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
Business not complying with water plans: report
8June 2008The Queensland Water Commission (QWC) says many businesses are not complyingwith their water efficiency management plans (WEMPs) or have not bothered tosubmit one.
7June 2008New figures from the Real Estate Institute of Queensland (REIQ) show thestate's residential property market has softened. The REIQ's house price datafor the first three months of the year shows sales are down about 28 per centcompared with the same time last year.
The TaxOffice has issued an impact statement on the decision in FC of T v RelianceCarpet Co Pty Ltd 2008ATC 20-028. In that case, the High Court held that adeposit forfeited under a rescinded contract for the sale of land was subjectto GST.
Mandatory emissions reporting-business still confused
30May 2008With just over a month to go until Australia's mandatory carbon emissionsreporting scheme comes into force, heads of business remain confused about itsrequirements. From 1 July, the National Greenhouse and Energy Reporting (NGER)Act 2007 requires business to begin collecting mandatory information abouttheir output of greenhouse gas emissions and their production and consumptionof energy.
30May 2008New rules governing what irrigation companies can charge their customers arebeing drafted by the nation's competition regulator. The rules aim to create amore efficient water market as the Rudd government progresses its plan torescue the parched Murray-Darling Basin, including a massive buy-back offarmers' water rights. Submissions must be made by July 15 and the ACCC willrelease draft rules later this year.
Abatementsand offsets: legal issues in reducing emissions and developing offset projectsAuthor: Chiam, Louis Source: Australian Resources and Energy Law Journal, April2008: vol 27(1);pp.105-120Subjects: Emissions trading; Geological sequestration;Greenhouse effect; Government regulation
Bluecovenant : the global water crisis and the coming battle for the right to waterAuthor: Barlow, Maude. Source: Melbourne; Black Inc., c2007; xii, pp.196.ISBN:9781863952231 (pbk.)Subjects: Water resources; Natural resource management;Political conditions; Business ethics; Water rights; Australia overseascomparisons
Climate riskand industry adaptation Author: Milne, Mary et al Source: Canberra; Bureau ofRural Sciences, 2008:xvi, pp.108.Subjects: Greenhouse effect; Climate change;Agricultural industries; Risk management; Environmental management; Drought;Attitudes
Contractsand clauses for carbon trading and carbon risk management Author: Dennis, GraemeSource: Australian Resources and Energy Energy Law Journal, April 2008: vol27(1); pp.121-133Subjects: Emissions trading; Greenhouse effect; Riskmanagement
Corporatereporting of greenhouse gas emissions: is it voluntary or mandatory? Author:Coonan, Eric; DE WIT, Elisa Source: Australian Resources and Energy LawJournal, April 2008: vol 27(1);pp.72-85 Subjects: Corporations; Greenhouseeffect; Intergovernmental Panel on Climate Change; Notification and reporting;Australian Competition and Consumer Commission; Corporate citizenship;Legislation; National Greenhouse and Energy Reporting Act 2007
Overview ofpolicy and regulatory emissions trading frameworks in Australia. Author:Fitz-Gerald, Louisa; WILDER, Martijn Source: Australian Resources and EnergyLaw Journal, April 2008: vol 27(1); pp.1-22 Subjects: Emissions trading;Environment policy; GARNAUT, Ross; Greenhouse effect; Notification andreporting; Legislation: National Emissions Trading Scheme (NETS); NationalGreenhouse and Energy Reporting Act 2007
The policyissues arising with the linking of international emissions trading schemes.Author: Betz, Regina; Stafford, Ashley Source: Australian Resources and EnergyLaw Journal, April 2008: vol 27(1); pp.86-104 Subjects: Emissions trading;Greenhouse effect; International cooperation; Kyoto Protocol; Australiaoverseas comparisons; European Union; Jurisdiction; New Zealand; PrimeMinisterial Task Group on Emissions Trading
latest news - victoria
100 clubs exempt from bar lockout farce
3 June 2008
Melbourne‘scontroversial nightclub lockout scheme
has becomefarcical with more than 100 late-night venues now exempt from the temporaryscheme designed to prevent club-hopping after 2am. Liquor Licensing directorSue MacLellan defended the decision saying strict conditions were imposed onvenues given exemptions, the conditions were as strict as if the temporarythree-month ban had been imposed and were a better result than if they hadfought and lost at the tribunal without any conditions granted.
Inquiry into Regional Centres of the future launched
27May 2008Regional and Rural Development Minister Jacinta Allan launched a Parliamentaryinquiry into the future investment needs of regional Victoria in StateParliament today. Since 1999, the Bracks / Brumby Government has been committedto improving infrastructure and resources in regional and rural Victoria,resulting in $8.91 billion worth of new investment and the creation of morethan 16,000 new jobs. The inquiry, to be undertaken by the Regional and RuralAffairs Committee, will deliver its report to Parliament by September 30, 2009.
31May 2008Households can expect council rates to increase by more than the inflationrate, the Municipal Association of Victoria has warned. MAV president DickGross said that councils were faced with average cost rises of 4.4 per cent in2008-09, due mainly to labour and construction costs.
Contract-propertydevelopment -joint venture agreement -advanced monies-whether the joint ventureagreement rendered the loan repayable in the circumstances of failure of theproject; meaning of ‗completion of the project‘ -personal guaranteesConstruction of the agreement in the circumstances of the case.
AdministrativeLaw -natural justice -procedural fairness -certiorari -proprietor of oilrefinery applies to Environment Protection Authority to amend conditions of itslicence to emit waste -Whether an incorporated environment group was entitledto be heard against the application to amend -whether group had a legitimateexpectation based on an established course of conduct or a specific assurance-held that legitimate expectation doctrine was not applicable in law or on thefacts -application for certiorari to quash licence amendments refused EnvironmentProtection Act 1970 ss1A, 1L,18,19,19A,20,20A,20C,22-AdministrativeLaw Act 1978 s3.
State of Victoria v Tymbook Pty Ltd (Retail Tenancies) [2008] VCAT 965
Retailtenancy -fixtures -whether decorative lights in foyer of theatre fixtures-appropriate tests -degree and object of annexation -all surroundingcircumstances now to be considered -intention of owner of chattel to be judgedfrom objective facts relevant that owner of light shad only a permissiveoccupancy for a limited period
Blackburn Station Village Traders v Whitehorse CC [2008] VCAT 928
Any of the 12representative applicants who is a tenant rather than a relevant landowner maystill (pursuant to Section 185(1) of the Local Government Act 1989) validlybring an application challenging the Declaration of the special charge/rate inquestion Preliminary legal ruling on status of those objectors who are tenantsrather than landowners
Real EstateNews Source: Consumer Affairs Victoria's newsletter, May 2008 In this issue: -clarifyingsection 55 applications, -when is sold not sold?, -when is a person ineligiblefor employment as an estate agent or representative?, -new laws for bodiescorporate, court finds agents guilty of under quoting,-putting the trust backin real estate, -complete all sections on Bond Lodgement form, -propertymanagement update
Carbon usein poor Victorian households by local government area Author: Unkles, Bill;Stanley, Janet; Brotherhood of St. Laurence Source: Fitzroy, Vic, Brotherhoodof St Laurence, 2008, pp9 Subjects: Energy consumption; Victoria; Poverty;Greenhouse effect; Carbon dioxide; Local government
During May2008 a number of new regulations that affect the conduct of estate agents andagents' representatives were made. The regulations set out the procedures forkeeping and auditing trust accounts, a number of notification requirements andforms to facilitate the operation of the Estate Agents Act 1980 more...more...
legislation - victoria
Public Order (Protection of Persons and Property)Amendment Regulations 2008 (No. 1)
LegislativeInstrument -F2008L01776 Number: SLI 2008 No. 92. These Regulations amend thePublic Order (Protection of Persons and Property) Regulations1999 to list theIntegrity Commissioner as a prescribed court for Part IIA of the Public Order(Protection of Persons and Property) Act 1971.Date Registered: 02/06/2008 Dateof Making: 30/05/2008
Conveyancers(Professional Conduct and Trust Account and General) Regulations 2008 (SR No49of 2008) (principal)Conveyancers (Qualifications, Experience andFees)Regulations 2008 (SR No 48 of 2008)Estate Agents (Professional Conduct)Regulations2008 (SR No 46 of 2008) (principal)Sale of Land AmendmentRegulations 2008 (SR No47 of 2008)Estate Agents (General, Accounts andAudit)Regulations 2008 (SR No 39 of 2008)
Acts
EnvironmentProtection Amendment (Landfill Levies) Act 2008 (Act No 20 of 2008)
latest news - new south wales
Fears of more hwy upgrade cost blow-outs
6June 2008The head of the Pacific Highway Task Force, Ernie Bennett, says budgetblow-outs could send the cost of ongoing highway upgrades soaring tounreachable levels
4June 2008Over 320 country mayors, deputy mayors and councilors today unanimously joinedthe call for an Upper House Inquiry into the State Government’s planning laws.The laws passed through the Lower House early this morning and are due in theUpper House later today., President of the Shires Association, Cr Bruce Millersaid these laws will have significant impacts for NSW communities and require properscrutiny and the Government has arrogantly ignored the concerns of residents,industry, government, environmental groups and business. Private companies anddevelopers will be the big winners if these laws are implemented in theircurrent format.
Local Left out in Infrastructure Surge: NSW Budget
3June 2008NSW councils have welcomed the significant boost to infrastructure funding inthe NSW Budget, but say the lack of direct help to Local Government flies inthe face of the recognition the sector is under funded. The Budget has alsodone little new to address the $8 billion infrastructure back log facing thesector.
4June 2008Planning Minister, Frank Sartor said that after months of consultation, reformsto create an efficient and transparent planning system have been passed by theNSW Legislative Assembly. The Environmental Planning & Assessment AmendmentBill 2008 and associated bills will now proceed to the Legislative Council.
Resort, directors fined over boy's pool electrocution
2June 2008 ANSW resort has been fined $150,000 over the electrocution of a 13-year-old boyat the hotel's pool in 2002. A WorkCover investigation found the boy stood on acorroded section of pipe that became electrified when it collapsed underfoot,cutting through the insulation and exposing the live wires within. In ajudgment handed down in the Industrial Court of NSW, Justice Anna Backman foundSalamander Shores Hotel Pty and three of its directors had failed to assess therisk from live electrical circuitry.
Maitland‘sheritage will be at risk under the State Government‘s proposed planningreforms. The NSW
NationalTrust says the changes will mean significant buildings may be demolished andambient streetscapes will change character. More importantly, the communitywill be without a way to oppose such developments before they occur.
31May 2008Willoughby City Council is taking the State Government to court after receivingabout $27 million less than it expected for land the Government compulsorilyacquired to sell to developers for apartments and has appealed to the Land andEnvironment Court. About4000 square metres of land alongside Chatswood stationwas compulsorily acquired in 2004 under the terms of the Land Acquisition (JustTerms Compensation) Act 1991 as part of the construction of the Chatswood TransportInterchange, a public-private partnership between the Government and thedevelopment company CRI Australia.
27May 2008Farmers in NSW could see their homes demolished and their farms dug up to makeway for new coalmines under legal changes being pushed by the minister who issupposed to be representing them.
7June 2008Planning laws act to prevent competition because of their rigid prescription ofthe size, number, nature and location of shops including new supermarkets ofthe type and number needed to meet consumer demand. The effect of this is toreduce competition, by making it very difficult for new businesses to enter themarket state's absurd planning laws
7June 2008The New South Wales Government has rejected suggestions that it has failed toprotect homeowners who are behind on the mortgage repayments. There is concernthat predatory practices by some lenders has led to an increase in writs forhome repossession issued by the state’s Supreme Court. The Opposition says theGovernment has repeatedly delayed legislation designed to protect homeowners frompredatory lenders.
26May 2008Planning Minister Frank Sartor today announced the NSW Government would considercurrent and future development applications for Fame Cove on the Port
Stephenswaterway. ―It is appropriate that any
developmentat Fame Cove be considered by the Government given the high level ofbiodiversity on the site, its bush fire risks and the fact that it drains
into PortStephens,‖ Mr Sartor said. ―The site also
adjoinsexisting conservation reserves and has important Aboriginal heritage values.
Access toJustice in Courts and Tribunals Compared—Residential Tenancy Disputes in Sydney(1971-2004) Author: Edgeworth, Brendan Source: Civil Justice Quarterly: vol27(2) 2008, pp179
Abatementsand offsets: legal issues in reducing emissions and developing offset projectsAuthor: Chiam, Louis Source: Australian Resources and Energy Law Journal, April2008: vol 27(1); pp.105-120 Subjects: Emissions trading; Geological sequestration;Greenhouse effect; Government regulation Contracts and clauses for carbontrading and carbon risk management Author: DENNIS, Graeme Source: AustralianResources and Energy Law Journal; April 2008; v.27(1); 121-133, bibl. Subjects:Emissions trading; Greenhouse effect; Risk management
legislation - new south wales
Toma Services Pty Ltd v Kusido Hospitality &Property Group Pty Ltd [2008]NSWSC 492
CONVEYANCING-Caveatsby equitable mortgagee -Prior registered mortgage-Proceeds of sale insufficientto satisfy all obligations-Whether caveats should be ordered to be withdrawn.
Section96Modification :-applicant to alter one townhouse in a group of 3townhouses eachon a Torrens Title lot, drainage, foreshore building line, hydrology,excavation, impact on vegetation, additional floor space, substantially thesame development.
ProvidentCapital Ltd v Printy [2008] NSWCA 131 CONVEYANCING –indefeasibility of title – effect of registration of forged mortgage – whetherindefeasibility attaches to payment covenant in deed of loan –Real Property Act(NSW) ss 41, 42, 57 Contracts – interaction between principles of contractualinterpretation and the Real Property Act 1900(NSW) – application of doctrine of incorporationto registered mortgage and deed of loan MORTGAGES – power of sale – whetherpower of sale activated – identification of default – effect of exercise ofpower of sale – Real Property Act 1900 (NSW) s 57(2)
RealProperty -Restriction on use of land lodged pursuant to s 88BConveyancing Act-whether restriction rendered inapplicable by s 28Environmental Planning andAssessment Act and provisions of Local Environmental Plan -statutoryInterpretation -whether construction given to provision of Local EnvironmentalPlan below produced an irrational result -words and Phrases meaning of‗prohibits‘ -whether an instrument which permits certain land uses only withconsent is in effect a prohibition -meaning of ‗land use‘ -meaning of‗development‘-distinction between ‗development‘ and ‗land use‘. Relief -whetherconduct of the respondent in relation to construction amounted to laches-exercise of discretion to grant relief. ConveyancingAct 1919 (NSW): section88B EnvironmentalPlanning and AssessmentAct 1979 (NSW): sections4, 4Band 123Singleton Local Environmental Plan 1996 (NSW): clauses 2, 3, 6, 9, 28and 35
latest news - queensland
GST: impact statement on Reliance Carpet case
The TaxOffice has issued an impact statement on the decision in FC of T v RelianceCarpet Co Pty Ltd 2008ATC 20-028. In that case, the High Court held that adeposit forfeited under a rescinded contract for the sale of land was subjectto GST.
5June 2008Queensland Premier Anna Bligh said the Government will fast-track planning fordevelopment of 17 greenfield sites in South-East Queensland, as part of itsplan to tackle housing affordability. The Government will remove regulatoryhurdles slowing the development process on 12 sites, in Maroochydore, Meridian Plains,on the Sunshine Coast; Market Drive and North Lakes in Moreton Bay; UpperKedron and Rochedale in Brisbane; Coomera and Helensvale on the Gold Coast;Springfield and Redbank Plains in Ipswich; and Kinross Road and South-EastThornlands in Redlands.
Pitt lauds 'congestion busting' Tugun bypass
4June 2008Queensland Main Roads Minister Warren Pitt says the Tugun bypass is one of theState Government's most significant 'congestion busting' projects.
Locals to protest against golf course redevelopment
2June 2008Most residents at a weekend community meeting to discuss the proposed ParadisePalms Golf Course redevelopment say they will be providing submissions ofprotest to Cairns Regional Council.
3June 2008Retail tenancies in the mall are among the most expensive in the world, withrates comparable to Los Angeles' Rodeo Drive. Queen Street Mall was also thethird most expensive for retail rents in the Asia-Pacific.
4June 2008THE Bligh Government has cut stamp duty and will scrap mortgage duty for firsthome buyers purchasing a home for $500,000 or less. The government said thesavings will add to almost $10,000 for anyone purchasing their first house. Thebudget increases the first home buyer exemption from $320,000 to $350,000 fromJuly 01 2008 and-from September 01 2008 -to $500,000.
Riparian Plaza wins top property award
27 May2008Designed as a premium mixed use development,
RiparianPlaza‘s success has evolved from the
economicadvantage of generating revenue from two distinct and separate markets.
27May 2008Brisbane's vacancy woes have been eased by a surge in new development whichwill see the office vacancy in the Brisbane CBD increase from just 0.7 percentto around 6 percent by the end of 2009,new forecasts from CB Richard Ellispredict.
On May 19,BrisConnections was named as the preferred bidder to build Airport Link, the Windsorto Kedron section of the Northern Busway and a new fly -over to bypass theairport roundabout at a total cost of$4.8 billion. BrisConnections will build,own and operate the tunnel for a 45-year concession period. Coordinator-GeneralColin Jensen said the BrisConnections bid introduced changes to the originalAirport Link approval which required submissions to be sought from the public.
Ajana Park Pty Ltd v Mackay City Council & Anor [2008] QPEC 026
IntegratedPlanning Act 1997 s 3.5.30 – revised concurrence agency conditions requiringconstruction of external roadworks (road widening and upgrading of roundabout)remote from site where 254 residential lots proposed, but providing the linkwith Mackay CBD – where all traffic engineers agreed the development should notproceed without arrangements in place to provide the roadworks (not in the 5year Road Implementation Program) – condition requiring a bare financialcontribution unlikely to get the works programmed considered inappropriate.
Filippini v The Real Estate Institute of QueenslandLtd & Ors [2008] QSC113
Arbitration–award – setting aside – procedure application for leave to appeal from award byarbitrator – real estate dispute where applicant alleged errors of law on theface of the arbitration award – whether there was a manifest error on the faceof the award – whether there was strong evidence of an error of law
RealProperty – Torrens Title – Caveats against dealings – removal – onus of proof –application to remove caveat – whether caveat or established a serious questionto be tried – whether the balance of convenience favoured retention of thecaveat Contracts – general contractual principles – Statutes of Frauds, section4 – contracts to which applicable – contracts for sale or disposition of landor any interesting land – where mortgagee claimed caveatable interest based on unsignedDeed of Offer – requirements under section 59 Property Law Act 1974 –whetheremailed offer containing contractual reference to Deed was accepted by signedletter of respondent‘s solicitor – whether letter constituted signed acceptanceof the Deed.
Conveyancing– relationship of vendor and purchaser
–breach ofcontract – deposit – what constitutes a deposit – where in accordance with aspecial condition of the contract, the deposit holder was to pay the deposit tothe vendor immediately and without any breach of contract by the purchaser –whether the payment to the deposit holder was a "deposit" within themeaning of the term as defined unders 71 of the Property Law Act 1974 (Qld)Statutes – acts of parliament –interpretation – rules of construction –presumptions as to legislative intention – not to invade personal common lawRIGHTS – where the parties agree under a special condition to the contract toauthorise the deposit holder to pay out the deposit money to the vendor immediatelyand without any breach of contract by the purchaser –whether s 384 and s 385 ofthe Property Agents and Motor Dealers Act2000 (Qld) operate to invalidate thisclause of the contract.
Aboriginaland Torres Strait Islander Communities(Justice, Land and Other Matters) andOther Acts Amendment Act 2008 (Act No 30 of 2008)Aboriginal and Torres StraitIslander Land Amendment Act 2008 (Act No 29 of 2008)Clean Energy Act 2008 (ActNo 33 of 2008)(principal)Environmental Protection and Other LegislationAmendment Act 2008 (Act No 37 of 2008)Motor Racing Events (Townsville)Amendment Act2008 (Act No 36 of 2008)Queensland Competition Authority AmendmentAct2008 (Act No 35 of 2008)Transport Legislation Amendment Act 2008 (Act No31of 2008)Transport Operations (TransLink Transit Authority)Act 2008 (Act No 32 of2008) (principal)Water Supply (Safety and Reliability) Act 2008 (Act No 34 of2008) (principal)
Regulations
LegalProfession (Society Rules) Amendment Notice(No. 2) 2008 (SL No 136 of2008)Proclamation commencing certain provisions Consumer Credit (Queensland)and Other Acts Amendment Act 2008 (SL No 137 of 2008)Timber Utilisation andMarketing Amendment Regulation (No. 1) 2008 (SL No 135 of 2008)TransportOperations (Road Use Management—Vehicle Registration) Amendment Regulation (No.1)2008 (SL No 132 of 2008)Integrated Planning Amendment Regulation (No. 2)2008(SL No 139 of 2008)Plant Protection Amendment Regulation (No. 5) 2008(SL No 142of 2008)Legal Profession Amendment Regulation (No. 1)2008 (SL No 145 of 2008)
practice notes/directions - queensland
South East Queensland Infrastructure Plan and Program
6June 2008The South East Queensland Infrastructure Plan and Program2008–2026 outlines thegovernment‘s infrastructure priorities for the South East Queensland (SEQ)region to support the SEQ Regional Plan. It represents a long-term commitmentto infrastructure delivery and capital works in SEQ. It now identifies morethan $107 billion worth of investment over the next 18 years in: transport andfreight , water, energy, information and communication technology and industrydevelopment.
6June 2008 Akey deliverable of the Queensland Housing Affordability Strategy is to increasethe short to medium term supply of greenfield land in South East Queensland(SEQ). For details on how development of nominated greenfield areas will beaccelerated download a copy of the SEQ greenfield land supply strategy.
News & Publications 
whats_news_ppe_17_june_2008.pdf