Welcome to the first Quarterly Case Review for 2022, where Partner Sarah Macoun, Senior Associate Gemma Chadwick and Solicitors Georgia Mackenzie and Sam Lawford wrap up interesting and topical cases from the Courts.
The first Court of Appeal decision on planning matters came out in February, and the Development Watch case is an interesting one for its examination of community expectations, and weight for new planning instruments. In a continuing trend, the Planning and Environment Court was asked to adjudicate on another service station development in Yorkey’s Knob BP v Cairns Regional Council. Retail development is another perennial theme, and in Noosa Spotlight, the Court considered the need for large format, specialist retail development. Variation requests, and the certainty of development outcomes were a feature in the decision of Southway Services case. Finally, in a short but significant decision, the High Court of Australia dismissed the special leave application in King of Gifts meaning the Court of Appeal’s decision stands, and Council’s original decision to refuse the application was upheld.
Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 6
This was an application for leave to appeal against the decision of the P&E Court to dismiss a submitter appeal brought by Development Watch, in respect of the Council’s decision to approve an application to develop the Coolum Hyatt site at the Sunshine Coast. The local community group was successful in the Court of Appeal on some, but not all, of its grounds for appeal.
The focus of the case in the Court of Appeal was the provisions of the Height of Buildings and structures overlay code. The code, as in force at the time the development application was made, contained three overall outcomes.
- Overall Outcome (a) focused on built form character.
- Overall outcome (b) focused on building height and required that height be “consistent with the reasonable expectations the local community”.
- Overall Outcome (c) dealt with amenity.
PO1 of the code required that the height of a building or structure not exceed the maximum height specified on the relevant overlay map. By the time of the appeal, a new version of the planning scheme was in force. It included a new overall outcome that effectively elevated the content of PO1 and required that building height comply with specified height limits (which were explicitly provided for in the code). The submitters had raised this provision contextually during the P&E Court appeal, but had not identified it as a focal provision.
The challenge in the Court of Appeal concerned the primary judge’s findings that the proposed development complied with the Height of buildings and structures overlay code, and was consistent with the reasonable expectations of the community. Overall outcome (b) was key. The Court of Appeal determined that the primary judge was obliged to consider whether the height of the buildings and structures in the proposed development was consistent with the reasonable expectations of the community.
The Court of Appeal found some errors in the primary judge’s approach in three respects:
- First, that the primary judge failed to make a finding as to what the expectations of the local community were in respect of building height, with the consequence that there was no base to work from when assessing whether those expectations were reasonable in light of the applicable planning scheme provisions.
- Second, that the primary judge failed to have proper regard to the 11,666 community submissions, including the 9,288 that opposed the development. Here, the Court of Appeal acknowledged that while the planning scheme may be regarded as a prima facie expression of what will constitute the appropriate development of the site in the public interest, there was (in this case) a credible source of evidence as the expectations of the local community – being the submissions lodged during the public notification process. The Court of Appeal found that the planning scheme was given primacy to such a degree that it set to nought the evidence sourced from the local community (which as an error of law);
- Third, that the primary judge had no regard to the version of the planning scheme current at the time of the appeal. Significantly, the Court of Appeal noted that the current version of the planning scheme seemed to reflect much of the sentiment expressed in the submissions made in opposition to the development. In considering expectations about height, the P&E Court had regard to an early approval on the site and noted that “it was reasonable for the community to expect that the subject land might be developed for a more intense form of development.” The Court of Appeal held that, if contextual notice had been taken of the current version of the scheme, it was apparent that the planning scheme had headed in the opposite direction.
Development Watch was unsuccessful in two elements of its case – first, in an argument about the proper construction of the scheme provisions, where the Court of Appeal found that the P&E Court had properly considered each overall outcome, and had not conflated their content; and second in an argument that the P&E Court had erred in finding that there was a planning need for the development. The Court of Appeal found there was no substance in this ground of appeal.
The Development Watch case is an important one, and one worth reading in detail to understand the nuances of the arguments advanced for each of the parties.
The primary judge followed existing authorities to the effect that, the expectations of the local community, to be reasonable, must be assessed in light of all the planning provisions applying to the site. The Court of Appeal observed that, although Her Honour acknowledged the strength of opposition in a general way, no detailed analysis of the content of the submissions appeared to have taken place, with opposition to the proposed development on the basis of height seen to be trumped by the planning scheme. In effect, our reading of the Court of Appeal’s decision is not that it departs from existing authorities with respect to submissions generally but, rather, reinforces that a high degree of analysis is required when dealing with submissions in the context of planning scheme provisions which reference community expectations.
The Court of Appeal made orders inviting submissions on the terms of the remittal to the P&E Court. On remittal, the question of weight will be an interesting one. For instance, while the Court of Appeal has identified the scheme amendments should be considered, on remittal to the P&E Court, the weight to be given to the amendment will be a discretionary matter for the presiding judge. The error identified by the Court of Appeal was not the amount of weight given to the amendment, but rather the failure to consider it at all. The weight to be given to the submissions, in the balanced exercise of the planning discretion, will also be a matter for the presiding judge.
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6
This case involved a service station proposed on land located on the Captain Cook Highway in Cairns. It was refused by Council, and that refusal was ultimately upheld by the Court.
The site was located on land in the rural zone, on the corner of a busy highway. From a purely functional perspective, the Court acknowledged that it was a good location for a service station. However, the Court found the development was completely at odds with the clear planning intent that it not occur on the site. The site was designated as part of a wider area of rural land, exhibiting rural amenity and landscape values. There were key provisions in the planning scheme, directed toward maintaining land for an “inter urban” break. The Court accepted evidence from Council’s town planning expert that there a clear, and soundly based, planning intent behind the “inter urban” break provisions – that is, Cairns had been developed in a linear form (due to the physical constraints of the ocean to the east, and the mountain range to the west) and that, without appropriate inter-urban breaks, it was in danger of becoming a single, linear metropolis losing the character that has evolved from a serious of discreet villages and townships for the northern beaches.
The appellant sought, unsuccessfully, to establish that there was a significant need for the development. It emphasised the integrated nature of the proposal, designed to meet the needs of heavy and commercial vehicles passing through the northern beaches (in the form of anything that is not a car, utility or light van right up to a B-Double or a road train), as well as tourist and visitors to the northern beaches. The Court held the appellant had not demonstrated need from the perspective of either the requirements of the road transport industry or tourist industry in the Cairns region.
The Court concluded the Appellant had not discharged the onus of demonstrating a sufficient level of need for the proposed development to overcome the fundamental and serious inconsistencies with the planning strategy evident in the provisions of the planning scheme, which sought to keep the site in a rural state in order to preserve the rural amenity of the inter-urban break in which it is situated. The appeal was dismissed.
Southway Services No. 2 Pty Ltd v Brisbane City Council & Ors [2022] QPEC 55
This appeal related to Brisbane City Council’s decision to refuse a development application over land at Fairlawn Street in Nathan. The development application sought to gain preliminary approval for a material change of use for accommodation activities on the land (comprising a mix of dual occupancy, dwelling house, multiple dwelling, residential care facility, retirement facility, and rooming accommodation). There was also a variation request component to the application, which sought to vary the effect of Brisbane City Plan 2014 so that future applications for accommodation activities on the site would not require public notification.
The interplay between the certainty of development outcomes on one hand, and the need for the development on the other, was an interesting feature of the case. For the residential care facility and retirement facility aspects of the case, the developer sought to emphasise that the proposed development would facilitate “aging in place”: a planning principle strongly encouraged by City Plan. However, the Court determined that the development application lacked any substantive detail on how residential aged care or retirement facilities would be incorporated into the final design of the development. Consequently, the weight given by the Court to the need to provide a diversity of housing, including housing that permits aging in place (a relevant matter commonly packaged as the provision of “choice” for the community) was tempered by the lack of certainty about the ultimate mix of uses the final development would have on the site.
The Court concluded there was no certainty, based on the development application, that the final design would result in the construction of any additional aged care accommodation, or retirement facilities. Given the form of the approval: it might, or it might not. The Court had no confidence that the grant of preliminary approval and a variation approval would deliver many of the benefits the developer had sought to rely on to support an approval.
The lack of detail in the application also contributed to the Court’s concern about the impacts on future submission rights. The Court noted that approval of the variation request component of the application would ultimately increase the range of uses of the site that could be approved in subsequent development applications without triggering an impact assessment. The Court found that was contrary to public interest, as the community should not be precluded from making submissions with respect to future development applications for the types of developments which were subject to the Variation Request – and this was especially relevant given the lack of detail which was provided in the development application regarding the proposed development.
The appeal was dismissed.
Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77
This was an appeal by Noosa Spotlight Property 2 Pty Ltd (Noosa Spotlight) against the decision of the Noosa Shire Council (Council) to refuse a development application for an “Undefined Use” with respect to land on Hofmann Drive, Noosaville to facilitate development of an integrated mixed-use precinct called “Noosa Marketplace”. Noosa Spotlight and Anaconda were interested in operating two of the large retail showrooms in the proposed development.
Muir DCJ ultimately dismissed the appeal and confirmed the Council’s decision to refuse the development application on the basis that Noosa Spotlight failed to, among other things, show that there was a planning, community and economic need for the proposed development. It was a feature of the case that the development involved large format, specialist retail rather than, for instance, a supermarket which provided for the “essentials of life”.
In respect of whether there was an economic need for the development, Her Honour found that:
- as a matter of common sense and knowledge, the sprawling nature of the Noosa area leads to an expectation that travel will be necessary to access certain goods and services and that it is reasonable to infer that for many people, the ‘slower’ lifestyle and emphasis on local, small-scale retailers is a drawcard of the area;
- the products sold by Spotlight and Anaconda, whilst valued and useful, were hardly essentials of life, and the residents of Noosa were presently reasonably well supplied with large format retail including shops which directly compete with both Spotlight and Anaconda;
- although it may eventuate that the population of Noosa grows in the future to such an extent that the lifestyle changes and the community no longer expects to have to travel to access large format retail, it would be entirely inappropriate for the Court to project and plan for the future needs of residents of the area on the basis of speculative predictions of future demand.
In respect of whether there was a community need for the development, Her Honour found that:
- the question of choice did not create a community need in this case because the goods on offer from Spotlight and Anaconda were largely already available at locations within a travel distance that was appropriate for the spending habits of the community and were not ‘essentials of life’ where choice presents a public benefit commensurate with need;
- that Noosa Spotlight’s desire to open a store at Noosa would not establish any relevant community need – it only reflected Noosa Spotlight’s own views on need;
- in the whole context of the case, the issue of convenience did not amount to a need since it was entirely appropriate and expected that consumers may have to travel to access the types of goods offered by larger retail outlets such as Spotlight and Anaconda; and
- the evidence was not sufficient to demonstrate that the mixed-use precinct would produce a greater vitality and vibrancy or any employment benefits to the community compared to that which would be achieved by a development that accorded with the planning intentions for the land.
Finally, in respect of whether there was a planning need for the development, Her Honour found that:
- although the parties’ need experts noted that, apart from a portion of the subject site, there was no vacant land in the Noosaville business zoned area for substantial large format retail/showroom uses, this was not of itself sufficient to indicate that a planning need was established. The 2020 version of the scheme (which was given some weight in the Court’s assessment) intended a “substantial amount” of non-retailing employment opportunities and limited additional showroom retail spaces in the Shire Business Centre.
The appeal was dismissed, and the application was refused.
King of Gifts (Qld Pty Ltd & Anor v Redland City Council [2022] HCASL 57
The developer’s application for special leave was dismissed, with costs, on 16 March 2022, ending the long running dispute about a proposed service station and drive through restaurant at Alexandra Hills.
With Bell v Brisbane City Council [2018] QCA 84, and Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, King of Gifts is one of the trilogy of cases in the Queensland Court of Appeal that concerned the decision rules and the role of the planning scheme under the now repealed Sustainable Planning Act 2009.
The High Court has not published any reasons for its decision to refuse special leave.
The High Court’s decision means the Queensland Court of Appeal’s decision stands, and Council’s refusal of the development application is sustained.