Welcome to the first Planning and Environment Quarterly Case Review of 2024. This article will summarise two very interesting cases that arose outside of the Planning and Environment Court, and also discuss a quartet of topical P&E cases.
In Salazar Properties Pty Ltd v Jeffs [2024] QSC 9 the Supreme Court granted a statutory right of user pursuant to section 180 of the Property Law Act in favour of a property developer who required storm water discharge rights over the respondent’s land. Key elements of the test under section 180 involve questions of public interest, whether the owner of the land burdened by the easement can be adequately compensated for any loss or disadvantaged suffered, and whether the owner’s refusal to grant the easement is, in all the circumstances, unreasonable. The Supreme Court found those pre-conditions were satisfied. The easement was imposed with conditions, including that the applicant, as the owner of the dominant land, maintain insurance over the easement area.
In Redland City Council v Kozik [2024] HCA 7 the High Court (in a split 3:2 decision) found that a group of local residents were entitled to restitution for special charges paid to Council, which had been levied through rates notices. The charges had been levied by the Council on residents who owned land with a water frontage, and were to assist in funding capital works such dredging, canal maintenance, rock armour replacement, and services to revetment walls. Council became aware that the resolutions to levy the charges were invalid and refunded the unspent portion of the special charges (plus interest). It did not repay the “spent” special charges arguing that the enjoyment and value of the respondent’s land had been enhanced by Council’s provisions of the works. There was no dispute that the resolutions to levy the charges were invalid (Council accepted they were), the issue was whether the money should be repaid.
The judgment is an important one, and covers principles such as unjust enrichment, mistake of law, the concept of “good consideration” and restitution. The majority of the High Court found that the Council did not have a defence of good consideration, and that the residents were entitled to restitution, meaning Council was required to repay the “spent” charges.
Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28
This case involved an appeal against an infrastructure charges notice issued by the Council, where the appellant argued that the infrastructure charges notice should be set aside and replaced with, or changed to a levied charge of ‘nil’. It involves an ultimate finding by the Court that Council could levy a charge at building approval stage, for development that was otherwise “accepted subject to requirements” under Council’s scheme. Read more here.
427 Beckett Rd Pty Ltd v Brisbane City Council [2024] QPEC 4
Questions of “minor change” are often tricky and turn on the particular facts and circumstances of each case. However, in understanding the bounds of the test, it is often useful to consider examples of what has been found by the Court to not be a “minor change”. In this case the Court was troubled by changes to the overall development mix and the removal of staging which resulted in a development that was primarily commercial rather than evenly balanced between residential and retail. It was also troubled by changes to access arrangements where consequences in terms of traffic impacts and higher level structure planning considerations had not been adequately considered in the supporting material, and visual amenity impacts associated with acoustic barriers introduced to deal with the interfaces between the various components of the development. Discretionary factors such as the delay in bringing the application, failure to properly describe the true scope of changes when previous minor change orders were obtained, and the time that had elapsed since the plans were publicly notified, were also raised in the case. Read more here.
Palmer v Council of the City of Gold Coast [2023] QPEC 47
The large but constrained site under consideration in this case was located in the Guragunbah floodplain and adjoined the Merrimac Sewerage Treatment Plant. The development proposal in question was also large, seeking to develop the land predominantly for residential activities (up to 3,000 dwellings), with a range of other activities also contemplated. The appeal, from Council’s refusal, involved a number of issues. Our summary focuses on the air quality issues in the context of potential impacts on amenity. Read more here.
Redland City Council v Boutique Capital Pty Ltd as Trustee & Ors [2024] QPEC 1
The question in this case was whether a building under construction, intended to be used for speciality disability accommodation, could be characterised as a “community residence”. Building approvals had been obtained, but no material change of use approval in reliance on the exemption in Schedule 6, Section 6 of the Planning Regulation which, if it applied, meant the use could not be made assessable development under Council’s planning scheme. Use of the building had not yet commenced. While the building could be used in a manner that was unlawful (for example, by potentially accommodating more residents than permitted, or by housing family members rather than people who required assistance or support with daily living needs), the Court was satisfied that the building was capable of being wholly used in a matter that was lawful. There was no development offence, and the building approvals were lawful. Read more here.
For further information and discussion on any of these cases, please contact our Planning and Environment practice.