Australia: Shifting the goalposts: Queensland Planning and Environment Court confirms changed appeal rules for DAs under former planning legislation

A recent decision by the Queensland Planning and Environment Court has important implications for appeals in relation to the development applications made, but not decided, before 3 July 2017.

Background

On 3 July 2017, the Planning Act 2016 (Qld) (Planning Act) commenced, replacing the Sustainable Planning Act 2009 (Qld) (SPA) as Queensland's main item of planning legislation.

As is usually the case when legislation is replaced, the Planning Act includes transitional provisions dealing with matters, such as applications, appeals and planning instruments, already existing or commenced under SPA. Those provisions set out how the matters existing under the SPA continue to have effect under the Planning Act.

However, in the 10 months since the Planning Act's commencement, an ambiguity in those transitional provisions has emerged as a source of contention and confusion. The issue, outlined in more detail below, relates to development applications (DAs) made under the SPA, but decided after the Planning Act's commencement – in particular, whether an appeal to the Planning and Environment Court (Court) involving such a DA is to be decided in accordance with the SPA or the Planning Act.

Until now, the Court had not yet considered the issue. However, in a decision delivered on 30 April 2018, in the case of Jakel Pty Ltd v Brisbane City Council [2018] QPEC 211 (Jakel), the Court has now decided that the Planning Act's regime will apply, with potentially important implications for both developers and assessment managers, such as local governments.

Ambiguity in transitional provisions

The issue arises from an ambiguity in sections 288 and 311 of the Planning Act.

Sections 288(1) and (2) of the Planning Act confirm that if a DA was made under the SPA, the SPA continues to apply to the DA, despite the Planning Act's commencement. This ensures, sensibly, that a DA made under the SPA can continue to be processed and decided in accordance with the SPA, without disruption from the Planning Act.

However, once the DA is decided, if the developer (or a submitter) wishes to appeal against the decision (e.g. if a local government refuses the DA, and the developer wishes to challenge that refusal), section 311(4) of the Planning Act provides that the proceeding must be 'brought only under' the Planning Act.

Unfortunately, the Planning Act's transitional provisions do not clarify whether this means that the appeal is to be decided in accordance with the assessment regime of the SPA or of the Planning Act.

On the one hand, section 288 requires the assessment manager to decide the DA in accordance with the SPA, suggesting that the Court, in any appeal, should do likewise. On the other hand, section 311 clearly states that the appeal must be brought 'under' the Planning Act, suggesting that the Planning Act's regime should apply. This ambiguity has important implications because, as discussed below, there are subtle, but significant, differences between the two regimes.

The Jakel decision

The Jakel case concerned an appeal, by a developer, against the Council's decision to refuse a DA for a multi-unit dwelling.

The DA was made in 2016, under the SPA, but decided on 17 July 2017, after the Planning Act's commencement. Given this, the DA enlivened the ambiguity noted above.

The developer and the Council disagreed as to whether, in the appeal, the Court was required to apply the assessment regime of the SPA or the Planning Act.

The developer (likely mindful of some of the potential benefits of the Planning Act regime discussed below) argued that the Planning Act's regime applied.2

In contrast, the Council argued that this would lead to an "absurd" outcome,3 because the Council, under section 288, was required to make its decision on one basis, in accordance with the SPA, but, on appeal, the Court would be required to make its decision on a different basis, in accordance with the Planning Act.

Despite the developer ultimately not succeeding in the appeal, the developer had a (pyrrhic) victory on this legal issue. The Court agreed with the developer that, in the appeal, the Court was required to decide the appeal on the basis of the Planning Act's regime, albeit primarily on the basis of the planning instruments (e.g. planning scheme) in effect when the DA was made.4

Implications

If the Court's decision in Jakel is followed in other cases, it means that where an appeal is commenced after 3 July 2017, in relation to a DA made under the SPA, the Court will decide the appeal on the basis of the Planning Act's assessment regime, rather than the SPA's regime.

While the two regimes are generally very similar, there are important differences, particularly in relation to how a DA can be decided in the event that it conflicts with a planning instrument (e.g. a planning scheme).

The specific differences vary depending on whether the development was subject to code assessment or (more rigorous) impact assessment.

Under section 326 of the SPA, for both code and impact assessable development, an assessment manager was generally5 prohibited from making a decision that conflicted with a planning instrument unless there were 'sufficient grounds to justify the decision, despite the conflict'.6 This concept of 'sufficient grounds' was, almost invariably, relied upon by developers, in appeals, to support approval of development. For example, planning need for development (e.g. to meet community demands) was commonly relied upon as a 'ground' weighing in favour of approving development despite conflicts with a planning scheme.

In contrast, this prohibition has been removed in the Planning Act. Instead:

  1. For code assessable development, an assessment manager must approve a DA to the extent that development complies with the relevant assessment benchmarks under planning instruments, and may approve the DA even if it does not comply with those benchmarks (without any requirement for sufficient grounds). In something of an inversion, the assessment manager is also prohibited from refusing a DA unless compliance with the benchmarks cannot be achieved through approval conditions.7
  2. For impact assessable development, the assessment manager simply has a discretion to approve (wholly or partly) or refuse the DA. While there is no concept of 'sufficient grounds', the assessment manager is able to consider 'any other relevant matter, other than a person's personal circumstances, financial or otherwise', with planning need being given as an example of such a matter. This means, in effect, that a DA does not have to be refused if it conflicts with a planning instrument and there are not sufficient grounds. That is, there is no express prohibition preventing an approval in such a satiation (in contrast with the position under SPA).

Accordingly, an assessment manager is no longer required to refuse a DA that conflicts with a planning instrument in the absence of sufficient grounds. Instead, the assessment manager generally has a broad discretion.

In most circumstances, the practical likelihood is that the SPA and Planning Act regimes will operate similarly, and lead to the same ultimate outcome. The fact that the developer in Jakel was still ultimately unsuccessful, despite the Court applying the Planning Act's regime, reflects this.

However, given its greater flexibility, the Planning Act's regime is nonetheless more favourable to developers, which could make an important difference in some cases.

While welcome news for developers, this also creates an immediate practical difficulty for assessment managers who are currently processing DAs made under SPA.

Due to section 288 of the Planning Act, the assessment manager is required to decide the DA in accordance with the SPA regime, including section 326.

However, in light of the Jakel decision, assessment managers are now on notice that, in any appeal, the Court will be deciding the DA on the basis of the, more flexible, Planning Act regime.

Given this, in considering potential appeal risks, assessment managers should be conscious that, on appeal, the Court will be applying a different assessment regime. Potentially, depending on the circumstances, this means that an assessment manager may find itself in a position where it is required to refuse a DA under SPA, but the developer may have stronger prospects of success in any appeal.

Footnotes

1[2018] QPEC 21.

2 [2018] QPEC 21 at [24].

3 [2018] QPEC 2 at [83].

4 [2018] QPEC 2 at [75].

5 See SPA, sections 326(1)(a) and (c).

6 SPA, section 326(1)(b).

7 Planning Act, section 60(2).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions