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Inside track: Local Government

09 September 2020

#Local Government, #Workplace Relations & Safety

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Inside track: Local Government

Think globally, act locally – the impact of the Human Rights Act 2019 (Qld) on local councils

Human rights are the inalienable rights and freedoms that belong to every person simply because they are human. They are based on the principles of freedom, respect, equality and dignity, which recognise the inherent value of each person, regardless of the person’s background, geographical location, physical appearance, thoughts or beliefs.

Human rights in Australia

Australia was one of 51 members who founded the United Nations (UN) and one of eight nations involved in the drafting of the Universal Declaration of Human Rights (UDHR) which was adopted by the UN in 1948.

Since 1948, Australia has ratified a number of UN treaties such as the International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic and Social and Cultural Rights 1966 (ICESCR) among others.

Countries, such as Australia, who ratify or join an international treaty voluntary accept legal obligations under international law to uphold the stated values. Though Australia has obligations under international law to respect, promote and protect human rights, until enshrined in domestic law, these obligations are difficult to enforce.

Nationally, Australia lacks a legislative framework with respect to human rights. However, the Australian Capital Territory, Victoria and now Queensland have each passed individual acts which safeguard human rights.

Human Rights Act 2019 (Qld)

Purpose

The Human Rights Act 2019 (Qld)(Act) commenced in full on 1 January 2020 and offers protection for 23 human rights. Public entities, such as local councils, must uphold these rights when making decisions, creating laws, setting policies and providing services.

The main objectives of the Act are to:

  • protect and promote human rights
  • help build a culture in the Queensland public sector that respects and promotes human rights
  • help promote a dialogue about the nature, meaning and scope of human rights.

The Act is complementary to a number of other pieces of legislation and aims to ensure that public powers and functions are exercised in a principled way and not misused.

Areas of protection

The Act sets out 23 rights which have been taken from the UDHR, ICCPR and ICESCR. Human rights in which protection is offered include the right to:

  • recognition and equality before the law
  • life
  • freedom of movement
  • freedom of expression
  • privacy and reputation
  • liberty and security of person
  • a fair hearing
  • criminal proceedings
  • protection from retrospective criminal laws
  • education
  • health services.

The Act also explicitly recognises cultural rights and, in particular, the distinct cultural rights of Aboriginal peoples and Torres Strait Islander peoples.

Operation

The Act is an important development in recognising the essential role human rights play in a democratic and inclusive society. The Act works by placing obligations on various stakeholders, including public entities.

Public entities are defined as “carrying out functions of a public nature” for the State.

A public entity is an organisation or body providing services to the public on behalf of the State or another public entity. The public service and its employees are examples of core public entities for the purposes of the Act.

The Act states that public entitles have to act compatibly with human rights and give proper consideration to human rights when making decisions. Under the Act, “compatible with human rights” means an act or decision that does not limit a human right, or limits a human right only to the extent that is “reasonable and demonstrably justifiable”.

Limits

The Act acknowledges human rights are not absolute and may be subject to reasonable limits that can be justified under the law. Any limitations on rights must have a clear legal basis and they must be reasonable and demonstrably justifiable in the circumstances.

A right may be limited or balanced with other rights to ensure protecting one human right do not impinge on others.

Section 13(2) of the Act provides public entities with guidance on when human rights may be limited. It lists the following factors for consideration:

  1. the nature of the human right
  2. the nature of the purpose of the limitation
  3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose
  4. whether there are any less restrictive and reasonably available ways to achieve the purpose
  5. the importance of the purpose of the limitation
  6. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right
  7. the balance between factors 5 and 6.

Effect on local councils

As one of only three states and territories in Australia to have passed human rights legislation, it is recommended that local councils begin to develop ways in which they can expand on already existing policies and procedures to align with the legislation and protections it offers.

According to the Queensland Human Rights Commission, a number of public entities have already taken action to develop and foster human rights. Code of Conduct documents in many public entities reflect a culture of human rights. For example, the Local Government Act 2009 reinforces the local government principles of transparent and effective processes and decision making in the public interest; democratic representation, social inclusion and meaningful community engagement; good governance of and by local government; and the ethical and legal behaviour of councillors and local government employees.[1] Furthermore, the State Government Code of Conduct is based around the principles of integrity, promoting public good, accountability, transparency and commitment to the system of government.[2]  Consideration of human rights is integral in the implementation of these functions.

A number of ways in which local councils can incorporate the Act and its principles include:

  • develop and implement a human rights policy to apply to the council and its employees
  • amend current relevant policies and procedures to include a preamble referring to the Act’s principles
  • incorporate human rights in relevant vision and values statements
  • include commitments to human rights in business plans and annual plans
  • set minimum expectations on staff to uphold human rights
  • ensure recruitment and promotion practices are aligned with human rights principles
  • include human rights training in employee induction programs and performance reviews
  • implement service improvements that stem from complaints
  • embed human rights considerations into procurement policies and grants
  • include human rights education in community consultations.

If you would like to implement or review your human rights policy, develop and/or deliver induction or refresher training to employees on human rights, or investigate and/or deal with a complaint regarding a breach of human rights, please contact our Workplace Relations & Safety team here.

Author: Rachel Drew

[1] Queensland Human Rights Commission, ‘Queensland’s Human Rights Act 2019: A guide for public entities’,  Public Entity Toolkit (Webpage, 2019)
[2] Ibid.

In the media

M-D Basin communities share $14m in development grants
Fifteen local councils have successfully applied for funding under Round 2 of the Murray-Darling Basin Economic Development Program. The program supports economic development projects in identified communities in NSW, Queensland, Victoria, and South Australia impacted by water recovery under the Basin Pla. Note: The $14.4 million in Round 2 will support 32 projects across 29 Basin communities (28 August 2020).  More...

EPIC new way for councils to act on the ‘plastic pandemic’

A new program to help local councils identify and eliminate single-use plastics from their workplaces has been published. The Engagement for Plastic-free innovation and Change (EPIC) program was designed by Plastic Oceans Australasia (POA), and includes a step-by-step EPIC program manual (28 August 2020).  More...

Waste recycling framework Bills now before Parliament
The Recycling and Waste Reduction Bill 2020 (and associated provisions) will authorise the progressive implementation of bans on waste plastic, paper, glass and tyre exports. The legislation also will pave the way for reforms to the regulation of product stewardship to incentivise companies to take greater environmental responsibility for the products they manufacture and what happens to those products and materials at the end of their life (27 August 2020).  More... 

Victoria

Councils call for funding support to increase walking and cycling opportunities
Reduced road traffic due to COVID-19 restrictions provides councils with a unique opportunity to trial different uses of space. The MAV is collaborating with VicHealth to drive initiatives for immediate and long-term shifts towards increased walking and cycling (28 August 2020).  More...

Small town a step closer to realising big solar farm dream
A Victorian town that has been pushing for a solar farm since 2006 is inching closer towards its goal, which proponents hope will reduce energy costs for residents (24 August 2020).  More...

Funding Boost for Next Steps In Long-Term Bushfire Recovery
The Victorian Government has unveiled the Bushfire Recovery Victoria’s Eastern Victoria Fires 2019-20 State Recovery Plan, a new blueprint for the state’s fire-affected regions and more than $110 million for local projects that create jobs and help communities recover from the summer’s devastating bushfires. This includes $3.6 million to further boost the capacity of councils – Victoria’s key partners in recovery (23 August 2020).  More...

Council infrastructure manager faces jail after guilty plea
A Frankston City Council manager has admitted to range of offences including attempting to fraudulently obtain property. A former Frankston City Council manager has pleaded guilty to multiple offences including obtaining property by deception and misconduct in public office and could face 25 years in jail (20 August 2020).  More...

Statement from the President of the Municipal Association of Victoria
The Municipal Association of Victoria (MAV) is disappointed by the announcement by the Minister for Local Government, the Hon. Shaun Leane MP, of the Victorian Government’s decision not to defer the state’s council elections. The MAV believes the October elections have been seriously compromised by COVID-19 (19 August 2020).  More...

Local Government Elections To Go Ahead In October
On advice from the Victorian Chief Health Officer, Professor Brett Sutton, local government elections will go ahead as scheduled for Saturday, 24 October 2020 (19 August 2020).  More...

Decades-old dispute over 'undevelopable' Ninety Mile Beach blocks ends with compulsory sale
Sold from the 1950s and inappropriate for development, Wellington Shire Council will compulsorily acquire the last 750 lots along a "slice of paradise on Victoria's Gold Coast" (19 August 2020).  More...

NSW

Armidale Regional Council suspension period extended
The NSW Government has extended the suspension of Armidale Regional Council for an additional three-months. Minister for Local Government Shelley Hancock said it followed a recommendation from interim administrator Viv May PSM for more time so he can continue to restore the proper and effective functioning of the council (28 August 2020).  More...

Wingecarribee Shire Council
A Notice of Intention has been issued to issue a Performance Improvement Order (PIO) to Wingecarribee Shire Council. The proposed PIO seeks to address long-term division and conflict among councillors and the associated reputational and work, health and safety risks (20 August 2020).  More...

Audit finds gap in Council control over developer levies
Four NSW councils that hold the largest amounts of money from developer levies have gaps in their governance and controls over the contributions (18 August 2020).  More...

Queensland

Government fast-tracks $66 mil in capital works to rebuild Qld’s economy
Fast-tracking infrastructure is a major driver for our economic recovery and these projects will lay the ground-work for more than $330 million in private investment over the next two years, including Brisbane Priority Development areas (26 August 2020).  More...

Greater local government planning transparency for every Queenslander
A new online dashboard has been developed by the Queensland Government to improve local government planning transparency in a post-COVID world (24 August 2020).  More...

Queensland's ongoing water shortages require rethink on resources to move beyond dam building
Researchers have told the ABC that supplying safe, reliable and affordable water was one of the biggest challenges facing governments across the country. Country towns have been doing it tough for a long time and the expense of the carting of the water is going to go onto everyone's rates, which they then can't afford (24 August 2020).  More...

Planning goes digital for Qld councils
The Queensland government has developed an online dashboard for local government planning. The Queensland government has developed an online dashboard for local government planning, saying it will keep planning transparent and on track in a socially-distant post COVID world (24 August 2020).  More...

In practice and courts

Regional Connectivity Program: funding applications
Examples of projects that could be funded under the Program include upgrades to mobile infrastructure to improve community access to telehealth, remote education and retail internet and phone services, or the development of enterprise-grade broadband networks. Register potential projects on the noticeboard. Applications close on 20 October 2020.  More...

Victoria

Local Government Elections
The Victorian Government has released its mandatory Local Government Candidate Training course. The Local Government Act 2020 requires prospective candidates to complete the course in order to be eligible to nominate with the Victorian Electoral Commission (VEC). This requirement also applies to all serving or former councillors intending to nominate. The MAV is also continuing to deliver our Stand for Council Community and Candidate Information Sessions for prospective candidates and community members. Forty-four sessions have been delivered to date, with around 700 participants. The VEC has published its COVIDSafe Election Plan, describing how it will ensure council elections will be safe and accessible for all participants. The Plan identifies a range of issues, including that the Electoral Commissioner has sought authority to vary the requirement for a candidate to sign the declaration on their nomination form in the presence of the Election Manager where a candidate is displaying symptoms indicating they may be unwell or is required to self-isolate. The VEC will post ballot packs to enrolled voters in early October.

Sustainable Subdivision Framework launch
On 2 September, the MAV will launch the Sustainable Subdivision Framework developed by 16 Victorian councils in partnership with the Council Alliance for a Sustainable Built Environment (CASBE) and the Victorian Planning Authority.  More...

AMENDMENT VC186
VC186 makes changes to the Victorian Planning Provisions and to Greater Bendigo, Kingston, Moreland and Murrindindi’s planning schemes by inserting a particular provision at Clause 51.06. The introduction of a code for Secondary Dwellings will facilitate small scale residential accommodation on the same lot as an existing or ‘principal’ dwelling in the Residential Growth Zone, General Residential Zone, Neighbourhood Residential Zone, Township Zone and Mixed Use Zone in the four municipalities. Applications that meet all the code requirements can be considered through the VicSmart pathway. The pilot will run for 7 months. At the conclusion of the pilot program, a further VC amendment may be prepared to introduce the code for Secondary Dwellings into all Victorian planning schemes.

COVID-19 update
On 2 August, the Premier announced Victoria is in a State of Disaster and Stage 4 restrictions are in place for metropolitan Melbourne and Stage 3 restrictions are in place for regional Victoria until at least 13 September. The Metropolitan councils have worked quickly over the last week to identify the essential services they deliver which require staff to travel or attend on-site workplaces, and develop and implement COVID-19 Safe Plans. Staff have also been issued with permitted worker permits where travel and on-site work attendance is required. Rural and regional councils have had to implement Stage 3 restrictions, including mandatory wearing of face-coverings in public and closure of libraries and other community services.

Streamlining for Growth Program 
The Victorian Government has renewed the Streamlining for Growth program for the 2020/21 Financial Year. Continuing programs like this was a major focus of our advocacy to the Building Victoria’s Recovery Taskforce and will assist councils in progressing vital strategic work. This round of funding will focus on projects to help stimulate investment and economic growth in response to COVID-19 and bushfires. Applications close 9 October. 
Parks Revitalisation Grants Program
$10 million is available through the Parks Revitalisation Grants Program which is open to all councils in metropolitan Melbourne. The funding will go towards upgrading existing local parks and reserves. Applications close 9 September.   

Victorian Government Community Shade Grants
Applications for the latest round of Community Shade Grants are now open. Now in its fifth year, the funding helps install much needed shade in school grounds, community spaces and sporting clubs. Applications close 11 September.  

2020-21 Sporting Club Grants Program
Applications are open for the latest round of the Victorian Government’s 2020-21 Sporting Club Grants Program. Grants between $1,000 and $5,000 are available to clubs for new uniforms, new equipment, training coaches, to improve operations and more. Applications close 29 September.   

Sustainable Infrastructure Fund Grants
Grants of up to $300,000 are open to local councils and alpine resort management boards to use recycled materials such as glass, paper, cardboard, plastics and rubber to build new infrastructure including roads, footpaths, outdoor park equipment, drainages and cycleways. Applications close 8 October (13 August 2020).  More...

Bushfire Recovery Grants for Local Government Authorities and Community Service Organisations
Charities, not-for-profits and other local community service providers across Victoria – as well as 18 Local Government Authorities and four Alpine Resorts – will be eligible to apply for the Bushfire Recovery Grants for Local Government Authorities and Community Service Organisations (10 August 2020).  More...

Minister’s Good Practice Guideline MGPG-1: Virtual Meetings
Issued by the Minister for Local Government pursuant to section 87 of the Local Government Act 2020. The Victorian Government’sCOVID-19 Omnibus (Emergency Measures) Act 2020 has introduced into the Local Government Act 2020(the Act) new mechanisms that allows for virtual council meetings –to ensure local government decision-making can continue during the coronavirus pandemic. These new measures will be in force from1 May 2020 until 1 November 2020.  More...

The Melbourne Airport Environs Safeguarding Standing Advisory Committee
is currently seeking submissions to advise the Minister for Planning on improvements to the planning provisions safeguarding Melbourne Airport and its environs. Submissions are also welcome on improvements to planning provisions that may help safeguard other airport environs in Victoria. Submissions close 18 September 2020.  More...

s.186 exemption for council recycling contracts
The Victorian Local Government Minister has announced a state-wide s.186 exemption for local councils to extend their recycling collection contracts to 30 June 2021. Attached is a copy of the letter sent to all councils co-signed by Minister Somyurek and the Minister for Energy, Environment and Climate Change, the Hon. Lily D’Ambrosio MP.

SRO: Register interest for HomeBuilder
Victoria has signed up to the National Partnership Agreement that facilitates the HomeBuilder scheme. Eligible recipients will be able to access grants of up to $25,000 to build a new home or substantially renovate an existing home. We encourage you to register for our HomeBuilder email subscription service so that you can receive progress updates.  More....

NSW

LGNSW: Expert panel on cladding
A new 'Cladding Product Safety Panel' will advise the NSW Government, building owners, councils and other regulators on the suitability of cladding products and external wall assembly methods. Additionally, councils, building owners and consultants can refer to the Fire and Rescue NSW position statement on External Combustible Cladding which helps clarify their approach to advising on the risks presented by cladding on existing buildings, as well as the Department of Planning, Industry and Environment (DPIE) ‘Guide for the Assessment of Buildings with Combustible Cladding.  More...

Reminder
Breaches of a council’s or joint organisation’s code of conduct are to be dealt with in accordance with the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW. All councils (including county councils) and joint organisations must adopt procedures for the administration of their codes of conduct that incorporate the provisions of the Model Procedures.   More...

Office of Local Government Circulars
20-34 Joint Organisation Calendar of Compliance and Reporting Requirements 2020-21
Category: Circular to CouncilsStatus: ActiveCircular Details: 20-34 / 21 August 2020 / A706590.  More...

20-33 Calendar of Compliance and Reporting Requirements 2020-21
Category: Circular to CouncilsStatus: ActiveCircular Details: 20-33 / 21 August 2020 / A706590.  More...

NSW Planning Department: Have your say - Draft plans and policies

Proposed new Housing Diversity SEPP Explanation of Intended Effect
Notification start-end date 29/07/2020 - 09/09/2020
Have your say on a proposed new policy that aims to facilitate the delivery of diverse and affordable housing to meet the needs of the State’s growing population and support the development of a build-to-rent sector.  More...

Queensland

Local government reform
The Queensland Government is delivering a rolling reform agenda in the local government sector. August 2020 - Planned Regulation changes to improve transparency through requirements for meeting agendas and minutes, and registers of interests (planned to support the Integrity Bill’s provisions).  More...

Building Acceleration Fund
The funds will be available to eligible developers, councils and industry for infrastructure projects that generate private sector investment and stimulate post–COVID19 economic recovery. Applications for the Building Acceleration Fund will close on 4 September 2020.  More...

Queensland Planning Legislation
Urgent amendments to the Planning legislation are in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19.  More...

Cases

Victoria

Skabal Pty Ltd v Boroondara City Council [2020] VSC 532
LOCAL GOVERNMENT – Council granted permit to vary easement – Plan of variation of easement registered on title – Application for leave to appeal from Victorian Civil and Administrative Tribunal’s refusal of request to cancel permit, under s 87 Planning and Environment Act 1987 (Vic) – Whether Tribunal had power to cancel permit under s 88 Planning and Environment Act 1987 (Vic) – Permit related to ‘any other development of land’, within s 88(b) – Permit did not relate to the use of land, within s 88(c) – Whether permit spent – Development ‘substantially completed’ on registration of plan of variation of easement – Tribunal had no power to cancel permit – Planning and Environment Act 1987 (Vic), ss 6A(2), 47(1), 87, 88; Subdivision Act 1988 (Vic), s 23.

Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council (No 2) [2020] VSC 513
ADMINISTRATIVE LAW — Judicial review — Notification to Council of alleged nuisance due to noise from wind farm, under s 62(1) Public Health and Wellbeing Act 2008 (Vic) — Council resolution under s 62(3), recording finding of intermittent nuisance of the kind alleged and Council’s opinion that matter better settled privately — Whether resolution amenable to certiorari — Whether Council failed to have regard to mandatory considerations in finding that a nuisance existed — Whether Council disregarded material essential to performance of its statutory task — No jurisdictional error established — Public Health and Wellbeing Act 2008 (Vic), s 62.

Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512
ADMINISTRATIVE LAW — Judicial review — Notification to Council of alleged nuisance due to noise from wind farm, under s 62(1) Public Health and Wellbeing Act 2008 (Vic) — Council resolution under s 62(3), recording finding of intermittent nuisance of the kind alleged and Council’s opinion that matter better settled privately — Whether wind farm operator had standing to seek judicial review of Council’s resolution — Whether resolution amenable to certiorari — Whether Council failed to have regard to mandatory considerations in finding that a nuisance existed — Whether Council disregarded material essential to performance of its statutory task — No jurisdictional error established — Public Health and Wellbeing Act 2008 (Vic), s 62. 

Citizen Outdoor Pty Ltd v Wangaratta RCC [2020] VCAT 925
Section 79 of the Planning and Environment Act 1987; single-sided electronic promotion sign; Industrial 1 Zone; character; amenity; Amendment C79.

Pace Development Co 10 Pty Ltd v Moreland CC [2020] VCAT 905
Moreland Planning Scheme; Section 79 the Planning and Environment Act 1987; former Pentridge Prison site; Expired permit for 7-8 storey building; Development of two 16 storey towers containing apartments, supermarket and retail premises, Pentridge Village Design Guidelines and Master Plan 2019; Pentridge Design Guidelines and Masterplan 2014. 

JDJ Capital Pty Ltd v Greater Geelong CC [2020] VCAT 920
Planning permit PP-407-2019 was issued by Greater Geelong City Council on 20 December 2019, for the construction of six stores and one warehouse, and a seven lot subdivision of land. Application under section 80 of the Planning and Environment Act 1987 – to review conditions 4(a), 4(c), 9, 18(a) and 18(c) contained in the permit. 

Ho v Brimbank CC [2020] VCAT 917
Section 77 of the Planning & Environment Act 1987; Brimbank Planning Scheme; Five dwellings – Neighbourhood character & carparking (GRZ1; Clauses 21.07, 52.06 & 55)

Holahan v Melton CC [2020] VCAT 896
Section 82 Planning and Environment Act 1987; Melton Planning Scheme; Neighbourhood Residential Zone; Childcare centre; Need; Amenity; Traffic and car parking 

Sandhu v Maroondah CC [2020] VCAT 895
Section 77 Planning and Environment Act 1987, Maroondah Planning Scheme, Neighbourhood Residential Zone – Schedule 3, Significant Landscape Overlay – Schedule 3, neighbourhood character, landscape character, three dwellings, paving in front of dwellings.

Sivasubramaniam v Monash CC [2020] VCAT 885
Retrospective application to amend the endorsed plans for Permit TPA/43950 to alter the roof form and façade of Dwelling 2. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant an amended permit. 

Walter v Whitehorse CC [2020] VCAT 884
Removal of one tree under the Significant Landscape Overlay Schedule 9 Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Moniton Pty Ltd v Monash CC [2020] VCAT 864
Section 77 Planning and Environment Act 1987; Monash Planning Scheme; Industrial 1 Zone; Amendment to permit; Warehouse; showroom; office uses; Car parking reduction; Access to a road in a Road Zone Category 1.

Stojanovski v Greater Geelong CC [2020] VCAT 897
Section 82 Planning and Environment Act 1987; Section 51(5) Victorian Civil and Administrative Tribunal Act 1998; No appearance by applicant for review; Confirm decision of the Council.

Grodski v Stonnington CC [2020] VCAT 878
Section 77 of the Planning and Environment Act 1987; Stonnington Planning Scheme; General Residential Zone; Heritage Overlay HO374; Medical Centre; Three Practitioners; Appropriateness of Location; Response to Heritage Policy; Built Form; Amenity Impacts; Car Stackers. No permit

Brown v Whitehorse CC [2020] VCAT 891
Section 82 and 80 of the Planning and Environment Act 1987, Whitehorse Planning Scheme, NRZ3, SLO9, Repeat Appeal, Landscape Character, Neighbourhood Character

Maddingley Brown Coal Pty Ltd v Moorabool SC (Costs) [2020] VCAT 908
Costs – Application for costs by respondent and responsible authority following summary dismissal – Where application by applicant misconceived – Whether appropriate to award costs – relevant principles to be applied – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75(2), 109 – Costs awarded.

Sim v Knox CC [2020] VCAT 900
Section 77 of the Planning & Environment Act 1987; Knox Planning Scheme; General Residential Zone Schedule 2; Construction of three dwellings; policy; neighbourhood character; landscape character

Kimberley Gardens Serviced Apartments PL v Glen Eira CC [2020] VCAT 883
Amendments to planning permit GE/PP-29111/2016, which allows the use and development of the subject land, and associated works, for a three storey retirement village and basement parking. Application under section 87A of the Planning and Environment Act 1987 to amend a permit issued at the direction of the Tribunal.

O'Reilly v Mornington Peninsula SC [2020] VCAT 866
Construction of a hay shed; Loss of neighbour’s view; Section 173 agreement controlling vegetation planting and maintenance; Whether piecemeal application; Whether varying consent position acceptable; Planning merits of hay shed. 

Centraland Project Management No 1 Pty Ltd & Luxe Advisory Pty Ltd v Bayside CC [2020] VCAT 874
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. Decision made on the papers. Construction of a three storey, 4 level building comprising basement car parking and seven apartments 

Hui v Darebin CC [2020] VCAT 887
Section 77 of the Planning and Environment Act 1987; Darebin Planning Scheme; Residential Growth Zone; single site – restricted width; ‘reverse living’ design; building setbacks; construction over driveway; internal amenity; space for landscaping; overdevelopment.

Amira v Port Phillip CC [2020] VCAT 861
Sections 87 & 89 of the Planning and Environment Act 1987; Port Phillip Planning Scheme; Request to cancel permit; Standing; Delay; Failure to give notice; Mis-statement; Concealment of fact; Mistake; Merits; Awareness; Disadvantage; Fairness 

Cottier Estate Pty Ltd v Baw Baw SC [2020] VCAT 824
Section 80 Planning and Environment Act 1987; Urban Growth Zone; Drouin Precinct Structure Plan; Subdivision; Conditions. 

Casale v Melbourne CC [2020] VCAT 886
Construction of a dwelling on a lot less than 300 square metres and waiver of one car space.
Application under section 80 of the Planning and Environment Act 1987 – to review condition 1(a) contained in the permit. 

R & D Finance Consultants Pty Ltd v Darebin CC [2020] VCAT 892
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Darebin Planning Scheme; Commercial 1 Zone (C1Z); Design and Development Overlay – Schedule 17 (DDO17); Substantial Housing Change Area; Strategic Corridor; Construction of two to four storey building; Use of land for retail premises, two apartments and four townhouses; Underdevelopment; Dwelling typology; Car parking reduction; Solar orientation; Amenity impacts. 

Lourey v Mornington Peninsula SC [2020] VCAT 881
Mornington Peninsula Planning Scheme; assessment of alterations and additions to a dwelling within Schedule 18 to the Design and Development Overlay; landscape outcomes within Schedule 18 to the Design and Development Overlay. 

Daffey v Surf Coast SC [2020] VCAT 869
Section 82 Planning and Environment Act 1987; Surf Coast Planning Scheme; General Residential Zone; Design and Development Overlay; Significant Landscape Overlay; Neighbourhood Character Overlay; Bushfire Management Overlay; Dwelling; Inclinator 

Harsley v Wyndham CC [2020] VCAT 876
Subdivision of land into 2 lots. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit 

Rowe v Murrindindi SC [2020] VCAT 875
Three lots used for cattle grazing; Proposal for a dwelling to manage the land; Management of herd and land management plan not sufficient reasons to approve dwelling 

Nolan v Yarra CC [2019] VCAT 842
Section 82 Planning and Environment Act 1987; Yarra Planning Scheme; Public Park and Recreation Zone; Heritage Overlay; Demolition 

Jones v Port Phillip CC [2020] VCAT 873
Section 80 Planning and Environment Act 1987; Port Phillip Planning Scheme; Neighbourhood Residential Zone Schedule 5; Heritage Overlay Schedule (HO8); Special Building Overlay Schedule 1; Subdivision; Resubdivision; Two lots; Public Open Space Contribution; Whether further subdivision unlikely.

Kalex (Gertrude Street) JV Pty Ltd v Yarra CC [2020] VCAT 870
Section 77 of the Planning & Environment Act 1987; Yarra Planning Scheme; Amend permit of existing mixed use development: Off-site amenity impacts

Maple Media Pty Ltd v Maroondah CC [2020] VCAT 868
Section 77 Planning and Environment Act 1987, electronic major promotion sign, Eastlink, Industrial 1 Zone, Maroondah Planning Scheme, clause 52.05, visual amenity, Eastlink buildings, works and signage policy.

Carroll v Yarra CC [2020] VCAT 778
Sections 80 and 82 Planning and Environment Act 1987; Yarra Planning Scheme; Neighbourhood Residential Zone; Heritage Overlay; Heritage; Neighbourhood character; Amenity.

Acevski v Bayside CC [2020] VCAT 846
Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time. The construction of two dwellings on a lot and alteration of access to a road in a Road Zone Category

NSW

David Goode v Gwydir Shire Council (No 2) [2020] NSWLEC 118
The Applicant is to pay the Respondent’s costs in these proceedings as agreed or assessed.
COSTS – unsuccessful applicant in judicial review challenge to development consent for truck wash facility where local council the proponent opposes costs order in favour of successful respondent council – whether public interest litigation 

McGargill v The Council of the City of Sydney [2020] NSWLEC 1396
APPEAL – modification application – modification granted by theCouncil with a condition imposed – condition required upper floor rear addition to be reduced to what was originally approved – application of the relevant development control plan – control requires that additions respect the predominant rear building line - whether flexibility should be exercised APPEAL – development control order – demolish works order – order remains appropriate – extended to provide additional time for compliance

Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121
JOINDER - appeal by Toplace against deemed refusal of an application to modify a condition of development consent - application by the Council to join two further developers with projects in the immediate vicinity of the Toplace development project - all three projects are located at an intersection in Rosebery - intersection requires upgrading - the appealed condition in the Toplace development consent requires the upgrading of the intersection prior to the issue of any occupation certificate for the Toplace development - the amendment sought by Toplace would only require such upgrading prior to the issuing of a Final Occupation Certificate for the Toplace development - whether joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 available - Joinder pursuant to s 8.15(2) not available - whether joinder pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 appropriate - Toplace’s proposed modification has potential to impact directly on the interests of the two developers proposed to be joined - joinder appropriate - joinder ordered MEDIATION - matter potentially amenable to commercial resolution - mediation appropriate in light of joinder - mediation to be ordered

The Beresford Childcare Pty Limited v Strathfield Municipal Council [2020] NSWLEC 1391
DEVELOPMENT APPLICATION – childcare centre – whether acoustic impacts are acceptable

Forbes v Bega Valley Shire Council [2020] NSWIRComm 1055
UNFAIR DISMISSAL – casual employee - regular and systematic basis for a sequence of periods of employment during a period of at least 6 months – reasonable expectation of continuing employment with the employer

Britely Property Pty Ltd v Randwick City Council (No 2) [2020] NSWLEC 1389
DEVELOPMENT APPLICATION – Boarding house – student accommodation – amended plans – application of the floor space ratio definition – variation to floor space standard – variation to maximum height standard – variation to the motorcycle parking standard – whether environmental planning grounds are sufficient to justify the variation – appeal dismissed
Mr Seton argues this ground should be rejected as within the correspondence the officer from Transport for NSW properly acknowledges that “parking rates are a matter for the local council Exhibit 9) and further the letter makes no reference to the provision of motorcycle parking.

Hossein Yamini v The Council of the City of Sydney (No 2) [2020] NSWLEC 120
COSTS – costs in appeal from Local Court – s 70 Crimes (Appeal and Review) Act 2001 – Council on notice appellant may not be guilty – Council unreasonably failed to investigate relevant matter – appellant awarded costs

222 Botany Road Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1388
DEVELOPMENT APPLICATION – change in use – conversion of commercial units to serviced apartments – amenity – consistency with residential unit standards

Zhiva Living Dural Pty Limited v Hornsby Shire Council [2020] NSWCA 180
APPEAL – appeal against Land and Environment Court judge’s decision to refuse remitter to commissioner after upholding s 56A appeal – whether denial of procedural fairness by not giving parties opportunity to be heard on matters not raised on s 56A appeal – extension of time to file appeal granted – leave to appeal granted – appeal upheld – whether matter to be remitted to judge or commissioner – matter remitted to commissioner

Jiang v City of Ryde Council [2020] NSWLEC 1378
APPEAL – development application – dual occupancy – whether the lot meets the development standard for minimum road frontage – whether the development is consistent with the desired future character

Penrith City Council v Dincel Construction System Pty Limited (No 3) [2020] NSWLEC 117
EVIDENCE — Course of evidence — Reopening case — Application to rely upon further updating evidence — Leave granted 

Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
APPEAL – appeal against a Commissioner’s decision on questions of law – shoptop housing development contravened height and FSR development standards – decision to grant development consent – objectives of height and FSR development standards – consistency with desired future character of neighbourhood or area – whether misconstruction of “desired future character” – whether to be construed by reference to Woollahra Development Control Plan 2015 (WDCP) – whether approved adjoining development that contravened development standards an irrelevant consideration – whether misconstruction of desired future character provisions in
WDCP – whether misdirection in assessing consistency with objective (d) of height development standard to minimise visual intrusion– whether failure to give adequate reasons for satisfaction required by cl 4.6(3) of Woollahra Local Environmental Plan (WLEP) – whether misconstruction of control C3 in s D5.6.2 of WDCP to design for first floor commercial use – no errors of law established

Tasktea Pty Ltd v North Sydney Council [2020] NSWLEC 1366
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – shop top housing development – exceedance of the height of buildings development standard

Kayellou v Canterbury Bankstown Council [2020] NSWLEC 1361
DEVELOPMENT APPLICATION – Weight given to draft Local Environmental Plan – State Environmental Planning Policy (Affordable Rental Housing) – Character of the local area

Queensland

Lipoma Pty Ltd & Anor v Redland City Council & Anor [2020] QCA 180
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the first respondent approved an application for a development permit – where the developer was the second respondent – where the permit sought to reconfigure a lot, and a preliminary approval for material change of use – where the change was for a mixed-use development, including a shopping centre – where the applicants opposed the second respondent’s application in the Planning and Environment Court – where that challenge was upheld – where this Court remitted the matter to the Planning and Environment Court based on certain errors in approach – where, on the second hearing, the Planning and Environment Court came to the opposite conclusion, supporting the first respondent’s position and dismissing the appeal to it by the applicants – where the development application was made under the Sustainable Planning Act 2009 (Qld) when the 2006 Scheme was in force – where the 2018 Redland City Plan (2018 Scheme) has been adopted since the matter was before this Court in 2018 – where the learned trial judge concluded that the proposal was in conflict with the 2006 Scheme – where the learned trial judge concluded that it was appropriate to give no weight to the 2018 Scheme in the assessment of the subject application – where that conclusion was attacked as an error before this Court – whether the 2018 Scheme is the Council’s current statement – whether the 2006 Scheme and the 2018 Scheme are an expression of the “public interest” – whether the learned trial judge erred in finding that there were “sufficient grounds”, in the public interest, to depart from the planning instrument
Planning and Environment Court Act 2016 Qld s 63; Sustainable Planning Act 2009 Qld s 242, s 326, s 329

Legislation

Queensland

Subordinate legislation as made – 28 August 2020
No 162 Planning (Walkable Neighbourhoods) Amendment Regulation 2020
No 163 Planning Legislation (Fees and Other Amounts) Amendment Regulation 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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