NSW Government sites, this innovation has the legs to go global (12 April 2019). More...


It is now law – landholders to be reimbursed during negotiations
Queensland landholders can be reimbursed for out of pocket expenses incurred in negotiating conduct and compensation agreements with a resource company - as of April 19 - regardless of whether or not an agreement is reached (19 April 2019). More...

New lord mayor scraps the Mount Coot-tha zipline
Brisbane City Council's controversial Mt Coot-tha zipline project has been terminated by lord mayor Adrian Schrinner, ending months of protest and community concern (11 April 2019). More...

In Practice and Courts


Grattan Institute: Commonwealth Orange Book 2019: policy priorities for the federal government
This report rates Australia’s performance against similar countries and proposes policy reforms for schools and universities, hospitals and housing, roads and railways, cities and regions, budgets and taxes, retirement incomes, and climate change (16 April 2019). More...

Announcements, Draft Policies and Plans released 2019


Environment effects statement (EES) for North East Link: public comment
An Environment Effects Statement (EES) has been released for the North East Link Project and is now open for public submissions, closing on 7 June 2019. The EES also includes a Draft Planning Scheme Amendment and a Works Approval Application for the construction of the tunnel ventilation system. More...

Bushfire Prone Area (BPA) map updated
The Minister for Planning has made a determination that the BPA will be removed from certain areas in 19 municipalities, effective Thursday 4 April 2019. The updated map can be viewed at VicPlan and Land Vic (11 April 2019).


Community participation plan updated FAQs
The Environmental Planning and Assessment Act 1979 has been updated to make community participation central to the planning system. Supporting this objective is a new measure requiring all public authorities that have planning functions under the EP&A Act, including councils, to develop community participation plan (CPP). CPPs must be finalised and published on the ePlanning portal by 1 December 2019. The link to the FAQs is here.

Changes to housing SEPPs
Seniors Housing State Environmental Planning Policy – the SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020.


Accessing private land for resource activities: Guide
Before entering private land to carry out authorised activities, resource companies must comply with land access laws and follow set procedures to gain access. There are also special requirements that restrict access around certain buildings, structures and areas (18 April 2019). More...

Department of Environment and Science
The Queensland Government is undertaking a comprehensive review of the Queensland environmental offsets framework. More...


Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60
ENVIRONMENT LAW — application for judicial review of a referral decision made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — where the second respondent lodged a proposal with the Department of Environment and Energy to farm Atlantic salmon on an existing marine lease — where a delegate of the Minister for Environment and Energy decided under s 75 of the Act that the proposed action was not a “controlled action” if undertaken in a “particular manner” within the meaning of s 77A of the Act — where the delegate issued a written notice under s 77(1) of the Act and a statement of reasons under s 77(4) of the Act — where the delegate provided the statement of reasons to the appellants in accordance with s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
ENVIRONMENT LAW — whether the primary judge erred in finding that the delegate, having made all the necessary findings, did not err in law by failing to include in the notice issued under s 77 of the Act the conclusion that the use of K-Grid and of bundled feed and servicing lines by the second respondent were “particular manner” requirements — whether the primary judge erred in confining the operation of s 77A(1) to matters additional to that which was contained in the second respondent’s original proposal — whether the primary judge erred in finding that the delegate did not err by failing to take into account all “adverse impacts” of the proposed action as required by s 75(2) of the Act — where the primary judge inferred from the delegate’s reasons that the delegate had considered the visual impact of two permanently moored barges — whether the primary judge erred in failing to deal with the appellants’ contentions about how the delegate’s decision addressed the use of bundled feed and servicing lines by the second respondent.
ADMINISTRATIVE LAW — whether the primary judge erred in failing to give adequate reasons for rejecting certain contentions made by the appellants — whether the primary judge erred by mischaracterising and incorrectly describing certain arguments advanced by the appellants.

Erskine, in the matter of North Shore Property Developments Pty Ltd (in liq) [2019] FCA 476
CORPORATIONS – application by liquidator for approval to enter deeds for indemnity and funding on behalf of the Company under s 477(2B) of the Corporations Act 2001 (Cth) – where one deed requires retrospective approval – whether entering into the deeds is in the best interests of creditors – Robinson, re Reed Constructions Australia Pty Ltd (in liq) [2017] FCA 594 considered – application granted

Kinjun on behalf of the Gulngay People and State of Queensland [2019] FCA 446
NATIVE TITLE – determination of native title by consent – exercise of powers under s 87 of the Native Title Act 1993 (Cth


Glenroy RSL Sub Branch Inc v Moreland CC [2019] VCAT 583
Planning and Environment Act 1987 s 80; Moreland Planning Scheme; Local planning policy on gaming Clause 22.10; Particular provision on gaming Clause 52.28; installation and use of additional ten gaming machines in existing venue; scope of remittal from Supreme Court; socio-economic impact assessment; net community benefit; acceptable planning outcome. Application refused.

Guo v Monash CC [2019] VCAT 570
Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Construction of thirteen dwellings and alteration of access to a road in a Road Zone Category 1.

Fernandes v Mornington Peninsula SC [2019] VCAT 517
Section 77 of the Planning and Environment Act 1987, Housing and Settlement Strategy, neighbourhood character, flat and skillion roof form, mix of materiality.

Mornington Peninsula SC v Hycenko [2019] VCAT 494
The application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 is allowed. Use of land as a Store in contravention of clause 37.01-1; unauthorised buildings and works contrary to clause 37.01-4 of the Mornington Peninsula Planning Scheme.


Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87
PRACTICE AND PROCEDURE – joinder- where 3rd parties object to government agency disclosing information under Government Information (Public Access) Act 2009 – where 3rd parties not parties to first instance decision on jurisdiction – whether applicant for access appealed from first instance decision – whether 3rd parties should be joined to the appeal proceedings. 

Tanous v Hunter’s Hill Council [2019] NSWLEC 1175
DEVELOPMENT APPLICATION: landscaped area and height non-compliance – cl 4.6 written request for variation – character – bulk and scale – driveway access.

Coronation (33 Shepherd St) Pty Ltd v Liverpool City Council [2019] NSWLEC 1170
DEVELOPMENT APPLICATION: apartment design guide – residential apartment development – design excellence – Liverpool city centre.

Khan Owen Horne v The Water Administration Ministerial Corporation [2019] NSWLEC 1172
Appeals and applications under the Water Act and Water Management Act – Jurisdiction of the Court under Class 1 and Class 3.

IPM Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1182
DEVELOPMENT APPLICATION: shop top housing development – whether the proposed development is compatible with the desired future character of the area – whether clause 4.4A of Leichhardt LEP 2013 applies – overlooking and overshadowing impacts.

Sixto Properties Pty Ltd v Waverley Council [2019] NSWLEC 1171
DEVELOPMENT APPLICATION: new attached dual occupancies – Torrens title subdivision – variation to minimum lot size – variation to floor space ratio – planning experts agree development warrants approval – appeal upheld.

Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177
DEVELOPMENT APPLICATION: New terraces proposed in the rear of a listed heritage item – whether the proposed terraces will have an adverse impact on the heritage significance of the item – whether the internal and street setbacks are acceptable – amenity impacts – whether the development exhibits design excellence.

Elanor Investors Limited v Sydney Zoo Pty Limited [2019] NSWLEC 1173
CIVIL PROCEDURE: Notices to Produce and Subpoenas – application to set aside.

Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168
DEVELOPMENT APPLICATION: boarding house; breach of LEP height control; whether cl 4.6 written request required; isolated site; consideration of local character; design excellence; requirements of a Plan of Management; waste requirements; gradient of basement ramp; disputed conditions.

Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53
CONTEMPT: Disobedience of the Court’s orders that certain works carried out without necessary consent be demolished.

Saffioti v Kiama Municipal Council [2019] NSWLEC 57
APPEAL – appeal against Commissioner’s decision on questions of law – development application to enlarge, expand or intensify existing use – proposal to erect new dwelling and decommission existing dwelling – significant adverse impact on terrestrial biodiversity – uncertainty and inconsistency in applicant’s evidence – applicant requested Commissioner give amber light – Commissioner did not give amber light and refused development consent – whether denial of procedural fairness by not giving amber light – Commissioner found development breached DCP controls – whether denial of procedural fairness by not giving opportunity to provide alternative solutions to achieve objects of controls – LEP provision setting factual preconditions before consent can be granted – whether LEP provision derogated from incorporated provisions for existing use – whether misdirection as to derogation test – whether conflation of LEP provisions and DCP controls – error on question of law not established.

Chief Executive, Office of Environment and Heritage v Boyle [2019] NSWLEC 54
SENTENCE – charge of unlawful clearing of native vegetation – plea of guilty – consideration of potential aggravating factors – substantial environmental harm a factor of aggravation – clearing carried out for financial gain a second factor of aggravation – consideration of defendant’s subjective factors – defendant’s lack of insight into his offending conduct demonstrates lack of contrition and remorse – no likelihood of reoffending – other subjective factors favourable to defendant – agreed remediation plan - consideration of other potentially relevant prosecutions – appropriate starting penalty just below the middle of the range – plea of guilty entered – not entered at earliest opportunity but of significant utilitarian value – discount of 22.5% on starting penalty appropriate – fine of $348,750 imposed.

Weber v Greater Hume Shire Council [2019] NSWCA 74
TORTS — negligence — duty of care — duty of care owed by operator of waste disposal tip — escape of fire – whether class to whom duty owed indeterminate TORTS — negligence — standard of care — whether Council exercising special statutory power under Civil Liability Act 2002 (NSW), s 43A TORTS — negligence — breach of duty — whether adequate precautions taken to prevent escape of fire – allocation of resources by local council — application of Civil Liability Act, s 42 — whether inaction of local council unreasonable — whether financial resources available to take precautions TORTS — negligence — causation — where multiple possible causes of fire — whether probable causes arising from breaches of duty were sufficient to establish causation — whether precautions would have prevented damage to the plaintiff.

Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83
JUDICIAL REVIEW – late application to quash orders of Land and Environment Court granting development consent – substantial unexplained delay – weakness of case sought to be advanced – application to extend time refused PRACTICE – parties – appeal against refusal of development consent – where development contemplated obtaining access across neighbouring land – whether neighbouring landowner a necessary party to appeal – whether Land and Environment Court lacked jurisdiction to impose easement in separate proceedings commenced while appeal was pending – Land and Environment Court Act 1979 (NSW), s 40, considered PRACTICE – parties – whether lot owners of land subject to Community Land Development Act 1989 (NSW) necessary parties to application for easement over Community Association’s land – whether other persons with registered easements over the land sought to be burdened by the proposed easement were necessary or proper parties – effect of non-joinder in circumstances where third parties were informed of application and requested not to be joined – UCPR r 6.23 and Land and Environment Court Act 1979 (NSW), s 40(3), considered REAL PROPERTY – easements – power of court to impose easement – whether easement reasonably necessary for effective use and development of dominant tenement – whether error of law in formulation or application of test.

Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68
ENVIRONMENT AND PLANNING – environmental planning instruments – local environmental plan –proposal to rezone land – review of rejection by planning panel – power of panel to consider proposal – power of panel to recommend replacement of local council as relevant planning authority – no recommendation made – whether panel obliged to have regard to a local strategy endorsed by the Department – whether panel obliged to consider requirements of Secretary with respect to determination of planning proposal JUDICIAL REVIEW – availability of judicial review – whether power to review an administrative decision not to make recommendation at a preliminary stage of decision-making process – whether failure to take a particular matter into account could have affected legal interests – whether matter not taken into account COSTS – party/party – orders when proceedings involve multiple parties – parties with same interests –whether party inappropriately joined to primary proceeding and appeal should be awarded costs – whether improper for decision-maker to take an active role in proceedings where no other party with interest.

Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41
MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council [2010] NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour.

Urbanesque Planning Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1163
Modification of a development application: development contributions, whether granting of consent for works on a constrained residential block could be adjudged likely to increase the demand for public amenities and public services, vacant lots, remnant vegetation, environmental constraints.

Rod Zoabi t/a ZTA Architects v Georges River Council [2019] NSWLEC 1164
DEVELOPMENT APPLICATION: dual occupancy; bulk and scale; streetscape; precedent; contamination; stormwater; accuracy of survey levels.

SNL Building Construction Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 1147
Development Application: mixed use development; proposed addition to approved development; additional storey breaches height of buildings development standard; is the Applicant’s written request under cl 4.6 of Lake Macquarie LEP well founded; is compliance with the standard unreasonable or unnecessary; whether the Applicant’s environmental planning grounds are sufficient.

Vortex Property Group (NSW) Pty Ltd v Georges River Council [2019] NSWLEC 1153
DEVELOPMENT APPLICATION: compliance with density controls for the Kogarah North Precinct –apartment design guide – heritage – developer contributions – contributions plan.

Codling v Central Coast Council [2019] NSWLEC 1158
APPEAL: development application – mixed use development in business park zone – shop top housing – permissibility – whether there is compliance with a provision limiting shop top housing – weight to be given to draft clause in a draft consolidating local environmental plan – consistency with zone objectives – conflict of residential use with other permissible uses – consistency with the development control plan.

UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51
EVIDENCE: whether expert accounting reports should be admitted into evidence in proceedings in Class 3 of the Court’s jurisdiction where the rules of evidence do not apply – assertions and assumptions presented as established facts – reasoning not elucidated – conclusions and opinions stated absent explanation or foundational basis – intemperate language used – scandalous allegations made in respect of another expert and expert report – whether expert lacking in impartiality and independence – report rejected.

Brewster Murray Pty Ltd v Northern Beaches Council [2019] NSWLEC 1152
DEVELOPMENT APPLICATION: seniors’ housing development comprising 40 residential units –consistency with the desired future character of the locality – impact on ecological values – flood affected land.

Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44
ENVIRONMENT AND PLANNING: Prosecutions for failing to disclose political donations – pleas of guilty entered – sentencing principles – totality in sentencing – moieties to the prosecutor – publication orders – principles to apply – costs.


Privacy Amendment (Protection of Australian Farms) Regulations 2019
05/04/2019 - These regulations amend the Privacy Regulation 2013 to prescribe Aussie Farms Inc as an organisation for the purposes of the Privacy Act 1988. Subsection 7(1A) applies in relation to acts done, and practices engaged in, after the commencement of the Privacy Amendment (Protection of Australian Farms) Regulations 2019 (whether in relation to personal information collected before or after that commencement).

Joseph Monaghan, Partner 
T: +61 3 9321 9857

Breellen Warry, Partner 
T: +61 2 8083 0420 

Peter Holt, Special Counsel
T: +61 2 8083 0421

Gerard Timbs, Partner
T: +61 7 3135 0644

Jenny Humphris, Partner
T: +61 7 3135 0690

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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