Defining the issues in dispute: leave is not required for an assessment manager to rely on provisions not cited in the decision notice

Key issues:

• The Planning and Environment Court has confirmed that an assessment manager is not bound by, or limited to, its reasons for refusal and does not require leave to rely on planning scheme provisions not articulated in its decision notice, with one qualification.
• Local governments ought to review their position in an appeal at an early stage of the proceeding before the issues in dispute are defined by an order of the Court.

In The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32, the Planning and Environment Court has confirmed that an assessment manager is not bound by, or limited to, its reasons for refusal and does not require leave to rely on planning scheme provisions not articulated in its decision notice, with one qualification.

In reaching this conclusion, His Honour Judge Williamson QC had regard to the nature of an appeal (that is, an appeal being a hearing anew) and the appeal right being in respect of “the decision” rather than the “reasons for refusal”, which are separate and distinct from the decision itself.

It is important to note that these reasons for judgment were published at an early stage following a preliminary hearing in respect of an Order to define the issues in dispute. The qualification is that this case is not an authority signalling that an assessment manager can, without leave, expand its issues in dispute when existing orders have been made defining the issues in dispute.

The practical implication of this case is that local governments ought to review their position in an appeal at an early stage of the proceeding before the issues in dispute are defined by an order of the Court. Such action is consistent with the implied undertaking to ensure that an appeal proceeds in an expeditious way as required by section 10(2) of the Planning and Environment Court Act 2016. This exercise would ordinarily involve the detailed review by Council appeal officers and lawyers as well as obtaining independent advice from proposed expert witnesses regarding the issues in dispute.

The case

In The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32, His Honour Judge Williamson QC decided that the Brisbane City Council (Council) was not required to seek leave from the Court to rely upon additional provisions that were not referred to in the reasons for refusal relating to development application seeking approval for a retirement facility on land situated at Oceana Terrace, Lota.

The Judgment was published on 16 July 2019, following an application heard in the Planning and Environment Court in Brisbane, on 24 June 2019. The application was made in the context of an appeal by The Village Retirement Group Pty Ltd (VRG) against the decision of the Brisbane City Council (Council) to refuse a code assessable development application for a Retirement Facility on land situated at Oceana Terrace, Lota (Appeal). The application itself related to whether the Council could rely on additional planning scheme provisions that were not referred to in the reasons for refusal provided with Council’s decision notice.

Council sought to define the issues in dispute by reference to two documents, namely VRG’s notice of appeal and Council’s correspondence dated 9 May 2019 notifying VRG of the additional reasons which was sent after the notice of appeal was filed but prior to the Court making any orders defining the issues in dispute.

Relying upon the Court’s decision in Waterman & Ors v Logan City Council & Anor [2018] QPEC 44 (Waterman), VRG opposed the issues in dispute being defined to include a particular overall outcome of the neighbourhood plan code. VRG submitted that the Council required the leave of the Court to enlarge its issues as notified in the letter of 9 May 2019 and that leave should not be granted.

His Honour ultimately made an order defining the issues in dispute to include the entire contents of the 9 May 2019 letter. The key reasons for this decision can be summarised as follows:

(a) It is common practice for the Planning and Environment Court to make an order which defines the issues in dispute. As an order had not been made in these proceedings, no application was required to “enlarge” the issues.

(b) The Council had provided VRG with written notice of its intention to rely on matters beyond the reasons for refusal in advance of the issues in dispute being defined.

(c) The present case could be distinguished from the Waterman case. The application considered by the Court in Waterman sought to vary existing Court Orders that defined the issues in dispute and also sought the ability for Council to rely upon a new document which illustrated a change in attitude by the Council to the development application (from no longer supporting approval to contend for a refusal). His Honour Judge Williamson QC noted that a change in position by a local government conveys a change to the “decision”, as distinct from a change to the reasons for refusal.

(d) Any requirement for a Council to obtain leave to enlarge its issues, and to provide an explanation for doing so, sits uncomfortably with the legislative regime for appeals to the Planning and Environment and long-established authority. Specifically:

1. There is no provision in the Planning Act 2016 or the Planning and Environment Court Act 2016 that requires the Council to obtain leave to raise in an appeal, reasons other than those articulated in its decision notice.
2. The appeal right conferred by section 230 of the Planning Act 2016 is against a “decision” (approval, refusal etc.) and not against the “reasons” for the decision. The decision and the reasons for it, are separate and distinct under the Planning Act 2016.
3. Section 43 of the Planning and Environment Court Act 2016 provides that an appeal is by way of hearing anew. In the context of a fresh hearing on fresh material, an assessment manager is not bound by, or limited to, its reasons for refusal.
4. The cases of Chalk & Anor v Brisbane City Council [1966] 13 LGRA 228, Walker v Noosa Shire Council [1983] 2 Qd R 86 and LMRM v Brisbane City Council [2017] QPEC 7 were cited as authorities which confirm that an assessment manager is not restricted to its reasons for refusal and may raise such other relevant matters in an appeal against its decision.

For more information or discussion, please contact HopgoodGanim Lawyers’ Planning team.