Artboard 1Icons/Ionic/Social/social-pinterest

Inside track: Planning, Environment & Sustainability

05 August 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Nathers: New Assessor Accrediting Organisation
On behalf of the NatHERS Steering Committee, the NatHERS Administrator has granted provisional accreditation to a new Assessor Accrediting Organisation (25 July 2019)  More...

Could a class action be brought for presumptive damages to the Great Barrier Reef?
With an increase in litigation funding in Australia and royal commissions abound, it is pertinent to ponder whether a proactive class action can be brought for social justice matters such as environmental toxic torts (12 July 2019).  More...

Australia’s largest passive house: The groundbreaking home that will change the way we build
The team at sustainability-focused Brisbane building firm Solaire Properties has set itself a sizeable task - building a mammoth passive house, designed by award-winning architect Joe Adsett and adapted to meet stringent international design and building criteria (15 July 2019).  More...

Not in our backyard: Locals battling councils over high-rise plans
Families across the country are banding together as councils and developers move to build multi-storey dwellings in their suburbs that would "destroy the city" (25 July 2019).  More...

A patchwork of City Deals or a national settlement strategy: what’s best for our growing cities?
Sometimes the Commonwealth claims to have no constitutional case for involvement in city planning. Yet we’re comfortable with spatial planning at the local, metropolitan and regional scale, so planning at the national level makes sense too (24 July 2019).  More...

What can our cities do about sprawl, congestion and pollution? Tip: scrap car parking
While car parking was a non-negotiable amenity for baby boomers, it is an eyesore to millennials and the up-and-coming iGen. Newer generations want more city and fewer cars. Globally, scrapping car parking is the latest trend in urban planning (24 July 2019).  More...

Australia's solar industry is booming, but so is the amount of valuable waste going to landfill
At the moment, there are no laws regulating the solar industry's waste, but experts have predicted there could be a whopping 1,500 kilotons of it by 2050 (23 July 2019).  More...

Commonwealth Bank of Australia announces first sustainability-linked loan
The operator of Gold Coast Airport will be incentivised to reduce carbon emissions under an innovative new financing agreement with the Commonwealth Bank. Of the $150 million of funds committed by the Commonwealth Bank, $75 million is in the form of a sustainability-linked loan, which includes the potential for a margin reduction for QAL, providing the airport meets targets linked to a reduction in carbon-emissions intensity (19 July 2019).  More...

NSW

Coal operator's dire warning amid push to expand under Sydney water catchment
Jobs growth versus environmental concerns reignite with a coal company's proposed expansion under Sydney's water supply (26 July 2019).  More...

'Unduly prominent': The Star's gamble on luxury hotel tower in doubt
The Star's ambitious $530 million plan to build a luxury hotel and residential tower on its Pyrmont casino site appears unlikely to proceed (26 July 2019).  More...

Overflows of millions of litres of untreated sewage costs Sydney Water Corporation $269,500 in penalties
The Land and Environment Court has convicted Sydney Water Corporation of three offences over two sewage overflow incidents that occurred in 2017, following prosecution by the NSW Environment Protection Authority (19 July 2019).  More...

The pulse of Greater Sydney demonstrates that public transport needs urban density
The Greater Sydney Commission’s new measurements across Greater Sydney demonstrates how the swing to public transport works best with more apartments, says the Urban Taskforce. The GSC report indicates that the Eastern City has 49 percent apartments and that 50 percent of travel to work in the Eastern City is by public transport  (16 July 2019).  More...

Queensland

Grid-like suburbs and fewer cul-de-sacs in proposed Queensland neighbourhood plan
New residential developments in Queensland would have fewer cul-de-sacs, more grid-like blocks, as well as parks and buses within a five-minute walk, under a proposed State Government planning code that hopes to get people moving (21 July 2019).  More...

XXXX brewery gets 15-year extension to protect beers from jeers
The Queensland government has granted the XXXX brewery a 15-year exemption under section 267 of the Planning Act, to protect it from neighbour’s complaints about the noise, smell and light (18 July 2019).  More...

Sustainability-linked loans first of kind for Australian airport
Airport operator Queensland Airports Limited has secured financing for the Gold Coast Airport redevelopment, with $100 million of the funds in the form of sustainability -linked loans. The loans from Commonwealth Bank and Westpac – based on carbon accreditation through the Airports Council International program and a reduction in carbon emissions (17 July 2019).  More...

Queensland Government prosecuting Adani over 'misleading information'
Mining giant Adani is being accused of providing false information to Queensland's environment department over land clearing at the site of its proposed Carmichael mine (16 July 2019).  More...

Victoria

New $260,000 fund for heritage building restoration
The City of Melbourne is inviting heritage building owners to apply for a new $260,000 fund that will provide support to undertake restoration works on community-owned and landmark buildings (22 July 2019).  More...

SKM Coolaroo compliant following EPA inspections
EPA has revoked a notice issued to recycler SKM Services Pty Ltd that applied to its Coolaroo site, following inspections by EPA officers on Wednesday 17 July that determined the site had been brought back into compliance with the Victorian Waste Management Policy (18 July 2019).  More...

Victoria to spend $600m to strip flammable cladding from hundreds of buildings
Hundreds of millions of taxpayer dollars will be spent to deal with the flammable cladding crisis in Victoria, where about 500 buildings need rectification work to be made safe (16 July 2019).  More...

In Practice and Courts

CRCLCL: Low Carbon Home and Building Guides launched
The CRC for Low Carbon Living has launched a suite of low carbon living guides offering consumers and professionals easy to use information on low carbon homes and buildings (15 July 2019).  More...

Announcements, Draft Policies and Plans released 2019

NSW

NSW Land and Environment Court
The Court's Annual Review for 2018 is now available (12 July 2019).   

Reminder: Land and Environment Court news
The Civil Procedure Amendment (Fees) Regulation 2019 and Criminal Procedure Amendment (Fees) Regulation 2019 has increased the Court's fees by 1.75% effective as of 12 July 2019.  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

Victoria

Digitisation of all Planning Schemes complete
The gazettal of amendment GC130 represents the completion of the DELWP project to migrate all 82 Victorian planning schemes documents into the Amendment Tracking System (ATS). All planning authorities can now draft amendments to planning schemes using the ATS system. A range of resources, including user guides, how-to videos and ATS training documents are available at ATS Authoring resources web page (25 July 2019).  
Note: local provision templates are now contained in ATS and new Amendments must be drafted using the ATS system before submitting to the department for authorisation.

CES: Melbourne Planning Summit 2019
Included discussion and recommendations from the Victorian State of the Environment 2018 Report tabled in March 2019. Topics included the Commissioner's ‘top 3’ priorities; biodiversity, climate change impacts and waste and resource recovery (22 July 2019).  More...

PIA PLANET
A session designed to help attendees develop town planning, urban design and infrastructure solutions through smart city thinking and application (7 Aug 2019).  More...

Cases

NSW

NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182
PLANNING AND ENVIRONMENTAL LAW – Land and Environment Court – jurisdiction – condition of consent provided that music festival must not proceed if Commissioner of Police advised it was unsafe – whether Class 1 appeal lay from Commissioner’s decision – whether decision concerned an aspect of development required to be carried out to the satisfaction of consent authority or any other person – comparison of (former) s 97 and current s 8.7 of Environmental Planning and Assessment Act 1979 (NSW) – decision did not fall within s 8.7

Vujicic v Northern Beaches Council [2019] NSWLEC 1349
DEVELOPMENT APPLICATION – boarding house –consent orders – character – owners consent – easement – amenity

McNally v Serbos [2019] NSWLEC 1354
(2)   The Part 2A application is granted.
TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – damage and injury – obstruction of sunlight and views – orders for pruning. Trees (Disputes Between Neighbours Act) 2006 (NSW)

Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105
CIVIL PROCEDURE: application for the determination of a separate question of law – question if resolved in favour of the council is entirely dispositive of the proceedings – delay in applying for the separate question – proceedings set down for two day hearing – substantial savings in terms of experts’ costs and legal fees if separate question resolved in favour of council – application granted.

Canterbury-Bankstown Council v Sydney Tools Pty Ltd [2019] NSWLEC 103
CIVIL ENFORCEMENT: Two premises used for warehousing and distribution – alleged breaches of conditions of historic development consents – construction of conditions of consent – concessions and admissions made by Respondents – rectification of past breaches – declaratory and injunctive relief declined, through lack of utility – Respondents ordered to pay Council’s costs of proceedings.

Landmark Group Australia Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1338
DEVELOPMENT AND MODIFICATION APPLICATIONS – mixed use development across three building envelopes approved by Stage 1 concept consent – detailed design seeks modification to approved concept consent including to conditions – Court approved Stage 1 on basis of s 34 agreement – whether design achieves design excellence – height non-compliance – adequacy of clause 4.6 – adjoining heritage item – solar access – natural cross ventilation – future amenity of apartments – neighbour objections

Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 6) [2019] NSWLEC 98
COMPULSORY ACQUISITION: compensation payable for acquisition of two lots in St Peters – site used for landfilling and waste operations – hypothetical development concepts for highest and best use of Lot 2 – Discounted Cash Flow valuation methodology employed – claims for losses attributable to disturbance – claims for special value – claims based on agency – construction of s 59(1) Land Acquisition (Just Terms Compensation) Act.

Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331

JOINDER – application for joinder – Crown’s right to appear

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
ENVIRONMENTAL OFFENCE: pollution of waters – breach of environment protection license – plea of guilty – discharge of sewage effluent – sentencing principles – determination of the objective seriousness of the offence – extent of environmental harm – application of De Simoni principle – test for criminal negligence – whether criminally negligent – subjective circumstances of the defendant – prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs orders made.

Queensland

Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34
PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse an extension application under s.87 of the Planning Act 2016 – whether the currency period for a development approval for non-resident workforce accommodation should be extended – whether there is a need for the development approval – whether the development approval would cut across the respondent’s forward planning
Planning Act 2016 (Qld) ss. 45, 60 86, 87 & Schedule 2; Planning and Environment Court Act 2016 (Qld) ss. 43 and 45; Sustainable Planning Act 2009 (Qld) Schedule 1

Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33
PLANNING AND ENVIRONMENT – APPEAL – where the respondent approved a subdivision intended to be developed by the co-respondent – where appellant has appealed against that decision – where the notice of appeal raised a number of issues – stormwater – bushfire hazard – traffic – conflict with the Planning Scheme – where central issue was whether proposed development provided sufficient connectivity and integration with surrounding land uses and infrastructure

Sustainable Planning Act 2009 (Qld); Planning and Environment Court Act 2016 (Qld); I (Qld)

The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32
PLANNING AND ENVIRONMENT – APPLICATION –where appellant appeals against the respondent’s decision to refuse a development application – where respondent sought an order defining the issues in dispute – whether the order should define the issues in dispute by reference to provisions of the respondent’s planning scheme that were not cited in the reasons for refusal – whether the respondent was required to seek leave to rely upon provisions in its planning scheme that were not cited in the reasons for refusal – whether leave should be granted.
Planning Act 2016 (Qld) ss. 45, 60, 63 and 230; Planning and Environment Court Act 2016 (Qld) ss.10, 43 and 47

Bond v Chief Executive, Department of Environment and Science [2019] QCA 137
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – PROCEDURE – where the applicant was issued with an environmental protection order as a related person of Linc Energy Limited – where the operation of the decision to issue the environmental protection order was stayed pending the final determination, by appeal or otherwise, of specified preliminary matters concerning the order – where the applicant was subsequently charged with five counts of wilfully and unlawfully causing serious environmental harm in connection with the activities of Linc Energy Limited– where the preliminary matters were determined adversely to the applicant, and the applicant in turn applied to stay the operation of the decision to issue the environmental protection order pending the final resolution of the criminal prosecution – whether the decision to refuse the stay was infected with legal error – whether substantial injustice would arise unless leave to appeal was granted – whether the environmental protection order should be stayed pending the final resolution of the criminal prosecution
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – PROCEDURE – where the applicant was issued with an environmental protection order as a related person of Linc Energy Limited – where the operation of the decision to issue the environmental protection order was stayed pending the final determination, by appeal or otherwise, of specified preliminary matters concerning the order – where the preliminary matters were determined adversely to the applicant, and the applicant in turn applied to stay the operation of the decision to issue the environmental protection order pending the final resolution of his substantive appeal against the order – whether the decision to refuse the stay was infected with legal error – whether substantial injustice would arise unless leave to appeal was granted – whether the environmental protection order should be stayed pending the final resolution of the applicant’s substantive appeal against that order
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – PROCEDURE – where the applicant was issued with an environmental protection order as a related person of Linc Energy Limited – where the operation of the decision to issue the environmental protection order was stayed pending the final determination, by appeal or otherwise, of specified preliminary matters concerning the order – where the preliminary matters were determined adversely to the applicant, and the applicant applied to have a further matter heard and determined separately from his substantive appeal against the environmental protection order – whether the decision refusing to allow a further matter to be heard and determined separately from the substantive appeal was infected with legal error – whether substantial injustice would arise unless leave to appeal was granted – whether the specified further matter should be heard and determined separately from the substantive appeal against the environmental protection order
Environmental Protection Act 1994 (Qld); Evidence Act 1977 (Qld) s 79; Planning and Environment Court Act 2016 (Qld) s 63; Uniform Civil Procedure Rules 1999 (Qld) r 761

Victoria

Madiklumi Pty Ltd v Environment Protection Authority [2019] VCAT 1092
Section 31A of the Environment Protection Act 1970; Industrial Waste Management Policy (Protecting the Ozone Layer); Requirement to avoid or minimise emissions to the atmosphere of an ozone depleting substance; Use of methyl bromide in fumigation of fresh produce at premises at the Melbourne Market, Epping; Whether there is a practicable alternative; Whether it is practicable to recover and either reuse, recycle or destroy methyl bromide

Disability Sports and Recreation Limited v Yarra CC [2019] VCAT 1070
Application under section 80 of the Planning and Environment Act 1987. Yarra Planning Scheme. Seven storey building for mixed use. Deletion of level 5. Built form. Heritage. Amenity

Anderson v Stonnington City Council [2019] VSC 453
PLANNING – Decision of the Victorian Civil and Administrative Tribunal – Heritage overlay control – Whether works under building permits issued before heritage overlay control introduced created an accrued right – Lawfulness of ongoing building works – Whether planning permit needed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Planning and Environment Act 1987 (Vic) s 6(3); Interpretation of Legislation Act 1984 (Vic) s 28(2)(e); Stonnington Planning Scheme cl 72.06 (formerly cl 61.05).

Legislation

Great Australian Bight Environment Protection Bill 2019
Senate: Second reading moved 25 July 2019
The Great Australian Bight Environment Protection Bill 2019 seeks to protect the Great Australian Bight from environmental damage resulting from mining activities and begin the process of World Heritage Listing the Great Australian Bight

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.

Share this
Peter Holt

Peter Holt

Special Counsel

Sydney

More info
Gerard Timbs

Gerard Timbs

Partner

Brisbane

More info