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Inside track: Property & Real Estate

07 September 2021

#Property, Planning & Development

Inside track: Property & Real Estate

In the media

Commonwealth

Countdown begins for Build-to-Rent’s breakthrough year
Australia’s emerging build-to-rent sector has been on the launchpad for a while now but the final countdown has begun for the sector to become one of the country’s major asset classes (26 August 2021).  More...

Singapore now #1 foreign investor in Australian property market
Singaporean investors have increasingly moved to fill the gaps in Australia’s property landscape left by the recent exodus of Chinese foreign investment. Singapore has outpaced China as Australia’s number one source of foreign real estate investment (26 August 2021).  More...

Working from home could cut CBD retailers’ lunch by $1.5b
A post-lockdown, longer-term switch to working from home two days week could cost CBD retailers across the nation $1.5 billion annually on lost lunch revenue alone, according to analysis from the PAR Group (25 August 2021).  More...

Locked-down shoppers boost retail landlords’ profits
The lockdown-inspired ‘shop local’ mantra is proving invaluable for convenience focused retail landlords, boosting their earnings as sales soar across all categories (17 August 2021).  More...

CEFC invests in new platform set to deliver green homes for disability sector
The CEFC has announced an investment in a specialist disability accommodation (SDA) platform, which will accelerate the development of tailored green housing solutions for people living with a disability. Tenancy selection procedures will be implemented in consultation with SDA providers (25 August 2021).  More...

HIA: Population growth central to outlook for home building
The elevated level of building and the speed that it emerged has resulted in demand for key building inputs outstripping supply, including materials, labour and land. The delay in the supply of materials will see the impact on labour and ancillary services remain elevated well into the second half of 2022 (22 August 2021).  More...

Decarbonising the built environment never been more urgent
Without action, embodied carbon will be responsible for 85 per cent of Australia’s built environment emissions by 2050, according to a new report from the Green Building Council of Australia and thinkstep-anz. The report highlights that embodied carbon made up 16 per cent of Australia’s built environment emissions in 2019 and without intervention, this share will increase to 85 per cent at a time when Australia must achieve net-zero emissions in line with the Paris Agreement (20 August 2021).  More...

Infrastructure Australia charts a pathway to resilience as the national cost of natural disasters hits $39bn by 2050
Infrastructure Australia has outlined practical steps to deliver infrastructure that is more resilient to threats such as bushfires, droughts, floods, global pandemic, and cyber-attacks, in new advisory papers released today (20 August 2021).  More...

REIA: Transparency, trust and the pandemic create dramatic changes for Australian Real Estate
REIA, ‘Megatrends for Australian Real Estate Report 2021’ identified nine key issues facing the future of the industry with the pandemic and environmental issues the key priorities (19 August 2021).  More...

Victoria

New owners stung by 'inappropriate' heritage protection
A council plan to introduce heritage overlay to several streets in the Melbourne suburb of Thornbury has "blindsided" some owners who were planning to renovate ageing properties (27 August 2021).  More...

REIV dials up digital signature capabilities
The Real Estate Institute of Victoria (REIV) has now revealed that digital signatures will now be available on all documents through the VicForms platform. According to the industry body, this means agencies can send REIV’s contract of sale with key documents, such as the Section 32/ Vendor statement, attached and ready for signing “within a few clicks” (26 August 2021).  More...

Get in on the act with EPA
Environment Protection Authority Victoria (EPA) is actively collaborating with industry organisations in a special program to ensure the state’s small and medium businesses can gain a better understanding of the new Environment Protection Act 2017 (25 August 2021).  More...

More rent relief for commercial tenants
The Victorian Government has locked in further relief for commercial tenants struggling with rent payments, with new regulations finalised as part of the Commercial Tenancy Relief Scheme. The scheme will help small and medium-sized businesses with an annual turnover of less than $50 million (25 August 2021).  More...

Relief for ratepayers as Council absorbs fee increase
The City of Melbourne is discounting rates for all commercial and residential ratepayers across the municipality at a total cost of $4.8 million. Lord Mayor Sally Capp said Council was absorbing the cost of this year's rate increase, in response to the economic impacts of COVID-19 (21 August 2021).  More...

NSW

NSW government finally sees the light, ditches dark roofs
The NSW government has finally responded to the pressing issues of urban heat islands and energy efficiency by prohibiting dark coloured roofs on new developments in the suburb of Wilton in Sydney’s south-west (25 August 2021).  More...

NSW government extends financial support for tenants and landlords
The NSW Government has announced it will provide increased security for tenants and financial support for landlords by extending the Residential Tenancy Support package (16 August 2021).  More...

Queensland

New Palaszczuk Government regional quarantine facility to keep Queenslanders safe
A dedicated regional quarantine facility will be built at Wellcamp, Toowoomba under a joint agreement between the Palaszczuk Government and the landowner, Wagner Corporation (26 August 2021).  More...

Gurner plots $1.25-billion surfers paradise towers
Gurner Group is planning to build four towers up to 57 storeys on the Gold Coast in a $1.25-billion joint-venture with investment house Wingate (26 August 2021).  More...

Record sales absorb Gold Coast apartment supply
Red-hot demand due to pandemic-inspired sea-changers and downsizers has led to record apartment sales on the Gold Coast, dragging supply levels to new historical lows (25 August 2021).  More...

Broken ground for Queensland’s first Build-to-Rent project
Work is officially underway on the Palaszczuk Government’s first Build-to-Rent development, providing a boost to jobs in the construction sector and making affordable housing more accessible (24 August 2021).  More...

Eight-storey boutique tower to sit next to heritage-listed Fortitude Valley church
The Roman Catholic Archdiocese of Brisbane lodged the application in April for a subtropical tower to be built beside the 124-year-old St Patrick's Church (24 August 2021).  More...

Sunshine Coast developer reveals $100m apartment project
Henzell Property Group has lodged plans for a $100-million mixed-use project on a prime waterfront site in the heart of Caloundra. The residential and office project, known as Verre Caloundra, will combine “high-end” retail and dining at street level with 39 two- and three-bedroom apartments as part of the project’s 10-storey first stage (23 August 2021).  More...

City centres evolve as the pandemic changes the way we work
The COVID-19 pandemic will mean 10 per cent fewer people will work in Australia’s city centres, while CBD office spaces will get smaller, Australia’s chief infrastructure body believes. The changes will mean more professional workers will shift to regional centres close to capital cities, including the Gold and Sunshine coasts, Ipswich and Logan (22 August 2021).  More...

Pastoral company fined for land clearing in state forest
A pastoral company has been fined $18,000 in the Dalby Magistrates Court after pleading guilty to illegally clearing land in the Kumbarilla State Forest, southwest of Dalby. The company was also ordered to pay $1,500 in legal costs (16 August 2021).  More...

Brisbane quarantine facility gets green light
A 1000-bed facility to “end to leaks from hotel quarantine” got the green light near Brisbane Airport. A memorandum of understanding was signed by the state and federal governments for the facility to be built by mid-2022 on a 29-hectare site (16 August 2021).  More...

MOU signed on proposed quarantine facility in Brisbane
The Queensland Government has signed a Memorandum of Understanding (MoU) on the Australian Government’s Pinkenba quarantine facility bringing it a step closer to reality (16 August 2021).  More...

In practice and courts

Announcements, Draft Policies and Plans released 2021

Victoria

Land tax relief for commercial landlords announced
03 August 2021 - The Victorian Government today announced it will introduce new legislation to provide rent relief to commercial tenants through the Commercial Tenancy Relief Scheme. As part of this, eligible landlords will receive coronavirus land tax relief of up to 25 per cent, which will be additional to any previous relief they have received.
Further information will be available on our website soon.

NSW

Registrar General: Timetable to digital survey plans in NSW launched
Some important deliverables in the next 12 months are:
End of 2021: Move to 100 per cent online lodgment along with new NSW LRS portal tools that make it easier for surveyors to lodge digital survey plans.  More...

NSW Revenue: Land Tax Build to Rent
The NSW Government is introducing a land tax discount for new build-to-rent housing projects until 2040 and a new Housing Diversity SEPP to provide more housing options, greater surety for renters, boost construction and support jobs during the COVID-19 recovery. Guidelines for the land tax reduction for build-to-rent properties can be read here.

Queensland

Creating better connections for Queensland: Consultation
The Queensland Government has released a draft ten year plan for passenger transport in Queensland, called Creating Better Connections for Queensland and it is open for public consultation until 17 September 2021.

Public consultation: Queensland’s renewable energy zones (QREZs)
Public consultation would be followed by a technical paper later in the year, for feedback from industry and other energy stakeholders on the framework for QREZ design and access. The online survey is open until 30 September 2021.  More...

DSD consultations
Winchester South project – draft environmental impact statement Closes 15 September 2021
Inland Rail – Gowrie to Helidon project – draft environmental impact statement 25 October 2021

Proposed citywide amendment to Brisbane City Plan 2014 (Amendment K)
Brisbane City Council was seeking public consultation on proposed changes to Brisbane City Plan 2014 – Major Amendment package. The full details of the proposed amendment can be found on City Plan online and the details of zone and overlay mapping changes can be found here (24 August 2021).

Published – articles, papers, reports

The circular economy in the Australian built environment: The state of play and a research agenda
A recent report produced by Deakin University provides a picture of the circular economy landscape in Australia, with primary focus on the architecture, engineering and construction industry. The Report provides an up to date assessment of what research needs to be done and how industry might respond (August 2021).  More...

Cases

Brooks v Stonnington CC (Red Dot) [2021] VCAT 930
Whether existing use rights for land are lost on demolition of all buildings on that land
LOCATION OF PASSAGE OF INTEREST Paragraphs 44 to 69
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE LAW – issue of interpretation or application
Existing use rights
PLANNING SCHEME – interpretation or consideration of VPP provision Clause 63.10
ANALYSIS – exposition of how to assess an issue or matters to consider - whether ‘destruction’ of a building in clause 63.10 includes ‘demolition’ of the building
CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable
The decision is forwarded to the Minister for Planning to consider whether any amendment to clause 63.10 is warranted 

Australian Fast Foods Pty Ltd v Kameel Pty Ltd (Building and Property) [2021] VCAT 921
Retail tenancy, rent valuation to market rate, selection of valuer, Retail Leases Act 2003, s3 definition of specialist retail valuer, experience of valuer, s37(3), whether disagreement under s37(3)(a) is a necessary precondition to nomination and appointment by the Small Business Commission under s37(3)(b), terms of engagement of the valuer

Starone Capital Pty Ltd v COGL Melbourne Pty Ltd (Building and Property) [2021] VCAT 912
Licence agreement/serviced office agreement, terms of agreement: Whether automatic extension of period, whether licensor entitled to revalue the rent/licence fee to market, attempt to increase rent without regard to market, repudiation, acceptance of repudiation, interpretation of agreement contra proferentem.
1 I direct the principal registrar to change the respondent’s name to COGL Melbourne Pty Ltd (ACN 604 843 263).
2 The respondent must pay the applicant $4,589.20

Hookey & Anor v Whitelaw & Ors [2021] QCA 181
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the appellants sought a declaration that they and the respondents had entered into a joint venture agreement in relation to the acquisition of land at Hope Island and the development of that land for the purpose of a childcare centre and the operation of a childcare business – where the trial judge found that the first appellant and the first respondent had not reached consensus upon the alleged terms of the joint venture agreement by 1 July 2014 and nor had they intended to be legally bound by any agreement and the claim for that declaration was dismissed – where the appellants seek to construct an oral joint venture agreement from selected passages in the first respondent’s evidence, some of the contemporaneous documents, and some of the evidence about the parties’ post-contractual conduct and statements attributed to the first respondent – where the respondents contend that the appellants should not be permitted to litigate for the first time on appeal a claim that by 1 July 2014 the parties had concluded a binding contract containing only the suggested “key terms” now propounded by the appellants – where the appellants acknowledge that they did not propound such an agreement at trial – where the appellants do not offer any explanation for their failure to do so – where it is evident even upon a cursory comparison between the terms of the agreement litigated at trial and the very broad “key terms” for which the appellants now contend that the appellants’ case on appeal is very different from the case litigated at trial – where the appeal should be restricted to the issues, including as to the nature of the alleged joint venture agreement, which were litigated at the trial – whether there was a joint venture agreement between the parties

DA Staal Property Pty Ltd v Commonwealth of Australia [2021] QSC 216
LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where the applicant sought a declaration that a purported rental determination dated 29 May 2019 is invalid pursuant to the lease entered into between the applicant and the respondent – whether the rent determination was made in accordance with the process prescribed by that lease

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42
PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application seeking a development permit for material change of use for a six storey multiple dwelling in the Medium density residential zone – whether the proposed development is of an appropriate height, bulk and scale – whether the proposed development will contribute to a cohesive streetscape – whether the proposed development will be compatible with the existing and intended character of the area – whether the proposed development will cause any unacceptable amenity impact – whether the proposed development provides for adequate deep planting and landscaping – whether there is a need for the proposed development – whether there are relevant matters that support approval of the proposed development – whether the development application for the proposed development should be approved in the exercise of the planning discretion
Planning Act 2016 Qld s 45, s 59, s 60; Planning and Environment Court Act 2016 Qld s 43, s 45, s 47

Krieg v Woolgar Valley Aboriginal Corporation [2021] QLC 28
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicant requires compensation to be decided – where the respondent at different stages of negotiations referred to conduct and compensation – where the respondents offer was contingent on agreement to pay legal and valuation costs – where the respondent is an Aboriginal Corporation – where the applicant is subject to the laws of general application including the Aboriginal Cultural Heritage Act 2004 (Qld) – where valuer’s report was provided – where compensation was determined
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – OTHER MATTERS – where costs were considered –– where the Court considered the discretion to award costs for ‘legal costs’ ought not be exercised – where the Court was assisted by the valuer’s report – where each party should bear half the cost of the valuation report Mineral Resources Act 1989 Qld s 281(3); Land Court Act 2000 Qld s 7, s 34

Odna Group Pty Ltd v Logan City Council [2021] QPEC 41
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for operational works for an electronic advertising device – whether the development conflicts with the advertising device code in the planning scheme – whether the advertising device would materially affect the safety of the movement network – whether the proposal complies with either the performance outcome or the purpose and overall outcome of the code, given the operation of the acceptable outcomes is excluded in relation to safety – whether the advertising device would materially adversely affect, rather than protect, the visual amenity of the surrounding area – whether the acceptable outcomes are met where, in part, they refer to standards for various signs, none of which fit the description of the proposal – whether the proposal meets the performance outcomes or the purpose and overall outcomes in relation to visual amenity – whether public benefit supports the favourable exercise of discretion Planning Act 2016 Qld ss 45(3), 60(2); Planning and Environment Court Act 2016 Qld ss 43, 45, 47

RA Quality Meats Pty Ltd t/as RA Quality Meats v Nambour Property Investments Pty Ltd [2021] QCAT 281
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – where applicant lessee suffered financial difficulty – where financial difficult said to relate partially to COVID-19 pandemic – where lessee fell into rent arrears – where lessee and respondent lessor entered into a payment plan for rent arrears – where lessee defaulted under the payment plan – where lessor served a notice to remedy breach – where lessee did not remedy the breach and the lessor retook possession – where lessee claims that breach notice was defective – where lessee seeks interim relief to allow re-entry to the premises
Queensland Civil and Administrative Tribunal Act 2009 Qld ss 58, 59; Retail Shop Leases Act 1994 Qld s 5C

3 Keys Global Pty Ltd v Brisbane Logistics Group Pty Ltd [2021] QCAT 280
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS – whether interim orders restraining the sub-lessor from requiring vacant possession should be made where the parties to a commercial tenancy dispute that an option was validly exercised and dispute whether sub-lease should be extended by operation of s 18 of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) - whether damages an adequate remedy – factors to be considered in the exercise of discretion – whether applicant has ‘clean hands’ - where sub-lessee has not paid any amount for rent for the period from 1 January 2021 to at least 27 May 2021
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 58, s 59 ; Retail Shop Leases and Other Commercial Leases; (COVID-19 Emergency Response) Regulation 2020 (Qld), s 12, s 18, s 44

Cases to 23 August 2021

Cheung & Ors v Brisbane City Council & Ors [2021] QPEC 39
PLANNING AND ENVIRONMENT – CONSOLIDATED APPEALS – where the appellants appeal a decision by the Brisbane City Council to approve a development application to build a 28 dwelling unit complex on 5,335m2 of land at Ascot – whether the development is of such a bulk, form, intensity and height and scale that it complies with the assessment benchmarks of the Brisbane City Plan – whether the impacts of the development on local amenity comply with the assessment benchmarks of the Brisbane City Plan – whether the development is to be considered an ‘overdevelopment’ under the Brisbane City Plan – whether there are other relevant matters in favour of approval
Planning Act 2016 Qld ss 43, 59; Planning and Environment Court Act 2016 Qld ss 43, 45, 46(2), 47; Planning Regulation 2017 Qld s 31(1), Schedule 24

Legislation

Commonwealth

Federal Circuit Court (Commonwealth Tenancy Disputes) Amendment Instrument 2021
27/08/2021 - This instrument amends the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 to reflect the commencement of the Federal Circuit and Family Court of Australia. The amendments are minor and consequential and do not substantively change the operation of the instrument.

Queensland

Bills

Resources and Other Legislation Amendment Bill 2021
Introduced by: Hon S Stewart MP on 16/06/2021
Stage reached: 2nd reading to be moved on 6/08/2021
The Resources and Other Legislation Amendment Bill 2021 (the Bill) aims to provide certainty to industry and community stakeholders and ensure the integrity of the tenure system by clarifying the legal standing of certain historically granted tenures, activities, and entitlements. Additionally, the Bill aims to enhance the water restrictions compliance and enforcement framework by ensuring water restrictions can equitably be investigated and enforced across the South East Queensland region Bill and Exp Note.

Residential Tenancies and Rooming Accomodation (Tenants' Rights) and Other Legislation Amendment Bill 2021
Stage reached: 2nd reading to be moved on 16/08/2021

Housing Legislation Amendment Bill 2021
Stage reached: 2nd reading to be moved on 16/08/2021

Subordinate legislation as made – 27 August 2021
No 122 Statutory Instruments (Exemptions from Expiry) Amendment Regulation 2021
No 126 Building Regulation 2021
No 130 Greenhouse Gas Storage Regulation 2021
No 131 Biodiscovery Regulation 2021
No 132 Proclamation—Waste Reduction and Recycling (Plastic Items) Amendment Act 2021 (commencing remaining provisions)

Subordinate legislation as made – 20 August 2021
No 117 Land Court Regulation 2021
The policy objectives of the Regulation are to allow for the continued collection of the current fees amounts for the provision of registry and related services provided by the Land Court and the Land Appeal Court, and to remove section 3 which preserved the rights and entitlements of an acting member of the Land Court and is now redundant where the previously acting member is now permanently appointed.
No 121 Vegetation Management (Regional Ecosystems) Amendment Regulation 2021

Subordinate legislation as made – reminders
No 49 Water Plan (Mary Basin) (Postponement of Expiry) Notice 2021
For section 56(1) of the Act, the new expiry date for the Water Plan (Mary Basin) 2006, as postponed under section 55 of the Act, is 28 May 2024.
No 50 Planning (COVID-19 Vaccination Service) Amendment Regulation 2021
Insert 20A When material change of use for providing COVID-19 vaccination service is not assessable development. This section expires on 31 December 2021.

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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