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Inside track: Planning, Environment & Sustainability

14 May 2019

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

The biggest ever change to building Green Star ratings
The Green Building Council of Australia (GBCA) is preparing to evolve its Green Star rating system, encouraging the built environment to achieve net zero carbon emissions (30 April 2019). More...

Other countries around the world are planning new cities – so why aren’t we in Australia?
Future Australian city planning and development focuses largely on enlarging and intensifying the footprints of existing major cities. The current urban policy trajectory is in-fill development and expansion of the existing state capital mega-city regions, where two-thirds of the population live. But what is lost through this approach (02 May 2019). More...

ATO to scrutinise property investor claims
The Tax Office has warned that it will be scrutinising claims by property investors in the upcoming tax season. As part of its crackdown, the Tax Office’s focus will be on “over-claimed interest, capital works claimed as repairs, incorrect apportionment of expenses for holiday homes let out to others, and omitted income from accommodation sharing” (24 April 2019). More...


Build-to-Rent pilot project seeks industry interest
The Palaszczuk Government’s innovative Build-to-Rent pilot project is calling for expressions of interest to help deliver subsidised affordable rental housing (02 May 2019).  More...

Seymour Group wins approval for Broadbeach project
Private developer Seymour Group has unveiled its debut into the Gold Coast market with a $32 million residential development in Broadbeach (24 April 2019).  More...


Ten year transport plan to create more space for people
City of Melbourne Councillors will consider an ambitious, draft 10-year plan to create a more enjoyable, safer central city which is easier to connect and travel within and better supports our shops, eateries and businesses to flourish (02 May 2019).  More...

Sky's the limit for Melbourne urban farm
The Skyfarm proposal for Melbourne's 2000 square metre Siddeley Street car park rooftop includes a working farm, bee hives, licensed cafe and workshops at an eco education centre (01 May 2019).  More...

New deal to reduce emissions and keep water affordable
Thirteen of Victoria’s water corporations have partnered to purchase clean energy from the Kiama Solar Farm in north-west Victoria. The innovative venture is the first of its kind for Australia’s water sector and will operate under a new organisation called Zero Emissions Water Ltd (ZEW) (23 April 2019).  More...

New South Wales

Regulating run-off: Polluters targeted during May inspection blitz
Building sites that fail to control their runoff will be in the firing line as the Get the Site Right campaign gets underway (02 May 2019). More... 

Private developers pay millions for Sydney's 'air rights' above heritage sites
As development and density reaches capacity in Sydney, purchasing the empty skies above heritage-listed sites remains one of the few avenues for developers to outgrow planning controls (02 May 2019). More...

Crookwell 3 wind farm referred to IPC
The Department of Planning and Environment has referred Crookwell 3 Wind Farm to the Independent Planning Commission (IPC) for final decision, saying it should be refused due to significant cumulative visual impacts on the landscape and residents (02 April 2019). More...

Port Kembla gas terminal approved
Deputy Premier John Barilaro and Minister for Planning Rob Stokes announced planning approval for the vital $250 million Port Kembla Gas Terminal (29 April 2019). More...

In practice and courts


Climate cuts, cover-ups and censorship
Climate Council of Australia: 30 April 2019
This publication provides a detailed overview of the Australian government’s approach to climate change since the election of the Liberal-National Coalition government in 2013. The period is characterised by cutting effective climate change programs, rejecting expert advice, ministers making publicly misleading claims, and a lack of a credible climate change policy.  More...

Announcements, draft policies and plans released 2019


PCA: Environmental Offsets discussion paper feedback
The Property Council has provided feedback to the State Government’s review of Queensland’s Environmental Offsets Framework. The Property Council maintains that a holistic strategic assessment of environmental matters is needed, particularly in the high growth region of SEQ, as it would provide the most consistent delivery of offsets in Queensland, and would provide improved environmental protection (02 May 2019).  More...

PCA: Government calls for Build-to-Rent EOIs
The Queensland Government has called for Expressions of Interest (EOI) for its Build-to-Rent Pilot Project, announced in December 2018. The call for EOIs follows the Registration of Interest process undertaken in early 2019. For more information on the Build-to-Rent pilot project, or to register an EOI, visit the government’s website. EOI Stage 1 closes on 24 May 2019.


Environment Effects Statement (EES) for North East Link: Public comment
An Environment Effects Statement (EES) has been released for the North East Link Project and is now open for public submissions, closing on 7 June 2019. The EES also includes a Draft Planning Scheme Amendment and a Works Approval Application for the construction of the tunnel ventilation system.  More...

DELWP / EPA Council Planner Forums - Geelong
The Department of Environment, Land, Water and Planning (DELWP) and Environment Protection Authority Victoria (EPA) are holding a series of professional development forums for statutory and strategic planners and other local government staff to provide an update on the delivery of the Government’s environment protection reform agenda, to demonstrate new data tools and to seek feedback on key planning reform projects.  More...

New South Wales

Community Participation Plan updated FAQs
The Environmental Planning and Assessment Act 1979 has been updated to make community participation central to the planning system. Supporting this objective is a new measure requiring all public authorities that have planning functions under the EP&A Act, including councils, to develop community participation plan (CPP). CPPs must be finalised and published on the ePlanning portal by 1 December 2019. More...

Changes to Housing SEPPs
Seniors Housing State Environmental Planning Policy - the SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020. 


Croft v State of South Australia (Port Augusta Overlap Proceeding) (No 2) [2019] FCA 581
NATIVE TITLE - application for one of the three overlapping claims for the determination of native title to be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth) - effect of findings in the determination of nearby claims - effect of the Barngarla People having been recognised as holding native title over area separating the claim area from the area over which the claim has been recognised as having native title - effect of claim groups being members of different cultural groups - consideration of historical and ethnographic material provided in resistance to the summary judgment application - application allowed and native title claim summarily dismissed.

State of Queensland (Department of Agriculture and Fisheries) v Humane Society International (Australia) Inc [2019] FCA 534
ADMINISTRATIVE LAW - application for an interim stay of a decision of the Administrative Appeals Tribunal - where Tribunal imposed conditions on licence issued to the applicant - Administrative Appeals Tribunal Act 1975 (Cth) s 44A - relevant considerations - whether stay is necessary for securing the effectiveness of the hearing and determination of the statutory appeal - whether the applicant has an arguable case - whether “special circumstances” need to be demonstrated - balance of convenience - where Tribunal decision will impose substantial compliance costs - risk of environmental harm if stay not granted.
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44, 44A; Great Barrier Reef Marine Park Act 1975 (Cth) ss 2A, 3, 3AB; Great Barrier Reef Marine Park Regulations 1983 (Cth).


Moramou2 Pty Ltd v Brisbane City Council [2019] QPEC 18
PLANNING AND ENVIRONMENT - APPEAL - appeal against the decision to give an enforcement notice in respect of a backpacker hostel - whether there has been an unlawful increase in the number of residents. Planning and Environment Court Act 2016 (QLD).

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16
PLANNING AND ENVIRONMENT - APPEAL - where application for a material change of use for a childcare centre in the Low density residential zone - whether development would serve a local community facility need only - whether development was of a bulk and scale compatible with the built form intent of the Low density residential zone - whether the development would be appropriately located - whether development would be compatible with residential amenity - whether development sensitively transitions to surrounding residential uses - whether the development would unacceptably impact on amenity - whether the development would introduce non-residential traffic into a residential street.

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17
PLANNING AND ENVIRONMENT - APPEAL - where the appellant seeks approval for a three-storey unit complex with 30 units on part of the Yeronga Bowls Club - where the land is in the Sport and recreation zone - where the land is protected as a local heritage place - where the Council refused the development application - whether the impact of the proposed development on the cultural heritage significance of Yeronga Bowls Club is acceptable - whether the land is still required for sport and recreation uses or community facilities - whether the proposed development will have an unacceptable storm water impact - whether there are grounds that justify approval of the development application despite conflict with City Plan 2014. 


Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263
LEASES AND TENANCIES - Retail leases - Renewal of lease upon exercise of option by tenant - Landlord bound to grant and tenant bound to take lease upon terms stipulated in lease - Lease in equity arises upon tenant exercising option to renew even where rent to be applied for further term has not been agreed or determined - Tenant entitled to option to renew – No evidence of evidence of any notice of default - Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 - Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 - Retail Leases Act 2003, s 27.
AGENCY - Where agent authorised both to negotiate agreement and to enter agreement – Berkely Pty Ltd v Millbrook Finance Pty Ltd [2018] VSC 213 - Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] HCA 49; (1975) 133 CLR 72 - Where there is no disposition of interest in land there is no requirement that the agent be authorised in writing – Instruments Act 1958, s 126(1).
EVIDENCE - Failure to call witness - Rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - Does not apply against a defendant until the plaintiff has proved a case for the defendant to answer - Does not require a party to give cumulative evidence – Tenth Vandy v Natwest Markets Australia [2012] VSCA 103; (2012) VConvR 64,366 - Does not directly apply to Victorian Civil and Administrative Tribunal proceedings - Maund v Racing Victoria Ltd [2016] VSCA 132 - Victorian Civil and Administrative Tribunal not compelled to apply rule - Manly Council v Byrne [2004] NSWCA 123 - Rule only applies where the missing witness would be expected to be called by one party rather than another - Payne v Parker [1976] 1 NSWLR 191 - An adverse inference may only be drawn where failure to call witness is not satisfactorily explained - Cadwallader v Bajco Pty Ltd [2002] NSWCA 328. 

Leung v Harris (Building and Property) [2019] VCAT 608
Victorian Civil and Administrative Tribunal Act 1998 - s.109 - order for costs - claim under the Water Act 1995 - s.16 - unreasonable flow of water - damages awarded in favour of the Applicant but claim for declaratory and injunctive relief refused - Applicant seeking an order for costs - relevant factors - order for costs on standard basis.

Wusty Holdings Pty Ltd v Moreland CC [2019] VCAT 551
Section 79 of the Planning and Environment Act 1987, Subsequent refusal position, Five dwellings, Residential Growth Zone, Design and Development Overlay - Schedule 24, Setbacks and landscaping opportunities, Equitable development potential. 

Williams Point Pty Ltd v Hobsons Bay CC [2019] VCAT 591
Section 80 of the Planning & Environment Act 1987; Hobsons Bay Planning Scheme; Industrial 3 Zone - Subdivision: impact of additional crossovers on bicycle network.

New South Wales

Le Bron v Chidiac [2019] NSWLEC 1194 
TREES (DISPUTES BETWEEN NEIGHBOURS): risk of injury - damage to fence and pool cover - tree was there first.

Darr v Keating [2019] NSWLEC 1196 
TREES (DISPUTES BETWEEN NEIGHBOURS) - damage or injury - damage to fence - debris - fire - termites - orders for fence repair - owner of the land includes the occupier of the land.

Equity Land Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1157 
DEVELOPMENT APPLICATION: conciliation conference - agreement of the parties - mixed use development - exceedance of height of buildings and floor space ratio development standards - orders. 

Burbridge v Gounakis [2019] NSWLEC 1202 
TREES (DISPUTES BETWEEN NEIGHBOURS) - falling limbs - risk of damage and injury – change in circumstance since previous decision - root damage - respondents not aware of damage prior to application - orders for tree removal - no orders for compensation.

Limousin No.1 Estate Pty Ltd v Liverpool City Council [2019] NSWLEC 1192 
DEVELOPMENT APPEAL: against refusal of subdivision - site contamination - certainty of remediation - agreement between the parties.

Council of the City of Sydney v Vision Land Glebe Pty Ltd [2019] NSWLEC 60 
APPEAL - appeal against Commissioner’s decision on questions of law - concept development application - demolition of existing building and approval of envelope of replacement building - issue of whether existing building of heritage significance - Commissioner found building not to be of heritage significance - Commissioner preferred one witness over another - Commissioner found adaptive reuse not economically viable - Commissioner accepted only witness as not contradicted - adequacy of reasons for findings - alleged irrationality of findings - whether denial of procedural fairness in making findings - delay in judgment - whether delay affected findings.

Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd; TWT Property Group Pty Limited v Cenric Group Pty Limited [2019] NSWCA 87 
APPEAL - contract - where parties entered into various contractual arrangements to undertake excavation works including harvesting natural sandstone - whether the primary judge erred in finding the parties formed a concluded agreement to vary the terms of the head contract and the sub-contract - where credit findings are challenged - importance of establishing a Fox v Percy type error. 
APPEAL - contract - whether the primary judge erred in finding the cross-appellant’s show cause notice and termination of the head contract were invalid - effect of variation of the head contract - whether the primary judge erred in finding a breach of an implied term of good faith and reasonableness. 
APPEAL - contract - where parties entitled to share in royalties from sale of sandstone – whether the primary judge’s construction of the term capping the contractor’s share of the royalties was wrong. Environmental Planning and Assessment Act 1979 (NSW), s 96.

Huang v Ku-ring-gai Council [2019] NSWLEC 1186 
DEVELOPMENT APPLICATION: conciliation conference - agreement between the parties - modification of consent - orders.

FLDC Architects v City of Canada Bay Council [2019] NSWLEC 1188 
DEVELOPMENT APPLICATION: child care facility - visual impact - over-development.

Feletti v Eales [2019] NSWCATAP 100 
APPEAL - strata scheme - noise transmission - compliance by tenant with by-laws - objective test - whether function conferred or imposed by legislation or by-laws - whether error of law.

Hu v Kim [2019] NSWSC 448 
COSTS - Party/Party - General rule that costs follow the event - Application of the rule and discretion - Defendants conduct of proceedings unreasonable notwithstanding settlement at hearing.
GUARANTEE AND INDEMNITY - Indemnities - Construction - Whether liability “as a result of” specified contract - proceedings between Mr Morton and Lane Cove Council were resolved by the NSW Land and Environment Court making orders pursuant to what was referred to as a “Section 34 Agreement”.



Owners Corporations and Other Acts Amendment Bill – Exposure Draft
The Bill represents an opportunity to update and modernise the Owners Corporations Act 2006, which has not been substantially reformed since it commenced in 2007. 

New South Wales

Regulations and other miscellaneous instruments
Electoral Funding (Adjustable Amounts) Amendment (Public Funding) Notice 2019 (2019-177) - published LW 26 April 2019.

Joseph Monaghan, Partner 
T: +61 3 9321 9857

Breellen Warry, Partner 
T: +61 2 8083 0420 

Peter Holt, Special Counsel
T: +61 2 8083 0421

Gerard Timbs, Partner
T: +61 7 3135 0644

Jenny Humphris, Partner
T: +61 7 3135 0690

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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