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Inside track: Planning, Environment & Sustainability

08 July 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Scathing' report on environment approvals finds 80 per cent contained errors or were non-compliant
Almost 80 per cent of federal environmental approvals examined in a high-level review were non-compliant or contained errors, Australia's audit office says (25 June 2020).  More...

Investing in agritech to enhance sustainable farming practices
The Morrison Government is backing new technology to help Australian farms become more drought resilient with innovative projects that will help to reduce emissions without driving up the cost of production or doing business (25 June 2020).  More...

Institutional investors unhappy with government response to climate action
Climate change might be infiltrating investor conversations at every level but the big question is, will investors abandon their sustainability ambitions to deal with the financial shocks of the pandemic? (25 June 2020).  More...

Bond issuance: a fair way to deliver funding for Affordable Housing
Urban Taskforce Chief Executive, Tom Forrest, welcomed the announcement by Federal Minister for Housing and Assistant Treasurer, Michael Sukkar MP, of Australia’s largest ever bond issuance for social and affordable housing totalling $562 million (25 June 2020).  More...

The 'golden demographic' is moving to regional Australia in big numbers
A new report shows more regionally-based millennials — people aged between 20 and 35-years-old — moved to other regional places than to capital cities. It is part of a broader trend in some areas of Australia as regional towns fight back against the brain drain (23 June 2020).  More...

NSW

Largest ever purchase for national park estate
The 153,415 hectare Narriearra Station in far North West NSW is the largest purchase of private land for national parks in the State’s history (27 June 2020).  More...

NSW government releases 'shared backyard' vision for greener city
Parklands and other open spaces should be within just 200m of high-density homes and 400m from schools and workplaces, under new NSW Government guidelines prioritising greenery in the wake of COVID-19 (25 June 2020).  More...

NSW Groundwater allocations
The NSW Department of Planning, Industry and Environment is making new water access licences available in 43 groundwater sources across NSW. The controlled allocation approach also preserves a portion of the unassigned groundwater to meet the future needs of urban water suppliers and holders of basic landholder rights (25 June 2020).  More...

Queensland

Trial of remote, real-time environmental monitoring rolled out
A trial of remote, real-time monitoring of air, noise and water quality is being rolled out by Queensland’s environmental regulator (22 June 2020).  More...

Environmental offsets see important habitat protected
The Palaszczuk Government’s program of environmental offsets is set to see two important areas of natural habitat protected in south east Queensland and in the Northern Brigalow Belt (19 June 2020).  More...

Do Gold Coast's car-stacking developments stack up?
Council approves a unit block that could set a benchmark for parking management but there are benefits and drawbacks, says a town planner (19 June 2020).  More...

First day in court in historic challenge to Clive Palmer’s Galilee Coal Project
Young Queenslanders and rural landholders, represented by the EDO, have appeared in Queensland’s Land Court for the first time in their landmark legal case against Clive Palmer’s Galilee Coal Project (19 June 2020).  More...

Multi-billion-dollar Brisbane development forges ahead
A $2.1 billion transformation of the Eagle Street Pier and Waterfront Place precinct into Brisbane’s premium business and leisure destination is a step closer after commercial property group Dexus lodged development plans with Brisbane City Council (18 June 2020).  More...

Eagle Street transformation moves ahead as DA lodged
Dexus has lodged its proposals for a $2.1 billion transformation of a key stretch of Brisbane riverfront with Brisbane City Council (17 June 2020).  More...

Townsville City Council to crack down on grotty properties under proposed law
The council proposes measures to force landlords to maintain run-down and vacant properties, remove graffiti, and make the sites safe and tidy (17 June 2020).  More...

In practice and courts

ANAO Report No 47 of 2020: Referrals, Assessments and Approvals of Controlled Actions under the Environment Protection and Biodiversity Conservation Act 1999
The objective of this audit was to assess the effectiveness of the Department of Agriculture, Water and the Environment’s administration of referrals, assessments and approvals of controlled actions under the Environment Protection and Biodiversity Conservation Act 1999. (25 June 2020).  More...

NSW

NSW Revenue: State Revenue Legislation Further Amendment Act 2020
State Revenue Legislation Further Amendment Act 2020 received assent on 24 June 2020. The amendments to the the Duties Act 1997, the Land Tax Act 1956 and the Land Tax Management Act 1956 made by that Act commenced from that date See the State Revenue Legislation Further Amendment Act 2020 (25 June 2020).  More...

Service NSW is currently trialling a pilot NSW strata portal – your feedback is important
The Strata Portal is an online register that collects information from strata schemes across NSW. It will become a central and accessible point of critical information on the state’s strata schemes for citizens, regulators and owners (23 June 2020).  More...

2019-2020 Water sharing plan reviews
The purpose of water sharing plans is to prescribe how water is managed, firstly to provide for the environment and also to support social and economic outcomes. The Commission is specifically interested in your comments regarding the associated environmental, social and economic outcomes and any opportunities for improvement you have identified. Submissions closed on 5 July 2020.  More...

NSW Revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. Construction must commence within three months of the contract date.  More...

NSW Planning Department: Have your say - Draft plans and policies

Greener Places Design Guide
Notification start-end date 25/06/2020 - 07/08/2020
The Draft Greener Places Design Guide has been released for consultation. The draft guide provides information on how to design, plan and implement green infrastructure in urban areas throughout NSW.  More...

A Housing Strategy for NSW
Notification start-end date 15/06/2020 - 24/07/2020
A Discussion Paper has been prepared to seek feedback and form the basis of a NSW Housing Strategy. The Strategy will take a whole-of-government approach to meeting NSW’s housing needs.  More...

NSW OEH: $16 million in funding for NSW manufacturers facilities
For manufacturers as part of the NSW Government Energy Saver program to help them save energy, money and stay competitive globally. The first round of funding closes on 30 June 2019.  More...

Changes to Housing SEPPs
The SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020.  More... 

Queensland

PCA: Local Government Budget Update
South-East Queensland Councils are currently releasing their budgets for the 2020-2021 financial year. These include the Gold Coast City Council, Sunshine Coast City Council and Redland City Council (26 June 2020).  More...

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

Queensland Planning Legislation
Urgent amendments to the Planning legislation are in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19. Note Temporary use licence updated 26 June 2020.  More... 

Cases

NSW

Environment Protection Authority v Albiston [2020] NSWLEC 80
ENVIRONMENTAL OFFENCES: person concerned in the management of a company which caused a place to be used as a waste facility without lawful authority – executive liability - plea of guilty – sentencing principles – no actual environmental harm – low potential for environmental harm – whether offence committed recklessly - substantial financial losses to third party caused by the commission of the offence – offence committed for financial gain – whether defendant had capacity to pay monetary penalty to be imposed - monetary penalty imposed – costs orders made

Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67
ENVIRONMENT AND PLANNING – validity of development control order – manner of service – s 10.11 Environmental Planning and Assessment Act 1979 – email service arrangements can be indicated by conduct of parties – stop work order was served and was effective
ENVIRONMENT AND PLANNING – validity of development control order – adequacy of time for compliance with stop work order – schedule 5, clause 27 Environmental Planning and Assessment Act 1979 – determination of a “reasonable period” for compliance is an objective question of fact –circumstances of previous stop work order are relevant – if stop work order maintains current state of affairs compliance forthwith is not an unreasonable period – immediate compliance not limited to clause 27(2)
ENVIRONMENT AND PLANNING – validity of development control order – adequacy of reasons – read as a whole the reasons are more than a recitation of the circumstances that enliven the power to issue an order – in any case they could comprise adequate reasons
ENVIRONMENT AND PLANNING – validity of development control order – whether factual foundation to enliven power to issue – Council had sufficient factual foundation
ENVIRONMENT AND PLANNING – whether work undertaken breached development control order –– work undertaken did not conform with the modification to the development control order – stop work order breached
EVIDENCE – where evidence is not evidence of truth – Respondent given sufficient opportunity to respond to criticisms relating to his evidence – Respondent not a witness of truth – Respondent’s evidence should not be relied upon absent some independent corroboration
ENVIRONMENT AND PLANNING – validity of complying development certificate – breach of clause 3.7.2.7 of Building Code of Australia – complying development certificate not authorised to be issued – complying development certificate invalid
ENVIRONMENT AND PLANNING – whether breach of orders for entry – service of notices of entry was effective – failure to give access breached the orders
DISCRETION – s 25E Land and Environment Court Act 1979 – discretion to validate complying development certificate – invalidity arising from absence of power – no steps available to permit validity – breach integral part of the complying development certificate – no reasonable way to sever non-compliant element of the consent – s 25B discretion not available – if available not exercised on circumstances of case
GENERAL DISCRETION – breach of inspection notices – whether declarations sought are bare declarations – declarations serve the public purpose of denouncing conduct – discretion not exercised

Simpfendorfer v Northern Beaches Council [2020] NSWLEC 1274
DEVELOPMENT APPLICATION – consolidation of two lots into one lot – proposed construction of a dwelling house and granny flat – whether proposal is consistent with the desired future character of Oxford Falls Valley – whether potential impacts of the proposal are acceptable – grant of consent not opposed by Respondent

Armidale Regional Council v O'Connor [2020] NSWLEC 77
CIVIL ENFORCEMENT – proceedings to remedy or restrain a threatened breach of the Local Government Act 1993 – Council meeting called to consider motion to terminate general manager’s contract – whether power to terminate general manager’s contract is an implied power under s 334 of the Local Government Act 1993 or an entitlement under the terms of the contract – whether exercise of implied statutory power conditioned by procedural fairness requirements – whether Councillors failed to accord procedural fairness to general manager – whether apprehension of bias by reason of Councillors being accusers – no apprehended bias as Councillors are not accusers – whether apprehension of bias by prejudgment of Councillors – no apprehended bias through prejudgment – whether failure to afford general manager opportunity for a hearing – duty to accord procedural fairness owed by Council as decision maker and not individual Councillors – no threatened failure by Council to afford general manager opportunity for a hearing – no threatened statutory breach – proceedings dismissed with costs

Blacktown City Council v Paciullo; Liang [2020] NSWLEC 75
COSTS – class 4 civil enforcement proceedings – enforcement of brothel closure order – consent orders made in terms sought in summons – capitulation warranting costs order in council’s favour

Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74
APPEAL – separate question of law – statutory construction of floor space ratio in environmental planning instrument

Dexus CPA Pty Ltd v Sydney Metro [2020] NSWLEC 71
NOTICE TO PRODUCE TO THE COURT - Notice to Produce to the Court issued in Class 3 compulsory acquisition compensation proceedings - recipient of Notice seeks to have it set aside - recipient of Notice accepts some elements to be unobjectionable - Notice amended during course of hearing - recipient accepts amendments are ameliorative but presses objections to the Amended Notice - consideration of whether Amended Notice oppressive - objected to paragraphs of the Amended Notice are oppressive - judicial amendment not possible - striking out does not preclude service of a further notice when all the recipient’s evidence filed and served - objected to paragraphs struck out

Hall Street A Pty Ltd v Waverley Council [2020] NSWLEC 1235
DEVELOPMENT APPLICATION – retention and adaptive reuse of a cottage identified as a local heritage item and construction of a shop top housing development – existing use – contravention of the height of buildings development standard – design excellence – building separation and setbacks – solar access – privacy

Central Coast Council v Pastoral Investment Land & Loan Pty Ltd [2020] NSWSC 777
CONTRACT — breach — parties enter into a Deed which contemplates a re-zoning of defendant’s land so that it is partly zoned industrial and partly zoned conservation — Deed provides for defendant to lodge a development application to subdivide the land into two lots to reflect the zonings — Deed further provides for the defendant to transfer to the Council the conservation lot following approval of the subdivision — defendant lodges development application for subdivision and vegetation clearing — Council issues Notice of Determination consenting to subdivision but rejecting vegetation clearing — defendant appeals to Land and Environment Court — whether defendant by failing to lodge subdivision application breached implied term to do all that is reasonably necessary to secure performance of the Deed — held that Deed does not prevent exercise of rights of appeal — held that defendant not in breach where rights of appeal have not been exhausted — specific performance not granted LOCAL GOVERNMENT — powers, functions and duties — property — whether Council entered into the Deed ultra vires or unlawfully — held that Council had statutory power to enter into the Deed LOCAL GOVERNMENT — powers, functions and duties — property — whether the Deed included an unlawful fetter upon the future exercise of Council’s statutory powers — held that Council did not fetter the future exercise of its statutory powers where Deed does not include any obligation upon the Council to grant development consent

The Next Generation Pty Ltd v Independent Planning Commission [2020] NSWLEC 70
PRACTICE AND PROCEDURE – statutory right of objector to State significant development otherwise designated development to appear as a party in proponent appeal

Russo v Northern Beaches Council [2020] NSWLEC 1259
DEVELOPMENT CONTROL ORDER and DEVELOPMENT APPLICATION – order to demolish front fence – development application to demolish front fence and construct a new front fence – insufficient information to be satisfied of jurisdictional preconditions – proposal is contrary to the character of the locality

Kovacs v Council of the City of Sydney [2020] NSWLEC 1258
DEVELOPMENT APPLICATION – State Heritage listed terraces – integrated development – alterations and additions – prefabricated and detachable multipurpose platform – extension of the dumbwaiter – heritage conservation – balance between conservation and adaptive reuse

Naddaf v Parramatta City Council [2020] NSWLEC 1254
DEVELOPMENT APPLICATION — dual occupancy and Torrens Title subdivision – Contravention of the development standard for minimum allotment size for a dual occupancy development – locality identified as a special character area

Queensland

Symbolic Resources Pty Ltd v Kingham & Ors [2020] QSC 193
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the Land Court decision involved errors of law in relation to the construction and application of s 265(11) of the Mineral Resources Act 1989 (Qld) – whether the respondent’s objection was a ‘properly made objection’ pursuant to ss 265(11) and 260 of the Mineral Resources Act 1989 (Qld) – where an objection is duly served upon delivery of the objection pursuant to s 399(2) of the Mineral Resources Act 1989 (Qld) and s 39A of the Acts Interpretation Act 1954 (Qld) – where service of an objection upon the applicant within the objection period is not a mandatory requirement of s 260 of the Mineral Resources Act 1989 (Qld)
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the Land Court considered matters not included in an objection in contravention of s 268(3) of the Mineral Resources Act 1989 (Qld) – where the Land Court exceeded its jurisdiction by entertaining a matter not included in an objection
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the Land Court decision had jurisdiction under s 269(4) of the Mineral Resources Act 1989 (Qld) to consider matters dealt with under a separate statutory regime – whether the Land Court considered the adequacy of the applicant’s environmental authority conditions
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – NEW MATTER ARISING IN COURT - where the applicant was self-represented in the initial Land Court proceedings – where the Land Court allowed a new witness to give evidence without prior notice to the applicant – whether the applicant was given a reasonable opportunity to adduce evidence in response to this new evidence – whether the Land Court adequately assisted the applicant as a self-represented litigant – whether the applicant was given the opportunity to make an effective choice – whether this amounts to a breach of procedural fairness
Environmental Protection Act 1994 Qld s 181

Pimpama Commercial Pty Ltd v Council of the City of Gold Coast [2020] QPEC 33
PLANNING AND ENVIRONMENT LAW – CHANGE OF APPROVAL CONDITIONS – TAVERN – where tavern is approved for 12am closure – where application for extension of operating hours to either 2am or 4am – where tavern located in neighbourhood centre at Pimpama – whether the proposed extension of hours is consistent with the role and function of the centre -whether proposed extended operating times would unacceptably impact on amenity- whether there is a community need for the proposed extension of hours
Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

Blu Con Pty Ltd v Brisbane City Council [2020] QPEC 32
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for partial demolition, extension of and clearing of vegetation on a local heritage place
ASSESSMENT – compliance with the planning scheme – whether the proposed development complies with the planning scheme – whether the proposed development complies with the strategic framework – whether the proposed development complies with the heritage overlay code
Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

Shun Pty Ltd v Logan City Council & Anor [2020] QPEC 31
PLANNING AND ENVIRONMENT – APPLICATION – applications in pending proceeding – where the substantive proceeding involves an appeal by a submitter against the Council’s decision to approve a mixed use development that includes a supermarket – where the economic analysis lodged with the development application indicated an intention to seek a supermarket or variety store and that a prospective operator might be an Asian/Chinese supermarket and variety store – where the appeal was part-heard when the application was made – whether the co-respondent’s proposed change is a minor change – whether the co-respondent should be permitted to change its application
PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against Council approval of a development application seeking a development permit for material change of use for a mixed use development involving 198 multiple dwellings on top of a new shopping centre in the specialised centre zone – whether the proposed development is would complement the existing district centre, whether the proposed development would undermine the viability of the existing district centre – whether the proposed development accords with the planning strategy for new or expanded centres – whether there is a demonstrated community and economic need for the proposed development – whether the planning strategy for new or expanded centres operates as an exception to the planning policy that supermarkets are not to locate in a specialised centre – whether the proposed development could be appropriately conditioned to limit it to use for an “Asian themed” supermarket – whether the proposed development should be approved in the exercise of the planning discretion
Planning Act 2016 Qld s 45, s 59, s 60, s 65, s 66; Planning and Environment Court Act 2016 Qld s 43, s 45, s 47

Legislation

NSW

Proclamations commencing Acts
Fines Amendment Act 2019 No 13 (2020-272) — published LW 19 June 2020
Water Management Amendment Act 2018 No 31 (2020-273) — published LW 19 June 2020
Strata Schemes Management Amendment (Building Defects Scheme) Act 2018 No 49 (2020-299) — published LW 26 June 2020

Regulations and other miscellaneous instruments
Building and Development Certifiers Amendment (Provision of Information) Regulation 2020 (2020-300) — published LW 26 June 2020
Building and Development Certifiers Amendment (Refund of Fees) Regulation 2020 (2020-301) — published LW 26 June 2020
Civil and Administrative Tribunal Amendment (Fees) Regulation 2020 (2020-302) — published LW 26 June 2020
Civil Procedure Amendment (Fees) Regulation 2020 (2020-303) — published LW 26 June 2020
Crown Land Management Amendment (Reserve Trusts) Regulation 2020 (2020-310) — published LW 26 June 2020
Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2020 (2020-312) — published LW 26 June 2020
Home Building Amendment (Fees) Regulation 2020 (2020-314) — published LW 26 June 2020
Strata Schemes Management Amendment (Building Defects Scheme) Regulation 2020 (2020-323) — published LW 26 June 2020
Coal Mine Subsidence Compensation Amendment (Contributions) Regulation 2020 (2020-274) — published LW 19 June 2020
Water Management (Application of Act to Bellinger River Coastal Floodplain Alluvial Groundwater Water Source) Proclamation 2020 (2020-290) — published LW 19 June 2020

Environmental Planning Instruments
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Low Rise Housing Diversity Code) 2020 (2020-331) — published LW 26 June 2020
State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment (Heritage Conservation Areas Exemption) 2020 (2020-332) — published LW 26 June 2020
State Environmental Planning Policy (Infrastructure) Amendment (Energy Storage Technology) (No 2) 2020 (2020-333) — published LW 26 June 2020
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2020 (2020-334) — published LW 26 June 2020

Bills introduced

Government
Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020

Non-Government
Water Management Amendment (Water Rights Transparency) Bill 2020 (No 2)

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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