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Inside track: Planning, Environment & Sustainability

04 August 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Success of city deals requires explicit support for affordable housing: report
City Deals that connect jobs and affordable housing for workers in Australia’s cities and regions could be the key to urban productivity growth, new AHURI research reveals (22 July 2020).  More...

Reform for Australia's environment laws
Minister for the Environment Sussan Ley will prioritise the development of new national environmental standards, further streamlining approval processes with State governments and national engagement on indigenous cultural heritage (20 July 2020).  More...

UDIA News: More seamless environmental approvals within reach
Major reforms to streamline environmental approvals are within reach following the interim release of the Commonwealth Government’s independent review of the Environmental Protection and Biodiversity Conservation (EPBC) Act (20 July 2020).  More...

Backing business to solve key environmental challenges
The Morrison Government is calling on the nation’s small and medium sized businesses to help develop innovative solutions that can solve national environmental challenges (16 July 2020).  More...

NSW

Watchdog warns developers against forcing apartment buyers to settle
The state's building commissioner fears developers may try to rush to complete apartment buildings before new laws come into force in just over five weeks (23 July 2020).  More...

NSW Fast-Tracks Next Tranche of Approvals
The $1.1 billion redevelopment of Blacktown CBD has topped the latest list of projects to be fast-tracked for assessment under the New South Wales’ continued plans to stimulate construction and lift the economy (22 July 2020).  More...

NSW Planning Approvals Drop Off
Urban Taskforce Chief Executive, Tom Forrest, today expressed concern that new home approvals data* shows approvals in Greater Sydney have dropped to 16,087 for the 6 months up to and including May 2020 – the lowest half yearly number since May 2013 (22 July 2020).  More...

50-year vision for Sydney's open space and parklands
A new 50-Year Vision for Greater Sydney’s network of parklands and green open spaces has been launched today by the NSW Government, heralded by an initial $10 million investment to revitalise one of the city’s forgotten harbour-side parks (17 July 2020).  More...

Sydney parkland trusts to be folded into super agency
The oversight of Sydney's best-known parklands including Centennial Park will be overhauled in a move that will see a super agency replacing three trusts (16 July 2020).  More...

New focus on place making in NSW
The NSW Government new Placemaking NSW Advisory Committee, chaired by former Federal Minister Helen Coonan, will provide strategic advice on the management of precincts including The Rocks, Darling Harbour and Sydney Olympic Park, and provide guidance on the work of the Hunter and Central Coast Development Corporation (HCCDC) (16 July 2020).  More...

Reforms for a world class planning system
Drastically reduced planning assessment times, less red tape, and user friendly e-planning tools will help turbo-charge the economic recovery, through an $83 million NSW Planning Reform Action Plan revealed today (15 July 2020).  More...

'They should help': Sydney cladding crisis leaves big bills for owners
Apartment owners in a well-known high rise say it is well past time for the state government to help pay for the expensive job of removing cladding from buildings (13 July 2020).  More...

New rules leave Sydney homeowners fearing late notice on developments
Residents might not find out about terraces and duplexes being built next door until shortly before construction starts, under the new state government housing code (13 July 2020).  More...

Queensland

Plan to build in core koala habitat sparks local anger as developer challenges council rejection
A year-long dispute to save an area of bushland in Brisbane's northern suburbs that is home to a population of endangered koalas has reignited as locals campaign to save important habitat from development (22 July 2020).  More...

Land council purchased for koala habitat still not open to public
The Mt Gravatt East site was purchased by the council using the bushland acquisition fund despite having no bushland on it (15 July 2020).  More...

PCA: Survey shows confidence is returning as restrictions ease
The latest results from the ANZ/Property Council Survey show confidence in the Queensland property industry has improved slightly since the start of the COVID-19 pandemic with the further easing of restrictions set to provide a greater boost to confidence in future (14 July 2020).  More...

Toondah harbour wetlands: federal government faces legal action over secret details of donor meetings
The Australian Conservation Foundation has launched a legal bid to access documents – kept secret by the federal government – related to meetings between a major political party donor and authorities assessing plans for a development on protected wetlands near Brisbane (13 July 2020).  More...

Winning design for Brisbane waterfront tower unveiled
An international design team comprising Hassell, New York’s Rex and Brisbane firms Richards and Spence and Arcadia Landscape Architecture have taken out a design competition for a 37-storey office tower at 205 North Quay on the Brisbane river (09 July 2020).  More...

Cbus, Nielson Properties Unveil Winning Skyscraper
Super fund developer Cbus Property has lodged plans for a $600 million commercial development in Brisbane's fast-growing North Quarter precinct (09 July 2020).  More...

In Practice and Courts

NSW

NSW Land and Environment Court

New Subpoena Practices Practice Note
21 July 2020 - The Practice Note - Subpoena Practices dated 7 May 2015 has been replaced with a new Practice Note that explains the process for access and production of material through the eSubpoena portal. The new Practice Note commences on 22 July 2020.

Judicial Newsletter
17 July 2020 - Volume 12 Issue 2 (June 2020) of the Court's Judicial Newsletter is now available.

Consultation: 50-Year Vision for Sydney's Open Space and Parklands
A draft vision has been created to be shared and tested with people who care about Sydney’s parks and open spaces. The draft 50-Year Vision for Greater Sydney’s Open Space and Parklands will be open for consultation until 11 September 2020.  More...

Consultation: Draft State Strategic Plan for Crown land
Crown land assets now and into the future, with the draft State Strategic Plan released for public feedback today. The community will have the opportunity to provide feedback and participate in consultation activities close on 20 August 2020.  More...

NSW Productivity Commissioners Issues Paper
Public feedback is now welcomed on whether the right principles have been identified, which will inform the potential reform options by the Commission. Stakeholders and the community can provide feedback on the discussion questions in the Issues Paper until 5 August 2020.  More...

NSW Revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. Construction must commence within three months of the contract date.  More...

NSW Revenue Reminder: COVID-19 (coronavirus) and parking space levy
As part of the NSW COVID-19 stage two economic package, the NSW Government has deferred parking space levy (PSL) payments from the end of March for six months until 30 September 2020, to provide cash flow relief to businesses.  More...

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

Greener Places Design Guide
Notification start-end date 25/06/2020 - 07/08/2020
The draft guide provides strategies, performance criteria and recommendations to assist planning authorities, and design and development communities to deliver green infrastructure. The draft Greener Places Design Guide is now on exhibition, visit the Planning Portal to have your say. The exhibition closes 7 August, 2020 (30 June 2020).

Queensland

PCA: Project Bank Account Changes pass Parliament
Legislation to amend Queensland Government’s Project Bank Account reforms have passed the parliament. The Building Industry Fairness (Security of Payment) and Other Legislation Amendment Bill 2020 passed the Parliament on Wednesday, implementing the Government’s response to the Building Industry Fairness Reforms Implementation and Evaluation Panel report, and the Special Joint Taskforce. Note: The Bill also established a statutory review into the role of property developers, including their workplace practices, in the construction industry (16 July 2020).  

Have your say: Planning support measures
We are consulting on proposed changes to the Development Assessment Rules (DA Rules), Minister’s Guidelines and Rules (MGR) and the Planning Regulation 2017. You can have your say on the DA Rules, MGR and the Planning Regulation (economic recovery initiatives) until 7 August 2020.  More...

Reminder: Planning legislation amendment
Treasurer and Minister for Infrastructure and Planning has extended the timeframes for undertaking approved development under the applicable event provisions in the Planning Act 2016. All current development approvals and those that come into effect from the date of the extension notice until the end of the applicable event period on October 31 will be granted another six months to undertake approved development.  More...

Queensland Planning Legislation
Urgent amendments to the Planning legislation are in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19.  More... 

Queensland Government Consultations

Prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (July 2020).  More... 

New or expanded cropping
The Queensland Government will defer the commencement of the new or expanded commercial cropping and horticulture activities requirement (known as ERA 13A), under the Reef protection regulations until 1 June 2021. The deferment is in direct response to COVID-19 (coronavirus) and ensures the agricultural community has a suitable amount of time to prepare for the changes.  More...

Cases

NSW

Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited (No. 3) [2020] NSWSC 941
JUDGMENT AND ORDERS – Amending, varying and setting aside – Correction under slip rule – declarations made on a Cross-Claim in favour of the cross-claimant – Court’s reasons for decision indicate that the cross-claimants should have their costs of the Cross-Claim – no order for costs made on the Cross-Claim – cost assessment commences and issue arises whether a costs order can now be made under the slip rule, Uniform Civil Procedure Rules 2005, r 36.17. Disputes about the use of the easements that overlay the driveway.

Nakhoul v Canterbury-Bankstown Council [2020] NSWLEC 1320
DEVELOPMENT APPLICATION – dual occupancy – contravention of lot width standard – corner block – internal amenity – precedent 

DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 1319
DEVELOPMENT APPLICATION – child care centre – acoustic mitigation – character and streetscape

Cowan Development 40 Pty Limited v Ku-ring-gai Council [2020] NSWLEC 1315
DEVELOPMENT APPLICATION – seniors housing – neighbour concerns

Dukic v Mid Coast Council [2020] NSWLEC 1314
DEVELOPMENT APPLICATION – multi-dwelling housing development – consistency with character and streetscape – tree retention

Inacio v Luckose [2020] NSWCATAP 149
ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence” – Definition of fence – Dividing fence constructed adjacent to retaining wall - Whether retaining wall was “any foundation or support necessary for the support and maintenance of the fence”

Urban Link Pty Ltd v Inner West Council [2020] NSWLEC 1312
DEVELOPMENT APPLICATION – boarding house – access – narrow entrance – amenity impacts –heritage conservation 

Guo v Parramatta City Council [2020] NSWLEC 1311
DEVELOPMENT APPLICATION – Centre-based child care in R2 Low Density Residential zone – East Epping Heritage Conservation Area – flood planning – consideration of public submissions

Pritchard v Northern Beaches Council [2020] NSWLEC 1310
APPEAL – development application – alterations and additions to a dwelling house approved by a complying development certificate – whether a development application can be made with respect to a dwelling approved by a complying development certificate – breach of floor space ratio development standard – clause 4.6 of the local environmental plan – whether written request adequate

Lu v Walding [2020] NSWLEC 94
BIAS: application by first and second respondents for judge to recuse herself on the grounds of apprehended bias – association between trial judge and expert witness for the applicant – expert witness the spouse of the trial judge’s former longstanding associate – trial judge met the expert as a consequence of that employment relationship – trial judge in contact with former associate – application upheld.

Snowy Mountains Brumby Sustainability & Management Group Incorporated v State of New South Wales and Anor [2020] NSWLEC 92
ENVIRONMENT AND PLANNING – judicial review – Part 5 Environmental Assessment – whether breach of duty to consider environmental impact – s 5.5(1) Environmental Planning and Assessment Act 1979 – s 5.1 Activity relating to the “use of land” – proposed action not exempt development – further consideration required as activity authorised by the plan – compliant with s 81 National Parks and Wildlife Act 1974 COSTS – proceedings brought in public interest – s 4.2(1) Land and Environment Court Rules 2007 discretion exercised – no order for costs

Shapkin v The Council of the City of Sydney [2020] NSWLEC 1309
APPEAL – busker permit – revocation – proper notice

Application by the Planning Ministerial Corporation [2020] NSWSC 903
CIVIL PROCEDURE – parties – commencement of proceedings without naming defendant – proceedings for possession of land – where plaintiff was registered proprietor – where land occupied by squatters – order made under r 6.1A
UCPR JUDGMENTS AND ORDERS – default judgment – where no defendant named – where judgment in rem sought – Rules

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 3) [2020] NSWLEC 90
PROSECUTION – defendant company liable for the offence under s 144 of the Protection of the Environment Operations Act 1997 of unlawful use of land as waste facility PROSECUTION – defendant company director liable under executive liability provision for same offence as defendant company

Coffs Harbour City Council v Noubia Pty Ltd [2020] NSWCA 142
CIVIL PROCEDURE – hearings – procedural fairness – judge preferring evidence of one expert over another – earlier role of expert addressed during proceedings – basis of preference based on earlier role – no unfairness ENVIRONMENT AND PLANNING – consent – conditions – construction – transfer of land to Council – public purpose – importation of valuation principles from the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) JURISDICTION – Land and Environment Court – valuation of land – no compulsory acquisition – proceedings transferred from Equity Division – conferral of jurisdiction on transferee court – Civil Procedure Act 2005 (NSW), s 149B, 149E – Class 4 jurisdiction exercised – Land and Environment Court Act 1979 (NSW), s 20(1(cj) JUDGMENTS AND ORDERS – reasons – duty to give reasons – failure to give reasons – constructive failure to exercise jurisdiction distinguished VALUATION – methods of valuation – “before and after” method – developed land on alluvial floodplain – whether alternative hypothetical developments the most financially advantageous use of land – proposed alternative development subject to natural features of the land and associated constraints on use – whether alternative development would have received approval VALUATION – valuation of land – principles – whether detention and management of upstream water flows by downstream land owner a “public purpose” to be disregarded in a valuation exercise

Department of Planning and Environment v Chaplin; Department of Planning and Environment v Moolarben Coal Operations Pty Ltd [2020] NSWDC 361
CRIMINAL PROCEDURE — Indictment — Amendment

Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86
APPEAL – appeal from the Local Court – appeal against severity of sentence – carrying out prohibited development – advertising sign on crane – multiple offences – single course of conduct – totality principle – aggregate sentence not excessive – individual sentences varied

Sivathas v Cessnock City Council [2020] NSWLEC 1296
DEVELOPMENT APPLICATION – consent orders – boarding house

Ayache v Bayside Council [2020] NSWLEC 1295
DEVELOPMENT APPLICATION – affordable rental housing – mixed use development – scale – streetscape

Queensland

Smith v Cairns Regional Council [2020] QPEC 37
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL - APPLICATION – where an original decision was made – where the applicant filed an application for review of the original decision after filing an application for a stay of the original decision under s 522 of the Environmental Protection Act 1994 – where no objection is made by the respondent to non-compliance with s 522 of the Environmental Protection Act 1994
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL - APPLICATION – where an application has been made for the review of an original decision – where a stay of an original decision is sought under s 522 of the Environmental Protection Act 1994 to secure the effectiveness of the review. Environment Protection Act 1994 Qld ss 522, 532; Planning and Environment Court Act 2016 Qld s 37

Conway & Ors v Australia Pacific LNG CSG Transmissions Pty Ltd & Anor [2020] QLC 26
ENERGY AND RESOURCES – GAS – OTHER MATTERS – where the respondent resource authority holders constructed a gas pipeline on the applicant landowners’ grazing property – where the applicants complained to the respondents about the spread of African lovegrass on their property – where the respondents commissioned a weed survey to be carried out on the applicants’ property – where the respondents’ environmental scientists took a sample of a vulnerable ooline tree during that weed survey and sent it to the Queensland Herbarium for identification – where a flora survey trigger map was issued over part of the applicants’ property – whether the respondents were liable to compensate the applicants for having caused the trigger map to issue and, if so, what was the quantum of compensation payable – where the application was dismissed
Nature Conservation Act 1992 Qld s 4, s 5
Nature Conservation (Wildlife Management) Regulation 2006 Qld
Petroleum and Gas (Production and Safety) Act 2004 Qld

Roubaix Properties Pty Ltd v Somerset Regional Council [2020] QPEC 34
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for a Relocatable Home Park ASSESSMENT – compliance with State Planning Policy in respect of flood risk – compliance with the planning scheme – relevant matters. Planning Act 2016 Qld ss 8, 45, 60; Planning and Environment Court Act 2016 Qld ss 43, 45, 46; Planning Regulation 2017 Qld s 30

Franciskovic v G & J Tenni Pty Ltd & Anor [2020] QSC 215
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY –ABANDONMENT, SUSPENSION, EXTINGUISHMENT OR MODIFICATION – EXTINGUISHMENT – STATUTORY – where an easement dating back to the 1920s ran along three properties, providing access from a main street to the third property – where subsequently another road was laid providing access to all three properties – where there is no physical sign of the easement anymore – where the easement had been abandoned since at least 1984 – where the nature of the neighbourhood has changed – whether the easement has been “abandoned” – whether the easement is “obsolete” Property Law Act 1974 Qld s 181(1)(a), s 181(1)(c), s 181(2), s 181(4)

Moreton Bay Regional Council v Meredith & Ors [2020] QPEC 36
PLANNING AND ENVIRONMENT – CONTEMPT – where Planning and Environment Court judge has power to punish for contempt. District Court Act 1967 Qld; Planning and Environment Court Act 2016 Qld; Uniform Civil Procedure Rules 1999 Qld 

Legislation

Illegal Logging Prohibition Amendment (Country Specific Guidelines) Regulations 2020
10/07/2020 - This instrument amends the Illegal Logging Prohibition Regulation 2012 to add a new country specific guideline for Chile and to replace the country specific guidelines for New Zealand, Finland and Malaysia with updated versions of those guidelines.

NSW

Regulations and other miscellaneous instruments

Biodiversity Conservation Act 2016 — Final Determination
(2020-407) — published LW 17 July 2020

Biodiversity Conservation Act 2016 — Final Determination
(2020-408) — published LW 17 July 2020

Biodiversity Conservation Act 2016 — Final Determination
(2020-409) — published LW 17 July 2020

Biodiversity Conservation Act 2016 — Final Determination
(2020-410) — published LW 17 July 2020

Game and Feral Animal Control Amendment (COVID-19 Extension of Licences) Regulation 2020
(2020-411) — published LW 17 July 2020

Rural Fires Amendment Regulation 2020
(2020-414) — published LW 17 July 2020

Environmental Planning Instruments

State Environmental Planning Policy (Primary Production and Rural Development) Amendment (Rural Land Sharing Communities) 2020
(2020-418) — published LW 17 July 2020

For the full text of Bills, and details on the passage of Bills, see Bills.

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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