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Inside track: Planning, Environment & Sustainability

26 May 2020

#Planning, Environment & Sustainability

Inside track: Planning, Environment & Sustainability

In the media

New baseline data provides greater clarity for environmental decisions
The Morrison Government has released independent scientific research to identify and manage environmental impacts from potential gas developments in the Cooper, Isa and Beetaloo basins (15 May 2020).  More...

Bushfire inquiry hearings get underway this month
The Royal Commission into National Natural Disaster Arrangements will begin two weeks of public hearings on May 25 with an "e-hearing" (11 May 2020).  More...

COVID Impact on City Life Goes Under Microscope
The effect of COVID-19 on how we use our cities is set to go under the microscope under a landmark research collaboration in Melbourne which hopes to deliver lessons which can be applied worldwide. The project will look at activities such as traffic flow, electricity use, urban and household behaviour, use of parks and public spaces and air quality (15 May 2020).  More...

Inner-City Apartment Completions to Contract Until 2021
The Covid-19 crisis is likely to cause more delayed or abandoned apartment projects and in turn cause underlying growth to halve in 2020 with further declines of 25 per cent on the horizon in 2021, JLL says (14 May 2020).  More...

PCA: Quick action from Governments can drive energy efficiency jobs boom
The Energy Efficiency Council’s CEO, Luke Menzel, said projects that upgrade the energy performance of buildings and businesses in the manufacturing, resources and agriculture sectors are shovel ready, boost productivity and drive employment (11 May 2020).  More...

Post-COVID-19 wave of regional migration predicted as people seek simpler life, get back to basics
The Real Estate Institute says regional areas could see an influx of new residents, with Agents are reporting an increase in interest in rural and regional properties. A regional and urban planner says governments should invest in regional areas to capitalise on post-pandemic migration (10 May 2020).  More...

Catalyst Infrastructure Fund Proposal
The Property Council, Urban Development Institute of Australia (UDIA) and Housing Industry Association (HIA) have written to the Minister for State Development, Manufacturing, Infrastructure and Planning to advocate for a new approach to catalyst infrastructure funding (06 May 2020).  More...

NSW

Statement of Expectations for Independent Planning Commission
The state’s Independent Planning Commission (IPC) has been set new accountability benchmarks to ensure greater timeliness and transparency in decision-making, as part of the roll-out of reforms recommended by the NSW Productivity Commission (14 May 2020).  More...

$15 million to transform our streets and public spaces for social distancing
An extension of George Street’s car-free zone in Sydney’s CBD, a new pedestrian-only boulevard in Liverpool’s Railway Street and a ‘people’s loop’ in Parramatta Park have been given the green light as part of a plan to transform streets into shared spaces in response to COVID-19 (08 May 2020).  More...

Land tax concession applications now open
Landlords providing rent relief for eligible tenants in financial distress due to COVID-19 can now apply for land tax concessions online (07 May 2020).  More...

HV Operations to pay $400,000 after alleged water pollution from mine
HV Operations Pty Ltd has entered into an Enforceable Undertaking with the NSW Environment Protection Authority (EPA), paying $400,000 towards environmental land management improvements, following a water pollution incident at an open cut mine in Singleton last year (07 May 2020).  More...

NRL tailor sent fake certificate for plush inner Sydney hotel
A Land and Environment Court judge has found the Marsden Hotel was opened using a fraudulent occupation certificate (05 May 2020).  More...

Nearly $10 million in enhancements for ePlanning
Real-time tracking and faster processing of local development applications is a step closer, thanks to nearly $10 million in funding from the NSW Government (05 May 2020).  More...

24-hour economy reforms support nightlight revival post COVID-19
The NSW Government is inviting community feedback on the second stage of its 24-hour economy liquor law reforms, which propose a host of changes to kick start Sydney’s night time economy post COVID-19 and beyond. Key proposals include reducing red tape by aligning liquor licensing and planning processes (04 May 2020).  More...

Queensland

PCA: Establishment of Queensland Response and Recovery Coalition
The Property Council have joined the cross-industry Queensland Response and Recovery Coalition (QRRC) to provide strategic advice to government during the COVID-19 crisis. The QRRC is a collective of industry and peak bodies seeking to inform decision makers in areas such as planning, policy, and investment to guide Queensland’s economic recovery (13 May 2020).  More...

PCA: Townhouse ban now in effect
Amendments passed in February 2020 to restrict townhouses from single home areas (Major amendment package H) are effective as of 1 May 2020. The amendments are now part of the Brisbane City Plan 2014 (City Plan) (13 May 2020).  More...

Further Stop Order for the Broadway Hotel
Environment Minister Leeanne Enoch has issued an eighth Stop Order under the Queensland Heritage Act, preventing any demolition that would impact the heritage significance of the Woolloongabba’s Broadway Hotel, ensuring the heritage-listed building is protected as essential repairs (08 May 2020).  More...

Kangaroo Point cycle bridge plan goes ahead with $1.6m price tag
The business case for the proposed bridge for cyclists should be finished by early next year (06 May 2020).  More...

Auditors deliver blow to Brisbane Live arena project
Brisbane's proposed 17,000-seat indoor stadium over Roma Street Station is not economically viable, a Queensland government Audit Office report has found (06 May 2020).  More...

In practice and courts

New NatHERS certificate to be rolled out by 30 April 2020
A new NatHERS certificate will soon come into use as software tools transition to Chenath Engine version 3.21.The new NatHERS certificate has been developed after significant consultation with industry users and will replace the previous “universal certificate” for all new assessments from 1 May 2020.  More...

NSW

NSW Law Society: NSW ready to reopen front door on property inspections and on-site auctions
Agents and vendors will be able to hold traditional property inspections and on-site auctions from next weekend, after a six-week limited shutdown due to COVID-19 (04 May 2020).  More... 

NSW Land and Environment Court
07 May 2020 - The Delegation to Registrars under section 13 of the Civil Procedure Act 2005 has been updated.  More...

NSW Planning Department: Have your say - Draft plans and policies

Flood Prone Land Package
Notification start-end date 30/04/2020 - 25/06/2020
This will build resilience in communities located on floodplains and reduce the extent of property damage and potential loss of life from severe to extreme flooding throughout NSW.  More...

Draft special infrastructure contributions (SIC) guidelines
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking to improve the transparency of the application of SICs. The draft SIC guidelines provide guidance regarding the purpose and function of SICs and their application in the new approach to precinct planning.  More...

Proposed amendments to the EP&A Regulation
Notification start-end date 15/04/2020 - 12/06/2020
The Department is proposing amendments to the EP&A Regulation to improve transparency in the infrastructure contributions system through better reporting of contributions received and expended for individual contributions plans and planning agreements.  More...

Improving the review of local infrastructure contributions plans - discussion paper
Notification start-end date 15/04/2020 - 12/06/2020
Higher-rate local infrastructure contributions plans are independently reviewed to ensure that they are reasonable. The Department has identified ways to improve the review process of local infrastructure contributions plans to make it more efficient while maintaining its important function.  More...

Draft planning agreements policy framework
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking feedback on an updated planning agreements policy framework. The proposed changes will result in a clearer and more transparent contributions process and will allow planning agreements to be used for their intended function to fund innovative infrastructure solutions.  More...

Criteria to request a higher s7.12 percentage - discussion paper
Notification start-end date 15/04/2020 - 12/06/2020
The Department is seeking feedback on the proposal from key stakeholders and the community. Your feedback will help inform critical improvements to the infrastructure contributions system in NSW.  More...

Changes to Housing SEPPs
The SEPP will not apply in heritage conservation areas in Greater Sydney until 1 July 2020.  More...

NSW Revenue: 2020 land tax COVID-19 relief - Guidelines
05 May 2020 - The NSW Government has introduced measures to provide relief to commercial and residential landowners.   More...

Queensland

New or expanded cropping
The Queensland Government will defer the commencement of the new or expanded commercial cropping and horticulture activities requirement (ERA 13A), under the Reef protection regulations until 1 June 2021. The deferment is in direct response to COVID-19 (coronavirus) and ensures the agricultural community has a suitable amount of time to prepare for the changes.  More...

Planning legislation amendments
Urgent amendments to Queensland's planning legislation are now in effect to address concerns raised by a range of stakeholders, including local government and industry, in response to the COVID-19 (06 May 2020).  More...

Cases

NSW

Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited and Ors (No 2) [2020] NSWLEC 49
COSTS – applicant successful in principal judgment – respondents filed submitting appearances in principal hearing – effect of submitting appearances – submitting appearance is only one circumstance and is not alone determinative – each respondent contributed to making of errors – no disentitling conduct from applicant – offers to settle proceedings – question of reasonableness of not resolving the proceedings – general rule that costs follow the event

Vella v Hawkesbury City Council [2020] NSWLEC 1199
DEVELOPMENT APPLICATION – for the use of an awning addition attached to an outbuilding – floor area/area – overdevelopment – dominance in the streetscape or rural setting – visual prominence – cumulative impact – land use conflicts – amenity and public interest
BUILDING INFORMATION CERTIFICATE – approval for a partially built awning attached to an outbuilding

Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors [2020] NSWLEC 52
PRACTICE AND PROCEDURE - two criminal proceedings commenced alleging the Defendant in each breached s 125(1) of the Environmental Planning and Assessment Act 1979 - motions by Defendants seeking orders that each Summons be quashed, set aside or permanently stayed - whether Summonses patently duplicitous - whether Summonses latently duplicitous - Summonses patently duplicitous - Prosecutor given the opportunity to consider seeking leave to amend in each instance.

Strata Plan 87060 v Loulach Developments Pty Ltd [2020] NSWSC 550
CIVIL PROCEDURE - parties - misnomer or misdescription - application to amend - where owners corporation intended to sue builder for alleged defects but mistakenly named the incorrect entity in summons and list statement - whether builder prejudiced from loss of viable cross-claims - where builder on notice of mistake, defects and proceedings - no delay in making application to amend - prejudice to owners corporation if leave not granted - dictates of justice favour granting leave to amend

Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93
ENVIRONMENT AND PLANNING — Offences — Prosecutions — whether commencement of criminal proceedings time barred
LIMITATION OF ACTIONS — Operation of bar — National Parks and Wildlife Act 1974 (NSW) s 190(1) — whether distinct limitation periods can be relied on in the alternative — whether prosecutor must elect which limitation period is relied on

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74
APPEAL – where charges found to be duplicitous – where leave sought to amend charges to nominate particular working days as separate counts of breach
APPEAL – whether failure to take into account relevant consideration – whether denial of procedural fairness
ENVIRONMENT AND PLANNING – consent – where alleged breach of terms of development consent

Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44
ENVIRONMENT AND PLANNING — Consent — Construction of use approved by order of the Court — Whether approval for “roof sign” is a “roof or sky advertisement” or a “building identification sign” under State Environmental Planning Policy No 64 – Advertising and Signage — Roof or sky advertisement
ESTOPPEL — Issue estoppel — Whether issue fundamental — Finding made by Commissioner of the Land and Environment Court — Issue estoppel and abuse of process not made out

Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121
ADMINISTRATIVE LAW – Government Information (Public Access) Act -– legal professional privilege – whether privilege waived

Stevens Holdings Pty Limited trading as Stevens Group v Newcastle City Council [2020] NSWLEC 1201
JOINDER – application for joinder – statutory power to order joinder under s 8.15 Environmental Planning and Assessment Act 1979 – issues proposed to be raised by applicant for joinder sufficiently addressed – public interest – joinder refused

Queensland

Monaco Street Pty Ltd v Ipswich City Council [2020] QPEC 21
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant says its development approval lapsed – where the applicant sought a declaration about the lapse – whether the court has jurisdiction to grant the declaration sought – whether the declaration should be made in the exercise of the discretion
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant sought an order excusing a lapse of its development approval and reviving the development approval – whether the court has jurisdiction to grant the relief sought – whether the relief sought is appropriate
PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change an existing development approval to extend its operation by a further two years – where the development approval was originally granted in 2011 – whether the applicant has demonstrated that it is the owner – whether the changes were acceptable
Planning Act 2016 Qld s 78, s 79, s 81; Planning and Environment Court Act 2016 Qld s 11, s 37

The Agile Wallaby Project Inc. v Department of Environment and Science [2020] QCAT 121
ENVIRONMENT AND PLANNING – ENVIRONMENTAL IMPACT ASSESSMENT AND APPROVAL – OTHER STATES AND TERRITORIES – environmental assessment – impact upon release site habitat relating to the large scale capture and translocation of agile wallabies – application for damage mitigation permit to undertake the translocation of agile wallabies – the suitability of the habitat at the proposed release sites – the staffing and financial capacity of an organisation to undertaken the large scale capture and translocation – whether applicant has the experience to undertake the large scale translocation – whether there is a risk posed to the translocated agile wallabies by the translocation generally – whether the applicant poses a risk to the agile wallabies if a damage mitigation permit is issued
EVIDENCE – MISCELLANEOUS MATTERS – RULES OF EVIDENCE – ORDERS – public interest test – fit and proper person test – rules of evidence – Briginshaw test – onus of proof not required in administrative review proceedings – what weight, if any, to be placed upon evidence – public interest the balancing of interests including competing public interests – applying a distinction between public interest and a matter of public interest – the interests of the public are distinct from the interests of an individual or individuals – whether the applicant is suitable to be issued with a damage mitigation permit – appropriateness – value judgment to be exercised – the seriousness of a person’s conduct is a factor to be evaluated by the decision maker – there is no precise meaning of the term fit and proper
Acts Interpretation Act 1954 Qld s 32D, Schedule 1
Nature Conservation Act 1992 Qld s 4, s 5, s 8(2)(b), s 9, s 11(a), s 71(a)(v), s 73, s 80, s 88(2), s 100I(5), Schedule – Dictionary
Nature Conservation (Administration) Regulation 2017 Qld s 2, s 5, s 21(1), s 21(4)(c), s 26, s 26(1), s 26(1)(a), 26(1)(c), s 26(1)(f), s 26(1)(g), s 26(2), s 31(1), s 117, s 119, Schedule 2.2, Schedule 6
Nature Conservation (Wildlife Management) Regulation 2006 Qld s 10(1), Schedule 6
Nature Conservation (Wildlife Management) Regulation 2006 Qld s 181, s 186, s 207
Nature Conservation (Wildlife) Regulation 2006 Qld s 35(2), Schedule 6
Queensland Civil and Administrative Tribunal Act 2009 Qld s 19, s 20, s 20(1), s 20(2), s 21, s 24(1), s 28, s 28(3)(b), s 28(3)(c), s 63

Legislation

NSW

Regulations and other miscellaneous instruments
Biodiversity Conservation Act 2016 — Final Determination (2020-199) — published LW 15 May 2020
Biodiversity Conservation Act 2016 — Final Determination (2020-200) — published LW 15 May 2020
Biodiversity Conservation Act 2016 — Final Determination (2020-201) — published LW 15 May 2020
Biodiversity Conservation Act 2016 — Final Determination (2020-202) — published LW 15 May 2020
Biodiversity Conservation Act 2016 — Final Determination (2020-203) — published LW 15 May 2020
Biodiversity Conservation Act 2016 — Final Determination (2020-204) — published LW 15 May 2020
Environmental Planning and Assessment Amendment (Lapsing of Consent) Regulation 2020 (2020-206) — published LW 15 May 2020
Environmental Planning and Assessment Amendment (Sydney Gateway) Order 2020 (2020-211) — published LW 15 May 2020
Land and Environment Court (Amendment No 1) Rule 2020 (2020-207) — published LW 15 May 2020

Bills introduced Non-Government
Water (Commonwealth Powers) Amendment (Termination of References) Bill 2020

Environmental Planning Instruments
State Environmental Planning Policy (State and Regional Development) Amendment (Botany Rail Duplication and Cabramatta Loop Projects) 2020 (2020-208) — published LW 15 May 2020
State Environmental Planning Policy (State and Regional Development) Amendment (Water Treatment Facilities) 2020 (2020-209) — published LW 15 May 2020

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

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