Legal Knowledge Matters

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January 2018 - June 2018

July 2016 - June 2017 July 2016 - December 2016 July 2015 - June 2016

January 2015 - December 2015

July 2014 - June 2015 July 2013 - June 2014 July 2012 - June 2013

July 2011 - June 2012 July 2010 - June 2011 July 2009 - June 2010

Publications
Media

Queensland Planning and Environment Court upholds condition requiring road dedication for a future road beyond the LGIP planning horizon as a lawful non-trunk infrastructure condition
The year in review: A look at the NSW waste industry in 2020
Queensland Court of Appeal refuses leave to appeal the Planning and Environment Court’s decision reinforcing the use of the Coty principle and the discretion to approve a development application despite inconsistency with a planning instrument
Bulky appearance of proposed commercial facility at Noosa, Queensland results in its refusal
Deletion of conditions requiring compliance with an acoustic report found to result in a substantially different development by the Queensland Planning and Environment Court
Costs under the Sustainable Planning Act 2009 awarded by the Planning and Environment Court of Queensland for a wholly unsuccessful case
The year in review - A look at NSW planning and environment law in 2020
Human rights considerations found to apply to Land Court of Queensland in making its recommendations on applications for a mining lease and environmental authority
Planning and Environment Court of Queensland holds that proposed changes to a development application for an extension to a landfill facility and waste transfer station were minor
Planning and Environment Court of Queensland determines two connected cases; a minor change application and an originating application relating to the minor change application
A search order in Queensland is extraordinary and not a mere investigatory tool
Supreme Court of Queensland holds that an electronic link is not sufficient to effect service of an application under the Building Industry Fairness (Security of Payment) Act 2017
The rise of jurisdictional facts and the challenge to the Coastal Management SEPP in Reysson v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281
Queensland Supreme Court dismisses judicial review challenges in respect of rating decisions for properties used to provide rental accommodation to permanent residents or itinerants
Development proposed for a historic and heritage residence built in Queensland, circa 1920, is refused
Land Court of Queensland finds that mining resource companies' activities said to cause loss did not satisfy the test of causation to warrant compensation
Jurisdictional facts: Supreme Court of Queensland considers whether the decision to grant a mining lease would be invalid if there was non-compliance with notice requirements under the Mineral Resources Act 1989 (Qld)
Queensland Planning and Environment Court allowed an appeal against the Development Tribunal's decision regarding a development approval for building work
Stay application against Queensland local government's original decision granted despite non-compliance with procedure, a lack of evidence and no explanation for delay
Court of Appeal sheds light on the operation of the infrastructure charges regime in Queensland
Planning and Environment Court holds that a tavern may remain open till 2 am in face of a local government argument that it should close at midnight
Section 11 of the Planning and Environment Court Act 2016 cannot be used to circumvent the Court's inability to make an enforcement order under section 180 of the Planning Act 2016
Contempt of Court: Planning and Environment Court finds respondents in wilful contempt of a Court Order after using a tub grinder to remove wood stockpiles
Supreme Court declares resumption application void
Court finds that development is not "consistent " with a prior approval and is prohibited
Proposed development that complies with a local government's planning scheme refused by the Planning and Environment Court
Decision not to include a Key Resource Area in the State Planning Policy held to be a decision that cannot be subject to judicial review under the Judicial Review Act 1991
Public interest embodied in the Planning Scheme is relevant to a consideration of whether a sufficient ground is sufficient
Proposed offset insufficient to overcome conflict with the assessment benchmarks
Concrete batching plant use not abandoned despite lengthy period out of operation
Court of Appeal overturns Planning and Environment Court decision and requires Council to collect charges in accordance with the current infrastructure charging regime
Need for a shopping centre outweighs the requirement that the development be "small-scale"
Proposed child care centre use in a flood-prone area held to be inconsistent with planning controls
Change application for change of mind? The Queensland Planning and Environment Court says no
Planning and Environment Court finds that permanent residential accommodation in a tourist resort would significantly conflict with the deliberate planning strategy to avoid the co-location of incompatible uses
UK Supreme Court confirms that a promised community benefit fund donation is not a material consideration when granting a planning permission
Planning and Environment Court sets aside a decision to refuse a development application for the demolition of a pre-1946 dwelling
Planning and Environment Court allows appeal against local government's decision to refuse a development application because it would be inconsistent with the intended settlement pattern set out in the planning scheme
Planning and Environment Court allows appeal against a refused development application
Temporary use licences are a new statutory mechanism allowing businesses to operate under changed development conditions in response to COVID-19
Planning and Environment Court finds that the architectural and engineering merit of a development warranted approval despite technical non-compliance with the Gold Coast City Plan and the absence of a planning need
Local government successfully seeks the joinder of a third party and a joint hearing in relation to a long running enforcement proceeding
Indefeasible title trumps public rights in land dedicated at common law as public roads
Emergency health crisis calls for emergency planning powers – State Government of Queensland has amended the Planning Act 2016 and the Economic Development Act 2012 through the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020
Déjà vu? – Court of Appeal considers substantially the same application for leave to appeal as it did in 2007
Land Court finds no compensation payable for access to mining leases
Planning and Environment Court refuses submitter appeals against the development of centre activities on rural residential land and states again the need to read a planning scheme as a whole
Withdrawal of an enforcement notice by a local government results in an award for costs against the local government
Noisy children held not to be a disturbance if the impacted area is part of the same development as that which generates the noise of the children
Deficient systems and practices relating to cultural heritage lead to the prosecution of a local government
Traditional building saved from demolition: Planning and Environment Court has refused an appeal to approve the demolition of a house built in 1946 or earlier
Wednesbury Unreasonableness – an historical showcase of the principle
NSW authority bound by contract to give developers a seat at the negotiating table
Planning and Environment Court refuses an application for costs as the Council failed to establish that the Applicant Appellant did not contravene section 457(2)(a) of the Sustainable Planning Act 2009
Planning and Environment Court refuses two related appeals against approval of a proposed development for a local centre in Brisbane’s north
Planning and Environment Court finds that modifying a property boundary alignment constitutes a minor change
Tenant restrained: the Planning and Environment Court makes orders to remedy and restrain a tenant from committing further offences under the EPA due to non-compliance with an EPO in response to a major tyre fire
Planning and Environment Court applies discretion to revive lapsed development approval
Weighing "Relevant Matters": Planning and Environment Court gives guidance as to the appropriate weight to be given to relevant matters under the Planning Act 2016
A Local Government seeks declaration regarding non-compliance with the Building Act 1975 and the Planning Act 2016
Still Standing - Planning and Environment Court refuses to re-enliven a lapsed demolition approval for a pre-1947 house as the Applicant failed to make an application to extend the currency period of the demolition approval
Queensland Court of Appeal allows an appeal against an interlocutory decision of the Planning and Environment Court to refuse a stay of a proceeding pending the final determination of a criminal proceeding
No leave required: Planning and Environment Court holds that leave is not required to rely on additional issues not included in an assessment manager's decision notice
Recap of recent developments in NSW compulsory acquisition law
High Court of Australia determination on the applicability of limitation periods under the Limitations of Actions Act 1974 to local government recovery of overdue rates and charges claim
Extension applications under the Planning Act 2016: Planning and Environment Court for the first time considers the statutory regime under the Planning Act 2016 relevant to an extension application for a development approval
Failure to comply with an enforcement order results in punishment for contempt
Who has a right to make a complaint? District Court of Queensland dismisses an appeal that sought to stay a prosecution with respect to offences committed under the Environmental Protection Act 1994
Brisbane City Council to pay costs of appeal in defence of an enforcement notice
Planning and Environment Court allows application to broaden the issues in dispute to consider new and significant information in a joint expert report
A change application for a development approval was refused by the Planning and Environment Court as the proposed change would likely result in a substantially different development
Planning and Environment Court orders the Respondents to comply with conditions of a development permit, including the payment of $1.14 million in outstanding infrastructure contributions
Payment of an infrastructure contribution may cause "irreparable harm” – Planning and Environment Court stays a previous order that the Respondents pay a $1.14 million infrastructure contribution
Waste of time and money: Planning and Environment Court vacates orders regarding a costs hearing as a consequence of a stay on enforcement orders pending the outcome of an application for leave to appeal to the Court of Appeal
Planning and Environment Court grants two applications for a minor change in relation to two proposed developments as the changes would not result in a substantially different development
Land Court of Queensland does not err in its decision to recommend an environmental authority for a mine and haul road
Planning and Environment Court determines a dispute between parties who cannot agree to the form of the draft orders which were to be used to progress a proceeding to a hearing
Not enough interest: Court of Appeal reverses the decision of the Planning and Environment Court to approve a service station and retail uses despite conflicts and finds that establishing a need for the proposed development was not sufficient to justify the approval
Planning and Environment Court considers the criteria for determining whether to allow a question to be heard separately to the hearing
Supreme Court finds that a Councillor had not engaged in misconduct in refusing to leave the Council chambers
Planning and Environment Court decision regarding the invalidity of infrastructure charges notices reversed by Court of Appeal
The importance of an adequate EIA: the United Kingdom Court of Appeal has quashed the United Kingdom Planning Court's decision to uphold the grant of a planning permission for an intensive poultry farm due to an unlawful EIA
Planning and Environment Court allows non-compliant development application to be remitted back to public notification stage
Two courts, same issues, but not vexatious: the Planning and Environment Court has refused to strike out an enforcement proceeding regarding alleged unlawful development even though the matter is also to be heard in the Supreme Court
Appeals against infrastructure notices under the Sustainable Planning Act 2009 have been upheld
Court determines a submitter's proposed condition to be unlawful and unreasonable
Planning and Environment Court finds no unlawful increase in the number of residents in a backpacker hostel and sets aside enforcement notice
Planning and Environment Court has ordered a local government respondent to an appeal to pay an applicant appellant's costs under section 60(1)(b) of the Planning and Environment Court Act 2016
Planning and Environment Court confirms a decision to refuse a development approval for a child care centre and sets out the assessment and decision framework for impact assessable development under the Planning Act 2016
Does "assistant" and "delegate" have the same legal effect under Native Title legislation? The Full Court of the Federal Court reverses the affirmative decision of the Federal Court.
Local government determined to not have a duty of care in its planning guise after a member of the public developed a psychiatric injury due to a fatal accident in a carpark
A Council's failure to provide sufficient particulars in an enforcement notice has caused an enforcement notice to be set aside and an originating application to be dismissed by the Planning and Environment Court
Court of Appeal finds error in law in the interpretation of "essential management" under the Sustainable Planning Regulation 2009
Planning and Environment Court has approved the demolition of a dwelling house constructed pre-1946 as the dwelling house and streetscape lacked a traditional character
Planning and Environment Court has approved the reconfiguration of a lot and repositioning of a pre-1947 dwelling despite conflict with the Brisbane City Plan 2014
Planning and Environment Court has allowed an application to revise a development application for a preliminary approval on the basis that it was not a "substantially different development"
In confidence - the Office of the Information Commissioner rejects an application for the disclosure of a without prejudice letter
No third party rights for an adjoining landowner seeking to be joined as a party to an originating application seeking to extend the currency period for a lapsed development approval
Infrastructure planning and charging framework under the Planning Act 2016
Queensland Court of Appeal dismisses appeal against an order of the Planning and Environment Court in pipeline remediation matter
Planning and Environment Court clarifies rules of service relating to an originating application
Planning and Environment Court dismisses a submitter appeal against a development approval for the redevelopment of an existing retirement facility
Supreme Court of South Australia finds that compensation for the acquisition of land does not extend to non-economic loss
Land Court has found that a request by expert witnesses for further information was justifiable after a mining company's refusal to provide the relevant information
Land Court finds that an outpatient operation is not a reasonable excuse for not filing a notice of appeal within the appeal period
Queensland Court of Appeal clarifies code assessment under the Planning Act
Planning and Environment Court has refused a proposed development for an office for the reason that it was in severe conflict with the Planning Scheme and there was no "relevant matters" to justify the approval of the proposed development
Commercial groundwater extraction use refused as a result of conflicts with the planning scheme and an absence of sufficient grounds to justify approval despite the conflicts
Claim for damages for trespass and nuisance in relation to a sewer main rejected by the Supreme Court
Measuring an acceptable dwelling height is not "purely numerical or quantitative"
Landowner's consent and development applications - what is necessary?
Climate change, greenhouse gas contributions and the case on the Rocky Hill Coal mine
Previous case requires the Planning and Environment Court to reconsider available power to excuse non-compliance with the Sustainable Planning Act
"Close enough not good enough" in the Queensland Court of Appeal: notice must be issued by a duly authorised representative or signatory of the claimant
Planning and Environment Court finds that the Court is the "responsible entity" to decide a minor change application even when the contested conditions were imposed by a referral agency
Developer's negligence claim against a local government and town planner is amended and avoids summary judgment
Planning and Environment Court finds that proposed changes would not cause a substantially different development
In the mix: Court upholds Council's decision to approve a quarry and concrete batching plant on rural land
Planning and Environment Court finds no support for conditions requiring environmental protection measures on land not mapped as environmentally significant
Planning and Environment Court does not find sufficient grounds to support approval of an "opportunistic" Bunnings Warehouse
Court of Appeal upholds the Supreme Court's decision requiring a purchaser to pay $5 million in damages for a breach of contract
Land Appeal Court dismisses an appeal against the categorisation of land for rating purposes
Land Court looks closely at impacts of mining lease to determine compensation
Extension for lapsed development permit garners no opposition
Court of Appeal considers whether the Peaceful Assembly Act 1992 grants immunity for breaches of a local law
Human Rights Bill for Queensland: How the Bill will impact local governments
Court of Appeal overturns a declaration regarding the effect of certain provisions in the Springfield Structure Plan and transitional provisions under the Sustainable Planning Act 2009
Court of Appeal overturns a declaration regarding the effect of certain provisions in the Springfield Structure Plan and transitional provisions under the Sustainable Planning Act 2009
Council did not owe a purchaser of land a duty to take reasonable care in the issuing of a limited planning and development certificate
Court refuses a residential subdivision proposed close to a poultry farm due to reverse amenity concerns
Court allowed an appeal against a decision to refuse a development application for a combined service station finding sufficient grounds to support an approval
Planning and Environment Court confirms costs do not automatically follow success
High Court confirms that subsequent owners of reconfigured land are bound by the conditions of a development approval made prior to reconfiguration of the land
There were sufficient grounds to approve the continued use of non-resident workers' accommodation in a residential zone despite its conflicts with the Chinchilla Shire Planning Scheme 2006 and Western Downs Planning Scheme 2017
Planning and Environment Court upholds Council's refusal of a development application to convert a public park into a shopping centre carpark to address a history of anti-social behaviour
Proposed service station in the Open space and environmental protection zone is approved by the Planning and Environment Court, despite conflicts with the planning scheme
Planning and Environment Court dismisses a development application for a poultry farm consisting of 700,000 birds in the Somerset Regional Council
Breach of permissible height limit under the Brisbane City Plan 2014 proves fatal to the approval of a multi-unit development in a traditional single unit dwelling locality
Visual amenity impacts trump any prospective need resulting in the refusal of a proposed service station
Planning and Environment Court dismisses submitter appeal for a mixed use development despite conflicts with the Maroochy Plan 2000
Existing Queensland Government policies which provide local governments with powers in respect of waste management are set to expire and now is the time to transition waste management to local laws
Planning and Environment Court has discretionary power in considering whether to grant an extension to the currency period under section 388 of the Sustainable Planning Act 2009
Planning and Environment Court approves a permissible change to remove internal access road
Queensland Government proposes significant reforms to the financial assurance and rehabilitation framework for resource activities
Planning and Environment Court details the process and considerations for a minor change application made to the Court under the Planning Act 2016
Even if an entity is an "entity directly affected" by a permissible change request, there is no standing before the Planning and Environment Court
Planning and Environment Court found not to be the responsible entity for a change application
Planning and Environment Court declares non-compliance due to electronic error during public notification
Supreme Court of Queensland finds Council's utility charges for water services to be invalid due to failure to comply with legislative requirements and failure to exercise power to levy utility charges in accordance with the Local Government Act 2009
Land Court recommends approval of an application for a mining lease and environmental authority for the Kevin's Corner Mine in the Galilee Basin
Land Court refuses an application for disclosure of a document expert
Planning and Environment Court fines campground operators for contempt of court for continued unlawful use of land
Planning and Environment Court awards costs after relevant development application is withdrawn
Land Court dismisses appeal where evidence did not involve true comparable sales
Land Court dismisses appeal against Valuer-General's decision and reinforces the legal test of land value
Building and Development Committee decision incorrectly focussed on procedural requirements instead of reasonable and relevant plumbing requirements
Increases in built form are relevant to whether there is a material change of use even where the nature of the use is unchanged
Land Court dismisses an appeal challenging the Council's rating categorisations
Court of Appeal dismisses claims of procedural unfairness and upholds validity of Environmental Protection Order
Lapsed development approval revived where Applicant misunderstood effect of related approvals
Planning and Environment Court re-enlivens a lapsed development approval where the relevant Council was not opposed the re-enlivening
Planning and Environment Court considers the full extent of a development approval in declaring that the demolition of part of a pre-1946 dwelling, which in isolation would have been exempt development, was not in fact exempt development
Adaptive reuse of heritage building Athol Place a powerful ground in support of proposed commercial development
Proposed onsite relocation of heritage structure refused due to removal of front garden
Development approval for building work thwarted by failure to obtain consent from parties benefitting from easements on the land
The clear and significant need for a shopping complex, coupled with the unlikely prospect of that need being met other than in the increasingly congested Maroochydore Centre, justified approval of the development despite being in conflict with the Maroochy Plan 2000
Planning and Environment Court finds insufficient grounds to support the approval of an out of centre development involving a shopping centre
Federal Court dismisses challenge to the Environment Minister's decision to approve Carmichael Coal Mine
Adani's coal export terminal at Abbot Point to progress after unsuccessful challenge to the environmental authority
Supreme Court finds that the usual rules as to costs applies despite the public interest character of the proceeding
Planning and Environment Court refuses to join Queensland Rail as a party to an appeal concerning a condition requiring works on land leased by Queensland Rail
Planning and Environment Court awards costs against the Council following an unsuccessful joinder application
Costs ordered in circumstances where an appeal was neither frivolous nor vexatious, however the Appellant's conduct caused the Valuer-General unreasonable trouble and expense
Land Court of Queensland refuses to strike out one claim for compensation but prevents another after finding an estoppel
No Council resolution required to incorporate other information into rating categories
The Court approves a permissible change application
A substantial change to a development application does not necessarily result in a substantially different development
Reduction in intensity does not result in a substantially different development
Court declares changes to a development application are a minor change
Court found permissible change request made to incorrect entity
Appeals of land valuation decisions are only concerned with the appropriate valuation of the subject site and cannot call into question all valuations within the site's area
Court dismissed preliminary legal issues of lack of owner's consent and futility raised by a commercial competitor
Multiple dwellings, maximum allowable gross floor area and transferable development rights in the City Centre neighbourhood plan
Court found incorrect determination of assessment level rendered development approval invalid and of no effect
There was no "overlapping" evidence to justify a single hearing

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