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LKM Volume 11, 2013

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LKM Volume 11, 2013 Planning Government Infrastructure and Environment group Colin Biggers & Paisley's Planning Government Infrastructure and Environment group is the trusted partner of public and private sector entities, for whom we are the legal and policy designers of strategic and tactical solutions to exceptionally challenging problems, in our chosen fields of planning, government, infrastructure and environment. We have more than 50 years' experience of planning, designing and executing legal and policy solutions for large development and infrastructure projects in Australia, including new cities, towns and communities. We are passionate about planning, government, infrastructure and environment issues, and we pride ourselves on acting for both the private and public sectors, including private development corporations, listed development corporations, other non-public sector entities and a wide range of State and local government entities. The solutions we design extend beyond legal and policy advice, and represent sensible, commercially focused outcomes which accommodate private interests in the context of established public interests. Reputation Our Planning Government Infrastructure and Environment group has built long and trusted relationships through continuous and exceptional performance. We understand that exceptional performance is the foundation of success, and we apply our philosophy of critical thinking and our process of strategy to ensure an unparalleled level of planning, design and manoeuvre to achieve that success. Our group practices as an East Coast Team of Teams, known for its Trusted Partners, Strategic Thinkers, Legal and Policy Designers and Tacticians. Credo Our credo is to Lead, Simplify and Win with Integrity. Our credo means we partner by integrity, lead by planning, simplify by design and win by manoeuvre. Lead, Simplify and Win with Integrity Specialist expertise and experience Our Planning Government Infrastructure and Environment group is recognised for our specialist expertise and experience: Planning – Strategic and tactical planning of development issues and processes for projects, in particular major residential communities, commercial and industrial developments. Government – In-depth understanding of government legislation, policy and processes. Infrastructure – Specialist expertise and experience in infrastructure planning, funding and delivery. Environment – Legal excellence in all areas of environmental law and policy. Contents INDEX .................................................................................................................................. iii TABLE OF LEGISLATION ................................................................................................... vi TABLE OF CASES ............................................................................................................. vii Determining the "effective height" of a building for the purposes of the Building Code of Australia 1 Sufficient grounds despite a conflict with the planning scheme? 3 Failure to overcome conflict with the planning scheme 5 Overwhelming community interest in the future of planning in NSW 7 Integration of commercial and residential uses 9 Can cultural heritage significance be debated? 11 Development in critical habitat? 14 Is it a properly made development application? 16 Deemed refusal upheld by the court 18 Can non-compliance with public notification be excused? 20 Costs, natural justice and cartel provisions 23 Minor change of development application 25 Excusal of non-compliance with statutory requirements 27 Blow torch applied to land valuation system in NSW 31 Filling in the watercourse 32 Fetter on future exercise of council's discretion 34 Court's powers to extend the relevant period of a development approval 37 Permissible change allowed despite likelihood of submissions 39 Need for school outweighs loss of good quality agricultural land and conflict with Far North Queensland Regional Plan 41 From ecological sustainability to economic sustainability – What is the role of planning? 43 Unlawful earthworks 46 Construction of a town planning consent permit 48 Public need for a proposed development 50 Commercial competitors and liability for costs 52 Inconsistent use represents a significant conflict with the planning scheme 55 Use consistent with the planning scheme 57 Queensland infrastructure planning and charging framework review 59 Infrastructure planning and charging framework review 76 Is a letter to the community for litigation funding an abuse of process? 84 Are two "full line" supermarkets better than one? 86 Sufficient grounds for out of centre development 88 When will inadequate on-site parking be a killer point? 91 Queensland infrastructure planning and charging framework review – Commentary on DSDIP discussion paper released July 2013 94 LEGAL KNOWLEDGE MATTERS VOL. 11, 2013 | i Contents (cont'd) Infrastructure contribution powers under the Sustainable Planning Act 2009 114 Are requirements of service mandatory for the commencement of a valid appeal in the Land Appeal Court? 117 Approving a natural gas-fired power station where a significant conflict with a planning scheme exists 119 Development in accordance with a 17 year old rezoning approval 121 Businesses that implement an Environmental Management System (EMS) gain many benefits 123 Are we all neoliberals now? Urban planning in a neoliberal era 125 Excusal of the giving of a decision notice to a principal submitter 147 Room for one more? Application for new local centre despite conflict with the planning scheme 149 NSW Planning Bill 2013 introduces greater community participation in planning process 151 Increased penalties for illegal waste dumping in NSW 153 ii | PLANNING GOVERNMENT INFRASTRUCTURE AND ENVIRONMENT GROUP Index A New Planning System for NSW - White Paper ................................................................................................. 151 Amenity impacts .............................................................................................................................................. 55, 56 Appeal for support ................................................................................................................................................. 84 Applications for leave to appeal ....................................................................................................................... 23, 24 Area of major interest ...................................................................................................................................... 14, 15 Biomass power plant ............................................................................................................................................. 39 Brisbane City Plan 2000 ............................................................................................................................ 11, 16, 91 Building Code of Australia ....................................................................................................................................... 1 Bulk store ......................................................................................................................................................... 57, 58 Bushfire risk ......................................................................................................................................................... 120 Bushfire risks ....................................................................................................................................................... 119 CairnsPlan 2009 .................................................................................................................................................. 149 Capped charges ................................................................. 66, 67, 68, 69, 73, 75, 95, 103, 104, 105, 106, 111, 113 Cartel provision ...................................................................................................................................................... 24 Certainty ................................................................................................................................................................ 76 Charging instruments ............................................................................................................................................. 96 City of Thuringowa Planning Scheme ...................................................................................................................... 9 City Plan 2000 ......................................................................................................................................................... 3 Code assessable ................................................................................................................................................... 27 Code assessment ........................................................................................................................................ 151, 152 Code assessment applications ............................................................................................................................ 152 Code development............................................................................................................................................... 151 Commercial competitor .........................................................................................................................................
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