Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

Implications of the National Rental Affordability Scheme on the valuation of residential property

The provision of shelter is a basic need and in Australia there has been a history of home ownership. However recent economic growth and rising construction costs, particularly over the past decade, has placed home ownership out of reach for some. In response to increased affordability pressures, the Australian Federal Government established the National Rental Affordability Scheme (NRAS) in 2008. The aim of establishing the NRAS initiative is to stimulate the supply of new affordable rental dwellings, targeting 50,000 new properties by June 2012, through the provision of a National Rental Incentive for each “approved” dwelling. To be approved the dwelling must be newly constructed and subsequently rented to eligible low and moderate income households at rentals no greater than 80 percent of market rates. There is a further requirement that the accommodation be provided as part of the scheme for no less than 10 years. The requirement to provide new residential accommodation at below market rentals for no less than 10 years has an impact on value and as such the valuation methodologies employed. To give guidance to valuers this paper investigates the scheme, the impact on value and expectations for the future.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.

Property Agents and Motor Dealers Act : strike three

The Tourism, Racing and Fair Trading (Miscellaneous Provisions) Act 2002 (“the Act”) which was passed on 18 April 2002 contains a number of significant amendments relevant to the operation of the Property Agents and Motor Dealers Act 2000. The main changes relevant to property transactions are: (i) Changes to the process for appointment of a real estate agent and consolidation of the appointment forms; (ii) Additions to the disclosure obligation of agents and property developers; (iii) Simplification of the process for commencing the cooling off period; (iv) Alteration of the common law position concerning when the parties are bound by a contract; (v) Removal of the requirement for a seller’s signature on the warning statement to be witnessed; (vi) Retrospective amendment of s 170 of the Body Corporate and Community Management Act 1997; (vii) Inclusion of a new power to allow inspectors to enter the place of business of a licensee or a marketeer without consent and without a warrant; and (viii) Inclusion of a new power for inspectors to require documents to be produced by marketeers. The majority of the amendments are effective from the date of assent, 24 April 2002, however, some of the amendments do not commence until a date fixed by proclamation. No proclamation has been made at the time of writing (2 May 2002). Where the amendments have not commenced this will be noted in the article. Before providing clients with advice, practitioners should carefully check proclamation details.

Property Agents and Motor Dealers Act : take two

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions commenced on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent, 21 September 2001.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365. On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).

Property Agents and Motor Dealers Act (Qld) : disclosure, cooling-off and marketeers

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions are expected to commence on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent (21 September 2001).

Can compensation be claimed under the standard commercial land and building contract where the property sold has no legally enforceable vehicular access?

This was the question that confronted Wilson J in Jarema Pty Ltd v Michihiko Kato [2004] QSC 451. Facts The plaintiff was the buyer of a commercial property at Bundall. The property comprised a 6 storey office building with a basement car park with 54 car parking spaces. The property was sold for $5 million with the contract being the standard REIQ/QLS form for Commercial Land and Buildings (2nd ed GST reprint). The contract provided for a “due diligence” period. During this period, the buyer’s solicitors discovered that there was no direct access from a public road to the car park entrance. Access to the car park was over a lot of which the Gold Coast City Council was the registered owner under a nomination of trustees, the Council holding the property on trust for car parking and town planning purposes. Due to the absence of a registered easement over the Council’s land, the buyer’s solicitors sought a reduction in the purchase price. The seller would not agree to this. Finally the sale was completed with the buyer reserving its rights to seek compensation.

Resonance : a music director’s theomusicological study of ‘praise’ and ‘glory’ in a selection of four liturgical music excerpts

Some of my most powerful spiritual experiences have come from the splendorous and sublime sounding hymns performed by a choir and church organ at the traditional Anglican church I’ve attended since I was very young. In the later stage of my life, my pursuit of education in the field of engineering caused me to move to Australia where I regularly attended a contemporary evangelical church and subsequently became a music director in the faith community. This environmental and cultural shift altered my perception and musical experiences of Christian music and led me to enquire about the relationship between Christian liturgy and church music. Throughout history church musicians and composers have synthesised the theological, congregational, cultural and musical aspects of church liturgy. Many great composers have taken into account the conditions surrounding the process of sacred composition and arrangement of music to enhance the experience of religious ecstasy – they sought resonances with Christian values and beliefs to draw congregational participation into the light of praising and glorifying God. As a music director in an evangelical church this aspiration has become one I share. I hope to identify and define the qualities of these resonances that have been successful and apply them to my own practice. Introduction and Structure of the Thesis In this study I will examine four purposively selected excerpts of Christian church vocal music combining theomusicological and semiotic analysis to help identify guidelines that might be useful in my practice as a church music director. The four musical excerpts have been selected based upon their sustained musical and theological impact over time, and their ability to affect ecstatic responses from congregations. This thesis documents a personal journey through analysis of music and uses a context that draws upon ethno-musicological, theological and semiotic tools that lead to a preliminary framework and principles which can then be applied to the identified qualities of resonance in church music today. The thesis is comprised of four parts. Part 1 presents a literature study on the relationship between sacred music, the effects of religious ecstasy and the Christian church. Multiple lenses on this phenomenon are drawn from the viewpoints of prominent western church historians, Biblical theologians, and philosophers. The literature study continues in Part 2, where the role of embodiment is examined from the current perspective of cognitive learning environments. This study offers a platform for a critical reflection on two distinctive musical liturgical systems that have treated differently the notion of embodied understanding amidst a shifting church paradigm. This allows an in-depth theological and philosophical understanding of the liturgical conditions around sacred music-making that relates to the monistic and dualistic body/mind. Part 3 involves undertaking a theomusicological methodology that utilises creative case studies of four purposively selected spiritual pieces. A semiotic study focuses on specific sections of sacred vocal works that express the notions of ‘praise’ and ‘glorification’, particularly in relation to these effects,which combine an analysis of theological perspectives around religious ecstasy and particular spiritual themes. Part 4 presents the critiques and findings gathered from the study that incorporate theoretical and technological means to analyse the purposive selected musical artefact, particularly with the sonic narratives expressing notions of ‘Praise' and 'Glory’. The musical findings are further discussed in relation to the notion of resonance, and then a conceptual framework for the role of contemporary musicdirector is proposed. The musical and Christian terminologies used in the thesis are explained in the glossary, and the appendices includes tables illustrating the musical findings, conducted surveys, written musical analyses and audio examples of selected sacred pieces available on the enclosed compact disc.