Planning and Environment Quarterly Case Review – November 2023
With the burst of spring and the return of sun filled days, our thoughts have turned to the outdoors. Perhaps that’s why our third Quarterly Case Review for the year has a focus on the environment. The first three cases we summarise all touch on ecological considerations. The final case is a counterpoint, concerning an advertising sign in the inner city.
In this edition, we cover:
Minor change applications can be tricky to navigate, and what at first seems simple can end up becoming complex. This decision from the P&E Court provides helpful guidance on navigating the Planning Act test for minor change.
The substantive development application involved a mixed use proposal for a childcare centre, service station and shopping centre. The development application had been approved by Council and was the subject of a submitter appeal to the P&E Court. In the course of the appeal, the developer proposed a minor change. None of the parties contended that the change resulted in substantially different development. The point of contention was whether the development application, if remade including the change, would mean the referral agency was called upon to assess the application having regard to new matters – specifically, having regard to the development’s interference with koala habitat in a koala habitat area outside koala priority areas. The koala trigger was not in effect when the application was lodged in 2018 but came into force in 2020.
The submitter appellant contended that the minor change offended the “minor change” definition in Schedule 1 of the Planning Act – in particular element (a)(ii)(D) which relates to whether the change means a referral agency would have to assess the application against, or have regard to, a new matter.
The developer offered three points in defence.
The first argument was that the minor change point was assisted by the transitional provision (section 73 of the Planning Regulation), which provided that the Planning Regulation as in force from time to time before the commencement, continued to apply in relation to an application that was properly made but not decided before the commencement. The judge was not persuaded by that argument. He determined that section 73 did not assist because it related to a development application and could not be read into the hypothetical scenario which was the subject of the minor change test. That is, the transitional provision did not limit, curtail, or alter the question postulated by the minor change definition about what the case would be if the application were made at the time of the change.
The second argument was that, even if the application were remade today, an exemption would apply meaning there would be no requirement for assessment pursuant to the new koala provisions. The relevant exemption was the ability to clear 500m2 or less of koala habitat area. The Court determined that the reference to “koala habitat area” was a reference to the area shown on the formal “Koala Conservation Plan Map” (an area determined by the chief executive administering the Nature Conservation (Koala) Conservation Pan 2017 (Koala Plan) ), and not a larger area that the submitter appellant alleged was found on the site (based on the opinions of its expert ecologist, and relying on notes to the published mapping which stated the “linework should be used as a guide only”). The Court was therefore satisfied the exemption would apply. This was sufficient to dispose with the allegation the change was not minor, but the Court went on to address the third argument.
The third argument related to the minor change definition itself. The Court stated that the key question in the minor change test is what causes the change of position. It is not enough to simply look at the position that applied at the time the development application was made, and to compare it to the position that would apply if the application were remade today and ask whether there would be a new matter for referral agency assessment. The “minor change” definition focuses on the change, and what it results in.
The Court held that:
“The focus is on the change and what it would cause if the application including the change were made when the change is made. It is not whether the law has changed in the meantime such that the assessment of unaltered parts of a development application would now attract a greater degree of scrutiny.”
The decision is consistent with the earlier (obiter) comments in Cleanaway Solid Waste Pty Ltd v Ipswich City Council and others  QPELR 809 at paragraph 52. The Court was satisfied that the changes sought did not seek to increase, at all, any clearing of koala vegetation and if anything, there was to be a reduction, and there was nothing in the change the engaged subparagraph (D) of the minor change definition.
This case also involves consideration of a koala habitat area. It was novel in that it was not a merits appeal to the P&E Court, but a review in the Queensland Civil and Administrative Tribunal (Tribunal) in relation to a request to revoke a koala habitat determination.
The applicant had asked the Department of Environment and Science (Department) to amend or revoke the determination of the koala habitat area over its property. The Department excluded part of the area, but otherwise declined to revoke the koala habitat determination. The applicant applied to QCAT to review that decision.
Under the Koala Plan, the Department’s chief executive may determine an area in a koala district to be a koala habitat area. The test (at that time) pursuant to section 7B(3) of the NC Koala Conservation Plan was whether the chief executive was satisfied:
The balance of section 7B in the Koala Plan states that, in making the decision, the chief executive must “have regard to information that is reasonably available… in relation to the combination of biophysical measures and suitability of vegetation in the area.” (section 7B(4)). The stated purpose, under section 7B(2), of determining that an area is a koala habitat area is “to avoid impacts on koala habitat to ensure the long-term persistence of koala populations in the wild.” Section 7C of the Koala Plan allows an owner of land (or a person on the owner’s behalf) to ask the chief executive to amend or revoke determinations about koala habitat areas made under section 7B.
The test in section 7B(3) was therefore central to the case. The Tribunal had to determine whether the area contained koala habitat and whether it was essential for conservation of a viable koala population in the wild. The parties agreed (based on their respective expert reports) that the land contained koala habitat. The issue was whether the Tribunal could be satisfied the area was “essential for the conservation of a viable koala population in the wild.”
In support of its case, the Applicant led evidence including that:
In response, the Department argued that retention of any such koala habitat, regardless of whether there was evidence of the use of the land by koalas either as a place to live or to cross from one area to another, was essential to the conservation of a viable koala population in the wild. The Department’s report emphasised that:
The Tribunal accepted the Department’s evidence, so far as it supported a conclusion that retaining the koala habitat was consistent with the wider objectives and purpose of the Act and, by extension, the various Guidelines and State Codes governing and directing development in a koala habitat area. Further, the Tribunal accepted that the original determination of the current area as a koala habitat area would be consistent with the purpose of a koala habitat area determination, being to avoid impacts on koala habitat to ensure the long-term persistence of koala populations in the wild.
However, the Tribunal concluded that consistency with a stated statutory objective was not the same as, and could not be substituted for, satisfaction of an explicit statutory test. The Tribunal determined that section 7B(3) required the Department to be satisfied that particular koala habitat was “essential for the conservation of a viable koala population in the wild”. Having regard to the relatively small area in question, and the absence of any evidence of koalas using the land either as a place to dwell or to pass through, or even of koalas residing in or passing through land in the vicinity of the land, the Tribunal was not satisfied the particular habitat area essential for the conservation of a viable koala population in the wild. The Tribunal set aside the Department’s decision and replaced it with a decision that the koala habitat determination over the land be revoked.
A postscript (section 7B of the NC Koala Conservation Plan) has since been amended with subparagraph 7B(5) inserted to state that the chief executive may be satisfied the koala habitat is essential even if the information available to the chief executive does not show evidence of koalas living in or crossing the koala habitat.
This is another case with an ecological theme, this time in the context of Brisbane City Council’s Biodiversity areas overlay.
The applicant owned land in Everton Park. He had applied to Brisbane City Council to develop the land by reconfiguring it into five lots. At the time the development application was lodged, version 16 of Brisbane City Plan 2014 (City Plan) was in effect. On 29 November 2019, version 17 of City Plan took effect. The amendments to City Plan included parts of the subject land in the “High ecological significance strategic sub-category” of the Biodiversity areas overlay.
Council approved the development application subject to conditions. Conditions 7 and 8 require the establishment of an environmental protection zone in which no development may occur and an environmental covenant to ensure the management and protection of the environmental protection zone.
The applicant did not appeal within the 20 business day period. Rather, almost a year later, he filed and then discontinued an appeal. He then filed declaratory proceedings, founded on a complaint that Council breached its statutory obligation to follow the development assessment process and assess the development application against the assessment benchmarks in version 16 of City Plan. Essentially, the proceeding boiled down to an allegation that the imposition of conditions 7 and 8 was the result of the Council’s “unauthorised attempt” to “manipulate timelines” in the development assessment process to justify the imposition of conditions 7 and 8 by reference to version 17 of City Plan.
The Applicant’s case failed. The Court found that, even on the most advantageous timeline of events to the Applicant, version 17 of City Plan had taken effect before the development application was decided by Council (indeed, before the development application had even entered the decision stage). As such Council was entitled to give version 17 of City Plan, including the Biodiversity overlay code, such weight as it considered appropriate pursuant to section 45(8) of the Planning Act.
In assessing the reasonableness and relevance of the conditions, the Court noted that conditions 7 and 8 and the approved drawings referenced by the conditions, were consistent with the recommendations contained in the ecological assessment provided by the Applicant and other plans provided by the Applicant before the Council’s decision. Those documents formed part of the common material to which the Council was entitled to have regard in assessing and deciding the development application.
The Court was satisfied that the Council’s decision to impose conditions 7 and 8 fell within the range of legally and factually justifiable outcomes, and the challenge to the decision notice was not made out.
This last case is a decision of the Court of Appeal about the application of the principles of natural justice and procedural fairness, in the context of a local law.
Council had approved an application for a large electronic advertising sign on land at Musgrave Road in Red Hill. The sign, measuring 42.4m2 and standing 11.3m high, was constructed in June 2020. Prior to construction of the sign, the owner of the adjoining property was unaware that an application had been lodged or approved. That owner filed a judicial review application in the Supreme Court. That application was successful at the first instance, with the judge determining that Council was required to afford the neighbouring owner procedural fairness and had failed to do so and that, in making the decision to approve the application Council, had failed to take into account a relevant consideration, namely whether the views of neighbouring properties might be obscured, dominated or overcrowded by the sign.
Council then appealed to the Court of Appeal.
The decision at first instance, and from the Court of Appeal, contains a summary of relevant, general principles relating to natural justice and procedural fairness including:
The context of the local law was important, in resolving the application of those principles to the facts.
The local law conferred on the Council a power to approve an advertising sign, which had the potential to prejudice the interests of neighbouring properties. The Local Law itself did not provide a process by which people affected by a decision to approve an advertisement were afforded procedural fairness. It was silent as to the “content” of any obligation to afford procedural fairness.
The local law contained criteria relevant to Council’s consideration of an application for approval. The criteria included that “Advertisements should respect the amenity of other property owners and not obscure, dominate or overcrowd the views of existing or prospective development on neighbouring properties.” The local law also contained provisions referring to “existing views” and “neighbouring properties”.
Against that background, the Court at first instance had concluded that a subclass of people affected by the decision – namely, the owners of neighbouring properties whose views might be obscured, dominated or overcrowded – were entitled to procedural fairness. That finding was upheld on appeal.
It is important to note the distinction about the subclass of people, relevantly affected. The decision is not about a broader group, who have some general interest in the maintenance of views. It relates to a restricted class of “neighbouring properties”, a class then further restricted to those whose views might be obscured, dominated or overcrowded by the proposed sign. There were factual findings by the judge at first instance, consistent with reporting submitted with the application, that the sign would obstruct views from the Applicant’s house towards the city.
The judge at first instance found the Applicant had the right to be given reasonable notice of the application and an opportunity to make written submissions. The Court of Appeal upheld the orders, which required Council to further consider the application to approve the sign. As a judicial review remedy, the decision required Council to consider the application according to law. It was not a merits review of the Council’s decision.