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Inside track: Planning, Environment & Sustainability

08 July 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Australia’s still building 4 in every 5 new houses to no more than the minimum energy standard
New housing in Australia must meet minimum energy performance requirements. What our analysis found is that four in five new houses are being built to the minimum standard and a negligible proportion to an optimal performance standard (25 June 2019).  More...

PIA responds to CSIRO Outlook report
CSIRO predictions of a slow decline for Australia without long-term planning underline the necessity of adopting a National Settlement Plan, the Planning Institute of Australia said on the 19 June (19 June 2019).  More...

Report shows need for clear environmental protection rules
The release of the Craik report on the 27 June, highlights the importance of strong environmental protection that Australians can understand, navigate and support. All Australians will have a chance to share their ideas as part of the next statutory review of the EPBC Act, due to commence by October 2019 (27 June 2019) More...

Tower failures ignite push for reform
The Planning Institute of Australia has called on the development industry to commit to higher building standards, saying public faith in apartment towers is at a tipping point. (21 June 2019).  More...

Victoria

Protecting Victoria’s Threatened Species
The Andrews Labor Government is taking urgent action to protect and save some of Victoria’s most vulnerable and threatened species, with the launch of Zoos Victoria’s five-year Wildlife Conservation Master Plan. The Labor Government is currently delivering better protections for biodiversity across the state through the Flora and Fauna Guarantee Amendment Bill 2018 and Biodiversity 2037 (27 June 2019).  More...

Improving the Local Government Act
The Local Government Act is being overhauled for the first time in nearly 30 years to pave the way for a more modern, robust and contemporary set of guidelines. It provides a clear legislative framework to support councils to provide essential infrastructure and services in their areas (20 June 2019).  More...

Banning the Bag To Reduce Plastic Pollution
Lightweight, single-use plastic shopping bags will be banned across Victoria from 1 November 2019, under new legislation introduced to parliament on the 19 June, by the Andrews Labor Government. The ban will apply to bags being provided at retail outlets including supermarkets, fashion boutiques, fast food outlets, convenience stores and service stations (19 June 2019).  More...

EPA statement on Ravenhall landfill
Environment Protection Authority Victoria (EPA) welcomes a new VCAT decision to uphold EPA’s works approval for Melbourne Regional Landfill with varied conditions (17 June 2019).  More...

NSW

Iconic social housing apartments with Sydney Harbour views sold to developers
Sydney's iconic Sirius building is sold for $150 million to developers who plan to refurbish the existing building and deliver 89 apartments, along with retail and commercial spaces (28 June 2019).  More...

Scape Plans $1bn UNSW Gateway Precinct
The sites were identified as part of Randwick council’s $300 million Kensington to Kingsford draft planning strategy. The rezoning strategy proposed new building heights for up to 18-storeys and expanded floor-space ratio controls along the light rail corridor. Current planning limits restrict building heights to seven storeys (26 June 2019).  More...

Berejiklian government reveals plan for post-Mascot Towers crackdown
Homeowners and apartment buyers would be owed a duty of care by builders and other participants in the property industry, under proposed reforms outlined by the state government (26 June 2019).  More...

Sustainable density must use evidence and regulated design
All regulations and building codes, new and old, should be scrutinised and discussed with gusto. This means recent debate about the NSW government’s Low Rise Medium Density Housing Code, official on 1 July 2019, is a healthy one (25 June 2019).  More...

Quality green spaces and a million more trees by 2022 under new Premier's priorities
Creating more quality green spaces closer to homes and increasing the tree canopy by planting one million trees in Greater Sydney by 2022 are two new Premier’s Priorities announced on the 25 June (25 June 2019).  More...

City of Sydney declares climate emergency
City of Sydney councillors have voted to declare that climate change poses a serious risk to the people of Sydney and should be treated as a national emergency (25 June 2019).   More...

Reducing the risk of pollution from service station runoff
The NSW Environment Protection Authority has released a guide that outlines how service stations can better protect the environment from potentially polluted run-off from service station forecourts (25 June 2019).  More...

Sydney housing squeeze prompts push for more medium-density development
Medium-density homes like the Keens' have been dubbed Sydney's "missing middle" by NSW Planning Minister Rob Stokes, who believes more terrace-style housing is the solution to the city's real estate squeeze (24 July 2019).  More...

CRCLCL drives world-first green concrete trial on Sydney road
Concrete made using industrial waste from coal-fired power stations and steel manufacturing is being used in a world-first green roads trial in Sydney (17 June 209).  More...

Queensland

Alarm bells rang straight away': Contamination risk worsened by CSG wells, whistleblower warns
Whistleblowers who helped prosecute Linc Energy in Queensland's worst contamination scandal say the State Government is putting royalties and a growing CSG industry ahead of dealing with an ongoing contamination problem (27 June 2019).  More...

Bowen Hills planning changes set new standards
Future development in Bowen Hills will deliver housing diversity, high sustainability standards and generous communal spaces, following an update to the Priority Development Area’s development scheme (22 June 2019).  More...

Sunland Plans Residential Towers at $1.3bn Gold Coast Masterplan
ASX-listed developer Sunland has lodged revised plans for four residential towers at its $1.3 billion masterplan on the Gold Coast. The revised scheme removes plans for four permit-approved commercial buildings and increases the number of apartments from 298 to 310 (19 June 2019).  More...

Sekisui House Unveils $1.5bn Plans for Ripley Town Centre
Japanese-backed developer Sekisui House has revealed its $1.5 billion masterplan vision for Ripley Town Centre in heart of Brisbane’s rapidly growing western corridor. Ripley Valley was declared a priority development area in October 2010 (19 June 2019).  More...

In Practice and Courts

Commonwealth

Amendments to the EPBC Act list of threatened species and ecological communities
The Minister for the Environment, the Hon. Sussan Ley MP, has amended the list of threatened species and ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 to include 34 species and three ecological communities (28 June 2019).  More...

Proposed variation to the National Environment Protection (Ambient Air Quality) Measure standards for ozone, nitrogen dioxide and sulfur dioxide
An impact statement and draft varied measure are required as part of the statutory process to vary a National Environment Protection Measure.  The public consultation period for the Impact Statement and draft varied measure is now open. Submissions close on 7 August 2019.  More...

CER: Public consultation open for changes to solar postcode zones
The Clean Energy Regulator is proposing updates to postcode zones for small-scale technologies under the Small-scale Renewable Energy Scheme. The changes will affect the number of small-scale technology certificates for eligible systems in certain postcodes. If agreed, the changes will come into effect from 1 October 2019 (18 June 2019).  More... 

GBCA Important Deadlines - Green Star certification for your project
Many project teams have timelines set around major events. To support this, these guidelines below (based on typical time frames), which specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones in 2019. Deadlines are from 8 April – 4 November 2019.  More...

Announcements, Draft Policies and Plans released 2019

NSW

EPA Practice Note: Managing forecourt run-off from service stations
The guide provides recommendations on planning and design, managing risks, and approaches for collecting and treating forecourt run-off at service stations. The Practice Note can be downloaded free of charge from the EPA’s website here (25 June 2019).   More...

$1.16 m for local government climate change response grants
The $1.16 million second round of funding in the NSW Government’s Increasing Resilience to Climate Change grants scheme to support local councils will open on 1 July 2019.  More...

The Low Rise Medium Density Housing Code has been deferred to allow for an independent review.
The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008  (Codes SEPP) has been amended to extend this deferral for 45 councils for a further short period, until 31 October 2019, to allow for an independent review to be undertaken of the Code (27 June 2019).  More...

New dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. CPPs must be finalised and published on the ePlanning portal by 1 December 2019

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

Queensland

PCA: Planning Update
A number of local and state government planning related decisions impacting the property industry have been released. These include the Bowen Hills PDA; Brisbane City Council Car Parking Amendments and Draft Infrastructure Charges Resolution (27 June 2019).  More...

Cases

Victoria

Raft Development Group Pty Ltd v Kingston CC [2019] VCAT 960
Seven three storey reverse living townhouses; Whether contrary to ACZ1 expectations; Car parking and traffic; Amenity impacts to neighbours.

Huang v Monash CC [2019] VCAT 954
Section 79 of the Planning and Environment Act 1987; Monash Planning Scheme; General Residential Zone; Vegetation Protection Overlay; Dwellings; Neighbourhood character. No permit

XYZ v South Gippsland SC [2019] VCAT 948
Section 82 of the Planning & Environment Act 1987; South Gippsland Planning Scheme; Farming Zone; Environmental Significance Overlay Schedule 3; Significant Landscape Overlay Schedule 3; Construction of two additional dwellings; previous tribunal decision; Planning Policy; Farming Zone; Impacts on agricultural use of land. No permit

NSW

Arcidiacono as Trustees for the Arcidiacono Family Trust v Blacktown City Council [2019] NSWLEC 1264
DEVELOPMENT APPLICATION – subdivision service station and car wash – vegetation buffer as visual impact to place of State Heritage Significance – vegetation reserve for endangered ecological communities – biobanking – biodiversity conservation

Benmill Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1291
MODIFICATION APPLICATION – impact of the addition of an awning to an approved development on the heritage significance of the heritage conservation area

K Capital Pty Ltd v City of Parramatta Council [2019] NSWLEC 1292
DEVELOPMENT APPLICATION – concept development proposal – extent of demolition and impact on the heritage significance of the Roxy Theatre

Muriniti v King [2019] NSWCA 153
APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW).   APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy.

Llanfoyst Holdings Pty Ltd v Randwick City Council [2019] NSWLEC 1289
APPEAL – development application – alterations and additions to an approved residential flat building – cl 4.6 requests – conciliation conference – agreement between the parties

Woodward v Fenner [2019] NSWLEC 1285
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – sewer pipe – paving – compensation – respondents had applied to remove tree

Oboodi v Hornsby Shire Council [2019] NSWLEC 1287
APPEAL – development application – construction of two dwellings on new lots created by subdivision – heritage – engineering – adequacy of right of way over adjacent property – scale of the proposed dwellings –amenity of private open space – visual impact – replacement plantings – whether Vegetation Management Plan for subdivision can be considered in determining whether there is a net improvement in indigenous vegetation – directions made concerning landscape plan

Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90
OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused - clearing reckless – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence is low-middle range – subjective circumstances of offenders – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate individual fines – adjustment of fines for multiple offenders – director and company owned by director – reduction in individual fines – costs

Wollongong City Council v Phillips [2019] NSWLEC 64
COSTS - Class 4 proceedings - consent orders - outcome achieved by the Applicant by the consent orders substantially in accordance with that sought in the initiating Summons - costs follow the event absent disentitling conduct - no disentitling conduct - costs order appropriate - consideration of whether gross sum order appropriate - gross sum order appropriate - costs ordered in gross sum of $6,000.

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147
ENVIRONMENT AND PLANNING — consent —validity — conditions of consent to be approved by Crown instrumentality — compliance with Environmental Planning and Assessment Act 1979 (NSW), s 91A — whether consent unconditional   ENVIRONMENT AND PLANNING — consent —construction — use of development application in construing development consent — use of environmental impact statement in construing development consent — significance of material being included on public register — when document or plan incorporated into consent — where reference necessary to describe development adequately   ENVIRONMENT AND PLANNING — consent — breach of conditions of consent — consent conditioned by purpose of activity — whether quarry breached limiting purpose by use other than primarily for railway ballast — whether breach where quarrying outside area specified on plan — interference with amenity of neighbourhood — transport of greatly more than 30% of quarrying products by road   ENVIRONMENT AND PLANNING — consent —modification, revocation or review — whether Council consented to change of conditions   ENVIRONMENT AND PLANNING — existing use rights — enlargement, expansion or intensification — scope of existing use rights — date at which existing use rights are assessed — rights limited for railway undertaking on particular lands — effect of consent not negated by existing use rights   ADMINISTRATIVE LAW — judicial review — validity of variation of licence issued by the Environment Protection Authority — jurisdictional facts — conditions under Protection of the Environment Operations Act 1997 (NSW), ss 50 and 58

Queensland

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132
ENVIRONMENT AND PLANNING – ENVIRONMENT PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – CONSIDERATION OF PARTICULAR MATTERS – PUBLIC INTEREST – where the respondent applied to the applicant for a material change of use permit to develop land within the Detached Dwelling Domain of the 2003 Planning Scheme to build a service station, convenience store, take-away food premises and a fast food drive through premises – where the proposed uses of a cafe and fast food premises conflict with the Planning Scheme and “should be considered as undesirable or inappropriate” – where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the applicant may approve uses that conflict with the Planning Scheme provided there are sufficient matters of public interest to justify the approval – where the applicant refused the respondent’s application – where the respondent appealed that decision to the Planning and Environment Court on the basis that, inter alia, there was a ‘need’ for the proposed development – where the learned judge allowed the appeal having been satisfied that the extent of the need for the proposed development was sufficient to justify approval despite its conflict with the Planning Scheme – whether it is in the public interest to maintain the terms of the Planning Scheme unless the contrary is demonstrated – whether the respondent identified how the asserted ‘need’, or satisfaction of such a need, constituted a matter of public interest – whether the Planning and Environment Court applied the statutory requirements under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld). Local Government (Planning and Environment) Act 1990 Qld s 4.3(2)(c), s 4.4(3), s 4.4(5A)(b); Sustainable Planning Act 2009 Qld s 326(1)(b), s 759

Urban Properties Centenary Pty Ltd v Cairns Regional Council [2019] QSC 160
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – INTERPRETATION AND CONSTRUCTION – PARTICULAR CASES – where the applicant developer and respondent Council entered into an infrastructure agreement – where the agreement waived the requirement for payment of certain infrastructure charges, to which the agreement referred, in the event the applicant met various development obligations – where the development obligations were met – where the applicant and respondent dispute which infrastructure charges were accordingly waived under the agreement – where the applicant and respondent each seek declarations from the Court as to which infrastructure charges have been waived. Planning Act 2016 Qld ss 49, 61, 113, 119, 121, 122, 123, 144; Sustainable Planning Act 2009 Qld ss 7, 10

Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128
STATUTES – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the appellant is the owner of a rural property – where the appellant was convicted of having contravened provisions of the Sustainable Planning Act 2009 (Qld) in respect of clearing undertaken on the property – where the appellant was convicted of a “vegetation clearing offence” as defined in the Vegetation Management Act 1999 (Qld) – where the respondent’s authorised delegate issued the appellant with a restoration notice and issued a new property map of assessable vegetation – where the appellant sought to review those decisions in the Queensland Civil and Administrative Tribunal –whether the President erred in finding that a decision maker under s 54B(1) of the Act can reasonably believe that a person had committed a vegetation clearing offence even though the decision maker had actual knowledge that that person had been convicted of committing a vegetation clearing offence
STATUTES – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where s 20B of the Vegetation Management Act 1999 (Qld) provides separate and distinct circumstances in which the decision maker may make a property map of assessable vegetation under the Act – where the word “or” is at the end of each separate consideration under s 20B – whether the President erred in finding that a decision maker was entitled to rely upon multiple subsections of s 20B in making a property map of assessable vegetation
Sustainable Planning Act 2009 Qld; Vegetation Management Act 1999 Qld s 20B, s 54B

Council of the City of the Gold Coast v Ashtrail Pty Ltd & Anor (No.2) [2019] QPEC 26
The  substantive  proceeding  was  concerned  with  an  application  brought  by  the Council of the City of Gold Coast (the Council) against Ashtrail and Talranch. The relief  sought  was  essentially  for declaratory  relief  and  consequential enforcement  4orders pursuant to s11 of the Planning and Environment Court Act 2016 and s180 of the Planning Act 2016. Planning and Environment Court Act 2016 Qld; Planning Act 2016 Qld; Uniform Civil Procedure Rules 1999 Qld

Legislation

Commonwealth

National Greenhouse and Energy Reporting (Measurement) Amendment (2019 Update) Determination 2019
This instrument amends the National Greenhouse and Energy Reporting (Measurement) Determination 2008, to assist National Greenhouse and Energy Reporting scheme reporters by improving the clarity and guidance on emissions and energy reporting and introducing routine updates. (28 June 2019)

Victoria

Bills

Date of second reading speech: 20 June 2019
Environment Protection Amendment Bill 2019

Date of second reading speech: 19 June 2019
Flora and Fauna Guarantee Amendment Bill 2019

Victorian legislation can be accessed here

NSW

Bills introduced Government – 21 June 2019
The object of this Bill is to make miscellaneous amendments to the Environmental Planning and Assessment Act 1979 and instruments made under that Act and to make minor amendments to the Land and Environment Court Act 1979

Regulations and other miscellaneous instruments
Biodiversity Conservation Act 2016 — Final Determinations (2019-283) — published LW 28 June 2019
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Amendment (Local Strategic Planning Statements) Regulation 2019 (2019-282) — published LW 28 June 2019

Environmental Planning Instruments
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Low Rise Medium Density Housing Code) 2019 (2019-291) — published LW 28 June 2019

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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Peter Holt

Peter Holt

Special Counsel

Sydney

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Gerard Timbs

Gerard Timbs

Partner

Brisbane

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