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what’s news in property, planning & environment?

1 july 2008

This issue, published by our property & projects group, is a national summary of the latest news, cases, articles and legislative changes affecting property, planning and environment.

latest news - national

Master Builders welcomes senate report on housing affordability

19 June 2008 The Senate Report comes in the wake of a number of key initiatives announced by the Rudd Government, including first Home Saver Accounts, the National Rental Affordability Scheme and the Housing Affordability Fund. Jones says Master Builders has for some time been calling for strategies to increase housing supply, including: Unlocking urban infrastructure impediments, particularly at the local government level; A more streamlined and efficient development approval system; and a review into optimal funding arrangements between the federal, state, territory and local governments.

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New website to detail water purchases

18 June 2008 A new website to go live on 10 July will provide information on the Australian Government's water entitlement purchases, Minister for Climate Change and Water, Senator Penny Wong, announced today. 'The new Water Entitlement Website will contain information on purchases made as part of the Government's $50 million water entitlement buy-back to help return Murray-Darling Basin rivers to health,' Senator Wong said. The Water Entitlement Website will include aggregated data about each purchase, including volumes, entitlement type, amount spent and water source.

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Consumer squeeze beyond homeloan sector

10 June 2008 The credit crisis triggered by bad homeloans is spreading to other areas, forcing banks to tighten lending in other consumer-loan sectors. That means consumers are going to have an increasingly difficult time getting bank loans for car purchases, credit cards, home-equity credit lines, student loans and even commercial real estate, experts say.

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REIQ urges Reserve Bank to cut interest rates

11 June 2008 The Real Estate Institute of Queensland (REIQ) says April's slump in home loan borrowing is proof the Reserve Bank needs to reduce official interest rates.

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Carbon footprint manager will have big shoes to fill

11 June 2008 Companies will have to forecast and hedge their carbon risk as part of their plans for growth and these plans will have an impact on the footprint. Chief carbon officers might be hedging that risk for growth with credits. Carbon trading, credits and offsets have the potential to create significant intangible assets and liabilities. The chief carbon officer will have to brief the audit committee on the implications of the company's carbon footprint — the term describing the impact the company's activities have on the environment, as measured by the greenhouse gases produced — for the financial accounts.

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current articles - national

Kyoto Treaty and Building ManagementSource: Australian Building Services journal, vol. 1 2008: pp33-34 Subjects: With the signing of the Kyoto Treaty by the new Government, energy savings will soon become an even more pressing issue for many hotel facility managers and engineers. One of the international goals is to realize a 22 per cent energy savings for buildings in 2012.

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The sovereign risk furphy Author: Berger, Charles Subjects: no fiscally responsible, investor-friendly government wants to be mentioned in the same paragraph as sovereign risk. TRU Energy’s submission (PDF 152KB) to the Garnaut Review is liberally sprinkled with references to emissions trading as a “sovereign risk”, which the energy corporation says can only be mitigated by the government giving away free emissions permits to companies that might otherwise have to pay to continue to pollute.

- posted 16/6/2008

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Implications of climate change for Australia's national reserve system [electronic resource] : a preliminary assessment. Author: Dunlop, Michael et al Source: Canberra : Dept. of Climate Change, 2008; pp147Subjects: Protected areas; Greenhouse effect; Natural resource management; Environment policy; Biodiversity; Environmental impact; Federal state relations; Trends to 2010 National Reserve System (NRS)

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The law of climate change. Author: National Environmental Law Association. National Source: 2008.; 1 v. in 2 Subjects: Greenhouse effect; Environmental management; Common law; Natural resource management; Emissions trading; Geological sequestration; New Zealand; Environment policy; Litigation; Legislation; Conferences; Australia overseas comparisons

Urban structure and energy: a review. Author: Glazebrook, Garry; Rickwood, peter; Searle, glen source: Urban Policy and Research; March 2008; vol.26(1); pp57-81, Subjects: Cities and towns; Energy consumption; Greenhouse effect; Housing; Public transport; Australia overseas comparisons; Europe, Western; Statistics; United States

Can Australian local governments have a role in local economic development? Three cases of evidence. Author: Jones, Stephen Source: Urban Policy and Research; March 2008; vol.26(1); pp23-38, Subjects: Economic development; Local councils; Regional development; Brisbane City Council; Federal local government relations; Melbourne City Council; State local government relations

Conveyancing and property: Peter Butt (ed) Source: Australian Law Journal, vol. 82 No 5 May 2008 Subjects: When is a right of pre-emption exhausted p300 Priority for option to purchase in registered lease p301 Purchaser entitled to terminate for vendor’s failure to complete building in proper and tradesmanlike manner p302. A short note on court-imposed easements

Rental property deductions - know what you can claim

10 June 2008 Over 1.5 million people claimed more than $24 billion in rental deductions in their tax returns last year, with almost 170,000 people claiming deductions for the first time. So if you receive a letter about your deductions make sure you check your claims carefully because the Tax Office will be checking too!. There are two categories of rental property expenses you can claim

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practice notes/directions - national

Carbon storage bills introduced

Legislation has been introduced to establish a system of offshore titles that will authorise the storage of greenhouse gas substances deep under the seabed.

Offshore Petroleum Amendment (Greenhouse Gas Storage) Bill 2008 Offshore Petroleum (Annual Fees) Amendment (Greenhouse Gas Storage) Bill Offshore Petroleum (Registration Fees) Amendment (Greenhouse Gas Storage) Bill 2008 Offshore Petroleum (Safety Levies) Amendment (Greenhouse Gas Storage) Bill 2008 Explanatory Memorandum

latest news - victoria

Heritage tree damage costs developer $150,000

20 June 2008 Magistrate Roger Franich has fined Kew Development Corporation Pty Ltd $150,000, and described as a "pretty ordinary mistake" its breaches of a Heritage Victoria permit to develop the controversial site. The Sydney-based company pleaded guilty to excavating part of heritage-registered land marked as tree protection zones

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Progress report on major water projects

The Brumby Government has today released a report into the progress of its major water projects underway throughout Victoria. The Water Plan includes Australia’s largest desalination plant, irrigation upgrades in northern Victoria, a network of pipelines to move water around the State, increased water recycling and ongoing water conservation. A copy of the progress report can be found at

www.ourwater.vic.gov.au

Victoria signs historic agreement on climate change, research and energy with Manitoba

18 June 2008 Clean coal research will be one of the key focuses of a new agreement between Victorian and Canadian scientists to work together on clean energy technologies to spearhead crucial work to address climate change, Minister for Innovation, Gavin Jennings announced today.

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Cost to offset desalination plant's carbon footprint hits $42m

16 June 2008 Offsetting the Victorian desalination plant's contribution to climate change will add $42 million a year to its electricity bill, according to a new analysis from Environment Victoria. If based on coal-fired electricity, the plant would pump out 1048 million tonnes of CO2/year, equivalent to running 250,000 family cars.

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Legal threat to Victorian wind project

10 June 2008 The much-delayed Bald Hills wind farm in Victoria faces a new hurdle, with opponents threatening a High Court challenge to try to scuttle the contentious project.

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Government to test lockout exemptions

9 June 2008 Liquor Licensing director Sue Maclellan is challenging the legality of the exemptions granted to seven clubs from the two am lock out. Reportedly, the challenge will be heard in the Victorian Civil and Administrative Tribunal and will form a test case under which the remaining 98 exemptions could also be quashed.

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cases - victoria

Sunset Vineyard Management Pty Ltd v Southcorp Wines Pty Ltd [2008] VSCA 96 Contract — Construction of contract - Whether premium payable under the initial term was payable under the option term – Whether an implied term could be drawn from the pricing schedule in the initial term to set pricing in the option term – Whether an information memorandum issued prior to the contract formed part of the background circumstances to the agreement – Admissibility of the information memorandum as evidence of the intention of the parties – Appeal dismissed. Practice and procedure - Application for leave to amend notice of appeal - Whether exceptional circumstances exist warranting amendment of notice of appeal – Circumstances arising from briefing of new counsel do not constitute an exceptional circumstance – Application refused.

Spotless Group Ltd v Premier Building and Consulting Pty Ltd & Anor [2008] VSCA 115 COSTS – Lengthy trial – Costs apportioned according to measure of success of plaintiff who failed on most causes of action – Assessment of time taken on issues on which plaintiff successful – Multiple defendants jointly represented – Related corporate entities – Whether rule of thumb applies that successful defendants entitled to part of their costs. - application arises out of proceedings in the Supreme Court concerning the contamination of land at 225 Barkley Street (North Suburban land) and 227–231 Barkley Street (Premier land) in Brunswick with chemicals used in dry cleaning and laundry operations conducted on the sites between 1963 and 1983.

legislation - victoria

Victoria Regulations Acts Residential Tenancies Regulations 2008 (SR No 55 Energy and Resources Legislation Amendment Act of 2008) (principal)

2008 (Act No 25 of 2008) Transfer of Land (Fees) Amendment Regulations Land (Revocation of Reservations) Act 2008 (Act No

2008 (SR No 56 of 2008) 26 of 2008) (principal)

practice notes/directions - victoria

Comment invited on the new gambling industry structure

11 June 2008 The Government is seeking public comment on the competitive bidding phase of the Gambling Licences Review, with the release of three Discussion Papers. Gaming Minister Tony Robinson said the release of the wagering, keno and gaming machines Discussion Papers demonstrated the Brumby Government’s commitment to consultation as part of the review process on the implementation of the new structure for the post-2012 gambling industry. The closing date for all submission is Tuesday, 8 July 2008. The Discussion Papers and relevant submission forms are available for download from the Department of Justice website

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Released: Minister's Direction No. 12 - Urban Growth Areas

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Released: VPP Practice Note Urban Growth Zone

The UGZ has been applied to rural zoned land in Melbourne's designated growth areas located inside the Urban Growth Boundary (Casey, Cardinia, Hume, Melton and Wyndham Planning Schemes). The UGZ will also be a useful tool for future urban areas in regional cities and towns.

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latest news - new south wales

Beechwood victims may get to own plans

19 June 2008 Victims of the collapse have been told by the company's receiver, Deloitte, they do not own the house plans, even though they have paid for them. NSW Fair Trading Minister Linda Burney said the government was negotiating with Deloitte to allow customers to purchase their copyrights for a small fee.

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Beechwood collapse hits hundreds more

10 June 2008 Another 580 people are believed to be victims of the collapse of Beechwood Homes in New South Wales, with none of them protected by home building warranty insurance. Around 580 potential homeowners had paid the company to draw up plans and lodge them with councils and NSW Fair Trading Minister Linda Burney says they are not eligible for an insurance pay-out, unlike others who had paid deposits or had homes partially completed.

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NSW: New planning laws mean you'll need alawyer: LGA

18 June 2008 Homeowners in NSW who object to their neighbour's extensions will have to employ lawyers and go to court under new planning laws, the Local Government Association (LGA) says. LGA president Genia McCaffery said that while the laws had passed the state's upper house early this morning, the building codes to which they referred had not yet been developed.

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Sydney Water prices set for 2008/09 to 2011/12

16 June 2008 The Independent Pricing and Regulatory Tribunal (IPART) today announced price increases for Sydney Water water and sewer services that will result in a 17 per cent rise, plus CPI, to a typical bill in 2008/09. A typical household, using 200kL of water a year, will pay an extra $245, plus CPI, by 2011/12.

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Seidler home listed on State Heritage Register

11 June 2008 Planning Minister Frank Sartor today announced that the family home of late architect Harry Seidler would be listed on the State Heritage Register. Mr Sartor said the reinforced concrete and glass residence in Killara was designed by Mr Seidler and his wife Penelope in 1966-7, and was among the best examples of the architect’s domestic work.

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NSW unveils infrastructure plan

11 June 2008 The New South Wales Government has set out how it intends to spend $140 billion on new and upgraded infrastructure projects over the next 10 years.

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NSW considers new airport, fast train

11 June 2008 Problems emerge in proposal to build an international airport in Newcastle with a fast train link to Sydney. .

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cases - new south wales

Harris v Smith & ors [2008] NSWSC 545 Contract – rectification – common mistake – where contract for sale of land and transfer provided for transfer of whole of a registered lot where it was the intention of the parties to transfer only part of the lot – distinction between rectification for common and unilateral mistake – whether unconscionable conduct an element of common mistake – where transfer repeating mistaken description of land had been registered – whether retransfer to vendors of area mistakenly transferred available – discretionary considerations – whether relief should be withheld due to delay by vendors – whether Schedule of Lands attached to contract should be rectified – equitable damages – whether equitable damages appropriate in lieu of retransfer of land. contract – rectification – defences – where retransfer of mistakenly transferred land to vendors is appropriate remedy after order for rectification – whether restitutio in integrum relevant to suit for rectification – whether rectification and retransfer possible where a bona fide third party has taken an interest in the land – whether rectification and retransfer possible where contract no longer capable of performance – whether rectification and retransfer is inutile. Contract – rectification – implied terms – relationship between implication of terms and rectification – where rectification of the contract would require provision for subdivision of the subject land – whether terms providing for subdivision of land can be implied into the contract for sale – whether rectification impossible due to uncertainty of terms in respect of subdivision – whether implication of terms requires same standard of certainty of content as suit for rectification. Contract – warranties – breach of warranty – whether Schedule of Lands attached to but not referred to in contract amounted to a warranty by vendor of total area land to be transferred – whether regard can be had to evidence extrinsic to contract to determine if Schedule is a warranty – damages – interest. Property – Land under Torrens Title – (NSW) Real Property Act 1901, s 43A – indefeasibility of title – protection of purchaser from notice of unilateral mistake between settlement and registration – “personal equity” – in personam equitable claims against parties with registered interest – whether claim for rectification is a recognised equitable cause of action enforceable against a party with a registered interest – whether registered party’s protection against notice of mistake available where parties under common mistake – whether notice possible under common mistake – whether Real Property Act, s 43A relevant to suit for rectification under common mistake – whether unconscionable conduct by party with registered interest necessary to all in personam claims. (NSW) Real Property Act 1900 , ss 42 , 43A (NSW) Conveyancing Act 1919 , s 23F

Parramatta City Council v R&R Fazzolari Pty Ltd;Parramatta City Council v Mac's Pty Ltd [2008] NSWCA 132

Local government – Statutory functions – Compulsory acquisition – Purpose of acquisition – Whether acquisition was for purpose of exercising statutory service function – Land adjoining or in vicinity of other land proposed to be compulsorily acquired – Public-private partnership for development – Whether council proposed to acquire land for purpose of resale – Meaning of resale – Distinction between purpose and motive – Dominant purpose – Implementation of Parramatta Civic Place Master Plan.

Dillon, Kevin & Anor v Gosford City Council

[2008] NSWLEC 186

Compulsory Acquisition of Land; Easements :'Market value'; loss attributable to 'disturbance'; interpretation of the rights afforded under the easement compulsorily acquired; levee bank construction, scour protection works

Cloud Top Pty Limited & Anor v Toma Services Pty Limited & Anor [2008] NSWSC 568 Contracts - Contract for sale of hotel real property and business - Contract not made subject to any due diligence and verification of accounting position of hotel -No warranty of accuracy of figures Express provisions excluding reliance by purchaser on financial information -Guarantees Misleading and deceptive conduct - Alleged contractual, common law and fiduciary duties of hotel brokers – Deposits - In New South Wales deposit of 10% of the purchase money an exception from the law relating to penalties -Whether hotel broker an agent for vendors – Solicitors - Allegation that Solicitor for purchaser owed and breached obligations to use reasonable skill, care and diligence or to act in accordance with instructions and to provide full and accurate advice Conveyancing Act 1919 (NSW); Gaming Machines Act 2001 (NSW); Liquor Act 1982 (NSW) Trade Practices Act 1974 (Cth.)

Irvine v Irvine [2008] NSWSC 592 CONTRACTS - unjust contracts - statutory remedies

- sale by 90 year old woman of home and virtually only asset to nephew and his sons for $1.00 - oral promise by them to allow her to remain there for life whether contract - whether unjust within Contracts Review Act 1980 s 7 - EQUITY - unconscionable dealing - clearly improvident transaction - whether position of special disadvantage Contracts Review Act 1980 . ss 4 , 7 , 9 , 19 Real Property Act 1900

latest news - queensland

Mayor cops ratepayers' wrath

19 June 2008 Lord Mayor Campbell Newman has been branded "deceitful" and "gutless" by an angry inner Brisbane unit owner facing an astronomical rise in rates. Central ward councillor David Hinchliffe, who organised the meeting, said general rates on units were skyrocketing by more than 780 per cent in some cases.

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Greenlight for $700m Whitsunday Shores

19 June 2008 The Whitsunday Shire Council has given Aspen Living the go ahead for its $700 million Whitsunday Shores development. Aspen Living’s chief executive Brendan Acott said the new master plan boasts a better layout and integration between the environment, community facilities, golf course and home sites. The approval also includes provision for a 16 hectare Eco Park

Lawyer accused of scaremongering over Mt Isa lead levels

18 June 2008 Mining giant Xstrata has accused lawyers of scaremongering by releasing research that allegedly reveals high levels of lead in children's bedrooms in the Queensland city of Mount Isa, a view endorsed by the Environmental Protection Agency (EPA) saying it was skewed to produce alarming results.

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Fresh start for North Bank redevelopment: Lucas

18 June 2008 The redevelopment of North Bank had a fresh start today with the opening of an independent workshop designed to help revitalise the neglected section of the river. Acting Premier and Minister for Infrastructure and Planning Paul Lucas said around 50 people from 30 organisations would take part in a three-day cooperative ‘enquiry-by-design’ to progress new North Bank proposals.

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Qld builders may face green homes requirements

15 June 2008 Queensland's Government wants to make new homes being built in the state more environmentally friendly. It has released a discussion paper proposing that new homes - built after January next year - must have a five-star energy rating. The Courier Mail reports the document says the State Government is also looking at covenants and body corporate rules that control the design of homes in a particular area, preventing energy-efficiency being built in.

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Big spend on capital works

11 June 2008 Roads and infrastructure was the cornerstone of Brisbane City Council's record $2.66 billion budget, with more than a third spent on capital works. Major projects include $864 million on roads, bikeways and public transport and $138 million on TransApex projects such as the Hale Street Bridge and Northern Link, $150 million to address climate change and $60 million for 125 new buses.

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cases - queensland

Van Der Valk and Anor v Gold Coast City Counciland Anor [2008] QPEC 029

Planning – Planning Law – Appeal against refusal of application for material change of use – Whether proposal offended DEO s of Our Living City Gold Coast Planning Scheme 2003 – Whether proposal conflicted with Steep Slopes or Unstable Soils Constraint Code.

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Cass v Gold Coast City Council & Anor [2008] QPEC 032

Submitter appeal – aged care accommodation – proposal with greater height and density than shown on overlay maps – whether conflict – whether compliance with performance criteria – whether sufficient grounds to warrant approval notwithstanding any conflict

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Tutton v Body Corporate for Pivital Point Residential CTS 33550 [2008] CCT KA005-08

Appeal from adjudicator – Question of law – Whether bylaw unreasonable (concerning the keeping of animals) when by-law changed – Whether hypothetical circumstances can affect legal questions in issue – BodyCorporate and Community Management Act 1997,sections 276, 289(2), 294(2) and Schedule 5

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Colbran t/a Tablelands Coffee v State of Queensland ; Hatmill P/L & Ors v State ofQueensland; Maloberti & Ors v State of Queensland [2008] QSC 132

Torts – negligence – essentials of action for negligence – duty of care – Government and public authorities – Whether the public authority was acting in the public interest –Whether a duty of care existed to ensure a product used for spraying on coffee by the defendant was safe for such use – Whether the defendant owed a duty to ensure the spraying was conducted in a safe manner - Whether the defendant owed a duty of care to adequately train and supervise staff conducting spraying – Whether the spraying of coffee was a policy decision –Where the spraying was a part of the program to eradicate papaya fruit fly Torts – negligence – essentials of action for negligence – damage – Causation –– Whether the evidence established a causal connection between the spraying of coffee by the defendant and subsequent poor harvests - Where the rate and concentration of spray was higher than the off label permit Damages - measure and remotness of damages in actions for tort – Measure of damages – damage to land and buildings – Loss of profits – Whether the plaintiffs had mitigated their loss – Whether impecuniosity barred plaintiffs from claiming further loss – where impecuniosity attributable to defendant’s act

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Three P/L v Body Corporate for Savoir Faire [2008] QCA 167

Contracts – general contractual principles – illegal and void contracts – illegal by statute – particular statutes – where the appellant made a contract to sell a proposed allotment to the respondent – where no effective development approval for the proposed allotment existed at the time of the contract – where by operation of section 8 of the Land Sales Act 1984 (Qld) the contract was void – where subsection 19(6) provided an exception to the invalidity created by section 8 in circumstances where an application for a grant of exemption from development approval had been made – where subsection 19(7) required that such an application be made within “30 days after the event that marks the entry of a purchaser upon the purchase of the proposed allotment” – where the purchaser signed the contract before it was executed by the vendor – where the application for exemption was made more than 30 days after the purchaser signed the contract but less than 30 days after the vendor executed it – whether the application for exemption had been made in time – consideration of the meaning of the term “the event” as described in s 19(7) – consideration of when a person “enters upon a purchase” for the purposes of the Act – consideration of the meaning of purchaser as defined in s 6A(1)(a) of the Act

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legislation - queensland

Queensland Bills Introduced

Mining and Other Legislation (Safety and Health Fee) Amendment Bill 2008 Revenue and Other Legislation Amendment Bill 2008

Acts

Justice and Other Information Disclosure Act 2008 (Act No 40 of 2008) (principal) Revenue and Other Legislation Amendment Act 2008 (Act No 39 of 2008)

Regulations

Building Fire Safety Regulation 2008 (SL No 160 of 2008) (principal) Electrical Safety and Another Regulation Amendment Regulation (No. 1) 2008 (SL No 154 of 2008) Mines and Energy Legislation Amendment Regulation (No. 2) 2008 (SL No 158 of 2008) Proclamation commencing certain provision Environmental Protection and Other Legislation Amendment Act 2007 (SL No 161 of 2008) Property Agents and Motor Dealers (Auctioneering Practice Code of Conduct) Amendment Regulation (No. 1) 2008 (SL No 159 of 2008) State Development and Public Works Organisation Amendment Regulation (No. 3) 2008 (SL No 163 of 2008) State Development and Public Works Organisation (State Development Areas) Amendment Regulation (No. 2) 2008 (SL No 162 of 2008) Natural Resources and Water Legislation Amendment Regulation (No. 1) 2008 (SL No 149 of 2008) Amends: Acquisition of Land Act 1967; Building Units and Group Titles Act 1980; Foreign Ownership of Land Register Act 1988; Land Act 1994 Land Protection (Pest and Stock Route Management) Act 2002; Land Title Act 1994; Surveyors Act 2003; Valuation of Land Act 1944; Valuers Registration Act 1992; Vegetation Management Act 1999; Water Act 2000 Transport Legislation and Another Regulation Amendment Regulation (No. 1) 2008 (SL No 148 of 2008)

practice notes/directions - queensland

Discussion Paper - Improving sustainable housing in Queensland

15 June 2008 The Queensland Government has launched the Improving Sustainable Housing in Queensland discussion paper for public comment. The discussion paper includes the proposal to introduce 5-star (out of 10) energy equivalent rating for new houses and major renovations in Queensland from 1 January 2009. The Improving Sustainable Housing in Queensland discussion paper can be downloaded from more... more.. .

Public Trustee (Fees and Charges Notice) (No.1 )2008

[Queensland Government Gazette, 13 June 2008] Latest Fees and Charges Schedules of costs

Manufactured Homes (Residential Parks) Act 2003 and Fair Trading Act 1989 (18/06/08)

Due to the Office of Fair Trading becoming part of the Department of Justice and Attorney-General, a number of forms under the Manufactured Homes (Residential Parks) Act 2003 and Fair Trading Act 1989 have to be updated. and will be available on the website from 1 July.

2008-09 Queensland State Budget

On 3 June 2008 the Treasurer announced changes to transfer duty, mortgage duty, payroll tax and land tax.

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