Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 

Key points

• The Coty principle is an important principle when considering draft planning schemes that have not yet taken effect. However, as the Court of Appeal has highlighted, the draft planning scheme may be one of many considerations relevant to a decision to approve a development application. As was the case here, there were many other competing considerations relevant to the exercise of the discretion, and there was no obligation on the P&E Court to give determinative weight to the draft planning scheme.
• While non-compliance with a planning instrument might be determinative based on the facts and circumstances of an individual case, it is not an inevitably determinative consideration mandating that the development should not be approved. The ultimate decision called for under ss 45 and 60 of the Planning Act is a broad, evaluative judgment.

Introduction

The Court of Appeal has delivered its decision in Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253. The first instance decision of the Planning and Environment Court (P&E Court) was of particular interest because it considered Major Amendment Package H which removed provisions from City Plan 2014 allowing for multiple dwellings in the low-density residential zone in particular circumstances.

The Court of Appeal dismissed the Council’s application for leave, upholding the P&E Court’s decision to approve the multiple dwelling development. The judgment is important because of the Court of Appeal’s consideration of the Coty principle and the impact assessment regime under the Planning Act 2016 (Planning Act).

The questions in YQ Property

There were two core grounds of appeal considered by the Court of Appeal:

1. That there was a misapplication of the Coty principle; and
2. That there was a misapplication of the Biodiversity Areas Overlay Code.

1. Coty principle

The Coty principle applies when considering development applications in an era where a new or amended planning scheme is under consideration but has not yet taken effect. As explained by Justice Henry, the Coty principle expresses two public interest considerations:

1. the avoidance, as far as possible, of a judgment which would render more difficult the ultimate decision as to the form the planning scheme should take; and
2. that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation.

The first consideration is sometimes referred to as the “non-derogation” principle. The rationale being the desirability of the court not making a decision on a planning appeal in circumstances where it would make the democratic process surrounding the development of a new planning scheme more difficult. It was not relevant in the P&E Court below.

The second consideration allows the Court to take into account the terms of a draft scheme or planning instrument before that instrument has entered force. It is a concession to the reality that planning is an ongoing process and that it is unwise to ignore the future direction of a planning scheme when the development the subject of the application will have to co-exist with whatever that future direction might be. It was the second consideration which was in issue.

The Council’s argument was that firstly, the P&E Court incorrectly applied the first public interest consideration when it was the second public interest consideration that was relevant. Secondly, that even if the second public interest consideration was applied, it must have been misapplied because it should have been given “significant and determining weight”. The Council’s submission was in effect “that the second public interest consideration must as a matter of law be given determinative weight, mandating that the relevant judgment must accord with the draft planning scheme”. That is, Major Amendment Package H should have been given determinative weight and the appeal before the P&E Court should have been dismissed.

The Court of Appeal found that there was no error in the application of the Coty principle. In coming to this conclusion, it made the following important comments:

• The P&E Court did have regard to the second public interest consideration along with a variety of other competing considerations, and it was a matter for the P&E Court to assess the weight to be given to the various competing considerations, notwithstanding the relevance of Amendment Package H. Importantly, while the second consideration is a relevant public interest consideration in arriving at a judgment, it does not mandate that the judgment must accord with the draft planning scheme.
• This case was quite different to the case in Coty where the development of a factory would so fundamentally alter the residential suburb as to bespeak obvious dissonance with the new planning scheme. Here, the decision to allow a multiple dwelling development akin to others already dotted about a suburb in which detached dwelling houses will continue to predominate was reasonably open to the P&E Court. That predominance would continue to hold against a lack of consonance with the new scheme.
• The argument (that the second public interest consideration must as a matter of law be given determinative weight) was at odds with the statutory framework. The starting position under s 45(7) of the PA that an assessment manager must assess “against or having regard to the statutory instrument…as in effect when the development application was properly made” does not eliminate the Coty principle, but to invariably accord a draft scheme determinative weight would be at odds with the express statutory obligation. Further, an assessment manager is afforded discretion under s 45(8) of the PA to give the weight the assessment manager considers appropriate to later or amended statutory instruments. Here, s 45(8) did not apply because Amendment Package H had not taken effect when the P&E Court decided the case, however, the Court of Appeal noted that the retention of such discretion in the PA is inconsistent with the Council’s position that an earlier stage of the draft instrument is of determinative effect.

2. Biodiversity Areas Overlay Code 

There were several trees on the land, with three significant trees to be retained, four to be removed if the development proceeded, and deep planting and compensatory trees proposed. The Council submitted that the P&E Court misinterpreted PO6: 

“Development ensures that ecological features … within the General ecological significance sub-category area are protected, conserved and restored to ensure the area’s long-term viability.” 

The P&E Court’s conclusion was that on the facts of the case, despite the loss of the four trees, the development would actually deliver a net gain in ecological quality. The Council submitted that PO6 required the trees to be “protected, conserved and restored” and the P&E Court erred in concluding that the four trees were not entitled to “blanket protection”. The Council in effect submitted that non-compliance with PO6 is an inevitably determinative consideration, mandating that the development should not have been approved.

The Court of Appeal noted that the ultimate decision called for when making an impact assessment under ss 45 and 60 of the PA is a broad, evaluative judgment. While s 45(5)(a) requires the assessment must be carried out against assessment benchmarks, s 45(5)(b) gives the assessment manager broad warrant to have regard to “any other relevant matter”. Section 60(3) stipulates the potential decision outcomes without proscribing which decision should be reached. This is not to suggest the nature and extent of inconsistency with a planning instrument might not end up being a determinative consideration against approval in an individual case. As the Court of Appeal said, a case like the present, in which an inconsistency with the Biodiversity Areas Overlay Code was outweighed by the overall ecological benefits of the development, well illustrates the utility of the discretion.

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