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What's News in Property, Planning & Environment | 12 August 2008

What's News in Property, Planning & Environment | 12 August 2008

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what’s news in property, planning & environment?

12 August 2008

Australian Bankers’ Association responds to reports on mortgage stress

28 July 2008 The Australian Bankers’ Association (ABA) is keen to ensure the debate about home lending and defaults on mortgages is based on facts. The ABA is concerned that the projections on mortgage stress by Fujitsu Consulting and Wizard Home Loans are inflated by double counting and inclusion of investor and developer properties.

Land rights reach into the sea

31 July 2008 Aboriginal land rights in the Northern Territory have been extended to the sea for the first time in a landmark High Court ruling that gives traditional owners in northeast Arnhem Land control over fishing in tidal waters. The High Court's full bench ruling sweeps away the common law right to fish in the Territory's inter-tidal zone and grants traditional owners the right to exclude fishermen and others from tidal waters within Blue Mud Bay in northeast Arnhem Land, and will apply to 80 per cent of the Territory's inter-tidal waters

The future of urban water pricing

23 July 2008 Australia's National Water Commissioners have agreed to release a report on approaches to urban water pricing, which assesses urban water pricing options and suggests there is scope to improve current arrangements. Ms Munro said the prospect of rising water demands in urban areas due to population growth, coupled with declining water availability in many of our cites, highlights the need for a well planned, efficient, sustainable and responsive water sector

Challenging the old water monopolies

24 July 2008 State-owned water monopolies need to radically alter their pricing practices through reforms such as directly billing tenants for their usage and charging more for water consumed at peak times. A discussion paper released by the National Water Commission signalled the next round of water reforms that may take place in Australia's cities. Households could be charged based on scarcity of supply, their peak usage and where they live in the network.

Consultation time extended on ACCC rural water rules

25 July 2008 Minister for Climate Change and Water, Senator Penny Wong, today announced a revised timeline for developing the water market and water charge rules for the Murray-Darling Basin to allow more stakeholder input. Under the Water Act 2007, the Australian Competition and Consumer Commission has the task of advising the Minister on draft rules to give farmers flexibility to trade their water access rights and help ensure more efficient and sustainable water use across the Murray-Darling Basin.

Dangerous times for unlisted property

28 July 2008 Concerns are building over the health of the $107.6 billion unlisted property sector following the unprecedented beating suffered by listed property in the recent share market shakeout. Australian property fund researcher PIR said the wall of money in the past five years had created a limited supply of quality property and many property fund investments may now be questionable. It added that some of these funds carried considerable development risk.

Inflation a double-edged sword for office property rentals

The head of forecasting services research and consulting for Jones Lang LaSalle, said that over the past three years, the weighted national CBD prime office rental growth was a strong 16.5 per cent a year, largely driven by extraordinary growth in Brisbane and Perth. As many rental agreements incorporate the consumer price index into rent reviews, the relatively high CPI figures suggest occupiers with existing rental agreements will be facing the highest CPI-based increases they have seen for some time. (26 July 2008)

Rest of Australia will reel from de facto industry-wide agreement

23 July 2008 Master Builders Australia, the peak body for the building and construction industry, has warned the federal Government that the rest of Australia will eventually feel the pain of the enterprise agreement negotiated by the unions and some contractors in Victoria.

Former Radisson Maine CEO jailed

31 July 2008 Mr Robert Bassili, former director of Radisson Maine Property Group (Australia) Pty Ltd (RMPG) and Chief Executive Officer of RAN Holdings International Ltd, has been sentenced today in the Sydney District Court to three years and three months jail. Mr Bassili, 35, was arrested in London and extradited to Australia to face charges laid by ASIC. Mr Bassili pleaded guilty to one count of dishonest conduct under the Corporations Act 2001 following allegations by ASIC that he had received $200,000 from investors and failed to invest the money.

Caveats on Chartwell properties 'useless'

31 July 2008 Caveats placed on properties owned by a Chartwell Enterprises syndicate are worthless, duped investors have discovered. A series of mortgagee auctions of properties owned by Peter Bruno or his syndicate Fly Like An Eagle had seen investors forced to remove the caveats or face legal action from the banks, one man whose family lost $5 million revealed.

Port admits bay dredging mistake

31 July 2008 The Port of Melbourne Corporation admits some rocks were not properly cleared away after dredging by the Queen of the Netherlands.

Council manager's fraud conviction

The senior project manager at the heart of corruption allegations over City of Port Phillip contracts was convicted for serious fraud four years ago. Further revelations around Port Phillip's cash-for-contracts controversy emerged yesterday as the State Government confirmed that Victoria's Ombudsman, George Brouwer, had launched an "own motion" inquiry. Police are now also investigating. The Ombudsman's inquiry will also take over an existing Government inquiry into the council's failure to tender about $600,000 in work granted to a controversial change consultant, Caroline Shahbaz. (26 July 2008)

Former ACCC boss attacks town planning

25 July 2008 Prof Fels said planning laws were legitimate in their original purpose of protecting the environment and congestion, but had gone too far. Smaller chains are prevented from opening down the road because of 'centres policy' planning laws that concentrate major shopping centres in select areas he said in a speech to the Urban Taskforce

Miners won't abide by voluntary code: Farmers

23 July 2008 Plans for a voluntary code governing the conduct of mining and gas companies looking to explore pastoral land has been labelled "ridiculous" by the State’s farmers. Agforce Chief Executive Officer Brett de Hayr says granting explorers discretionary compliance with entry and compensation codes will only see resource companies continue to pressure farmers off their land.

One in four to struggle with mortgage in next year: survey

23 July 2008 One in four borrowers expects to struggle to pay their mortgage at some time during the next year, a new survey shows. The Mortgage Trends Report, by mortgage insurer Genworth, found 24% of borrowers expected to have mortgage difficulties in the next 12 months - almost double the number of the 2006 survey.

Shimmerbridge Pty Ltd v Bayside CC [2008] VCAT 1428

Planning and Environment; Gaming machines; clause 52.28-4; Gaming machines prohibited in strip shopping centres; whether lower order shopping centre zoned Business 1 is a strip shopping centre.

Vrakas & Anor v Registrar of Titles & Ors [2008]VSC 281

Real property – single dwelling restrictive covenant – application to discharge or modify – applicable legal principles. Section 84, Property Law Act 1958 (Vic). more.. .

Campaspe Shire Council v De Young [2008] VSCA 129

TORTS – Occupier – Duty of care – Breach of duty – Foreseeability of risk of injury – Utility of proposed remedial measure – Obviousness of risk – Sufficiency of evidence – Jury verdict open – Wrongs Act 1958 s 14B . more.. .

legislation - victoria

Lands Acquisition Legislation Amendment Act2008

Act - C2008A00082 Number: No. 82, 2008 An Act to amend legislation relating to lands acquisition and for related purposes

Victoria

Regulations

Catchment and Land Protection Amendment Regulations 2008 (SR No 91 of 2008) Subordinate Legislation (Associations Incorporation Regulations 1998 - Extension of Operation) Regulations 2008 (SR No 90 of 2008)

Gibson v Latrobe CC (General) [2008] VCAT 1340

General List – Freedom of Information – exemptions claimed – access granted to one document – Freedom of Information Act 1988 – ss 33(1), 34(1) (b), 34(4)(a)(ii) and 50(4) – community development project

Very high bar to clear: Implied repeal of Torrens legislation after City of Canada Bay Council v Bonaccorso Py Ltd Author: Butt, Peter Source: Australian Law Journal, Vol 82, No 7 July 2008: pp436

Achieving consistency and transparency in sentencing for environmental offences Author: Preston, Brian ; Donnelly, Hugh Judicial Commission of New South Wales Source: Sydney: Judicial Commission of New South Wales, 2008.; iv, pp44 Subjects: Sentencing; New South Wales, Environmental management; Legislation; Cases (Law); Statistics; Land and Environment Court (NSW); Series: Monograph series (Judicial Commission of New South Wales); pp32

The management system for the disposal ofradioactive waste: safety guide Author: International Atomic Energy Agency Source: Vienna: International Atomic Energy Agency, 2008; pp75 Subjects: Radioactive wastes; Waste storage; Management; Standards; Overseas item

Reverse mortgages—the ‘guarantee problem’revisited? Author: Pascoe, Janine Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp199

Unlawful killing of a joint tenantAuthor: Tarrant, John Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp224

The structure planning process and otherplanning law changes relevant to property lawyers Author: McLeod, Denis Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp241

To and from — but not across: the High Court — easements, Torrens and doctrinal purity Author: Griggs, Lyndon Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp60 In personam: Barnes v Addy and the High Court’s deliberations in Farah Constructions Pty Ltd v Say-Dee Pty Ltd Author: Griggs, Lyndon Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp268

Yours, mine or ours? Author: Skead, Natalie Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp276 Articles – NSW

Reverse mortgages—the ‘guarantee problem’revisited? Author: Pascoe, Janine Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp199

The structure planning process and other planning law changes relevant to property lawyers Author: McLeod, Denis Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp241

Secret WW2 Radar Base Heritage Listed

28 July 2008 The remains of a highly classified World War Two installation - Radar Station 208 at Catherine Hill Bay have been listed on the State Heritage Register -the main station remnants in the listing area are the concrete footings of the two towers and two concrete ‘igloo’ bunkers

Black Springs Wind Farm Gets Green Light

25 July 2008 The NSW Government has approved a $32.6 million wind farm at Black Springs in state’s central west that is expected to save 43,660 tonnes of greenhouse gas emissions each year which is consistent with State Plan priorities for a reliable electricity supply with increased use of renewable energy

New Subdivision Delivers Infrastructure Boost for South Coast

25 July 2008 The NSW Government has approved a new 182 lot residential subdivision, worth $5.2 million, near the village of Manyana on the NSW South Coast that will result in significant infrastructure improvements for the area. Executive Director of Major Project Assessment Chris Wilson said the proponent, Malbec Properties on behalf of Manyana Estates Pty Ltd, has agreed to pay an extra contribution of $120,000 through a Voluntary Planning Agreement on top of the compulsory infrastructure contribution it must pay Shoalhaven City Council.

Suffering desal residents 'deserve more'

31 July 2008 The New South Wales Government has been urged to put special measures in place to protect residents affected by pipeline construction work for the desalination plant in Sydney's east.

Mixed fortunes for strata market

LandMark White national head of research, Vanessa Rader, said historical low vacancies and increasing rents had not been enough to entice the private investors back to the Sydney strata office market given the difficulty to source finance and general uncertainty in the marketplace. The emergence of small to medium-sized companies that flourish in economic boom times, such as recruitment agencies, corporate consultants, market and public relations firms and financial services, meant that demand for smaller space was very high. In some cases the tenant preferred to buy the space rather than lease, to take advantage of the amount of cash available from banks.

Strata Management Legislation Amendment Act 2008

A number of important changes to strata laws in New South Wales will come into effect on 1 August 2008. The changes were introduced by the Strata Management Legislation Amendment Act 2008, and their purpose is to enhance the operation and management of strata schemes.

Key Planning Reforms Move Forward

23 July 2008 The processing of development applications (DAs) will be further streamlined and councils given greater decision-making autonomy as a result of a proposed new planning policy being placed on exhibition today. The NSW Government is also proposing to reduce processing times for applications which will continue to require the concurrence or comment from State agencies. If the response or concurrence is not received in time, the council will be able to continue without agency advice.

Red Roll Pty Ltd v Multiplex Latitude RetailLandowner Pty Ltd, Multiplex WS Retail Landowner Pty Ltd and AWPF Management Pty Ltd [2008] NSWADT

a purchaser should not only carry out due diligence but also make sure that it is adequately protected against liabilities that may arise under the Act that have not been disclosed (if this is in fact the case). I must say I would have thought, as a practicing lawyer, that a purchaser, properly advised, would have, not only carried out due diligence but also have sought to protect itself in the manner referred to. Retail Leases Act 1994 ; Real Property Act 1900

Lifestyle Vehicles Pty Ltd v Car City Minchinbury Pty Ltd [2008] NSWADT 195 sought declaratory relief to the effect that it was the sub-lessee of a retail shop lease from the respondent and to the terms and conditions of the retail shop leased as expressed in an unsigned sub-lease

Naim v PBPSF Pty Ltd [2008] NSWADT 202 Respondent/Lessor is not entitled under the Lease to apply the margin scheme to the GST payable in respect of the sale of the premises to the Applicant consequent on the Applicant’s exercise of the option to purchase. Retail Leases Act 1994 Conveyancing Act 1919A

Southgate to become Brisbane's largest business estate

31 July 2008 Brisbane’s Southgate Corporate Park will be expanded into a $1 billion integrated business campus after the purchase of neighbouring land from the CSIRO. The Anthony John Group in conjunction with Cannon Hill Developments Pty Ltd secured the

6.8 hectare CSIRO at Cannon Hill following a recent Expressions of Interest campaign and will allow the group to treble the size of its neighbouring Southgate Corporate Park in Cannon Hill, which is regarded as one of Brisbane’s premier business estates.

Trial/sentence dates set for Queensland managed investment scheme operators

31 July 2008 The operators of an illegal investment scheme, which raised approximately $13 million, have appeared in the Brisbane Magistrates Court on charges brought by ASIC. These proceedings follow an investigation by ASIC into the promotion of an illegal investment scheme by Arafura Equities Pty Ltd (Arafura) in 2005 which involved the trading of funds on the foreign currency exchange. This investigation found that Arafura and its operators induced up to 200 clients, primarily located in south-east Queensland to invest money with the scheme

Qld: Ergon refused $30m price hike

31 July 2008 A bid by Queensland's Ergon Energy to pass on to customers almost $30 million of costs incurred by Cyclone Larry has been rejected. The Queensland government has told Ergon Energy to lift its game after the energy provider failed to prove its case for passing on to its customers almost $30 million of Cyclone Larry repair costs. A Queensland Competition Authority (QCA) draft report has ruled only $14.7 million can be passed on in increased costs, after Ergon's financial records failed to justify the $29 million price tag.

Consortium buy Noosa sea haven for $120m

30 July 2008 Noosa’s Seahaven Resort has sold for $120 million to an international consortium including Brisbaneheadquartered Consolidated Properties. The wholly-owned development subsidiary of listed property group Trinity is partnering with UK-based investment group BlueSky Capital and other international investors in its purchase of the Hastings Street icon. Under the arrangement, BlueSky Capital has been charged with providing the equity and debt finance for the deal, which settles in July 2009, while Consolidated Properties will be responsible for any property related decisions, approvals, and construction

Brisbane CBD facing oversupply of luxury apartments

31 July 2008 Swelling supply levels of luxury apartments in Brisbane’s CBD causing concern. Brisbane is facing an oversupply of luxury apartments in Brisbane’s CBD over the next three to four years, according to property analyst Resolution Research and Marketing Solutions. In 2007 there were 100 $1 million plus luxury apartment sales recorded in Brisbane. According to Resolution’s latest Clarity 08 annual review, there are around 1,150 new $1 million plus luxury apartments proposed for Brisbane’s CBD over the next five years.

Airport Link cleared for take-off

31 July 2008 The State Government’s $3.4 billion Airport Link project has cleared its final planning hurdle paving the way for construction to start in September. Deputy Premier and Minister for Infrastructure and Planning Paul Lucas said the release of the Queensland Coordinator-General’s Change Report addressed visual, noise and air quality impacts, and traffic and spoil arrangements during construction.

Queensland records slump in new home sales

28 July 2008 Queensland has recorded the largest fall in new home sales across the country in June, according to the latest Housing Industry Association report. The State’s new home sales fell by 9.8 percent, with Victoria (-3.7 percent) recording the only other fall.

Bligh Govt drives global push for clean coal solutions

28 July 2008 Mines and Energy Minister Geoff Wilson said today that the Bligh Government was leading the charge with cutting-edge technology to tackle climate change by working towards a cleaner, green energy future with renewable energy sources and gas-fired power. All four of the country’s super-critical pulverised fuel combustion power plants are in Queensland.

cases - queensland

Downer EDI Engineering Power Pty Ltd & the Chief Executive, Office Of Fair Trading v Auto Group Commercial (Qld) Pty Ltd (in liquidation) &Bednall & Ryan [2008] cct pc040-07

Claim against fund–breach of Chapter 12, Part 1 Whether directors liable for the claimant’s loss – Property Agents and Motor Dealers Act 2000 sections 470(1)(a), 488(3)(c), 530(c)

The structure planning process and other planning law changes relevant to property lawyers Author: McLeod, Denis Source: Australian Property Law Journal, Vol 15, No 3 July 2008: pp241

Federal Court of Australia

The Federal Court Amendment Rules 2008 (No. 1) were registered today and commence tomorrow (2 August 2008). These Amendment Rules amended Form 173, Notice of filing and hearing and Form 174, Notice of filing, in light of the Courts new eLodgment system.

Duties (Qld): new revenue rulings and practice directions

23 July 2008 The Queensland Office of State Revenue has released new versions of six revenue rulings and nine practice directions to reflect the amendments made to the Duties Act 2001 (Qld) by the Revenue and Other Legislation Amendment Act 2008 (Qld). The amendments include the abolition of mortgage duty and provision of a new first home transfer duty concession for certain acquisitions of vacant land.

Integrated Planning Amendment Regulation (No.4) 2008 (Qld)

Date of enactment*: 18 July 2008 This regulation amends s 10 (Tribunal appeal fees – Act, s 4.2.15) and s 15 (Qualifications of general referee – Act, s 4.2.37) of the Integrated Planning Regulation 1998 and replaces s 9 (Jurisdiction of tribunals – Act, s 4.2.7). It commences on 18 July 2008.

Queensland Planning Reform Reference Panelcommuniqué July 2008 Links between SEQ State of the Region report and SEQ Regional Planreview

The South East Queensland (SEQ) State of the Region report 2008 is a whole-of-government document, collated by DIP and the Environmental Protection Agency in partnership with the Council of Mayors (SEQ), 15 state agencies, and non-government organisations. Following its release later this year, the report will be considered as part of the SEQ Regional Plan Review and provide input into the draft SEQ Regional Plan 2009–31.

Guidelines on social infrastructure planning

Implementation guideline No 5—Social Infrastructure Planning was published as supporting information for the SEQ Regional Plan 2005–26.

A shared responsibility for all stakeholders to deliver planning reform Progress on advice on transitional issues from the ‘old’ IPA to the new planning legislation.

Updates on key reform related projects