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What's news in Property, Planning & Environment?

6 October 2009

Latest news

National

Rate rise won’t hurt housing market - Ray White
7 October 2009
The increase in the official interest rates shouldn’t hurt the housing market, real estate group Ray White says. Ray White joint chairman Brian White said the Reserve Bank (RBA) had made it clear the near record-low interest rates of 3 per cent had been an emergency measure during the global financial crisis More...

Homeowners could face criminal charges under OHS laws
9 October 2009
Draft occupational health and safety (OHS) laws could see homeowners held criminally liable for exposing a tradesperson or visitor to risk on their property with criminal charges and penalties including fines of up to $300,000 and/or jail terms of up to five years. If a tradesperson is called to do some work at home, the home is their workplace and the owner would be a person at their workplace More...

Opposition sees red on bad pink bat plan
7 October 2009
Millions of taxpayer dollars may have been wasted on shonky pink bat installations. The Opposition claims come as Environment Minister Peter Garrett confirmed 100 companies had been deregistered from the Government’s $2.7 billion insulation program for dodgy practices More...

Even if you win, ‘plan means you lose’
9 October 2009
Forest Industry Association of Tasmania chief executive Terry Edwards is worried about the federal government’s plans for the civil justice system. If the government proceeds with its plan to ease the financial risk facing environmental activists who launch “public interest” litigation, he believes there is a real danger it would lead to slower, more expensive civil justice More...

Family guarantees a useful way to secure real estate
7 October 2009
Family guarantees are becoming increasingly popular as buyers scramble to get into the property market for the first time, trade up or buy an investment property More...

CPRS: reduce pollution, get permits
30 September 2009
The Federal Government should withhold half of the permits allocated to coal-fired generators under its emissions trading scheme and link the receipt of those to investment in low-emission generators according to industry More...

Coal mining’s fugitive emissions taxation
30 September 2009
The result of the government’s determination is that the coal industry expects to pay a tax of something close to 80c for every tonne it mines over the first 10 years of the government’s Carbon Pollution Reduction Scheme. The government will also return $750 million to the coal producers to partially cover the impact of the new tax on the gas-heavy coal mines More...

No Stamp Duty Bill for Alcan
30 September 2009
The Court has ruled stamp duty of $47 million and penalties are not payable to the Northern Territory government under NT provisions designed to counter the avoidance of conveyance duty More...

Defence Housing Australia making strong progress
30 September 2009
Under the Nation Building – Economic Stimulus Plan, DHA is to build 802 new Defence houses across the country, in addition to its scheduled construction program. Since late February, contracts have been signed for 700 of the 802 houses, an 87% completion rate. It is expected that the contracts for the remaining 102 houses will be signed before the end of this year, with all construction to be completed by June 2011 More...

Smart City: Australia one step closer to a new energy era
30 September 2009
The Australian Government has released the report Smart Grid, Smart City: A new direction for a new energy era I outlining the next crucial step in transforming Australia’s energy grid, with the potential to reduce home energy bills, reduce carbon pollution and help tackle climate. The report is available at: www.environment.gov.au/smartgrid Applications for consortia to deliver the project will be sought when final grant guidelines are released in late October More...

Homeowners could face criminal charges under OHS laws
9 October 2009
Draft occupational health and safety (OHS) laws could see homeowners held criminally liable for exposing a tradesperson or visitor to risk on their propertywith criminal charges and penalties including fines of up to $300,000 and/or jail terms of up to five years. If a tradesperson is called to do some work at home, the home is their workplace and the owner would be a person at their workplace More...

Victoria
New fire policy: flee don’t fight
11 October 2009
For the first time, Victorians will now be urged to evacuate their homes on ‘’catastrophic fire risk’’ days. While the new policy does not give authorities the right to forcibly remove anyone from a property, it alters the advice that communities will be given - leaving residents with no doubt about the risks they may face if they stay More...

New energy-efficiency ratings for tvs and light globes
7 October 2009
New national energy efficiency standards for televisions and some lighting products are set to help Victorian households cut their electricity use and power bills, Energy and Resources Minister Peter Batchelor announced today. The new measures mean that from 1 October televisions will have to comply with minimum energy performance standards (MEPS) More...

Docklands hits $1 billion financial services investment
1 October 2009
The practical completion of ANZ Bank’s new global headquarters in Docklands brings the Victorian financial services sector’s investment in the precinct to over $1 billion, making it Australia’s leading banking, finance and insurance district More...

Gambling report buoys casino expansion plan
10 October 2009
The Victorian Government says an independent report examining the social and economic impact of its recent deal with Crown Casino has found it will not significantly increase the rate of problem gambling. Under the deal Crown will allowed to operate an extra 150 table games in return for paying more tax More...

Million-dollar sales force up property prices
8 October 2009
Victoria’s top real estate agents have begun hiring Mandarin-speaking salesmen to cash in on the property boom. Leading agents say more than 30 per cent of their stock is bought by families from mainland China More...

Council defends wind farm handover decision
8 October 2009
The Corangamite council denies that handing over the planning powers for a wind farm development to the Victorian Government was the wrong decision. Mayor Ruth G’Strein says many residents are concerned about the plans and the council made the right decision to allow the Government to handle the entire planning process More...

DSE reviewing central Victorian land categories
7 October 2009
The Department of Sustainability and Environment (DSE) is reassessing how it categorises all central Victorian land. The DSE rates all Victorian land in one of five categories, which are then used to decide what action it takes. But it says current ratings are outdated and do not account for housing growth on the edge of many towns and cities More...

State’s rubbish heap becoming a mountain
7 October 2009
Recycling has gone backwards in Victoria for the first time this century. Environment Victoria campaigner Fraser Brindley said the financial crisis affecting demand for recycled goods and State Government policies not supplying the incentive to boost recycling. Victoria’s low landfill levies - $15 a tonne for commercial and industrial waste, compared with $58 in NSW More...

Vic facing largest electricity price hike under ETS
6 October 2009
Victorian Government economists say the Commonwealth’s proposed emissions trading scheme (ETS) will damage the state’s economy. Documents estimate Victoria’s average household gas and power bill would jump by about $7.00 per week, under the ETS More...

Developers frustrated by Victorian planning freezes
30 September 2009
Victorian Planning Minister Justin Madden has frozen rural planning in two of the state’s shires.
The Minister brought the local industries to a standstill, because he said the shires lacked suitable rural planning strategies More...

New South Wales

Labor lobbyist emerges as $60m developer
9 October 2009
The Labor figure revealed as a key lobbyist to the NSW Planning Department, former federal minister Gary Punch, is applying as a developer to a Government-appointed planning panel to build a $60 million project More...

Byron Greens to fight them on beaches
9 October 2009
Byron Shire Council is on a collision course with the NSW government after taking another step to enforce its controversial “planned retreat” policy of coastal development, with the Council to display its new draft zonal coast management plan. Under the planned retreat policy, owners of beachfront houses in Byron Shire would not be able to protect their houses in the event of high seas and rough storms More...

Private group seeks slice of $3b rail budget
5 October 2009
The lobby group representing big transport and construction companies is pushing for a slice of the NSW rail budget, which is worth more than $3 billion. Infrastructure Partnerships Australia, which lobbies for public-private partnerships on big projects, is angling for a role in running the publicly owned suburban network More...

Govt rejects rail line sell-off claims
5 October 2009
The New South Wales Government has rejected claims proposed legislation will mean a large sell-off of rail lines and corridors. The Government’s Rail Trails Bill is now before State Parliament.
If passed it will allow the Minister to authorise the closure of rail lines on a case-by-case basis after public consultation and dispose of the assets, without a special act of Parliament More...

Global financial crisis forces home sales
3 October 2009
The global financial crisis has forced more than one in four of NSW’s homeowners to sell, a study released today reveals. Lower income earners and older homeowners were hardest hit, with those aged 45 to 54 most likely to have sold or be planning to sell More...

For Sale: Lane Cove Tunnel
29 September 2009
Sydney’s Lane Cove tunnel is up for sale. The tunnel’s owner, Connector Motorways Consortium is unable to meet debt repayments, because traffic volumes have not met original forecasts of 100,000 cars a day. A spokesman for Connector Motorways says all the equity holders, including Leighton Holdings have written off their stakes More...

Redevelopment of former Stamford Plaza not approved
The NSW Government has refused a proposed $146 million residential, retail and hotel development on the site of the former Stamford Plaza site at Double Bay. Planning Minister, Kristina Keneally, said the benefits of the proposal would not outweigh its impact on the Double Bay area. The proposed towers would be intrusive on the character and built form of the town centre More...

Queensland

Qld transparency requires new corruption body
9 October 2009
Queensland needs to re-establish an Electoral and Administrative Review Commission (EARC), including a parliamentary committee of oversight. The EARC was dissolved in 1993 after less than four years of operation despite the Fitzgerald Report’s proposal that it be an ‘enduring independent process’ More...

New Multi Cargo Facility planned for Abbot Point
8 October 2009
The State Government announced the beginning of environmental investigations into a proposed $1.25 billion Abbot Point harbour development for North Queensland. “North Queensland Bulk Ports Corporation proposes to develop a new protected harbour on around 320 hectares of reclaimed land that will be able to handle a number of different exports or shiploads of raw materials for mineral processing More...

New Mooloolaba Spit Future Plan released
7 October 2009
Minister for Natural Resources, Mines and Energy Stephen Robertson and Sunshine Coast Regional Council Mayor Bob Abbot has released the Mooloolaba Spit Future Plan which he says aligns with the Council’s current planning scheme More...

Queensland social housing dwellings on the way
5 October 2009
Housing Minister Karen Struthers said that by June next year, almost 500 new social housing dwellings would be built in the first stage of the Nation Building and Economic Stimulus Plan. The Minister said thousands more homes would be built under stage two of the plan, with most of them expected to be completed by December next year More...

Queensland pushes for world leading solar project
30 September 2009
International solar thermal energy provider Ausra and State Government owned company CS Energy have joined forces to investigate a solar boost project for the 750 megawatt Kogan Creek Power Station near Chinchilla. The proposed solar project would increase the efficiency and electrical output of an existing coal-fired power station and should ultimately make electricity cheaper in Queensland according to the state governmentMore...

Articles

Premises occupancy models for franchised retail businesses in Australia: Factors for consideration
Author: Jenny Buchan, Jenny; Butcher, Bill
Source: Australian Property Law Journal, September 2009, pp143

From anecdote to evidence: the next challenge for strata reform?
Author: Slatter, Michele
Source: Australian Property Law Journal, September 2009, pp179

Practice notes/directions

Victoria

Victoria: Bushfire - planning and building resources
Access bushfire planning and building resources information from a new web page that consolidates the information on our site and links to related useful site.

Legislation

National

Commonwealth

Nation Building Program (National Land Transport) Act 2009 - Determination of Conditions Applying to Payments under Part 8

This instrument determines the conditions under which payments will be made under the Roads to Recovery program after 30 June 2009. The conditions determined in August 2005 will continue to apply to payments made before that date (01/10/09).

Victoria

Regulations

Road Safety (General) Regulations 2009 (SR No 115 of 2009)
Date of Making: 29/09/2009 Commencement: 09/11/2009: reg. 3
Not yet in operation: Regs 1-86: on 09/11/2009: reg. 3

Acts

Major Transport Projects Facilitation Act 2009 (No 56 of 2009)ssent: 29/09/2009 SG (No. 338) 29/9/2009 p. 1 Commencement: NYP
Not yet in operation: Ss 1-266
Queensland

Bills

Vegetation Management and Other Legislation Amendment Bill 2009

South-East Queensland (Distribution and Retail Restructuring) and Natural

Resources Provisions Bill 2009

Civil Liability and Other Legislation Amendment Bill 2009

Regulations

No 211 Water Amendment Regulation (No. 3) 2009

No 2121 1 An explanatory note accompanies the subordinate legislation - Water Resource (Pioneer Valley) Amendment Plan (No. 1) 2009

No 214 State Development and Public Works Organisation Amendment Regulation (No. 3) 2009

No 215 Liquor Amendment Regulation (No. 2) 2009

No 218 Forestry and Nature Conservation Legislation Amendment Regulation (No. 5) 2009

No 206 Proclamation commencing certain provisions of the Resorts and Other Acts Amendment Act 2009

No 207 Sanctuary Cove Resort Regulation 2009

No 208 State Development and Public Works Organisation (State Development Areas) Amendment Regulation (No. 1) 2009

No 209 Integrated Planning Amendment Regulation (No. 4) 2009

Shell Australia LNG proposal: Public Comment
Infrastructure and Planning Minister Stirling Hinchliffe welcomed progress on the Environmental Impact Statement (EIS) for the Shell Australia LNG Project. Public submissions on the draft Terms of Reference must be in writing by 2 November2009. The draft Terms of Reference and the project’s initial advice statement can be viewed online at www.dip.qld.gov.au/projects More...

New bushfire building standards effective 01 October 2009
The new standard will apply to anybody proposing to build or alter a house, residential unit or hotel/motel-type building in a bushfire-prone area. Information on bushfire-prone areas visit the Department of Community Safety’s Bushfire Risk Mapping for Queensland Shire Councils website at http://www.ruralfire.qld.gov.au/Bushfire_Safety/Building_in_Bushfire_Prone_Areas/Shire_Risk_Maps_Page.html and information on bushfire building standards is available from the website at www.dip.qld.gov.au

Cases

National

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Taxes and duties – Stamp duty – Transactions resulted in acquisition of all shares in corporation which held Crown leases containing options to renew – Section 56N(2)(b) of Taxation (Administration) Act (NT) (“Act”) requires valuation for assessment of duty of “all land” to which corporation is entitled at time of acquisition – Section 4(1) of Act provides “land” includes “a lease of land” but that “’lease’ ... does not include ... an option to renew a lease” – Whether “land” in s 56N(2)(b) includes option to renew lease – appeal allowed.

Victoria

Traditional Values Management Ltd v Crane Distribution Ltd [2009] VSC 456
Land – Caveat – Application to delay registration of a dealing – s.90 Transfer of Land Act 1958 – Whether within time – Dismissal of application as out of time More...

Environment East Gippsland Inc v VicForests (No. 2) [2009] VSC
Practice and procedure – Interlocutory injunction – Whether security in addition to an undertaking in relation to damages should be given by the plaintiff – Public interest considerations More...

Vigliaroni & Ors v CPS Investment Holdings Pty Ltd & Ors [2009] VSC 428
Equity – Business operated through corporate/unit trust structure – Equal one third ownership interests in the business held by the three owner/controllers through their respective family trusts – Arrangement implemented for one unitholder to hold the one third interest of another unitholder on trust for that unitholder – Arrangement devised by financial controller who was also one of the owner/controllers – Agreement between financial controller and remaining unitholder to extinguish other unitholder’s interest – Unitholding held by financial controller’s family trust on trust for other unitholder transferred to financial controller’s family trust absolutely – Whether extinguishment of beneficial interest unlawful – Whether financial controller had conflict of interest – whether breach of fiduciary duties – Whether informed consent or ratification of conduct. Corporations – Purchase of land by company – Director transferred funds from company of which director was financial controller and which was owned by the other director to effect purchase – Director established a unit trust and appointed the company as trustee of that trust – Land treated as asset of that trust – No knowledge of the unit trust nor any interest in the unit trust held by other director – Director then unilaterally removed other director from company without other director’s knowledge or consent – Director caused company to purchase second portion of land using the first portion as security without disclosure of purchase or mortgage to other director – Whether funds transfer and the purchase of the two portions of land were within scope of director’s authority or amounted to breach of his statutory and fiduciary duties More...

Macedon Ranges Shire Council v Thompson [2009] VSCA 209
Costs – Discontinuance of appeal – Indemnity costs – Whether appeal hopeless – Respondents unrepresented – Whether punitive cost order appropriate where unrepresented litigant discontinues appeal – Rule 64.14(3) More...

Central Goldfields Shire v Haley & Ors (No. 2) [2009] VSCA 203
COSTS – Whether Bullock or Sanderson order should be made against unsuccessful defendant for costs of trial or appeal – Whether successful defendant reasonably joined – Relevance of conduct of unsuccessful defendant More...

A Team Diamond Headquarters Pty Ltd & Anor v Main Road Property Group Pty Ltd & Ors [2009] VSCA 208
Practice and procedure – Appeal from costs order following application for interlocutory injunction – Application for leave to appeal – Objection to bench of two judges hearing substantive appeal – Section 11(1A) Supreme Court Act – Amendment of draft Notice of Appeal – Rule 65.07 Supreme Court Rules – Different orders sought from those sought on the interlocutory hearing – Failure to comply with rule in Browne v Dunn on interlocutory application – New arguments raised on appeal. Legal practice – Obligation of legal practitioners in preparation and presentation of case to assist the court in the efficient use of limited resources – Failure to pursue simpler procedure at interlocutory hearing – Submissions on appeal which ignored overarching responsibility. Costs – Order for costs where no determination on merits of application for injunction –Application for joinder of party – Injunction unnecessary – Costs order made on basis of what judge would have decided – Delay in delivering reasons – Adequacy of reasons – Failure to pursue simpler joinder application that would obviate need for lengthy hearing – Leave refused More...

Snowy River Properties Pty Ltd v Flinders Banner Pty Ltd (Retail Tenancies) [2009] VCAT 2024
Retail lease dispute, whether Tribunal should list a preliminary matter for determination, whether utility economy and fairness to parties beyond question More...

Hassta Holdings Pty Ltd v Maroondah CC (includes Summary) (Red Dot) [2007] VCAT 2445
Nature of case - Public open space contribution - when must a requirement be made? Reasons why decision is of interest or significance legislation – interpretation or application of statutory provision - A requirement for payment of a public open space contribution should be included as a condition in a planning permit, whether the requirement is made under section 18(1) of the Subdivision Act 1988 or arises as a consequence of clause 52.01 of the planning scheme. Planning scheme – interpretation or consideration of VPP provision. Change to legislation or vpps - whether change to VPPs or statutory provisions is required or desirable - Clause 52.01 should be amended by adding the following further sentence at the end of the first paragraph of the clause:Where a payment is to be made as a contribution for public open space, a permit granted must include a condition specifying the percentage of the site value. This would make clear the application of section 62(1)(a) of the Planning and Environment Act 1987 More...

Owen v Casey CC (includes Summary) (Red Dot) [2009] VCAT 1946
Two dwellings in a Residential 1 Zone and Land Subject to Inundation Overlay.
Location of passage of interest Paragraphs 8-18.
Reasons why decision is of interest or significance planning scheme – interpretation or consideration of VPP provision - Consideration and application of Clause 15.08 relating to the consideration of climate change in a development proposal for two units - Refers to previous Tribunal decisions relating to coastal hazard vulnerability assessments More...

Stubbs Street Kensington Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2009] VCAT 1947
Nature of case - Interpretation of the words as a result of the subdivision in section 18(1A) Subdivision Act 1988
Location of passage of interest- Paragraphs [26] – [34]
Reasons why decision is of interest or significance legislation – interpretation or application of statutory provision - Interpretation of the words as a result of the subdivision in section 18(1A) Subdivision Act 1988 – whether section 18(1A) precludes a public open space requirement from being made when there are existing buildings on the land, which are not otherwise exempt under the provisions of clause 52.01 of the planning scheme More...

P & P Todd Property Pty Ltd v Banyule CC (includes Summary) (Red Dot) [2009] VCAT 2005
Nature of case - Means of requiring public open space contribution
Reasons why decision is of interest or significance practice or procedure – consideration of individual instance or systemic issues - Practice of making a public open space requirement under section 18 of the Subdivision Act 1988 by way of a note in a planning permit is not a valid means of making such a requirement More...

Polydorou v Goulburn Murray Water & Anor (Civil Claims) [2009] VCAT 1943
Application for striking out under section 75, VCAT Act – whether jurisdiction under the Fair Trading Act 1999 – supply of services – irrigation district –water authorities -statutory agencies – whether services supplied in trade or commerce – whether the applicants are seeking review of a decision which is reviewable by the tribunal – Fair Trading Act 1999, s. 3 – Water Act 1989, ss. 33AX, 84ZB, Schedule 15 – claim struck out More...

Queensland

Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2009] QPEC 086
Environment and planning – environmental planning – development control – consents, approvals and permits – where application for determination of preliminary point – where approved development application contains both impact and code assessable development – whether appeal may extend to code assessable aspects of the development application, despite s 4.1.28 Integrated Planning Act 1997 – whether notice of appeal attacks parts of the development application which may not be appealed – whether public notification of the development application complied with s 3.4.4 of the Integrated Planning Act 1997 More...

AHC Ltd v. Gold Coast City Council [2009] QPEC 91
Court declines to order Council to provide particulars of deficiencies in a road for which it withheld a certificate of practical completion in reliance on its state some years after construction - it was for the developer to establish compliance with relevant standards in the first instance, rather than for the Council to identify and nominate deficiencies in a binding way More...

APM Property 3 Pty Ltd v Blondeau & Ors [2009] QSC 326
Statutes – acts of parliament – interpretation – interpretation acts and clauses – part 8 of chapter 7 of the Environmental Protection Act 1994 (Qld) – where owner of land proposed to reconfigure land into 24 lots under a community titles scheme – where owner entered into put and call option agreements with purchasers in relation to sale of proposed lots in the community titles scheme – where no notice was given to the purchasers prior to the entry into the option agreements that the particulars of the scheme land were recorded in the environmental management register – whether the owner was required to comply with s 421(2) of the Environmental Protection Act 1994 (Qld) prior to entering into the option agreements – whether s 421(2) applies where the subject of the purchase is a proposed lot to be subdivided out of the scheme land where the particulars of the land recorded in the environment management register are those of the scheme land and not the proposed lot – whether the option agreement constitutes an agreement to dispose of the land that is recorded in the environmental management register – whether purchasers entitled to rescind the option agreements under s 421(3) of the Environmental Protection Act 1994 (Qld)

Real property – strata and related titles and occupancy – sale of unit interests – where owner of land entered into put and call option agreement with purchaser in relation to sale of a proposed lot under the community titles scheme proposed for the land – where purchaser was bound under the option agreement to purchase the proposed lot upon the exercise by the owner of the put option – where owner purported to exercise the put option by completing and signing the notice of exercise of put option and delivering it to the purchaser with two unsigned copies of the disclosure statement issued under s 213(1) the Body Corporate and Community Management Act 1997 (Qld) and the contract – where the option agreement provided that entry into the contract occurs after the contract has been signed by the purchaser and returned to the owner – whether the applicant was required to comply with s 213(1) prior to entering into the option agreement – whether the option agreement is a contract to which s 213(1) applies More...