In the media
Commonwealth
Draft NCC 2022 provisions an important step change for
energy efficient homes
The ABCB released draft National Construction Code
provisions on energy efficient residential buildings for public
consultation. The ASBEC welcomes the release of the public
consultation draft as an important step change towards more healthy
and comfortable homes for Australian families (30 August 2021).
More...
Climate risk governance guide
Climate risk is no longer an issue facing select sectors,
but a standing item on many board agendas. To assist directors
address climate change governance, the AICD has developed a
practical guide. The
Climate risk governance guide provides a plain-language
introduction to fundamental climate change concepts, and considers
this issue in the context of the non-executive directors' role
and duties (24 August 2021).
More...
Finance accepts new land acquisition laws
The Department of Finance has released the findings of a
Review of the Lands Acquisition Act 1989 and accepted all 16
recommendations in full. The Review found that most acquisitions
occur relatively quickly, providing mutually agreed compensation to
landholders, however, it also identified a subset of cases where
landholders could benefit from more (23 August 2021).
More...
Australian environmental group sues Santos over clean
energy claims
The ACCR filed a lawsuit in the Federal Court on Thursday,
and says it is the first case in the world to challenge the
validity of a company's net zero emissions target. The ACCR is
suing Santos Ltd alleging the company's statements about gas
being "clean" and having a clear pathway to net zero by
2040 were deceptive (26 August 2021).
More...
Victoria
Gurner files plans for $250m Southbank tower
Gurner plans to build a $250 million, 40 storey apartment
tower at Southbank, adding to its $7 billion pipeline and
signalling confidence in a resurgent Melbourne apartment market (01
September 2021).
More...
New strategy, planning controls for Fishermans
Bend
A new plan to build a centre of high-value industries and
jobs at Fishermans Bend unveiled today positions Victoria at the
forefront of global advanced manufacturing, engineering and design
innovation. The Advancing Manufacturing statement which outlines
five key priorities for the Fishermans Bend National Employment and
Innovation Cluster (01 September 2021).
More...
Updated plans for Junction Place
A revised masterplan for the landmark Junction Place
precinct in Wodonga will be shared in the coming weeks, with a
refreshed vision for the site aimed at creating jobs and
stimulating economic growth, while also responding to renewed
interest in regional Victoria (31 August 2021).
More...
Fortis adds $90m tower plan to Melbourne pipeline
Sydney-based developer Fortis' burgeoning Melbourne
pipeline has expanded with plans for a $90-million mixed-use
development in Richmond now before the council (31 August 2021).
More...
Powering the potential of neighbourhood batteries
The Victorian Government has awarded grants to jumpstart
the roll-out of neighbourhood-scale batteries and energy storage
studies to maximise benefits of solar for households, businesses
and community (20 August 2021).
More...
NSW
Delay to removal of flammable cladding from NSW
apartment buildings
The removal of cladding from the apartment towers as part
of a state government project has been delayed until early next
year (02 September 2021).
More...
'Most risky' certifiers of NSW apartment
buildings in watchdog's sights
Almost a dozen certifiers will be put under intense
scrutiny by the state's building watchdog as it attempts to
boost public confidence in apartments (31 August 2021).
More...
NSW government finally sees the light, ditches dark
roofs
The NSW government has finally responded to the pressing
issues of urban heat islands and energy efficiency by prohibiting
dark coloured roofs on new developments in the suburb of Wilton in
Sydney's south-west (The Wilton Development Control Plan (25
August 2021).
More...
"Great day for environmental justice" as EPA
ordered to take action on climate change
A landmark ruling by the NSW Land and Environment Court
will require the state EPA to take action on greenhouse gas
emissions and climate change. It follows a case launched by
Bushfire Survivors for Climate Action against the EPA. Read the EPA
statement
here (26 August 2021).
More...
Green ban on Willow Grove lifted
NSW Minister for the Arts Don Harwin has announced that
the green ban imposed by the Construction, Forestry, Maritime,
Mining and Energy Union on Parramatta's Willow Grove site will
be lifted today. This decision follows consultation with the
community resulting in the retention of significant heritage items
(24 August 2021).
More...
Queensland
CBD space fight erupts as developer behind city tower
hits out at hotel plan
In an objection lodged with Brisbane City Council,
property group Mirvac said its support for city revitalisation
could not extend to "unreasonable" hotel plans at the
corner of Roma and Turbot streets (01 September 2021).
More...
New Palaszczuk Government regional quarantine facility
to keep Queenslanders safe
A dedicated regional quarantine facility will be built at
Wellcamp, Toowoomba under a joint agreement between the Palaszczuk
Government and the landowner, Wagner Corporation (26 August 2021).
More...
Broken ground for Queensland's first Build-to-Rent
project
Work is officially underway on the Palaszczuk
Government's first Build-to-Rent development, providing a boost
to jobs in the construction sector and making affordable housing
more accessible (24 August 2021). More...
City centres evolve as the pandemic changes the way we
work
The COVID-19 pandemic will mean 10 per cent fewer people
will work in Australia's city centres, while CBD office spaces
will get smaller, Australia's chief infrastructure body
believes. The changes will mean more professional workers will
shift to regional centres close to capital cities, including the
Gold and Sunshine coasts, Ipswich and Logan (22 August 2021).
More...
In Practice and Courts
Commonwealth
PCA: Draft Recovery Plan for the Koala
released for public consultation
The Federal Government has released the draft National
Recovery Plan for the EPBC Act-listed Koala, identifying strategic
actions to support recovery of the nationally threatened species.
The public consultation period is open until 24 September
2021.
The draft conservation advice listing assessment for the koala is
also open for consultation until 30 July 2021. This document will
be incorporated into the draft National Recovery Plan as
well.
For more information on the draft national recovery plan, please
click here.
For more information on the draft conservation advice and listing
assessment for the koala , please click
here.
Register of Foreign-owned Water Entitlements
This draft report was released on 17 August 2021.The draft
report presents the Commission's preliminary analysis and views
on the rationales for the Register, its effectiveness, costs and
benefits, and possible improvements, for both its current and
future forms.The Commission will seek further information and
feedback following the release of a draft report in August 2021.
Draft report expected to be released in August 2021.
More...
Announcements, Draft Policies and Plans released 2021
Victoria
Ministerial Direction No. 1 – Potentially
Contaminated Land
An updated Ministerial Direction No. 1 – Potentially
Contaminated Land incorporating
changes to align with the Environment Protection
Act 2017 was gazetted on 27 August 2021 and is available on the
DELWP website.
More...
Approvals
Melbourne C371melb applies the Specific Controls Overlay to
part of the land at 221-245 Salmon Street, Port Melbourne to
facilitate its use and development for a new campus for the
University of Melbourne by inserting an incorporated document
titled 'The University of Melbourne Fishermans Bend Campus,
August 2020' and making other consequential changes to the
Melbourne Planning Scheme.
Melbourne C392melb introduces new policy direction for the
Fishermans Bend Employment Precinct at Clause 21.16 (Other local
areas), applies a new schedule 74 to the Design and Development
Overlay to the precinct on an interim basis until 31 January 2022
and makes other associated changes to the Melbourne Planning
Scheme.
NSW
Telecommunications and other communication
facilities
Notification start-end date 16/08/2021 – 13/09/2021
We have prepared an amendment to the Infrastructure SEPP to help
speed up the delivery of new telecommunications infrastructure. The
proposed amendments will simplify planning pathways for
telecommunications infrastructure.
More...
Electricity generating works or solar energy
systems
Notification start-end date 16/08/2021 – 13/09/2021
The NSW Government is making it easier to install solar energy
battery systems in your home. The proposed changes will make
household scale solar batteries systems exempt development. This
means you will not need development consent, under the amended the
State Environmental Planning Policy (Infrastructure) 2007.
More...
Proposed Environmental Planning and Assessment
Regulation 2021
Notification start-end date 05/08/2021 – 22/09/2021
We are seeking feedback on proposed changes to the Environmental
Planning and Assessment Regulation 2000. These changes are detailed
in the exhibition draft of the proposed Environmental Planning and
Assessment Regulation 2021 and supporting materials at the attached
link. More...
Industrial lands policy review
The Greater Sydney Commission is undertaking a review of the
Industrial and Urban Services Lands Retain and Manage policy under
the Greater Sydney Region Plan. The policy applies to industrial
areas in Greater Sydney that should be safeguarded from competing
land use pressures. Submission close on13 August 2021. The review
is scheduled to be completed by the end of 2021.
More...
Draft Noise Guide for Local Government
Public consultation closes on 27 September 2021. The draft Guide
makes it easier to find information on the legislative framework to
manage noise, who is responsible for managing noise, and the
options for management. The draft Guide also reflects changes
introduced by the Protection of the Environment (Noise Control)
Regulation 2017 and other legislative changes since 2013. View
the Draft Noise Guide for Local Government and frequently asked
questions and have your say on the proposed changes.
Queensland
Public consultation: Queensland's renewable energy
zones (QREZs)
Public consultation would be followed by a technical paper
later in the year, for feedback from industry and other energy
stakeholders on the framework for QREZ design and access. The
online survey is open until 30 September 2021.
More...
Proposed citywide amendment to Brisbane City Plan 2014
(Amendment K)
Brisbane City Council was seeking public consultation on
proposed changes to
Brisbane City Plan 2014 – Major Amendment package K.
Public consultation has now closed (24 August 2021). The changes
proposed to City Plan under Major amendment package K are
summarised here. The full details of the proposed amendment can be
found on City
Plan online and the details of zone and overlay mapping changes
can be found in the
schedule of amendments.
Land Restoration Fund: Round 2
Applications are open for the Land
Restoration Fund Investment Round 2. For more information about
details required under Stage 1 and 2 read the
LRF Investment Application Guidelines.
Submissions are now being accepted. Submissions close on 8 October
2021.
Cases
Victoria
Thorpe v Head, Transport for Victoria & Ors (Ruling No
2) [2021] VSC 533
INJUNCTION – Aboriginal Cultural Heritage –
request for directions – whether specified categories of
activities are caught by the interlocutory injunction –
maintenance works – injunction must be sufficiently clear
– purpose and context of injunction – preserving the
status quo – proper construction of the term 'associated
works' – Aboriginal Heritage Act 2006 (Vic) –
Aboriginal Heritage Regulations 2018 (Vic) – Deal v
Father Pius Kodakkathanath [2016] HCA 31; (2016) 258 CLR 281
– Kia Australia Pty Ltd v Chief Executive Officer,
Customs [1998] 1060 FCA – Owen Daniel (A pseudonym)
v Secretary to the Department of Justice [2015] VSCA 10 -
Winslow Constructors v Mt Holden Estates [2004] VSCA 159;
[2004] 10 VR 435.
Willis v Johnson [2021] NSWLEC
1513
TREES (DISPUTES BETWEEN NEIGHBOURS) – part 2
application – overhanging tree – damage to property
– risk of injury – brush turkeys – brush turkey
faeces – fire – debris – mould – remedy or
prevention is not available under the Trees Act.
Horseshoe Properties Pty Ltd v Tweed Shire
Council [2021] NSWLEC
1507
MODIFICATION APPLICATION – seeks to modify 101 lot
residential subdivision – increase in number of lots to 110
– extension of approved road, deletion of open space to be
dedicated to Council from one location and to be provided in
another location –whether the development as proposed to be
amended is substantially the same as the development as originally
approved – other merit issues not necessary to consider.
The Owners – Strata Plan 3346 v The Owners
– Strata Plan 10848 [2021] NSWLEC
1504
TREES (DISPUTES BETWEEN NEIGHBOURS) – part 2
application – damage to property – trees have been
removed but stumps remain – consent orders other than
apportionment – actions and omissions of the parties.
Bushfire Survivors for Climate Action Incorporated v
Environment Protection Authority [2021]
NSWLEC 92
JUDICIAL REVIEW – public duty – failure to
perform – duty to develop environmental quality objectives,
guidelines and policies to ensure environment protection –
meaning and content of duty – discretion in performing duty
– controls on the exercise of discretion – duty
requires the development of objectives, guidelines and policies to
ensure environment protection from climate change – breach of
duty – mandamus to compel performance of duty.
Queensland
Robertson
& Ors v Brisbane City Council & Ors
[2021] QPEC 44
PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL
– ORIGINATING APPLICATION – where respondent council
approved development application for permit for building works and
material change of use for multiple dwellings – where
development application approved subject to conditions requiring
work on Transport Network to remove existing safety barrier for the
purposes of refuse collection – where originating application
sought declaratory relief – where relief sought concerned
declaration that decision notice approving development application
was void and to no effect – where declaration sought that
decision notice be set aside – where application
dismissed
ASSESSMENT BENCHMARKS – where development application
approved subject to code assessment – whether jurisdictional
error as to basis of assessment – whether development
application ought have been impact assessable – whether
proper construction of development application such that it can be
inferred the developer sought approval for four storey dwelling
– whether rooftop area comprising lift shaft and stairs
constitutes storey – whether approval of development
application unreasonable in context – whether council failed
to exercise statutory discretion to approve or refuse development
application
Planning Act 2016 Qld s 60; Planning and Environment Court Act 2016
Qld s 11.
The
Proprietors Cathedral Village BUP 106957 v Cathedral Place
Community Body Corporate [2021] QCA
186
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY
COURTS – JUDGMENTS AND ORDERS – OTHER CASES –
where the applicant paid the respondent an amount pursuant to a
District Court judgment – where that judgment was
successfully appealed and remitted to the District Court –
where the respondent did not repay the judgment amount to the
applicant – whether the judgment amount should be repaid to
the applicant with interest and costs. Civil Proceedings Act 2001
Qld s 58(3), s 59(3); Mixed Use Development Act 1993 Qld s 193.
McKay
v Brisbane City Council & Anor;
Panozzo v Brisbane City Council &
Anor; Jensen v Brisbane
City Council & Anor [2021] QPEC
42
PLANNING AND ENVIRONMENT – APPEAL – submitter
appeal against approval of a development application seeking a
development permit for material change of use for a six storey
multiple dwelling in the Medium density residential zone –
whether the proposed development is of an appropriate height, bulk
and scale – whether the proposed development will contribute
to a cohesive streetscape – whether the proposed development
will be compatible with the existing and intended character of the
area – whether the proposed development will cause any
unacceptable amenity impact – whether the proposed
development provides for adequate deep planting and landscaping
– whether there is a need for the proposed development
– whether there are relevant matters that support approval of
the proposed development – whether the development
application for the proposed development should be approved in the
exercise of the planning discretion
Planning Act 2016 Qld s 45, s 59, s 60; Planning and Environment
Court Act 2016 Qld s 43, s 45, s 47.
Krieg
v Woolgar Valley Aboriginal Corporation
[2021] QLC 28
ENERGY AND RESOURCES – MINERALS – MINING FOR
MINERALS – COMPENSATION – where the applicant requires
compensation to be decided – where the respondent at
different stages of negotiations referred to conduct and
compensation – where the respondents offer was contingent on
agreement to pay legal and valuation costs ¬– where the
respondent is an Aboriginal Corporation – where the applicant
is subject to the laws of general application including the
Aboriginal Cultural Heritage Act 2004 (Qld) – where
valuer's report was provided – where compensation was
determined
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS
– OTHER MATTERS – where costs were considered
–– where the Court considered the discretion to award
costs for 'legal costs' ought not be exercised –
where the Court was assisted by the valuer's report –
where each party should bear half the cost of the valuation report
Mineral Resources Act 1989 Qld s 281(3); Land Court Act 2000 Qld s
7, s 34.
Odna
Group Pty Ltd v Logan City Council [2021]
QPEC 41
PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of a development application for operational works
for an electronic advertising device – whether the
development conflicts with the advertising device code in the
planning scheme – whether the advertising device would
materially affect the safety of the movement network –
whether the proposal complies with either the performance outcome
or the purpose and overall outcome of the code, given the operation
of the acceptable outcomes is excluded in relation to safety
– whether the advertising device would materially adversely
affect, rather than protect, the visual amenity of the surrounding
area – whether the acceptable outcomes are met where, in
part, they refer to standards for various signs, none of which fit
the description of the proposal – whether the proposal meets
the performance outcomes or the purpose and overall outcomes in
relation to visual amenity – whether public benefit supports
the favourable exercise of discretion Planning Act 2016 Qld ss
45(3), 60(2); Planning and Environment Court Act 2016 Qld ss 43,
45, 47.
Legislation
?Victoria
Statutory Rules
No 107
Land Amendment Regulations 2021 31/08/2021
No 109
Land (Regulated Watercourse Land) Regulations 2021
31/08/2021
No 110
Conservation, Forests and Lands (Infringement Notice) Amendment
(Flora and Fauna Guarantee) Regulations 2021 31/08/2021
NSW
Regulations and other miscellaneous instruments
Residential
Apartment Buildings (Compliance and Enforcement Powers) Amendment
(Miscellaneous) Regulation 2021 (2021-510) – published LW
3 September 2021
Contaminated
Land Management (Adjustable Amounts) Notice 2021 (2021-478)
– published LW 27 August 2021
Protection
of the Environment Operations (Clean Air) Regulation 2021
(2021-485) – published LW 27 August 2021
Protection
of the Environment Operations (General) Regulation 2021
(2021-486) – published LW 27 August 2021
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.