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Inside track: Planning, Environment & Sustainability

08 December 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Koala to bear national census
The Minister for the Environment has announced that a national audit of koala populations is to be conducted as a step towards protecting one of the nation’s most popular species (24 November 2020).  More...

Australian finance sector waking up to climate change
Major banks, insurers and super funds have come together in an unprecedented coalition, releasing an ambitious plan that could see the fossil fuel industry struggle to attract future capital (25 November 2020).  More...

Small wind turbines offer a big solution for telecommunications
On behalf of the Australian Government, the ARENA has announced $341,990 in funding to Diffuse Energy Pty Ltd (Diffuse Energy) to demonstrate the effectiveness of its innovative micro wind turbine technology for use on off-grid telecommunications towers (19 November 2020).  More...

Victoria

EPA fines Bairnsdale scrap metal company again
Environment Protection Authority Victoria (EPA) has fined Bairnsdale company BS Metals Pty Ltd over $8,000 for the second time this year; this time for failing to comply with an official notice requiring the clean up and management of contaminated soil and industrial waste (26 November 2020).  More...

Planning revamp to boost economic recovery and jobs
Improving the efficiency of Victoria’s planning system will help make sure our state’s recovery isn’t held back by bureaucratic red tape or unnecessary delays (24 November 2020).  More...

Illegal firewood, cash and equipment seized in the Otways
The Conservation Regulator is conducting further inquiries after seizing illegal firewood, cash and more than $9,000 of equipment and vehicles in the Otway region (24 November 2020).  More...

Timber unlocks adaptive reuse options for new Melbourne hotel
A new hotel sitting atop six storeys of commercial office space in Melbourne’s CBD may not look that different from the neighbouring glass-encased development, but is in fact hailed one of the largest timber projects in the world (23 November 2020).  More...

Cities win appeal over supersized phone booths
The cities of Melbourne and Brisbane have been successful in a Federal Court appeal in relation to Telstra’s ‘super-sized’ phone booths. The effect of the Federal Court ruling means that the pay-phones are not considered low-impact’ facilities and they do require Council planning approval (20 November 2020).  More...

Community front and centre in Marvel Stadium revamp
Development Victoria is partnering with Sport and Recreation Victoria and the AFL to manage the redevelopment of Marvel Stadium, as part of its continuing role driving the rejuvenation of Docklands (20 November 2020).  More...

Mirvac, Milieu lodge plans for 527 build-to-rent apartments
Mirvac and Milieu’s plans to develop 527 build-to-rent units on a one hectare site in Melbourne’s inner north are moving ahead. The Albert Fields precinct will transform several industrial buildings and homes into a multi-storey residential development including retail over two levels of basement (19 November 2020).  More...

Victorian Spatial Showcase and eSummit
In her keynote on November 19, Spatial Science for Sustainable Development and Unlocking the Transformative Potential of the SDGs, Dr Sparkes briefed delegates on reforms underway in environmental reporting in Victoria (19 November 2020).  More...

Stronger clearer planning controls for the Surf Coast
The Victorian Government is seeking community feedback on stronger planning controls ensuring the iconic Surf Coast is permanently protected from overdevelopment and urban sprawl while improving the local environment (19 November 2020).  More...

NE water works approval granted
Victoria (EPA) has granted a Works Approval to North East Water to upgrade the Benalla Wastewater Treatment Plant (WWTP) on Holdsworth Road. The upgrade to NE Water Benalla WWTP will provide sustainable capacity for Benalla township, whilst protecting the surface water quality of Broken River (19 November 2020).  More...

Protecting and enhancing Wilsons Promontory
The Andrews Labor Government will ensure the majesty of Wilsons Promontory and its unique biodiversity is protected while making it easier for more Victorians to see the much-loved coastal wilderness (18 November 2020).  More...

MAB plots course for $3.3b industrial estate at Avalon Airport
Private developer MAB Corporation is planning a $3.3 billion industrial estate on a 780-hectare site next to Avalon Airport (18 November 2020).  More...

Pallas urged to triple home owner grant to 'kick-start' building jobs
The Property Council wants the state government to triple the first home owner grant in next week's budget, a move its says would help unleash more than $6b of activity in the home building sector (17 November 2020).  More...

Diggers Rest dumping costs skip bin operator over $80,000
Environment Protection Authority Victoria (EPA) has successfully prosecuted a Campbellfield man over the dumping of skip bin loads of waste on a rural property at Diggers Rest. The land was not licensed to accept industrial waste and had been leased as a residential property (17 November 2020).  More...

Tree planting blitz begins with North East Link
Thousands of native trees and plants are being planted in Melbourne’s north and east, as part of Victoria’s biggest road project, North East Link (16 November 2020).  More...

VIC Government: $5.3b Big Housing Build program
The Victorian Government have announced a $5.3 billion Big Housing Build program to construct more than 12,000 new homes throughout metro and regional Victoria. Big Housing Build is Australia’s biggest ever investment in public and community housing (15 November 2020).  More...

Government announces six preferred station locations for Melbourne's Suburban Rail Loop
The Victorian Government reveals the future Suburban Rail Loop will begin at Southland Shopping Centre, as it commits $2.2 billion to fund early works on the project from 2022 (16 November 2020).  More...

Corkman pub developers found in contempt of court
The owners responsible for the illegal demolition of the Corkman Irish Pub have been found guilty of contempt of court following legal action brought by Melbourne City Council and the Victorian Government (13 November 2020).  More...

Odour in Brooklyn traced to its source
Environment Protection Authority Victoria (EPA) has tracked down the source of a strong odour affecting Brooklyn and Altona residents, to an industrial site at Brooklyn, and has directed the company to fix the problem urgently (13 November 2020).  More...

Defending Darebin Creek from careless mess
Environment Protection Authority Victoria (EPA) has fined a Preston concrete pumping company $8,261 over failing to change their ways to prevent industrial wash water entering stormwater drains that flow into Darebin Creek (12 November 2020).  More...

NSW

100 experts to shape design across NSW
A panel of 100 leading design experts will be charged with improving the quality of the built environment across NSW (26 November 2020).  More...

Red tape slashed to boost productivity
More than 170 planning rules, policies and guidelines have been ripped up to simplify the planning system, speed up assessments and boost productivity as part of the NSW Government’s agenda to reform the system (24 November 2020).  More...

Ten iconic buildings I'd bulldoze, by Treasurer Dominic Perrottet
The White Bay power station might have some merit, after all, but Sydney's beauty is marred by some horrible architecture that could only be improved by the wrecking ball, writes the NSW Treasurer (24 November 2020).  More...

Plans lodged for landmark Sirius Tower
Developer JDH Capital has lodged plans for the $100 million overhaul of Sydney’s iconic Sirius building at the foot of the Harbour Bridge, overlooking Circular Quay and the Opera House (23 November 2020).  More...

Changes to speed up health infrastructure delivery
Proposed changes to planning rules will cut red tape for the construction of NSW Health facilities, to better equip the state when dealing with medical emergencies (20 November 2020).  More...

Education and Childcare SEPP streamlined
The NSW Government is calling for feedback on proposals set to make it easier to meet demand for childcare and education facilities and streamline planning approval processes for those facilities (20 November 2020).  More...

Woolworths' plans for a Mosman supermarket rejected as 'unsuitable'
A planning panel refused the supermarket chain's proposal due to the potential for "traffic conflicts" and hundreds of negative public submissions (19 November 2020).  More...

Plans roll out for new cycleway on Oxford Street
Three new cycleways will serve Sydney’s busiest cycling connections, providing safer access for thousands of people riding between the city and Sydney’s east, and further support the City of Sydney’s plans to revitalise Oxford Street (19 November 2020).  More...

Hammondcare’s Greenwich Hospital gets green light
Hammondcare has been given the go-ahead for a $141.5 million integrated health campus in northern Sydney from the state’s Independent Planning Commission (18 November 2020).  More...

Dexus raises $925m from sale of half stake in Grosvenor Place
In the largest office deal of the year, Dexus and its office partnership have sold a half share in the Harry Seidler-designed Grosvenor Place office tower in Sydney to China's sovereign wealth fund (18 November 2020).  More...

Transport Minister requests ICAC to investigate controversial land deal
Transport Minister Andrew Constance has asked the state's anti-corruption watchdog to investigate his own government's purchase of a highly contaminated parcel of land near Parramatta at three times the estimated value (18 November 2020).  More...

Funding boost to give more certainty to planning system
The NSW Government has committed more than $17 million as part of significant reviews to make the planning system more certain and transparent for industry, and to encourage investment, with an online tool to help calculate infrastructure contributions up front rather than at the end of a project (17 November 2020).  More...

Support for owners to remove high risk cladding
The NSW government will establish Project Remediate, a three-year program to help remove combustible cladding on hundreds of the most at-risk buildings, and pay the interest on loans by commercial lenders to building owners and owners corporations, fast-tracking the removal of unsafe cladding (17 November 2020).  More...

New South Wales releases Electricity Infrastructure Roadmap
The stimulus the Renewable Energy Zones will provide to regional communities will unlock over 9,000 new jobs and will be a huge boost to farmers and landowners, with $1.5 billion in lease payments expected to go to landholders hosting new infrastructure by 2042.  More...

Queensland

Walker strikes $2.5bn Sunshine Coast development deal
Walker Corporation has padded out its pipeline with an agreement to deliver $2.5 billion in development planned for the Maroochydore’s new CBD on the Sunshine Coast (19 November 2020).  More...

Council forced to approve controversial transport depot on polo ground
After being taken to court over its rejection of the DA, the council agreed through court to approve the DA with different conditions (17 November 2020).  More...

In practice and courts

Victoria

Victorian Energy Upgrades
The Victorian Government has recommenced high-volume residential activities under the Victorian Energy Upgrades (VEU) program, specifically:
Incandescent lighting upgrades (Part 21 under the Victorian Energy Efficiency Target Regulations 2018)
Low-flow shower roses (Part 17)
Weather sealing (Part 15)
In-home display units (Part 30)
Consistent with government requirements, all businesses involved in these and all other VEU activities must have a COVIDSafe Plan.  More...

Victorian Residential Efficiency Scorecard, Energy Savvy Upgrades and Healthy Homes
The Victorian Government has recommenced activities for the Victorian Residential Efficiency Scorecard, Energy Savvy Upgrades and Healthy Homes programs. Consistent with government requirements, all businesses involved in these programs must have a COVIDSafe Plan.  More...

SRO: 2021 congestion levy rates now available
The 2021 congestion levy rates for both the category 1 and 2 levy areas are now available here. Our website also has a dedicated section providing detailed information about the levy (17 November 2020).  More...

SRO reminder: HomeBuilder Grant online applications
Online applications are now open for the Australian Government’s HomeBuilder Grant. Information about eligibility criteria and the supporting documents you will need to upload with your application is available on our HomeBuilder Grant guidelines web page. Applications must be lodged by no later than 31 December 2020.

Have your say on the draft Guidelines for Precinct Structure Planning in Melbourne’s Greenfields
The Victorian Planning Authority and DELWP are updating the Guidelines for Precinct Structure Planning in Melbourne’s Greenfields to make planning for Melbourne’s new neighbourhoods more flexible, responsive and innovative. Have your say by completing the online survey, making a submission on behalf of your organisation or registering for a virtual stakeholder interview here. Feedback until December 2020.

Extension to the declaration of Surf Coast, Bellarine Peninsula and Bass Coast as distinctive areas and landscapes
The Governor in Council, under section 46AT(3) of the Planning and Environment Act 1987, has approved the extension of time required to prepare Statements of Planning Policy for Surf Coast, Bellarine Peninsula and Bass Coast for a further 12 month period.

New Environment Protection Act postponed to July 2021
The legislation has been postponed and is intended to commence on 1 July 2021. On that basis, EPA will continue to regulate under the Environment Protection Act 1970, including all existing subordinate legislation (regulations and statutory policies including state environment protection policies and waste management policies) until the new commencement date.  More...

Smart Planning PPF translation update
Smart Planning continues to work with councils on their Planning Policy Framework (PPF) translations. To date, PPF translations have been gazetted for Murrindindi, French Island and Sandstone Island, Glenelg, Moonee Valley, Golden Plains, Southern Grampians and Colac-Otway. The PPF translation project is time bound and all planning schemes must be translated by 30 June 2021. Information on preparing for your PPF translation is available on the Smart Planning website.

Approvals
Melton C222melt introduces an incorporated document ‘Ravenhall Spoil Processing Facility, October 2020’ to facilitate the use and development of land at 227 Riding Boundary Rd, part 304 Riding Boundary Rd, part 714 and 1198 Christies Rd, Ravenhall, part Christies Road, Ravenhall and part Middle Road, Truganina for the use and development of the land for the Ravenhall Spoil Processing Facility to be used and developed for a spoil processing facility for the receipt, storage, treatment, handling, testing analysis, containment, placement and removal off-site of spoil generated by the construction of the West Gate Tunnel Project, including associated use and development provided for in the Incorporated Document.
Moorabool C95moor introduces and applies the Specific Controls Overlay to land in Tilleys Road, Gullines Road and Kerrs Road, Maddingley by inserting the Maddingley Spoil Processing Facility, October 2020 incorporated document in the schedules to Clause 45.12 and Clause 72.04.

Exhibitions
Golden Plains C92gpla proposes to implement the findings of the Teesdale Structure Plan (Golden Plains Shire, 2020) into the Golden Plains Planning Scheme in place of content from the 1997 Teesdale Structure Plan. The Teesdale Structure Plan (1997) is now outdated and is inconsistent with current zones.
Alpine C60alpi proposes to rectify various errors in the planning scheme maps and ordinance provisions.
Hume C247hume proposes the rezoning of land at 225-285 and 285A Donnybrook Road Mickleham as a result of the approved re-alignment of Aitken Boulevard. The amendment proposes an alteration to the amount and configuration of Industrial 1 Zone Land (IN1Z) and General Residential Zone 1 land (GRZ1 ) as well as the introduction of a new schedule to the Special Use Zone (SUZ12) to support employment use. The amendment also requires changes to Schedule 29 of the Development Plan Overlay to reflect the changes sought as part of the rezoning. This will be addressed via introduction of a new Schedule 31 to the Development Plan Overlay and deletion of the existing Schedule 29. The amendment will also delete Schedule 17 to the Development Plan Overlay which is no longer required.
Mornington Peninsula C263morn proposes to include an Incorporated Plan to enable the use and development of a ‘medical centre’ which is not to be conducted by or on behalf of Council and is otherwise a prohibited use within the current zone. The ‘medical centre’ is to be co-located within the redevelopment of the Alexandra Park Pavilion and will provide allied health services.

Panels
Clarinda Recycling Facility Advisory Committee – Review the Kingston City Council’s decision to refuse to extend permit KP-2007/881 for the Alex Fraser materials recycling and waste transfer station at 275 Kingston Road, Clarinda.
Port Phillip C186port Montague Commercial Precinct Heritage.

NSW

NSW Land and Environment Court – new Acting Commissioner appointments
The Chief Judge is pleased to announce the appointment of Mr Alan Bradbury, Mr Paul Rappoport, Dr Gary Shiels, Ms Deborah Sutherland and Ms Emma Washington as Acting Commissioners of the Court for the period commencing 9 November 2020 and expiring on 8 November 2023.

NSW Revenue: NSW state budget 2020-2021
The New South Wales (NSW) Treasurer, The Hon. Dominic Perrottet MP, announced the following tax initiatives as part of the 2020 State Budget. Budget papers are now available here. See details for Payroll tax, Land tax, and proposed tax reform (17 November 2020).  More...

EPA [draft] Sampling Design Guidelines for sampling of contaminated land
The EPA encourages feedback from stakeholders on the updated draft guidelines to help improve the sampling design and analysis of potentially contaminated land in NSW. Stakeholders can have their say on the consultation website.
Note: The consultation period has been extended until Sunday 29 November 2020.

50-year vision for Sydney's open space and parklands [draft] discussion paper
The NSW Minister for Planning and Public Spaces has announced the 50-year vision for Sydney’s open space and parklands. The draft vision will kickstart a community wide conversation about how our open and public spaces can grow with us. Read the discussion paper and complete the survey.

Proposed SEPP amendment to allow outdoor dining pilot in Sydney CBD
City Of Sydney – The department is seeking your feedback on a proposed amendment to the Codes SEPP which will facilitate a simplified, streamlined process for small bars and pubs in the City of Sydney to have outdoor dining. The Outdoor Dining Trial will run from 30 October 2020 until 31 October 2021.  More...

NSW Planning Department: Have your say – draft plans and policies

ISEPP amendment – health infrastructure
The NSW Government has introduced the Planning Reform Action Plan to deliver a better planning system for NSW. Work is underway to improve assessment time frames, reduce red-tape and blockages, eliminate double-handling and fast-track projects that deliver public benefits to NSW.  More...
Notification start-end date 20/11/2020 – 17/12/2020.

Review of the Education SEPP 2017
The NSW Government has introduced the Planning Reform Action Plan to deliver a better planning system for NSW. Work is underway to improve assessment time frames, reduce red-tape and blockages, eliminate double-handling and fast-track projects that deliver public benefits to NSW.  More...
Notification start-end date 20/11/2020 – 17/12/2020.

Draft local character clause
The department is exhibiting a draft Local Character Clause which is proposed to be included in the Standard Instrument Local Environmental Plan. The clause will require the council to consider its local character statement when addressing development applications.  More...
Notification start-end date 12/11/2020 – 29/01/2021.

Proposed Special Infrastructure Contribution for Western Sydney Aerotropolis
The proposed Special Infrastructure Contribution (SIC) for Western Sydney Aerotropolis is on exhibition until 18 December 2020.  More...
Notification start-end date 10/11/2020 – 18/12/2020.

Draft Social Impact Assessment Guideline
The department is seeking your feedback on the draft Social Impact Assessment Guideline for State significant projects that standardises the SIA approach across all State significant development, State significant infrastructure and Critical State significant infrastructure projects.  More...
Notification start-end date 30/10/2020 – 27/11/2020.

Queensland

Brisbane City Council: proposed amendments – rooftop gardens and greenspace
Brisbane City Council have put a range of amendments regarding the provision of rooftop gardens and greenspace out for consultation. Major amendment package G aims to support Council’s commitment to providing rooftop gardens and greenspace for Brisbane residents. Brisbane City Council is encouraging submissions on the proposed amendments. Submissions are due by December 13, 2020. To have your say, please click here.

Build-to-Rent update
The Queensland Government has announced the preferred proponents of its Build-to-Rent Pilot Project that was announced as part of the 2018 Mid Year Fiscal and Economic Review. Frasers Property and Mirvac are the successful proponents who are required to deliver a component of government subsidised affordable housing dwellings (October 2020).  More...

Cases

Victoria

Robinson v Surf Coast [2020] VCAT 1290
Surf Coast Planning Scheme – Sections 80 and 82 of the Planning and Environment Act 1987 – new dwelling – Fairhaven – General Residential Zone – Neighbourhood Character Overlay NCO1 – Environmental Significance Overlay ESO5 – Design and Development Overlay DDO10 – Clause 54 – reasonable sharing of views – available views – response to design objectives and local policies.

Gecko Architects Pty Ltd v Whitehorse CC [2020] VCAT 1330
Residential growth zone – four townhouse development – interface with General Residential Zone – emerging neighbourhood character – reduced front setback.

Drouin Commercial Centre Pty Ltd v Baw Baw SC [2020] VCAT 1322
Section 77 Planning and Environment Act 1987 – Baw Baw Planning Scheme – neighbourhood character – Design and Development Overlay Schedule 2 – General Residential Zone – interface to public park – tree protection – access – bin storage.

S & L Homes v Whittlesea CC [2020] VCAT 1327
Appeal against conditions, double garages, landscape contribution, neighbourhood character, specific sustainable design measures in dispute. 

Kambouris v Monash CC [2020] VCAT 1321
Appeal against conditions requiring increased setbacks to rear and side boundaries, GRZ3 variations and neighbourhood character considerations. 

Vasiljevic v Stonnington CC [2020] VCAT 1315
Section 77 of the Planning and Environment Act 1987 – Stonnington Planning Scheme – General Residential Zone – four dwellings – neighbourhood character – overshadowing – car parking – landscaping.

Atanasov v Whittlesea CC [2020] VCAT 1299
Section 79 of the Planning & Environment Act 1987 – Whittlesea Planning Scheme – three dwellings.
Neighbourhood character: GRZ5; Cls. 21.09, 22.16.

Slimform Holding Pty Ltd v Yarra CC [2020] VCAT 1312
Section 77 of the Planning and Environment Act 1987 – Yarra Planning Scheme – mixed use zone – major activity centre location – building height – heritage.

Welreagh Pty Ltd v Melbourne CC [2020] VCAT 1305
Section 79 of the Planning and Environment Act 1987 – Melbourne Planning Scheme – capital city zone – Design and Development Overlay – construction of 20-storey commercial building – application to amend permit – confined issues in dispute – questions of law – whether permit amendment application is prohibited – whether street wall is an acceptable heritage response.

Jesse Ant Architects v Whitehorse CC [2020] VCAT 1280
Section 77 of the Planning and Environment Act 1987 – Whitehorse Planning Scheme – dwelling density – General Residential Zone – existing character – court location – safety – traffic – car parking – precedent.

Vittorio v Banyule CC [2020] VCAT 1301
Review of a decision to refuse a planning permit. Banyule Planning Scheme. General Residential Zone and Vegetation Protection Overlay apply. Risks of impact to neighbouring significant trees. Landscape response considered against neighbourhood character policy. 

Yao v Brimbank CC [2020] VCAT 1296
Section 97P and Section 77 of the Planning and Environment Act 1987 (Vic) – Brimbank Planning Scheme – whether site enjoys existing use rights for use as a dwelling – whether retrospective permission should be granted for alterations to existing buildings.

ASL Alliance No. 2 Pty Ltd v Frankston CC [2020] VCAT 1276
Use and development of the land for a child care centre. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 

WP Ivanhoe Dev Pty Ltd v Banyule CC [2020] VCAT 1275
Section 77 of the Planning and Environment Act 1987 – Banyule Planning Scheme – repeat appeal – apartment building scale and mass – Ivanhoe Activity Centre – DDO12 – tree retention – off-site impacts – traffic – parking.

Donald v Knox CC [2020] VCAT 1288
Demolition of an existing outbuilding and the construction of a three-storey dwelling, associated earthworks and removal of vegetation. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 

Mason v Campaspe SC [2020] VCAT 1287
Three lot boundary realignment, application to amend planning permit condition which requires a Section 173 Agreement under the Planning and Environment Act 1987 to prevent the construction of a dwelling on one of the lots.

Swirgoski v Bayside CC [2020] VCAT 1273
To construct nine, two storey dwellings above a basement car park. The dwellings are arranged in two groups with six attached dwellings on 444-444A St Kilda Street (Townhouses 1-6) and three attached dwellings on 40A Head Street (Townhouses 7-9).
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.

Gascoigne v Mornington Peninsula SC [2020] VCAT 1198
Section 77 of the Planning and Environment Act 1987, Mornington Peninsula SC planning scheme, glamping, CFA, green wedge zone.

Tech MC Pty Ltd ATF Tech MC Unit Trust v Stonnington CC [2020] VCAT 1260
Construction of a four-storey building comprising seven dwellings, above a basement car park.
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

M Property Group v Darebin CC [2020] VCAT 1193
Construction of an 8 storey mixed-used development at 67-69 High Street, Preston.
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Clifftop at Hepburn Pty Ltd v Hepburn SC [2020] VCAT 1278
I declare that a Cultural Heritage Management Plan is not required to be prepared under the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2018 for the proposed activity that is the subject of Permit Application No. PA2703 and these proceedings.

W & M Waterdale Pty Ltd v Banyule CC [2020] VCAT 1191
Section 77 Planning and Environment Act 1987 – Banyule Planning Scheme – General Residential Zone – apartment development –neighbourhood character – amenity. No permit.

Drive By Developments Pty Ltd v Melbourne CC [2020] VCAT 1270
Amendment of permit for existing major promotion sky sign to authorise display of a new ‘electronic’ major promotion sky sign. Application under section 80 of the Planning and Environment Act 1987 – review of new condition on amended permit imposing a 10-year permit expiry.

St John of God Health Care v Melton CC [2020] VCAT 1263
Section 149A application – planning permit application and application for approval of a Development Plan – Melton Planning Scheme – dispute at first instance whether the proposal is or is not exempt from needing planning approval for the requisite ‘use’ and/or ‘development’ approval.

Black T/Small Footprint Pty Ltd v Brimbank CC [2020] VCAT 1262
Section 77 of the Planning and Environment Act 1987 – Brimbank Planning Scheme – General Residential Zone Schedule 1 – construction of five dwellings on a lot – neighbourhood character – historic subdivision – traffic impacts – amenity impacts. No permit. 

Zaric v City of Greater Dandenong [2020] VSC 756
APPEAL FROM THE DECISION OF VCAT – review of planning powers of respondent – VCAT summarily dismissed applicant’s proceeding under s 75 VCAT Act on basis of proceedings being misconceived, lacking substance and abuse of process – VCAT asserted proceedings sought to re-agitate issues already decided – VCAT asserted planning permit spent once subdivision work completed – applicants appeal summary dismissal – applicant sought to set aside decision of Senior Member Richards – as no appeal has been lodged, this matter cannot be ruled on – applicants further sought to reinstate previous proceedings before VCAT under s 149B of the Planning and Environment Act – Act does enable previous orders of VCAT to dismissed or set aside – applicants further sought enforcement orders pertaining to the planning scheme the subject of this proceeding – matter previously ruled on by VCAT and Court of Appeal – Council could not be added to this proceeding for enforcement orders – even if Council were able to be added, enforcement orders could not be made – applicants argue under s 52 VCAT Act Court of Appeal had no jurisdiction to hear matter – applicants’ submissions incorrect – Section 52 provided Jurisdiction to Court of Appeal to hear matter – furthermore, s 52(3) provides rulings of court in the absence of jurisdiction valid – applicants assert planning permit cannot be expired as per s 68 Planning and Environment Act – Section 68 not exhaustive – permit expired by virtue of development being completed – appeal fails to establish any ground of appeal, or show any error in VCAT’s approach and conclusion regarding s 75 VCAT Act – Court satisfied applicants have no real prospect of success – matters raised in appeal conclusively ruled upon previously by Court of Appeal – Court needs to conserve its resources – applicant’s application an abuse of process and vexatious. 

260 Lonsdale Street Pty Ltd v Greater Dandenong CC [2020] VCAT 1283
Section 77 of the Planning and Environment Act 1987 (Vic) – Greater Dandenong Planning Scheme – Comprehensive Development Zone – Design and Development Overlay, Schedule 2 – proposal for an electronic major promotion wall sign – visual impacts. No permit.

Hillas v Towong SC [2020] VCAT 1284
Towong Planning Scheme – Rural Activity Zone and Bushfire Management Overlay – use and development of land for leisure and recreation (paintball games facility) and removal of native vegetation – consistency with policy and purposes of the zone – traffic and road safety – suitability of internal access and car parking – amenity of adjoining land owners: noise and dust – extent of native vegetation removal and bushfire management – net community benefit. 

Buyck v Yarra CC [2020] VCAT 1279
In application P1310/2020 the decision of the responsible authority is affirmed.
Planning permit PLN18/0854.02 must not be amended. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant an amended permit.

Cox v Yarra CC [2020] VCAT 1277
Section 82 Planning and Environment Act 1987 – Yarra Planning Scheme – Neighbourhood Residential Zone Schedule 1 – Heritage Overlay Schedule 334 – amenity impacts – visual bulk – overshadowing – heritage – views.

Zhang v Boroondara CC [2020] VCAT 1259
Two dwellings – neighbourhood character – amenity – tree protection.

Lateral Building Design v Maroondah CC [2020] VCAT 1261
Planning and Environment Act 1987 – Maroondah Planning Scheme – Neighbourhood Residential Zone, Significant Landscape Overlay – one double storey and one single storey in front of existing single storey dwelling – design response to neighbourhood and character, and retention of trees.

Murcott v South Gippsland SC [2020] VCAT 1265
Section 82 of the Planning and Environment Act 1987 – South Gippsland Planning Scheme – free range chicken meat farm – amendment to existing permit – surface water quality – Farming Zone.

J Q Fortune Pty Ltd v Banyule CC [2020] VCAT 1196
Section 77 of the Planning & Environment Act 1987 – Banyule Planning Scheme – General Residential Zone Schedule 3 – DDO11-1 –Vegetation Protection Overlay Schedule 3 – Development Contributions Plan Overlay Schedule 1 – four dwellings – three Storey – massing, visual bulk, scale – siting – tree removal – landscaping opportunities. 

Livingstone v City of Melbourne [2020] VCC 1775
Legislation Cited: Wrongs Act 1958. In 1997, Angela Livingstone bought 50 Dryburgh Street, West Melbourne. In 2009, the City of Melbourne planted on the footpath outside 50 Dryburgh Street a white cedar tree or, more technically, melia azedarch. It was planted about 3 metres from the western or front wall of the original building.
Held: 340 despite forming part of the prayer for relief, removal of the tree did not form part of Dr Livingstone’s opening or closing addresses. 341 Dr Livingstone is entitled to damages in the sum of $435,510.08 made up as follows: (f) cost of accommodation while the house is demolished and rebuilt: $41,600.00 – (g) cost of demolition and rebuild: $346,830.00.

NSW

IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593
DEVELOPMENT APPLICATION – voluntary planning agreement – consideration of the orderly and economic development of land and the public interest.

Boensch v City of Parramatta Council [2020] NSWLEC 163
APPEAL – appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner concerning an order issued pursuant to s 124 of the Local Government Act 1992 – appellant becomes bankrupt after commencing the appeal – effect of s 60 of the Bankruptcy Act 1966 (Cth) – Council solicitors seek views of bankruptcy trustees – bankruptcy trustees advise they did not intend to prosecute or discontinue the proceedings – bankruptcy trustees’ position triggers the operation of s 60(3) of the Bankruptcy Act deeming that the proceedings are abandoned – meaning of “action” for the purposes of the provision – whether the fact that the appeal has been commenced in circumstances where the applicant is a trustee of real property with no claimed personal interest in the trust property falls within the scope of an “action” for the purposes of s 60 – scope of the term “action” is to be construed as encompassing these appeal proceedings – whether granting an extension of time within which to commence an appeal causes the appeal to be deemed to have commenced from the date upon which the extension is granted – extension merely legitimises the validity of the appeal and does not alter the date of its commencement – whether the proceedings are saved because they fall within the scope of s 60(4) of the Bankruptcy Act – proceedings not saved by s 60(4) of the Bankruptcy Act – necessary consequence of the operation of ss 60(2) and (3) of the Bankruptcy Act is dismissal of the appeal COSTS – costs ordinarily appropriate to be ordered when proceedings dismissed as a consequence of the operation of s 60 of the Bankruptcy Act – such costs, if ordered, are to be personal to the bankrupt and not provable as a debt in the bankruptcy – Council expressly disclaims seeking any order for costs in these proceedings – costs not to be ordered.

Frith v Ku-ring-gai Council [2020] NSWLEC 1588
DEVELOPMENT APPLICATION – Wahroonga heritage conservation area – modification application – whether minimal environmental impacts – front fence and gates.

Mars City Pty Ltd v Burwood Council [2020] NSWLEC 1585
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) 2009 – boarding house development – character of the local area – owners consent.

Kovacevic v Maras [2020] NSWLEC 1584
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring tree – whether the tree has damaged the fence – whether the tree is likely to cause damage or injury – implications of proposed development – orders for pruning.

Waverley Council v Ash Samadi and Ors (No 2) [2020] NSWLEC 162
COSTS – indemnity costs basis – sufficiently delinquent conduct – appropriate to fix quantum by percentage and to specific conduct.

Jeffrey v Canterbury-Bankstown Council [2020] NSWLEC 1581
DEVELOPMENT APPPLICATION – funeral home in R4 zone – proper characterisation – whether mortuary activities prohibited or ancillary – whether provision limiting area of business premises to no more than 100 sqm is a prohibition or development standard – cl 4.6 objection – whether application of the standard is unreasonable or unnecessary – whether the objectives of the standard and of the zone are met.

Franks v Mosman Municipal Council [2020] NSWLEC 1577
DEVELOPMENT APPLICATION – alterations and additions to dwelling house – clause 4.6 variation to floor space ratio – streetscape impacts.

Kingsford-Smith v The Council of the City of Sydney [2020] NSWLEC 1576
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties.

Warnervale Employment Zone Pty Ltd v Central Coast Council [2020] NSWLEC 1571
DEVELOPMENT APPLICATION – vehicle hire or sales premises – legal status of applicants – whether application is a “sham” – whether satisfaction under SEPP 55 as to potentially contaminated land – whether arrangements for the disposal and management of sewage satisfy cl 7.9 Wyong Local Environmental Plan – whether sufficient information about number and nature of vehicle movements – whether access from a classified road (Pacific Highway) is appropriate – whether there is sufficient information to grant the application.

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159
CIVIL PROCEDURE – parties – joinder – where s 34 agreement has been reached – issues to be considered in the determination of s 34 – whether issues disclose a reasonable cause of action – whether issues would be sufficiently addressed absent joinder as per s 8.15 Environmental Planning and Assessment Act 1979 – public interest – joinder granted – joinder results in intervenor being allowed to raise merit considerations.

Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156
JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) – whether decisions authorise use of land – purpose of use of land – whether for recreation area – whether development consent required – whether development for purposes of recreation area on a public reserve under the control of or vested in the council – whether continuance of a use of land for a lawful purpose – whether enlargement, expansion or intensification of use – whether use abandoned – whether use unlawfully commenced – development consent not required for use – no breach of Part 4 of EPA Act Judicial Review – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 5 of EPA Act – whether council decisions approve an activity – duty to examine and take into account environmental impact of activity – whether council breached duty in approving dog on-leash activity – duty to obtain, examine and consider EIS for activity likely to significantly affect environment – whether council breached duty in approving dog off-leash activity and dog on-leash activity – whether each activity likely to significantly affect the environment – breaches of Part 5 of EPA Act.

Entrepreneur Enterprises Pty Ltd v Lane Cove Council [2020] NSWLEC 1572
MODIFICATION APPLICATION – modification of consent – child care centre – number of children.

Ozaras v Inner West Council [2020] NSWLEC 1573
APPEAL – stop work order – complying development certificate for alterations and additions – demolition of walls and roof – orders.

Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v O’Haire [2020] NSWLEC 158
ENVIRONMENTAL OFFENCES: sentence – unlawful taking of water – plea of guilty – factors to take into account in determining sentence – environmental harm – offences committed deliberately and for financial gain – no contrition or remorse demonstrated – extra curial punishment – totality principle applied – monetary penalty imposed – publication order made – costs ordered.

Environment Protection Authority v Central Coast Council [2020] NSWLEC 157
EVIDENCE – admissibility – exceptions to the hearsay rule provided by s 87(1)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) – alleged admission – whether alleged admission was made with authority for the purposes of s 87(1)(b) of the Evidence Act – alleged admission not made with authority – whether alleged admission was made within the scope of the maker’s employment for the purposes of s 87(1)(b) of the Evidence Act – alleged admission not made within the scope of the maker’s employment – alleged admission not an admission able to be relied upon because neither limb of s 87(1)(b) of the Evidence Act satisfied – evidence rejected – consequential rejection of further evidence that was contingent on acceptance of rejected “admission".

R.I.G Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2020] NSWLEC 155
CIVIL PROCEDURE – separate determination of questions – where appropriate – separate questions ordered.

Kilzi v Cowra Shire Council [2020] NSWLEC 1566
DEVELOPMENT APPLICATION – multi dwelling housing development – terrestrial biodiversity – effect of proposed development on heritage significance – likely environmental impacts – solar access – site analysis.

Hatherly v Georgalas [2020] NSWLEC 1562
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo – obstruction of views – whether the obstruction is severe – the bamboo has been pruned – orders for removal – orders to restrict the height of future hedges.

Queensland

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park near the hospital which was impact assessable – where the planning scheme required development on the subject site to “support non-residential uses that have a close nexus” with the hospital – where the primary judge found that while the proposed car park had a close nexus with the hospital, it would not support a non-residential use that had a close nexus with the hospital – where the primary judge held that there was non-compliance with the planning scheme – where the primary judge took into account that the car park had a close nexus with the hospital – where the primary judge concluded in respect of the decision under s 60(3) of the Planning Act 2016 (Qld) that the balance of factors favoured the approval of the application despite non-compliance with the planning scheme – whether an aspect of non-compliance with the planning scheme can be taken into account as a relevant matter under s 45(5)(b) of the Planning Act 2016 (Qld) in the assessment of the development application.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park on a site near the hospital which was impact assessable – where the relevant Acceptable Outcome under the planning scheme set a limit of three storeys or 10.5m in height for the site – where the height of the proposed development was six storeys and 19.25m – where the primary judge found that a car park of six storeys was not beyond community expectations which therefore complied with the Performance Outcome to which the Acceptable Outcome corresponded – where the primary judge found that there was an economic need and community need for the car park – whether, after accepting that the car park was not beyond community expectations and there was need for the car park, the primary judge had to consider if there was a need for the proposed development at the specific site.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park near the hospital which was impact assessable – where the applicants were the long term developers for the priority development area that included the hospital and a number of car parks both existing and proposed – where the car parks operated by the applicants contributed significant funds to the charitable hospital foundation – where the applicants were concerned about the viability of the ongoing development of the priority development area and the revenue to the charity – where the primary judge found that the height of the proposed development was within community expectations – whether the expectations of the applicants as “significant stakeholders” should have been taken into account when assessing community expectations
Acts Interpretation Act 1954 Qld s 14D – Planning Act 2016 Qld s 3, s 5, s 43, s 44, s 45, s 59, s 60 – Planning and Environment Court Act 2016 Qld s 43, s 46, s 63.

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – DISCRETION OF CONSENT AUTHORITY – where the respondent lodged a development application with the applicant Council to construct multiple townhouses in a low-density residential zone – where the application was properly made at a time where multiple townhouse developments were permitted in low-density residential zones under the Brisbane City Plan 2014 – where, after the conclusion of the hearing before the primary judge, but before judgment, the applicant Council resolved to amend the Brisbane City Plan 2014 to prohibit the development of multiple townhouse developments in low-density residential zones – where the learned primary judge allowed the respondent’s appeal and approved the development – where the applicant complains that the learned primary judge did not take the amendments into account as required by the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 – whether the learned primary judge properly considered the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 – whether the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 should be given determinative weight.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the development proposed by the respondent involved the removal of four native trees – where the learned primary judge characterised the four native trees as “unremarkable” – where the applicant Council complains that the learned primary judge’s description of the trees as “unremarkable” was made without evidence – where the applicant Council contends that the relevant provisions of the Biodiversity Overlay Code within the Brisbane City Plan 2014 should be interpreted to require the blanket protection of native trees – whether the learned trial judge erred by describing the trees as “unremarkable” – whether the learned trial judge erred by allowing the respondent’s appeal and approving the development notwithstanding the destruction of the four native trees.
Planning Act 2016 Qld s 45, s 45(5)(a), s 45(5)(b), s 45(7), s 45(8), s 60, s 60(3).
Planning and Environment Court Act 2016 Qld s 46, s 63; Sustainable Planning Act (repealed), 2009 Qld s 326(1)(b). 

Legislation

Commonwealth

Great Barrier Reef Marine Park Amendment (Environmental Management Charge) Regulations 2020
27/11/2020 – This instrument amends the Great Barrier Reef Marine Park Regulations 2019 to extent the current waiver of the Environmental Management Charge (EMC) to 30 June 2021 in order to provide continued relief to the industry. 

Water Amendment (Minor Amendments to Water Resource Plans) Regulations 2020
16/11/2020 – This instrument amends the Water Regulations 2008 to allow Basin States to make amendments to their accredited Water Resource Plans that fall within the particular kinds described in the Water Regulations 2008 as minor or non-substantive amendments for the purposes of section 66 of the Water Act 2007. 

NSW

Regulations and other miscellaneous instruments
Biodiversity Conservation Amendment (Exemptions) Regulation 2020 (2020-684) – published LW 27 November 2020
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Amendment (Certification) Regulation 2020 (2020-686) – published LW 27 November 2020
Biodiversity Conservation Amendment (COVID-19) Regulation 2020 (2020-671) – published LW 19 November 2020
Environmental Planning and Assessment Amendment (Moorebank Avenue Realignment) Order 2020 (2020-675) – published LW 20 November 2020
Planning and Environment Legislation Amendment (COVID-19) Regulation 2020 (2020-672) – published LW 19 November 2020
Water Management (General) Amendment (COVID-19) Regulation 2020 (2020-673) – published LW 19 November 2020

Environmental planning instruments
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Dining) 2020 (2020-696) – published LW 27 November 2020

Bills passed by both Houses of Parliament – 19 November 2020
Bushfires Legislation Amendment Bill 2020
Liquor Amendment (24-hour Economy) Bill 2020
National Parks and Wildlife Legislation Amendment (Reservations) Bill 2020

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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