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Inside track: Planning, Environment & Sustainability

16 April 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

Property Council Australia: Five-point plan for prosperity, jobs and strong communities
The Property Council has proposed a comprehensive range of policy initiatives to provide a good home for all Australians, build a strong economy, create great Australian cities, encourage investment and deliver an affordable and sustainable energy roadmap (27 March 2019).  More...  

Unfair strata rules need to be changed to enable sustainability upgrades in apartments
Although most of the conditions are now right for sustainability upgrades to strata buildings, Green Strata president Christine Byrne says there are still major regulatory and cost barriers stopping these retrofits (28 March 2019).  More... 

Victoria

Planned Federation Square Apple store doomed after permit refused
The controversial plan to build an Apple store at Melbourne's Federation Square is doomed after heritage authorities blocked it because it would "adversely" affect the cultural heritage of the square (05 April 2019).  More...  

Melbourne ditches carpark for public park
A new public park will replace the open-air carpark at Queen Victoria Market under the latest proposed redevelopment of the heritage-listed landmark (01 April 2019).  More... 

Work underway in Melbourne park redevelopment
Major demolition work is underway as part of Stage 3 of the Victorian Government’s redevelopment of Melbourne Park. The Melbourne Park and the surrounding Sports Precinct are a key component of the Richmond to Docklands corridor, combining some of Melbourne's most attractive river and parklands with the best in sports, entertainment, arts and cultural venues (03 April 2019).  More... 

Council refuses permits for supersized advertising
The City of Melbourne has refused 81 applications by JCDecaux for planning permits to display commercial advertising on public phone booths across central Melbourne (25 March 2019).  More... 

Queensland

Law breaking activists to be met with strong new laws at the farm gate
The State Government is cracking down on animal rights zealots invading farms in illegal protests (06 April 2019).  More...  

Queensland grazier fined $450k for illegal land clearing
A Queensland grazier, whose bid to bulldoze native woodlands has the support of Federal Government MPs, has been hit with one of the state's heaviest penalties for illegal land clearing (06 April 2019).  More... 

History of Nudgee bungalow to be investigated after development ban approved
A 1900s bungalow that potentially has heritage value will be placed under a two-year protection order to prevent any demolition or development works while Brisbane City Council investigates its history  and whether it should be protected from development (28 March 2019).  More... 

In practice and courts

Commonwealth

Climate change and director's duties: supplementary memorandum of opinion
Noel Hutley, Sebastian Hartford-Davis; Centre for Policy Development: 29 March 2019
This memorandum provides an update to a 2016 legal opinion on how Australian law requires company directors to consider, disclose and respond to climate change.  More... 

Announcements, Draft Policies and Plans released 2019

Queensland

Environmental offsets framework discussion paper
A discussion paper on Queensland’s environmental offsets framework has been released by the State Government, aimed at seeking community and industry feedback on the policy’s effectiveness. While the Environmental Offsets Act 2014 proposes to simplify and regulate the offsets framework. The review is seeking responses in relation to five key areas. Consultation on the discussion paper closes on 15 April 2019. 

Cases

Victoria

Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) [2019] VCAT 445
NATURE OF CASE Whether the Tribunal may remit a matter for re-consideration by the decision-maker if the Tribunal does not have jurisdiction to determine the matter
LOCATION OF PASSAGE OF INTEREST Paragraphs 8 to 13
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE LEGISLATION – interpretation or application of statutory provision; Section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 

Rodrigues v Frankston CC [2019] VCAT 489
Application under Section 82 of the Planning and Environment Act 1987 to review a notice of decision to grant a permit; General Residential Zone; Design and Development Overlay Schedule 6; Land Subject to Inundation Overlay; three triple storey dwellings and three lot subdivision; visual amenity; built form bulk and scale; overlooking and interface to Kananook Creek

Manderson v Yarra CC [2019] VCAT 455
Section 82 of the Planning and Environment Act 1987. Yarra Planning Scheme. Child care centre. Hours of operation. Traffic and pedestrian safety

Razeek v Wyndham CC [2019] VCAT 466
Section 82 Planning and Environment Act 1987 – General Residential Zone Schedule 1 – Special Building Overlay - Medical Centre – traffic impact on surrounding residential area

Nicholls v Queenscliff BC [2019] VCAT 428
Queenscliffe Planning Scheme; repeat appeal principles; reasonable sharing of views in a coastal location; built form outcomes along the foreshore in Point Lonsdale 

Huizen v Greater Dandenong CC [2019] VCAT 394
This proceeding is an application under section 79 of the Planning and Environment Act 1987 to review the failure by the responsible authority to amend planning permit PLN10/0809 to use and develop the land for the purpose of materials recycling and transfer station and associated buildings and works
Subsequent to the application for review being lodged at VCAT, the council has determined that if the application for review had not been lodged, it would have amended the permit in many of the ways sought by the applicant and would have made the following amendments to the permit

Richmond Bridge Investments Pty Ltd v Melton CC [2019] VCAT 415
The application for an order under section 115B(1) of the Victorian Civil and Administrative Tribunal Act 1998 for reimbursement of fees is refused. The Responsible Authority is not required to reimburse fees paid by the permit applicant. 

Indigo SC v Mayday Hills Beechworth Pty Ltd [2019] VCAT 380
Indigo Planning Scheme; Section 114 of the Planning and Environment Act 1987; disposition and storage of waste, contaminated soil and inert materials; characterisation of use as Industry, Refuse disposal, Transfer station; contravention of section 173 agreement 

Queensland

East Coast Gravel Pty Ltd v Brisbane City Council [2019] QPEC 15
PLANNING AND ENVIRONMENT – APPEAL – where the appellant filed an appeal against Council’s decision to refuse a request to change a development approval – where the appellant sought to change an infrastructure charges condition to allow an offset against the transport infrastructure charge in respect of provision of a bike path – whether the proposed change is a permissible change – whether the proposed change lies outside the scope of part 8 division 2 subdivision 1 of chapter 6 of the Sustainable Planning Act 2009 – whether the change would require the Council to enter an infrastructure agreement – whether in exercise of the discretion the proposed change ought be refused

Sunland Group Limited & Anor v Gold Coast City Council [2019] QPEC 14
PLANNING AND ENVIRONMENT – APPLICATION – declarations sought as to the continuing effect of infrastructure charges conditions imposed pursuant to a preliminary approval under s 3.1.6 of the Integrated Planning Act 1997 – did conduct by the respondent give rise to an Infrastructure Agreement pursuant to the Sustainable Planning Act 2009 - Integrated Planning Act 1997 Qld; Planning Act 2016 Qld; Sustainable Planning Act 2009 Qld; Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011 Qld 

JPJ Developments Pty Ltd v Brisbane City Council [2019] QPEC 13
PLANNING AND ENVIRONMENT – APPLICATION – application for joinder on an application to extend the currency period for an existing development approval – where applicant has no statutory right to be a party of the originating application. Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld; Sustainable Planning Act 2009 Qld. 

Watson v State of Queensland [2019] QLC 19
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the applicant sought an interlocutory injunction preventing development works – where the respondent sought to have the application struck out for lack of standing – where the application was not brought by an Aboriginal cultural heritage body for the area – where the application was dismissed for lack of standing
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the applicant sought orders that the State enter into a cultural heritage management plan with the new corporation – where the State had entered a Cultural Heritage Agreement with the existing Aboriginal cultural heritage body for the area – where the applicant submitted it was likely that the Aboriginal cultural heritage body be registered as a new corporation for part of the area for the purposes of the project – where it was held the Court did not have the jurisdiction to make orders requiring parties to enter into a cultural heritage management plan. Aboriginal Cultural Heritage Act 2003 Qld s 4, s 5, s 6, s 14, s 23(3), s 24(2), s 25(2), s 26(2), s 36(3), s 161; Land Court Act 2000 Qld s 32H

Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor [2019] QPEC 12
ENFORCEMENT PROCEEDINGS – where applicant is the relevant local authority – where first respondent conducts various uses on the subject land – where second respondent is the owner of the land – where first respondent at the benefit of a negotiated decision notice approving certain uses on the land – where among other conditions of approval included substantial financial contributions for infrastructure (the infrastructure charges) – where respondents have failed to meet various conditions imposed including the infrastructure charges – where the local authority seeks enforcement of the conditions imposed including the infrastructure charges.
WHETHER DEVELOPMENT APPROVAL REQUIRED – where first respondent alleged that the subject development approval was not required because the relevant use being conducted on the land was an existing lawful use protected by legislation – where Environmental Relevant Activity approval was not required because any workshop activities being conducted on the land were ancillary to the existing lawful use and were otherwise of a de-minimis nature
WHERE FIRST RESPONDENT SAYS THE USE THE SUBJECT OF THE DEVELOPMENT APPLICATION HAD NEVER COMMENCED. WHERE RESPONDENTS ALLEGE RELIEF SOUGHT NOT OTHERWISE AVAILABLE – where respondents assert the local authority was not entitled to relief sought because of defences under the Act’s Interpretation Act 1954 as a consequence of the local authority not prosecuting the proceeding as soon as possible – where respondents assert that the proceeding ought properly be characterised as an action for the recovery of debt which is statute-barred pursuant to s 10 of the Limitation of Actions Act 1974
W
HETHER THERE HAD BEEN A MATERIAL CHANGE IN USE OF THE LAND – where local authority asserts that there had been a material change of use as a consequence of the intensification of one of the uses being made on land 

Bennington & Ors v Sunshine Coast Regional Council & Anor [2019] QPEC 11
ENVIRONMENT AND PLANNING – APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION– where the co-respondent sought and obtained approval from the respondent for a material change of use to develop a service station and two convenience restaurants – where the appellants made a submission about the development application to the respondent – where the respondent and co-respondent concede that the proposed development conflicts with Maroochy Plan 2000 – whether the conflict is significant and serious – whether there are sufficient grounds to justify the decision despite the conflict with the planning scheme

Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the landowner applied to clear vegetation to create firebreaks on each boundary of some land – where the primary judge allowed the clearing of firebreaks on some boundaries but not others – where the primary judge held that residential housing was infrastructure – where the primary judge held that the work was to protect infrastructure and was therefore essential management – where the landowner argues that fences were being maintained by a firebreak and that therefore the work was essential development – whether residential housing was infrastructure under the Sustainable Planning Act 2009 (Qld) – whether the maintenance of infrastructure under the Sustainable Planning Act 2009 (Qld) included the construction of a firebreak – whether the work was essential development or assessable development
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – CONSISTENCY OF PLANNING SCHEMES WITH OTHER LEGISLATION – where the landowner applied to clear vegetation to create firebreaks on each boundary of some land – where the primary judge allowed the clearing of firebreaks on some boundaries but not others – where the relevant planning scheme designated the work to be assessable development but the relevant regulation did not – where the relevant regulation only prescribed certain development to be assessable development – where the primary judge held that the regulation and the planning scheme were inconsistent as to whether the work was assessable development – where the primary judge held that the relevant provision of the planning scheme was consequently of no effect – whether there was an inconsistency between the regulation and the planning scheme – whether the planning scheme was of effect

Legislation

Water Charge Amendment Rules 2019
03/04/2019 - These rules amend the Water Charge (Infrastructure) Rules 2010 to implement certain rule advices from the ACCC’s Review of the Water Charge Rules: Final Advice and to repeal the Water Charge (Planning and Management Information) Rules 2010 and the Water Charge (Termination Fees) Rules 2009. The rule advices are amendments proposed by the ACCC and grouped by topic. ACCC rule advice 5-L to repeal Network Service Plans was implemented through the Water Charge (Infrastructure) Amendment Rules 2017.

Product Emissions Standards Amendment (Supply Date) Rules 2019
28/04/2019 -  This instrument amends the Product Emissions Standards Rules 2017 to delay the commencement of the offences relating to the supply of emissions controlled products for 12 months until 1 July 2020 

Seas and Submerged Lands Amendment Proclamation 2019
26/03/2019 - This instrument amends the Seas and Submerged Lands Act 1973 - Proclamation under section 10B (26/07/1994) to revise the limits of Australia's exclusive economic zone in the Timor Sea.

Victoria

Energy Legislation Amendment (Victorian Default Offer) Act 2019
Date of assent: 26 March 2019

Murray-Darling Basin Commission of Inquiry Bill 2019
A Bill for an Act to establish an inquiry into the management of the Murray-Darling Basin, and for related purposes.

Queensland

Acts

Economic Development and Other Legislation Amendment Bill 2018
Stage reached: Passed with amendment on 2/04/2019
An Act to amend the Biosecurity Act 2014, the Building Act 1975, the Building Queensland Act 2015, the Coastal Protection and Management Act 1995, the Economic Development Act 2012, the Environmental Protection Act 1994, the Exhibited Animals Act 2015, the Housing Act 2003, the Land Valuation Act 2010, the Liquor Act 1992, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, the Planning Act 2016, the Planning and Environment Court Act 2016, the Queensland Reconstruction Authority Act 2011, the Sanctuary Cove Resort Act 1985, the South Bank Corporation Act 1989, the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 and the legislation mentioned in schedule 1 for particular purposes, and to repeal the Southern Moreton Bay Islands Development Entitlements Protection Act 2004. 

Contacts:
Melbourne
Joseph Monaghan, Partner 
T: +61 3 9321 9857 
Ejoseph.monaghan@holdingredlich.com

Sydney 
Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Peter Holt, Special Counsel
T: +61 2 8083 0421
E: peter.holt@holdingredlich.com

Brisbane
Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com

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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