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Inside track: Planning, Environment & Sustainability

03 September 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Guide to corporate renewable energy power purchase agreements
New guides on power purchase agreements, templates and roadmaps have been released by the Business Renewables Centre. Given the enormous falls in the cost of solar and wind farms and the rising price of electricity, many organisations are becoming more proactive in their energy management strategies and considering RE PPA (20 August 2019).  More...

A greener recycling industry
The Morrison Government is taking practical steps toward a cleaner environment with a new $20 million commitment for innovative projects to grow our domestic recycling industry (13 August 2019).  More...

Significant building reform’ needed to restore insurers’ confidence
Insurers won’t consider offering unrestricted products in the building industry professional indemnity market until confidence in the sector is restored, Insurance Council of Australia says (12 August 2019).  More...

NSW

Green light for Martin Place metro towers
Sydney’s CBD will be home to two new office towers, with the NSW Government approving the development above the future Martin Place Metro Station (22 August 2019).  More...

Wildlife struggling to cope with bushfires coupled with habitat loss
Experts say bushfires coupled with decreasing habitat in an urbanised landscape is taking its toll on wildlife and improved land management is crucial (21 August 2019).  More...

Pyrmont set for facelift
The NSW Government has outlined its strategic vision for Pyrmont and the Western Harbour precinct as a vibrant residential, entertainment and innovation hub on the fringe of Sydney's CBD (19 August 2019).  More...

NSW to review after Sydney hotel rejected
Sydney's lord mayor has accused the NSW premier of betraying the public's trust over a proposed luxury tower in Pyrmont after the government ordered a review of planning rules for the area (19 August 2019).  More...

Big off-the-plan reform push launched by REINSW

In response to government proposals for off-the-plan contracts, the REINSW has called for protective financial risk provisions to be extended to all parties involved in these contracts, not just purchasers (14 August 2019).  More...

Landmark hotel strata sale makes NSW history
A landmark court decision in Sydney could pave the way for a wave of high profile strata collective sales in NSW, after a hotel in Darling Harbour was sold with the agreement from three-quarters of the strata building’s owners (14 August 2019).  More...

Newcastle gas terminal given critical status
A Liquified Natural Gas import terminal at Newcastle that could supply up to 80 per cent of NSW’s gas needs has today been declared Critical State Significant Infrastructure (14 August 2019).  More...

Queensland

PCA: Victoria Park vision: consultation open
Brisbane City Council has announced The Victoria Park Vision; a proposal to develop the Victoria Park Golf Course into the biggest park Brisbane has seen in 50 years. Brisbane City Council has announced plans to turn the current site of the Victoria Park Golf Course into a massive public park (22 August 2019).  More...

Koala habitat cleared for housing development against Environment Department's offset policy
The Federal Environment Department approved the clearing of more than 75 hectares of critical koala habitat west of Brisbane in breach of its own policy (13 August 2019).  More...

'Not good enough': Koala habitat cleared to make way for housing against government policy
Documents obtained under Freedom of Information laws reveal more than 75 hectares of critical koala habitat were approved for clearing by the Department of Environment in breach of its own policy (13 August 2019).  More...

In Practice and Courts

High carbon from a land down under
Tom Swann; The Australia Institute: 19 August 2019
The climate impact of Australia’s fossil fuel exports ranks behind only Russia and Saudi Arabia, in terms of global emissions, according to this report. Australian governments actively promote even greater coal and gas exports and our politicians work hard to avoid confronting the climate impacts of our behavoiur. In reality, those impacts are enormous (19 August 2019).  More...

Clean Energy Regulator corporate plan 2019-23
The Clean Energy Regulator Corporate Plan 2019-23 has now been published (22 August 2019).  More...

Announcements, Draft Policies and Plans released 2019

NSW

PCA Planning Statements 16 August 2019
Planning Ryde – Draft Local Strategic Planning Statement 2019.  More...

Ku-ring-gai Council Local Strategic Planning Statement.  More...

Hills Future 2036 – Local Strategic Planning Statement.  More...

The Low Rise Medium Density Housing Code deferred
The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) has been amended to extend for a further short period, until 31 October 2019. For landowners, pending recommendations of the review, landowners in deferred council areas will not be able to use the Code to lodge a complying development application for dual occupancies, manor houses or terraces until 1 November 2019 (or 1 July 2020 in the City of Ryde).  More...

New 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.
CPPs must be finalised and published on the ePlanning portal by 1 December 2019

Announcements, Draft Policies and Plans released 2019

Queensland

DES: Prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (August 2019).  More... 

BCC: Draft design guide - low-to-medium density housing
The draft New World City design guide – Subtropical homes for a Brisbane lifestyle will provide advice and support to encourage quality design of townhouses and apartments up to five storeys. Consultation has now commenced and will close on 13 September 2019.  More...

BCC: Design strategy for Brisbane
Design-led City – a design strategy for Brisbane intends to outline a vision for design quality across Brisbane's built environment. The consultation document sets out the draft priorities and design values to guide design outcomes for all development and infrastructure projects, and identifies potential actions to support, regulate, reward and implement quality design in Brisbane. Consultation will close on 13 September 2019.  More...

PCA: Queensland planning policy update
A number of local and state government related planning decisions impacting the property sector have been released.

Cases

NSW

Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000) (NSW) [2019] NSWSC 1064
ADMINISTRATIVE LAW – ground of review other than procedural fairness – improper exercise of power – plaintiffs issued with notices from defendant on behalf of the National Resources Access Regulator – notices issued under s 338A Water Management Act 2000 (NSW) – notices required the provision of stipulated information and documents – notices said to be issued as part of an investigation by NRAR into the plaintiffs’ water access and use at their two farms – notices said to be issued for the purpose of determining whether there had been compliance with or contravention of identified conditions of the access licence for each of the properties – whether the defendant was entitled to require the plaintiffs to furnish the stipulated information/documents – whether the information/documents were required for the purpose of ascertaining whether the plaintiffs had contravened identified conditions of the respective access licences – notices set aside

Turner v Department of Planning and Environment [2019] NSWCATAD 166
ADMINISTRATIVE LAW – freedom of information – preliminary draft expert report – whether release could reasonably be expected to prejudice the effective exercise of agency’s functions – effect upon availability of experts to assist agency – consideration of broader circumstances where expert does not object to disclosure

Crawford Education Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1388
APPEAL – development application – child care centre – increase in number of children from 70 to 175 – increase in parking demand – whether parking demand can be accommodated – cross-fall gradient – potential for conflict in parking demands arising from adjoining uses – dispute on conditions of consent – surrender of earlier consents – amendment of earlier consents – consolidation of lots – requirement for accessibility for existing lift – update to Plan of Management

Sunland No. 35 Pty Ltd v Camden Council [2019] NSWLEC 1391
DEVELOPMENT APPLICATION ¬– multi-dwelling housing in a community title subdivision – solar access to private open space – urban design considerations including street activation and clustering – adequacy of road design and access including acceptable road widths and speed mitigation measures – provision for public access through the site – community objections

Blacktown City Council v Nitopi (No 2) [2019] NSWLEC 118
PRACTICE AND PROCEDURE – Notice of Motion seeking to invoke Slip Rule to permit orders that a moiety of the fines imposed in the primary decision be paid to the Applicant – application of Slip Rule – power to award a moiety – orders amended/added to order payment to the Council of half of each fine imposed on the Respondent

Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2019] NSWLEC 117
JUDICIAL REVIEW – challenge to validity of a Development Control Order issued to the landlord of premises – alleged unlawful works carried out at hotel premises – heritage considerations – denial of procedural fairness – whether removal of render on a wall to create a depiction of a flag is “development” – invalidity on the face of the Order – Wednesbury unreasonableness 

Primo Developments Sydney Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1380
DEVELOPMENT APPEAL – impact on state heritage item – heritage conservation area – residential apartment development – potential view loss

Shearer v Arian [2019] NSWLEC 1383
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – severity of obstruction – properties not adjoining 

All in Project Management Pty Ltd v Waverley Council [2019] NSWLEC 1374
DEVELOPMENT APPLICATION – rooftop terrace – car stackers – vehicle manoeuvrability – onsite pedestrian safety – site suitability – partial consent

ABC Planning Pty Ltd v Cumberland Council [2019] NSWLEC 1278
DEVELOPMENT APPLICATION – residential apartment development – Auburn Town Centre – key sites development – site isolation – stormwater detention – street wall height

Queensland

Lasker v Holeszko[2019] QCA163
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM MAGISTRATES COURT – BY LEAVE OF COURT – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was charged with four offences against the Sustainable Planning Act 2009 (Qld), with the matter proceeding to a hearing before the magistrates court – where the magistrate, after delivering reasons, including findings that the applicant should be found guilty in respect of each of the four charges, and making orders to that effect by consent, adjourned the matter to a later date for the determination of penalty and costs – where the applicant lodged a notice of appeal in the District Court under s 222 of the Justices Act 1886 (Qld), prior to the penalty and costs hearing, seeking that the “convictions” imposed by the magistrate be quashed – where the respondent successfully applied to have the s 222 notice of appeal struck out, on the basis that a right of appeal did not exist until after penalty and costs had been decided and the complaint was “disposed of with final orders” – whether the orders made by the magistrate gave rise to a right of appeal under s 222 – whether the learned District Court judge erred in striking out the s 222 notice of appeal – whether leave ought to be granted to the applicant to appeal against the decision of the learned District Court judge
District Court of Queensland Act 1967 Qld s 118; Justices Act 1886 Qld s 146, s 222, s 225; Penalties and Sentences Act 1992 Qld s 3 

Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No.3) [2019] QPEC 39
CONTEMPT – where first and second respondents pleaded guilty to contempt – where contempt constituted by flagrant breach of orders of the court – where first and second respondent fine for contempt
APPLICATION – where respondents sought variation of orders made by this court on 7 November 2018
APPLICATION – where Gold Coast City Council seeks its costs of the proceedings other than contempt proceedings – where respondents ordered to pay 50% of the Council’s costs of the contempt proceedings
Environmental Protection Act 1994 Qld; Planning and Environment Court Act 2016 Qld; Planning Act 2016 Qld
Uniform Civil Procedure Rules 1999 Qld

Lockyer Valley Regional Council v Macandrews Industries Pty Ltd & Ors [2019] QPEC 38
PLANNING AND ENVIRONMENT – APPLICATION – application to strike out originating application, or parts thereof – application to amend originating application – whether applicant is permitted under new legislative regime to seek declarations concerning alleged development offences on part of respondent

Sunshine Coast Regional Council v Dwyer & Ors [2019] QPEC 36
It is further ordered that pending a decision in proceedings for the enforcement order, interim enforcement orders are made pursuant to section 180(5) of the Planning Act 2016 (Qld) that: 4.The First, Second, Third and Fourth Respondents by themselves,  servants or agents stop carrying out all works associated with the Rooftop Work and the Rooftop Area until a development permit for building work is in effect for the development;

Burnett Street Nominees Pty Ltd v Sunshine Coast Regional Council [2019] QPEC 35
ENVIRONMENT AND PLANNING – APPLICATION – Where the applicant seeks an order pursuant to s 78 Planning Act 2016 to change a development approval by allowing the development to be in stages – Whether the proposed change is a “minor change” – Whether the proposed change would not result in a substantially different development
Planning Act 2016 Qld ss 68, 78(1), 78A, 80, 81(2), 85, 86; Planning Regulation 2017 Qld s 44; Planning and Environment Court Act 2016 Qld s 46(3); Sustainable Planning Act 2009 Qld ss 350, 369

Legislation

Water Act (South Australian Murray Region Water Resource Plan) Accreditation Decision 2019
21/08/2019 – This instrument sets out the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management’s decision, under section 63 of the Water Act 2007 to accredit the South Australian Murray Region Water Resource Plan.

NSW

Regulations and other miscellaneous instruments

Environmental Planning Instruments
State Environmental Planning Policy (Vegetation in Non-Rural Areas) Amendment 2019 (2019-417) — published LW 23 August 2019
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment (Heritage Conservation Areas Exemption) 2019 (2019-394) — published LW 16 August 2019

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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Peter Holt

Peter Holt

Special Counsel

Sydney

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Gerard Timbs

Gerard Timbs

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Brisbane

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