The year of 2018 saw the delivery of a number of judgments that shed some much needed light on the operation and interpretation of the Planning Act 2016 (Qld) (PA), including the transitional provisions.
The following judgments delivered in 2018 established key principles that will have important implications for developers and assessment managers in particular local governments.
Pike v Tighe
The High Court of Australia overturned a decision of the Court of Appeal and confirmed that conditions imposed on development approvals remain binding even after the development the subject of the approval has been completed. The Court noted there was nothing in the SPA that indicated conditions of approval had no effect once the development was completed.
Jakel Pty Ltd v Brisbane City Council & Anor
The transitional provisions in the PA have been a source of confusion in the planning and development industry. In particular, it was unclear whether the Planning and Environment Court was required to decide an appeal about a development application made under the Sustainable Planning Act 2009 (Qld) (SPA), but decided after the commencement of the Planning Act 2016 (Qld) in accordance with the SPA or PA. There was a dispute between the parties as to which Act applied. The Court analysed the transitional and other provisions of the PA in detail and found that on appeal, the Court was required to decide the appeal in accordance with the PA, albeit against planning instruments that were in effect at the time the application was made.
The regimes under the SPA and PA are very similar but the regime under the PA offers more flexibility. For applications lodged under the SPA, assessment managers must decide them in accordance with the SPA. However, in the event of an appeal against the decision, the applicant may have good prospects of success given the greater flexibility under the PA.
Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council
The Planning and Environment Court made declarations that a series of infrastructure charges notices issued by Gold Coast City Council were invalid on the basis the ICNs and more specifically the accompanying information notices failed to comply with the requirements of the SPA. The Council failed to provide reasons, which must go beyond a mere explanation of how the charge has been worked out, and therefore failed to provide an 'information notice' in accordance with the requirements of the Act. The decision was the subject of an application for leave to appeal to the Court of Appeal which was heard in November 2018. The Court is yet to deliver its decision. Importantly, the same requirement does not exist under the PA.
Waterman & Ors v Logan City Council & Anor
The case concerned an application by Logan City Council for orders to change its position in an appeal against the Council's decision to grant a preliminary approval with conditions in respect of a development application for a development permit for material change of use and reconfiguration of a lot. The Council sought to rely on further issues in dispute, including that all aspects of the development application should be refused. Even though the Court was satisfied it had jurisdiction to make the order sought, the Court decided not to make the order as it was not satisfied the Council had given an adequate explanation for the change in position. It did not disclose the advice of its experts in support of the change in position, nor did it disclose whether the Council officer providing instructions had delegated authority or if the decision was passed by a Council resolution. The outcome may have been different had the Council disclosed its material and that material demonstrated an adequate explanation for the change in position.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.