what’s news in property, planning & environment?

Infrastructure fund is safe, Rudd claims

2 September 2008 The Rudd Government says its Building Australia Fund will weather the financial storm, as State governments project a deline in infrastructure spending, and is well-placed to follow through on its infrastructure commitment, rejecting reports it will consider selling bonds to fund what it deems vital nation-building projects. The Rudd Government’s optimism, however, is not being shared by Victoria and NSW.

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Hotels resilient but worrying signs ahead

9 October 2008 HOTEL markets across major capital cities have maintained growth whilst the leisure markets have suffered, according to Jones Lang LaSalle Hotels. All major markets except for the Queensland leisure markets of Cairns, Sunshine Coast and Gold Coast recorded growth in RevPAR with four markets recording double digit growth –Perth (32.2%), Canberra (25.5%), Melbourne (19.7%) and Darwin (15.3%)

Seeing beyond the trees in the riddle of carbon capture

1 October 2008 Putting a price on carbon stored in the landscape is a double-edged sword

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What is the condition of your Schedule of Condition?

7 October 2008 With the recent downturn in commercial property activity now is not a time to lose sight of good property management, especially in relation to the Schedule of Condition in the terms of your lease,according to Napier & Blakeley. The level of protection a schedule of Condition provides depends on a number of factors, namely the accuracy and detail of the schedule, the length of the lease and the lease obligations

Water market regulations finalised

3 October 2008 The Federal Executive Council today approved the Water Amendment Regulations 2008, which set out the process the Minister for Water will follow in making water market and water charge rules. Under the Water Act 2007,the Australian Competition and Consumer Commission (ACCC) 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

(Minister for Climate Change & Water)

Higher land costs stifling housing market

2 October 2008 Despite interest rates easing, the price of land is still expensive compared with established houses. According to BIS Shrapnel,the production of new residential lots will be restricted in 2008/09.The BIS Shrapnel’s Outlook for Residential Land, 2008 to 2013 report series has also found the cost of land across major capital cities has outpaced the growth in house prices in recent years.

Climate Change Review Final Report

ProfessorGarnaut's Final Report of his Climate Change Review recommends that an emissions trading should be established in 2010 and that Australia should offer to reduce emissions from 2000 levels by 25 per cent by2020 and by 90 per cent by 2050.

articles - national

Emissions trading in Australia: discussion paperon the effects of alternative permit allocation approaches.Author: Frontier Economics (Firm)Source: Melbourne: Frontier Economics Pity Ltd,2008.pp62.Subjects: Emissions trading; Economic impact;Environment policy; Electricity; Prices and charges;Interstate comparisons

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Government intervention in mortgage finance:the case against 'AussieMac' Author: Kirchner, Stephen Centre for Independent Studies (Australia) Source: [Sydney]: Centre for Independent Studies, 2008. pp12 Subjects:Mortgages; Financial services; Economic policy; Residential property;Affordability; Industry assistance; Liquidity; United States; Australia overseas comparisons

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Mandating Market Access for Renewable Energies in Australia Author: Carleton, Alexandra L Source: Journal of Energy & Natural Resources Law, Vol 26, No 3, August 2008: pp402 Productivity Commission review of retail tenancy market Author: Duncan, Bill Source: Australian Property Law Bulletin, Vol 23, No 3, September 2008: pp26-27

Relief against forfeiture of options to renew and relationship breakdown Author: Duncan, Bill Source: Australian Property Law Bulletin, Vol 23, No 3, September 2008: pp35-36

ACCC issues position paper on Water Charge Rules

30 September 2008 The Australian Competition and Consumer Commission has issued its position paper seeking submissions on the development of water charge rules for irrigation infrastructure operators and bulk water operators with Submissions to the position paper to be provided to the ACCC by Monday 24 November 2008

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Copy of paper:

Water charge rules for charges payable to irrigation infrastructure operators, position paper

latest news - victoria

CFS Retail launches $200m capital raising

9 October 2008 CFS Retail Property Trust is looking to fund its $1.6 billion development pipeline with a $200 million equity raising. Funds raised are expected to contribute to the $144 million stage 30 redevelopment, known as Chadstone Place and $135 million stage 33 redevelopment at Chadstone Shopping Centre in Victoria; the $170million at Northland in Victoria to duplicate the existing north-south mall and the $1.2 billion total development of the Myer Melbourne site.

Toll drives into Melbourne’s north

1 October 2008 Toll Logistics has signed to Salta Properties’ Somerton Logistics Centre in the largest lease deal in Melbourne’s north suburbs this year. CB Richard Ellis negotiated the 22,213 sqm Toll deal - the first lease to be signed at the $135 million centre.

State accused of water trade lag

Victorian water authorities have been accused of tying up the money of struggling farmers by delaying interstate water trades.

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Melbourne property prices will go up – buyers advocate

7 October 2008 Melbourne residential real estate prices will increase in the short to medium term and demand will exceed supply in the Melbourne Metropolitan area , according to JPP Buyer Advocates.

Two consortia shortlisted to build desalination plant

4 October 2008 The Brumby Government has released a shortlist for the design, construction, financing, operation and maintenance of Victoria's Desalination Plant Project. The desalination plant, the largest in Australia, will be delivered as a Public-Private Partnership, which includes construction and operation of the desalination plant, an 85-kilometre transfer pipeline, delivery of power supply for the project and the purchase of renewable energy

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Water strategy spurns channel

2 October 2008 The missing link in Victoria's statewide water grid will remain on the back burner as the State Government releases its draft 50-year water strategy for northern Victoria

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Estate Agent Fined $20,000 for Underquoting

4 October 20008 Consumer Affairs Minister Tony Robinson has welcomed a court's decision today to fine a Glen Waverley real estate agent$20,000 for underquoting. Consumer Affairs Victoria investigated the agent's actions after the Real Estate Institute of Victoria raised concerns the company had breached underquoting laws, with the Glen Waverley company pleaded guilty to 13 charges of underquoting under the Estate Agents Act

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ACCC alleges unconscionable conduct by landlord of retail premises

3 October 2008 The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court, Melbourne against Dukemaster Pty Ltd and its general manager, Ms Patricia Wong for alleged misleading, deceptive and unconscionable conduct and making false representations in contravention of the Trade Practices Act 1974.Dukemaster is the landlord of a retail shopping centre called the Paramount Retail Centre located in Melbourne

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$39 million Ringwood Transit City investment announced by the Premier and Minister for Planning

October2008 The funding will be used to complete a new town square and urban heart, a new bus interchange, improve safety around Maroondah Highway and further work with the council to attract additional investment in the area

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legislation - victoria

Water Amendment Regulations 2008 (No. 1)

Legislative Instrument - F2008L03630 Number: SLI 2008 No. 204 These Regulations amend the Water Regulations 2008 to set out the consultation process the Minister must follow in making water market rules and water charge rules under the Water Act 2007. Date Registered: 8/10/2008

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Victoria Acts

National Parks and Crown Land (Reserves) Acts Amendment Act 2008 (Act No 54 of 2008)

Conveyancers take note licensing regime comes into effect 1 October 2008

Consumer Affairs Minister Tony Robinson today reminded all conveyancers to apply for a licence from the Business Licensing Authority (BLA) before 1October 2008.

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Estate Agents (Contracts) Regulations 2008

New regulations came into operation on 28 September 2008, which will introduce new standard form contracts for the sale of real estate and the sale of a business.

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Changes to the off the plan duty concession for contracts entered into on or after 1 October 2008

As a consequence of recent changes to the off the plan provisions in the Duties Act, a simpler method for calculating the concession is available for contracts entered into on or after 1 October 2008. For further information,please refer to 'Duty concession for off the plan sales' and Revenue Ruling DA.048. The SRO has also published new Duties Form 4A 'Off the plan sales statutory declaration', which is to be used for off the plan contracts relating to both land and building packages and refurbished lots, where the contract is entered into on or after 1October 2008.

cases - victoria

Fesl v Delegate of the Native Title Registrar

[2008] FCA 1469

Administrative law – Application for judicial review of decision by a delegate of the Native Title Registrar to register an Indigenous Land Use Agreement –whether it was part of delegate’s function to decide if agreement presented was an Indigenous Land Use Agreement – whether conclusion that agreement was an Indigenous Land Use Agreement was amenable to judicial review – whether there was no evidence or other material to justify the delegate’s registration decision – whether failure by delegate to consider relevant considerations – whether agreement did not make lawful provision for cultural heritage duty of care -application dismissed - Native title - whether there was no evidence or other material to justify the delegate’s conclusion that the making of the Indigenous Land Use Agreement had been authorised by the native title group – proper construction of statutory provisions for authorising an Indigenous Land Use Agreement by a native title group –relationship between Aboriginal Cultural Heritage Act 2003 (Qld) and Native Title Act 1993 (Cth)

Lettieri v Gajic & Ors [2008] VSC 378

Real property – removal of caveat – Transfer of Land Act 1958, s 90(3).

Zurcas v Zurcas & Ors [2008] VSC 379

Real property – caveats – ex parte application for injunction restraining the Registrar of Titles from registering withdrawals of caveats – Transfer of Land Act 1958, s 91(4) – reinstatement of proceeding that is struck out.

McMahon & Anor v McMahon & Ors [2008] VSC 386

Contracts– Intention to create legal relations – Family members – Contract not established. Real property – Easements - Easement by prescription/Lost modern grant – Easement established. Real property – Easements - Common intention as to use – Provision of substitute route – Substitute route consistent with common intention

Connors v Bodean International Pty Ltd (RealProperty) [2008] VCAT 1999

Costs, Offers to settle under VCAT Act, Offer under the principles of Calderbank, appropriate scale for costs to date of offer, uncertain offer, reasonableness of refusal to accept offer.

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latest news - new south wales

Villagers fight for strata control

30 September 2008 A war is under way between one of the state's most powerful property developers and a group of residents fighting for control of their own strata committee. A group of residents are taking representatives of Rose Group, the developers of Breakfast Point, to the Consumer Trader and Tenancy Tribunal alleging it is using a legal loophole to control the residents' community association

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Sydney office vacancies headed for double digit

9 October 2008 Sydney’s CBD office market vacancy rates will jump to 10%in the next four years even though there is limited new supply coming online, according to LandMark White.

New NSW political donations laws come into force

1 October 2008 New NSW laws compelling developers to disclose political donations have come into force - seven months after Wollongong Council was sacked over the cash-for-developments scandal. The new laws will impose disclosure obligations on applicants, whether individuals or entities, with a financial interest in these proposals.The laws require political donations and gifts to be made public when lodging or commenting on a development proposal

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NSW Gov to sell $85m estate

1 October 2008 A 120ha development worth over $85 million has gone on sale in Minto, in Sydney’s South West. New South Wales Minister for Planning Kristina Keneally said One Minto is a first for the state,which will integrate private and public housing into a single development in a partnership between Landcom, Housing NSW and Campbelltown City Council.

Development projects stall as banks close doors

2 October 2008 Large property development projects across the country are set to stall in coming months as banks tighten lending requirements in response to the global credit crunch. The stricter lending policies employed by the major banks could see up to $4 billion worth of planned infrastructure projects scrapped in NSW, while in the ACT, a $250million upgrade at Canberra International Airport was shelved this week because of the growing uncertainty in the financial sector

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No water, no pay, say NSW irrigators

6 October 2008 At least 1600 NSW Irrigators have refused to pay the$15,000 to $20,000 maintenance bills for their pipelines and channels,as they enter into their third consecutive year with no water allocation

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Skoric v Meriton Apartments Pty Ltd [2008]NSWCA 239

Torts- Occupiers liability - Respondents as occupiers of building site-Appellant worker suffered serious injuries walking down a stairwell carrying a heavy trolley- At first instance focus on safety of stairs-Primary judge finds no fault with stairs- Pleadings faintly suggest that respondents are negligent in not providing lift services and co-ordinating movements of materials- Primary judge disposing of such allegation in few words- Held no error but even had that case been fully considered, there was insufficient material to demonstrate the liability of the respondents.

Borzi Smythe Pty Limited v Campbell Holdings(NSW) Pty Limited [2008] NSWCA 233Trade Practices Act – s52 misleading and deceptive conduct – sale of property – agent for vendor passed on representations that higher offers had been made – representation was false - whether agent liable – implied disclaimer

Griffiths v Falck [2008] NSWSC 998Conveyancing - Judgment debtor transferred certain property to family members prior to bankruptcy-Judgment creditor seeks to set aside transaction under s 37A Conveyancing Act 1919- Application made after debtor released from bankruptcy-Whether judgment creditor is a person prejudiced by transaction- Trustee in Bankruptcy lodged caveat to protect hisposition under ss 120 and 121 Bankruptcy Act 1966 (Cth)- Caveat not followed up-Whether caveat sufficient to trigger avoidance under s 37A- Held "No"- Transaction only defeasible if proceedings are taken to avoid it.

Lozevski v Manly Council [2008] NSWLEC 1379Development Application:- demolition of existing residential flat buildings, new residential flat building, requirements of development control plan, floor space ratio, density, wall height,open space, excavation, setbacks, privacy, views.

Hunter Wine Services Pty Ltd (formerly John F Berthon & Associates Pty Ltd) v Muswellbrook Shire Council [2008]NSWLEC 1390

Development Consent - s 96 modification to existing consent for wine making facility, height of tanks, view loss, landscape vegetation, colour treatment to improve appearance.

latest news - queensland

Brisbane auction results worst in the country

9 October 2008 Just one-third of properties that went to auction in Brisbane last month were sold, giving the city the worst clearance rate in the country. Data released by Australian Property Monitors (APM)shows that of the 274 homes listed for auction in September, only 89 or32 per cent - were purchased

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Fears calmed over impact of high spec development

Pradella has officially launched its Waters Edge project, which consists of two eight-storey buildings on Duncan Street at West End, the project replacing a former cardboard box factory with more than 200 apartments.The project manager conceded there could be some public concern about increased traffic but insisted lengthy analysis carried out, as part of Brisbane City Council's approval process, showed there would be minimal impact.

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Qld housing estate residents sue governments

3 October 2008 A class action is being launched against the Queensland Government and the Ipswich City Council by residents of Collingwood Park who say their homes have been damaged because of mine subsidence.Lawyers for the residents say both the State Government and Ipswich City Council allowed developments to proceed despite being aware of the risks

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Higher land costs stifling housing market

2 October 2008 Despite interest rates easing, the price of land is still expensive compared with established houses. According to BIS Shrapnel,the production of new residential lots will be restricted in 2008/09.The BIS Shrapnel’s Outlook for Residential Land, 2008 to 2013 report series has also found the cost of land across major capital cities has outpaced the growth in house prices in recent years.

articles - queensland

Prices versus rationing: Marshallian surplus and mandatory water restrictions.Author: Grafton, R. Quentin and Ward, Michael B.Source: Economic record; September 2008; v.84;pp57-65Subjects: Water consumption; Water restrictions;Demand; Prices and charges; Statistics; Sydney

Victoria’s Retail Leases Act 2003 – a new Ministerial determination Author: Cameron, Max and Kostezky, AuroraSource: Australian Property Law Bulletin, Vol 23, No3, September 2008: pp31

New regulatory regime for Queensland community titles schemes Author: Janes, RosSource: Australian Property Law Bulletin, Vol 23, No3, September 2008: pp32-34

Queensland Subordinate Legislation

Environmental Protection Legislation Amendment Regulation (No. 4) SL No 333 of 2008Nature Conservation Legislation Amendment Regulation (No. 2) SL No 334of 2008 Forestry and Nature Conservation Legislation Amendment Regulation (No. 3) SL No 335 of 2008

Bills Introduced

Mines and Energy Legislation Amendment Bill 2008 Water (Commonwealth Powers) Bill 2008