Planning and Environment Quarterly Case Review - March 2023
In our first Quarterly Case Review for 2023, Partner Sarah Macoun and Special Counsel Gemma Chadwick in our Planning and Environment team cover four interesting cases. The points covered are novel and topical ranging from:
In this case, the point before the Court was whether consent of the Body Corporate (as owner of the common property) was required for a development application seeking to permit short-term accommodation of existing residential apartments in South Brisbane.
The apartments had been approved as “multi-unit dwellings” under Brisbane City Council’s City Plan – relevantly defined as “a use of premises as the principal place of longer term residence by several discrete households, domestic groups or individuals irrespective of the building form.”
The applicant, a property management business, lodged an application for a material change of use for short-term accommodation. uncil issued an action notice, stating the consent of the body corporate was required. In the proceeding before the Planning and Environment (P&E) Court, the applicant sought to argue that there would be no material change to the use of the common property and, accordingly, the application did not include the common property and the Body Corporate’s consent was not required.
The evidence was that the short-term use of some of the apartments had been occurring for some time. The Body Corporate led evidence documenting a number of respects in which the short-term accommodate use being conducted was materially different in terms of impacts upon the common property (e.g. impacts on vehicular access and car parking, cleaning trolleys and temporary bedding in corridors, and the pool being used regularly for “large, rowdy parties”).
The Court was satisfied on the evidence that the short-term accommodation use had resulted in a material intensification of the use of common property in a way that went beyond mere speculative assertions. The Court also held that the use was causing damage to common property in a way unlikely to have occurred absent the use. The Court observed the short-term accommodation use attracted a demographic “regularly looking for a good time, in circumstances where they are not staying for a long time.”
In those circumstances, the Court was satisfied the consent of the Body Corporate was required for the development application. A cautionary word – this case is not authority for the proposition that body corporate consent for common property will always be required for an application for short-term accommodation. A number of cases have been decided differently, on different facts. The categorisation of whether there is a material increase in the intensity or scale of the use of the common property will always depend upon the facts before the decision maker.
This case is an interesting example of potential outcomes from an appeal to the P&E Court, which is a hearing anew.
The applicant had sought approval for a “mixed use” development comprising an apartment building, tourist accommodation, refreshment establishment and shop on land near the water at Cleveland. The code assessable development application had a complicated history even before it reached the P&E Court. The relevant chronology was that:
In the appeal, Council articulated its concerns that the proposal was not a mixed-use development and that the lack of sufficient car parking could not be remedied by the imposition of conditions, but instead only by a differently designed development. Its position was that the development application should be refused.
The Court determined that the development application, as changed, did not comply with assessment benchmarks related to traffic issues, the mix of uses, and the activation of the frontage. Her Honour determined that the non-compliances could not be remedied by the imposition of conditions.
The tricky point was what orders should be made. Council’s position was that, in determining whether to refuse the development application, or confirm the Council’s decision to grant a preliminary approval, the Court should made orders refusing the development application rather than dismissing the appeal.
The appellant took a different view. It said that if the Court determined not to replace the preliminary approval with a development permit, the order should be that the appeal was dismissed. It submitted this would have the effect that the preliminary approval for the unchanged application was approved.
Her Honour disagreed. She observed that, by changing the development application, the appellant had implicitly acknowledged that the development described in the preliminary approval was no longer sought. She noted that it cannot be that when a party makes a minor change, the Court then has before it two proposals.
In any event, there was no evidence before the Court in relation to the proposal the subject of the preliminary approval. The appellant had not established that the changed development should be approved. Her Honour made orders setting aside Council’s decision to approve the development application and replacing it with a decision that the development application was refused.
This appeal related to a redevelopment proposal for the Old Burleigh Theatre Arcade. Council had approved the developer’s application for a multiple dwelling building containing 30 units, food and drink outlets and shops and building works to authorise the partial demolition of the old arcade. Two submitters appealed that decision to the P&E Court.
The submitter appeal was ultimately dismissed. Traffic had been raised as an issue in the appeal – the development was close to the Gold Coast Highway – and the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning had joined the appeal as a co-respondent by election. It had been a concurrence agency for the development application, and issued a referral agency response requiring conditions to be imposed on an approval.
One of the interesting points in the case is the role of the State Development Assessment Provisions, and how the Court undertakes the assessment required to be carried out by the referral agency under the Planning Act 2016 (Qld) as opposed to the assessment manager (i.e. the Council).
P&E Court appeals are hearings anew. It is well known that the Court “steps into the shoes of the assessment manager” when deciding a development application. That power relates to the source of the Court’s jurisdiction where (relevantly for submitter appeals) an appeal may be made against the decision to approve an application (Schedule 1, Table 2, Item 2 of the Planning Act). In that case, the applicant for development and Council (as the original assessment manager) are automatic parties to the appeal. The appeal must be served on any concurrence agencies, who may elect to join an appeal as a co-respondent by election.
The Court also has the power to hear a submitter appeal against a provision of the development approval (Schedule 1, Table 2, Item 3 of the Planning Act). The Court observed that provision confers an appeal right on submitters in relation to a referral agency’s decision. If the appeal relates to a concurrence agency’s referral response, the concurrence agency is an automatic party to the appeal. It is named as a co-respondent. In those circumstances, the Court “stands in the shoes of the referral agency”.
In this case, the submitters’ Notice of Appeal did not make reference to the Chief Executive’s referral agency response. However, the Court observed that it was evident through the course of the appeal that one of the submitters had intended to take issue with the extent of compliance with the State Development Assessment Provisions – in effect, challenging the part of the decision notice that included the Chief Executive’s conditions. The Court was prepared to proceed on that basis that the submitter had exercised his rights under both Items 2 and Items 3, and the failure to name the Chief Executive as a co-respondent should be excused.
The points that can be distilled from the judgment are that:
It may be that an appeal has two aspects – a challenge to Council’s decision, and a challenge to a concurrence agency’s referral agency response. In those circumstances, the Court assumes two roles in determining the appeal and, as outlined above, there is a subtle but important difference as to the role of a concurrence agency’s referral agency response, and the State Development assessment provisions. A final permutation is that the State development assessment provisions may be assessment benchmarks where the chief executive is the prescribed assessment manager.
In a much-anticipated decision, the P&E Court handed down its reasons for judgment in this case late last year.
The case involved challenges by the Applicant, Riverside (the owner of the Riparian Plaza building) to the validity of a development approval issued by Council to Dexus in respect of its proposed Eagle Street Pier redevelopment. The development application was code assessable.
Key issues included:
The Court found against Riverside on these points (and others raised), ultimately determining that the development approval was valid. The Court’s decision contains analysis of relevant provisions in the City Centre Neighbourhood Plan, and the interaction of those provisions (which use terms including “maximum building height”, “finished level” and “maximum tower site cover”) with key definitions in Brisbane City Plan (including building height, ground level, site cover and site), and the application of those provisions to the particular circumstances of the case.
The judgment provides important guidance but, a post script, this case is the subject of an application for leave to the Court of Appeal, which is still yet to be heard. There may be more guidance to come from any judgment of the Court of Appeal.