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HG Alert: Milton Brewery Act - Patchwork Legislation - Mar 2009

The Planning (Urban Encroachment – Milton Brewery) Act 2009 (the Act) aims to provide ‘clarity and certainty’ for Lion Nathan (owner of the Milton Brewery) and for land owners and developers against the background of considerable development and growth in the Milton Rail precinct (see a map of the affected area on the attached PDF). The legislation is directed at addressing concerns regarding the impact of urban encroachment on the Milton Brewery. However, it can also be seen as a response to the Queensland Government’s sale of airspace over Milton railway station for development of a commercial and residential complex, forecast to include a 30 storey residential building comprising approximately 217 apartments, alongside a 127 room hotel and 10 storey commercial office block.

As outlined in Part 1 the Act's, its main purpose is to protect the existing use of the Milton Brewery from encroachment by, and the intensification of, other development. Urban encroachment gives rise to the risk of litigation by landowners, occupants or tenants who are affected by emissions from the Brewery. The Act achieves protection of the Brewery by granting it immunity from particular civil and criminal proceedings instituted by new residents relating to air emissions, noise and light pollution where the Brewery is functioning within the conditions of its development approval and any relevant codes of environmental compliance.

Who is affected?

The protection afforded to the Brewery by the Act only applies to significant new developments that result in ‘intensification’ through a ‘relevant development application’ which specifically is an application for a material change of use of premises or reconfiguring of a lot within the affected area. The Act will not affect residents already co-existing with the brewery, nor does it affect the obligations of the Brewery to comply with its approvals and other environmental obligations.

More specifically, under Part 3 of Act, it will apply to any ‘relevant development application’ in the affected area which is outlined in schedule 1 of the Act (which also includes the old Milton Tennis Centre) made:

  • after the commencement (of the Act);
  • before the commencement, but for which a decision notice had not been given to the applicant before the commencement; and
  • where a development approval has been given for the application before commencement, but a certificate of classification (under the Building Act 1975) has not been given before the commencement.

A ‘relevant development application’ does not include applications for class 1a, 1b and 10 buildings or structures that will not result in ‘intensification’ of the area.

Restrictions on legal proceedings

Section 8 of the Act confers statutory immunity on the Brewery from civil or criminal proceedings in terms of a local law by ‘affected persons’ regarding the carrying out of a ‘relevant act’ defined as a Chapter 4 Activity. An affected person under the Act includes the owner (or owner’s successor in title), occupier or lessee of the premises if the premises are the subject of a ‘relevant development application’ for material change of use or reconfiguration of a lot. The Environmental Protection Act 1994 (EPA) defines “owner” to include a mortgagee in possession. Under the EPA a Chapter 4 activity is an environmentally relevant activity. In relation to the Milton Brewery this includes fumes, light, noise, odour, particles or smoke.

The protection granted in favour of the Brewery is subject to the Brewery complying with the development conditions of the Brewery’s development approval. This is the development approval in force at the commencement of the Act to carry out Chapter 4 activities stated in the approval. The Chapter 4 activities permitted to be carried out at the Brewery as stated in the Brewery’s Registration Certificate are:

  • environmentally relevant activity 17 (fuel burning); and
  • environmentally relevant activity 29(b) (beverage production).

It should also be noted that under section 8(3) of the Act the restriction on an affected person bringing proceedings in these circumstances applies despite any other Act providing to the contrary, in particular the EPA.

Particular obligations under the Act – a note for applicants and their consultants

Section 9 provides that within 20 business days of making a relevant application, the applicant must give the registrar written notice (in an approved form) asking that the registrar record an affected area notation. The registrar is the registrar of titles under the Land Title Act 1994. The registrar is required to keep a record which would reveal the notation on a title search being made.

Section 10 is of great significance to landowners and agents in that it allows a prospective buyer of a property the right to end a contract of sale at any time before settlement (by way of notice which specifically says that it is given under Section 10(3)) if the applicant contracts to sell the land and fails to notify the registrar pursuant to Section 9. The relevant time for a notation to be shown on the register, is at the time of entering into the contract. Subsection 4 provides that the seller must return the full deposit to the buyer within 14 days of the contract coming to an end.

Section 11 applies in circumstances where a landowner (it need not be the applicant) offers the premises or lot (the subject of an application which is made or has been made before the commencement of the Act and remains current) for sale to somebody else. In this situation the seller must give notice to the buyer in writing of:

  • the restrictions under Section 8 that may apply to the prospective buyer if the prospective buyer buys the property; and
  • the keeping, under Section 9(2), of a record of the affected area notation for the property in the appropriate register.

Under subsection 3 and 4 of the Act a failure of the seller to give notice to the prospective buyer gives the prospective buyer the right (by way of a notice which specifically says that it is given under Section 11(5)) to terminate the contract.

Once again, the deposit must be refunded in 14 days.

The section will apply to offers made by a third party for the seller (eg the seller’s agent or lawyers). Then notice must be given on each relevant on-sale of the relevant land.

Transitional provisions

The relevant transitional provisions are contained in Part 6 of the Act. Section 15 provides that the recording of a ‘relevant development application’ in the appropriate register must be completed within 20 business days after the commencement of the Act. Furthermore section 16 of the Act provides that if a prospective buyer enters into a contract to which Section 11 applies, to buy a property before the commencement of the Act, the prospective buyer will not have a right to terminate the contract only because the seller did not give the buyer an affected area notice. Further, that failure to notify will not be a breach of the contract by the seller.

Consequence for agents

Section 11 of the Act will have significant consequences for agents. Sellers are required under the Act to give notice of the statutory immunity conferred on the Brewery from civil or criminal proceedings contained in Section 8 of the Act and also of the keeping under Section 9(2) of an affected area notation in the registrar. A failure to notify any prospective purchasers will allow them to terminate the contract of sale under Section 11(4) of the Act. To remove any doubt the Act provides that Section 11(4) will apply in the following circumstances:

  • Even if the offer of sale is made by someone other than the applicant for the relevant development application.
  • If the seller is not the applicant, whether or not the seller received an affected area notice for the property.
  • Regardless of the number of times the property has been sold since the making of the relevant development application.

Agents therefore need to be aware that such a failure, apart from potential loss of the sale and commission could result in negligence claims or breach of contract against them from sellers.

Practical considerations

This Act impacts drastically on the rights of individual land owners. It effectively limits the right to take action in respect of their use and enjoyment of land. This is not the first time the State Government has enacted such legislation. The Fig Tree Pocket Noise Emission Act 1984 (which has subsequently been repealed) was introduced to provide for a permissible level of noise emission from a sand and gravel production site. Similarly, this Act effectively barred noise emission as a ground for instituting proceedings against the company operating the site.

An important question then arises as to whether we will see similar legislation enacted by the State Government in the future? It may well be that this is not the last piece of legislation, limiting rights of individual landowners, with the draft South East Queensland Regional Plan’s desire for mixed use communities surrounding existing transport infrastructure hubs and the potential for concentrated residential development in “brown field” urban renewal sites near industrial areas. We may as a result see similar patchwork legislation enacted in order to protect vital infrastructure and key industry while allowing adjacent residential development. This reduction in space between residents and the Brewery which has been operating since the 1870’s and is heritage listed is a perfect example of a collision of key industry and urban living which has forced the government to take action so that the Brewery can continue to operate in its existing use.

The Act is set to commence by proclamation, we will monitor this date and keep readers informed.

For further information on the implications of the Milton Brewery Act, please contact a member of our Planning and Development team.

Please click the Download PDF button to download the map of the Milton Rail Precinct.