Shared Knowledge – Page 2

We regularly distribute updates to our clients and contacts on specialised areas of law.

Please contact us if you wish to be added to the distribution list for these newsletters. The information is accurate at the time of writing but the law may have changed. You should treat this information as general advice only and seek specific advice for your particular circumstances.

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Appeals filed after the commencement of the Planning Act 2016

On 30 April 2018, Her Honour Judge Kefford DCJ delivered her Judgment in Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21. The Issue One of the primary issues in this case was whether the decision making regime under the Sustainable Planning Act 2009 (SPA) or the Planning Act 2016 (PA) applies, in respect of a development application that was: lodged while the SPA was in force; decided after commencement of the PA; and the subject of an appeal filed after commencement of the PA (on 3 July 2016). Both parties accepted that pursuant to section 311(4) of the PA, the administrative steps/process applicable to the appeal…

The Blue Dot

Protected Plants Flora Survey Trigger Map There has been a spike in “blue dot” enquiries on vegetation mapping. Numerous requests have been raised about the “high risk area” trigger map under Nature Conservation Act 1992 (“NCA”) and Nature Conservation (Wildlife Management) Regulation 2006 and interactions with the Property Maps of Assessable Vegetation (PMAV) under the Vegetation Management Act 1999 (“VMA”). Interaction…

Validity of Infrastructure Charges Notices

A recent decision of the Planning and Environment Court may have implications for the validity of Infrastructure Charges Notices (ICNs) issued by Council under the Sustainable Planning Act 2009 (SPA), and, to a lesser extent, the Planning Act 2016 (PA). On 4 May 2018, Her Honour Judge Kefford DCJ published her decision in Sunland Group Ltd & Sunland Developments No.22 Pty Ltd v Gold Coast City Council [2018] QPEC 22. In these proceedings, Sunland Group Ltd and Sunland Developments No.22 Pty Ltd (Sunland) sought declarations regarding the validity of five ICNs issued to Sunland Group Ltd, which notices were issued contemporaneously with decision notices granting development permits for material…

Vegetation Management

If the State of Queensland representing the people of Queensland decides to protect the natural vegetation based upon good science, then the current vegetation management regime is ineffective. Governments of different political persuasions take different views in relation to what ought to be protected and how it ought to be protected. A bipartisan approach to vegetation management is needed. Since the commencement of State vegetation management legislation, the frequency of change to accommodate different policy approaches has failed both conservation and commercial interests. Natural cycles of vegetation growth and regrowth cannot be accommodated during one political party’s term/s in office. The nature of the vegetation growth and regrowth is not secured over time and the environmental…

Airbnb

The debate is ongoing in relation to holiday and permanent use of accommodation. In New South Wales the state government and councils have vacillated from trying to regulate Airbnb accommodation to not regulating it.

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 allow premises to be used as bed and breakfast without Council consent and this applies across NSW.”

In Waverley – another popular Sydney Airbnb hang out – short term renting is not allowed without prior approval from the council.

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“If council receives a complaint about a property being used for short term

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Roads – A Public Right of Passage

There needs to be an accord between community and government when considering the use of roads. There has been an abject lack of accord in some local government areas recently, and community meetings and open forums can be a positive attempt to advance agreement. An understanding of the common law basis of roads and the statutory variations to the common law may lead to a better appreciation of the need for an accord. That understanding may lead to a clearer consideration of questions like those following: Whose responsibility is it to mow the footpath? Can you plant a tree on the footpath? Can you construct the pathway across the footpath to your property boundary? Can you hold a sporting event on a road? Do you need permission from Council or someone else? COMMON…

Verdant Verges

The Sunshine Coast Regional Council has recently become embroiled in a turf war over footpath planting. Its response is to provide a Permit Application process under the local laws. This may not be the right process. Development is defined in the Planning Act 2016 and includes “operational work” which is:

operational work means work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises. (Underlining added)

It is important to note that there must be a “material” affectation. Materiality must be considered in the context of the use. At common law the use of a road is for a “right of passage”. That…

Local Law Signs

The use of signs by local government is an appropriate mechanism to inform people of appropriate conduct in accordance with the Council’s local laws. The model local laws applied in Queensland require local governments to take reasonable steps to provide notice to members of the public and variously defines “reasonable steps”. By way of example: reasonable steps include, as a minimum, the display of a notice at a prominent place within the dog off-leash area indicating the extent of the area. reasonable steps may include the display of a notice at a prominent place within each local government controlled area for which a declaration under subsection (1) (b) has been made, stating- if the declaration relates to the whole area-the restricted…

A Load of Rubbish

1 July 2018 is the cut-off date for local governments to introduce local laws to replace the State government waste management laws that will expire on that date.1 Time is running out for local governments to meet all of the obligations of the local law making process prior to the cut-off date.2 The state government waste management laws that are to expire form the basis for local governments to control waste collection within their local government areas in “waste collection areas”.3 Without that control domestic and commercial curbside waste collection services could be undertaken at the behest of each individual owner or occupier of premises without regard to Council. It is likely that local governments that have entered into contracts with…

Aboriginal Cultural Heritage: More than Dots on a Map

A recent decision in NSW highlighted the importance of undertaking a proper assessment of Aboriginal cultural heritage in order to obtain development approval for a project. In Darkinjung Local Aboriginal Council & Ors v Minister for Planning & Infrastructure Anor [2015] NSWLEC 1465 the NSW Land and Environment Court refused the extension of an existing sand quarry near Gosford. The proposal included the excavation of a 30m deep, 500m wide disturbance area. A number of significant sites were identified by Darkinjung Local Aboriginal Land Council (Darkinjung). These sites were: a rock engraving…

Free, Prior and Informed Consent

The United Nations Declaration on the rights of Indigenous peoples includes in Article 19 a fairly narrowly focused requirement for States to obtain free, prior and informed consent before adopting measures that may affect Indigenous peoples. The concept of free (with no coercion, intimidation or manipulation), prior (with the consent to be sought long enough before any activities are to take place to allow time for indigenous consultation and decision-making) and informed (including all necessary information such as the nature, size, term, environmental impacts including positive and negative consequences of them) consent is one that can be tailored by Aboriginal and Torres Strait Islander groups to ensure that there is effective decision-making on their lands and waters. The Native…

Taking Urgent Action to Protect Cultural Heritage

In Queensland, a developer, mining proponent or other infrastructure provider planning to undertake substantial development activities likely to cause ground disturbance will usually negotiate a Cultural Heritage Management Agreement or Plan with the relevant Aboriginal or Torres Strait Islander Party. But what can you do if this has not happened? What if you find mining, earthworks or development occurring and you know that there is no cultural heritage plan in place? What options do First Nations people have in Queensland to take urgent action to protect their cultural heritage? The answer is that a mix of practical and legal steps can be urgently taken. First and foremost it must be determined who is undertaking the work and they must be asked to stop immediately. You can…

Developing Northern Australia

In June 2015, the Australian Government released its first ever White Paper on developing northern Australia. It states: a strong north means a strong nation. Included in it are 2, 5, 10 and 20 year implementation plans. The paper provides that the Commonwealth Government will address challenges to development by: Making it easier to use natural assets, in close consultation with, and the support of, Indigenous communities: Providing a more welcoming investment environment; Investing in infrastructure to lower business and household costs; Reducing barriers to employing people; and Improving governance. It also states that the Commonwealth will work with the Indigenous communities to simplify and modernise land arrangements…

Principles of Extinguishment in light of WA v Brown [2014] HCA 8 (12/03/14)

The High Court has recently addressed the issue of common law extinguishment. Its decision in Western Australia v Brown [2014] HCA 8 (Brown) provides guidance about the extinguishment of native title rights and interests where the Native Title Act 1993 (Cth) does not apply (generally, for acts done before 1975). Brown concerned two mining leases granted by the State of Western Australia in 1966 and 1974. The primary question for the Court to decide was whether the leases wholly extinguished native title. The Court found that they had not on the basis that the leases did not grant the lessees a right of exclusive possession. This means that these leases are effectively in the same legal…

Employment and Training – Mining Agreements

There has been a lot of emphasis lately on promoting Employment and Training Programs as part of right to negotiate agreements. For several decades there have been ineffective mining agreements, with parties agreeing to try to “maximise employment” but with little or no steps on how to achieve that. In our experience, successful Employment and Training Programs for large projects require: Targets – they should be set at a level that can be reached so long as the items below are carried out. They should not be too easy to achieve, but require all parties to work constructively to reach them. Once reached, they can be raised; Commitment – this should include a binding agreement for the life of the project so the parties can’t walk away if reaching targets…

One Simple Step to Protecting Aboriginal Cultural Heritage

One of the very simple steps Traditional Owners can take to protect their cultural heritage is to register sites on Queensland’s Cultural Heritage Database. The database was established under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) in part to help those parties who propose development to identify any cultural values in a particular area. A site on the database might be the location where items of cultural significance were located during a site survey, or it might be the location of culturally significant area such as a story site or a women’s place. Importantly, access to culturally significant information can be restricted so that people searching the database do not view sensitive information. Registration on the database does not of itself mean the…