Planning and Environment Quarterly Case Review – December 2021
In our final Planning and Environment Quarterly Case Review for 2021, Partner Sarah Macoun, Senior Associate Gemma Chadwick and Solicitors Chloe Tilse and Hamish Mulcahy summarise topical cases from the Court of Appeal and Planning and Environment Court (P&E Court). This quarter’s cases relate to:
This case involved a challenge to an ICN issued by the Gympie Regional Council, where the Appellant contended the charges levied should have been discounted on the basis that the development generated extra demand on some forms of trunk infrastructure but not others.
Council approved the Appellant’s development application for a development permit for reconfiguring a lot to create a 61 lot subdivision in five stages on land located at Widgee. It issued an ICN, and the Appellant appealed alleging an error relating to the charge, and the working out of extra demand (see the Planning Act 2016, Schedule 1, Table 1, Items 4(a)(i) and (ii)). The parties agreed that the development generated extra demand on two out of five trunk infrastructure networks – that is, transport and parks/community facilities. It was agreed that the development would not generate extra demand on other forms of trunk infrastructure (water, sewerage and stormwater). The Appellant argued that, without applying a proportional discount, the ICN would impermissibly impose a levy for demand placed on each and every one of Council’s trunk infrastructure networks when its development would, in fact, only generate demand on some.
The Court did not accept that argument, given the way Council’s charges resolution was structured.
For a material change of use for non-residential development, a certain table identified the proportional split for the charges across the five trunk infrastructure networks, and that allowed a network-by-network calculation of the charge. The charges resolution went on to provide that, in effect, the water and sewer charges would not apply to development not serviced by those networks.
For a material change of use for residential development, another table applied various units of demand (depending on the type of residential use) to various specified amounts of money (depending on the location) to arrive at the charge. That charge was then reduced by 25%, if the development was serviced by water but not sewer, and 45% when the development was not serviced by either water or sewer.
The difficulty for the appellant was that there was no equivalent table for reconfiguring a lot, and the Court held that the discount provisions for material change of use provisions did not have general application (that is, they did not apply to development for reconfiguration of a lot). For reconfiguring a lot, the charges resolution adopted a single charge. The quantum of the charge was the same irrespective of the type or number of networks impacted. While this approach was “the broadest of broad brush”, the Court held a global charge of this kind did not mean charges were being levied for something other than the extra demand placed on trunk infrastructure that the development would generate. In fact, the Court noted that the maximum charges for development contained in the Planning Regulation 2017 were global amounts (not broken down into components of infrastructure).
The appeal was partially successful, in that Council acknowledged it had applied the charges rate for the wrong location, but that argument that the charge should be discounted was not successful.
The case is an interesting example of a potential challenge to infrastructure charges, but demonstrates the limitations and difficulties posed by such challenges, given the Planning Act 2016 does not permit appeals in relation to the adopted charge itself.
This decision (colloquially referred to as the Doonan decision) relates to Council’s refusal of an application to redevelop a parcel of land located in the Rural residential zone in Doonan. The redevelopment proposal involved renovation and extension of an existing licensed restaurant and caretaker’s residence contained in an existing German-inspired three-storey building, to create a “paddock to plate” style hotel, bottle shop and cellar door.
Council refused the application. The primary planning issues were whether the land use was acceptable, whether relevant matters supported approval of the proposed development, and whether the application should be approved or refused in the exercise of the planning discretion. In considering the appropriateness of the use, the Court considered three forward planning strategies that were embodied in the planning scheme which sought to:
Council contended that significant weight should be given to those considerations, in the exercise of the planning discretion. The Court acknowledged that the proposal represented a clear departure from those forward planning strategies. However, the Court went on to consider the degree of importance attached to those non-compliances. The appellant successfully established that the particular, and unusual circumstances of the case diminished the potency of the non-compliances with the planning scheme.
The unusual circumstances included that:
Given those unusual circumstances, His Honour found that the non-compliances would not sound in any unacceptable town planning consequences. Those circumstances, in combination with the relevant matters (which included, amongst other things, improved flood outcomes and planning need) established “that a balanced decision in the public interest, in the circumstances of this case, falls in favour of approval”.
The Court was cognisant that it was being asked to approve a development that was expressly discouraged by Council’s forward planning strategies, and that it was unsurprising that Council was contending for refusal. His Honour reflected upon the desirability for restraint when dealing with matters of planning policy and strategy. The Court is not a planning authority. His Honour observed, however, that the decision rules in the Planning Act 2016 mean the Court is not precluded from approving an application where non-compliance with a forward planning strategy is established. He referenced the Court of Appeal’s decision in Nerinda, which confirmed that restraint, or a self-limiting approach, may not always be apposite – it will turn on the facts and circumstances of each case. His Honour was ultimately satisfied that a self-limiting approach was not apposite on the facts.
The Court’s decision in this case is a clear example of the shift in the decision rules between the Sustainable Planning Act 2009 and the Planning Act 2016, and a continuation of the line of authority that has emerged through the decisions in Abeleda and Ashvan.
This appeal concerned Council’s refusal of an application to make a minor change in relation to a preliminary approval for a mixed use development at Wooloowin. The proposed change affected only the “Mixed Use (Apartment Buildings) Precinct” component of the preliminary approval and sought to “lock in” car parking rates following changes to Council’s Transport, Access, Parking and Servicing Code (TAPS Code) to increase car parking requirements for suburban multiple dwellings.
The rates the appellant sought to specify through the minor change were those applicable to multiple dwellings under the Transport, Access, Parking and Servicing Planning Scheme Policy (TAPS Policy) at the time it:
The changes to Council’s TAPS Policy were adopted the day after the Appellant’s change request was refused. While the changes post-dated the change application, they were relevant because the existing conditions of the preliminary approval required future applications to be assessed against the TAPS Code (where an acceptable outcome called up the TAPS Policy) as amended from time to time.
Council contended that the change was not minor on the basis that the change would remove something integral to the operation of the development approved by the preliminary approval – namely the provision of on-site car parking determined in the context of contemporary car parking standards. The Court observed the question was not whether the change could, or would, result in a lesser number of car parks. The question was whether it would result in a substantially different development. In that regard, the Court observed that the rates in the TAPS Policy are not mandatory. The relevant performance outcome in the TAPS code does not specify a rate, nor does it refer to the TAPS policy (and, notably, there were no changes to that performance outcome as part of the suite of amendments to City Plan). It requires provision of on-site car parking spaces to accommodate the design peak parking demand without any overflow of car parking. The Court agreed with the Appellant’s traffic engineer that it is entirely normal for alternative solutions to be developed for car parking which consider the specific characteristics of the site and the resultant car parking demand.
The unchallenged evidence from the Appellant’s traffic engineer was that the proposed changes to the approval would provide sufficient on-site car parking so as not to generate overflow car parking. The Court found the change was justified on its merits.
His Honour rejected the respondent’s submissions that the change should be refused on discretionary grounds. This included a rejection of arguments relating to the rights of submitters and the need for further public notification.
The appeal was allowed, with His Honour determining that the change was minor and that the application should be approved.
The case is a reminder that, as the Planning and Environment (P&E) Court observed, compliance through meeting a performance outcome is just as much compliance as through adoption of an acceptable outcome. It is also a useful reference point for considering how to assess and decide minor change applications in the context of preliminary approvals, where the magnitude and consequence of a change in its application to development of the site in accordance with the preliminary approval are relevant to whether or not a change results in substantially different development.
In this case, the Court of Appeal considered the scope of the Court’s powers to make enforcement orders under the Planning Act 2016.
The proceedings related to a highly unusual residence – it was three storeys, with 17 bedrooms, each with an ensuite, individually controlled air conditioning, a built-in wardrobe and lockable, solid-core, self-closing doors. Each of the bedrooms had an individual water and electricity meter. There were soundproofing and fire prevention measures between each room.
It became apparent that the premises was not being used as a usual domestic dwelling house, but as an accommodation building. The planning controls relevant to the site made an accommodation building a prohibited use (the site was governed by Development Control Plan -1 Kawana Waters).
Council brought enforcement proceedings in the P&E Court and the applicant ultimately conceded the use of the premises as an accommodation building was unlawful. Orders were made by the P&E Court which stated:
The applicant sought to challenge all of the orders in the Court of Appeal, but it was the order requiring the removal of physical aspects of the building that was most controversial. It was the use of the premises that was unlawful, not the physical structure itself and the applicant’s main argument was that the residence could be used as a dwelling house without the alterations ordered by the Court. The applicant sought leave to appeal against the orders, contending they were beyond the power of the P&E Court.
During the hearing at first instance, the P&E Court found that the applicant’s actions were “deceptive” as well as “deliberate and considered” and “not the product of inadvertence or inexperience”. The finding was that the applicant had “made some attempts to disguise the true nature of the design” in plans and working drawings given to Council and a private certifier. The private certifier had informed the applicant the building could only be assessed as a dwelling house, that any change in use would require further building and town planning applications, that the approval was limited to use as a dwelling house and that any contrary use would not be lawful. The P&E Court was concerned by the applicant’s conduct and by the evidence he gave in court, describing his evidence as “garrulous, unresponsive and, at times, mendacious.” The judge found that the applicant would not comply with the Planning Act 2016, absent some strong incentive. On that basis, the judge made orders in terms that would make it harder for the building to be used as an accommodation building, in order to secure compliance with the Planning Act 2016.
In light of those findings (which were unchallenged), the Court of Appeal determined the enforcement orders were within the power. The Planning Act 2016 allows enforcement orders to be made directing a person to either stop an activity that constitutes a development offence, or not to start such an activity. Further, orders can be made to direct someone to do anything to comply with the act. Finally, the Court can make enforcement orders in the terms it considers appropriate to secure compliance with the Planning Act 2016. The Court of Appeal observed those powers are very broad. The Court of Appeal noted it was apparent the P&E Court had formed the view that the applicant “could not be trusted”, absent the order, to abstain from putting the building to unlawful use. That justified the orders as being orders “in terms the P&E Court considers appropriate to secure compliance with the Act.”
This decision relates to enforcement proceedings brought by the Sunshine Coast Regional Council in relation to unlawful structures (including a tennis court) on the roof of the respondents’ house on Minyama Island.
Council had obtained enforcement orders which required the removal or demolition of structures that had been constructed without a development approval. The structures included a tennis court, a perimeter fence and attached lighting fixtures, a lift allowing access to the roof as well as a partially enclosed structure surrounding that lift. The order was to be complied with by 10 February 2021.
While some limited steps had been taken to remove or alter parts of the structure, the order had not been fully complied with. Council filed an application for contempt of Court. In response, the respondents gave evidence to the Court that they had not fully complied with the order, as they were instead pursuing an approval for the works. They filed a cross application to delay or defer the enforcement order until a development application could be approved. The respondents argued that:
(a) they had taken some steps to comply;
(b) to the extent they had not complied, they were seeking approval for the works that remain;
(c) there was a real prospect approval will be given; and
(d) they should be given the chance to secure the approval rather than be put to the expense of removing the remaining works.
Contrary to those arguments, the affidavit evidence provided by the respondents themselves seemed to reveal that the town planners they had approached had significant doubts about whether their development application would be approved, given it exceeded planning scheme requirements regarding height above 8.5 metres. In addition, multiple consultants had refused to certify what remained of the unlawful works.
In respect of (a), His Honour Judge Cash DCJ accepted the respondents had taken some steps to comply with the order. In relation to (b) and (c), His Honour noted there seemed to be limited prospect of obtaining approval for the lift structure and the orders sought by the Dwyers would lack utility and serve only to delay. And for (d), His Honour stated that the expense was not a sufficient reason to defer or delay the order. The respondents’ application was dismissed for those reasons.
In relation to Council’s application, His Honour noted that a finding of contempt requires proof of two elements to be established beyond reasonable doubt, being:
His Honour found that the respondents had failed to comply with the enforcement order, and, noting the manner in which the respondents had conducted themselves (including, in effect, ignoring the enforcement order and pursuing other aims), that there was no lawful excuse for that failure. Upon finding that the respondents were in contempt of the P&E Court, His Honour determined it would be necessary to hear from the parties in respect of any penalty (which could include imprisonment) and any further orders.
The matter is listed for a sentence in early December and demonstrates the importance of complying with orders of the Court, particularly in an enforcement context.