In the media
Commonwealth
During COVID-19 crisis, one type of commercial property
stands above all others
News of tenants across different sectors requesting rent
relief will likely see investors gravitate toward an asset where
the state or federal governments are a tenant (08 May 2020).
More...
Micro-weddings and private dining rooms: How Australian
hotels are adapting during coronavirus
Australia's struggling hotels are going all out to
innovate in order to stay in business, converting serviced suites
into residential apartments or temporary offices, allocating beds
for the homeless and offering special isolation packages with
reduced prices for long-term stays (07 May 2020).
More...
Catalyst infrastructure fund proposal
The Property Council, Urban Development Institute of
Australia and Housing Industry Association have written to the
Minister for State Development, Manufacturing, Infrastructure and
Planning to advocate for a new approach to catalyst infrastructure
funding (06 May 2020).
More...
How will buildings adapt to the new realities of
home?
As the world has responded to COVID19, working life has
instantly shifted from offices and co-working to working from home.
This will change the way we design and use our workplaces, schools
and homes. While we expect the physical changes to offices and
classrooms to happen over time, the changes to our homes could be
far more rapid (29 April 2020).
More...
A sensible step to support housing construction
The Property Council of Australia has called on state and
territory governments to consider housing and display home
inspections as they look at easing social distancing restrictions
(29 April 2020).
More...
New standard to transform Australian homes of the
future
An ambitious new standard for Australian homes will help
drive the transformation of the housing market to ensure new homes
are built to a higher standard which is focused on health,
resilience and net zero energy (07 May 2020).
More...
KPMG: Potential economic pay-off of a circular economy
for Australia
A circular economy could deliver Australia a $23 billion
GDP boost by 2025, according to a new report produced by KPMG.
Commissioned by the CSIRO, Potential economic pay-off of a circular
economy for Australia investigates the potential economic effects
of circular opportunities in three key sectors of interest: Food,
Transport and the Built Environment (07 May 2020).
More...
AHURI: Trends show that home ownership is unlikely to
increase in the future
The research suggests that while no single policy failure,
single political decision or single market or state failure has
eroded the ability to achieve the ownership dream, the change has
come from complex shifts throughout the entire institutional
environment. (07 May 2020).
More...
March housing finance numbers a high tide mark
The March 2020 Lending to Households and Business figures
released today by the Australian Bureau of Statistics show the
value of loans for housing continued to increase, albeit at a
slower rate, with the increase being driven by owner occupiers,
according to the Real Estate Institute of Australia (REIA). (06 May
2020).
More...
A good old-fashioned commercial property crisis could
wreck recovery
History shows that trouble in commercial property ends up
roiling the broader economy. That sector is facing both a pandemic
shock and longer-term changes that could smash investment plans (30
April 2020).
More...
If more of us work from home after coronavirus we'll
need to rethink city planning
If, as some expect, people are likely to work from home
more often after the pandemic, what will this mean for
infrastructure planning? Will cities still need all the
multibillion-dollar road, public transport, telecommunications and
energy projects, including some already in the pipeline (28 April
2020).
More...
Fast-tracked planning for the coronavirus recovery: Can
triage help?
Fast-tracked planning approvals could accelerate the low
carbon transition, fix social problems and boost the economy at the
same time. Western Australia and NSW are using State Emergency
powers to accelerate planning decisions and to extend planning
permissions already granted but not yet started due to the lockdown
(27 April 2020).
More...
Victoria
Making rebuilding easier for bushfire affected
Victorians
Under the new streamlined process, applications to rebuild
dwellings or businesses damaged or destroyed by bushfire after 1
January 2019 will be exempt from some planning requirements –
meaning permit applications can be assessed much faster (06 May
2020).
More...
Planners say pandemic shows farmland on city fringes is
crucial
Melbourne has withstood the pandemic by feeding itself on
largely locally grown foods from here and interstate. But for how
long if urban sprawl continues (06 May 2020).
More...
Free mediation service for commercial tenancy
disputes
The service is provided through the Victorian Small
Business Commission and is part of the Government's commercial
tenancy relief scheme. Regulations to deliver the scheme come into
effect, implementing the commercial tenancy principles agreed by
the National Cabinet (01 May 2020).
More...
NSW
Green light for thousands of new homes thanks to
fast-tracked approval
More than 3,000 new homes, a new primary school and town
plaza in Sydney's North West have been given the green light,
with the NSW Government approving the concept plans for Ivanhoe
Estate (03 May 2020).
More...
Fast tracking projects key to economic recovery
Property Council of Australia has today welcomed the NSW
Government's announcement of the first tranche of 24
fast-tracked projects providing nearly 9500 jobs, $7.5 billion
worth of investment and 4400 new dwellings to drive the recovery of
the NSW economy (28 April 2020).
More...
Queensland
Further stop order for the Broadway Hotel
Environment Minister Leeanne Enoch has issued an eighth
Stop Order under the Queensland Heritage Act, preventing any
demolition that would impact the heritage significance of the
Woolloongabba's Broadway Hotel, ensuring the heritage-listed
building is protected as essential repairs (08 May 2020).
More...
Major Qld shopping centres to go green as part of
ground-breaking partnership
Five major shopping centres in Australia, including four
here in Queensland will soon have solar panels covering their
entire roofs as part of the first phase of a new partnership to
deliver 15MW of renewable energy (06 May 2020).
More...
PCA: Priority development area updates
Economic Development Queensland have made some key
announcements pertaining to Priority Development Areas in
South-East Queensland for Woolloongabba Cross River Rail, Ripley
Valley PDA and Oxley PDA (30 April 2020).
More...
Queensland's residential developers upbeat despite
headwinds
Keep calm, and communicate: That's the general
consensus from some of Brisbane's private residential
developers on how to manage the uncertainty surrounding the impact
of the coronavirus pandemic (30 April 2020).
More...
H&F Property gets green light for controversial
tower
Developer H&F Property plans for a controversial
14-storey tower in Palm Beach at Gold Coast were conditionally
approved during council's first round of meetings since the
election and Covid-19 restrictions started in Queensland (29 April
2020).
More...
State land rent waived for farmers, tourism and
clubs
More than 6000 farmers, businesses, tourism operators, and
community and sports clubs, won't have to pay state land rent
for six months (29 May 2020).
More...
First look: Queen's Wharf Brisbane River park
A suspended concrete platform will support a new 6,500sq m
park on Brisbane River as part of the $3.6 billion Queen's
Wharf development by the privately-owned Destination Brisbane
Consortium (29 April 2020).
More...
Fears some tenants will be 'picked off' amid
government's rent law changes
Some renters face uncertain futures, unsure if their
landlords' notices to vacate are legal given the state
government's new protections and reasons to vacate (27 April
2020).
More...
Published – articles, papers, reports
Australian home ownership: past reflections, future
directions
Terry Burke; Christian Nygaard; Liss Ralston; AHURI: 07
May 2020
The research examines the growth of home ownership and its tenure
dominance in Australia after the Second World War, together with
its fading, most notably for younger households (ages 25–44)
over the last four decades.
Citation: Burke, T., Nygaard, C. and Ralston, L. (2020) Australian
home ownership: past reflections, future directions. AHURI Final
Report No. 328. More...
In practice and courts
Commonwealth
SRO: Claim coronavirus land tax relief for
landlords
Residential and commercial landlords who provide tenants
impacted by coronavirus with rent relief and those unable to secure
a tenant because of the pandemic may be eligible for
a 25 per cent reduction on the property's 2020 land tax via My
Land Tax. For commercial landlords to be eligible, the property
must be rented to a tenant with an annual turnover of up to $50
million who is also eligible for the Commonwealth
Government's JobKeeper Payment (01 May 2020).
Announcements, Draft Policies and Plans released 2020
NSW
NSW Revenue: 2020 land tax COVID-19 relief -
guidelines
05 May 2020 - The NSW Government has introduced measures
to provide relief to commercial and residential landowners.
More...
NSW Revenue: COVID-19 (coronavirus) and gaming machine
tax
01 May 2020 – Gaming machine tax normally paid
between 1 March 2020 and 31 August 2020 is deferred to 1 September
2020.
More...
NSW Revenue: COVID-19 (coronavirus) and parking space
levy
29 April 2020 - As part of the NSW COVID-19 stage two
economic package, the NSW Government has deferred parking space
levy payments from the end of March for six months until 30
September 2020, to provide cash flow relief to businesses.
More...
Queensland
REIQ COVID-19 Update: Permissible real estate
activities
While in-room auctions and traditional open homes are
still not permitted in Queensland, some restrictions have been
eased as of 1 May 2020. The following real estate activities
outlined here are now permissible. For more information please
visit the
Queensland Health website, which has further details on
restrictions and exemptions for non-essential business (02 May
2020).
More...
Planning legislation amendments
Urgent amendments to Queensland's planning legislation
are now in effect to address concerns raised by a range of
stakeholders, including local government and industry, in response
to the COVID-19. Note: 06 May 2020 Amendments to Temporary Use
Licences (updated 30 April 2020).
More...
COVID-19 update on Courts, Commissions, Tribunals,
property law and criminal law
QLS will provide up to date information on their website
regarding the evolving COVID-19 situation and the response of the
Courts, Commissions, and Tribunals in Queensland. View further
key updates on information specifically relating to
property law.
Updated 06 May 2020 – includes Treasurer's determination
under Corporations Act 2001 – execution of company documents
and holding meetings available
here. The instrument is valid for 6 months from 5 May 2020.
Commercial and residential tenancies
QLS has prepared a
Frequently Asked Questions document for our members on the
recent changes to residential tenancies in Queensland, as outlined
below. The material and information in this document does not
constitute legal advice. QLS members are reminded that you can
contact the Solicitor
Assist program for free legal advice (28 April 2020).
Attendance for conveyancing settlements
The Titles Office continues to receive documents. The
Office of State Revenue is maintaining usual services. Social
distancing restrictions announced by the Government in the
Home Confinement, Movement and Gathering Direction (No 3) (01
May 2020) do not prevent settlements from occurring. Settlements
are not restricted by the
Non-essential business, activity and undertaking Closure Direction
(No.8) (01 May 2020).
State land rent relief – COVID-19 assistance
Under the proposed plans, the following categories of
leases, licences or permits will be eligible for a rent
waiver:
Category 11 (primary production); Category 13 (business); Category
14.2 (large sporting and recreational clubs with over 2000
members); Category 15 (communication sites); Category 16
(divestment i.e. industrial estates) (29 April 2020).
More...
Oxley priority development area master plan -
submissions
This will feature 80 residential lots, 10 hectares of
public open and green space, and a site for retirement and
community facilities, as well as supporting the relocation of the
Yuingi childcare centre. Submissions close 11 May via email.
More...
Consultation: Yeronga proposed development scheme for a
mixed-use precinct in the Yeronga Priority Development Area
(PDA)
The scheme establishes a planning framework to transform
the site and sets out intended land uses, development criteria and
infrastructure envisaged for the PDA. Submissions can be made
between 1 April and 17 May. More...
Brisbane City Council: Draft Central Park
masterplan
The draft plan is now out for public consultation
following the release of
five creative concepts from architecture and planning firms
last year. The Victoria Park concept plan is now open to the public
until April 28 on the Brisbane City Council's website.
Cases
196 Hawthorn Road Pty Ltd v Duszniak
[2020] VSC 235
REAL PROPERTY – restrictive covenant –
preliminary questions relating to proper construction of covenant
– not to erect any building other than one private dwelling
house of stated minimum cost without the consent in writing of the
transferor – transferor now deceased – whether power to
consent applied only to cost restriction – whether
restrictions became absolute or spent on death of the transferor
– principles of construction considered – Barport
Pty Ltd v Baum [2019] VSCA 167 – admissibility of
evidence of the existence and content of other covenants imposed by
the transferor in relation to the purpose of the restrictions
– Westfield Management Limited v Perpetual Trustee
Company Limited [2007] HCA 45; (2007) 233 CLR 528; Prowse
v Johnston & Ors [2012] VSC 4; Suhr v Michelmore
[2013] VSC 284; Clare v Bedelis [2016] VSC 381 –
consideration of previous decisions – Bell v Norman C.
Ashton Ltd (1956) 7 P & CR 359; In Re Beechwood Homes Ltd
application [1994] 2 EGLR 178; Briggs v McCusker [1996] 2
EGLR 197; Crest Nicholson Residential (South) Ltd v
McAllister [2003] All ER 46; Margerison v Bates
[2008] EWHC 1211; [2008] 3 EGLR 165; Churchill v Temple
[2011] 1 EGLR 73; Woodhouse v Woodhouse [2010] UKUT 235
(LC) – restrictions held to become absolute on death of
transferor – Property Law Act 1958 (Vic) s 84(2).
Wegner & Anor v Mayberry
[2020] VSC 239
REAL PROPERTY – caveats – application to
remove caveat under s 90(3) Transfer of Land Act 1958 (Vic) –
where defendant adduced no evidence to support interest –
where any interest of defendant had already vested in trustee in
bankruptcy – balance of convenience also favoured removal of
caveat – order for removal made – Transfer of Land Act
(Vic) s 90(3) – Chan and Wong v Liu and the Registrar of
Titles [2020] VSCA 28
COSTS – indemnity costs – where caveat lodged for
improper purpose – where caveat lodged in disregard of known
facts – order for indemnity costs made.
Omar Property Pty Ltd & Ors v Amcor Flexibles (Port
Melbourne) Pty Ltd (No 4) [2020] VSC
216
LANDLORD AND TENANT – tenant's breaches of lease
by performing structural works without a building permit –
tenant's failure to seek prior consent from landlord for works
- whether breaches of lease were remedied – default notice
– purported renewal of lease – Effect of Building Act
1993 (Vic) and Building Regulations 2006 (Vic) sch 8 item 4(a)(iii)
– whether landlord required not to unreasonably refuse
retrospective application for consent – whether consent was
refused unreasonably – Building Act 1993 (Vic) ss 4(1), 4(2),
16 – Building Regulations 2006 (Vic) reg 1801, sch 8 item
4(a)(iii) – Property Law Act 1958 (Vic) s 146(1).
Anderson v Holden Peel Projects Pty Ltd (Building and
Property) [2020] VCAT
538
Claim by apartment owner for damages arising from water
entering her apartment made against the builder and the Owners
Corporation – issues with expert evidence when multiple
authors of one report – Dura (Aust) Constructions Pty Ltd
v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99 –
VCAT Practice Note PNVCAT2: Expert Evidence – the causes of
the water entry – whether a breach by the builder of the s8
warranties under the Domestic Building Contracts Act 1995 –
whether conduct of Owners Corporation was in breach of s4(b)(i),
s5, s46 of the Owners Corporation Act 2006 – liability of
builder and Owners Corporation under s16 of the Water Act 1989
– heads of loss and damage – diminution in value of
property or rectification costs – claims in the nature of
personal injury – whether the Tribunal has jurisdiction
– logistics of hearing by video link.
Bennett v Estate of Talacko [2020]
VSCA 99
DAMAGES – tort of unlawful means conspiracy –
loss of opportunity damages – transfer of foreign properties
to impede recovery of anticipated judgment debt – loss of
opportunity to recover judgment debt against foreign properties
– chance of recovering judgment debt against properties by
succeeding in foreign proceedings assessed at 20 per cent –
whether judge's uncontested findings compelled assessment that
no, or lesser, chance of recovery – Sellars v Adelaide
Petroleum NL (1994) 179 CLR 332, applied – Malec v
JC Hutton Pty Ltd (1990) 169, considered – no error
shown – appeal dismissed
COURTS – judgments and orders – special leave to appeal
judgment refused – enforcement of judgment debt stayed
because of bankruptcy of judgment debtor – whether judgment
'final and unappealable' for purposes of foreign law,
notwithstanding stay – judgment 'final and
unappealable' – Talacko v Bennett [2017] HCA 15;
(2017) 260 CLR 124, considered.
Zekry v Zekry [2020] VSC
221
EQUITY & TRUSTS – common intention constructive
trust – joint endeavour constructive trust – financial
and non-financial contributions allegedly made by plaintiff towards
property – legal title to property held by defendant –
whether defendant's interest in property held on constructive
trust for the plaintiff – whether parties expressed a common
intention to hold properties for the benefit of the plaintiff
– whether common intention implied from parties' actions
– whether parties entered into a joint endeavour concerning
properties – Muschinski v Dodds [1985] HCA 78;
(1985) 160 CLR 583; Baumgartner v Baumgartner [1987] HCA
59; (1987) 164 CLR 137; Sivritas v Sivritas [2008] VSC
374; Australian Building & Technical Solutions Pty Ltd v
Boumelhem [2009] NSWSC 460; McDonald v Dunscombe
[2018] VSC 283; Imam Ali Islamic Centre v Imam Ali Islamic
Centre Inc [2018] VSC 413.
SMAV Nominees Pty Ltd v Bakal Enterprises Pty
Ltd [2020] VSC 203
CAVEAT – removal of caveat – caveat lodged by
person claiming interest under a resulting or constructive trust by
virtue of an alleged contribution to the purchase price –
caveat prevents sale of property and may effect sale price and any
potential settlement – caveat lodged without proper basis
– no prima facie case established – no adequate
interest in the property capable of supporting the caveat lodged
– Piroshenko v Gosjman, [2010] VSC 240; (2010) 27 VR
489; Carbon Black Pty Ltd v Launer [2015] VSCA 126.
Argyle Building Services v Franek
[2020] VSC 166
EQUITY – conspiracy – equitable fraud –
claim under Barnes v Addy principles - liability for
knowing receipt – liability for knowing assistance –
whether defendant received trust property – whether defendant
knew of dishonest and fraudulent design – whether funds
transferred in breach of fiduciary duty – whether loss
suffered – exercise of Mortgagees rights - Barnes v
Addy (1874) LR 9 Ch App 244 - Property Law Act 1958 (Vic), s
172
PRACTICE AND PROCEDURE – freezing order – arguable case
- risk of dissipation of assets – ex parte application
– requirements of proper disclosure – allegations
involving alleged dishonesty – Supreme Court (General Civil
Procedure) Rules 2015 r 37A.
Cobram & District Pony Club Inc v Muckatah
Recreation Reserve Committee of Management (Building and
Property) [2020] VCAT
529
LEASES AND LICENCES – contractual interpretation -
meaning of "Exclusive use" – exclusive possession
– lease or licence – sections 4, 8 and 17B of the Crown
Land (Reserves) Act 1978 (Vic).
Smogurzewski v AIT Investment Group Pty
Ltd [2020] NSWSC
490
LAND LAW – conveyancing – contract for sale
– off-the-plan purchase – purchase of home unit and
carspace – where home unit constructed as an adaptable unit
and carspace marked with symbol for disabled persons access –
purchaser rescinds contract under rule in Flight v Booth –
whether presence of symbol means that owner would not have
exclusive use of carspace or gave rise to risk of unauthorised use
– held that owner would have exclusive right to possess and
enjoy carspace – held that owner would have right to remove
or conceal the symbol – purchaser not entitled to rescind
contract – contract remains on foot – no warrant for
deposit to be returned to purchaser MISLEADING OR DECEPTIVE CONDUCT
– off-the-plan purchase of home unit and carspace –
purchaser not informed that unit would be constructed as an
adaptable unit and that carspace would be marked with symbol for
disabled persons access – not shown that at time of contract
vendor had that intention – no false or misleading
representations made by vendor – conduct of vendor not
misleading or deceptive or likely to mislead or deceive.
Bowman Development Corporation Pty Ltd v Young Forever
Property Pty Ltd (No 2) [2020] QDC
77
CONVEYANCING – BREACH OF CONTRACT FOR SALE AND
REMEDIES – VENDOR'S REMEDIES – SPECIFIC PERFORMANCE
– plaintiff as vendor agreed to sell real property to first
defendant as purchaser – earlier judgment entered against
first defendant specifically to perform, execute and complete
contract – first defendant did not complete contract –
plaintiff seeks order for specific performance against second and
third defendants as guarantors – second and third defendants
submit they do not have the financial resources to complete the
contract – whether evidence of second and third
defendants' inability to complete the contract is adequate
– whether an order for specific performance would be
futile.
Bowman Development Corporation Pty Limited v Young Forever
Property Pty Ltd [2020] QDC
73
CONVEYANCING – BREACH OF CONTRACT FOR SALE AND
REMEDIES – VENDOR'S REMEDIES – SPECIFIC PERFORMANCE
– plaintiff as vendor agreed to sell real property to first
defendant as purchaser – deposit paid – first defendant
failed to complete contract – plaintiff claimed order for
specific performance – plaintiff submits first defendant is
impecunious – plaintiff claims simultaneous order for
specific performance of guarantee by second and third defendants
– whether order for specific performance against first
defendant would be futile – whether order for specific
performance against the second and third defendants is
premature
GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE –
neither purchaser nor guarantors had performed contract –
whether orders for specific performance should be made against all
defendants – whether order should only be made against the
second and third defendants if the first defendant fails to comply
with an order for specific performance
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS
– COSTS – INDEMNITY COSTS – POWER TO ORDER
– first defendant did not oppose the orders sought –
defendants submitted a trial was still required in regard to the
second and third defendants – claim for interest and
equitable damages against the first defendant required a trial
– no contractual right to indemnity costs – whether an
indemnity costs order would be appropriate.
The Agile Wallaby Project Inc. v Department of Environment
and Science [2020] QCAT
121
ENVIRONMENT AND PLANNING – ENVIRONMENTAL IMPACT
ASSESSMENT AND APPROVAL – OTHER STATES AND TERRITORIES
– environmental assessment – impact upon release site
habitat relating to the large scale capture and translocation of
agile wallabies – application for damage mitigation permit to
undertake the translocation of agile wallabies – the
suitability of the habitat at the proposed release sites –
the staffing and financial capacity of an organisation to
undertaken the large scale capture and translocation –
whether applicant has the experience to undertake the large scale
translocation – whether there is a risk posed to the
translocated agile wallabies by the translocation generally –
whether the applicant poses a risk to the agile wallabies if a
damage mitigation permit is issued
EVIDENCE – MISCELLANEOUS MATTERS – RULES OF EVIDENCE
– ORDERS – public interest test – fit and proper
person test – rules of evidence – Briginshaw test
– onus of proof not required in administrative review
proceedings – what weight, if any, to be placed upon evidence
– public interest the balancing of interests including
competing public interests – applying a distinction between
public interest and a matter of public interest – the
interests of the public are distinct from the interests of an
individual or individuals – whether the applicant is suitable
to be issued with a damage mitigation permit –
appropriateness – value judgment to be exercised – the
seriousness of a person's conduct is a factor to be evaluated
by the decision maker – there is no precise meaning of the
term fit and proper.
Cases to 04 May 2020
GPS Power Pty Ltd & Ors v CS Energy Ltd
[2020] QSC 93
PROCEDURE – STATE AND TERRITORY COURTS:
JURISDICTION, POWERS AND GENERALLY – DECLARATIONS –
APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT –
OTHER CASES – where in SC 761/18 the applicant applied for
declaratory relief regarding the proper construction of clauses
contained within the Interconnection and Power Pooling Agreement
('IPPA') – where in SC 13392/17 the parties applied
for declaratory relief regarding the proper construction of the
IPPA with reference to the Upper Estimate and Lower Estimate
– where in both proceedings the parties also applied for
orders that certain paragraphs of the applications be
dismissed
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS
– COSTS – GENERAL RULE: COSTS FOLLOW EVENT–
PARTIAL SUCCESS – where the respondents in SC 761/18 and
applicants in SC 13392/17 submit that the other party pay 50 per
cent of the costs of the preliminary hearing assessed on the
standard basis – where the applicant in SC 761/18 and
respondent in SC 13392/17 submits that there should be no order as
to costs of the preliminary hearing – where it is submitted
that each party enjoyed success before the court – whether
the court should make an order for costs in relation to a
particular part of a proceeding
Civil Proceedings Act 2011 Qld s 10; Property Law Act 1974 Qld s
70; Rules of the Supreme Court 1900 Qld O 4 r 16, O 64 r 1A, O 54A;
Supreme Court of Queensland Act 1991 Qld s 10; Uniform Civil
Procedure Rules 1999 Qld r 10, r 681(1), r 684.
Ward & Anor v Commissioner of State
Revenue [2020] QSC
59
TAXES AND DUTIES – STAMP DUTIES – APPEAL, CASE
STARTED ETC – QUEENSLAND – where the appellants held a
joint interest in residential land in Queensland with two others
– where the other two joint interest holders sold their
interests to the appellants who purchased those interests jointly
– where a half interest in the land was transferred to the
appellants – where the appellants occupied the land as their
home both before and after the transfer – where the
respondent Commissioner assessed the dutiable transaction on the
basis that section 93 of the Duties Act 2001 (Qld) applied –
where the appellants objected to the respondent Commissioners
assessment on the basis that section 93 did not apply– where
the respondent Commissioner dismissed the appellants objection
– whether section 93 applied to the transaction – where
the Court found that ss 93(1) and 93(6) of the Act applied to
calculate the concessional amount – where the Court held that
the appeal be allowed.
Gold Coast City Council v Sunland Group Limited &
Anor [2020] QCA 89
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES
– RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER
CASES –– where one of the respondents purchased land at
Mermaid Beach – where the land was then subject to a
preliminary approval which had been granted by the Planning and
Environment Court under the now repealed Integrated Planning Act
1997 (Qld) ("the IPA") in 2007 – where the
preliminary approval made provision for the development of the land
by a multi-stage residential development – where the
preliminary approval made provision for contributions to the cost
of relevant infrastructure to be paid by developers to the
applicant – where those contributions were to be made under
planning scheme policies which had been made by the applicant under
a regime set out in the IPA – where those planning scheme
policies were expressed to be temporary measures – where
under the statute which now governs the development of this land,
namely the Planning Act 2016 (Qld) ("the Planning Act"),
there is no provision for a local government to make any further
planning scheme policy for infrastructure – where the
respondents say that the only infrastructure charges which can be
levied and become payable on the occasion of any development permit
issued for this land, are charges calculated by reference to the
planning scheme policies – where the applicant says that
infrastructure charges must be levied and paid, not according to
the policies, but pursuant to the regime for the giving of an
infrastructure charges notice under s 119 of the Planning Act
– where the Planning and Environment Court made declarations
in the respondents' favour – whether the primary judge
erred in finding in favour of the respondent
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION –
INTERPRETATION ACTS AND PROVISIONS – where the primary judge
found that the preliminary approval imposed a present obligation to
pay contributions at a later date – where, in 2011,
amendments to the Sustainable Planning Act 2009 ("the
SPA") introduced a new regime for local governments to recover
from developers their contributions towards the cost of
infrastructure which would be used by their development –
where s 880 of the SPA stated that a local government must not levy
certain infrastructure charges or impose a condition under a
planning scheme policy to which s 847 applies – whether the
effect of s 880 of the SPA was to prevent the Council from
collecting the contributions under the preliminary approval –
whether the primary judge erred in interpreting the preliminary
approval and s 880 of the SPA.
Fabcot Pty Ltd v Cairns Regional Council &
Ors [2020] QPEC 17
PLANNING AND ENVIRONMENT – APPEALS – appeals
against a preliminary approval for a Shopping Centre and Health
Care Services and a development permit for a Child Care Centre,
Service Station and Food and Drink Outlet and reconfiguring a lot
and operational work in the Low-medium density residential
zone
ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME –
whether the proposed development complies with the planning scheme
– whether there is a need for the proposed development
– whether the proposed development would compromise the
existing hierarchy of centres – whether there are relevant
matters which justify approval. Planning Act 2016 Qld; Planning and
Environment Court Act 2016 Qld.
Highgate Partners Qld Pty Ltd v Sunshine Coast Regional
Council [2020] QPEC
19
PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR
CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought
to change an existing development approval to change lot sizes and
create further sub-staging – whether the change is a minor
change – whether changes would result in substantially
different development – whether the changes were acceptable
– Planning Act 2016 Qld s 69, s 78, s 79, s 81, s 81A.
Redman v The Proprietors - Fairway Island
[2020] QDC 68
REAL PROPERTY – STRATA AND RELATED TITLES MANAGEMENT
AND CONTROL – BYLAWS – CONTROL OF OR RESTRICTION ON USE
OF LOTS – respondent passed a by-law that purported to
prevent lot owners renting out their lots for less than one month
at a time – respondent contended that pre-existing by-laws
had that effect – whether by-laws were within the scope of
the body corporate's powers – whether by-laws restricted
the devolution of lots by preventing an owner from leasing or
otherwise renting out lots on a short-term basis – whether
by-laws were valid
REAL PROPERTY – STRATA AND RELATED TITLES MANAGEMENT AND
CONTROL – BYLAWS – CONTROL OF OR RESTRICTION ON USE OF
LOTS – respondent passed a by-law that purported to prevent
lot owners renting out their lots for less than one month at a time
lots were permitted to be used for "residential purposes"
– whether the leasing or renting of lots on a short-term
basis falls within the scope of "residential purposes"
– whether by-laws valid
REAL PROPERTY – STRATA AND RELATED TITLES MANAGEMENT AND
CONTROL – BYLAWS – CONTROL OF OR RESTRICTION ON USE OF
LOTS – respondent passed a by-law that purported to prevent
lot owners renting out their lots for less than one month at a time
– whether by-law was unreasonable or oppressive
COURTS AND JUDGES – COURTS – OTHER MATTERS –
denial of natural justice – tribunal, having found by-laws to
be otherwise valid, did not give the appellants the opportunity to
call further evidence or make further submissions as to whether
by-laws were unreasonable or oppressive – whether procedural
fairness afforded to appellants – Building Units and Group
Titles Act 1994 Qld s 27, s 30, schedule 3
Uniform Civil Procedure Rules 1999 Qld r 745, r 765.
Legislation
Commonwealth
Corporations
(Coronavirus Economic Response) Determination (No. 1)
2020
05/05/2020 - This instrument modifies the
Corporations Act 2001 to enable Annual General Meetings to be run
electronically, and to enable electronic signatures to be used, to
address the impacts of the Coronavirus.
Clean
Energy Finance Corporation Investment Mandate Direction
2020
05/05/2020 - This direction updates the Clean Energy
Finance Corporation's Investment Mandate to facilitate the
introduction of the newly established Advancing Hydrogen Fund. It
repeals the Clean Energy Finance Corporation Investment Mandate
Direction 2019.
Queensland
Subordinate Legislation as made – 01 May
2020
No 61
Disaster Management (Further Extension of Disaster
Situation—COVID-19) Regulation (No. 2) 2020
The purpose of the Regulation is to further extend the period of
the disaster situation declared for the whole of the State of
Queensland on 22 March 2020 and extended by regulation on 2 and 16
April 2020.
Subordinate Legislation as made – 08 May
2020
No 65
Land (COVID-19 Emergency Response—Waiver and Deferral of
Rents and Instalments) Regulation 2020
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.
