In the media

Victoria

Protecting and preserving Carlton’s unique heritage

The City of Melbourne is moving to protect one of the city’s oldest and most cherished neighbourhoods, with the release of the final Carlton Heritage Review. An important part of this review is protecting sites of social importance (18 November 2021). More...

Making home ownership a reality for more Victorians Development Victoria is creating more housing opportunities for moderate income earners, in locations close to jobs, transport and services, meeting strong demand from buyers looking for more diversity and affordability (17 November 2021). More...

We get knocked down: Melbourne the nation’s house demolition capital Melbourne has become the knockdown and rebuild capital of Australia in the past five years, new data from the Australian Bureau of Statistics reveals, with some suburbs adding four new homes for each one lost to the wreckers since 2016 (12 November 2021). More...

Vicinity slaps Myer with lawsuit over $4.2m unpaid rent Shopping mall giant Vicinity Centres is suing key department store tenant Myer over $4.2 million in unpaid rent at its flagship Bourke Street store in Melbourne (11 November 2021). More...

Reviving Melbourne | A plan to boost jobs, economic growth and revitalise the CBD The Property Council has called for the State Government to take decisive action to revive Melbourne including establishing a new $50 million CBD revitalisation fund, a return to the office for public servants and free public transport for three months (11 November 2021). More...

Melbourne CBD could be close to self-sustaining through fully integrated solar New modelling, on a scale ranging from individual structures through to neighbourhoods and an entire city, has shown that buildings in the City of Melbourne could provide 74 per cent of their own electricity needs if solar technology is fully integrated into roofs, walls and windows (11 November 2021). More...

‘Nation-building’ $25b plan for chain of towers linking CBD with MCG A private investment group wants to build apartments, green spaces, restaurants, a school and a TAFE on top of the rail lines between Flinders Street and South Yarra stations (10 November 2021). More...

Cbus resubmits plans for $1bn Melbourne tower Super fund-backed developer Cbus Property has redesigned and resubmitted plans for its approved $1-billion-plus Bourke Street office tower in central Melbourne. “[The redesign] aims to bring workers back to the city and respond to an ever-evolving Melbourne workforce with a greatly enhanced focus on sustainability, wellness, collaboration (09 November 2021). More...

NSW

Dark roofs ditched, commercial buildings must be net-zero from 2022: NSW Planning Minister All new large commercial buildings designed from next year will be required to operate at net-zero as part of the latest measures to ramp up the NSW emissions reductions response (17 November 2021). More...

Queensland

Plans filed for 46-storey Broadbeach tower Brisbane-based developer Ferro Property Group is planning a 46-storey residential tower across the road from one of the Gold Coast’s most popular bowls clubs (19 November 2021). More...

Modernised laws introduced to embrace technology The Attorney-General said the new witnessing and signing of documents reforms will apply to affidavits, statutory declarations, general powers of attorney, deeds and particular mortgages. Common tasks such as buying or selling your home will be so much easier because of these new reforms (18 November 2021). More...

Surging costs blamed as Privium nears collapse One of Queensland’s busiest residential builders, Privium Group, has been placed in voluntary administration with debts of more than $28 million, after being caught out by surging construction costs (17 November 2021). More...

Mirvac lodges application for next stage of waterfront newstead Mirvac has submitted a development application for a new 25 level residential building located at 57 Skyrice Terrace, Newstead. The proposed sculptured building would accommodate 135 apartments and 825sqm of ground floor retail (17 November 2021). More...

Review to examine role of building industry developers The Queensland Government is set to examine the role of property developers as part of a review of its nation-leading building industry fairness reforms, following a recommendation from the Queensland Parliament’s Transport and Public Works Committee (16 November 2021). More...

15-storey apartment block to tower over historic Shafston House The Kangaroo Point tower, comprising 37 apartments, will be built beside heritage-listed Shafston House, Brisbane’s third-oldest residence (15 November 2021). More...

Maps sent to residents confirm route for alternative to Bruce Highway The next stages of the Bruce Highway western bypass are shown in a map sent to property owners impacted by the middle Caboolture West section (15 November 2021). More...

Council unveils designs for Toowong and St Lucia Green bridges Designs for Brisbane’s new green bridges have been unveiled with Brisbane residents invited to have their say on the proposals, for the Toowong to West End and St Lucia to West End Green Bridges. At Toowong, a new landscaped riverfront park and landing plaza will be created (14 November 2021). More...

Stage 7 tower proposed for South City Square A development application has been submitted for the seventh stage of Pelicano’s South City Square in Woolloongabba. Stage 1, 2 & 3 of South City Square is completed with stage 4, includes the new Hyatt Place Hotel is currently under construction (14 November 2021). More...

Pellicano’s boutique ‘Story House’ proposed for Kangaroo Point Due to the project’s immediate proximity next to the planned Brisbane Olympic Stadium which is to replace the existing Gabba Stadium, the project has included x32 studio apartments which are designed to be short term let (14 November 2021). More...

Consolidated properties files three-tower plan for ABC site New plans for a three-tower, $520-million project on the former ABC Toowong site in Brisbane’s inner-west have been unveiled by Consolidated Properties Group (13 November 2021). More...

Queensland housing investment growth initiative Following on from this year's State Budget, where funding was announced to create a $1 billion Housing Investment Fund and $1.9 billion to boost housing supply. The Queensland Housing Investment Growth Initiative procurement process has now opened and the property industry is invited to submit their proposals (09 November 2021). More...

Published – articles, papers, reports

Australian Bureau of Statistics 10 November 2021 Building Approvals data for small geographic areas

GBCA policy snapshot - November 2021 11 November 2921 - Net zero target confirmed; NCC 2022 update; Closing the performance gap- Green Star certified buildings. More...

In practice and courts

Commonwealth

ARNEC Consultations – 08 November 2021 - Version 7 Model Operating Requirements Version 7 Consultation Draft 7.1 Clean This draft proposes further amendments to the Model Operating Requirements Version 6. Consultation closes 06 December 2021

API: ACCC authorisation To ensure we continue to set high standards of professional behaviour and have a range of powers to impose certain membership requirements and sanctions on any Member who has been found guilty of professional misconduct, we have conducted an extensive review and refinement of our complaints and disciplinary framework. Effective 16 September, after receiving final ACCC approval, we now have in place a new modern suite of Professional Conduct policies, oversight practices and procedures. Please click here to see the new suite of policies

GBCA: Registrations for Green Star – Design & As Built close 17 December 2021 At the time of launch we announced a transition period: Whereby applicants could register projects using either Green Star – Design & As Built, or Green Star Buildings. This transition period ends on 17 December 2021 and applicants will no longer be able to register their projects under Green Star – Design & As Built (21 October 2021). More...

GBCA: Green Star certification 2021 dates for your project The guidelines below (based on typical time frames), specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones (2021). More...

Announcements, Draft Policies and Plans released 2021

NSW

NSW Registrar-General: New community land laws to start in NSW on 1 December 2021 The Community Land Management Act 2021 No 7 - NSW Legislation and Community Land Development Act 2021 No 6 - NSW Legislation and their respective regulations modernise the development and management of community land schemes in NSW will start on 1 December 2021. These reforms align the community schemes legislation with the Strata Schemes Management Act 2015 and the Strata Schemes Development Act 2015. View the NSW legislation website. Note: The Office of the Registrar General is working with NSW Land Registry Services to update approved community scheme forms. These updated forms will not be accepted for lodgment until 1 December 2021. More...

PCA Submissions

NSW Revenue: COVID-19 audits have started Audits of the 2021 Job Saver payments, COVID-19 Business grants, Micro-business grants and the Accommodation Support grant have started (16 November 2021). More...

NSW Revenue: 2021 land tax COVID-19 relief - Guidelines (1 July 2021 – 1 December 2021) The NSW Government has introduced measures to provide relief to commercial and residential landowners, 1 July 2021 - 31 December 2021. More...

Queensland

PCA: Queensland Government commences its review into the role of developers The review will examine if developers should be included in security of payment measures The scope includes developers’ operational and financial capacity, ethical behaviour, and work practices (16 November 2021)

Queensland Housing Investment Growth Initiative (QHIGI) procurement process The Queensland Housing Investment Growth Initiative (QHIGI) procurement process has now opened. The QHIGI is being delivered through three funding initiatives: Housing Investment Funding - funding to develop partnered projects to increase social and affordable housing supply QuickStarts Qld - capital investment program to accelerate planned acquisitions, new construction and redevelopment opportunities to deliver new homes Help to Home - partnerships with property owners, landlords and registered community housing providers to headlease homes to people who are eligible for social housing The procurement process is now open and you can register your interest in developing a strategic partnership with the Queensland Government here (November 2021).

Northshore Hamilton PDA – Development Scheme Amendment Economic Development Queensland (EDQ) has commenced a review of the development scheme to ensure it continues to operate effectively as the overarching planning document for the PDA. EDQ has now announced that the proposed Development Scheme Amendment and DCOP is open for public review and comment from 22 October - 3 December 2021. More...

Rockhampton Regional Council expands development incentives policy Rockhampton Regional Council has expanded its development incentives policy to include multi-residential unit developments within close proximity to the CBD. The policy will apply to DA’s lodged between 1 January 2021 and 31 December 2021. For more information, please click here.

Extension of COVID Bill State Parliament has moved to extend the timeframe for several measures introduced to allow Government to respond to the impacts of COVID-19 through the COVID-19 Emergency Response and Other Legislation Amendment Bill 2021, from 30 April to 30 September, 2021. This timeframe had previously been extended from its initial expiry of December 2020.

Amendment of Planning Regulation 2017 The Department of State Development, Infrastructure, Local Government and Planning has advised that the Planning Regulation 2017 was amended on 17 September by the Planning Amendment Regulation (No.1) 2021. The amendments: Extend the expiry date of the economic support instrument provisions by 12 months until 17 September 2022 make several minor changes to increase the efficiency of the Planning Regulation. These clarify provisions relating to the content of planning and development certificates and referral agency requirements for end-of-trip facilities.

Consultations Local Government Sustainability Framework – discussion paper Closes on 30 November 2021 Department of Tourism, Innovation and Sport Browne Park Redevelopment Closes 24 November 2021

Cases

Australasia Development (M) Pty Ltd v Glenwood Estate (Vic) Pty Ltd [2021] VSC 758CONTRACT – joint venture agreement for development of proposed subdivision – guaranteed return to a joint venturer – whether on a proper construction guarantee was discharged by a fundamental change to the proposed development. CONTRACT – variation to written agreement by oral agreement – whether conversations resulted in formation of a binding agreement to vary joint venture agreement by releasing guarantee – principles relating to formation of agreements to vary contracts – fourth category Masters v Cameron agreements considered. ESTOPPEL – estoppel by representation – elements of equitable estoppel – whether there was a clear and unambiguous representation – necessary for a plaintiff to establish that, but for the assumption or expectation, it would not have acted as it did – whether change of position established.

Re Pomroy [2021] VSC 739REAL PROPERTY – restrictive covenant – application for a declaration that land not affected by any purported restriction in the covenant – whether appropriate to proceed without a contradictor – whether benefit of the covenant is annexed to land – held: There are no persons capable of enforcing the benefit of the covenant other than the covenantees and so the covenant does not affect the land – appropriate to proceed ex parte – declaration made that land not affected by the covenant – Property Law Act 1958 (Vic), s 84(2) – Re Mack and the Conveyancing Act [1975] 2 NSWLR 623 – Xu v Natarelli [2018] VSC 759 – Randell v Uhl [2019] VSC 668 – Re Hunt [2017] VSC 779.

Giurina v Greater Geelong City Council [2021] VSCA 318ADMINISTRATIVE LAW – judicial review – application for leave to appeal - review of Building Appeals Board decision to refuse to cancel emergency order – review of additional emergency order decision of municipal building surveyor – whether judge erred in finding emergency orders were confined to dangers arising out of condition of buildings – effect of failure to properly serve emergency order – leave to appeal refused – Building Act 1993 ss 102, 105, 105B, 142, and 236 – Building Regulations 2018 regs 177 and 178. PRACTICE AND PROCEDURE – application by applicant executor to represent himself in separate capacity as lawyer – applicant already represents estate – application misconceived.

607 Sunbury Road PTY LTD v Melbourne Linh Son Buddhist Society Inc & Anor [2021] VCC 1762SALE OF LAND Terms contract of sale between trustee of unit trust and head vendor – change of trustee of unit trust – new trustee nominated under provisions of head contract – nominee entering into further Nomination Deed providing for revocation of its nomination and nomination of further party – terms of Nomination Deed varied to extend date for payments by second nominee – whether Nomination Deed constituted a terms contract within the meaning of Sale of Land Act 1962 – Nomination Deed constituted terms contract made in contravention of various provisions of Sale of Land Act 1962 – purported rescission or avoidance by second nominee – whether vendor under second terms contract acted honestly and reasonably – whether purchaser under second terms contract in as good a position as if the contraventions of the Sale of Land Act 1962 had not occurred – vendor under second terms contract excused contraventions – contract enforceable – Damages Sale of Land Act 1962; Duties Act 2000; Goods Act 1958

Brompton Lodge Pty Ltd v Head, Transport For Victoria [2021] VSCA 302VALUATION OF LAND – claim for compensation under Planning and Environment Act 1987 s 98(1) – applicant landowners entered into property development agreement with property developer to subdivide and develop land – part of land subject to reservation for road widening – applicants sold land to developer and assigned to developer proceeds of compensation claim for reservation – sale price of $55 million included assignment of proceeds of compensation claim and release from property development agreement – valuers assessed loss on sale by reference to reduction in market value of land based on hypothetical sales – whether actual sale price of $55 million relevant to establishing loss resulting from reservation – whether applicants suffered financial loss on sale of land as natural, direct, and reasonable consequence of reservation – no evidence that applicants sold land at a lower price than they might otherwise have expected to receive had part of land not been reserved – sale price reflected particular circumstances of sale, including restrictions imposed by the property development agreement – application for leave to appeal granted – appeal dismissed – Planning and Environment Act 1987 ss 98(1), 99(b), 104, 106, 107, 108 – Land Acquisition and Compensation Act 1986 ss 30, 37(8), 40, 80.

Allen-Co Holdings Pty Ltd v Gympie Regional Council [2021] QPEC 64PLANNING AND ENVIRONMENT – APPEAL – appeal against an infrastructure charges notice (ICN) – where there was an error in the calculation of the charge and the ICN should be set aside and replaced – where debate as to the terms of the replacement ICN – where a charge may be levied because the development will place extra demand on trunk infrastructure – where the adopted charge in the charges resolution must be used to calculate the levied charge – where the adopted charge rate for the development is $13,330 – where the Council asserts this rate should be the basis for the replacement ICN – where the appellant contends that the rate of $13,330 should be discounted on the basis that the development will generate extra demand on some forms of trunk infrastructure, but not others – whether the charges resolution should be so construed as to justify the application of a proportional discount Planning Act 2016 QLD ss 112(1), (3), 113(1), 119, 120, 130 229(a), Sch 1 Table 1 Item 4, Sch 2 Planning Regulation 2017 QLD s 52(3)(a), Sch 16

Pembroke Olive Downs Pty Ltd v Sunland Cattle Co Pty Ltd & Ors (No 2) [2021] QLC 38PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant sought costs of the mining objection hearing from the first respondent – where the applicant sought costs on the basis that it was wholly successful and costs arose as a result of the respondent’s conduct – where the first respondent submitted it did enjoy success and that its conduct was reasonable – where the Court awarded costs on a limited basis where the first respondent’s conduct did cause the applicant to incur costs Land Court Act 2000 Qld s 34, s 52A(d)(ii), s 52B(1)(j), s 52B(3)

Artesian Hospitality Pty Ltd v Tsuen Fung Holdings Pty Ltd [2021] QSC 288CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT – WHERE CONCLUDED CONTRACT – where the parties executed a Heads of Agreement requiring them to use reasonable endeavours to proceed to execute a lease on the basis of the terms set out in the Heads of Agreement – where the Heads of Agreement came to an end if the parties could not agree a lease in accordance with the Heads of Agreement by a certain date – whether, on its proper construction, the Heads of Agreement was an agreement for lease that left scope only for negotiation regarding the form, but not the substance, of the lease terms, or whether it was merely an agreement to negotiate a lease CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where the parties were required to use reasonable endeavours to proceed to execute a lease on the basis of terms set out in a Heads of Agreement – where the parties exchanged several drafts of a lease – where the applicant wanted the express inclusion of a certain obligation on the respondent in the lease – where the respondent consistently opposed that express inclusion – where the parties convened a telephone conference to discuss the relevant clause – where the applicant submits that the parties reached agreement on the clause during the telephone conference – where the respondent denies that such agreement occurred – whether the parties satisfied the obligation to use reasonable endeavours – whether the parties agreed on the final terms of the lease – whether the respondent should be ordered to specifically perform the Heads of Agreement by entering into the lease which the applicant submits was agreed to

Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation & Anor [2021] QCAT 383ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Application to stay a decision – whether it is desirable to grant a stay Reef House Resort Pty Ltd and its associated entities trading as ‘The Reef House’ seek a review of the Commissioner’s decision of 23 December 2020 approving MFB Properties (NQ) Pty Ltd’s application for a Commercial Hotel Licence for premises at Palm Cove currently known as the ‘Palm Cove Beach Sarayi Hotel’.

Miami Recreational Facilities Pty Ltd [2021] QCAT 378HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the applicant seeks a renewal of an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) in order to operate a residential village reserved for the over 50s – where the Queensland Human Rights Commissioner opposes the application – whether the exemption should be granted – whether the tribunal can renew an exemption retrospectively HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the tribunal is acting in an administrative capacity when deciding an application for exemption under the Anti-Discrimination Act 1991 (Qld) – whether the test to apply is now substantially in the Human Rights Act 2019 (Qld) Anti-Discrimination Act 1991 QLD s 82, s 83, s 113, s 127, s 174C; Charter of Human Rights and Responsibilities Act 2016 VIC s 7; Human Rights Act 2019 QLD s 8, s 13, s 15, s 48, s 58; Property Law Act 1974 QLD s 121; Retirement Villages Act 1999 QLD s 26

Cases to 15 November 2021

G Santalucia Investment Pty Ltd v Bundaberg Regional Council [2021] QPEC 63PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST ENFORCEMENT NOTICE – where the appellant was given an enforcement notice under s 168 of the Planning Act 2016 in relation to earthworks – where the appellant appealed against the decision to give the enforcement notice – whether the Planning Regulation 2017 prohibits the Planning Scheme from categorising the operational works as assessable development – whether the enforcement notice should be set aside in the exercise of the discretion Planning Act 2016 QLD s 43, s 44, s 163, s 168; Planning and Environment Court Act 2016 QLD s 43, s 45; Planning Regulation 2017 QLD s 16, sch 6; Sustainable Planning Act 2009 QLD s 232; Sustainable Planning Regulation 2009 QLD s 16, sch 6

Redland City Council v Canaipa Developments Pty Ltd & Ors [2021] QPEC 62ENVIRONMENT AND PLANNING – APPLICATION – COSTS - final enforcement orders compelling compliance with a lawful and functioning on-site sewage and wastewater treatment system - whether the first and/or second respondents ought pay the applicant council’s costs of the enforcement proceeding pursuant to s 60(1)(b) and/or 61(1) of the Planning and Environment Court Act 2016 – whether respondents’ conduct in the proceeding frivolous or vexatious - whether costs be assessed on the standard or indemnity basis Environment Protection Act 1994 Qld; Planning and Environment Court Act 2016 Qld ss 59, 60, 60(1)(b), 61(1)

Sunland Cattle Co Pty Ltd v Kingham & Ors [2021] QSC 287ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Land Court recommended that the Minister grant four of the mining leases and that the fifth be granted with a reduced area – where the applicant submits that the Land Court was required to undertake an investigation into matters of public interest – the second respondent submits that the Land Court does not have a duty to investigate matters beyond the evidence presented to the Court – whether the Land Court failed to conduct the hearing as required by law ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Land Court found, with respect to the impact on surface water users downstream of the mine, that “there is no evidence that other users will be adversely affected” – where the applicant submits that there was evidence about the likely adverse impacts on surface water users downstream – whether the Land Court’s decision failed to take into account a relevant consideration ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant submits that the Land Court had a duty to make enquiries beyond the evidence regarding the downstream user issues – where the applicant submits that the Land Court should have directed the experts to “meaningfully consider the issue” – whether the Land Court’s decision was unavailable or unsupported by the evidence before the Court. Judicial Review Act 1991 Qld; Land Court Act 2000 Qld

Lasker v Holeszko [2021] QDC 270CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was charged with four offences against the Sustainable Planning Act 2009 (Qld) in the magistrates court – where the magistrate found that the appellant should be found guilty in respect of each of the four charges and imposed a penalty of $75,000 – where both the conviction and sentence is appealed under s 222 of the Justices Act 1886 (Qld) on various grounds – whether the evidence adduced by the prosecution was insufficient to establish the defendant’s guilt beyond reasonable doubt in relation to each of the four charges – whether expert evidence was inadmissible as it relied on evidence not before the court – whether an exhibit was inadmissible as it was a copy, not an original – whether the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem – whether erroneous weight was placed on the evidence of an expert on the basis that they failed to comply with the established scientific method – whether the learned magistrate correctly applied s 76 of the Justices Act 1886 in the application of Schedule 24 of the Sustainable Planning Regulation 2009 – whether the sentence was manifestly excessive

Legislation

Queensland

Subordinate legislation as made – 12 November 2021 No 163 Economic Development (Southport PDA) Amendment Regulation 2021 No165 Nature Conservation and Other Legislation Amendment Regulation (No. 2) 2021

Subordinate legislation as made – reminders No 138 Planning Amendment Regulation (No. 1) 2021 The objectives of the Amendment Regulation are to extend the expiry date of economic support instrument provisions under the Amendment Regulation by 12 months until 17 September 2022 to continue to assist Queensland’s economic recovery from COVID-19, and make minor amendments to increase the efficiency of the

No 50 Planning (COVID-19 Vaccination Service) Amendment Regulation 2021 Insert 20A When material change of use for providing COVID-19 vaccination service is not assessable development. This section expires on 31 December 2021 "The material contained in this publication is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances”