Court decision

Planning and Environment Quarterly Case Review – September 2021

By Sarah Macoun and Olivia Williamson / 08 September 2021
20 min.
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Worthwhile read for: Town Planners, Local Governments, Property Developers, Environmental Consultants

In these reviews, we provide a snapshot of topical and interesting cases that have passed through the Planning and Environment Court of Queensland (P&E Court) recently and how the decisions affect stakeholders. 

In this quarter’s review, Partner, Sarah Macoun, Senior Associate, Olivia Williamson, and Solicitor, Chloe Tilse summarise cases concerning: 
•    excluded premises
•    challenging infrastructure charges
•    significance of impacts 
•    enforcement notices
•    adding additional issues 
•    extension to currency periods

For further information and discussion on any of these cases, please contact our Planning and Environment team.


Excluded premises

Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 15

This case considered an application for a minor change to a reconfiguration of a lot approval for staged subdivision of land located at Burnside. The approval had previously been changed on three occasions, and the P&E Court had previously refused the change application as it was not satisfied the changes sought constituted a minor change. The applicant provided further supporting material and satisfied His Honour Judge Long that the change was a minor change. 

The issue to be determined was whether the applicant had satisfied the requirements in section 79 of the Planning Act 2016 (Qld) (PA), particularly as to whether section 79(1A) required consent from all owners of the area of land where 53 lots had already been subdivided and sold. Section 79(1A) states: 

“Also, a change application must be accompanied by the written consent of the owner of the premises the subject of the application to the extent— 

(a) the applicant is not the owner; and 
(b) the application is in relation to— 

(i) a material change of use of premises or reconfiguring a lot; or 
(ii) works on premises that are below high-water mark and outside a canal; and 

(c) the premises are not excluded premises.”

His Honour specifically considered paragraphs (b)(ii) and (iii) of the definition of ‘excluded premises’ in the PA, which states that ‘excluded premises’ includes where: 

“(ii) the responsible entity or assessment manager considers the application does not materially affect the premises and that, given the nature of the change, the owner of the premises has unreasonably withheld consent; or 
(iii) the responsible entity or assessment manager considers the application does not materially affect the premises and that because of the number of owners, it is impracticable to get their consent.”

The contentious point under consideration arose because of a change in statutory language between the repealed Sustainable Planning Act 2009 (Qld) (SPA) and the PA as the previous change applications over the subject land were assessed and decided under the SPA. The change in language appears to be the result of drafting style rather than substance.

Change in statutory language

Section 371 of the SPA referred to “the owner of the land to which the development approval attaches” while the PA referred to “the owner of the premises the subject of the application”. Section 371 of the SPA was self-contained, in mandating that the consent was required from owners (where the applicant was not the owner) subject to five stated exceptions. The drafting of section 371 of the SPA was such that it was entirely disengaged if the applicant was not the owner of the land to which the development approval attached. In those circumstances, where there were multiple owners, section 371(e) removed the need for consent where it was not practicable to obtain the consents and the owners land was not materially affected by the change. In circumstances where the applicant retained ownership of some of the land the section was not viewed as requiring the applicant to obtain consent from itself, in the same way that consent is not needed for a development application where the applicant is also the owner.

Decision 

The critical question that engaged the P&E Court in this case was whether the scope of material affectation remained the same under the changed drafting of section 79(1A) of the PA. Was it necessary for the applicant to demonstrate the absence of material affectation to the whole of the premises because of the changes, rather than only to those parts of the premises that were not owned by the applicant? The P&E Court found this was not necessary, resulting in the section being interpreted, in terms of its purpose and effect, in the same way as section 371 of the SPA. 

The P&E Court’s reasons for this interpretation may be summarised as follows:

  • there was nothing in the explanatory notes to the PA to suggest that a different approach to section 371 of the SPA was intended;
  • the question of statutory interpretation was not assisted by referring to cases decided under section 371 of the SPA (However, the resulting interpretation means that decisions under section 371 of the SPA remain relevant);
  • section 79(1A) should be construed by importing the definition of “excluded premises” into the text of the section;
  • the adoption of the words “to the extent” means that the requirement for consent is only engaged to the extent the premises are not “excluded premises”;
  • the binary nature of the dual components “excluded premises” in paragraphs (b)(ii) and (iii) of the definition requires material affectation which can only relate to owners other than the applicant;
  • the preferred interpretation facilitates a consistent approach to paragraphs (b)(ii) and (iii) of the definition of “excluded premises”; and 
  • the interpretation best achieves the purpose of the section being recognition and allowing for some protection for the interests in ownership of land or “premises” from the material affect of later development and it is otherwise consistent with the general purpose of the PA as set out in section 3 of the Act.

In allowing the application the P&E Court found there was no material affectation in respect of the subdivided and sold lots, and that it would be impractical, in terms of cost, delay and difficulty, to secure multiple consents from the owners of those lots, who were mainly non-residents.

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Challenging infrastructure charges 

Vanriet Development Pty Ltd v Brisbane City Council [2021] QPEC 17

This proceeding related to an application by Council challenging the jurisdiction of the P&E Court to hear an appeal that was commenced against an amended infrastructure charge notice (ICN) in relation to a development approval for a material change of use of premises located at Rudd Street, Inala. The approval required the provision of trunk infrastructure, including the dedication of road frontages for the transport network (the area of land was 1,423m2). The Appellant was not satisfied with an original ICN and an amended ICN issued by Council, and commenced the appeal.

Council submitted that the P&E Court did not have jurisdiction to hear and determine the appeal due to section 229(6)(b) of the PA, which states: 

“To remove any doubt, it is declared that an appeal against an infrastructure charge notice must not be about –
….

(b) for a decision about an offset or refund – 

….

(ii) the cost of infrastructure decided using the method included in the local government charges resolution.”

There was contention as to the method used to calculate the charges which the P&E Court considered was a result of the vastly different valuation figures the parties valuers had attributed to the land required for the dedication. The P&E Court considered there was no evidence to suggest the appropriate method was not adopted or applied. 

His Honour Judge Jones determined, at paragraph [15], that the P&E Court did not have jurisdiction to hear an appeal “against an infrastructure charge notice involving a decision about an offset or refund where the appropriate method prescribed in the local government charges resolution, namely the before and after valuation method, was adopted and applied”. Despite this, his Honour expressed that (at [17]): 

“... even in circumstances where this court is denied the jurisdiction to determine the matter by way of hearing a merit based appeal, it seems to me, without expressing a final view on the matter, that other avenues of challenge might exist. For example, s 11 of the Planning and Environment Court Act 2016 gives this court the power to make declarations and consequential orders. Further, in the event that the valuation methodology adopted involved an error which resulted in a figure so unreasonable that no reasonable local authority could adopt it, then relief of the type contemplated by way of judicial review may be available.”

The issue for which the appellant was seeking redress in this appeal involved a factual dispute regarding the value of land taken for trunk infrastructure, for offsetting against infrastructure charges. Unlike disputes about the value of land resumed for compensation purposes, there is no recourse to judicial evaluation of evidence from valuers in the case of offsets, provided the local government uses the method included a local government charges resolution. In this case, the Council adopted the appropriate methodology stated in its charges resolution. In short, provided the Council and its valuer followed the correct procedure, there is no process for challenging the adopted valuation. The passage quoted above from the P&E Courts reasons suggests that other methods of challenge might exist. In fact, the suggested avenues do not facilitate an open merits-based choice between competing valuations, as they are essentially confined to legal and procedural errors relating to prescribed methodology.

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Significance of impacts 

Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18

This case was an appeal against Council’s decision to refuse an impact assessable development application seeking approval of a material change of use to re-start and materiality increase the scale and intensity of an extraction use (extraction of hard rock and sandstone) on land located at Beerburrum. The land had 15 million tonnes of valuable high quality hard rock (which can be used for road base materials) and sandstone. Council refused the development application because the Appellant had not demonstrated that the proposed development could effectively mitigate, or be conditioned to mitigate, the impact of the development on: 

  • the safe and efficient operation of the road network;
  • the amenity and character of adjoining development (due to the proposed haul route); and
  • the ecological values of the land. 

In the appeal Council contended there was also no need for the development. His Honour Judge Williamson QC accepted that, at paragraph [197]: 

“The need to provide for appropriately located hard rock resources that can be viably and feasibly extracted is an important planning issue. Here, there is such a proven resource. The importance of the proven resource, in a planning sense, is recognised in the planning scheme. That same document also recognises that an extraction use has the potential to cause serious adverse impacts that should be considered, and avoided, or if not, appropriately mitigated.” 

The P&E Court determined that the Appellant had not demonstrated that: 

  1. traffic engineering impacts were acceptable (particularly in relation to site access from an existing unsealed forestry track) and ought to be refused for that reason alone because it was a matter of public safety. The main reasons for this determination were:
  • that the design of the access intersection had not been progressed sufficiently; 
  • that one of the intersection sightlines was inadequate and the safety risk could not be sufficiently mitigated, so as to discharge the Appellant’s onus of showing, as required by the Planning Scheme, the access to be adequate for the type and volume of traffic, and would not create or worsen any traffic hazard; and
  1. the impacts on character and amenity were acceptable, particularly due to the increase in truck movements on the nearby road network and the impact on the character enjoyed by the residents of Beerburrum Village, which the P&E Court found imposed an amenity constraint on an otherwise acceptable haul route that could not be mitigated by conditions. 

While the P&E Court found that the ecological impact of the development on native vegetation was significant and mitigation measures would not be able to minimise the impact the ecological losses, in the broader context the impacts would be comparatively small (at paragraphs [181] and [182]). In the end when balanced against economic and social considerations for the purpose of section 3.7.2.1(c)(i) of the Strategic Plan compliance would have been comfortably demonstrated, but for the unresolved traffic safety and haul route amenity impacts.
His Honour considered that, at paragraph [201]: 

“…in some circumstances, impacts on a few are often seen as acceptable when the greater community good involves access to a proven hard rock resource that: (1) is well located; and (2) can be extracted viably and feasibly. This is however not such a case. The significance of the impacts, taken in combination, outweigh the substantial public benefit associated with the winning of the proven resource.”

For the reasons above, the appeal was dismissed, and Council’s refusal was confirmed. 

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Enforcement notices

Serratore & Anor v Noosa Shire Council [2021] QPEC 21

This decision of the P&E Court concerned an appeal by recipients of enforcement notices that alleged unlawful clearing of vegetation for the purposes of bushfire risk management without a development permit. 

The key issues considered by His Honour Judge Williamson QC were: 

  • whether there was a reasonable belief that a development offence had been committed under section 163 (carrying out assessable development without an effective development permit) of the PA;
  • whether there were defects in the form of the enforcement notices given; 
  • whether the enforcement notices should be varied; and 
  • whether the matter should be remitted to the Respondent.

Offence under section 163

In consideration of the elements of an offence against section 163, His Honour set out, at paragraph [62], a list of questions for an enforcement authority to ask and answer in order for a reasonable belief to be formed that an offence of this kind has been committed. These questions were: 

(a)  Has the person carried out “development”?

(b)  Is the “development” carried out “assessable development”?

(c)  Is the “assessable development” carried out authorised by all necessary development permits? 

(d)  If the assessable development is authorised by a development permit or permits, had the permit or permits taken effect at the time the development was carried out?

(e)  Was the assessable development carried out under an exemption certificate under Section 46 of the PA? 

(f)  Was the assessable development carried out under section 29(10)(a) of the PA?

(g)  Was the assessable development carried out under section 88(3) of the PA?

In order to establish a reasonable belief that a contravention of section 163 of the PA has occurred, it was confirmed that evidence needs to establish that (a) and (b) are answered in the affirmative and that paragraphs (c) to (g) are answered in the negative. In the circumstances of the case, His Honour was satisfied that the subject enforcement notices did not answer the questions posed in sub-paragraphs (e) through (g) above and the failure to do so was a defect in each enforcement notice. Further, His Honour went on to state, at paragraph [63], that it means “in my view, the enforcement notices do not allege a development offence known to law, which is contrary to section 168(3)(a) of the PA.” 

In circumstances where a local government is issuing an enforcement notice to persons who they believe have committed or are committing the development offence as envisaged by section 168(1)(b) of the PA, it is essential for evidence to establish to the requisite standard that there is a reasonable belief that the intended recipients have committed or are committing a development offence. In this case, His Honour was satisfied that the enforcement notices issued to some of the recipients ought to be set aside on the basis that there was no evidence to establish that they were responsible for, or had control over, the vegetation clearing. 

Defects of the notices

The P&E Court further identified two defects in the notices which were alleged to warrant the notice being set aside, being that: 

  • the enforcement notices did not sufficiently describe the nature of the alleged development offence believed to have been committed; and 
  • the enforcement notices provided insufficient details of the act/s required to comply with the notice. 

It was noted that the requirement to provide sufficient details is an important one given it is an offence under section 168(5) of the PA not to comply with an enforcement notice. The reasons for judgment confirm that in circumstances where it is an offence to not comply with an enforcement notice, the level of particularity given in the notices issued need to be satisfactory and shortcomings will result in a defect in notices issued. 

In the present case it was alleged that the whole of the clearing required a development permit, and was unlawful, whereas the P&E Court found as a matter of fact that a substantial proportion of the clearing was in fact exempt as reasonably necessary for the control of fire risk. This rendered the enforcement notices defective. 

Decision

Ultimately, the appeal was allowed, and the enforcement notices issued to each of the Appellants set aside. The P&E Court declined the invitation by the Council to vary the enforcement notices or alternatively, remit the matter to allow for new enforcement notices to be issued. It was conceded by the Appellants (and accepted by the P&E Court) that there was no impediment to Council issuing fresh enforcement notices to one or more of the Appellants provided it holds the belief required by section 168(1) of the PA.

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Adding additional issues 

Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2021] QPEC 31

This proceeding related to an application by Council in an appeal (which was listed for trial a month after) to add an additional issue in dispute relating to proposed amendments to the Council’s planning scheme. The amendments would impose a more conservative regime upon the subject site and its surrounds insofar as height, which was a point of contention in the appeal. Council had only recently decided to proceed with the amendments to the scheme. 

The key issues were:

  • whether allowing the addition of a new issue in the appeal relating to proposed amendments to planning scheme was an issue that could be raised without prejudicing progress of the matter to trial; and
  • whether the proposed amendments to the scheme would be given significant weight in consideration of the appeal (specifically, what was the ability of the town planners to deal with the issue?)

The Appellant argued that allowing the amendments to be considered would prejudice the progress of the matter to proceed to a trial and that consideration of the amendment should be refused. 

His Honour Judge Rackemann considered there was sufficient time for the town planning experts in the appeal to consider the additional issue by way of separate individual statements by the expert witnesses, and whether the proposed amendments to the Planning Scheme should be given any weight was a matter for determination by the Judge who hears the appeal, rather than on an interlocutory application. Consequently, His Honour considered it was in the interests of justice to allow the issue of the proposed amendments to be included in the issues for determination by the P&E Court in the appeal.

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Extension to currency period 

Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 32

This appeal was against the Council’s refusal of an application to extend the currency period of a development approval for material change of use. The approval was granted by the P&E Court in 2010 in relation to a proposed multiple dwelling development. Two previous extensions were approved in 2014 and 2016 and this was a proposed third extension. 

In the case, the P&E Court confirmed that section 87(1) of the PA confers a broad discretion as to the matters to which regard may be had (in contrast with the more limited considerations in section 388 of the repealed SPA) and also confirmed that in the exercise of the discretion, whether there is a town planning imperative for the development and its approval to be the subject of a fresh assessment and decision are relevant considerations (although preferring the language of “good town planning reason” rather than town planning “imperative”). 

The Appellant relied upon a number of factors in favour of the grant of an extension including that the development approval was granted after lengthy contested litigation regarding the merits of the development, the appellant had provided a reasonable and plausible explanation for the delay, steps had been taken to progress the development and the planning policy regarding development of the land had not substantially changed (although the Appellant acknowledged that the zoning of the land under the current planning scheme is a factor that weighs against the extension). 

The Council took issue with the sufficiency, or otherwise, of the reasons for the need for an extension and whether the Appellant had acted on the approval or taken reasonable steps to further the proposed development. For instance, no related applications or approvals were on foot for operational work or building work). The Appellant sought to make something of the Council’s willingness to grant the second extensions at a time when a subsequent planning scheme was in force. 

The Judge accepted that the Appellant had not been disinterested in the approval or sat completely idle and had experienced funding difficulties. That however was not persuasive enough to grant the extension, and ultimately the appeal was dismissed. Having already had the benefit of two extensions in the decade which had passed since the approval was granted, the Judge considered that it was an appropriate exercise of the discretion to refuse the third extension. Further, there were good town planning reasons to refuse the application due to the changes to the legislation and planning instrument since approval including that the application would now be subject to a different kind and level of assessment (now impact assessable) and different appeal rights (including rights for submitters). 

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This is just a small sample of the cases decided recently. There are more interesting decisions on the horizon, so keep a look out for the next Planning and Environment Quarterly Case Review later this year.

For further information and discussion on any of these cases, please contact our Planning and Environment team.

Authors
Sarah Macoun
Partner
Sarah is a Partner in our Planning and Environment practice and offers extensive experience in the areas of planning approvals, litigation and dispute resolution, together with many years of experience and a keen interest in environmental legislation and...
Olivia Williamson
Senior Associate
Olivia is a Senior Associate in our Planning and Environment practice.

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