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what’s news in property, planning & environment?
10 april 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.
Click on the links below to take you directly to the relevant category or jurisdiction.
Latest News - National
Property regulation laws ‘archaic’
25 March 2008 The Australian Direct Property Investment Association (ADPIA), has called for a relaxation and synchronisation of Australia’s stamp duty and property trust laws. ADPIA has identified a number of issues that it believes should be addressed including land rich trust rules, the different treatment of ASX listed property trusts and non-ASX listed trusts, the differences between the states’ definitions of ‘widely-held’ tests and the adoption of look-through tests to establish the number of individual investors represented by property fund managers. more…
Business wants $3bn tax break to cope with climate change
The Australian, 20 March 2008 The Australian Industry Group (Ai Group) said the Government should help business adjust to climate change by phasing in a reduction in company tax to 25% from 30% by 2010 which would coincide with the introduction of the Emission Trading Scheme. more…
Big polluters demand billion-dollar 'ransom'
The Age, 17 March 2008 Australia's electricity generation industry is demanding massive compensation from the Federal Government in return for its co-operation in efforts to curb greenhouse gas emissions.
Planning laws inhibit supermarket competition: Aldi
QBR, 26 March 2008 Complex and outdated planning laws, land banking, restrictive retail contracts and foreign investment demands are the main barriers to greater supermarket competition, according to Aldi Stores. The overseas supermarket giant’s submission to the Australian Competition and Consumer Competition’s inquiry into grocery pricing claims "one of the largest barriers to competition is the capacity of a retailer to access suitable sites for stores". It says leasing contracts can include covenants which allow incumbent supermarket retailers to "drastically reduce the rent they pay in the event of a new operator" opening.
practice notes/directions - national
Federal Government detailed timetable on emissions trading
18 March 2008 Federal Climate Change Minister, Senator Penny Wong, has announced the Federal Government's detailed timetable for introduction of emissions trading. more…
Cases - National
Coal Developments (German Creek) Pty Ltd ACN 009 974 896 v Commissioner of Taxation [2008] FCAFC 27
Taxation - taxable income - carried-forward losses - whether taxpayer carried on same business throughout the business test period as it had carried on immediately before the test time - effect of sale of interest in mining joint venture - taxpayer after sale date procuring releases from liabilities under leases, port user agreements and the like contracted in connection with the joint venture - whether that activity constituted carrying on the same business by winding it down.
Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources
[2008] FCAFC 19
Practice & procedure - s 43 Federal Court of Australia Act 1976 (Cth) - discretion to award costs - circumstances justifying departure from the general rule - public interest litigation. Held: unsuccessful appellant ordered to pay a percentage of each respondent’s costs. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 42. Federal Court of Australia Act 1976 (Cth) s 43.
legislation - commonwealth
Regulations
Freedom of Information Amendment (Open Government) Bill 2003 [2008]
19 March 2008 A Bill for an Act to amend the Freedom of Information Act 1982 to give effect to recommendations made by the Australian Law Reform Commission and the Administrative Review Council, and for related purposes. more….
Latest News - Victoria
Infrastructure levy sneaks back on agenda
22 March 2008 Victorian developers are in limbo about an infrastructure levy they say could add up to $5,000 a block to the cost of housing. The proposed levy, first announced in 2005, has been quietly resurrected amid the State Government's celebrated decision to "fast track" farmland for housing in the name of reducing housing costs. A residential development executive, who declined to be named, said the industry was in "no man's land" about infrastructure costs. more...
Act of good faith for those with plenty
24 March 2008 In 2001, the Howard government sold Essendon Airport to Linfox and Becton groups for $22 million. To make the wholesale sell-off of all federally owned airports more palatable to a sceptical electorate, the 1996 legislation by the Keating government made the land transfer leasehold rather than freehold and required the private owners to produce a development master plan every 5 years, which would be made public and subject to federal approval. The master plan can be seen as a regular environmental impact statement if it was undertaken in good faith. Based on land use restrictions at the time of the sale, and which should be still in place now, the fair compensation required for the Government to resume the land should not be much more than $22 million and certainly only a fraction of what it is worth now as a redevelopment site. more...
Studies to determine preferred desalination pipeline route
20 March 2008 Detailed survey and geotechnical assessments are about to commence within the proposed corridor for the pipeline to transfer water from the desalination plant near Wonthaggi to the existing water supply network. Water Minister, Tim Holding, said “the investigations for the 85km pipeline are needed to determine the preferred pipeline route, the pipeline is a key piece of the $3.1 billion desalination plant project”. The preliminary investigations and discussions with landowners will form part of the proposal to be evaluated as part of the Environment Effects Statement. The route is currently a 400m wide corridor with the final easement expected to be less than 30 metres wide. more...
Industry should wear EPA compliance costs: McNamara
The Environmental Protection Agency is reviewing the Environmental Protection Regulation for the first time in 10 years and has proposed a new fee system that will see massive increases in charges as well as fines for non-compliance. The increase will be funded entirely through businesses deemed to be undertaking 'environmentally relevant activities'. These include food processing, fabricated metal products, transport services, waste management, mining, and sawmilling. Firms will be liable for thousands of dollars in extra fees each year with the Government also axing multi-site discounts.
Editorial: Murray-Darling deal masks deeper challenges
27 March 2008 The Victorian Government has, sensibly, put forward a multi-tiered strategy for improving the state's management of water and providing greater water security. The food bowl project is by far the biggest tier in the Government's vision. With more than 70% of the state's water used for agricultural purposes, it is critical that both phases of the project, the north-south pipeline and infrastructure to dramatically reduce the seepage, leakage and evaporation from irrigation channels, succeed. more…
Blue Wedges fail to halt channel deepening
28 March 2008 The Blue Wedges environment group has failed in its Federal Court challenge to channel deepening in Port Phillip Bay. Justice Tony North found that the group had not established that Federal Environment Minister, Peter Garrett, failed to follow the law when allowing the project. more...
Builder shortage hits Brumby plan
24 March 2008 Premier, John Brumby, earlier this month rezoned land to support 90,000 new home sites, but Master Builders executive director, Brian Welch, said “the dearth of workers could imperil the Government's expansion plans for the state”. But Victoria’s construction industry needs more than 40,000 new workers if it is to give form to the state's building plans, but competition from other states is making labour harder to find.
Energy efficiency extended to renovations
25 March 2008 The Victorian Government will be extending the 5 Star energy efficiency standards set out in the building. more...
Murray Darling agreement a win for Victorian Farmers and the environment
26 March 2008 Premier, John Brumby, today announced a historic agreement had been reached on the Murray Darling Basin that delivers new protections and improved water security for Victorian farmers and the environment. Under the agreement, the Commonwealth will invest up to $1 billion in Stage 2 of the Food Bowl Modernisation Project that will help deliver approximately 200 billion litres of additional water to Victorian irrigators and the Murray River.
more...
Solar Hot water rebates for Regional Victorians
21 March 2008 Minister for Environment and Climate Change, Gavin Jennings, and Minister for Energy and Resources, Peter Batchelor, today announced a $33 million package to encourage households in regional and rural Victoria to switch to solar hot water. Residents in regional and rural areas will now be able to claim a rebate of up to $2,500 back from the Brumby Government for the installation of a solar hot water unit. more...
Fast track for bayside development
26 March 2008 Melbourne’s newest bayside community development at Point Cook has been given the green light, following state government approval for a $590 million, 208 hectare project to be developed by FKP Property Group. more...
Council win on poker machines
19 March 2008 The Victorian Court of Appeal has made a landmark decision about the installation of poker machines in a central Victorian council. The Court said the tribunal did not take into account evidence of community opposition to the introduction of gaming machines at the hotel and said this was an error of law. more...
Residents put city council on notice
28 March 2008 An alliance of 10 city residents' groups has fired the first salvo in what it calls the battle for democracy in Melbourne. The Coalition of Residents Associations, has described the voting system for the Melbourne City Council as dysfunctional and undemocratic. more...
Current Articles - Victoria
The dangers of contaminated land: what lies beneath Author: Dickey, Suzanne SSource: Australian Property Law Bulletin, Vol 22(7): March 2008; pp58-60
Building and Construction Industry Security of Payment Bill (SA) Author: Gurry, BridgetSource: Australian Property Law Bulletin, Vol 22(7): March 2008; pp61
The clock is ticking on “pre-lease” misrepresentations Author: Riddelll, Robert; Fitzpatrick, Daniel Source: Australian Property Law Bulletin, Vol 22(7): March 2008; pp62
Estoppel in the face of statute and rights to terminate land contracts
Author: Duncan, W D; Christensen, Sharon Source: Australian Property Law Bulletin, Vol 22(7): March 2008; pp63-66
NSW Court of Appeal qualifies exceptions to indefeasibility of title: City of Canada Council v Bonaccorso Author: Masson, Jodie; Lyons, Chris; Carter, Rachael Source: Australian Property Law Bulletin, Vol 22(7): March 2008; pp67-68
cases - victoria
Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375
Copyright - alleged copyright in substantial part of house plans and built houses - al fresco quadrant - subsistence of copyright - whether "logical development" of existing plans of third party - whether substantial part - whether actual copying - significance of lies as to derivation of respondent’s design - whether sufficient similarity.
Parker v State of Western Australia [2008] FCAFC 23
Administrative law - consideration by Tribunal of risk of interference to a site of particular significance to native title claimants under s 237(b) of the Native Title Act 1993 (Cth) - Tribunal’s conclusion open to it
- conclusion not so unreasonable as to render it invalid. Administrative law - Tribunal did not spell out confidential evidence on which its determination was based - need to balance sensitivity of evidence with appropriate extent to which evidence should be recited in reasons - Tribunal stated findings of fact as required by s 162(2) of the Native Title Act 1993 (Cth).
Hazelbane v Doepel [2008] FCA 290
Native title - application to review decision of Native Title Registrar to accept application for registration of Batchelor No 2 claim under s 190A of Native Title Act 1993 (Cth) - whether applicant group, Batchelor 1 claimants are "persons aggrieved" by the decision so as to have standing to challenge the decision of the Registrar - whether Batchelor 1 documents devised procedural fairness through failure to be given opportunity to provide submissions on whether the Batchelor No 2 claimants should be accepted for registration pursuant to s 190A - consideration of requirements in ss 190B and 190C - whether Registrar erred in having regard to additional information provided by Batchelor No 2 claimants specifically for the purpose of a mediation in order to be satisfied of a sufficient factual basis to meet native title rights and interests desired pursuant to s 190B
(5) - whether Registrar fell into error by identifying a wrong issue and asking himself a wrong question in addressing procedural requirements in s 190C(2) and
(4) - whether requirements of ss 61 and 62 met.
Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor [2008] VSCA 45
Administrative law - error of law - relevant considerations - Victorian Civil and Administrative Tribunal - review of decision refusing approval of hotel premises for gaming - ‘Net economic and social impact of approval’ - whether ‘detrimental to wellbeing of community’ - evidence of community opposition to introduction of electronic gaming machines - whether evidence of community opposition was considered by VCAT - whether relevant consideration or merely ‘piece of evidence’ Gambling Regulation Act 2003 (Vic), Part 3 -
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 49.
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38
Landlord tenant - covenant not to alter demised premises - covenant to leave in repair or make good demised premises at end of term of lease. Damages
- lease - breach of covenant not to alter demised premises - measure of damages - no damage to reversion - whether cost of reinstatement recoverable
- whether reinstatement is reasonable - meaning of reasonable - time at which claim is made by landlord
- at or near end of lease - relevance of option to renew - relevance of whether option exercised - whether landlord must prove intention to use any damages awarded to restore premises - rule in Joyner v Weeks [1891] 2 QB 31.
Turrbal People v State of Queensland [2008] FCA 316
Native title - notice of motion seeking to replace applicant in proceedings - whether applicant should be replaced - whether entire relevant claim group has been included - whether applicant was authorised to make original native title application - where section 66B of the Native Title Act applies - where determination of "proper" claimant group not properly a subject for determination - where section 66B of the Native Title Act assumes the applicant had authority to bring the claim - where determination of authorisation should more properly be determined in a strike out application under section 84C of the Native Title Act - where if applicant had authority to make original application the applicant had authority to change the applicant - where leave granted to change applicant.
Latest News - New South Wales
Statement by the High Court of Australia: Breach of an essential lease term warrants damages
27 March 2008 A commercial lease was validly terminated on account of the lessee’s failure to pay rent, and the lessor was entitled to damages as well as unpaid rent and outgoings, the High Court of Australia held today. The High Court unanimously allowed the appeal and restored the judgment sum awarded by Associate Justice Macready. It held that Duffy Bros had breached the deed and that Gumland had a clear right of action under the deed against Duffy Bros for rent not paid by Woolworths. The deed was not a side agreement to the lease or a suspension of the lease, but a variation of it. Hence the failure to pay these amounts was a failure to comply with the lease covenant to pay all rent and outgoings. The lease covenant was an essential term and breach of an essential term entitled Gumland to terminate the lease and obtain an award of loss of bargain damages. more…
Hospital bail-out unlikely: agency
The Age, 26 Marcy 2008 Credit ratings agency Standard & Poor's says it is unlikely taxpayers will have to bail out the $1 billion Royal Children's Hospital development, if the project becomes a victim of the global credit crisis. A consortium of Babcock & Brown, Lend Lease and Spotless has been awarded the $946 million contract to build the new Royal Children's Hospital in a public-private partnership with the Brumby Government. S&P director, Ian Greer, said “taxpayers should be shielded from any extra costs”. He says “that in all PPP projects, if the project is not working, the government reserves the right to kick out the party and replace them and if the project fails you will probably get a high recovery anyway”. more…
Plan to shut beach hotels early
Sydney Morning Herald, 27 March 2008 Councillor Notley-Smith said “the council and the police would make a joint submission to the NSW director of Liquor Gaming and Racing to impose a "lockout" at the 2 hotels when the new Liquor Act took effect on 1 July. He said there was an "undeniable link between late-trading premises and late-night disturbances, damage to private and public property, street crime, antisocial behaviour and violence both inside and outside of late-trading venues". more…
Industry should wear EPA compliance costs: McNamara
QBR, 20 March 2008 The Environmental Protection Agency is reviewing the Environmental Protection Regulation for the first time in 10 years and has proposed a new fee system that will see massive increases in charges as well as fines for non-compliance. The increase will be funded entirely through businesses deemed to be undertaking 'environmentally relevant activities'. These include food processing, fabricated metal products, transport services, waste management, mining, and sawmilling. Firms will be liable for thousands of dollars in extra fees each year with the Government also axing multi-site discounts.
On track to gridlock as population explodes
Sydney Morning Herald, 16 March 2008 A State of permanent transport gridlock is threatening to choke Sydney as it grows by a forecast 1.1 million people over the next 20 years. The Iemma Government has released draft targets for each local government area to house the population boom, promising that $7.5 billion in road and rail infrastructure, bus services, open space, schools and health facilities will follow. Under the draft plans compiled for the Government's Metropolitan Strategy, 600,000 new dwellings will be built by 2031. The City of Sydney heads the list for the number of new dwellings with 55,000. A further 248,000 will be built in 9 western Sydney council areas. more…
Growth centre councils demand urgent meeting with Premier
Media Release, 19 March 2008 Growth centre councils have demanded an urgent meeting with the NSW Premier to clarify Government plans to slash the funds councils can collect from developers to fund parks, swimming pools and child care centres. The mayors and general managers from Blacktown, Campbelltown, Camden, Hawkesbury and Baulkham Hills discussed concerns over the Government's revised developer levies framework and the erosion of council service at a recent meeting. more…
Current Articles - New South Wales
The clock is ticking on “pre-lease” misrepresentations Author: Riddelll, Robert; Fitzpatrick, Daniel Source: Australian Property Law Bulletin, Vol 22(7): March 2008; pp62
practice notes / directions- new south wales
Forums to teach licensees new liquor laws
NSW pub and club licensees have just 3 months to get up to speed on tough new liquor laws set to be enforced in July. Among the changes, troublemakers can be banned from multiple venues for up to 6 months and problem venues will be forced to operate with curfews. "An overview of the new liquor laws will be provided, as well as information about the new Casino, Liquor and Gaming Control Authority and an explanation of the new compliance regime including new enforcement and offence provisions”. more...
Improving the NSW planning system
The NSW Government has released a discussion paper which contains more than 90 recommendations to improve the planning system, particularly for families and small businesses. It also includes miscellaneous recommendations in areas such as strata management, paper subdivisions and dispute resolution. more…
Latest News - Queensland
Queensland communities register Iconic interest
Media Statement, 19 March 2008 The State Government received 3 expressions of interest to have areas in Queensland declared iconic. The Livingstone Shire Council nominated 21 sites for consideration under the new Iconic Queensland Places Legislation, the Isisford Shire Council has proposed the entire shire be declared mainly on the basis of its archaeological significance and the Blackall Range Land Use Planning Association put forward the Blackall Ranges. The former Douglas and Noosa council areas are identified as iconic under the new Act, so the special character residents and visitors treasure so dearly will not be threatened by future development. more…
Northeast Business Park
Northeast Business Park Pty Ltd proposes to develop a major integrated business, residential, commercial and light industrial precinct including marina, golf course and conservation areas on a 762 hectare site on the southern bank of the Caboolture River. Submissions on the EIS may be made until 5pm Friday, 4 April 2008. more…
Brisbane land values jump 22%
Brisbane Times, 17 March 2008 A 22% increase in Brisbane land valuations has been announced today, placing immediate pressure on Campbell Newman's new Brisbane City Council to prevent rate hikes. Details of the new annual valuation of rateable lands can be inspected until 1 May 2008, at the Department of Natural Resources and Water more…
Brisbane's office space is hot property
Brisbane Times, 28 March 2008 Office space in Brisbane's city fringe remains hot property and the majority of new developments leased before they are even complete, according to one expert. Preliminary data for 2008 prepared by Jones Lang LaSalle found 70% of the 145,000 m2 of commercial space due for completion had been pre-committed. Long considered a distant cousin of the CBD commercial market, fringe suburbs now stand firm as a "first option" for many tenants, the company's national leasing director Christian Sandstrom said. more…
Woolworths responds to 'green' claims concerns
ACCC, 18 March 2008 Woolworths Limited has undertaken a number of steps to resolve Australian Competition and Consumer Commission concerns about labelling of Woolworths Select tissue products. To resolve the issue, Woolworths has proposed placing stickers over the representations as a transitional measure before rolling out new packaging without the representations. Consistent with its message in its recently released publication Green Marketing and the Trade Practices Act, the ACCC considers businesses should be very cautious in making green claims which may be ambiguous or controversial, particularly in circumstances where consumers are increasingly placing weight on environmental representations. more…
current articles - Queenland
The dangers of contaminated land: what lies beneath Author: Dickey, Suzanne SSource: Australian Property Law Bulletin, Vol 22(7): March 2008
Building and Construction Industry Security of Payment Bill (SA) Author: Gurry, BridgetSource: Australian Property Law Bulletin, Vol 22(7): March 2008
The clock is ticking on “pre-lease” misrepresentations Author: Riddelll, Robert; Fitzpatrick, Daniel Source: Australian Property Law Bulletin, Vol 22(7): March 2008
Estoppel in the face of statute and rights to terminate land contracts Author: Duncan, W D; Christensen, Sharon Source: Australian Property Law Bulletin, Vol 22(7): March 2008
NSW Court of Appeal qualifies exceptions to indefeasibility of title: City of Canada Council v Bonaccorso
Author: Masson, Jodie; Lyons, Chris; Carter, Rachael Source: Australian Property Law Bulletin, Vol 22(7): March 2008; pp67-68
practice notes/directions - queensland
New Queensland Forms in force
The following Property Agents and Motor Dealers Act 2000 forms will be updated and available from the fair trading website from 1 April. more…
Cases - Queensland
Australian Hotels Association v Copyright Tribunal [2008] FCAFC 37
Administrative law - review of decision of Copyright Tribunal - licensing scheme for use of recorded music in nightclubs - whether Tribunal asked itself the right question by referring to music in nightclubs as distinct from music in nightclubs for the purpose of dancing. more…
Source Homeloans Pty Ltd v Coles Group Ltd
2008 ATMO 17
Section 52 opposition - grounds under sections 58 and 60 - alleged use of trade marks source home loans or source by opponent - onus on opponent to satisfactorily demonstrate such use; use established only in relation to mortgage brokerage services; services not the same kind of thing; trade marks not substantially identical; opposition under section 58 not established; no satisfactory demonstration of trade mark’s reputation, section 60 opposition also cannot be established. more…
Stockland Developments Pty Ltd v Gold Coast City Council & Anor [2008] QPEC 016
Appeal - appellant developer obtained a preliminary approval for a material change of use of its 277 hectare site from grazing to residential and associated uses - development in stages envisaged - condition for payment of contributions towards water supply and sewerage headworks according to “rates in force at the time of payment” - Council imposed on later application for development permit for reconfiguration conditions for such contributions at higher rates under new Local Planning Policies about infrastructure contributions and for contributions under new policies in relation to recreation facilities and transport - whether such conditions unlawful - whether they “further regulate the development”, “ affect the [preliminary] approval” or are “inconsistent” with the earlier condition. more…
Terry Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council
[2008] QCA 056
Environment and planning - courts and tribunals with environment jurisdiction - Queensland - planning and environment court and its predecessors - other matters - where applicant/appellant granted itself approval to construct toilet block on State coastal land above high-water mark near Daintree river - where respondent applied for a declaration that the construction required a development permit from it to be lawful - where applicant/appellant sought the determination of preliminary points of law - where no factual findings had been made prior to applicant/ appellant's application - where primary judge accepted respondent's interpretation of "interfering with quarry materials" within Sch 8 Pt 1 Table 4 Item 5(b)(i) Integrated Planning Act 1997 (Qld) - whether primary judge erred in making determination of preliminary points of law - whether application for determination of preliminary points of law was premature in the absence of factual findings. more…
Bills Introduced
Environmental Protection and Other Legislation Amendment Bill 2008
Current Reprints
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 Housing Act 2003 No.2B Indigenous Communities Liquor Licences Act 2002 No.1B Liquor Regulation 2002 No.4D Local Government (Aboriginal Lands) Act 1978 No.5A Local Government (Community Government Areas) Act 2004 No.1D Recreation Areas Management Act 2006 No.1B Residential Tenancies Act 1994 No.8A Southern Moreton Bay Islands Development Entitlements Protection Act 2004 No.1B Torres Strait Islander Land Act 1991 No.6A Vegetation Management Act 1999 No.2F Vegetation Management Regulation 2000 No.3C Water Regulation 2002 No.5A
Acts
Gas Supply Amendment Act 2008 (Act No 11 of 2008)
Valuation of Land Amendment Act 2008 (Act No 10 of 2008)
Water Fluoridation Act 2008 (Act No 12 of 2008) (principal)
Regulations
Lotteries Amendment Rule (No. 1) 2008 (SL No 76 of 2008)
Mineral Resources Amendment Regulation (No. 2)
2008 (SL No 70 of 2008)
Proclamation commencing remaining provisions -
Queensland Heritage and Other Legislation
Amendment Act 2007 (SL No 75 of 2008)
Queensland Heritage and Other Legislation
Amendment Regulation (No. 1) 2008 (SL No 74 of
2008)
Amends: Environmental Protection Act 1994;
Integrated Planning Act 1997; Queensland Heritage
Act 1992; Workplace Health and Safety Act 1995
Housing Amendment Regulation (No. 1) 2008 (SL No
52 of 2008)
Local Government Reform Implementation
(Transferring Areas) Amendment Regulation (No. 2)
2008 (SL No 66 of 2008)
River Improvement Trust Amendment Regulation
(No. 1) 2008 (SL No 63 of 2008)
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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.
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