Australia: Cracking the code: Queensland Court of Appeal provides clarity for code assessable development under Planning Act

A new decision of the Court of Appeal has clarified the assessment rules under Queensland’s planning legislation for 'code assessable' development.

On 12 March 2019, the Court of Appeal (Court) delivered its judgment in the matter of Brisbane City Council v Klinkert [2019] QCA 40.

The decision is important in clarifying the assessment and decision-making requirements of the Planning Act 2016 (Qld) (Planning Act) in relation to code assessable development.

The legal context

The key issue in the case was how certain provisions of the Planning Act in relation to code assessable development should be construed.

In particular, the case addressed an apparent discrepancy between three provisions of the Planning Act – sections 45(3), 45(7), and 60(2).

Section 60(2) of the Planning Act specifies the decision-making outcomes available to an assessment manager in relation to code assessable development. In summary, it says that an assessment manager:

  1. must approve an application to the extent that the development complies with all assessment benchmarks (eg, relevant code provisions of a planning scheme);
  2. may approve an application even if the development does not comply with all assessment benchmarks;
  3. may impose conditions on any approval; and
  4. may, to the extent that a development does not comply with any assessment benchmarks, only refuse the application if compliance cannot be achieved by imposing conditions.

When the Planning Act took effect in 2017, this provision was seen as a key departure from the previous position under the (now-repealed) Sustainable Planning Act 2009 (Qld) (SPA).

Under SPA, the position was that an assessment manager always had a discretion, subject to a requirement that their decision could not conflict with a relevant instrument (eg a planning scheme) unless there were sufficient grounds to justify approval despite the conflict.

In that light, the intent of section 60(2) of the Planning Act was to 'reign in' the discretion of assessment managers. This would make code assessment a 'bounded' process, providing greater certainty (in contrast to the more open-ended and rigorous impact assessment process).

Consistent with this, section 45(3) of the Planning Act provides that code assessment must be carried out 'only' against the assessment benchmarks, but with regard to any other matters prescribed by regulation. Section 45(6) confirms, in turn, that the relevant assessment benchmarks are those contained in the instruments in effect when the relevant application is properly made.

But – seemingly at odds with sections 45(3) and 60(2) – section 45(7) provides:

'However, if the statutory instrument or other document is amended or replaced before the assessment manager decides the application, the assessment manager may give the weight that the assessment manager considers is appropriate, in the circumstances, to the amendment or replacement'.

On its face this provision, which refers to 'weight', seemingly contemplates a balancing or discretionary exercise in circumstances where a new instrument (eg an amended planning scheme) comes into effect after the application was properly made, but before it is decided.

The tension between these provisions was the focus of the parties’ arguments in this case.

Factual background

The case concerned a developer’s appeal against a decision of the Brisbane City Council (Council) to refuse a code assessable development application for building work, for the demolition of a pre-1947 house in Toowong.

In part, the Council’s decision to refuse the application was based on amendments to its City Plan 2014 (City Plan). The amendments commenced after the application was properly made and, in summary, would have meant that the demolition was in 'plain and obvious' conflict with the City Plan.

The developer appealed to the Planning and Environment Court (P&E Court) against the Council’s refusal, the key issue being the Council’s reliance on the amendments to the City Plan.

The P&E Court held that the demolition complied with all assessment benchmarks of the unamended City Plan, such that section 60(2)(a) of the Planning Act applied – meaning that the application was required to be approved.

Accordingly, the P&E Court held that there was no basis for giving 'weight' to the amendments as contemplated by section 45(7), noting that they appeared to be 'irrelevant' in circumstances where section 60(2)(a) applies. The P&E Court went on to outline in detail how, if the amendments had been relevant, they would have carried 'determinative weight' and warranted refusal of the application.

The decision on appeal

The Council sought leave to appeal to the Court against the P&E Court’s decision, the key issue in dispute being the P&E Court’s approach to section 60(2).

The Council argued section 60(2) should be interpreted so that if the decision maker decides it is appropriate to give weight to the amended code, the 'assessment benchmarks' include both those in the original code and those in the amended code,. On appeal, the Court upheld the P&E Court’s ultimate decision. However, the Court’s reasoning differed slightly from that of the P&E Court.

The Court's reasoning

The Court reiterated that section 60(2)(a) requires the assessment manager to approve a development application that complies with the assessment benchmarks in force at the time the application was properly made.

However, unlike the P&E Court, the Court did not consider that section 45(7) (and any amended instrument) was irrelevant for code assessable development. Instead, the Court held that a proper interpretation of section 45 supported the view that sections 45(6) and (7) were relevant to both impact and code assessment.

On that approach, the Court held that the assessment manager must determine whether the assessment benchmarks in the unamended code have been met after giving weight to the contents of the amended code, if the assessment manager decides that it is appropriate to give weight to that amended code.

However, the Court reiterated that section 45(7) does not override s 60(2)(a), and any weight must be given in the context of the statutory requirement to carry out the assessment only against the assessment benchmarks that are in effect when the application was properly made.

The implications

The Court’s decision provides welcome clarity to the mandatory effect of section 60(2)(a). It confirms that, despite the tension in the Planning Act’s provisions, the obligation to approve under section 60(2)(a) based on the assessment benchmarks applying when the application was made prevails over any 'weight' given under section 45(7) to a later instrument.

To some extent this outcome may be difficult to reconcile with the Court’s indication that section 45(7) nonetheless allows a later instrument to be given weight in relation to code assessment. If the ultimate outcome of approval is dictated by section 60(2)(a), it is reasonable to question what role any 'weight' may play.

Potentially, the 'weight' may be relevant to the assessment manager’s formulation of any conditions. However, this question will need to be resolved by future decisions.

The Court’s decision will most likely be welcomed by developers, as it confirms that if a code assessable development complies with the assessment benchmarks when properly made, the assessment manager will be required to approve it.

For local government, the decision highlights the importance of ensuring any strategically important planning scheme amendments are not delayed. If code assessable development complies with the current (unamended) codes, the local government will have no discretion to refuse based on a planning instrument that comes into effect later.

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.

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