Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land

The principles relating to the passing of risk under a contract for the sale of real property would seem to have been long settled. The rule under the general law is that the risk of loss of the subject matter under a contract for the sale of real property passes to the buyer upon the creation of a valid and binding contract. This article considers the origin of that rule, how it developed with the growth of equity, and advances the view that it is anomalous in a modern context of property dealings. In doing so, the article adverts to the variety of statutory mechanisms used to subvert the rule, few of which are of practical value. It concludes that the rule is outmoded in many respects and suggests a number of reforms which might be implemented nationally to bring consistency and simplicity to the issue of damage or destruction of improvements which are the subject of a land contract.

Advance pricing arrangements : an Australian Tax Office success or a legislative failure?

Australia’s domestic income tax legislation and double tax agreements contain transfer pricing rules which are designed to counter the underpayment of tax by businesses engaged in international dealings between related parties. The current legislation and agreements require that related party transactions take place at a value which reflects an arm’s length price, that is, a price which would be charged between unrelated parties. For a host of reasons, it is increasingly difficult for multinational entities to demonstrate that they are transferring goods and services at a price which is reflective of the behaviour of independent parties, thereby making it difficult to demonstrate compliance with the relevant legislation. Further, where an Australian business undertakes cross-border related party transactions there is the risk of an audit by the Australian Tax Office (ATO). If a business wishes to avoid the risk of an audit, and any ensuing penalties, there is one option: an advance pricing arrangement (APA). An APA is an agreement whereby the future transfer pricing methodology to be used to determine the arm’s length price is agreed to by the taxpayer and the relevant tax authority or authorities. The ATO views the APA process as an important part of its international tax strategy and believes that there are complementary benefits provided to both the taxpayer and the ATO. The ATO promotes the APA process on the basis of creating greater certainty for all parties while reducing compliance costs and the risk of audit and penalty. While the ATO regards the APA system as a success, it may be argued that the implementation of such a system is simply a practical solution to an ongoing problem of an inherent failure in both the legislation and ATO interpretation and application of this legislation to provide certainty to the taxpayer. This paper investigates the use of APAs as a solution to the problem of transfer pricing and considers whether they are the success the ATO claims. It is argued that there is no doubt that APAs provide a valuable practical tool for multinational entities facing the challenges of the taxation of global trading under the current transfer pricing regime. It does not, however, provide a long term solution. Rather, the long term solution may be in the form of legislative amendment.

Inadequacy of land use and impervious area fraction for determining urban stormwater quality

Urban stormwater quality is multifaceted and the use of a limited number of factors to represent catchment characteristics may not be adequate to explain the complexity of water quality response to a rainfall event or site-to-site differences in stormwater quality modelling. This paper presents the outcomes of a research study which investigated the adequacy of using land use and impervious area fraction only, to represent catchment characteristics in urban stormwater quality modelling. The research outcomes confirmed the inadequacy of the use of these two parameters alone to represent urban catchment characteristics in stormwater quality prediction. Urban form also needs to be taken into consideration as it was found have an important impact on stormwater quality by influencing pollutant generation, build-up and wash-off. Urban form refers to characteristics related to an urban development such as road layout, spatial distribution of urban areas and urban design features.

Virginia's secret

This catalogue essay was written to accompany the launch exhibition of LEVELari in Brisbane. It discusses the history of women-only exhibition spaces in Australia and contextualises LEVELari's place within that tradition.

New strategies of managing waste in office building retrofit projects

Retrofit projects are different from newly-built projects in many respects. A retrofit project involves an existing building, which imposes constraints on the owners, designers, operators and constructors throughout the project process. Retrofit projects are risky, complex, less predictable and difficult to be well planned, which need greater coordination. For office building retrofit project, further restrictions will apply as these buildings often locate in CBD areas and most have to remain operational during the progression of project work. Issues such as site space, material storage and handling, noise and dust, need to be considered and well addressed. In this context, waste management is even more challenging with small spaces for waste handling, uncertainties in waste control, and impact of waste management activities on project delivery and building occupants. Current literatures on waste management in office building retrofit projects focus on increasing waste recovery rate based on project planning, monitoring and stakeholders’ collaboration. However, previous research has not produced knowledge of understanding the particular retrofit processes and their impact on waste generation and management. This paper discusses the interim results of a continuing research on new strategies for waste management in office building retrofit projects. Firstly based on the literature review, it summarizes the unique characteristics of office building retrofit projects and their influence on waste management. An assumption on waste management strategies is formed. Semi-structured interviews were conducted towards industry practitioners and findings are then presented in the paper. The assumption of the research was validated in the interviews from the opinions and experiences of the respondents. Finally the research develops a process model for waste management in office building retrofit projects. It introduces two different waste management strategies. For the dismantling phase, waste is generated fast along with the work progress, so integrated planning for project delivery and waste generation is needed in order to organize prompt handling and treatment. For the fit-out phase, the work is similar as new construction. Factors which are particularly linked to generating waste on site need to be controlled and monitored. Continuing research in this space will help improve the practice of waste management in office building retrofit projects. The new strategies will help promote the practicality of project waste planning and management and stakeholders’ capability of coordinating waste management and project delivery.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Land fraud and inappropriate dealings in an electronic environment : An Australian and New Zealand perspective

The thesis presented in this paper is that the land fraud committed by Matthew Perrin in Queensland and inflicted upon Roger Mildenhall in Western Australia demonstrates the need for urgent procedural reform to the conveyancing process. Should this not occur, then calls to reform the substantive principles of the Torrens system will be heard throughout the jurisdictions that adopt title by registration, particularly in those places where immediate indefeasibility is still the norm. This paper closely examines the factual matrix behind both of these frauds, and asks what steps should have been taken to prevent them occurring. With 2012 bringing us Australian legislation embedding a national e-conveyancing system and a new Land Transfer Act for New Zealand we ask what legislative measures should be introduced to minimise the potential for such fraud. In undertaking this study, we reflect on whether the activities of Perrin and the criminals responsible for stealing Mildenhall's land would have succeeded under the present system for automated registration utilised in New Zealand.

Evaluating responses to land degradation mitigation measures in Southern Italy

The main factors affecting environmental sensitivity to degradation are soil, vegetation, climate and management, through either their intrinsic characteristics or by their interaction on the landscape. Different levels of degradation risks may be observed in response to particular combinations of the aforementioned factors. For instance, the combination of inappropriate management practices and intrinsically weak soil conditions will result in a severe degradation of the environment, while the combination of the same type of management with better soil conditions may lead to negligible degradation.The aim of this study was to identify factors and their impact on land degradation processes in three areas of the Basilicata region (southern Italy) using a procedure that couples environmental indices, GIS and crop-soil simulation models. Areas prone to desertification were first identified using the Environmental Sensitive Areas (ESA) procedure. An analysis for identifying the weight that each of the contributing factor (climate, soil, vegetation, management) had on the ESA was carried out using GIS techniques. The SALUS model was successfully executed to identify the management practices that could lead to better soil conditions to enhance land use sustainability. The best management practices were found to be those that minimized soil disturbance and increased soil organic carbon. Two alternative scenarios with improved soil quality and subsequently improving soil water holding capacity were used as mitigation measures. The ESA were recalculated and the effects of the mitigation measures suggested by the model were assessed. The new ESA showed a significant reduction on land degradation.

Vertical particle concentration profiles around urban office buildings

Despite its role in determining both indoor and outdoor human exposure to anthropogenic particles, there is limited information describing vertical profiles of particle concentrations in urban environments, especially for ultrafine particles. Furthermore, the results of the few studies performed have been inconsistent. As such, this study aimed to assess the influence of vehicle emissions and nucleation formation on particle characteristics (particle number size distribution-PNSD and PM 2.5 concentration) at different heights around three urban office buildings located next to busy roads in Brisbane, Australia, and place these results in the broader context of the existing literature. Two sets of instruments were used to simultaneously measure PNSD, particle number (PN) and PM 2.5 concentrations, respectively, for up to three weeks at each building. The results showed that both PNSD and PM 2.5 concentration around building envelopes were influenced by vehicle emissions and new particle formation, and that they exhibited variability across the three different office buildings. During nucleation events, PN concentration in size range of <30 nm and total PN concentration increased (7-65% and 5-46%, respectively), while PM 2.5 concentration decreased (36-52%) with height. This study has shown an under acknowledged role for nucleation in producing particles that can affect large numbers of people, due to the high density and occupancy of urban office buildings and the fact that the vast majority of people's time is spent indoors. These findings highlight important new information related to the previously overlooked role of particle formation in the urban atmosphere and its potential effects on selection of air intake locations and appropriate filter types when designing or upgrading mechanical ventilation systems in urban office buildings. The results also serve to better define particle behaviour and variability around building envelopes, which has implications for studies of both human exposure and particle dynamics. © 2012 Author(s).

Nangkha Nangdrik in the land of the thunder dragon

- The Kingdom of Bhutan is a country on the move - In July 2008, Bhutan transitioned from an absolute monarchy to a constitutional monarchy - The Constitution and a number of pieces of national legislation make specific reference to alternative dispute resolution. - An alternative dispute resolution Bill will come before the Bhutanese parliament in early 2012.

Inherent errors in pollutant build-up estimation in considering urban land use as a lumped parameter

Stormwater quality modelling results is subject to uncertainty. The variability of input parameters is an important source of overall model error. An in-depth understanding of the variability associated with input parameters can provide knowledge on the uncertainty associated with these parameters and consequently assist in uncertainty analysis of stormwater quality models and the decision making based on modelling outcomes. This paper discusses the outcomes of a research study undertaken to analyse the variability related to pollutant build-up parameters in stormwater quality modelling. The study was based on the analysis of pollutant build-up samples collected from 12 road surfaces in residential, commercial and industrial land uses. It was found that build-up characteristics vary appreciably even within the same land use. Therefore, using land use as a lumped parameter would contribute significant uncertainties in stormwater quality modelling. Additionally, it was also found that the variability in pollutant build-up can also be significant depending on the pollutant type. This underlines the importance of taking into account specific land use characteristics and targeted pollutant species when undertaking uncertainty analysis of stormwater quality models or in interpreting the modelling outcomes.

Nangkha Nangdrik in the land of the Thunder Dragon : psychology, religion and the potential of mediation in the Kingdom of Bhutan

This article will consider the role that Alternative Dispute Resolution (‘Dham Kha Chen Ki Khendum’ or ‘Nangkha Nangdrik’) currently plays in resolving legal conflict in Bhutan. With a Constitution that has committed to the pursuit of Gross National Happiness, non-adversarial dispute resolution processes that promote continuing relationships and goodwill assume greater importance. One difficulty for Bhutan is that alternative dispute resolution procedures such as mediation (Dhum Drik) are being referred to in enactments of the Bhutanese National Council and National Assembly (bicameral parliament), without a shared understanding as to the characteristics and functionality of these procedures. This article will focus particularly on the current practice of mediation in Bhutan and investigate whether particular models of mediation are more suited to the Bhutanese context, given the particularities of Bhutanese culture, the search for gross national happiness, psychological understandings of happiness and the omnipresent influence of Mahayana Buddhism.