Inside Track: Planning, Environment & Sustainability - In the media, in practice and courts, cases and legislation - Construction & Planning

In the media

Commonwealth

Flood crisis highlights need for 'tough conversation' about suburban spread: Littleproud
Australia must have a "tough conversation" about where people should build their homes, Emergency Management Minister David Littleproud says. State and local governments needed to urgently devise new rules for planning and developments, based on recommendations from the bushfires royal commission (22 March 2021). More...

Victoria

Australia's largest, most efficient, vertical solar panel system now at Paragon
Melbourne property developer, Beulah, has announced its mixed-use, 48 storey tower, Paragon, will be home to Australia's largest, most efficient vertical solar panel system. The 42kW system is installed on the core walls of the tower and outperforms similar developments in terms of emission reduction, cost reduction and green energy sustainability (01 April 2021). More...

Architect and other consultants lose appeal in cladding fire case
Victoria's highest court has rejected an appeal from three consultants who were found to be liable for damages to a Docklands apartment building that caught ablaze in 2014. The specification, installation and assessment of the cladding material thus became a crucial issue in the legal proceedings brought on by the owners against the builder (01 April 2021). More...

New funding to increase Victoria's recycling capacity and capability
New funding will support Victoria's transition to a circular economy by partnering with organisations to deliver new and upgraded recycling (25 March 2021). More...

Waste in creek at Drouin earns water corp a fine
Victoria EPA has fined Central Gippsland Regional Water Corporation over a discharge of Class C recycled water to Shillinglaw Creek, at Drouin (25 March 2021). More...

63 times the size of Melbourne's CBD: Victoria's farmland lost to thousands of residential developments
Rural shires report "phenomenal" population growth as regional and rural land is rezoned residential, and one expert says it will affect Melbourne's food supply (20 March 2021). More...

NSW

Draft revised Energy from Waste Policy Statement now open for public comment
A draft revised Energy from Waste Policy Statement, that proposes tightened restrictions on air emission limits in line with recommendations by the NSW Chief Scientist and Engineer, is now on public exhibition until the end of April (01 April 2021). More...

Proposed planning changes to deliver billions in investment
The NSW Government will accelerate the delivery of up to $4.8 billion annually in economic benefits under a suite of proposed reforms to planning rules and complying development (01 April 2021). More...

Feedback sought on proposed changes to development rules
The NSW Government has released a discussion paper on proposed amendments to clause 4.6 of the Standard Instrument - Principal Local Environmental Plan which sets the test for varying development standards when making a development application (31 March 2021). More...

Stronger protections for North Coast koalas
Stronger protections are now in place for the North Coast koala population after the Tweed and Byron comprehensive Koala Plans of Management became the first to be approved under Koala SEPP 2021 (31 March 2021). More...

Leda to pay $170,000 in fines for non-compliance
Leda Manorstead was convicted and fined a total of $170,000 in the Land and Environment Court for failing to comply with its development consent for the Cobaki Estate in Tweed (30 March 2021). More...

Certainty sought for compliance funding
The NSW Government is undertaking a review into council compliance levies on building works to create a more certain, consistent and transparent planning system (26 March 2021). More...

'I could see it coming': Thousands of new homes halted over flood evacuation fears
NSW Planning Minister Rob Stokes has put a stop to billions of dollars worth of new residential development earmarked for Sydney's north-west until he can be satisfied there are adequate evacuation routes (25 March 2021). More...

Queensland

Historic Brisbane bayside home back on demolition path after court ruling
The house at 478 Flinders Parade in Brighton has the waters of Moreton Bay just metres from its doorstep and was built pre-1947 (31 March 2021). More...

Building Queensland to integrate with government
The Queensland Government has announced it is integrating Building Queensland with the Department of State Development, Infrastructure, Local Government and Planning. This reform will mean a change in functional focus to assisting agencies to progress infrastructure proposals including providing an assurance role for government (25 March 2021). More...

New city to be built from scratch north of Brisbane
Caboolture West in Moreton Bay has been picked as the pilot site of a planning strategy to ensure infrastructure can keep pace with population growth and housing demand in south-east Queensland (25 March 2021). More...

Land supply and growth challenges in South East Queensland
ShapingSEQ's 50-year vision will place South East Queensland as a globally recognised region where people love to live, learn, work, invest and visit. The region is expected to grow by 1.5 million people by 2041. ShapingSEQ maps out how the state will sustainably and responsibly accommodate a growing population (25 March 2021). More...

The population in this south-east Queensland region is set to exceed Tasmania
South-east Queensland's population is predicted to surge by more than 2 million people by 2036 and community groups in the Moreton Bay region are opposing the proliferation of developments proposed to cater for the population boom (24 March 2021). More...

'Missing in action': Student bed sector's plea for plan after Brisbane boom
After being courted for years, Brisbane's multibillion-dollar student housing sector has hit out at the council and governments for failing to work with them amid the challenges of COVID-19 (24 March 2021). More...

'Slimline' hotel plans revealed for Roma St hub
Plans for a 26-storey slimline hotel in the Brisbane CBD just outside the Roma Street priority development area have been lodged (23 March 2021). More...

DES fines Ipswich company after odour complaints
The Department of Environment and Science has fined Wood Mulching Industries $13,345 for odour issues affecting residents in Redbank Plains (19 March 2021). More...

In Practice and Courts

Call for nominations - threatened species, ecological communities or key threatening processes
Nominations are invited for species, ecological communities or key threatening processes to be considered for listing under national environment law during the assessment period starting 1 October 2021. More...

Announcements, Draft Policies and Plans released 2020

Victoria

Clause 52.30 assessment guideline
The department has prepared a web based guideline for the Clause 52.30 State Project provision which provides a framework for preparing and evaluating a proposed State Project. This guide can be used by proponents and DELWP assessors to assist with the planning assessment and approval process (25 March 2021).

EPA: Lara waste to energy proposal: Public comment
The Victoria EPA has received a Works Approval application for the construction of a waste to energy facility at 164-200 McManus Rd, Lara. View the full application here. Public submissions close on 28 April 2021 (24 March 2021). More...

EPA: Landfill leachate ponds: Public comment
The Victoria EPA is inviting the community and other stakeholders to have their say on a plan to construct two new leachate ponds at Melbourne Regional Landfill . Submissions will be accepted until 14 April 2021. EPA has published the company's Works Approval application and other documents on the Engage Vic website, at here (23 March 2021). More...

VCAT Red Dot Decision
Owen v Boroondara CC (Red Dot) [2021] VCAT 175 (5 March 2021).
Application under section 82 of the Planning and Environment Act 1987 to review a decision to amend a permit.

New renting regulations available - news alert
These include Heating – the energy efficiency (2 star) heating rental minimum standard has been extended to Class 2 rental properties (apartments) unless the rental provider can prove it would be unreasonable in terms of technical, cost or owners corporation requirements to install an energy efficient heater. The new regulations will come into operation on 29 March 2021. For the full list of requirements, you can access the regulations at New regulations for rental housing - Engage Victoria.

Victoria's Draft 30-Year Infrastructure Strategy
We have released Victoria's Draft 30-Year Infrastructure Strategy Community consultation ended on February 26, 2021. The final 30-year infrastructure strategy will be presented to the Victorian Government in mid-2021. To read the draft strategy, or participate in community consultation opportunities visit here .

NSW

NSW LEC
01/04/2021 COVID-19 Pandemic Arrangements Policy
22/03/2021 The 2020 Database Metric and Statistics for the Court

Design at the heart of new planning policy
The Explanation of Intended Effect for the Design and Place State Environmental Planning Policy, proposes to consolidate and replace existing design-focused policies, including SEPP 65 and BASIX SEPP to ensure good design outcomes for any new major development.
The Explanation of Intended Effect for the Design and Place SEPP is now on public exhibition for six weeks until 28 April 2021. For more information and to submit feedback, visit the Design and Place SEPP. More...

Have your say on changes to how building design and construction is regulated in NSW
The development of supporting regulations is the next step on delivering on this piece of the Government's building reform agenda, with the scheme commencing on 1 July 2021. The Design and Building Practitioners Regulation commences on this date. More...

Registrar General: Strata and community title COVID-19 signing options extended
The Government has passed Regulations to extend temporary arrangements for strata and community schemes which allow alternative signing options during COVID-19. The changes, which permit a scheme to execute an instrument through signature rather than affixing the common seal, have been extended to 13 May 2021. More...

NSW revenue: Land tax build to rent
The NSW Government is introducing a land tax discount for new build-to-rent housing projects until 2040 and a new Housing Diversity SEPP to provide more housing options, greater surety for renters, boost construction and support jobs during the COVID-19 recovery. Guidelines for the land tax reduction for build-to-rent properties can be read here). More...

NSW revenue: Extension to HomeBuilder grant
On 29 November 2020 the Australian Government Announced an extension to the HomeBuilder program until 31 March 2021. More...

Proposed SEPP amendment to allow outdoor dining pilot in Sydney CBD
City Of Sydney - the department is seeking your feedback on a proposed amendment to the Codes SEPP which will facilitate a simplified, streamlined process for small bars and pubs in the City of Sydney to have outdoor dining. The Outdoor Dining Trial will run from 30 October 2020 until 31 October 2021. More...

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

Changes to biodiversity offsets scheme
From 22 March 2021 to 19 April 2021
Have your say on the proposed changes to how payments to the Biodiversity Conservation Trust are determined under the Biodiversity Offsets Scheme. More...

Draft NSW Clean Air Strategy
The draft NSW Clean Air Strategy presents the whole of NSW Government approach to improving air quality and minimising adverse effects on human health.
From: 18 February 2021 To: 23 April 2021. More...

Planning amendments for agriculture
The department is proposing to simplify the planning process and approval pathways for those who wish to do small business activities, such as agritourism, and low-impact agricultural development on NSW farms. Submissions close on 19 April 2021. More...

Queensland

State Infrastructure Strategy announcement
A new State Infrastructure Strategy will be released in conjunction with seven regional infrastructure plans in aid of supporting our post COVID-19 economic recovery. This follows the recent announcement of the formation of a Growth Areas Delivery Team to address land supply issues in SEQ.
To find out more about the strategy, please click here. You're invited to have your say and help shape the State Infrastructure Strategy. You can share your views via the survey. Consultation closes on 31 May 2021.

Have your say: Gold Coast City plan amendments
The City of Gold Coast has opened consultation for a fourth round of amendments to the City Plan. Feedback on the amendments will close on April 8 2021. To provide feedback, please click here.

PCA: New Sunshine Coast Planning scheme
The Sunshine Coast Council will begin community consultation on a new planning scheme later this year. The changes are expected to align with newer state and local planning policies including the South-East Queensland Regional Plan which is set to be renewed next year. The new planning scheme timeline is outlined here (2021). More...

Roma Street cross river rail priority development area
Submissions are now being invited to contribute on the proposed Roma Street CRR PDA Development Scheme, Draft Development and Offset Plan. With a new underground Roma Street Cross River Rail station being constructed, the PDA will be used to guide a coordinated development of the surrounding precinct. Submissions close on 1 April 2021.

Cases

Victoria

Hancock v Nillumbik SC [2021] VCAT 215
Section 75 of the Victorian Civil and Administrative Tribunal Act 1998; Application for strike out; undoubtedly hopeless; bound to fail; utility; factors for exercise of discretion.
The application to strike out proceeding P1355/2020 is refused.
Application under section 149B(1)(a) of the Planning and Environment Act 1987.

Crowther & Sadler Pty Ltd v Baw Baw SC [2021] VCAT 234
Any changes required under condition 11 and detail of the dust suppression measures for the site to be nominated on the plan to the satisfaction of the Responsible Authority.
All recyclable materials shall at all times be stored within the building on the subject site, with the exception of:
Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.

NSW

Blues Point Hotel Property Pty Ltd v North Sydney Council [2021] NSWLEC 27
ENVIRONMENT AND PLANNING – existing use rights – whether existing use of premises as a hotel extends to the first floor outdoor terrace ENVIRONMENT AND PLANNING – characterisation of existing use – s 4.65 EP&A Act – use defined by reference to Liquor Act 1912 – whole of building used for purposes of a hotel ENVIRONMENT AND PLANNING – continuation of existing use – construction of s 4.66(2)(b) EP&A Act – extent to which area was actually physically lawfully used prior to date use prohibited ENVIRONMENT AND PLANNING – enlargement expansion or intensification or an existing use – s 4.66(2)(c) – ordinary meaning – extent of hotel use prior to date use prohibited.

Fitzsimons v The Hills Shire Council [2021] NSWLEC 1155
DEVELOPMENT APPLICATION – Torrens title subdivision – battle-axe handle not able to adequately service two battle-axe lots

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26
ENVIRONMENTAL OFFENCES – offender convicted of three charges of unlawfully carrying out bulk earthworks contrary to the conditions of a project approval and one charge of commencing works without a construction certificate – determination and composition of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – weight to be applied to partial expert witness – state of mind of offender at the time of the commission of the offences – De Simoni principle – objective seriousness of the commission of the offences low to moderate – defendant had a prior conviction for an environmental offence – whether defendant able to express contrition and remorse in the absence of guilty pleas – specific and general deterrence warranted – comparable cases – whether the defendant ought to pay the prosecutor's costs – whether the Court ought to order that the charges be dismissed – whether the Court ought to convict the defendant but impose no penalty – application of the totality principle – whether the Court ought to make a publication order – defendant convicted and fined in respect of all four offences – publication order made.

Barbara St Pty Ltd v Fairfield City Council [2021] NSWLEC 1145
APPEAL – development application – boarding house – encroachment on public land – whether active street frontage required – car parking –contentions resolved APPEAL – development control order – unauthorised development – fire safety – order likely to make residents homeless.

Lilac Pty Ltd v City of Ryde Council [2021] NSWLEC 1135
DEVELOPMENT APPLICATION – s 4.22 Concept Development Applications – Stage 1 development application – Sydney Harbour Catchment Strategic Foreshore Site – height exceedance – clause 4.6 written request – Sydney Harbour foreshore walk – cultural heritage significance – impact on heritage significance of item – adaptive reuse.

Queensland

Noosa Shire Council v 64 Gateway Drive Pty Ltd [2021] QPEC 19
PLANNING AND ENVIRONMENT – APPLICATION – MATERIAL CHANGE OF USE – where the respondent lodged development application number MCU19/0-081 on 10 July 2019 seeking development approval for 16 "Ancillary Dwelling Units" – where development application number MCU19/0-081 was assessed and refused by Council – where the respondent lodged an appeal against Council's decision on 9 October 2019 – where the applicant has sought a declaration that the use the subject of development application MCU19/0-081 is not for Ancillary Dwelling Units as that term is defined in the Noosa Plan 2006. Integrated Planning Act 1997 Qld; Planning Act 2016 Qld; Planning and Environment Court Act 2016 Qld.

Vanriet Development Pty Ltd v Brisbane City Council [2021] QPEC 17
PLANNING AND ENVIRONMENT COURT – JURISDICTION – whether the Planning and Environment Court has the jurisdiction to hear and determine on the merits an appeal against an amended infrastructure charge notice issued by the respondent counsel. Planning Act 2016 Qld s 137, 229 & Schedule 1; Planning and Environment Court Act 2016 Qld s 6.

Hawke v Brisbane City Council [2021] QPEC 16
PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF CODE ASSESSABLE DEVELOPMENT APPLICATION – where proposed development involved demolition of a pre-1947 house – where central issue was whether the subject house contributed to the traditional building character of that part of the street within the Traditional building character overlay. Planning Act 2016 Qld s 45, 60; Planning and Environment Court Act 2016 Qld s 43.

Legislation

?Commonwealth

Industrial Chemicals Environmental Management (Register) Charge (General) Bill 2020
Assent Act no: 30 Year: 2021 26 March 2021
Part of a package of five bills to establish a national framework to manage the ongoing use, handling and disposal of industrial chemicals. The ICEMR Bill would establish a national framework to drive consistency in the way that risks from the use and disposal of industrial chemicals are managed to reduce impacts on the environment and limit people's exposure to harmful substances. The ICEMR Bill will also strengthen the environmental risk management responses available to all jurisdictions by enabling environmental management conditions to be imposed on an industrial chemical across its lifecycle

Victoria

Acts
Planning and Environment Amendment Act 2021 (Vic)
Act Number: 12/2021 Date of assent: 23 March 2021

NSW

Regulations and other miscellaneous instruments
Protection of the Environment Operations (Clean Air) Amendment Regulation 2021 (2021-163) — published LW 1 April 2021

Bills introduced Non-Government
Canterbury Park Racecourse (Sale and Redevelopment Moratorium) Bill 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.

Australia: Inside Track: Planning, Environment & Sustainability - In the media, in practice and courts, cases and legislation

In the media

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