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Inside track: Planning, Environment & Sustainability

05 February 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

NABERS eyes off schools, retail and warehouses in five-year plan
NABERS has big plans for the next five years according to the 2019-2023 draft strategic plan released in January. Top of the agenda for the environmental performance organisation is making sure every large building type can be rated using NABERS tools by 2023 (22 January 2019).  More...

Five ways cities can step up on climate change
The rapid growth of the Climate Council’s Cities Power Partnership, has seen over 100 local governments across the country commit to renewable energy, sustainable transport and energy efficiency projects in just over a year, is proof that local climate action is on the rise (22 January 2019).  More...

Changing landscapes: The design of cities in the age of digital transformation
As the “smart city” concept catches on worldwide, it continues to divide opinion. Digital technology to enhance the welfare of citizens, Big Brother dystopia or snazzy city marketing label? (16 January 2019).  More...


City seeks exceptional trees for register
The Exceptional Tree Register was established by Council in 2012 to celebrate and safeguard exceptional trees that exist on privately owned or managed land in the municipality (23 January 2019).  More...

Work begins on community facilities at Queen Victoria Market
Lord Mayor Sally Capp said the City of Melbourne will provide $70 million in community facilities in the Munro development including a 120 place childcare facility, a family and children's services centre, a community centre and kitchen, a city gallery and 56 affordable housing units (22 January 2019).  More...

Construction begins on 336MW Dundonnell wind farm – One of biggest in Victoria
A 336MW Victoria wind farm inspired by local landowners, and then selected by the state government’s renewable energy auction scheme, has begun construction. The Dundonnell wind farm, north-east of Mortlake, will be one of the biggest in Victoria, and was one of three wind and three solar farms that won a contract with the Victoria government (18 January 2019).  More...

New South Wales

Renewable geothermal heat pumps trialled at Blacktown greenfield estate
The Australian Renewable Energy Agency (ARENA) has announced $500,000 in funding to Climate-KIC Australia to lead a three-year longitudinal study into the benefits of geothermal energy in the residential sector and greenfield estates (25 January 2019).  More...

Private property owners lose epic Byron Bay seawall case
In a win for Byron Bay beachgoers, the NSW Land and Environment Court has rejected an appeal from three coastal property owners to repair failing seawalls on Belongil Beach with 900 tonnes of rock on the grounds that the finished product would restrict public access and use of the beach (18 January 2019).  More...

New South Wales EPA investigating potential non-compliance by AGL
AGL will be required to provide its coal ash testing records as well as their records that indicate where and how much coal ash has been distributed off site. The Coal Ash Order 2014 sets strict criteria for heavy metals in coal ash intended for beneficial uses. It also sets out requirements for sampling and reporting (17 January 2019).  More...

Waverley Council: Local government in 3D
The Sydney council has been leveraging 3D modelling to assess development proposals and guide strategic planning. The technology enables the council to map specific areas in 3D to realistically visualise developments in the context of the surrounding urban environment (16 January 2019).  More...

Iterim report on Opal Tower released
The NSW Government has released the preliminary findings of its independent investigation into Opal Tower in an interim report prepared by Professors Mark Hoffman, John Carter and Stephen Foster. A full copy of the interim report is available here (15 January 2019).  More...


Firm behind rejected Toowong 'flutes' development prepares new project
Critical to the development will be how traffic from Coronation Drive will be handled, a town planning expert says (21 January 2019).  More...

Adani remains under investigation by Queensland Government over bores
Indian miner Adani remains under investigation by the Queensland Government for alleged illegal works on its Carmichael mine site, despite federal authorities ruling out any wrongdoing in October (17 January 2019).  More...

In practice and courts


NABERS update and CBD legislation review - Have your say!
NABERS has achieved $400m in energy bill savings since 2010, rates 81% of Australia’s office space and has saved over 800,000 tonnes of CO2 emissions but would expansion of legislation requirements be reasonable for the industry and the community and what is the cost/benefit balance? Consultation dates have been set for February across the country and registration will be available here shortly (23 January 2019).   More...

What needs to change in a changing climate: Managing risk requires decisive policy and innovative technology
This paper argues that innovative policy, new technology, faster adaptation and ways to build public support are all needed to manage climate-change risks, which will be critically important to Canada for decades to come (17 January 2019).  More...

NABERS Strategic Plan 2019-2023 – Open for consultation
NABERS has released their draft Strategic Plan and welcome feedback, which closes on 28 February 2019. The Strategic Plan sets out a new vision for NABERS to scale up its role in driving sustainable change to a larger part of the Australian economy going forward (21 January 2019).  More...

Call for nominations - Threatened species, ecological communities or key threatening processes
Nominations are invited for species, ecological communities or key threatening processes to be considered for listing under national environment law during the assessment period starting 1 October 2019 (15 January 2019).  More...

NABERS Plans for 2019
Preparation for the inclusion of Commitment Agreements as a Verification Method for office buildings into the National Construction Code 2019

2019 review of the Commercial Building Disclosure (CBD) program
The 2019 review's terms of reference outline the purpose and scope of the review. Commercial Building Disclosure (CBD) is a national program which requires sellers and lessors of large commercial office spaces to provide energy efficiency information to prospective buyers and tenants.

Announcements, Draft Policies and Plans released 2019


Incorporating “incorporated documents” online
The Smart Planning team have now uploaded all 2000 incorporated documents, across 84 planning schemes, to the Planning Portal. All related planning scheme documents can now be found in the one place – making life that little bit easier for users (24 January 2019).


Casey C221Pt1 incorporates the Cardinia Creek South Precinct Structure Plan, March 2018.
Casey C228 incorporates the Minta Farm Precinct Structure Plan, September 2018.
GC55 incorporates the Beveridge Central Precinct Structure Plan, May 2018.
GC116 introduces a new overlay, Clause 45.11 Infrastructure Contributions Overlay (ICO) and inserts ICO schedules into the Hume, Casey and Mitchell Planning Schemes to apply to a number of Precinct Structure Plan areas.
Hume C207 implements the Sunbury South Precinct Structure Plan, June 2018.
Hume C208 implements the Lancefield Road Precinct Structure Plan, June 2018.

New South Wales

Community say on Tahmoor South Coal proposal
The NSW Department of Planning is inviting the community to have its say on the Environmental Impact Statement (EIS) for the Tahmoor South Coal Project, on exhibition for public comment until 5 March. Following the public hearing, the IPC will publish an interim report on matters that the Department will need to consider during its assessment of the project. For more information view the major projects website (23 January 2019).

Opal Tower update
The Interim Report of the investigation noted that further information is required to enable definitive conclusions to be made about the cause or causes of the damage to this structure and the proposed remediation. It has also made no definitive conclusions as to the cause of the damage. The building is overall structurally sound and not in danger of collapse (18 January 2019).  More...

NSW: Combustible cladding registration due 22 February 2019
Under the new Regulations, owners of certain buildings with external combustible cladding are required to register their building with the NSW Government through the Cladding Registration portal. The deadline for registration is 22 February 2019. Owners of new buildings will be required to register their building within four months of the building first being occupied.  More...

Private Native Forestry Review – Submissions deadline extended
The deadline for submissions on the terms of reference for a review of private native forestry has been extended until 15 February 2019. The NSW Government review seeks to balance sustainable development of the private native timber and agricultural industries with the environmental value of native forestry. For more information and to make a submission visit the NSW Local Land Services website.

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. 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.


PCA: The Spit Master Plan responses
A total of 18,300 survey responses have been provided to the Queensland Government’s, ‘The Spit Master Plan Draft Options Survey.’ The survey was released to help align planning process, future development, infrastructure provisions and community expectations. The final master plan is being developed by the Queensland Government, with collaboration from the City of Gold Coast and the Gold Coast Waterways Authority. The final master plan is expected to be released in July 2019. Visit the Government’s website to read more about The Spit Master Plan (17 January 2019).  More... 

A city for everyone: Brisbane plan open for consultation
Brisbane City Council has released 'A City for Everyone: Draft Inclusive Brisbane Plan 2019-2029’ for public consultation. The draft plan proposes 67 possible actions under five themes: connect, work, live, enjoy and engage. An online survey can be completed here, and will close on 15 February 2019. To find out more visit Council’s website.

Regulated waste amendment commences
The Environmental Protection (Regulated Waste) Amendment Regulation 2018 commenced on 4 February 2019. The regulation establishes the types of waste for regulated waste categories one and two.  More...

Prosecution Bulletins released in 2019
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.  More...



Dearnley v Greater Geelong CC [2019] VCAT 95
Sections 82 and 80 of the Planning and Environment Act 1987 reviews - Greater Geelong Planning Scheme - Industrial 1 Zone abutting General Residential Zone - retrospective application to allow for change of use from warehouse to manufacturing - history of application - amenity impact on multiple adjoining dwellings.

Roberts v Mornington Peninsula SC [2019] VCAT 90
Green wedge zone - retention of original house albeit decommissioned - lack of strategic support - extent of built form - bushfire risk - vegetation removal - impact on National Trust significant landscape.

Mankolli v Bayside CC [2019] VCAT 83
Section 77 of the Planning and Environment Act 1987 - clause 56 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998  - Statement of grounds filed by a person not intending to participate in a hearing - consent order request by parties to the proceeding to determine the application by the grant of a permit subject to conditions and to vacate the hearing - whether a person who pays a fee after the closing date for filing the statement of grounds and upon becoming aware of the consent order request must be given an opportunity to make a submission at a hearing.

SHADAC Inc v Greater Shepparton CC [2019] VCAT 81
Section 77 Planning and Environment Act 1987 – clause 32.08 - General Residential Zone – particular provisions – clause 52.22 - community care accommodation – characterisation of use - appropriateness of location – safety – amenity impacts.
Section 114 Planning and Environment Act 1987 – use of land in contravention of clause 32.08. 

New South Wales

Akula v Blacktown City Council [2019] NSWLEC 1022
DEVELOPMENT APPLICATION – Impacts on heritage item - insufficient information to assess heritage impacts including of acoustic barriers and outdoor play area structures - site suitability for scale of development proposed - car parking, access and traffic impacts - landscaping - neighbour objections. 

Arkibis Pty Ltd t/a Arkhaus v Randwick City Council [2019] NSWLEC 1020
DEVELOPMENT APPLICATION – Alterations to an existing residential flat building – construction of four additional units at the rear – whether provision of no onsite parking is acceptable in circumstances of high public transport provision – precedent. 

HKArchidraft v Randwick City Council [2019] NSWLEC 1009
DEVELOPMENT APPLICATION – Boarding house – traffic and parking – whether the character of the proposed development is compatible with the local area – whether sight lines for vehicles exiting the site are acceptable. 

Falamaki v Council of the City of Ryde [2019] NSWLEC 1007
DEVELOPMENT APPLICATION – Proposal to create dual occupancy – affordable rental housing – whether inconsistency between provisions of Ryde Local Environmental Plan and State Environmental Planning Policy (Affordable Rental Housing) 2009 – compatibility with character of the local area. 

ACN 603 361 940 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1012
DEVELOPMENT APPLICATION – Boarding house – whether the character of the proposed development is compatible with the local area – whether Northern Beaches Hospital Precinct Structure Plan merits weight in evaluation of a development application – whether implementation of the Northern Beaches Hospital Precinct Structure Plan is certain and imminent. 

Longhurst v Randwick City Council [2019] NSWLEC 1011
DEVELOPMENT APPLICATION – Strata subdivision – dual occupancy – existing dwellings – consistency with Masterplan – character – precedence.

Blacktown City Council v Everson [2019] NSWLEC 4
SENTENCE – Contempt of court – failure to comply with terms of consent orders to remove scrap materials from premises – plea of guilty – whether contempt wilful or contumacious – in circumstances of intentional and ongoing offending, disregard of Council, amenity impacts and health risk of offence, and contemnor’s deceptive behaviour to Court and counsel, contempt characterised as contumacious – custodial sentence appropriate but for the contemnor’s age and infirmity- ability to pay fine – fine imposed – additional monthly penalty until contempt purged – costs on an indemnity basis. 

Hylton v Hayes [2019] NSWCATAP 18
APPEAL – Question of law – denial of procedural fairness – whether a hearing was conducted - dispute between two neighbours in relation to the dividing fence between their respective properties. 

Tahany Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1008
APPEAL – Development application – child care centre – whether unreasonable impact on traffic or parking – whether simulated outdoor play area acceptable – whether outdoor play areas adequate – restraints in utilising play areas in order to control acoustic impact - whether plan of management can be complied with. 


Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2
COSTS – Where applicant successful in prosecuting enforcement proceedings against the first, second and third respondents – where applicant substantially successful in pleading for relief – where pursuant to the Planning and Environment Court Act 2016 ordinarily in proceedings in the Planning and Environment Court each party is to bear its own cost for the proceeding – whether exception to the general rule applied because the conduct of the first and second respondent was frivolous and/or vexatious.
INDEMNITY COSTS – Whether conduct of the first and/or second respondent was such as to warrant partial indemnity cost orders – whether in circumstances where frivolous and/or vexatious conduct needs to be established before cost orders can be made such conduct would also warrant costs on an indemnity basis – whether conduct of the first and/or second respondent was such as to warrant cost orders in part on an indemnity basis.

Bigini Pty Ltd v Brisbane City Council & Ors [2019] QPEC 1
PLANNING AND ENVIRONMENT – APPEAL – Where corespondents contend owner of subject land did not consent to the making of the development application – where corespondents contend development application was not a properly made application for the purposes of s 261 of the Sustainable Planning Act 2009.



Acts Compilation

National Greenhouse and Energy Reporting Act 2007
17/01/2019 - Act No. 175 of 200 - An Act to provide for the reporting and dissemination of information related to greenhouse gas emissions, greenhouse gas projects, energy production and energy consumption, and for other purposes. 

New South Wales 

Proclamations commencing Acts

Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 No 80 (2019-18) — published LW 25 January 2019

Regulations and other miscellaneous instruments

Environmental Planning and Assessment Amendment (Contributions Plans) Regulation 2019 (2019-23) — published LW 25 January 2019
National Parks and Wildlife Amendment (Penalty Notice Offences) Regulation 2019 (2019-27) — published LW 25 January 2019
Protection of the Environment Operations (General) Amendment (Calculating Amount of Monetary Benefits) Regulation 2019 (2019-29) — published LW 25 January 2019

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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