The Planning Act 2016 (Planning Act) commenced on 3 July 2017. As the first appeals work their way through the system, the Court has recently had to address a complex issue arising from the transitional provisions - for applications that had been assessed and decided under the Sustainable Planning Act 2009 (SPA), but resulted in appeals filed after the commencement of the Planning Act, which decision and assessment framework applied in the appeal?
The historical background
The Planning Act marked a dramatic change to the decision rules applying to assessment of a development application. Under SPA, a two-step approach of assessing for conflict with a planning scheme and considering whether there were sufficient planning grounds to warrant approval (in the light of any identified conflicts) was entrenched. The Planning Act removed the conflict/sufficient grounds test and instead requires a balanced assessment for compliance (including the weighing of competing matters) before reaching a decision.
The decision
In Jakel Pty Ltd & Ors v Brisbane City Council & Anor, Her Honour, Judge Kefford, ultimately determined that the Planning Act assessment and decision regime applied to any appeal started after the commencement of the Planning Act. The subject appeal involved a development application lodged in late 2016, while SPA was in force, and refused by Council on 17 July 2017, after the commencement of the Planning Act. The appeal was filed on 10 August 2017. Council argued that the SPA decision rules applied. The developer submitted that the Court was required to assess and decide the application pursuant to the Planning Act.
The transitional provisions
At first blush, the transitional provisions of the Planning Act seem relatively clear. Section 311(2)(a) provides that, for proceedings already started in the Planning and Environment Court, SPA continued to apply. Section 311(4) goes on to provide that, where an appeal right had arisen before the commencement of the Planning Act (but had not yet been acted on) or where the appeal right crystallised after the commencement of the Planning Act, those proceedings “may be brought only under the Planning Act”.
The arguments
Council questioned whether section 311(4) was administrative only - i.e. the appeal was commenced under the Planning Act, and the Planning Act governed matters dealing with identification of parties and service rather than substantive matters such as the assessment and decision framework.
Council also submitted that SPA, not the Planning Act, conferred jurisdiction to the Court. Section 288 of the Planning Act states that SPA continues to apply to development applications made, but not decided, before SPA was repealed. Council questioned whether an application assessed accordingly could involve an appeal against a “decision under the Planning Act”. In support of that submission, it noted that an approval of a development application assessed and decided under SPA would not take effect until the appeal was finally decided or withdrawn. It was only at that point that the approval would be taken to be an approval under the Planning Act.
Finally, Council argued that applying the Planning Act decision rules would result in an incongruous outcome. On appeal, the Court has the power to “confirm” the assessment manager’s decision. Council argued that language did not sit well with a circumstance whereby a decision, which involved consideration of conflict and grounds under the SPA, could be “confirmed” under the quite different decision making regime under SPA. However, the Court noted that, while it was an outcome that differed from transitional arrangements arising from the repeal of the Local Government (Planning and Environment) Act 1990 and the Integrated Planning Act 1997, it was not an absurd result. Rather, it was a consequence of the appeal being, by way of hearing anew.
The analysis
Her Honour Judge Kefford undertook a detailed analysis of the transitional provisions of the Planning Act, their interaction with the decision rules and other contextual matters including that an appeal to the Planning and Environment Court is a hearing anew. She considered that the legislative intent apparent in section 311 was that any appeal commenced after 3 July 2017 is to be heard and determined under the Planning Act.
Notably, the decision in Jakel is at odds with the decision in Guerin & Anor v Scenic Rim Regional Council & Ors [2018] QPEC 016, released a month earlier, where the Court proceeded on the basis that the SPA assessment and decision rules applied. In Jakel, Her Honour noted that both the appellant and respondent in Guerin submitted that SPA applied, and the Court’s attention was not drawn to the contextual matters considered in detail in Jakel.
The implications
The case has important implications for developers and Councils alike. For all appeals commenced after 3 July 2017, parties should consider whether their cases have been framed appropriately. A focus on conflict and sufficient grounds is no longer appropriate. Rather, a development application must be decided under the new Planning Act regime, which requires a balanced consideration of relevant matters. Overall, the decision rules under the Planning Act are more flexible and less prescriptive than under SPA. Reasons for refusal, grounds for approval and the evidence lead before the Court should all be considered in that context.
For more information or discussion, please contact HopgoodGanim Lawyers’ Planning team.