Welcome to the latest Planning and Environment Quarterly Case Review. In this publication, we provide a brief analysis of recent judicial decisions shaping the landscape of planning and environmental law from across the country. Covering April to June 2024, we discuss:
- The latest judgment from the Court of Appeal about the interaction between acceptable outcomes, the reasonable expectations of the community and consideration of properly made submissions, in the context of planning scheme provisions dealing with height.
- A P&E Court case which considers the extent of the part approval and conditioning power, as well as other interesting legal points about weight to be given to new planning scheme provisions and the threshold for environmental offsets.
- Another P&E Case involving a challenge to an infrastructure charges notice (ICN), on the basis of errors in calculations as well as unreasonableness, in connection with an approval for rooming accommodation.
- A final P&E Court case where the Court was asked to consider a development proposal over land that was subject to a condition in an existing approval, which required that land to be transferred to Council for drainage and open space.
Clarry v Brisbane City Council [2024] QCA 39
The primary issue in this Court of Appeal decision was whether a proposed five storey apartment building in New Farm was consistent with the overall outcomes sought in the New Farm and Teneriffe Hill neighbourhood plan regarding height.
The P&E Court, at first instance, had determined that the development was consistent with qualitative provisions in the planning scheme, relating to height, scale and built form. The submitter appellants argued the height was inconsistent with quantitative provisions found in acceptable outcomes, which they argued affected community expectations and, in that respect, were imported into the overall outcome which required height, scale and form to be consistent with the amenity, character and community expectations for the area. The Court of Appeal concluded there was no error of law in the primary judge’s construction of the neighbourhood plan, which gave the qualitative provisions of the overall outcomes priority to the acceptable outcome.
The Court of Appeal also revisited the role of submissions, and the reasonableness of expectations, following on from the decision of Development Watch (a decision of a differently constituted bench of the Court of Appeal). The Court of Appeal distinguished Development Watch factually, noting that the significance of the height of the building and the location of the site in question had a very different context in terms of the relevant planning scheme, compared to the development considered in the Development Watch case.
The Court of Appeal noted that one of the legal errors identified in Development Watch was that the primary judge had not made a finding about what the expectations of the residents were about height, before going on to consider the reasonableness of those expectations in light of the planning scheme provisions.
In Clarry, the Court of Appeal concluded that by rejecting the submitters stated expectations that building height would be limited to two or three storeys, it was implicit that the primary judge had concluded that the reasonable expectations of the community was for building height to be in excess of two storeys and could extend to at least the height of the proposed development (which was five storeys).
The Court of Appeal refused leave to appeal, which has the effect of confirming the P&E Court’s decision, and upholding Council’s approval of the development.
427 Beckett Rd Pty Ltd v Brisbane City Council (No 2) 2024 QPEC 24
This case featured in our March Quarterly Case Review, for a minor change application that was found not to be minor. This time, our summary covers the full merits hearing which involved two very interesting legal issues – the extent of the conditioning power and part approval power to effect changes to an application, and the weight to be given to Council’s new planning scheme provisions, which had rezoned the land from emerging communities to an environmental management zone. There was also an interesting question about whether the threshold for an environmental offset had been reached.
On the part approval/condition point, Council was concerned that the developer was using those mechanisms to effect changes to the application that were more than minor (a minor change application had been refused earlier this year). The Court found for the developer on that point, concluding that (while it was a marginal case) it was largely a “part approval, with some conditions which permissibly do not modify the proposal to an unacceptable degree”. As a part approval, the minor change test was found not to apply.
On the weight to be given to the new provisions, the Court found that the new provisions should be given decisive weight. The original proposal was “quite unacceptable” under the old scheme, and while things had been done over the four years to make it more acceptable, they had varying degrees of success. The Court considered issues such as fairness to the parties, noting that the provisions had been introduced after the appeal had been decided by Council, but that they better reflected the actual ecological value of the site in a way the previous mapping did not. The site contained an endangered regional ecosystem, and essential habitat for the koala, tusked frog and powerful owl. Ultimately, the Court concluded the new provisions were “the rock upon which the appeal founders”. The new provisions supported development of dwelling houses on large acreage lots, at a very low density, which would minimise impacts on ecological values. The proposal was simply not that kind of development.
Finally, the judge accepted Council’s position that the threshold for an offset had not yet been met, because all reasonable onsite mitigations had not been taken.
The appeal was dismissed, and Council’s refusal upheld.
Timor 34 Pty Ltd v Logan City Council [2024] QPEC 27
In this case, the P&E Court dismissed an appeal against an ICN issued by Council. Council had issued an approval for rooming accommodation, on a site in Loganholme. The approval was for “6 x 12 units (72 bedrooms)”. The developer argued the charge should have been calculated based on 12 “suites” (a term used in the charges resolution), rather than 72 bedrooms. The appeal concerned whether there was an error in the charge, or whether the charge was so unreasonable that no reasonable local government could have imposed it. Both arguments were unsuccessful.
The Court looked at how the word “suite” was used in Council’s charges resolution. It was defined as a number of connected rooms, one of which was a bedroom, where an individual or group would reside with a common intention to live together on a long-term basis, making common provision for food or other essentials for living. An example given was a hotel suite with up to three bedrooms. The Court found, looking at the approved plans, that the development was set up so that each of the 72 bedrooms would be occupied separately, with no functional connection that would facilitate a “common intention” to live together. Each unit (the bedroom and associated ensuite) could be occupied exclusively, without reference to any other occupant of a unit. The Court reached this conclusion, conscious that each occupant would have access to shared facilities, like a common living and kitchen area.
The alternative case advanced was that the charge was so unreasonable that no reasonable Council could have applied it. The contention was based on two comparative exercises. The first was comparing the charge for 72 bedrooms (which amounts to around $1.5million), to the charge for six suites (which amounted to around $185,000). The second was to compare the charge to similar charges for dwelling houses, a multiple dwelling, and dual occupancies – the result being said to yield a result that demonstrated the charge was equivalent to 72 dwelling houses, 72 multiple dwellings or 72 dual occupancies. The Court found these comparisons were of no assistance, primarily because the charges regime does not contain a nexus between actual extra demand, and a levied charge. Here, the charge Council had levied represented the correct application of its charges resolution. The Court did not accept the amount charged was unreasonable, let alone so unreasonable that no local government could have imposed it. The decision was justifiable by reference to the charges resolution.
The appeal was dismissed and the decision to give the ICN was confirmed.
Kenfrost (1987) Pty Ltd v Cains Regional Council & Ors [2024] QPEC 15
The subject site in this case was subject to a condition in an existing, staged approval, which required that it be transferred to Council for drainage and open space in conjunction with registration of the 50th allotment in the development. The development proposal involved subdividing that land to create 65 residential lots, through a combined application for preliminary approval that involved a variation request and an ROL application.
The developer had previously sought to vary the condition, so as to keep the land in private ownership subject to a drainage easement, rather than to transfer it to Council, but had been unsuccessful and the condition remained in effect. The developer acknowledged the inconsistency between the proposal and previous approvals, but argued that the need to change the earlier approval was not a reason for refusal. The Court took the view that it was a slightly different case – it was not simply the fact that further approvals or changes would be required if the Court were to approve the subject development, it was that the dedication condition, entrenched by the earlier approval, was the community price the developer had paid and acted upon for the earlier approval.
The existing approval, and its conditions, formed part of the material the Court must have regard to in assessing the application. The existence of the dedication condition was also a relevant matter relied upon by Council as part of its refusal case.
The Court held that the proposal to develop the land, rather than dedicate it was, in the absence of changed circumstances, a stark contradiction of the existing approval, reasonable community expectations and the public interests. Those were matters which favoured an exercise of the discretion to refuse. That conclusion, as well as others regarding the extent of conflict with the underlying rural zoning and the complexity of the flooding solution proposed, all weighed against approval. The appeal was dismissed.
For further information and discussion on any of these cases, please contact our Planning and Environment practice.