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Inside track: Property & Real Estate

09 October 2019

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

How’s the WiFi? Global certifier now rates Australian commercial property
Developer and fund manager Lendlease has signed an agreement with digital connectivity certification agency WiredScore to rate commercial buildings on their technical capabilities (27 September 2019).  More...

The trends set to shape Australia’s office landscape in the next 10 years
The commercial property industry in Australia could grow to be worth more than $50 billion per annum in 10 years, as it tackles some of the most major – and exciting – challenges it’s ever seen, predicts one of the industry’s top developers (27 September 2019).  More...

Frydenberg tells shopping centre landlords "to take it easy on retailers"
Treasurer Josh Frydenberg has told shopping centre landlords to “take it easy on those retailers” as the sector goes through structural change and major tenants push to secure better rental deals (26 September 2019).  More...

WSAA: Blue + green = liveability: The value of water to liveable communities
Water Services Association of Australia (WSAA) have released a new report highlighting the value of water to liveable communities.In this report, WSAA call on industry and government to advance an integrated, collaborative approach to the planning and delivery of blue and green infrastructure initiatives (10 September 2019).  More...

Follow-up needed on National Settlement Strategy: PIA
The Planning Institute of Australia (PIA) has urged the states and territories to get behind a call by NSW Planning and Public Spaces Minister Rob Stokes for a National Settlement Strategy. PIA National President Steve O’Connor said Mr Stokes’s assessment of the situation currently facing Sydney was equally applicable to Melbourne, Brisbane and Perth (24 September 2019).  More...

Insurers welcome APRA’s call for greater investment in natural disaster mitigation
The ICA welcomed a call by the APRA for substantially greater investment in natural disaster mitigation to improve the affordability and availability of general insurance in Northern Australia (24 September 2019).  More...

Climate change raising risk for mortgagors
A report by Moody’s Investor Services has found a 50 per cent increase in the frequency of natural disasters from the previous decade, which it warns poses a risk to mortgagors, the property market, and Australian residential mortgage-backed securities (RMBS) (24 September 2019).  More...

Rural Funds respond to ‘false and misleading’ ponzi scheme claims
Embattled agricultural landholder Rural Funds Group has responded to the latest round of claims that it inflated the value of more than $900 million of agricultural assets. Rural Funds, which is Australia’s only listed agricultural REIT, owns land which it then leases to operators, with the arrangement providing a stable revenue stream that supports regular distributions to investors (23 September 2019).  More...

Property market has a spring in its step, but a rebound is not yet in the bag Analysis
Another strong day of bidding and buying is pointing to the property market emerging from its funk, but as Stephen Letts writes it faces several challenges before it can help sustain a broader economic recovery (22 September 2019).  More...

Victoria

Development Victoria: Central Pier to remain closed until January 2020
A detailed assessment of Central Pier by our engineering consultants is underway on a priority basis. Development Victoria has acted in good faith and in accordance with the terms of the Central Pier lease. Any legal action will be defended (25 September 2019).  More...

Victoria announces planning guidelines for solar development
Victorian Minister for Planning, Richard Wynne, introduced an amendment to all Victorian planning schemes, implementing the Solar Energy Facilities – Design and Development Guideline. The Guidelines ensure new solar energy facilities, producing one megawatt or more, are built in appropriate location (18 September 2019).  More...

Record grants funding to protect Victoria’s Heritage
The Andrews Labor Government is protecting Victoria’s most important cultural landmarks and buildings with a record $3 million in grants from the Living Heritage Program (18 September 2019).  More...

Victoria’s urf coast gets development protection
The Surf Coast, gateway to national heritage site the Great Ocean Road, is now officially protected from overdevelopment. To protect the Surf Coast's landscape and lifestyle, an area of the it has been declared a distinctive area which the Victorian government says will protect it from urban sprawl (17 September 2019).  More...

NSW

'Lost forever': Developer fined for damage to heritage-listed building
The company pleaded guilty to ripping up the 131-year-old Sydney building's 'rare and outstanding' decorative plaster features and original ceilings (26 September 2019).  More...

Ultimo Pyrmont – A neighbourhood and community not to be messed with
Approving Star City’s proposed tower would destroy a rare example of planning gone “right”, when planners, politicians and the community worked together (19 September 2019).  More...

Five key principles to take Sydney into the future
The city needs enough development to keep up with a growing population, while protecting the parts that everyone cherishes (18 September 2019).  More...

Desane wins approval for 46 apartments in Leichhardt
Sydney-based property developer Desane has been greenlit by Inner West Council for a 46 apartment development in Sydney’s fringe suburb Leichhardt (16 September 2019).  More...

Queensland

Orchard Property Group secures Ripley development site
Privately-owned developer Orchard Property Group has completed its purchase of a 34-hectare development-ready site at Ripley in Ipswich. The Ripley Valley PDA, was declared a PDA in 2010 (26 September 2019).  More...

Signs of life’ evident in Brisbane property market
Examining the June quarter, the Queensland Market Monitor has revealed the state’s house prices are proving strong, “reflecting the state’s ongoing consistent growth and highlighting the state’s resilience when compared with more volatile markets, such as Sydney and Melbourne”. (26 September 2019).  More...

Industry responds to Brisbane design strategies
The Property Council has provided a submission in response to the consultation documents produced in relation to the Brisbane City Council design strategy. The Property Council has recommended that Council maintain this document as a design guide, rather than a statutory document (26 September 2019).  More...

Multi-billion-dollar defence deal ramps up in Ipswich
Rheinmetall Defence Australia has been shortlisted by the Commonwealth to enter the next phase of the $10-$15 billion land tender process, as development continues on its new facility in Ipswich (23 September 2019).  More...

Flood risk reduced as Roma finishes mitigation works
The flood risk for more than 500 properties in Roma has been downgraded after the completion of an $8.3 million mitigation project in the south-western Queensland town (23 September 2019).  More...

$7.1 million Ripley Valley infrastructure agreement to support more jobs
More roads and bridges will be built in the Ripley Valley Priority Development Area with the Palaszczuk Government overseeing the signing of a $7.1 million infrastructure agreement for one of Queensland’s boom growth areas (20 September 2019).  More...

Qld passes Great Barrier Reef run-off laws
Queensland miners, sewer operators and farmers will no longer be able to dump as much run-off into the Great Barrier Reef under a new law. It will set limits on the amount of sediment, fertiliser and pesticide allowed to drain into coastal water catchments that eventually flow into the world's biggest coral reef (20 September 2019).  More...

Delay in Qld prosecution of Adani slammed
A court case over Adani allegedly providing false information has been delayed before it started, after Adani applied for the adjournment late on Thursday for more time to consider the matter. Adani has claimed the allegations are over an "administrative error", which was self-reported in September 2018 (20 September 2019).  More...

AgForce, Local Government Association disagree on land clearing rule
A decision by the High Court to uphold the power of Queensland councils to control vegetation management on category X land will make the process even more confusing for primary producers, according to AgForce (18 September 2019).  More...

REIQ to roll out ‘world-first’ digital tenancy agreements
The Real Estate Institute of Queensland (REIQ) is on track to deliver what it describes as the world’s first fully digitised residential tenancy agreements (17 September 2019).  More...

Brisbane's suburban renewal project not 'just a talkfest'
Brisbane's newest board will seek to give new life to the city's more dilapidated suburbs (17 September 2019).  More...

Published – articles, papers, reports

Vulnerable private renters: Evidence and options
Productivity Commission: 25 September 2019
This research paper examines the experiences of vulnerable people in the private rental market. It also discusses policies that affect outcomes for vulnerable renters.  More...

Australian Bureau of Statistics
17/09/2019 Residential Property Price Indexes: Eight Capital Cities, Jun 2019 (cat no. 6416.0)

In practice and courts

Commonwealth

API member alert: Introduction to Valuation and Property Standards published 1 October 2019
24 September, 2019 - The previously notified version of the Introduction to Valuation and Property Standards has been withdrawn. The new Introduction is dated 1 October 2019.  More...

API: ABFI Residential Valuation Standing Instructions version 2.2
The Residential Valuation Industry Group has conducted a review of V2.1 of the ABFI Residential Valuation Standing Instructions (ABFI RVSI), and have subsequently released a revised version. Version 2.2 of the ABFI RVSI will come into effect on 1 October 2019. The current document, namely Version 2.1, will operate until that time.  More...

CER: Public consultation opens 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.  More... 

Announcements, Draft Policies and Plans released 2019

Queensland

Body Corporate and Community Management Regulations – Consultation on draft legislation
The community and stakeholders are invited to have their say on proposed reforms to regulations under the Body Corporate and Community Management Act 1997 (the BCCM Act). Consultation closes on 18 October 2019.  More...

Attorney General reminder: Free state-wide seminars explain body corporate laws
Queensland’s BCCM will host free seminars across the State to help inform community members about body corporate laws. The seminars will be held in late August and September at the Gold Coast, Logan, Brisbane, Sunshine Coast, Hervey Bay, Gladstone, Mackay, Townsville and Cairns.  More...

Business Queensland: Land titles practice reminder
New Part 61 (witnessing and execution of instruments or documents) starting soon.
New requirements for witnessing will come into effect on 30 September 2019 as a result of upcoming amendments to the Land Act 1994 and the Land Title Act 1994. Find out more by reading the Titles Registry Alert no. 154 or download the final draft of the new Part 61.

North Queensland Regional Plan
The draft NQ Regional Plan is a 25 year strategic, statutory planning document for the local government areas of Burdekin, Charter Towers, Hinchinbrook, Palm Island and Townsville. Consultation on the draft document closes on 22 November 2019.  More...

DNMRE Current Consultations
Moreton: Targeted amendment of the water plan
Feedback on a new draft water plan amendment closes on 01 October 2019.
Cairns South SDA – potential expansion and draft development scheme
Closing date is 11 October 2019.

DES prosecution bulletins
A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions (September 2019).  More... 

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows: Part 3a: extended from 27 August 2019 to 31 October 2019.  More...

Cases

Richmond Football Club Ltd v Verraty Pty Ltd [2019] VSC 597
LEASES AND TENACIES – Retail Leases – Whether a retail premises lease within the meaning of the Retail Leases Act 2003 may, under that legislation, cease to be a retail premises lease within the meaning of that legislation and therefore not subject to its provisions – Effect of avoiding provisions of that legislation on such a lease and any renewed term – Retail Leases Act 2003, ss 1, 4, 7, 11, 35, 46, 50 and 94.

TPSC Pty Ltd v Kingston City Council & Ors [2019] VSCA 204
PLANNING AND ENVIRONMENT – appeal from Trial Division dismissing appeal on questions of law from VCAT – Kingston Planning Scheme – Activity Centre land separately owned by two developers – permits granted in 2008 for each development – agreement under s 173 of Planning and Environment Act 1987 to provide for integrated development of Activity Centre land – section 193 agreement provided for development substantially in accordance with permits issued in 2008 – one developer developed land in accordance with 2008 permit but one did not – 2008 permit expired before any development undertaken – developer applied for new permit in 2014 for more intensive development – other developer objected on ground that s 173 agreement precluded development other than pursuant to 2008 permits – whether s 173 agreement precluded development other than in accordance with 2008 permits‑ – tribunal ordered permit to issue – whether Tribunal misconstrued s 173 agreement – whether Tribunal took into account irrelevant consideration in granting permit – whether judge erred in construing s 173 agreement and upholding Tribunal decision – Planning and Environment Act 1987 ss 67, 77, 84B, 114, 126, 173, 174, 182; Victorian Civil and Administrative Tribunal Act 1998 s 148.

DSL Securities Pty Ltd v Casey CC [2019] VCAT 1489
Review of a decision to refuse to grant a planning permit under section 77 of the Planning & Environment Act 1987 – Casey Planning Scheme – general Residential Zone – subdivision of land – subject land within 500 metres of Hallam Landfill and adjacent a concrete batching plant – air quality – risks to residential amenity. Risks and management of possible landfill gas migration – impact from and on future waste management operations – efficacy of a section 53V audit conducted under the auspices of the Environment Protection Act 1970 – no permit.

Jafari v 23 Developments Pty Ltd [2019] VSCA 201
PARTNERSHIP – existence – nature of agreement – whether partnership agreement entered into by parties – agreement not consistent with intention to create a partnership – intention to enter into profit sharing agreement only – parties were not in a partnership.
CONTRACT – termination or abandonment – inability of proposed vendors to deliver clear title to purchasers as required pursuant to first agreement because mortgagee in possession appointed – new agreement between purchasers and mortgagee in possession – whether first agreement abandoned or terminated because it could not be performed – whether first agreement varied – no variation of first agreement – first agreement abandoned or terminated.
TRADE PRACTICES – misleading or deceptive conduct – whether representation as to ease with which properties could be decontaminated was misleading or deceptive – causation – whether respondents were induced by representation to purchase properties – Fair Trading Act 1999 (Vic) s 9 – Trade Practices Act 1974 (Cth) s 52.
EQUITY – vendor’s lien – whether holders of vendor’s lien entitled to interest – matter not raised before trial judge – no basis for claim to interest.
EQUITY – trusts – whether unit trust created by applicant – time of creation of unit trust by the applicant – whether company held properties as trustee of unit trust before liquidation.

Mayberry v Mornington Peninsula Shire Council [2019] VSC 623
ROADS – whether carriageway easement a public highway at common law – dedication and acceptance – onus of proof – accepted that track through easement a public highway – whether it could be inferred that owner intended to dedicate entire easement as a public highway – intention to dedicate not proved.
LOCAL GOVERNMENT – power of council in s 204(1), Local Government Act 1989, to declare a road to be a public highway for the purposes of the Act – whether carriageway easement a ‘road’ as defined in the Local Government Act 1989 – whether ‘right of way’ in definition of road limited to public rights of way – definition of ‘road’ in Local Government Act 1989 includes a private right of way such as a carriageway easement – whether council’s power under s 204(1) limited by Land Acquisition and Compensation Act 1986 – declaration under s 204(1) not an acquisition by compulsory process – power under s 204(1) not subject to Land Acquisition and Compensation Act 1986 – Council’s decision not affected by jurisdictional error – Local Government Act 1989 (Vic), s 3 – definition of ‘road’, ss 187, 204, 206, 207B, Schedule 5.

Tradiga Pty Ltd v Smada Projects Pty Ltd [2019] QDC 184
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT – application for summary judgment on part of claim under r 293 Uniform Civil Procedure Rules 1999 (Qld) or, alternatively, a preliminary hearing – where part of the claim in question is the plaintiff’s action for damages for breach of contract – where the plaintiff claims the defendant breached obligations owed to the plaintiff by unreasonably withholding consent from the plaintiff to assign its lease to two separate purchasers – where the defendant seeks summary dismissal of the part of the plaintiff’s claim for damages for breach of contract – whether the plaintiff has no real prospect of success on that part of the action – whether there are no triable issues on that part of the claim. Property Law Act 1974 Qld s 121.

TTR1 Pty Ltd v Ruckert & Butcher [2019] QDC 182
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – GENERAL OFFERS AND THEIR ACCEPTANCE – where the parties entered into a Loan Deed and a Purchase Deed in respect of property – where the defendants defaulted under both Deeds – where the parties corresponded about settlement of debts due under the Loan Deed – whether the parties reached a binding settlement agreement – whether any binding settlement gave rise to an immediate accord and satisfaction of the existing claims under the Loan Deed – whether any binding settlement gave rise to only conditional accord and satisfaction of the existing claims under the Loan Deed such that absent performance of the terms of the settlement agreement, the defendants remained liable on the guarantees. Property Law Act 1974 Qld s 56; Cases Cited.

Gao v Shek & Shiu [2019] QDC 179
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – ELECTION AND RECISSION – where the parties entered into a contract for the sale of property – where the contract required the sellers to provide documentation regarding Tenancies disclosed in the contract – where the seller alleged that a Tenancy disclosed was terminated by an order of QCAT prior to settlement – where the buyers discovered an occupant in the property on the day of settlement – where the buyers proceeded to communicate their intention to attend settlement to the seller – where all parties attended settlement – where the seller did not provide documentation regarding the Tenancy disclosed in the contract at settlement – where the buyers did not complete for that failure – where the buyers subsequently purported to terminate the contract – whether the contract created an obligation to provide vacant possession – whether and when a right to election had arisen in respect of the failure to give vacant possession – whether the buyers had elected to affirm the contract despite the presence of the occupant – whether the buyers’ subsequent termination was valid.
CONVEYANCING – FROM CONTRACT TO COMPLETION – POSSESSION – VACANT POSSESSION – where the subject of the contract was a residential dwelling – where an occupier remained in the property at the agreed time of settlement – whether the presence of the occupier substantially interfered with the buyers’ right to possession of a substantial part of the property – whether vacant possession was provided at the time of settlement.

Woody Point Newsagency Pty Ltd v Strydom [2019] QCAT 285
RETAIL SHOP LEASE – OUTGOINGS – RENOVATIONS – RENT CHARGED SUBSEQUENT TO END OF LEASE – where outgoings according to lease allegedly waived – whether waiver legally effective – whether consideration for alleged waiver – whether waiver occurred - where claim for damage caused by prior tenant – whether tenant liable for rent after premises vacated. Property Law Act 1974 Qld s 59; Queensland Civil and Administrative Tribunal Act 2009 Qld s 60; Retail Shop Leases Act 1994 Qld ss 17, 48(1).

Legislation

Commonwealth

Bills

National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019 [No. 2]
HR 16/09/2019 - his bill amends the regulatory framework for Small Amount Credit Contracts (commonly known as payday loans) and consumer leases (known as rent-to-buy schemes), including preventing lessors and credit assistance providers from undertaking door-to-door selling of consumer leases at residential homes.

Commonwealth Electoral Amendment (Real Time Disclosure of Political Donations) Bill 2019
HR 16/09/2019 - This Bill amends the Act to require the agent or financial controller of the party, branch or campaigner to advise the electoral commission of any donation received by the party, branch or campaigner that meets or exceeds the disclosure threshold. The notification must occur within five business days of receipt of the donation.
Bills assented

Criminal Code Amendment (Agricultural Protection) Bill 2019
Assent Act no: 67 Year: 2019 19/09/2019
Consideration of Senate message. Details: House agreed to Senate amendments 12/09/2019
Amends the Criminal Code Act 1995 to introduce two new offences in relation to the incitement of trespass or property offences on agricultural land.

Bills

Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019
Introduced by: Hon L Enoch MP on 27/02/2019
Stage reached: 2nd reading adjourned on 18/09/2019

Subordinate legislation as made – 27 September 2019
No 192 Electrical Safety (Codes of Practice) and Other Legislation (Solar Farms) Amendment Notice (No. 2) 2019
No 195 Rural and Regional Adjustment (Household Waste Payment Scheme) Amendment Regulation 2019

Subordinate legislation as made – 20 September 2019
No 187 Environmental Protection (Financial Provisioning) (Transitional) Regulation 2019
No 188 Nature Conservation (Wildlife) and Other Legislation Amendment Regulation 2019
No 189 Waste Reduction and Recycling (Container Refund Scheme—Material Recovery Agreements) Amendment Regulation 2019
No 191 Fire and Emergency Services (Levy Groups) Amendment Regulation (No. 2) 2019
For each financial year, the owners of prescribed property must contribute to the cost of administering and giving effect to the Fire and Emergency Services Act 1990. The contribution, known as the Emergency Management Levy, recognises that all Queenslanders are at risk from a wide range of emergencies and ensures there is a sustainable funding base for the delivery of fire and emergency services.

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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