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Inside track: Property & Real Estate

09 December 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Australia makes top 10 for real estate investment
Australia just became one of the top ten countries to buy real estate with inbound investments to increase sharply in 2021 (04 November 2020).  More...

Office outlook optimistic for 2021
There is likely to be “no major demise” to the global office sector, despite remote working arrangements, with higher rental incentives expected in CBD offices, according to a global survey by Savills Investment Management (04 December 2020).  More...

Australian commercial property firms see environmental management as increasingly important to their business
Many companies that work in commercial real estate are lagging behind other industries in terms of good environmental management, but there is an increasing number that are catching up fast, a new international report has found (03 December 2020).  More...

Value of home loans hit pre-GFC high despite COVID-19
The ABS October Lending and Business Figures have revealed the value of new loan commitments for housing grew for the fifth consecutive month and the value of owner occupier (03 December 2020).  More...

Australian cities need post-covid vision, not free parking
Many Australian cities have fallen back on offering free car parking to attract visitors back to the CBD after the pandemic. In contrast, cities around the world are basing their recovery strategies on bold and evidence-based urban transformations (04 December 2020).  More...

Foreign buyers responsible for greater proportion of commercial property transactions in 2020: JLL
The percentage of commercial property transactions involving foreign investors has jumped in the past year, although overall sales volumes are well down on 2019 (02 December 2020).  More...

First Home Buyers dominate Australia’s Property Market for the first time in a decade
Australia has recorded a ten-year high for first homes buyers in the last quarter, according to the latest REIA’s “The Housing Affordability Report” (02 December 2020).  More...

PCA: Property industry supporting economic recovery
“The extension of HomeBuilder to March 2021, and its modification to reflect market conditions and construction timelines will help to keep the new housing construction pipeline flowing through 2021 (02 December 2020).  More...

New trade agreement could be a boon for Australia’s industrial property market
A recently signed trade agreement between 15 Asia-Pacific countries, representing the largest trading bloc in the world, could have positive flow-on effects for Australia’s commercial property industry, according to one analyst (30 November 2020).  More...

HomeBuilder extension will support the economy: HIA
The extension of HomeBuilder is both a step forward for jobs and astep towards a return to pre-COVID levels of home building for the housing industry. Most importantly the extension of HomeBuilder will provide a step up for thousands more Australians who aspire to home ownerships (29 November 2020).  More...

Victoria

Property giants enter Melbourne Build-to-Rent market
Canada’s Oxford Properties has struck its first build-to-rent deal in Melbourne, acquiring a 7,000sqm development site in Footscray. The acquisition, and impending plans for a $450 million, 700 apartment project on the site, will act as an entry point for Oxford—the property arm of giant Canadian pension fund OMERS (03 December 2020).  More...

Protecting and restoring Victoria’s heritage
The state’s most important cultural landmarks and buildings are being restored and protected thanks to the Andrews Labor Government’s $60 million Living Heritage program (01 December 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...

NSW

Good news!! ABS housing approval stats show welcome signs of recovery in NSW
Figures released by the ABS show a significant “end of COVID-bounce” in the month of October with the NSW planning system approving 4,865 dwellings (total public and private sector, apartment and separated dwellings).This represents an increase of 32.1 per cent and shows that the planning reforms in NSW are starting to have an impact (01 December 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...

Queensland

Developer lodges dual-tower west end plans
Private developer Manly Properties has unveiled plans to develop a dual tower residential development and public riverside space for its 1.1-hectare landholding in Brisbane’s West End (04 December 2020).  More...

Clive Palmer could be forced to pay millions more after election spend
The Electoral Commission of Queensland has filed an application in the Supreme Court asking for a ruling on whether former federal MP Mr Palmer is a property developer, and therefore banned from donating to Queensland political parties or candidates (03 December 2020).  More...

Frydenberg proposed delisting part of wetland to allow Queensland's Toondah Harbour development
The former federal environment minister, Josh Frydenberg, proposed removing protections from an area of internationally significant wetlands after he was lobbied by a developer wanting to build 3,000 apartments at Moreton Bay in Queensland (03 December 2020).  More...

Huge residential towers set for Brisbane's oldest suburb - and some residents aren't happy
Almost 1000 new units are planned for just one street in Brisbane's Kangaroo Point. Now residents are saying enough is enough (03 December 2020).  More...

Tower plans for Gold Coast mansion
Marquee Development Partners have submitted plans to demolish a Gold Coast mansion and build a 17-storey apartment tower (03 December 2020).  More...

PCA: Queensland Parliament extends COVID Legislation
The COVID-19 Emergency Response and Other Legislation Amendment Bill 2020 was passed by Parliament. Following strong advocacy from the Property Council, the rental relief provisions of the Regulation will not be extended past the current 31 December 2020 expiry date (03 December 2020).  More...

Investor demand pushes house prices to record highs in Brisbane
Real estate prices continued to climb in every capital city in November while Brisbane prices reached record territory, according to CoreLogic (01 December 2020).  More...

Stockland wins approval for fitness ‘shred’ hub
Stockland has gained approval to build a “shred” factory as part of the Kawana Waters masterplanned community on the Sunshine Coast (01 December 2020).  More...

Conservation or just blanket opposition to development?
The Cooperative Research Centre for Developing Northern Australia's State of the North 2020 report has cited a failure to address the regulatory issues impeding the north, including vegetation management, water, land tenure and planning issues (01 December 2020).  More...

PCA: Queensland Budget a missed opportunity to attract job-generating investment
The Budget represents yet another missed opportunity for Queensland to attract the private sector investment the state desperately needs to create new jobs and facilitate new revenue streams. “The lack of action on Build to Rent is a prime example of a missed opportunity to attract job-generating investment into Queensland (01 December 2020).  More...

Queensland budget 2020: Property market wrap-up
Property tax concessions are notably absent from the Queensland budget as the state details its plans for the year to come (01 December 2020).  More...

Brisbane turns over a new leaf for rooftop gardens
Brisbane developers will be able to add rooftop gardens without impacting profitable floorspace if proposed amendments to the city plan go ahead (24 November 2020).  More...

Council to sell off surplus Wynnum Road, Kingsford Smith Drive land
More than 50 properties were resumed for the Wynnum Road corridor upgrade, and some of the land will now be sold off (24 November 2020).  More...

In practice and courts

Commonwealth

Productivity Commission: Register of foreign-owned water entitlements
This inquiry will examine the effectiveness, costs and benefits of the Register of Foreign Ownership of Water Entitlements (04 December 2020).  More...

Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2020
Introduced with the Foreign Investment Reform (Protecting Australia's National Security) Bill 2020, amends the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 to establish a new fee framework for applications, notices and notifiable national security actions under the Foreign Acquisitions and Takeovers Act 1975.
Committee report (26/11/2020) considered by scrutiny committee (20/11/2020)
Senate Standing Committee for the Scrutiny of Bills; Scrutiny Digest 16 of 2020

Australian heritage grants now open
Grants are now available for projects that strengthen our national heritage. All places on the National Heritage List are eligible to apply until 7 January 2021. To find out more, visit the Business Grants Hub.  More...

ARNECC consultation drafts of Model Participation Rules and Model Operating Rules
The Australian Registrars National Electronic Conveyancing Council feedback on consultation drafts of the Model Operating Requirements and Model Participation Rules Version 6 will be published in February 2021 and take effect in March 2021.

API: IVSC agenda consultation 2020
Following the publication of IVS (effective 31 January 2020), the IVSC Standards Review Board and the IVSC Technical Boards have decided to publish an Agenda Consultation Invitation to Comment paper to consult with stakeholders and other interested parties on future topics to be included in any revisions to IVS.
The API will be making a submission on the IVSC Agenda Consultation 2020 and welcomes feedback and comment from any Members by 14 December 2020. Members can provide comments to standards@api.org.au (November 2020).  More...

API member alert: Code of Ethics and Rules of Professional Conduct
The Code of Professional Conduct has been renamed and reclassified as the Rules of Professional Conduct (Rules). The Rules are mandatory for all Members and Appendix 1 of the Rules contains Rules for Valuers which are applicable to Members providing valuation services of real property and plant, machinery and equipment (chattels). Read the new Rules here. Effective 28 February 2021.

API reminder: 2021-2026 APIV new scheme survey
With the APIV Scheme due to expire on 31 August 2021, the API is currently in the process of preparing an application for a new APIV Scheme to commence on 1 September 2021 for a further period of five years (‘New Scheme’).  More...

API: Two technical information papers published
The API Standards Steering Committee has approved the release of the following Technical Information Papers: 1. Technical Information Paper (ANZVTIP13) – Valuations for Compensation and Compulsory Acquisition and Resource Pack and 2. Technical Information Paper (ANZVTIP14) – Considerations when Forming an Opinion of Value when there is a Shortage of Market Transactions (24 November 2020).  More...

Australian Bushfires Disaster Emergency Declaration — understanding your privacy obligations
The Attorney-General has made the Privacy (Australian Bushfires Disaster) Emergency Declaration (No. 1) 2020 (the emergency declaration) under Part VIA of the Privacy Act 1988 (Cth) (Privacy Act). The emergency declaration was made in response to bushfires in Australia resulting in death, injury and property damage occurring from August 2019 into 2020.The emergency declaration expires on 20 January 2021.

Announcements, Draft Policies and Plans released 2020

NSW

Registrar general: Timetable to digital survey plans in NSW launched
Some important deliverables in the next 12 months are:
December 2020: Develop roadmap to a fully digital subdivision approval process in NSW
July 2021: Surveyors will be able to create survey plan workspaces in the NSW Land Registry Services (LRS) portal and pre-fill titling documents online
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 (03 December 2020).  More...

Registrar general: Strata and community title COVID-19 signing options extended
The Government has passed Regulations to extend temporary arrangements for strata and community schemes which allow alternative signing options during COVID-19. The changes, which permit a scheme to execute an instrument through signature rather than affixing the common seal, have been extended to 13 May 2021.  More...

Queensland

P&E Practice Direction No 2 of 2020
Planning and Environment Court Practice Direction No 2 of 2020 issued by the Chief Judge, 2 December 2020

Have your say: Brisbane City Council Green Bridges
02 December 2020 - Property Council of Australia
Brisbane City Council is seeking feedback on proposed alignments of two new Green Bridges between Toowong and West End and St Lucia and West End. To view the proposed alignment options and provide feedback for the Toowong to West End Green Bridge, please click here. To view the proposed alignment options and provide feedback for the St Lucia to West End Green Bridge, please click here. Consultation for both of the Green Bridges is open until 29 January 2021.

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. You can view details of the proposed amendment to City Plan on website.. Submissions are due by December 13, 2020. To have your say, please click here.

Planning support during COVID-19
The Queensland Government passed urgent changes to include applicable event provisions in the Planning Act 2016 in response to the COVID-19 pandemic. Declarations of applicable events- On 2 October 2020, the Planning Minister further extended the COVID-19 applicable event until 31 January 2021.

Reminder: Planning legislation amendment
The additional time provided through the extension notice applies to development approvals in effect on 8 July 2020 or which come into effect between 8 July 2020 and 31 October 2020. For example, a development approval that would have ordinarily lapsed on 1 August 2020 now won’t lapse until 1 February 2021.  More...

COVID emergency measures extend to 30 April 2021
The recently re-elected Queensland Government has introduced a Bill to extend the operation of COVID emergency measures until 30 April 2021.  More...

Temporary use licences - Planning (COVID-19 Emergency Response) Regulation 2020
This temporary regulation establishes requirements for keeping documents physically available for inspection and purchase in recognition of health and safety restrictions. This enables local governments to continue to meet their statutory obligations. The regulation is in effect to 31 December 2020.  More...

Support for the Gold Coast’s building and construction sectors
The City of the Gold Coast has announced a range of incentives to support the property industry. The measures are intended to stimulate and accelerate building and construction work, especially for smaller scale projects. The measures are outlined here. The measures will be available from 1 October 2020, with the exception of the Express Development Application process which will be available from the 27 October 2020. Click here to find out more about the Council’s stimulus measures and Express DA service.

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...

Safer Buildings program enters final stage
The QBCC is administering the three-part Safer Buildings program to understand the extent of combustible cladding use in Queensland’s private buildings. The Safer Buildings program has advanced considerably with Part 3 of the combustible cladding checklist now underway. The deadline for building owners to finalise the Part 3 assessment is 3 May 2021. For more information visit www.saferbuildings.qld.gov.au.

Practitioners reminded to set-up OSR Online account by 18 December
The Office of State Revenue reminds practitioners that they must create new accounts using OSR Online by 18 December 2020.  More...

Commercial leasing guideline extended
An extension to the mandatory leasing provisions introduced to give effect to the National Commercial Code of Conduct, has now been enacted through the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Amendment Regulation 2020. The amendments introduce an ‘extension period’ and separate the requirements between the response period (29 March 2020 to 30 September 2020) and the extension period (1 October 2020 to 31 December 2020).
Note: You can access the Amendment Regulation here. The Queensland Small Business Commissioner will continue to assist with resolution and mediation of COVID-19 affected small businesses leases.

PCA: Land Tax Relief extended
As part of its ‘mini-budget’ the Queensland Government has announced a 25 per cent land tax rebate is available for eligible properties for the 2020-21 assessment year. The due dates for applications for the land tax rebate are: 2019-20, applications close on 31 October 2020 and 2020-21, applications close on 26 February 2021.
The rebate is only available if you owned an eligible property at midnight on 30 June 2019 and/or 30 June 2020, and were liable for land tax in relation to the property (2020).  More...

Modernised body corporate regulations to start in March 2021
The Queensland Government has finalised a modernised set of corporate regulations to take effect from 1 March 2021.  More...

Community titles changes for COVID-19 period
More measures have been introduced to support the community titles sector in Queensland.  More...

Consultations
Burdekin Falls Dam Raising project draft terms of reference for an environmental impact statement – closes 28 January 2021
Cross River Rail Project request for project change application 9 – Southern Portal Area – closes 24 December 2020
Urannah Project draft terms of reference for an environmental impact statement – 29 January 20201

Published – articles, papers, reports

 REIA News – 27 November 2020
In this issue: Doom and gloom forecasts continue to be defied for Australian residential property
REIA President on mortgage deferral resumptions on Property TV
What the Royal Commission into Natural Disaster Arrangements means for Aussie real estate.  More...

Australian sustainable finance roadmap
The Australian Sustainable Finance Initiative: 24 November 2020
The Roadmap makes 37 recommendations that will enable the financial services sector, together with regulators and governments, to strengthen Australia’s financial system with the aim of recovering from the impacts of COVID-19 and delivering a transition to a net zero, resource-efficient and inclusive economy.  More...

PC Productivity Insights 2020: Australia’s long term productivity experience
This Productivity Insights research was released on 19 November 2020. It describes Australia's long run economic history and highlights the role of productivity in driving living standards.  More...

Cases

Thorpe v Head, Transport for Victoria & Ors [2020] VSC 804
INJUNCTION – declaratory relief and interlocutory injunction for preservation of significant Aboriginal cultural heritage from prospective harm – restraint of construction of part of the Western Highway duplication project which travels within Djab Wurrung traditional land – Buangor to Ararat – validity and application of Cultural Heritage Management Plan – serious question to be tried – interlocutory injunction granted in respect to ‘specified area’ – Clark v Minister for the Environment [2019] FCA 2027 – Clark v Minister for the Environment (No 2) [2019] FCA 2028 – Simsek v MacPhee (Minister for Immigration and Ethnic Affairs) [1982] HCA 7; (1982) 148 CLR 636 – Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 – Mackenzie & Ors v VicRoads & Ors [2016] VSC 698 – Onus & Anor v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 – Aboriginal Heritage Act 2006 (Vic) ss 4, 5, 27, 28, 29, 38, 42, 54, 63, 64 – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3,9,10, 12 - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 19(1), 19(2), 38. 

LEA Child Care Services v Development Learning Centre Rainbow Pty Ltd [2020] VSC 787
CONTRACT – construction – sale of business agreement – standard form agreement amended – occupancy rate of childcare business – Material Adverse Change alleged – obligation to disclose anticipated drop in occupancy rate after completion – conditions precedent – due diligence period – breach of warranties alleged – availability of remedies specified in agreement – claims dismissed
CONSUMER LAW – misleading and deceptive conduct – alleged misrepresentation by silence – sophisticated parties – whether reasonable expectation of disclosure – conduct not misleading in context of contract – claim for misleading conduct dismissed – Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, Donne Place Pty Ltd v Conan Pty Ltd [2005] QCA 481 applied – Concrete Construction Group Pty Ltd v Litevale Pty Ltd [2002] NSWSC 670; (2002) 170 FLR 290 cited – Competition and Consumer Act 2010 (Cth), Schedule 2, Australian Consumer Law, s 18.

Bevendale Pty Ltd v Lucky Eights Pty Ltd [2020] VSCA 312
RETAIL PREMISES LEASE – hotel with gaming machines – premises approved as suitable for gaming – market rent review – whether valuer erred in treating premises approval as being available to hypothetical tenant willing to lease premises – Victorian Civil and Administrative Tribunal erred in setting aside valuation – Gaming Machine Control Act 1991 pt 2A, s 163(5); Gambling Regulation Act 2003 ch 3 pt 3 – appeal allowed
RETAIL PREMISES LEASE – valuation – principles for determination of market rent – Retail Leases Act 2003 ss 37, 94
RETAIL PREMISES LEASE – valuation – principles for determination of market rent – attributes of ‘hypothetical tenant’ – whether hypothetical tenant assumed to have necessary approvals for uses permitted by lease – approval of premises as suitable for gaming – gaming machine entitlements
RETAIL PREMISES LEASE – valuation – principles for determination of market rent – existing tenant’s goodwill – ‘profits method’ – no error by Tribunal – Serene Hotels Pty Ltd v Epping Hotels Pty Ltd [2015] VSCA 228 followed
RETAIL PREMISES LEASE – valuation – circumstances in which valuation of market rent for retail premises can be set aside – Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 applied.

Body Corporate For Roydon Community Titles Scheme 1487 & Anor v Cairns Regional Council & Anor [2020] QPEC 60
PLANNING AND ENVIRONMENT – appeal against approval of a development permit for a material change of use of premises for an indoor sport and recreation use of an F45 gym – impact assessable development under planning scheme – whether inconsistent with scheme benchmarks – whether the proposal will meet an existing community, economic and planning need - whether unacceptable impacts on acoustic amenity – whether unacceptable traffic and parking management – where noise management plan not before the court - development application refused
Acts Interpretation Act 1954 Qld s 14A; Planning and Environment Court Act 2016 Qld ss 5(2), 45, 60

Wilhelm v Logan City Council & Ors [2020] QCA 273
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the planning scheme set out a number of “centre activities” – where the planning scheme also established a hierarchy of centres – where “centre” is not defined – where the proposed development consisted of three uses that fell within “centre activities” – where the primary judge found that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre – where the proposed development was of a small scale – whether the proposed development was for a new centre under the planning scheme
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the proposed site was of an urban character – where the anticipated noise, light and activity of the use of the development was inconsistent with the character of the Rural residential zone, but not with the urban character of the site – where the proposed development did not seek approval for any of the uses anticipated in the Overall Outcomes for the precinct in the Rural residential zone in which the site is situated – whether, as a matter of interpretation of the planning scheme, the uses that were not mentioned in the Overall Outcomes for the Rural residential zone were expressly discouraged in that zone
ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the primary judge was satisfied that there was a community and economic need for the Service station and a planning need for the Service station – where the primary judge was satisfied that the development would not adversely affect existing or planned centres – where impact assessment under s 45(5) Planning Act 2016 (Qld) is one assessment that is carried out against the mandatory benchmarks under paragraph (a) and may be carried out having regard to any other relevant matter that is permitted for the purpose of the assessment under paragraph (b) – whether the primary judge erred in exercising the planning discretion under s 60(3) Planning Act 2016 (Qld).

Hoch v Hoch [2020] QSC 365
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – OTHER MATTERS – where real property owned by the applicant and respondent as tenants in common in equal shares is vested in trustees on the statutory trust for partition – where the trustees have prepared a scheme of partition and served notice of the scheme on the applicant and respondent – where the scheme of partition was prepared in accordance with a “hypothetical valuation exercise” that assumed the property was “fully developed and consistent with respect to land clearing, pasture development, waters and fencing” – where under the scheme of partition, the applicant would receive a lot worth $2 million and the respondent would receive a lot worth $3 million – where the applicant has applied for a variation of the scheme of partition – whether the scheme of partition produces, as nearly as possible, an equal division of the property
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – IMPROVEMENTS – where the applicant has applied to vary a scheme of partition in respect of real property he and the respondent own as tenants in common in equal shares – where the applicant and respondent each claim to have increased the value of the property through improvements and repairs – whether the applicant and/or the respondent is entitled to an allowance to reflect the value of the improvements and repairs they claim they have made. Property Law Act 1974 Qld s 38, s 42, s 43.

Copley & Anor v Valuer-General (No 2) [2020] QLC 42
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where appellants objected to valuation – where the initial valuation was amended on objection – where appellants appealed the amended valuation – where the subject property had previously been subject of appeal to Land Court – where the valuation impact of flooding, transmission lines and odour had been previously considered by the Court – where flood impacts and transmission lines impacts had been considered in amended valuation – whether transmission and odour impacts had been sufficiently accounted for – where they had – whether impact of flooding had been sufficiently accounted for – where it had not
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where the appellant argued that maintenance of relativity relevant – whether the principle of relativity should be preferred to the exclusion of comparable sales evidence – where it was not
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – impact of flooding – use of available flood impact data – whether flooding data accurate – where no finding was made – where a reasonable prudent purchaser would use available flood data
Land Valuation Act 2010 Qld s 18, s 22, s 170(b); Land Court Rules 2000 Qld r 24J.

Tonic Projects Pty Ltd v Ipswich City Council [2020] QPEC 58
PLANNING AND ENVIRONMENT – APPLICATION – pursuant to section 78 of the Planning Act 2016 – whether changes to a development approval are a minor change – whether changes to a development approval result in a substantially different development. Planning Act 2016 Qld.

Cases to 30 November 2020

Royce v Phillis & Anor [2020] QDC 302
CONVEYANCNG – BREACH OF CONTRACT FOR SALE AND REMEDIES – PURCHARSER’S REMEDIES – BREACH OF VENDOR’S STATUTORY DISCLOSURE OBLIGATION OR STATUTORY WARRANTY – where the appellant purchased a property in a community titles scheme – where the appellant claims breach of contract and damages on the basis that the respondents breached their disclosure obligations imposed on them pursuant to the Body Corporate and Community Management Act 1997 (Qld) – where the appellant alleged that the respondents failed to disclose: Planned roadworks for the estate, that the security monitoring system had been decommissioned , that the sign regarding the security system was misleading and the true nature of the fence surrounding the property – where the learned Magistrate dismissed the appellant’s claims at first instance – whether the respondents breached their disclosure obligations to the appellant – whether the learned Magistrate erred in her reasoning and/or denied the appellant natural justice and procedural fairness at first instance.Body Corporate and Community Management Act 1997 Qld ss 206, 207, 223.

Jorgensen v Body Corporate For Cairns Central Plaza Apartments [2020] QDC 300
APPEAL – CIVIL APPEAL – NATURE OF APPEAL – APPEAL AGAINST SUMMARY JUDGMENT - whether appeal is by way of rehearing or strict appeal – whether decision to grant summary judgment is a final decision
APPEAL – CIVIL APPEAL – NATURE OF APPEAL – APPEAL AGAINST REFUSAL TO SET ASIDE SUMMARY JUDGMENT – whether appeal is by way of rehearing or strict appeal – whether decision to refuse to set aside summary judgment is a final decision
APPEAL – CIVIL APPEAL – PLEADINGS – where summary judgment was granted in favour of the plaintiff for a far larger amount than was pleaded – where pleadings internally inconsistent – where pleadings contained annexures
APPEAL – CIVIL APPEAL – BODY CORPORATES – where appellant is a lot owner – where respondent is a body corporate – where plaintiff claimed unpaid contributions and recovery costs – whether recovery costs were reasonably incurred and reasonable in amount
Body Corporate and Community Management Act 1997 Qld s 196
Body Corporate and Community Management (Accommodation Module) Regulation 2008 Qld ss 142, 143.

Shaw & Ors v Idemitsu Australia Resources Pty Ltd & Ors [2020] QLC 40
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – where the applicants requested further and better particulars of a response filed by the respondents in proceedings commenced by the applicants to review a compensation agreement between them and the respondent mining companies – where the respondents declined to give any further and better particulars – whether the respondents were required to provide the further and better particulars sought by the applicants
Land Court Act 2000 Qld s 7; Land Court Rules 2000 Qld r 4; Mineral Resources Act 1989 Qld s 283B, s 363.

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.

Legislation

Commonwealth

Electoral Amendment (Territory Representation) Bill 2020
Senate 03 December 2020 – The Electoral Amendment (Territory Representation) Bill 2020(the Bill) amends the Commonwealth   Electoral Act 1918 (the Electoral Act) to provide more equitable representation, through changes to the method for determining he  number of House of Representatives members for the Northern Territory and the Australian Capital Territory

Native Title Amendment (Infrastructure and Public Facilities) Bill 2020
Finally passed both Houses 03 December 2020 - Amends the Native Title Act 1993 to extend the operation of Subdivision JA, which requires native title holders and claimants to be notified about proposed public works and provides them with an opportunity to be consulted about the impact of the proposed future act on their native title rights and interests, for a further 10 years.

Regulations

Priority Heritage Theme for Nominations for Assessment for the National Heritage List (Assessment Period commencing 1 July 2021) Determination 2020 
04/12/2020 - This instrument determines that the priority heritage theme for the National Heritage List in the assessment period commencing 1 July 2021 will be Indigenous Cultural Heritage.

Native Title (Recognition as Representative Body –Cape York Land Council) Instrument 2021
02/12/2020 - This instrument recognises the Cape York Land Council as the representative Aboriginal/Torres Strait Islander body for the Cape York area for a three year period from 1 January 2021 to 31 December 2023.

Self Managed Superannuation Funds (COVID-19 Rental income deferrals – In-house Asset Exclusion) Determination 2020
26/11/2020 - This instrument determines that assets covered in this instrument are not taken to be in-house assets of the SMSF in the income year/s in which there was an agreement on arm’s length terms that the payment of rent owed could be deferred, or any future income years.

Queensland

Bills

COVID-19 Emergency Response and Other Legislation Amendment Bill 2020
Introduced by: Hon S Fentiman MP on 26/11/2020; Stage reached: 2nd reading adjourned on 1/12/2020
The objectives of the Bill include:
• preserve rights and obligations that have accrued during the ‘response period’ and ‘extension period’
under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Leases Regulation)
• amend the Liquor Act 1992 (Liquor Act) to continue support for the artisan liquor sector by temporarily removing restrictions on sales to the public of the liquor of artisan distillers

Liquor (Artisan Liquor) Amendment Bill 2020
Introduced by: Hon S Fentiman MP on 26/11/2020
Stage reached: Referred to Committee on 26/11/2020

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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