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Inside track: Planning, Environment & Sustainability

30 October 2018

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Household waste set to generate clean energy as CEFC finances landmark West Australian project
The CEFC is committing up to $90 million towards Australia’s first large-scale energy from waste (EfW) project – a state-of-the-art plant at Kwinana in Western Australia capable of producing 36MW of electricity, enough to power up to 50,000 homes (18 October 2018).  More...

Developers shift industrial assets to 'mini warehouse' concept
Developers are repositioning industrial assets to cater to smaller industrial users in an increasingly costly market, according to a new Colliers International's radar report (11 October 2018).  More...

New South Wales still stuck in the slow lane on renewables, Climate Council says
New South Wales is barely off the starting blocks in the race to transition to renewable energy, with Tasmania, the Australian Capital Territory and South Australia leading the pack (16 October 2018).  More...

Victoria

Heritage Victoria’s recommendation on Federation Square
The Executive Director of Heritage Victoria has recommended that Federation Square be included on the Victorian Heritage Register for its historical, architectural, aesthetic, cultural and technical significance to the State of Victoria. The recommendation will be advertised for 60-days to allow the community to have its say (18 October 2018).  More...

Melbourne's eight cities: Mini-CBDs to transform Victoria's capital
The idea of one single city centre is being challenged in Melbourne, where the population has surged beyond 5 million people. There are now plans for another seven CBDs, to stop the city being choked by growth — but not everyone is convinced it will work (16 October 2018).  More... 

Bendigo becomes first regional Victorian council to include environmentally sustainable design policy for large developments
Medium to high density developments in Bendigo with at least three dwellings will need to adhere to a new environmentally sustainable design policy, including seven-star energy ratings (11 October 2018).  More...

Solar Energy Facilities - Design and Development Draft Guidelines
The Victorian Government has approved a major new solar farm north of Shepparton and released draft planning guidelines for the development of large solar farm projects across the state (08 October 2018).  More...

New South Wales

New South Wales grows its national park estate
Environment Minister Gabrielle Upton said: "More than seven million hectares in NSW is now managed and protected for conservation with our National Parks Estate (Reservations) Bill being passed in Parliament." (17 October 2018).  More...

New New South Wales Regional Commissioners to advise on planning issues
Minister for Planning and Housing, Anthony Roberts, has announced the appointment of two Regional Commissioners, Miriam Dayhew and Frank Holles. They will help to facilitate greater consultation and engagement with stakeholders, including government, community, farmers and industry on regional planning issues (16 October 2018).  More...

All smiles balancing Luna Park fun and protections for the community
The NSW Department of Planning and Environment is consulting on plans to allow Sydney’s iconic Luna Park to introduce new rides for the Christmas holidays with strict protections around safety, noise, lighting and heritage (15 October 2018).  More...

Local character statements a win for community planning
The NSW Government’s first local character statement is a win for communities wanting more say in how their neighbourhoods evolve and respond to growth, Minister for Planning and Housing, Anthony Roberts said, showcasing the St Leonards-Crows Nest plan as the first to feature such a statement (14 October 2018).  More...

'Inappropriate locations': Why childcare centres are not welcome in parts of Sydney
The NSW government introduced new planning rules to address demand for childcare centres. But not everyone is happy (13 October 2018).  More...

Rezoning of Arncliffe and Banksia brings Bayside 2036 to life
Open space, well-designed buildings, homes and jobs close to public transport has been secured for Bayside West, with the rezoning of the Arncliffe and Banksia Precincts. A draft Special Infrastructure Contribution (SIC) is also on exhibition for feedback from the community that will ensure the right infrastructure is in place (12 October 2018).  More...

Sydney Opera House ads may break National Heritage Law
The repeated nature of the use of the Opera House sails to project night-time images that are potentially inconsistent with the design of the building or its values requires the matter to be referred to the Federal Environment Department under s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), according to analysis by The Australia Institute (08 October 2018).  More...

Independent Planning Commission to rule on Bylong
The NSW Department of Planning and Environment has completed its comprehensive assessment of the Bylong Coal Project referring to the Independent Planning Commission (IPC) for approval, subject to stringent conditions (08 October 2018).  More...

Queensland

Brisbane developer delivers inner-city West End park
A Brisbane developer has delivered on its promise to deliver an inner-city public park the size of Brisbane’s Post Office Square (19 October 2018).  More...

The future of more than 1.2km of Brisbane CBD riverfront land reviewed
More than 1.2-kilometres of Brisbane’s riverfront land could look different in the future as Brisbane City Council moves to revise its plan for the city’s waterfront. The council has launched the Waterfront Master Plan and is now turning to the public for feedback as it attempts to deliver an area that is accessible for pedestrians, cyclists, workers and visitor (08 October 2018).  More...

In practice and courts

CER: September Large-scale Renewable Energy Target market data now available
The Clean Energy Regulator has released September 2018 large-scale Renewable Energy Target market data. 34 power stations were accredited with a combined capacity of 667 megawatts. This is the largest amount of solar and wind capacity accredited in a single month since April 2001 (17 October 2018).  More...

Victoria

Ministerial Direction No.19
The Minister for Planning has issued a new Ministerial Direction No.19 and a new Ministerial Requirement for information to ensure that a planning authority seeks early advice from Environment Protection Authority Victoria (EPA) when undertaking strategic planning and preparing a planning scheme amendment that may result in significant impacts on the environment, amenity and human health due to pollution and waste. Planning Advisory Note 73 provides more information (18 October 2018).

Approvals
GC110 introduces a new Environmentally Sustainable Development Local Planning Policy into the Brimbank, Greater Bendigo, Greater Dandenong, Hobsons Bay, Kingston, Whittlesea and Wyndham Planning Schemes.
GC96 inserts the Melbourne Metro Rail Project: Upgrades to the Rail Network Incorporated Document, May 2018 into the Brimbank, Casey, Cardinia, Glen Eira, Greater Dandenong, Hume, Kingston, Maribyrnong, Melton, Monash, Stonnington, Whittlesea and Yarra planning schemes.

Panel reports
Greater Shepparton Permit Applications (2017-162, 2017-274, 2017-301, 2017-344) Call-in: Development of Solar Farms at Congupna, Lemnos, Tallygaroopna and Tatura.

New South Wales

Dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. While most of the changes will commence on 1 March 2018, there will be a number of other changes that will involve further design and consultation from mid to late 2018 outlined here.

New South Wales water metering framework
The NSW Government is committed to implementing a robust new metering framework to measure and meter water take in New South Wales. The new framework is a commitment under the NSW Government’s Water Reform Action Plan. The regulation will commence on 1 December 2018.  More...

Department of Planning: Have Your Say
Policies:
Amendments to State Environmental Planning Policy (SEPP) Three Ports 2013 Closes 01/11/2018
Proposed Special Infrastructure Contribution for the North West Growth Area Closes 02/11/2018
Proposed Special Infrastructure Contribution for Wilton Closes 09/11/2018
Urban Design for Regional NSW Draft Guide Closes 31/10/2018
Proposed amendments for short-term rental accommodation Closes 16/11/2018
SEPP (State Significant Precincts) Amendment - Luna Park  Closes 09/11/2018

Queensland

Reminder: Proposed changes to the Economic Development Act and more
The Economic Development and Other Legislation Amendment (EDOLA) Bill 2018 was introduced into the Queensland Parliament on 19 September 2018 and has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee for detailed consideration. A copy of the Bill and the Explanatory Notes is available from the Queensland Parliament website.
Key dates: Public Hearing 22 October 2018; Committee report due date: 8 November 2018.

DES Prosecution bulletins
A selection of the department’s latest enforcement actions are summarised here.

Cases

Victoria

Makhmalbaf v Monash CC (Red Dot) [2018] VCAT 1641
NATURE OF CASE – Identifies inconsistencies with three preferred character statements applicable to the same property, and consideration of the weight to be given to each.
LOCATION OF PASSAGE OF INTEREST Paragraphs 15-24.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
PLANNING SCHEME – Interpretation or consideration of VPP provision. The weight to be given to various parts of the Monash Planning Scheme, including Amendment C125 (Part 2).
POLICY – Interpretation or application of policy. The weight to be given to the three preferred but inconsistent character statements currently available to decision makers.
CHANGE TO LEGISLATION OR VPPS – Whether change to VPPs or statutory provisions is required or desirable.
The decision raises discrepancies that the Monash City Council and the Minister for Planning should consider prior to the gazettal of Amendment C125 (Part 2) to the Monash Planning Scheme.

Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) [2018] VCAT 1570
Need for an approved cultural heritage management plan before application under s 79 of the Planning and Environment Act 1987 is lodged.
LOCATION OF PASSAGE OF INTEREST – Paragraphs 25 to 46.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
LEGISLATION – Interpretation or application of statutory provision Relationship between s 52(4) of the Aboriginal Heritage Act 2006 and s 79 of the Planning and Environment Act 1987.
LAW – Issue of interpretation or application.
Whether an application under s 79 of the Planning and Environment Act 1987 to review the failure to decide a permit application should be dismissed, in accordance with the reasoning in Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36, if an applicant filed an approved cultural heritage management plan before lodging the review application and if that plan is for only part of the activity area for the activity in the permit application.

O'Kane v Macedon Ranges SC (Red Dot) [2018] VCAT 1562
NATURE OF CASE – Application to construct eight dwellings on a lot in a Neighbourhood Residential Zone and the meaning and effect of the transitional provision at clause 32.09-6.
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
PLANNING SCHEME – Interpretation or consideration of VPP provision.
Clause 32.09-6 in the Neighbourhood Residential Zone; Transitional provision; Whether it preserves a different clause 55 standard specified in a schedule that existed on 13 April 2017.

New South Wales

Baron Corporation Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1552
APPEAL – Development application – alterations and additions to an approved residential flat building for which development consent has not yet commenced – increase in floor space by in-filling of voids – contravention of the FSR development standard - increase in the number of units – no adverse impacts – increased intensity - whether consent should be granted notwithstanding contravention of FSR development standard – whether state of satisfaction required by cl 4.6(4)(a) has been reached. 

Young v King (No 14) [2018] NSWLEC 162
COSTS - Application by a successful respondent for the personal costs order already made in his favour to be satisfied by a specified gross sum instead of assessed costs – principles to be applied – costs on the disputed gross sum application. BIAS: Application for the trial judge to recuse himself from hearing the gross sum costs application made by the respondent in whose favour he had already made a costs order – principles to apply – costs on the disputed recusal application. 

Balnaves Foundation Pty Ltd v Minister for Planning (No 2) [2018] NSWLEC 163
JUDICIAL REVIEW – Whether the consent authority had the power to impose a condition requiring contributions to be paid – whether a regulation empowering the imposition of a condition is inconsistent with the primary enactment authorising the making of the regulation – whether the regulation is “of a savings or transitional nature” – whether the regulation is “consequent on” the enactment of a later Act – regulation validly enacted and the imposition of condition of consent lawful.
STATUTORY CONSTRUCTION – Whether delegated legislation is inconsistent with primary legislation authorising the making of the delegated legislation – applicable principles of statutory construction – proper construction of transitional and savings provisions. 

ADM Projects (Australia) Pty Ltd t/as ADM Architects v Wollongong City Council [2018] NSWLEC 1541
DEVELOPMENT APPLICATION – Partial demolition of existing building and the construction of new commercial building – consent orders – variation to Building Separation Standard – public objections.

Dwyer v Sutherland Shire Council [2018] NSWLEC 1543
DEVELOPMENT APPLICATION – Two studios above detached garages – FSR – ancillary dwelling use – characterisation – bulk and scale. 

Deng v Burwood Council [2018] NSWLEC 1536
DEVELOPMENT APPLICATION – Residential flat building – SEPP affordable rental housing – visual privacy – amenity.  

Peric v Randwick City Council [2018] NSWLEC 1509
DEVELOPMENT APPLICATION – Torrens title subdivision of land – minimum subdivision lot area development standard – whether the Applicants’ environmental planning grounds are sufficient to uphold a cl 4.6 written request under RLEP.  

Boustany v Canterbury-Bankstown Council [2018] NSWLEC 1531
DEVELOPMENT APPLICATION – Dual occupancy – basement parking. 

Ahmad Corp Pty Ltd v Fairfield City Council [2018] NSWLEC 1526
MODIFICATION APPLICATION – Development consent granted by the Court following conciliation – modification seeks an additional storey for the proposed development – whether substantially the same development – weight to be given to an urban design study and a planning proposal – whether intended character of the area should be taken from current controls or planning proposal – whether proposed modified development consistent with future desired character – whether proposed modified development minimises overshadowing. 

Ikus Pty Ltd t/as U+I Building Studio v Northern Beaches Council [2018] NSWLEC 1534
DEVELOPMENT APPLICATION – Alterations and additions to dwelling – garage, workshop and storage area in front setback and forward of the established building line – variations to DCP controls sought but not justified – adequacy of landscaping – neighbour objections. 

The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158
APPEAL – Appeal against Commissioner’s decision on questions of law – refusal of development consent to concept development application – design excellence clause – whether applies to concept proposals – whether Commissioner misconstrued or misapplied design excellence clause – whether Commissioner misconstrued or misapplied FSR development standard – whether Commissioner failed to consider relevant consideration – potential social benefits of concept proposals as an aspect of public interest – whether denial of procedural fairness – no grounds of appeal established. 

Nerringillah Community Association Inc v Laundry Number Pty Ltd [2018] NSWLEC 157
COSTS – Application for a protective (or maximum) costs order – applicable legal principles and relevant factors – whether matter in the public interest – whether costs proportional - unidirectional order sought – whether quantum of protective costs order sought enough – protective costs order made but amount increased. 

Queensland

Springfield Land Corporation Pty Limited v Cherish Enterprises Pty Ltd & Anor [2018] QCA 266
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – DEVELOPMENT CONTROL PLANS – where the first respondent made a development application to the second respondent in relation to an area of land at Springfield – where pt 14 of the Ipswich Planning Scheme 2006 (“IPS 2006”) contained a development control plan called the Springfield Structure Plan (“SSP”), which applied to the land – where the first respondent had not applied for, or sought approval of, a precinct plan or an area development plan under the SSP – where the primary judge made a declaration that the first respondent was entitled to have its development application assessed even though, inter alia, no precinct plan or area development plan had been approved by the second respondent – where s 857(5) of the Sustainable Planning Act 2009 (Qld) (“SPA”) validates development control plans under the repealed Local Government (Planning and Environment) Act 1990 to the extent that they include “a process for making and approving plans, however called, with which development must comply” – whether the SSP engages s 857(5) by providing a process for making and approving area development plans with which development must comply – whether the SSP engages s 857(5) by providing a process for making and approving precinct plans with which development must comply.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – DEVELOPMENT CONTROL PLANS – where the first respondent made a development application to the second respondent in relation to an area of land at Springfield – where the application sought preliminary approval under s 242 of the SPA to vary the effect of a planning instrument, namely, the IPS 2006 – where pt 14 of the IPS 2006 contained a development control plan called the Springfield Structure Plan, which applied to the subject land – where the first respondent had not applied for, or sought approval of, a precinct plan or an area development plan under the SSP – where the primary judge made a declaration that the first respondent was entitled to have its development application assessed even though, inter alia, no precinct plan or area development plan had been approved by the second respondent – where s 857(5) of the SPA validates development control plans under the repealed Local Government (Planning and Environment) Act 1990 to the extent that they include “a process for making and approving plans, however called, with which development must comply” – whether s 857 of the SPA prevents the first respondent from making an application for preliminary approval under s 242 of the SPA to vary the effect of the IPS 2006 so as to dispense with the requirements for a planning scheme and an area development plan.

WOL Projects Pty Ltd v Gold Coast City Council [2018] QPEC 48
PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of development application for material change of use to establish four multiple dwellings.
ASSESSMENT – Compliance with the planning scheme – whether the proposed development complies with the planning scheme – whether there are relevant matters to justify approval of the proposed development.

Hyacinth Developments Pty Ltd v Scenic Rim Regional Council [2018] QSC 230
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – OTHER CASES AND MATTERS – Where the plaintiff obtained approvals from the first defendant to develop land – where the plaintiff purchased the land and commenced the development – where the approvals were declared invalid by the Planning and Environment Court – where the invalidity of the approvals caused the plaintiff to cease development and enter into liquidation – where the plaintiff commenced proceedings almost ten years after the land was originally purchased and almost six years after the approvals were declared invalid – where the defendants brought a summary judgment application on the basis that the proceedings were commenced out of time – whether the limitation issue ought to be decided at an interlocutory stage.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHER CASES AND MATTERS – where the defendants brought a strike out application on the basis that the proceedings were commenced out of time – whether the limitation issue ought to be decided at an interlocutory stage.
LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION – where it was unclear whether the proceedings were commenced outside the limitation period – where the plaintiff sought to amend the pleadings three years after the proceedings were commenced – where the purported amendments were outside the limitation period – whether the amendments introduced a new cause of action – whether the amendments caused prejudice to the defendants – whether the plaintiff ought to be granted leave to amend.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULAR PLEADINGS – ORIGINATING PROCESS – where the plaintiff sought to amend the pleadings three years after the proceedings were commenced – where the defendants argued that there had been delay – whether the plaintiff ought to be granted leave to amend.

Legislation

New South Wales

Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Gosford City Centre Special Contributions Area) Order 2018 (2018-593) — published LW 12 October 2018
Growth Centres (Development Corporations) Amendment (Hunter and Central Coast Development Corporation) Order 2018 (2018-581) — published LW 12 October 2018
Growth Centres (Development Corporations) Savings and Transitional Amendment Regulation 2018 (2018-582) — published LW 12 October 2018

Bills introduced to Government
Planning Legislation Amendment (Greater Sydney Commission) Bill 2018

Non-Government
National Parks and Wildlife Amendment (Tree Thinning Operations) Bill 2018

Bills passed by both Houses of Parliament
National Park Estate (Reservations) Bill 2018
Residential Tenancies Amendment (Review) Bill 2018
Water NSW Amendment (Warragamba Dam) Bill 2018

Contacts:
Melbourne

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

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

Peter Holt, Special Counsel
T: +61 2 8083 0421
E: peter.holt@holdingredlich.com

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

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@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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