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Inside track: Planning, Environment & Sustainability

06 March 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Investa lays claim to first Science Based Target in Australian real estate
Investa claims it is the first property company in Australian to achieve an approved real estate Science Based Target. The company committed to net zero emissions by 2040 in 2016 across its office portfolio and business operations (21 February 2019).  More...

The industry is falling apart: New cladding alert pushes crisis into the suburbs
Thousands more properties could now be caught up in Australia's cladding crisis, as authorities issue an alert warning against the use of another nine types of the material, including cladding commonly used on single-storey suburban homes (21 February 2019).  More... 

Corkman Pub developers hit with $1.3m fine for 'reprehensible' demolition
The developers charged over the illegal demolition of an 160-year-old Melbourne pub are fined $1.325 million after pleading guilty to breaching building and planning laws (20 February 2019).  More... 

Australian sprawl: Medium-density homes key to growing cities
Australia’s cities and suburbs continue to sprawl outwards, prompting warnings from planning scholars that our major cities are heading toward a future of “low liveability” (18 February 2019).  More...

Review of MDB Threatened Species Listings
The Coalition will expedite a review of the level of environmental protection provided for two species of fish affected by recent deaths in the Murray Darling Basin. Furthermore, the priority given to each species varies across different state and territory jurisdictions, and a consistent listing would allow for a more coordinated conservation effort (15 February 2019).  More...

EPA issues SKM notices for Coolaroo and Laverton sites to stop receiving waste
Alleged failure by recycler SKM Services Pty Ltd to meet the requirements of the Victorian Waste Management Policy has seen EPA issue the company notices that require it to stop accepting recyclable waste materials at its Maffra Street, Coolaroo and Gilbertson Road, Laverton North sites (14 February 2019).  More...  

IA Priority List more responsive to sustainable growth needs
Infrastructure Australia’s expanded list of priority projects has been applauded by the Planning Institute of Australia (PIA) for progressing a more integrated approach to managing Australia’s growth fairly and sustainably (14 February 2019).  More...

'Game changer' infrastructure spend on the cards in Queensland
Mr Morrison added that it is important that City Deals also include major capital cities, which are the areas that need the benefits of the increased spending and infrastructure projects the most to support a growing population. City Deals have been written up for Western Sydney, Townsville and Launceston, while Perth, Adelaide, Hobart, Darwin and Geelong are in the works (12 February 2019).  More...

Better energy performance in homes gets green light from ministers
One note from the Building Ministers Forum was an agreement to progress work to increase the energy performance requirements for residential construction under the National Construction Code for the planned 2022 iteration (12 February 2019).  More...

Planning expert’s call for cities rethink
Conventional approaches won’t solve our infrastructure and transport woes, warns former senior administrator Peter Seamer. Australian governments need to create “localised cities” by planning suburban CBDs, major employment clusters and vibrant town centres, so people can live nearer places of work (11 February 2019).  More...

New South Wales

A piece of Sydney's history secured for the people
The NSW Government's acquisition of the State Heritage listed Hadley Park Estate has ensured an important part of Western Sydney history will be protected, preserved and eventually opened up to the public (22 February 2019).  More...

Final report on Opal Tower released
The NSW Government has released the final report from the independent investigation into Opal Tower, prepared by Professors Mark Hoffman, John Carter and Stephen Foster (22 February 2019).  More...

Councils welcome planning platform announcement
A pledge to restore the opportunity for local communities to help determine the nature of their own neighbourhoods has been welcomed by the local government sector. The real problem here is a code that allows medium density buildings to be thrown up by developers and then privately certified, without any input by the community or council (15 February 2019).  More...

The cotton grower, the water minister, the pumping ban and the broken meter
In the midst of a ban placed on pumping from the Barwon River in order to secure drinking water for communities in the far west of NSW, irrigator Anthony Barlow instructed his operations manager to switch on the pumps at Burren Downs, a property on the NSW border with Queensland. Barlow has pleaded guilty to three offences — one count of pumping during an embargo and two counts of pumping without a properly operating meter (14 February 2019).  More...

More than one thousand homes announced under NSW $1.1bn rollout
The New South Wales government has selected another four new community housing providers to build more than 1,000 homes as part of its Social and Affordable Housing Fund (SAHF) (12 February 2019).  More...

That is not how you plan a growing city: Labor moves to combat developers
NSW Labor has vowed to shut a "backdoor" in the planning system, but developers warn this will send planning "backwards" (12 February 2019).  More...

Biggest overhaul of building laws in New South Wales history
New home owners in NSW will be better protected after the NSW Government announced strong plans to improve the building and construction industry (11 February 2019).  More...


Palaszczuk Government helps protect local heritage places in Brisbane
The Palaszczuk Government will give the Brisbane City Council new powers to issue repair and maintenance notices to protect local heritage-listed places from becoming dilapidated (22 February 2019).  More...

Queensland’s environmental offsets framework to be under the spotlight
Queenslanders can have their say on how the state’s extraordinary biodiversity values can continue to be protected and improved as the state continues to grow (19 February 2019).  More...

Adani facing new probe over coal dam water release into wetlands
The Queensland Government is checking whether mining firm Adani has again breached its environmental licence for releasing water into a coastal wetland beside Abbot Point coal terminal (13 February 2019).  More... 

PCA: This is a big deal
Queensland’s property industry has congratulated all levels of government in South East Queensland for reaching agreement to embark on the delivery of an SEQ City Deal. The announcement of Commonwealth support has coincided with the release of TransformingSEQ: The SEQ City Deal Proposition, by the State Government and Council of Mayors (SEQ), which sets out shared ambitions for the region’s future (12 February 2019).  More...

The State Government and the Council of Mayors are looking at ways to open up government land for development
Making government-owned land available for development is seen as a way to improve southeast Queensland. A City Deal could pave the way for government-owned land to be opened for development, as all levels of government work to deliver a “better” future for southeast Queensland (12 February 2019).  More...

In Practice and Courts


Amendments to the EPBC Act list of threatened species
The Minister for the Environment has amended the list of threatened species under the EPBC Act 1999 to include one species, transfer two species between listing categories, remove five species and retain two species in their current category (18 February 2019).  More...

Infrastructure Australia: Infrastructure priority list: project and initiative summaries
The 2019 Infrastructure Priority List details nationally significant investments, providing decision makers with advice and guidance on specific infrastructure investments in Australia (14 February 2019).  More...

Low carbon, high performance schools: National survey results on attitudes toward the role of the built environment and sustainability on learning outcomes
This report presents findings of a survey of 120 people across Australia who are connected to schools, and examines their beliefs, attitudes and experiences relating to the impact of their built environment on health and learning outcomes (13 February 2019).  More...

NABERS strategic plan 2019-2023
NABERS has released their draft strategic plan which 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.

Commercial Building Disclosure (CBD) 2019 program review
The independent review will consider whether to expand mandatory disclosure of energy use into other high energy-using buildings such as data centres, office tenancies, hotels and shopping centres. The CBD Program requires lessors and sellers of large commercial office space (1,000m2+) to provide energy efficiency information to prospective buyers and tenants.  More... 

Announcements, Draft Policies and Plans released 2019


Have your say on the Northern Victoria Resource Plan
Following the completion of the Wimmera-Mallee Water Resource Plan, communities in Northern Victoria can now have their say on how Victoria intends to manage water from the basin for farming, irrigation and the environment.  More...

City of Melbourne: Proposed lease
Notice is given pursuant to sections 190 and 223 of the Local Government Act 1989 (Act) that the Melbourne City Council (Council) proposes to enter into a lease with Fawkner Park Children’s Centre Co-operative Ltd over the child care centre at 65 Toorak Road West South Yarra for the purpose of a child care centre (‘Proposal’) Submissions are due before Thursday 7 March 2019.  More...

Boroondara C294 proposes to implement the recommendations of the Kew Heritage Gap Study (2017).
Melton C172melt proposes to facilitate incorporation of the proposed Paynes Road Railway Station into the Toolern Precinct Structure Plan and Toolern Development Contributions Plan.
Ballarat C207 proposes to rezone all land managed by Ballarat Clarendon College at the Sturt Street Campus currently zoned SUZ and GRZ1 to SUZ17.
Golden Plains C80gpla proposes to implement the findings of the Flood Risk Management Study Barwon Rivers at Inverleigh (Water Technology Pty Ltd, 2018).
Stonnington C282ston proposes to apply the heritage overlay to properties at 1026 Malvern Road, Armadale, 44 Murphy Street, South Yarra, 46 Kyarra Road, Glen Iris.
Swan Hill C73 proposes to implement the outcomes of the Swan Hill Planning Scheme Review Report (2015); Swan Hill Council Plan (2017-2020); Swan Hill Health and Wellbeing Plan (2017-2020); Swan Hill Riverfront Precinct Master Plan (2013); Swan Hill Car Parking Strategy (2016); Swan Hill Rural Land Use Strategy (2016); and Swan Hill Health Precinct Study (2017).

New South Wales

NSW Fair Trading: Changes to building laws
In response to the Building Confidence Report, the Government will support the majority of recommendations, including building designers, including engineers, declare that building plans specify a building that will comply with the Building Code of Australia, builders declare that buildings have been built according to their plans, and requiring building designers and builders to be registered for this purpose (19 February 2019).  More...

Initial report into Northern Rivers bottled water released
The initial report from the Independent Review of the Impacts of the Bottled Water Industry on Groundwater Resources in the Northern Rivers Region of NSW has been released. You can find the initial report at the Chief Scientist & Engineer's website. This fact sheet provides a summary of the initial report and its findings (13 February 2019).


Queensland's new waste management and resource recovery strategy
A Community Summary has been developed to provide simple actions to help Queenslanders reduce their own waste, boost recycling and reduce the impact of rubbish in our natural environment. The draft Waste Management and Resource Recovery Strategy and the community summary are open for public submissions which are due by 5 April 2019.  More...

Waste disposal levy
On 14 February 2019, Queensland Parliament passed amendments to the Waste Reduction and Recycling Act 2011 to introduce the waste levy commencing 1 July 2019. The amendments are now awaiting royal assent to make it law. The supporting regulation will be finalised once the waste levy amendments receive royal assent.  More...

Department of Environment and Science Consultations
The Queensland Government is undertaking a comprehensive review of the Queensland environmental offsets framework. Consultations close on 15 April 2019.  More...



Petridis Architects v Greater Dandenong CC [2019] VCAT 117
Greater Dandenong Planning Scheme – section 77 of the Planning and Environment Act 1987 – proposal for four storey building comprising 10 dwellings – objections received and Council does not support proposal – Tribunal hearing – key issues of whether or not the proposal would constitute a overdevelopment/poor neighbourhood character outcome, together with external amenity impacts on the western side neighbour – also debate about ‘internal amenity’ issues – permit approved. 

Total Outdoor Media Pty Ltd v Central Goldfields SC [2019] VCAT 193
Section 77 of the Planning and Environment Act 1987 – Clause 52.05 – major promotion sign – Landscape character.
This is an application for review against the decision of the Central Goldfields Shire Council (Council) to refuse to grant a planning permit for a major promotion sign at 4027 Pyrenees Highway, Carisbrook. 

Briggs v Aboriginal Heritage Council [2019] VSC 25
ADMINISTRATIVE LAW – Application for order for review – determination of approval of registered Aboriginal party for particular area – whether in breach of rules of natural justice – whether no evidence to support findings made – whether relevant considerations ignored – whether wrong question asked – whether error of law on face of the record committed – relevance of traditional knowledge and responsibility to whether applicant body was representing traditional owners of application area – ‘traditional owner’, ‘body representing’ – Aboriginal Heritage Act 2006 (Vic), ss 4(1), 7(1)(a) and (b), 151(3)(c) and (d), Administrative Law Act 1978 (Vic) ss 3 and 10.

New South Wales

Cumberland Council v See Win Holdings Pty Ltd [2019] NSWLEC 15
PROSECUTION - Carry out development otherwise than in accordance with a development consent - early guilty plea - breach of consent not trivial - no need for specific deterrence - need for general deterrence to reinforce need to protect integrity of planning system - offending conduct toward lower end of the range - fine appropriate - Defendant fined $30,000. 

Gye v Laughton [2019] NSWSC 121
CIVIL PROCEDURE – Leave to appeal – extension of time – whether leave should be granted to file an application for judicial review – whether plaintiff has a fairly arguable case – grounds for review – duty to give reasons – whether reasons adequate – discretionary factor.
Until about February 2011, Hume Weir Trout Farm was licensed under the Water Management Act 2000 (NSW) to take water from the Murray River for the purposes of its business, and then return the water to the Murray River. It held approvals issued under that Act to do so. 

Chisholm v Ku-ring-gai Council [2019] NSWLEC 1062
DEVELOPMENT APPLICATION – Alterations and additions to a dwelling house – heritage conservation area – balancing heritage conservation and other planning objectives. 

Golf Course DMG Developments Pty Ltd v City of Ryde Council [2019] NSWLEC 1061
DEVELOPMENT APPLICATION – Residential flat building – design – streetscape – amenity – access and traffic. 

Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1055
DEVELOPMENT APPLICATION – Dual occupancy – minimum lot size – compliance with DCP controls. 

AS Investment Company Pty Ltd v Liverpool City Council [2019] NSWLEC 1054
APPEAL – Application for subdivision of land – maximum lot yield applies to an area in which the land is located – subdivision will result in breach of maximum lot yield under cl 7.12 of the local environmental plan – whether prohibition or development standard. 

Steel v Liverpool City Council [2019] NSWLEC 1049
DEVELOPMENT APPLICATION – Boarding house – compatibility with the character of the local area – impact on neighbours’ amenity and internal amenity. 

Gaudioso v Roads and Maritime Services [2019] NSWLEC 10
PRACTICE AND PROCEDURE – Notice of Motion to set aside “disclosure documents” issued by the Applicants to the Respondent and some non-parties – compulsory acquisition – no Points of Claim or Points of Defence yet filed – principles to be applied. 

Monti v Roads and Maritime Services (No 4) [2019] NSWLEC 11
COMPULSORY ACQUISITION – Resumption of quarry land – market value of land and disturbance agreed – determination of market value of the quarry business – use of discounted cash flow model to calculate the value of quarry business – whether loss of profits claimable as disturbance – claim for special value rejected.


Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3
PLANNING AND ENVIRONMENT – APPEAL – Where the co-respondent seeks a development permit for material change of use to redevelop its existing retirement facility with a new retirement facility – where the application is impact assessable – whether the Council approved the development application – where local residents oppose the development – whether the proposed development complies with assessment benchmarks with respect to height, bulk, scale and density – whether amendments to City Plan 2014 should be given significant weight – whether proposed amendments to City Plan are complied with and should be given weight – whether need is a relevant matter that supports approval in this case – whether there are other sound town planning principles that are relevant matters that support approval.

Murphy & Ors v Gladstone Ports Corporation Ltd [2019] QSC 12
COSTS - SECURITY FOR COSTS – FORM OF SECURITY – CHAMPERTOUS FUNDING ARRANGMENT – Where plaintiffs proposed a security in the form of a deed of indemnity from an English insurance company – where plaintiff also offered to pay $30,000 as actual security for costs incurred in enforcing the deed in England - where defendant seeks security by payment into court or bank guarantee – where parties disagree as to the form of security to be provided – whether deed of indemnity and actual security adequate to protect the defendant – whether deed of indemnity provided is at risk of forming part of a champertous funding arrangement - whether form of security proposed imposes on the defendant an unacceptable disadvantage.
PROCEDURE – DISCLOSURE – PRODUCTION AND INSPECTION OF DOCUMENTS – PRIVILEGE – LEGAL PROFESSIONAL PRIVILEGE - Where defendant seeks disclosure of draft expert reports – where plaintiff argues that there is no requirement to disclose draft expert reports until it is deployed - whether draft expert reports must be disclosed under sub-rule 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) – whether the abrogation of privilege provided under sub-rule 212(2) ought to be confined to its ordinary meaning - whether communications passing between experts and lawyers are privileged.

Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5
PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of a development application to change a development approval for showrooms and a café to an office.
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.

Di Carlo v Brisbane City Council [2019] QPEC 4
PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of development application for demolition of a dwelling house constructed in 1946 or earlier.
ASSESSMENT - Compliance with the planning scheme – exercise of discretion pursuant to s 60(2)(b) of the Planning Act 2016 (Qld).



Native Title Legislation Amendment Bill 2019
20/02/2019 - The Native Title Legislation Amendment Bill 2019 (the Bill) amends the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) to improve native title claims resolution, agreement-making, Indigenous decision‑making and dispute resolution processes.

Water Amendment (Purchase Limit Repeal) Bill 2019
Introduced Senate 13/02/2019 - The Water Amendment (Purchase Limit Repeal) Bill 2019 (the Bill) proposes to amend the Water Act 2007 (the Act) to repeal the statutory limit of 1,500 gigalitres on Commonwealth purchases of surface water across the Murray-Darling Basin. 



West Gate Tunnel (Truck Bans and Traffic Management) Bill 2019
Date of second reading speech: 21 February 2019

New South Wales

Proclamations commencing Acts

Regulations and other miscellaneous instruments
Liquor Amendment (Special Licence Conditions) Regulation 2019 (2019-87) — published LW 22 February 2019
Protection of the Environment Operations Amendment (Drug Exhibit Waste and Vapour Recovery) Regulation 2019 (2019-88) — published LW 22 February 2019
Roman Catholic Church Communities’ Lands Amendment (Conference of Leaders of Religious Institutes in New South Wales) Proclamation 2019 (2019-90) — published LW 22 February 2019
Snowy Hydro Corporatisation Regulation 2019 (2019-91) — published LW 22 February 2019
Crown Land Management Amendment (Holdings) Regulation 2019 (2019-72) — published LW 15 February 2019
Environmental Planning and Assessment Amendment (Sydney Eastern City Planning Panel) Order 2019 (2019-74) — published LW 15 February 2019
Home Building Amendment (Miscellaneous) Regulation 2019 (2019-76) — published LW 15 February 2019
Land Tax Management Regulation 2019 (2019-77) — published LW 15 February 2019
Local Land Services Amendment (Allowable Activities) Regulation 2019 (2019-78) — published LW 15 February 2019
Water Management (General) Amendment (Snowy 2.0) Regulation 2019 (2019-81) — published LW 15 February 2019



Waste Reduction and Recycling (Waste Levy) and Other Legislation Amendment Bill 2018
Introduced by: Hon L Enoch MP on 6/09/2018
Stage reached: Passed with amendment on 14/02/2019
Assent Date: 21/02/2019 Act No: 2 of 2019
Commences: see Act for details

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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