Planning and Environment Quarterly Case Review – December 2022
We’ve kept things short and sweet in our final Planning and Environment Quarterly Case Review for the year. If you’re on the wind down to holidays, or already enjoying a break, this edition has just a few morsels to round out the year. Partner Sarah Macoun, Special Counsel Gemma Chadwick and Solicitors Ella Hooper and Georgia Mackenzie summarise cases concerning:
In this case, the Court was asked to decide an application for a preliminary approval for a material change of use of premises (including a variation request to vary the effect of the Sunshine Coast Planning Scheme 2014) for a range of uses on land located at Pacific Paradise, bordering the existing Twin Waters residential development.
The site was heavily constrained, with a large freshwater wetland at the center of the site. The importance of the wetland was reflected in the Council’s planning scheme provisions and the State’s mapping. Some patches of vegetation within the vegetation contained endangered threatened ecological communities and comprised Matters of National Environmental Significance (MNES). The adequacy of buffers to this wetland, and the potential for groundwater impacts on the wetland from the proposed saltwater lake network were pivotal issues in the appeal.
It emerges from the judgment that the Court was concerned that the focus had been accommodating a certain development footprint, rather than responding to the constraints of the site. For the ecological issues, the judge commented that the Appellant’s experts had assessed what had been designed, rather than considering what was appropriate from an ecological perspective.
The Court held that the buffers proposed simply did not comply with the planning scheme’s requirements, and there was no justification for the non-compliance. The potential effects of saline groundwater from the proposed lake leaching into the freshwater troubled the Court. The judge was not persuaded that the groundwater model was sufficiently rigorous or accurate to provide a sound basis for an engineering solution.
The ecological issues were a decisive factor against approval, and the Appellant’s appeal was dismissed.
This case involved a challenge to a code assessable development application. Council had approved construction of a gangway, deck and pontoon extending into a canal at Minyama. The applicants, whose property also fronted the canal, sought to challenge Council’s decision, alleging it was affected by jurisdictional error. They instituted declaratory proceedings in the P&E Court, asking for an order that the Council’s decision was invalid.
One of the assertions was that Council had failed to consider, or misapplied, a relevant assessment benchmark. The sole assessment benchmark was the Tidal Works Code. The allegation was that the assessment manager had wrongly concluded that the proposed jetty complied with the parts of an acceptable outcome (which, on the facts, did not apply to the proposed development), and then compounded the error by deeming this to be compliance with the corresponding performance outcome. The Court accepted the assessment manager’s evidence that he had properly considered the performance outcome, and assessed the proposed works accordingly.
The Court also commented that a non-statutory guideline, which contained some more detailed information about how to comply with the code, did not assist with considering how the Tidal Works Code was to be construed. The Court noted that the guideline was not called up as part of the assessment under the Tidal Works Code and that the Tidal Works Code could and should (where possible) be construed on its own terms.
The application was dismissed. The Court declined to make any declarations that the Council’s decision was materially affected by legal error, or was legally unreasonable.
This case is a costs decision – and a notable one. The developer was successful in its request for indemnity costs against submitter co-respondents for a certain portion of the appeal.
The facts leading to the costs decision are important. The proceedings involved a deemed refusal appeal instituted by the developer, and joined by the submitters. In the appeal, Council originally contended for a refusal on notified grounds. To discharge its onus, the developer appellant engaged 10 experts. Council engaged 5 experts. The co-respondent submitters did not call any experts.
After joint expert reports were completed, the Appellant made a minor change to its development proposal. That minor change application was approved, and the changes led Council’s experts to conclude that any remaining issues could be dealt with via conditions. By late August 2022, Council had given notice that it no longer maintained the application should be refused. The appellant then made a number of without prejudice offers to the submitter co-respondents to settle the appeal.
Those offers were rejected. The appeal went to trial for three days in September, where the submitters were the only parties contending for a refusal.
The Court held the refusal case advanced by the submitters was so devoid of merit to be groundless and vexatious. That was particularly troubling, the Court observed, as the submitters were experienced litigants in the Court, having been involved in a number of proceedings over the years.
In the merits decision, the Court noted that the submitters did not call expert evidence in support of their case and did not cross examine any witnesses in the appeal. The submitters alleged non-compliance with provisions of the scheme that had no application to the site or proposed development. They alleged non-compliance with the scheme on the basis that quantitative measures prescribed by probable solutions (not performance outcomes) were exceeded. The written submissions prepared on behalf of the submitters were one page and did not address each provision of the scheme with which non-compliance was alleged.
The Court held that the costs power was not enlivened when the appeal was commenced, but it could have been engaged as early as 26 August 2022 when:
Despite this, the Court was prepared to adopt a more generous view of the circumstances given the volume of material to be considered. The cost order covered the period from 6 September 2022 (the point by which the Court considered sufficient time had elapsed for the Co-respondents to consider all of the available material) to 15 September 2022 (the last day of the hearing).
The case is an important reminder of the duties of litigants in the Court to give careful consideration to their cases, and advance only the real issues in dispute.
This case involved a challenge by the Council to the decision of the Queensland Heritage Council to enter the Beaudesert Pig and Calf Saleyard into the State heritage register as a State heritage place.
Court cases in relation to entries in the Queensland heritage register are relatively rare. The appeal right is limited to whether the place satisfies the cultural heritage criteria in the Queensland Heritage Act 1992. In making its decision, the Queensland Heritage Council had determined that the Saleyard met 4 relevant criteria.
The evidence established that the Saleyards were constructed in in the 1960s. They were not the first Saleyard constructed in Beaudesert – those saleyards no longer survive.
The Court ultimately accepted the position advanced by Council (supported by the evidence of its expert heritage consultant) that:
Interestingly, the National Trust of Queensland had made a submission (when the Saleyard was being considered for entry in the register by the Queensland Heritage Council), indicating it did not believe the place met the threshold or criterial for cultural significance – stating that the Saleyard was neither early nor representative, and did not appear to have any strong or special association with the community.
The Court decided not to enter the Saleyard on the Queensland heritage register.