What's News in Property, Planning and Environment

 Queensland Government Agency Budget Highlights

The government’s capital expenditure on Queensland’s infrastructure, planning and local government provides investment in the growth, prosperity and sustainability of Queensland. The budget provides funding that will ultimately support enhanced community services, accelerated economic growth, the creation of jobs and the preservation of our environment. The 2009-10 budget announced on 16 June 2009 allocates funding for major infrastructure projects, planning, and sustainable, transparent and accountable local government (16 June 2009)

Queensland dwelling unit commencements decreased 6 percent over the March quarter, while the national average dropped 4 percent, according to the Australian Bureau of Statistics. Figures released today show levels at their lowest in eight years, as Australia’s total number of dwelling units continue to fall on the back of an 11.5 percent decrease in the December quarter (17 June 2009)http://www.qbr.com.au/news/articleid/56529.aspx

 

The Queensland Government has extended the moratorium period on clearing endangered regrowth vegetation by three months unitil October 7 2009. The Vegetation Management (Regrowth Clearing Moratorium) Act 2009 legislates against the clearing of more than one million hectares of land, including mapped endangered regrowth vegetation, in rural areas, and all native vegetation within 50 metres of a mapped watercourse in priority reef catchments of the Mackay/Whitsundays, Wet Tropics and Burdekin (17 June 2009) http://www.qbr.com.au/news/articleid/56511.aspx

 

The Minister for Tourism and Fair Trading introduced into the Parliament the Body Coroporate and Community Management Amendment Bill 2009 in response to the decision of Bossichix Pty Ltd v Martinek Holdings Pty Ltd [2009] QCA 154 handed down on June 5, 2009 (18 June 2009)

Bill http://www.legislation.qld.gov.au/Bills/53PDF/2009/BCCMAmdB09.pdf

EM http://www.legislation.qld.gov.au/Bills/53PDF/2009/BCCMAmdB09Exp.pdf

The ‘Fitzgibbon Chase’ development is being built on State Government owned land at Fitzgibbon on Brisbane’s northside. Apartments are selling for as little as $200,000 and up to two thirds of the entire development will be below the Brisbane media house price. The project will create 500 jobs and is also being used to help train up-and-coming tradies” ULDA CEO Paul Eagles said to be employed, contractors must guarantee that they’ll employ apprentices during their time on the project (19 June 2009) http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=64634

 

Anna Bligh and Natural Resources Minister Steven Robertson has launched the Queensland Renewable Energy Plan, which was established to attract to attract private investment in the new Queensland industry includes traditional energy resources like coal and gas, but new and emerging renewable energy resources like solar, geothermal, wind and hydro. The Plan will be rolled out through the Queensland Government’s Office of Clean Energy—a ‘one stop shop’ that will provide ongoing policy and program support while dispensing expertise to assist renewable energy developers fast track eligible projects (21 June 2009)

 

Bligh sweetens Mackay’s clean energy future with $9 million investment
Up to 30 per cent of Mackay’s annual electricity supply may be generated through an innovative local sugar mill project. Mines and Energy Minister Stephen Robertson said the Bligh Government is investing $9 million in Mackay Sugar’s planned energy cogeneration project at its Racecourse Sugar Mill and refinery near Mackay (18 June 2009)

 

Sport Minister Phil Reeves comprehensively refuted a media report that the Dunlop Townsville 400 V8 supercar event would thumb its nose at important laws and regulations. Mr Reeves said it was certainly not the case of “open slather” in terms of noise, alcohol service and other environmental impacts at the event.. The exemption to the Motor Racing Events Act 1990 applies only to noise resulting from a motor racing event. The exemption does not extend to any other requirements of the Environmental Protection Act 1994 (16 June 2009)

Completing the historic local government reforms that will help councils ride out the global financial storm and supporting jobs-generating local infrastructure projects are budget priorities for the Local Government and Aboriginal and Torres Strait Islander Partnerships portfolio in 2009-10. An extra $126.8 million has been allocated over the next two years to meet existing arrangements before a new grants system, totalling $45 million a year, is introduced in 2011

The 2009-10 budget has confirmed $13.2 Million to complete the future transit-oriented development (TOD) known as Varsity Station Village. In conjunction with the Robina to Varsity Lakes Rail Extension project, planning has been undertaken to ensure the land surrounding the new station will have a range of facilities and high quality transport connections (16 June 2009) http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=64479

Wild rivers protection will be extended to another 12 river basins in Queensland over the next two years. The plans are part of the Department of Environment and Natural Resources (DERM) $914.6 million budget for 2009-10. Mr Robertson said the government would be consulting with Indigenous communities, landholders and mining interests as well as other stakeholders on a further eight river basins in 2009-10 (16 June 2009) http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=64427

 

Mines and Energy Minister Stephen Robertson said the Bligh Government is investing a further $5.6 million to assist Collingwood Park residents affected by last year’s mine subsidence event.

Mr Robertson said the extra funding would cover the cost of additional home purchases and repairs to properties affected by the April 2008 subsidence event (16 June 2009)

 

Government Owned Corporations (Queensland Ports Restructure) Regulation (SL No 88 of 2009) amends the Government Owned Corporations Act 1993

Liquor and Other Legislation Amendment Regulation (No. 1) (SL No 941 of 2009)

Motor Racing Events Amendment Regulation (No. 2) (SL No 95 of 2009) amends the

Motor Racing Events Act 1990

Brisbane Forest Park Amendment By-law (No. 1) (SL No 97 of 2009)

Environmental Protection Legislation Amendment Regulation (No. 1) (SL No 98 of 2009)

Electrical Safety Amendment Regulation (No. 1) (SL No 103 of 2009)

Infrastructure Investment (Asset Restructuring and Disposal) Bill 2009

Fuel Subsidy Repeal and Revenue and Other Legislation Amendment Bill 2009

Body Corporate and Community Management Amendment Bill 2009

 

DEVELOPMENT APPROVAL- Request to change - whether a minor change – whether development impact assessable – whether change would prompt an objection

PLANNING SCHEME – Transitional planning scheme – resolution to make consequential amendment to rezone land – whether resolution to amend effective – whether resolution beyond power – whether Council should be estopped from asserting land not rezoned

DEVELOPMENT APPROVAL- Request to change – whether change is inconsistent with or would require change to or cancellation of existing condition – whether appeal should be determined summarily – whether Council confined to assessing request against the applicable Code

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PRACTICE AND PROCEDURE – REMOVAL OF A PARTY – where referral agency under IPA incorrectly acted as a concurrence agency rather than an advice agency – where referral agency joined appeal as a concurrency agency – whether referral agency should be removed as a party to the appeal – whether error of referral agency can be cured by s 4.1.5A of IPA

 

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – DEFINITIONS – RETAIL SHOP LEASE OR LEASE – where proposed lease could not have been a “retail shop lease” as defined in the Retail Shop Leases Act 1994 (Qld) as at the critical date – whether a grant of a lease of premises within a retail shopping centre gives rise to a retail shop lease if the lessor proposes to use land as a retail shopping centre, although at the time of the grant the land does not satisfy the definition of retail shopping centre

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – PROHIBITED PAYMENTS: KEY MONEY, PREMIUM OR LIKE PAYMENTS – where s 39 of the Retail Shop Leases Act 1994 (Qld) precludes the lessor from seeking or accepting key money for the goodwill of the lessee’s business carried on from the leased shop – whether s 39 of the Retail Shop Leases Act 1994 (Qld) precludes the lessee from seeking or accepting key money for the goodwill of the lessee’s business carried on from the leased shop

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PLEADING – GENERALLY – where plaintiff pleads in statement of claim that the lease was to be assigned at market value – where plaintiff pleads in reply that the lease was to be assigned to a certain entity for not less than $1.2 million – whether the allegation made in the reply is inconsistent with the allegation in the statement of claim

 

Adjustment of lot entitlements in contribution schedule – Body Corporate and Community Management Act 1997, sections 47, 48 and 49 – Commercial and Consumer Tribunal Act 2003, section 48

Real property – valuation of land – objections and appeal – hearing – costs – where the appellants appealed against a decision of the Land Court – where the appellants were successful on appeal – where the appellants seek an order for part of the costs of the appeal and the whole, or alternatively, part of the costs at first instance – where 2008 amendments to the Valuation of Land Act 1944 (Qld) affect the costs of appeals – whether costs should be awarded

Water licence – application – appeal against review decision of volume granted – nature of appeal – hearing to the Land Court de novo – but with same powers and restraints as for chief executive – hearing to Land Appeal Court rehearing on record below

Water licence – criteria to consider granting – Water Act 2000 and Water Resources (Barron) Plan 2002 – not sufficient evidence of efficient use – mandatory requirement – only need to balance all criteria if sufficient evidence of efficient use – appeal dismissed

Appeal – discretion – circumstances – where discretionary decisions of Court will be altered on appeal

Water licence – safeguards applicable to grant (conditions of approval, amendment, limited time) – only relevant if mandatory criteria first met

 

Procedure – Costs – Security for costs – other matters –where the appellants initiated proceedings against the respondent for compensation pursuant to s.722G of the Mineral Resources Act 1989 (Qld) – where the appellants sought an order in the Land Court that the respondent provide security for its costs in the event that the respondent’s claim against the appellants is successfully defended – where the learned Member declined to order security – whether the learned Member erred in finding it was far from certain that an order for costs would be made in favour of the appellants –whether the general rule that costs follow the event applies

Costs – acquisition of land – appeal against partial award of costs to constructing authority – “halfway rule” – proper criteria for award – whether conduct of claimant (in light of the advance paid) unreasonably forced constructing authority into litigation

Costs – acquisition of land – criteria for costs award where advance or offer to settle – different for offer to settle under Uniform Civil Procedure Rules – basis on which offer made, not amount, key factor in acquisition

Appeal – discretion – circumstances where discretion of lower court can be altered on appeal – central issue not properly considered by lower court – discretionary decision to award costs varied

 

Valuation – residual valuation method – unsuitable unless ripe for development

Evidence – expert opinion – application of Makita (Australia) Pty Ltd v Sprowles

Valuation – principle – Spencer v Commonwealth – does not assume a sale conditional on development approval

Declarations – application for – no need to deal with given valuation conclusion

 

Jurisdiction of Land Court under the Soil Conservation Act 1986 – application for declaratory relief – ss 5 and 33(1) Land Court Act 2000 - property owners whose farm management is said to be affected by a property plan under the Soil Conservation Act over an adjoining property.

 

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – CONSTRUCTION OF RULES – APPLICABLE PRINCIPLES – UNIFORM CIVIL PROCEDURE RULES 1999 – rule 292.

Counsel for the applicants submits that there can be no occasion for a mortgagee whether in possession or not and whether or not the mortgagor is in default to retain for its own benefit from the proceeds of sale of the security property a specific component paid in addition to the contractually agreed purchase price for GST.

REAL PROPERTY – STRATA TITLE – MANAGEMENT AND CONTROL – BODY CORPORATE POWERS DUTIES AND LIABILITIES – action by body corporate for unpaid levies, interest and recovery fees

 

PRACTICE – ACTION – SETTING ASIDE JUDGMENT – UNIFORM CIVIL PROCEDURE RULES 1999 – rule 476 (1) - If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the court directs – rule 476(4) - The court may set aside or vary any judgment or order obtained because of sub rule (1) on terms the court considers appropriate – whether any merits demonstrated by applicant

 

Costs - previous judgment dismissing the plaintiffs' claim and declaring that as defendants to the counterclaim they were liable to repay the sum of $276,453.82

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – JURISDICTION AND GENERALLY – where applicant sought by way of interlocutory orders that the respondents be restrained from undertaking or continuing further construction or development work on the land and from placing soil, construction or demolition waste or any other material on the land – where respondents carrying out unlawful activities on the land – whether there was a serious question to be tried – whether granting an injunction favoured the balance of convenience – whether the applicant would suffer irreparable injury if the relief was not granted