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Inside track: Planning, Environment & Sustainability

09 November 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Mayors commit to clean, local jobs
The mass commitment to a sustainable economic recovery aims to support industries and sectors that invest in a zero carbon future, along with driving strong economic recovery for communities hit hard by twin climate and COVID-19 crises (20 October 2020).  More...

Climate of the Nation: Climate change concern hits 82 per cent
In the wake of the devastating Black Summer bushfires, an overwhelming majority of Australians (82 per cent) say they are concerned about climate change resulting in more bushfires, according to a new benchmark report released by the Australia Institute’s Climate & Energy Program (27 October 2020).  More...

Victoria

Push for a Parliamentary investigation into Victoria’s ‘lost’ heritage homes and buildings
A state MP wants an inquiry to look at the “lost” heritage homes and buildings of Melbourne. Sustainable Australia Party MLC Clifford Hayes is pushing for a Parliamentary investigation amid concern that Victorian heritage laws are too weak (28 October 2020).  More...

Plenty to love in Melbourne’s parklands
Locals in Melbourne’s north are being invited to have their say on a new 17 kilometre trail that creates the missing link between Doreen and University Hill in Bundoora (28 October 2020).  More...

Salvation Army to deliver a community hub in Central Dandenong
The Salvation Army’s $13.5 million community hub development in central Dandenong has been given the green light by the State Government (28 October 2020).  More...

Submissions open for Hexion works approval
Environment Protection Authority Victoria is assessing a Works Approval application from Hexion seeking to increase the capacity of its existing facility by constructing and installing a larger phenolic resin manufacturing facility at Ballarat Road, Deer Park (28 October 2020).  More...

Ensuring Victoria's e-waste doesn't end up in landfill
The Victorian Government will invest $1.7 million to improve the recovery and collection of e-waste across the state. Round two of our e-waste infrastructure grants is ensuring valuable resources from these discarded electronic goods don’t go to waste (27 October 2020).  More...

Hillsong Sheds light on festival hall vision
Hillsong will be the anchor tenant of the iconic venue at 300 Dudley Street, West Melbourne with the megachurch announcing a new “vision” for the site. Festival Hall was placed on the Victorian Heritage Register after the owners submitted plans for a $65 million apartment development on the site (26 October 2020).  More...

Victoria fast-Tracks another tranche of projects
Victoria has approved another round of shovel-ready housing, commercial and renewable energy projects in a bid to further stimulate the second-largest state’s pandemic-hit economy.  More...

NSW

Watchdog urged to draw line in the sand against Boral's mine planned near sensitive sites
The NSW Independent Planning Commission has been urged to reject a miner's plan to expand near the ecologically sensitive Minnamurra River (29 October 2020).  More...

Strict new laws to regulate short-term rentals
Short-term rental accommodation hosts, guests, letting agents and online booking platform operators will soon be subject to strict new laws with a mandatory Code of Conduct for the industry to begin in December (27 October 2020).  More...

Proposed 80km cycle and walking path linking Opera House to Parramatta would be 'great for Sydney'
A proposal for an 80-kilometre cycle and pedestrian path that would wrap all the way from the Opera House to Parramatta's CBD will be considered at the upcoming NSW budget (22 October 2020).  More...

Queensland

Landowner says 'people's life savings will be wiped away' if saleyards expand
A plan to expand Emerald's saleyards has residents worrying about property prices, dust and odour (21 October 2020).  More...

Sunland group flags site sales, company scale back
Queensland-based developer Sunland has announced plans it could wind down its business operations over the next three or more years, as it sells off assets to pay off debts and improve value to its shareholders (21 October 2020).  More..

Lights out as council considers inner Brisbane billboard ban
The council reviewed its process for approving billboards after a protest from Paddington residents when a billboard was put up without community (20 October 2020).  More...

Council looks to sell off properties two years after buying them
The two lots, resumed in 2018 for a road upgrade in Upper Mount Gravatt, were surplus to requirements once the project was complete (19 October 2020).  More...

In practice and courts

Publication of 2018-19 Australian plastics recycling survey
The Australian Government has published the 2018-19 Australian Plastics Recycling Survey which captures the consumption and recycling of plastics in Australia during the 2018–19 financial year (19 October 2020).  More...

COVID-19 relief and recovery funding for conservation, tourism and infrastructure upgrades at national and world heritage places
On 1 October 2020 the Australian Government announced funding of $33.5 million from the $1 billion COVID-19 Relief and Recovery Fund for heritage upgrades across 23 national and world heritage sites. This funding will support 33 projects (13 October 2020).  More...

2020 finalised priority assessment List (FPAL) of species, ecological communities and threatening processes
The 2020 Finalised Priority Assessment List (FPAL) of species, ecological communities and threatening processes for assessment in the period beginning 1 October 2020 has been released. The Minister and the Threatened Species Scientific Committee have agreed to consider further nominations of fire-affected species and ecological communities through the coming year. More...

Industry update on export ban of waste glass
The export ban on waste glass will now commence on 1 January 2021.  More...

Victoria

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

Victorian residential efficiency scorecard, energy savvy upgrades and healthy homes
The Victorian Government has recommenced activities for the Victorian Residential Efficiency Scorecard, Energy Savvy Upgrades and Healthy Homes programs. Consistent with government requirements, all businesses involved in these programs must have a COVIDSafe Plan. More information here

Proposed amendment C211GDAN to the Greater Dandenong planning scheme
Amendment C211gdan to the Greater Dandenong Planning Scheme proposes to make changes to the planning provisions for surplus government land at 9 Maralinga Avenue, Keysborough. The amendment proposes rezoning the site to Neighbourhood Residential Zone 1 (NRZ1), applying the new Development Plan Overlay Schedule 13 (DPO13) to the site, and amending Clause 21.08 to include the Arborist Report as a reference document (29 October 2020).

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

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

NSW

EPA [Draft] Sampling Design Guidelines for sampling of contaminated land
The EPA encourages feedback from stakeholders on the updated draft guidelines to help improve the sampling design and analysis of potentially contaminated land in NSW. Stakeholders can have their say on the consultation website here. The consultation period will be open from 21 September until 8 November 2020.

50-year vision for Sydney's open space and parklands [Draft] discussion paper
The NSW Minister for Planning and Public Spaces has announced the 50-Year Vision for Sydney’s Open Space and Parklands. The draft Vision will kickstart a community wide conversation about how our open and public spaces can grow with us. Read A 50-Year Vision for Sydney’s Open Space and Parklands: A Discussion Paper  and Complete the survey

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

Queensland

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. Read now

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...

Moreton Bay Regional economic development strategy
Moreton Bay Regional Council has developed a Regional Economic Development Strategy that is now open for community consultation.  The strategy provides a 20-year economic vision for Moreton Bay, and a blueprint for sustainable economic growth into the future.  Review and consolidate strategy now due late 2020. To view the draft strategy please click here.

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...

Cases

Victoria

Southern Grampians SC v Superior Selection Pty Ltd [2020] VCAT 1208
Southern Grampians Planning Scheme; section 114 of the Planning and Environment Act 1987; planning enforcement application involving car wash use and associated problems; Tribunal hearing; operator conceding that a breach had occurred and the practical issue being more what remedy should occur; subsequent costs application; Tribunal orders allowing the majority of claimed costs. 

Symmonds v Yarra Ranges SC [2020] VCAT 1203
Application under section 82 of the Planning and Environment Act 1987; Review the decision to grant a permit; Yarra Ranges Planning Scheme; Neighbourhood Residential Zone – Schedule 1; Significant Landscape Overlay – Schedule 23; Incremental Change Area; Neighbourhood Character; Landscape; Land slope; Internal amenity of dwellings.

Rostrevor Parade Pty Ltd v Whitehorse CC [2020] VCAT 1201
Whitehorse Planning Scheme; medium density housing in a Natural change area; medium density housing on a sloping site; varied Standard B17 in Schedule 4 to the General Residential Zone of the Whitehorse Planning Scheme; off-site amenity impacts associated with medium density housing. No permit

Sullivan v Yarra CC [2020] VCAT 1194
Section 82 of the Planning and Environment Act 1987, off-site amenity, adjoining former warehouse conversion, opening on boundary, visibility of proposed development from secluded private open space and within dwelling

Cassarino v Banyule CC [2020] VCAT 1162
Section 77 of the Planning and Environment Act 1987; Banyule Planning Scheme, Neighbourhood Residential Zone, Vegetation Protection Overlay, Design and Development Overlay; one additional dwelling; issues of design response to neighbourhood character, protection of trees, landscaping and drainage.

Denham v Bayside CC [2020] VCAT 1195
Section 77 of the Planning & Environment Act 1987; Bayside Planning Scheme; Neighbourhood Residential Zone Schedule 3; Design and Development Overlay Schedule 3; Development Contributions Plan; Neighbourhood Character; Landscaping Opportunities; Visual Bulk; Design Detail; Side and Rear Setbacks; Dominant Built form; Integration with the Street; Solar Access to Open Space. 

Hutchins v Melbourne CC [2020] VCAT 1180
Section 82 Planning and Environment Act 1987, Melbourne Planning Scheme, clause 54, wall on boundary, double storey building, solar access to north facing windows, overshadowing to existing secluded private open space. 

Kieser Training Pty Ltd v Banyule CC [2020] VCAT 1175
In accordance with the endorsed plans:  Business identification major promotion sign
In accordance with section 68 of the Planning and Environment Act 1987 and Clause 52.05 of the Banyule Planning Scheme, this permit will expire fifteen (15) years from the date of this permit.

Gagliano v Moonee Valley CC [2020] VCAT 1173
Moonee Valley Planning Scheme; alterations and additions in a Heritage Overlay; adding a driveway and carport to the frontage of a contributory dwelling; the Riverview Estate Precinct; traffic and carparking impacts from a crossover being places near to a laneway entrance.

NSW

Moore v Studholme [2020] NSWLEC 1519
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – bamboo and tiger grass – obstruction of views – whether the obstruction is severe – whether the applicant has lost access to views – orders for removal – orders to restrict height of future hedges.  

Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233 [2020] NSWCA 269
LAND LAW – easements – creation of easements by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint

Rochester Estate Pty Ltd v Wingecarribee Shire Council [2020] NSWLEC 1517
DEVELOPMENT APPLICATION – subdivision – draft heritage item

Woods v Sleeman [2020] NSWLEC 1513
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring trees – bamboo – damage to fence – actions taken by the parties – whether further damage is likely

STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495
DEVELOPMENT APPLICATION – additional level to approved four-storey shop-top housing development – exceedance of height control – clause 4.6 – whether objectives of height control met – whether sufficient planning grounds – character

Betop Holdings Pty Ltd v Blacktown City Council [2020] NSWLEC 1511
DEVELOPMENT APPLICATION – multi dwelling housing – whether road design is acceptable

Stocker v Robbins [2020] NSWLEC 1507
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – obstruction of sunlight – obstruction of views – whether the obstruction is severe – whether the applicant has lost access to sunlight and views – impacts on privacy 

Cousins v Transport for NSW [2020] NSWLEC 146
INTERIM INJUNCTION - proposed demolition of a bridge listed as an item of local heritage in a local environmental plan - whether the bridge constitutes a “relic” as defined in the Heritage Act 1977 (the Heritage Act) - imminent demolition of the bridge unless an interim injunction is issued - question as to whether or not the Applicant has a reasonably arguable case that demolition of the bridge would result in a breach of the Heritage Act - consideration of the basis upon which it was said that such a breach might arise - no reasonably arguable case established - injunction refused COSTS - costs in Class 4 proceedings usually follow the event - no discussion of costs during the course of the hearing - contingent costs order made requiring the unsuccessful Applicant to pay the First Respondent’s costs as agreed or assessed unless a party seeks to be heard to propose some alternative costs order 

The Development & Environmental Professionals’ Association v Narrabri Shire Council [2020] NSWSC 1444
PRACTICE AND PROCEDURE – Application to strike out pleadings – Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 – Whether the Court lacks jurisdiction to declare contracts unfair or void under section 106 of the Industrial Relation Act – Application dismissed

Savell v Munro [2020] NSWLEC 1498
TREES (DISPUTES BETWEEN NEIGHBOURS) – is the tree situated on neighbouring land – damage from falling branches – apprehension of injury

Kimberley Developments Pty Ltd v Cicihour Pty Ltd [2020] NSWCATAP 213
Dividing Fences – adequacy of reasons and findings on jurisdictional facts and discretionary grounds – extension of time – discretionary considerations – prospects on appeal – explanation for delay – prejudice and utility of remission for further hearing

Truland Development Pty Ltd v Georges River Council [2020] NSWLEC 1496
DEVELOPMENT APPLICATION – heritage item – proposed new apartments on the site of the heritage item and adjoining sites – conservation works – appropriate curtilage and setbacks – positive benefits of the proposal in balance with detrimental impacts – whether overall the proposed development impacts on the heritage significance of the item – variation sought to the maximum height standard – whether the variation request adequate and should be upheld – area experiencing redevelopment – compatibility with desired future character – setback variation to two street frontages – transition to low density development adjacent – appeal dismissed

Queensland

11 Ludlow Pty Ltd v Brisbane City Council [2020] QPEC 55
PLANNING AND ENVIRONMENT – APPEAL – application for an order that proposed changes to the development application are a minor change. Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld 

Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No.3) [2020] QPEC 56
The appeal is allowed - The controversial condition3 is as follows :“From 12.00am (midnight) to 2.00am, the number of patrons shall be limited to no more than 50.”[5]Pursuant to s 65(1) of the Planning Act 2016

Glamston Pty Ltd v 11 Ludlow Pty Ltd & Anor [2020] QPEC 54
PLANNING AND ENVIRONMENT – APPLICATION – whether there is jurisdiction to grant the declaratory relief sought – code assessable development – originating application seeking declaration that a prospective change to a development application is not a minor change
Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld; Uniform Civil Procedure Rules 1999 Qld

Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 225
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the Council appealed against the refusal of the primary judge on the appeal to the Planning and Environment Court to set aside the stormwater infrastructure charges and some of the traffic trunk infrastructure charges – where one of the grounds of appeal was that the legal approach of the primary judge was in error – where the Council succeeded on the appeal in the reinstatement of the traffic trunk infrastructure charges only and did not obtain leave in respect of the ground based on the legal approach of the primary judge – where considerable time in the hearing of the application for leave to appeal was spent considering the legal approach of the primary judge – whether the outcome of the appeal should be characterised as “contestable” – whether the Council should recover the costs for leave to appeal and the appeal 

Legislation

Victoria

Statutory rules
No 114 Estate Agents (Education) Regulations 2020
20 October 2020. These Regulations come into operation on 21 October 2020.

Acts

National Energy Legislation Amendment Act 2020 (Vic)
Date of assent: 20 October 2020 Act Number: 28/2020

Bills

Environment Protection Amendment (Refund on Bottles and Cans) Bill 2019 (Vic)
Date of second reading speech: 16 October 2020

NSW

Regulations and other miscellaneous instruments
Biodiversity Conservation Act — Final Determination (2020-649) — published LW 30 October 2020
Biosecurity Order (Permitted Activities) Amendment Order 2020 (No. 2) (2020-639) — published LW 30 October 2020
Environmental Planning and Assessment Amendment (Bayside West Special Contributions Area) Order 2020 (2020-640) — published LW 30 October 2020
Protection of the Environment Operations (Waste) Amendment Regulation 2020 (2020-645) — published LW 30 October 2020
Water Sharing Plan for the Namoi and Peel Unregulated Rivers Water Sources Amendment Order 2020 (2020-646) — published LW 30 October 2020
Biodiversity Assessment Method Order 2020 (2020-621) — published LW 19 October 2020
Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 (2020-633) — published LW 23 October 2020

Environmental planning instruments
Standard Instrument (Local Environmental Plans) Amendment (Definitions) Order 2020 (2020-636) — published LW 28 October 2020
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Outdoor Dining—City of Sydney) 2020 (2020-638) — published LW 29 October 2020
State Environmental Planning Policy Amendment (Definitions) 2020 (2020-637) — published LW 28 October 2020
State Environmental Planning Policy Amendment (Tutti Fruitti Cafe) 2020 (2020-630) — published LW 23 October 2020

Bills introduced – 23 October 2020

Government
National Parks and Wildlife Legislation Amendment (Reservations) Bill 2020
Retirement Villages Amendment Bill 2020

Bills passed by both Houses of Parliament – 23 October
Statute Law (Miscellaneous Provisions) Bill 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future. 

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