3 August 2011

Planning and Environment case updates

An appeal against Brisbane City Council’s refusal of a development application.
Australia Real Estate and Construction
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(Searles DCJ - 8 February 2011)

Demolition of pre-1946 houses – whether demolition will result in the loss of traditional building character – whether the building positively contributes to the visual character of the street – distinction between "Precinct" and "street" - can a street have more than one character – s461 of the Sustainable Planning Act 2009


This was an appeal against the Council's refusal of a development application seeking a preliminary approval for building works to demolish two pre-1946 houses. The architectural experts engaged by the parties met and produced a joint report. It was agreed that (among other things):

  1. Both houses were pre-1946 houses in the Low-Medium Density Residential Area and within a Demolition Control Precinct (DCP);
  2. Both houses represented "traditional building character", and were structurally sound and/or capable of structural repair;
  3. Only the third dot point of Performance Criterion P1 of the Demolition Code was applicable, which states that the buildings "must not contribute positively to the visual character of the street";
  4. As to the Acceptable Solutions associated with Performance Criterion P1, the only ones that applied were the second dot point in A1.3 ("demolition of a building will not result in the loss of traditional 'timber and tin' building character..."), and A1.4 ("The street has no traditional building character");
  5. Only three of the points setting out the purpose of the Demolition Code were applicable; and
  6. In assessing the visual character of the street, the relevant part was both sides of Orleigh Street from the eastern side of Hoogley Street to the western side of Montague Road.

The questions falling for determination by the Court were:

  1. What was the relevant "street" for the purposes of Performance Criterion P1?
  2. What was the visual character of Orleigh Street?
  3. Does the development application comply with Performance Criterion P1?
  4. Can a street have more than one character?
  5. Do the subject houses contribute positively to the visual character of the street?

The Appellants contended for a streetscape based on the alignment of the roads in the area and the visibility of the houses on those roads. They argued that the subject houses formed a small isolated group of pre-1946 traditional timber and tin houses, where unsympathetic modern apartment buildings in the area visually isolated the houses from contribution to visual character. The street was not recognised as having traditional building character.

The Council argued that consideration of the demolition of the houses cannot be based on a study of Orleigh Street alone, but must be assessed against the agreed DCP as the houses are part of a much larger precinct and cannot be assessed in isolation. It argued that the subject houses formed an important part of Orleigh Street and their demolition would result in the loss of traditional building character from a street that still retains its pre-1946 character atmosphere.


The Court held that:

  1. There was a clear distinction in the Demolition Code between P1 (third dot point) which refers to the "street", and A1.4 which refers to the "Precinct". It was not correct to include the "Precinct" in the consideration of the streetscape for the "street". The relevant "street" was as contended for by the Appellants.
  2. While a street may exhibit more than one character, the "street" identified for the purpose of interpretation of the Demolition Code cannot have more than one character. To determine the visual character of the street, a single character has to be identified reflecting the aggregate of its features or traits. In determining the street's character for the purpose of P1, the task is to consider the visual character of the street as a whole, not the character of houses or groups of houses in isolation.
  3. In the present situation, the street has moved well away from the traditional character it manifested in 1946. Its character is of a modern nature notwithstanding there remain a small number of houses of a traditional building character, two of which are the subject houses.
  4. The subject houses made no positive contribution to the visual character of Orleigh Street. The proposal did not conflict with the purpose of the Demolition Code because the subject houses are located in an area of the DCP that is so eroded by modern houses and multi-unit development that the removal of the houses would have no noticeable impact on the traditional character and amenity of the relevant DCP area.


(Robin QC DCJ -17 March 2011)

Developer's Conditions Appeal – application by "submitter" who had also lodged his own appeal against the approval to be joined as Co-Respondent – whether his submission, electronically made before the commencement of the Sustainable Planning Act 2009 was "signed" and a properly made submission conferring rights to participate in appeals – whether Co-Respondent submitters in the proceeding limited to arguing about the few conditions appealed against – whether submitters who had elected to be Co-Respondents should be allowed an extension of time to lodge their own appeal against the approval


This was an interlocutory hearing in an applicant appeal against conditions attaching to Council's approval of a development application for a feed lot.

The Court considered whether a Mr Newson had lodged a properly made submission against the development application and, if not, whether he ought to be allowed additional time for starting an appeal against Council's approval of the application or to join the current appeal as a Co-Respondent.

Mr Newson claimed that he had made a submission to Council during the public notification period for the development application, by way of an attachment to an email. Council could find no record of any submission.

The Appellant argued that the missing submission was not properly made as it was not "signed" as required. Mr Newson said he had provided an electronic signature in the covering email.

The Court also considered whether an existing or future Co-Respondent in the appeal should be entitled to contend that there ought to be no development approval at all.

Two other submitters who had already elected to join the current appeal had indicated their desire to institute their own appeal, in the event that they could not challenge the development approval in the current appeal.

In addition, other properly made submissions which the Council had not properly recognised had recently been located and it remained to be seen whether, when given notice of Council's decision on the development application, those submitters would be interested in taking matters further, either by electing to join the current appeal or by instituting appeals of their own.


The Court held that:

  1. It was for Mr Newson to demonstrate that he put in a properly made submission. He had not done so.
  2. In the circumstances, it appeared that there was no properly made submission from Mr Newson and he was not entitled to join the conditions appeal or institute his own based on standing as a submitter.
  3. Just as the Council could contend that some conditions are so important that if they were to be removed there ought to be no approval at all, any submitter Co-Respondent is entitled in the appeal to ventilate all issues including any the Council may raise.
  4. In a conditions appeal conditions are at large; the parties are not limited to argument about the ones the appellant complains of.
  5. Submitters should be saddled with the consequences of the choices they have made; the Court should not lightly grant an indulgence allowing them additional time to appeal and thereby significantly weakening the Appellant's situation.


(R Jones DCJ - 6 April 2011)

Construction of definitions of 'house', 'multi-unit development' and 'single unit development' under Brisbane City Plan 2000 (as amended) – student accommodation involving multiple bedrooms and common facilities – student accommodation where students enter into tenancy agreement – whether student accommodation falls within the definition of 'house' or 'multi-unit development' under the Brisbane City Plan 2000 (as amended) – s 479(1) of the Sustainable Planning Act 2009


This was an appeal from the Building and Development Dispute Resolution Committee (Committee) against decisions that three proposed developments were found to be 'multi-unit dwellings' and not 'houses'. Although three separate decisions of the Committee were delivered in respect of three separate proposals, they were all dealt with in the one notice of appeal given the commonality in the facts and circumstances of each matter.

Three separate development applications were lodged with the Council seeking development permits for material changes of use described as "Residence not complying with the House Code". The applications sought approvals for uses with 9, 10 and 11 bedrooms respectively. The bedrooms were to be rented out to students for accommodation, and some common facilities and services were provided.

The Council advised AAD Design that each development application was not properly made, because the proposals should have been each defined as "Multi-unit dwelling (boarding house)", meaning that they were subject to impact assessment and attracted higher development application fees.

AAD Design applied to the Committee for declarations that the development applications were in fact properly made, however the Committee upheld the original decisions made by the Council and dismissed the application for declarations.

Below, the Committee held that the Performance Criteria and Acceptable Solutions of the House Code provided some indication that the definition of "house" did not apply in this case. It pointed out the difficulty in having to determine that a proposed use is a "house" before applying the Code. It also found that the planning scheme should be construed as a whole, and consideration should be given to those provisions.

On appeal, AAD Design argued that the Committee erred and/or led itself into error by:

  1. failing to give effect to the natural and ordinary meaning of the words used in the definition of "House" where used within the Council's City Plan 2000;
  2. failing to give effect to the final sentence of the definition of "Multi-unit dwelling" in the plan;
  3. using Performance Criterion P8 and Acceptable Solution A8 of the House Code to exclude the application of the definition of "House"; and
  4. taking into account tenancy arrangements in construing the competing definitions.
  5. AAD Design contended that the question was whether or not the premises were being used for a "house" as defined, and that there was no scope for operation of the 'best fit' approach or of the definition of "multi-unit dwelling". It also argued that the Performance Criteria and Acceptable Solutions of the House Code did not inform the definition of "house", and that the definitions did not require a consideration of the proposed tenancy arrangements.


The Court held that:

  1. The decisions under appeal raised issues concerning potential errors or mistakes in law for the purposes of s 479(1) of the Sustainable Planning Act 2009. This appeal was primarily concerned with questions of construction arising under a statutory instrument. The questions are to be answered by deciding the meaning and effect of definitions prescribed in the instrument and whether on the facts as found the developments fall under one definition or another. Questions of law were involved.
  2. It was clear by the use of the words "provide some indication", and its identification of the difficulty in having to reach a conclusion about the definition before you could apply the Code, that the Committee did not place a lot of weight on the Acceptable Solution in reaching its conclusions.
  3. Notwithstanding the principle that town plans should be construed as a whole, it would be wrong to read down the definition of "House" by reference to one of a number of Acceptable Solutions. There was no indication within City Plan 2000 that the definitions are not to be read as they are written.
  4. The Committee probably erred in having regard to the Acceptable Solution in reaching its conclusions about the proper categorisation of the subject proposals. However, that did not mean that the Appellant succeeded.
  5. Characterisation of a use naturally involves an analysis of the factual circumstances surrounding a proposal which, relevantly in the circumstances of these appeals, included tenancy arrangements. The Committee did not err in bringing into account the commercial aspects of the proposals.
  6. The proposed use could satisfy the definition of a "multi-unit dwelling". When the focus is put on the particulars of the use of the premises, the best fit is a "multi-unit dwelling" and not a "house".
  7. The emphasis of the definition of "house" was more focussed on the entity of a domestic group, whereas the emphasis of the definition of "multi-unit dwelling" was more directed to the existence of multiple independent "individuals", "domestic groups" and "discrete households".
  8. Although the definition of "multi-unit dwelling" expressly excluded the term "house", the words under consideration did not have the consequence that where the use meets the criteria of the definition of "house", that the use was thereby incapable of or prohibited from also falling within the definition of "multi-unit dwelling".
  9. Fundamental to whether or not a premises fell within the definition of "house", "multi-unit dwelling" or "single unit dwelling" is the use to which that premises was to be put. It was necessary to appropriately characterise the premises in question. It was the characterisation of the use which determined under which definition the premises fell, and once appropriately defined, it was then prohibited from also being any one of the other defined uses.
  10. The wording of the definition of "multi-unit dwelling" which excluded the term "house" did not prevent the application of the 'best fit test'. In this case, the best fit of the proposed use was under the definition of "multi-unit dwelling".
  11. The decision reached by the Committee in each application was correct. Notwithstanding the fact that, when reaching its decisions the Committee may not have had any regard to the last sentence of the definition of "multiple-unit dwelling", no determinative error of law on the Committee's part had been shown.


(Searles DCJ - 12 April 2011)

Appeal against Council refusal of application for preliminary approval for a material change of use and development permit for the reconfiguration of a lot – minor change – Court's power to approve part of application – weight to be given to new laws and policies – whether sufficient planning reasons to justify approval despite conflict with planning scheme


This was an appeal against a deemed refusal by Council of a development application for a preliminary approval for a material change of use for residential development and a development permit for reconfiguration of a lot in stage.

The application originally included 8 lots totalling approximately 35 hectares in area. At the time the application was made to Council, the Town Planning Scheme for the Shire of Redland 1988 and the Strategic Plan 1998 (a "transitional planning scheme" for the purposes of the Integrated Planning Act 1997) were in force. The site was included within the Rural Zone under the transitional planning scheme.

At the time of the hearing the proposal had been amended to include only six of the original lots and to seek:

  1. a preliminary approval for a material change of use (residential development) for 170 lots; and
  2. a development permit for reconfiguration of a lot for 35 lots (Stage 1a).

By this time the Redlands Planning Scheme 2006 was in force. Under that planning scheme, the site was included partly within the Urban Residential Zone, partly within the Open Space Zone and partly within the Community Purposes Zone.

The active parties to the appeal at the time of the hearing were Heritage, Council the Department of Transport and Main Roads and the Nahrungs and the Turks (submitters who had elected to join the appeal).

The Court firstly considered the following preliminary issues:

whether the changes to the proposed development constituted a minor change; and

  1. whether the Court was empowered to approve part of an application.

Conflict with the provisions of the transitional planning scheme was identified, including provisions of the Strategic Plan, the Rural Zone and the Rural/Non-Urban Category in Development Control Plan 1. Conflict with the current planning scheme was also identified.

The Nahrungs raised issues in relation to fencing for privacy, air conditioning to address noise and dust levels, traffic, sewerage connections, the provision of appropriate park land as part of any approval, loss of amenity, access issues and possible future resumptions.

The Turks raised issues in relation to the impact of the proposal on their home business, interference with the keeping of livestock and access.

No expert evidence was called by either the Nahrungs or the Turks.

Heritage argued that:

  1. significant weight should be given to the current planning scheme;
  2. the identified conflict with the planning schemes was of little moment; and
  3. there were sufficient town planning grounds to justify approving the development application despite the identified conflict.


The Court held that:

  1. Having regard to the evidence, the definition of minor change and the statutory guideline and notwithstanding that the original proposal was impact assessable, the change to the proposal was a minor change.
  2. Having regard to ss. 3.5.11 and 3.5.14A of the Integrated Planning Act 1997 and the authorities relied upon by the Appellant, it was clear that the Court had power to approve part of an application.
  3. The current planning scheme should be given determinative weight given that it reflected the current planning for the subject land. It would be illogical to do otherwise than afford the current scheme that determinative weight.
  4. On all the evidence there was nothing in any of the issues raised by the submitters which would prevent approval being given to the development application if, in all other respects, it warranted approval.
  5. Despite the conflict with the transitional planning scheme, there were sufficient grounds to justify approval of the development application.


(Chesterman and White JJA and Martin J - 29 April 2011)

Administrative Law – Judicial Review – Grounds of Review – Procedural Fairness – Bias – Apprehension of Bias – where applicants sought to appeal decision of the Planning and Environment Court to cease development of a rooftop "public viewing platform" – where applicants complained that trial judge interrupted submissions and examination of witnesses, did not inform applicants that they could present evidence at close of respondent's case and refused to allow two witnesses to give evidence – whether the alleged conduct of the trial judge constituted a defect in the administration of justice in the form of pre-judgment


This was an appeal to the Court of Appeal against an enforcement order made by the Planning and Environment Court restraining the proposed use of the rooftop of an existing building at Goodwin Terrace, Burleigh Heads for rooftop dining purposes. The building in question was known as the Burleigh Beach House and had the benefit of a permit to operate a restaurant, which was granted by way of a Judgment of the Local Government Court made on 7 March 1986. The applicants had already undertaken considerable work on the rooftop area in readiness for the proposed enterprise.

At first instance the applicants had contended that the use of the roof for food and drink consumption was permitted by the existing approval and that Council had acquiesced in that understanding over the ensuing years. Council had alleged that the proposed use of the rooftop constituted a material change of use for a "Restaurant", "Café", "Reception Room" or "Tavern" (as those terms were defined under Council's Our Living City Gold Coast Planning Scheme 2003) for which there was no development permit.

The applicants argued in the Court of Appeal that:

  1. The conduct of the primary judge in dealing with the legally unrepresented applicants was such as to give rise to a reasonable apprehension of bias in favour of Council
  2. The primary judge's exercise of his discretion whether to issue an enforcement order in the terms sought by Council miscarried because he gave no proper consideration to issues of acquiescence by the Council and the hardship that the enforcement order would cause the applicants.
  3. The primary judge erred in law in his construction of the relevant planning legislation and ought to have concluded that the increase in "Total Use Area" was "nil" and the area of the roof was not included in the "Gross Floor Area" and thus constituted an exempt development.


The Court held that:

In relation to the apprehension of bias issue:

  1. In Australia, the test to be applied when one party alleges that a judicial decision is vitiated by the appearance of bias on the part of the pronouncing judicial officer " whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide" (Johnson v Johnson (2000) 201 CLR 488 at [11], 492).
  2. The earnest attention to the issues by the primary judge set out very fully in a lengthy ex tempore judgment given the following morning after a late sitting demonstrate appropriate even handedness.
  3. A fair minded lay observer would not, at any point in the proceedings, have thought that the primary judge did not bring an impartial and unprejudiced mind to the resolution of the question which he was required to decide.

In relation to the discretion issue:

  1. A diligent consideration of the primary judge's reasons demonstrates plainly that his Honour did engage in weighing the relative arguments advanced by the parties and, indeed, gave particular prominence to those of the applicants.
  2. The primary judge approached the balancing exercise carefully and appropriately. Throughout he was open to the parties negotiating about terms which did not include the serving of food and drink to a large number of patrons on the roof.

In relation to the construction issue:

  1. What is proposed is the start of a new use of the premises. If it is characterised as a "restaurant" it is a new restaurant. It would be an absurd result from a planning perspective if there were an existing lawful use of an area in a building as a restaurant, that that approval extended to any other restaurant which may be commenced subsequently in another part of the building.

In conclusion:

  1. There were no prospects of the applicants succeeding on any of the grounds which they raised.
  2. Had the applicants established a reasonable apprehension of bias in the primary judge, even if their other grounds were likely to be successful, the proceedings would likely have been restored to the Planning and Environment Court for consideration anew before another judge. This is because the appearance of neutrality in the judge is fundamental to any system of justice and any departure from it will undermine any reliance on any part of that hearing and especially where, as here, there is complaint that the applicants were not permitted to put their case fully.


(Andrews SC DCJ - 29 April 2011)

Where application for development permit for reconfiguration of lot – where preliminary approval issued – where application lacked detail of internal sewerage infrastructure and connectivity – whether council obliged to grant development permit – where infrastructure charges schedule introduced after preliminary approval – whether basis of council's decision relevant to discretion under repealed Integrated Planning Act 1997 (Qld) s. 4.1.52(2)(a) to apply subsequent laws and policies – whether planning scheme policy made prior to 16 October 2003 remains valid if it applied, adopted or incorporated another document prepared by a local government – whether council assessed application against ECSIS – whether such an assessment would breach repealed Integrated Planning Act 1997 (Qld) s 2.1.18(2) – whether council had an onus of proof that compliance with the applicable code could not be achieved by imposing conditions – whether repealed Integrated Planning Act 1997 (Qld) s 3.5.13(4) made it improper for an assessment manager to give a preliminary approval where a development permit had been sought for a code assessable application – whether council may deliver infrastructure charges notice based on the subsequent infrastructure charges schedule upon court deciding appeal – whether infrastructure policy invalid on proper interpretation of gazette notices – where Minister not notified of invalidity issue – whether to permit challenge to validity in absence of notifying Minister


These were three proceedings which were heard together and which related to a development application for a development permit for reconfiguration of a lot (2 into 78 lots) lodged by Waverley Road Developments Pty Ltd in 2004. The site was located at Waverley Drive Pimpama.

Before 2003, the Pimpama / Coomera area was a greenfield site and was largely unsewered. To facilitate urban development in the area until a proposed wastewater treatment plant could be constructed, Council had formulated a temporary strategy called the East Coomera Sewerage Infrastructure Strategy (ECSIS). ECSIS contemplated transferring sewerage to another wastewater treatment plant via a series of pump stations and rising mains.

The application was code assessable. Council assessed the application and in August 2006 decided to issue a preliminary approval rather than a development permit. This decision was based in part on the fact that there was not sufficient capacity in the temporary sewerage infrastructure to support the proposed development. Waverley appealed against Council's decision.

Following the commencement of the appeal, Council adopted its Priority Infrastructure Plan and Infrastructure Charges Schedule.

As a result of without prejudice negotiations and a change to the proposal made during the appeal process, at the date of the hearing Council had decided to support the issue of a development permit by the Court.

In essence, the issues for determination by the Court were:

  1. The legality of Council's use of ECSIS in deciding the application;
  2. Whether Council should have issued a development permit instead of a preliminary approval; and
  3. The method by which infrastructure charges could be imposed on the proposed development of the site and the quantum of those charges.

In relation to the use of ECSIS, Waverley argued that ECSIS had been inappropriately used by Council in deciding to issue a preliminary approval instead of a development permit.

The argument over whether Council should have issued a development permit instead of a preliminary approval went to the quantum of infrastructure charges payable. If a development permit had been granted in August 2006, infrastructure charges would have been less. Waverley argued that infrastructure charges should be calculated without including those introduced after the application was made.

In relation to recreation facilities, transport and stormwater networks contributions, Waverley disputed Council's ability to issue an infrastructure charges notice for these contributions. Council wished to give Waverley an Infrastructure Charges Notice levying charges under the Infrastructure Charges Schedule (which was not in effect when the application was made).

In relation to water supply and sewerage network contributions, Waverley sought to challenge the lawfulness of Council's proposed conditions requiring contributions on the basis that Planning Scheme Policy 3A – Policy for Infrastructure Water Supply Network Developer Contributions and Planning Scheme Policy 3B – Planning Scheme Policy for Infrastructure Sewerage Network Development Contribution were no longer in force.


The Court held that:

  1. The Court was not satisfied that Council made an unlawful use of ECSIS in its approach to assessing the application.
  2. The application remained devoid of material upon which Council could perform its function of assessing compliance with the two relevant codes. On the issue of availability of sewerage reticulation alone, a development permit was not appropriate in August 2006.
  3. An assessment manager assessing a code assessable application in 2006 had power to decide an application by giving a preliminary approval even though the applicant sought a development permit.
  4. It was appropriate for Council to refuse to issue a development permit in August 2006.
  5. It was accepted that nothing in the repealed Integrated Planning Act 1997 or the Sustainable Planning Act 2009 expressly limited the application of new infrastructure charges regime (under the Priority Infrastructure Plan and Infrastructure Charges Schedule) to development applications made after its commencement.
  6. Upon the Court deciding to approve the development application, Council was entitled to levy charges for the recreation facilities, transport and stormwater networks under the Infrastructure Charges Schedule by giving an infrastructure charges notice.
  7. The Court's discretion was exercised to refuse to allow Waverley to raise issues about the validity of Policy 3A and Policy 3B. Further, the submitted bases for the invalidity of Policy 3A and Policy 3B were rejected.

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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