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Inside track: Property & Real Estate

09 March 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Airports overcome weak passenger growth to report record profits
Australia’s four major airports have continued to report increasing levels of joint profits from aeronautical activities, according to the ACCC’s annual Airport Monitoring Report. The airports collectively earned $276.1 million in operating profit from car parking in 2018-19, down 2.5 per cent (24 February 2020).  More...

Early uptake of first home loan deposit scheme favours single buyers, people under 30
Nearly half the applicants using a new Federal Government scheme to purchase a property with a deposit of as little as 5 per cent are planning to buy outside Sydney, Melbourne or Brisbane (17 February 2020).  More...

Darling Harbour all Hands Brewing House sells for $20 million
Sales represent continued commercial interest in the rapidly growing craft brewing sector, according to Mr Musca. Figures compiled by the founder of Craft Beer Reviewer and certified beer judge, John Elliott, showed that craft breweries were the fastest growing category in the pub sector (19 February 2020).  More...

Victoria

Peregrine projects gets green light for Collingwood precinct
Melbourne developer Peregrine Projects has received approval for a $95 million commercial precinct in the city's emerging office hub of Collingwood (28 February 2020).  More...

Questions remain over sunlight
New legislation aimed at protecting inner-city parks from overshadowing has been amended to remove Docklands from its remit at the direction of the Minister for Planning Richard Wynne. The proposed amendment to the Melbourne Planning Scheme outlines new controls to protect public parks from overshadowing in winter (26 February 2020).  More...

Radical calls for 'cycling superhighways' stretching hundreds of kilometres from suburbs to cities
Huge stretches of cycling 'superhighways' could soon open in an attempt to encourage more commuters to find alternate transport methods to work. The Royal Automobile Club of Victoria hopes hundreds of kilometres of cycling routes will ease congestion on the roads and public transport systems (26 February 2020).  More...

NSW

Building ratings reform may impact ‘smaller developers’
The property development industry will “radically change” and there are concerns development costs may blow out if the NSW government’s Design and Building Practitioners Bill is passed (21 February 2020).  More...

Lendlease hits $112b in development as profits pivot to overseas
Global developer and construction giant Lendlease has put its troubled engineering business behind it and bounced back with $112 billion worth of developments as it looks to generate more earnings overseas (20 February 2020).  More...

Dahua moves on $350m masterplan
Chinese-based developer Dahua Group, one of the biggest land holders in Sydney’s south-west, has moved ahead on its $350 million masterplan south of Wollongong, and is now planning to construct 1,264 new homes at the $1 billion master planned community (19 February 2020).  More...

Toplace submits plans for $52m Zetland project
The fast-growing Sydney suburb of Zetland may soon welcome two mid-rise residential buildings after developer Toplace lodged a development application (18 February 2020).  More...

Queensland

PCA: New Queensland projects added to 2020 Infrastructure Australia priority list
The Gold Coast Light Rail Stage 3A and three sections of the Bruce Highway are amongst four new Queensland projects added to the Infrastructure Priority List (28 February 2020).  More...

PCA: Thirteen ways to energise Queensland’s Economy
The Property Council has provided its 2020-2021 Pre-Budget submission to Queensland Treasury, suggesting measures the government can take to boost Queensland’s economy (28 February 2020).  More...

Brisbane’s $5.4bn cross river rail board dismissed
The Queensland government will dismiss the 10-member independent board overseeing the state’s largest infrastructure project as the $5.4 billion Cross River Rail project moves into the construction phase (28 February 2020).  More...

Interest now open for spit tourism and hospitality sites
The Palaszczuk Government has commenced the second expression of interest process for development sites on the iconic Gold Coast Spit (28 February 2020).  More...

Brisbane tower halted to give crowded school more growing room
A planned 20-storey apartment tower right next to the "at capacity" Buranda State School will not proceed after the Queensland Government and the developer reached an agreement (27 February 2020).  More...

Developer Aland wins approval for Four Towers in Southport
Sydney developer Aland will build four towers in Southport after gaining approval from the Gold Coast City Council. Only one submission was made against the proposal relating to traffic impacts for access to a neighbouring property (26 February 2020).  More...

Spyre Group wins approval for Burleigh Heads tower
Brisbane-based developer Spyre Group is set to replace a 12-year-old apartment block with an 18-storey apartment tower on Burleigh’s The Esplanade (25 February 2020).  More...

Council refuses Ridong's $160m Gold Coast development
Council has voted unanimously to refuse Ridong Group's $160 million development in Tallebudgera following backlash from the community (21 February 2020).  More...

Spit master plan implementation bill passed
The Implementation of The Spit Master Plan Bill 2019 passed in Queensland Parliament, supports the government’s plan to improve The Spit as a community asset for future generations, balancing open space with the release of commercial site opportunities (19 February 2020).  More...

Published – articles, papers, reports

Infrastructure priority list: Project and initiative summaries 2020
Infrastructure Australia: 26 February 2020
The Infrastructure Priority List is the authoritative guide to the priority infrastructure investments Australia needs to secure a sustainable and prosperous future. The list has a strong record of driving national investment and has become a key reference point for governments at all levels.  More...

Airport monitoring report 2018-19
Australian Competition and Consumer Commission: 24 February 2020
Australia’s four major airports have continued to report increasing levels of joint profits from aeronautical activities, according to this ACCC’s annual Airport Monitoring Report.  More...

REIA News – 20 February 2020
In this issue: Surge in real estate climate change consciousness.  More...

In practice and courts

Review of the Lands Acquisition Act 1989: Discussion Paper
Details of how to make a submission are available on the Department of Finance’s website. Submissions close on 17 April 2020.

Queensland

North Queensland Regional Plan
The first North Queensland Regional Plan has been finalised and will come into effect in March 2020. You can read an overview of the plan which includes five initial catalytic projects that have also been identified including renewable hydrogen, defence, agribusiness, advanced manufacturing and tourism. The region includes five local government areas: Burdekin, Charters Towers, Hinchinbrook, Palm Island and Townsville (February 2020).

Title Registry Update Issue 163: Update to overseas witnessing requirements
Part 61 (Witnessing and Execution of Instruments or Documents) of the Land Title Practice Manual (Qld) has been updated to clarify the supporting evidence which must be deposited with all paper Titles.
 These requirements will only apply to instruments or documents that are witnessed outside Australia by an Australian consular officer or authorised employee of the Commonwealth on and from 24 February 2020 (17 February 2020).  More...

Cases

Victoria
Cumming & Ors v Minister for Planning & Anor (No 2) [2020] VSC 40
PRACTICE AND PROCEDURE – Costs – public interest litigation – planning disputes – net community benefit – separate representation of Minister and proponent – whether justified – Oshlack v Richmond River Council (1998) 193 CLR 92; Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27; (2015) 49 VR 535

Alliance Developments Pty Ltd v Arbab & Ors (No 2) [2020] VSC 37
PRACTICE AND PROCEDURE – costs – application for indemnity costs – whether caveator and solicitor should pay costs – Civil Procedure Act 2010 (Vic) ss 17, 18, 20, 21; Transfer of Land Act 1958 (Vic) s 89A

GG & PM Burrell Pty Ltd v Butler Market Gardens Pty Ltd [2020] VSCA 31
TORT – negligence – nuisance – spray damage to spring onion crop – damages – assessment of damages – likely crop yield – extent of market for spring onions – evidence – extent of evidence – competing evidence – method of calculating loss – no error in judge’s assessment
DAMAGES – appeal – assessment of damages – advantages enjoyed by trial judge – loss to be compensated – method of calculating loss – determination of likely yield rate – application for leave to appeal granted – appeal dismissed

Chan & Anor v Liu & Anor [2020] VSCA 28
REAL PROPERTY – caveat – appeal against dismissal of application to remove caveat under s 90(3) of Transfer of Land Act 1958 – respondent said to have failed to settle on time – factual dispute whether parties agreed to extension of time for settlement – applicants entered into contract to sell property to third party after purporting to rescind contract with respondent – whether serious question to be tried whether respondent has caveatable interest in property – whether balance of convenience favoured maintenance of caveat – strong basis that respondent elected not to rely on performance of contract – maintenance of caveat precluded applicants to perform contract with third party – leave to appeal granted – appeal allowed – Piroshenko v Grojsman (2010) 27 VR 489 considered
PRACTICE AND PROCEDURE – ground of appeal on which applicants succeeded not raised with primary judge – whether applicants precluded from raising new argument on appeal – discretion to allow new argument – appeal from interlocutory judgment – no further evidence would have been adduced – Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Doherty v Murphy [1996] VicRp 86; [1996] 2 VR 553 considered

Yeung v Santosa Realty Co Pty Ltd [No 2] [2020] VSCA 29
COSTS – appellant successfully challenged apportionment of liability determined by trial judge – application by unsuccessful first respondent to vacate order that it pay successful appellant’s costs of the proceedings below – whether unsuccessful first respondent denied opportunity to obtain contribution from second respondent for appellant’s trial costs – application to vacate order rejected

Chrisanthou v Chrisanthou (Building and Property) [2020] VCAT 200
CO-OWNERSHIP – Property Law Act 1958: Pt IV – dispute – joint tenants; application for sale of co-owned land – whether sale should be refused – respondent claims that he owns the land in its entirety pursuant to family agreement made in 2000 and affirmed until 2013 – respondent claims mutual agreement to sever and that half share held on trust by applicant as tenant in common for the respondent – respondent seeks by counterclaim a declaration that he is entitled to the transfer of the applicant’s half share in the property – counterclaim dismissed

Axicom Pty Ltd v Melton CC (Red Dot) [2020] VCAT 190
NATURE OF CASE – summary dismissal of objector application for review where devoid of planning merit and intended to maintain a commercial advantage
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - LEGISLATION – interpretation or application of statutory provision - VCAT Act s 75; principles for summary dismissal in a planning matter
PRACTICE OR PROCEDURE – consideration of individual instance or systemic issues
Whether proceeding objectively devoid of planning merit is misconceived and lacking in substance; consideration of an objection brought by a commercial competitor; discussion of summary dismissal and strike out

Kilpatrick v Head, Transport for Victoria [2020] VSC 53
PLANNING AND ENVIRONMENT – financial loss following reservation of land for a public purpose under a planning scheme for Outer Metropolitan Ring Road – valuation – hypothetical plans of subdivision – estimated development costs – comparable sales – turner analysis – nearby quarry – quarry buffer area – award of compensation – Planning and Environment Act 1987 (Vic) ss 98(1), 99, 101, 105, 109(1A); Land Acquisition and Compensation Act 1986 (Vic) ss 80, 89(1)

Queensland

Taylor & Anor v Brisbane City Council [2020] QPEC 5
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of proposed demolition of a timber and tin dwelling in the Traditional building character overlay in City Plan 2014 – whether the demolition will result in the loss of traditional building character – whether the demolition complies with the Traditional building character (demolition) overlay code in City Plan 2014. Planning Act 2016 Qld ss 45 and 60; Planning and Environment Court Act 2016 Qld s 45

JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a retirement facility in a Low density residential zone – whether the proposed development is of an appropriate height – whether there is inconsistency between a zone code and neighbourhood plan code and, if so, which prevails – whether there is conflict occasioned by bulk, scale, form and intensity – whether there is a need for the proposed development
Planning Act 2016 Qld s 45, s 59, s 60; Planning and Environment Court Act 2016 Qld s 43, s 45, s 47

YQ Property Pty Ltd v Brisbane City Council & Ors [2020] QPEC 2
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for multiple dwellings in the low density residential zone
ASSESSMENT – compliance with the planning scheme – whether the proposed development complies with the planning scheme – whether there are relevant matters which justify approval – weight to be given to amendments and prospective amendments of the planning scheme
Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

Cases to 24 February 2020

Horizon Housing Company v Ross [2020] QCAT 41
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – TENANCY DISPUTE – where applicant applied to terminate residential tenancy agreement with respondent – where failure to leave the ground for termination – where warrant of possession of tenanted property sought
LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RENT – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION OF LESSEES – where general tenancy agreement required respondent to pay rent – where notice to leave predicated on respondent’s failure to remedy rent breach on notice – where outstanding rent substantial at time of hearing – where respondent failed to engage with applicant to arrange payment plan – where respondent failed to attend hearing – where application properly grounded
LANDLORD AND TENANT – HUMAN RIGHTS LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION OF LESSEES – whether tenant’s right under Human Rights Act 2019 to privacy family and home ought prevail over lessor’s right to termination order for tenant’s material breach of lease and residential tenancy legislation – where Residential Tenancies and Rooming Accommodation Act 2009 valid, effective and limiting according to its provisions – where exercise of discretion requires consideration of human rights and balancing of legislative purposes – whether termination order should be made in all the circumstances – whether termination of tenancy agreement appropriate, lawful and proportionate
Human Rights Act 2019 Qld s 3, s 11, s 13, s 15, s 17, s 24, s 25, s 26, s 31, s 48
Queensland Civil and Administrative Tribunal Act 2009 Qld s 3, s 4, s 8, s 10, s 11, s 12, s 13, s 28, s 33, s 57, s 90, s 93, s 127; Residential Tenancies and Rooming Accommodation Act 2008 Qld s 4, s 52, s 61, s 83, s 277, s 280, s 281, s 293, s 325, s 326, s 328, s 329, s 330, s 337, s 349, s 350, s 351, s 352, s 415

Neilsens Concrete Pty Ltd & Anor v Brisbane City Council [2020] QPEC 3
PLANNING AND ENVIRONMENT – APPLICATION – where a development approval was granted by this court for a concrete batching plant to be operated on the subject site – where the second applicant is the owner of the subject site – where the second applicant intends to lease the subject site to the first applicant for the intended operation of a concrete batching plant – where the respondent council refused a minor change to the development approval – where the respondent council contends the concrete batching plant use has been abandoned – where the first and second applicant seek declaratory relief pursuant to s 11 Planning and Environment Court Act 2016
TOWN PLANNING – ABANDONMENT – where the respondent council contends the use of the subject site for a concrete batching plant has been abandoned – where previous tenant gave declaration of abandonment to respondent council – whether the use has been abandoned – whether the second applicant intended to permanently abandon or terminate the subject site’s use as a concrete batching plant
ONUS OF PROOF – whether applicants or respondent council bears the onus to prove abandonment of use – where respondent asserts the applicants bear the onus – where the applicants assert who bears the onus need not be determined
INTENTION – whether the owners or occupiers intention for the use of land to be answered by his subjective intentions – whether subjective intentions of owner or occupier but one of the circumstances to be considered
Integrated Planning Act 1997 Qld; Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld

Legislation

Queensland
Acts – 26 February 2020
No 6 Implementation of The Spit Master Plan Act 2020
No 9 Natural Resources and Other Legislation (GDA2020) Amendment Act 2020

Bills

Implementation of The Spit Master Plan Bill 2019
Introduced by: Hon C Dick MP on 26/11/2019
Stage reached: Passed with amendment on 19/02/2020

Subordinate legislation as made – 14 February 2020

Nature Conservation (Wildlife Management) (Low Impact Activities) Amendment Regulation 2020 (Qld)
This Regulation is made under the Nature Conservation Act 1992. The policy objective of the Regulation is to broaden the range of activities that are currently listed in section 41B of the Nature Conservation (Wildlife Management) Regulation 2006. The Regulation will achieve this by broadening the definition of law impact activities

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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