The Planning Act 2016 (Qld) (PA) commenced on 3 July 2017, replacing the Sustainable Planning Act 2009 (SPA) as the primary legislation regulating development in Queensland.
The provisions under which development applications are to be determined (approved or refused) are substantially changed in the PA.[1] How the court interprets and applies those provisions will be relevant to proponents, assessment managers, and opponents of any applications to be assessed under the newer Act.
Despite the changes, much of the basic framework of development assessment remains substantially unaltered. Assessment of applications is still carried out by an ‘assessment manager’, usually a delegate of the relevant local authority,[2] with the scope or ‘level’ of that assessment specified in the local authority’s planning scheme (for example the Brisbane City Plan 2014), depending on the use, scale, location, and other characteristics of the proposal.[3]
The two possible ‘levels of assessment’ are ‘impact assessment’ (requiring assessment against the entire planning scheme, and including a formal public submissions process), and ‘code assessment’ (requiring assessment only against specified parts of a planning scheme, with no submissions process).[4]
Dissatisfied applicants and submitters can appeal an assessment manager’s decision to the Planning and Environment Court.[5]
The SPA continues to apply to all planning appeals commenced prior to 3 July 2017,[6] however all appeals commenced since then are governed by the PA.[7]
Some 22 judgments of substantive appeals under the provisions of the PA have been handed down at the time of writing; these judgments are sufficient to give a good indication of the court’s approach to application of the PA, in relation to both impact and code assessment.
For applications subject to impact assessment, important points emerging from the cases include that:
- The assessment manager’s discretion to approve or refuse is now broader generally;
- Non-compliance with assessment benchmarks is no longer the focus;
- ‘Relevant matters’ (a PA term) will play a broader role than ‘grounds’ (the SPA equivalent); and
- There will be greater emphasis on desired planning outcomes.
Similarly, for applications subject to code assessment:
- Approval is mandatory if prescribed assessment benchmarks are complied with;
- The relevant assessment benchmarks are those in the planning scheme as at the time of application; and
- If assessment benchmarks are not complied with, the decision maker still has ‘residual discretion’ to approve or refuse.
Recent cases in which these points have arisen are discussed below.
(1) Assessment generally
The two-part ‘conflict and grounds’ assessment test mandated by the SPA, which applied equally to both impact and code assessment and “resulted in a time consuming and unproductive enumeration of supporting and conflicting ‘grounds’”,[8] has been dispensed with.[9]
In its place, separate provisions apply to impact[10] and code[11] assessment under the PA, involving quite distinct assessment manager powers and obligations.
(2) Impact assessment
A detailed analysis of the impact assessment regime under the PA, including the highlighting of changes from that in the SPA, was set down by Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 (Ashvan).[12]
Points of interest from that and other cases with respect to impact assessment under the PA are:
Discretion now broader generally
The assessment manager’s discretion under s60(3) PA to approve all or part of an impact assessable application, approve all or part with conditions, or refuse the application, is now much broader than under the SPA.[13]
Nevertheless, several judges have pointed out that this discretion, while broad, is not unfettered.[14] Williamson QC DCJ has set out that this broad s60(3) discretion must be exercised:
(1) based on an assessment carried out under s45 PA,[15]
(2) in a way that advances the purpose of the PA,[16] and
(3) subject to any implied limitation arising from the purpose, scope, and subject matter of the PA.[17]
The end result is to be a “balanced decision in the public interest”.[18]
“Relevant matters” will play a broader role than “grounds”
Section 45(5)(b) PA provides that an assessment manager may consider any other “relevant matter” in carrying out its assessment, giving examples, but no definition, of what that term encompasses.
Everson DCJ has specifically considered “relevant matters”, holding that the changed assessment rules mean that there is much more scope to consider relevant matters under the PA than was available for the analogous “grounds” under the SPA. In particular, he held that under the PA relevant matters can be considered as part of the assessment itself, regardless of whether any conflict has been identified, whereas under the SPA “grounds” were only to be considered at decision stage, and only in the context of being potentially sufficient to overcome identified planning scheme conflict(s).[19]
Williamson QC DCJ has also specifically considered “relevant matters”, holding that the term is not a synonym for a “grounds” as defined in SPA, that it should be construed expansively, and that it may “include matters that militate for, as well as against, approval”.[20]
Non-compliance with assessment benchmarks no longer has assumed primacy
In Ashvan, Williamson QC DCJ specifically noted that the terms ‘comply’, ‘conflict’, and ‘grounds’ do not appear at all in the PA in relation to the determination of impact assessable applications.[21] He concluded that “[d]ispensing with the so-called two-part test means that non-compliance with assessment benchmarks, which include planning schemes, no longer has assumed primacy in the exercise of the planning discretion”.[22] His Honour found that, under the PA, the correct test to be applied is now “should the discretion conferred under s60(3) of the PA be exercised in favour of approval in the circumstances of this case?”.[23]
It seems likely that this non-primacy will result in shorter and more focused lists of alleged non-compliances, particularly in circumstances in which a trend of judicial dissatisfaction with over-long lists of alleged non-compliances appears to be emerging.[24]
Greater emphasis on desired planning outcomes
A related change is that desired planning outcomes and good planning principles will take on a larger role generally under the PA. The explanatory notes to the Planning Bill state: “For both code assessment and impact assessment, it is intended the new assessment and decision rules should lead to a renewed emphasis on the quality, rigour, legibility and consistency of policies in planning instruments, and their primacy in determining the outcome of performance-based development assessment.”[25] (emphasis added).
Underpinning this change is an acceptance that planning schemes generally represent the public interest in respect of development,[26] but that they cannot foresee every factual scenario, nor changes over time. In certain unforeseen circumstances, an exercise of the broad s 60(3) discretion, guided by accepted planning principles, may better serve the public interest by approving a non-compliant proposal.[27]
In Ashvan, Williamson QC DCJ set out the tasks confronting the parties in a planning appeal under the PA. His Honour held that:
“[A party arguing for refusal] will need to identify the planning basis it relies upon to contend the non-compliance warrants refusal in the exercise of the discretion under s60(3) of the PA.”,[28] and
“[A party arguing for approval]…is required to identify all of the matters that will, either individually or collectively, be relied upon to contend an approval should be granted in the exercise of the discretion.”[29] (emphasis added)
In both Ashvan and Smout v Brisbane City Council [2019] QPEC 10 (Smout), his Honour went deep into the planning scheme’s strategic framework (as well as the purpose and overall outcomes of applicable codes)[30] to look for the policy underpinnings of the various code criteria.[31] In the latter case the investigation led to an approval, in the former, to a refusal. Likewise, in Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46 (Murphy), a proposal’s support of underlying planning policy weighed strongly in its favour despite some non-compliance with detailed planning scheme provisions,[32] whereas in Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5 (Hotel Property), a departure from a clear planning strategy of “development in centres” was fatal to the application, despite multiple favourable “relevant matters”.[33]
(3) Code assessment
While the assessment manager’s discretion in determining impact-assessible applications has been expanded under the PA, in relation to some code-assessable applications it has been removed completely.[34]
Must approve
Section 60(2)(a) PA mandates that for code assessment, the assessment manager “must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development”. (emphasis added)
The significance of this change was highlighted in Klinkert v Brisbane City Council [2018] QPEC 30 (Klinkert), in which a code-assessable application to demolish a pre-1946 house at Toowong was refused by the council, and subsequently appealed by the owner.
Williamson QC DCJ held that all relevant assessment benchmarks were complied with so that s60(2)(a) was engaged, and that he, standing in the shoes of the assessment manager, was obliged by that provision to allow the appeal and approve the application. Significantly, his Honour noted that if s60(2)(a) had not been engaged, he would have dismissed the appeal.[35]
He also noted that, despite compliance with all assessment benchmarks, it had likewise properly been open to the assessment manager under the SPA (which was the governing Act at the time of the original assessment) to refuse the application.[36]
A second aspect of the reduced discretion was applied in Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41 (Delta Contractors) , another appeal against refusal of an application for partial demolition of a pre-1946 house, but in this case the application also sought associated material change of use and preliminary building approvals.
Kefford DCJ found non-compliance with relevant assessment benchmarks in relation to the demolition and did not allow the appeal in relation to that part of the application, but was compelled by s60(2)(a) to approve those remaining parts of the application that did comply.[37]
A third aspect of the changed decision rules, set out in s60(2)(d) and considered in Beauchamp v Brisbane City Council [2018] QPEC 43 (Beauchamp),[38] is that the assessment manager may only refuse an application for non-compliant development if compliance cannot be achieved by imposing development conditions.[39]
‘Assessment benchmarks’ do not encompass changes to planning scheme post-application
The question of what is an ‘assessment benchmark’ is critical to whether ss60(2)(a) and (d) are engaged.
In Klinkert, Williamson QC DCJ provided a detailed analysis of s45 PA, as it sets out the relevant assessment benchmarks for code assessment,[40] in circumstances where the planning scheme has been amended between the making of an application, and determination of that application (including the determination of an appeal by the court).[41]
In essence, His Honour held that while s45(7),[42] which provides that ‘weight’ may be given to those changes, is relevant to code assessment, it does not modify the clear wording in ss45(3) and 45(6) which specifies that an application is to be assessed against the assessment benchmarks in place at the time an application is properly made.[43]
Kefford DCJ has taken a similar approach to the significance of post-application changes to a planning scheme in the context of the engagement or otherwise of s60(2)(a).[44]
Her Honour has also held that neither a strategic framework, nor issues which might otherwise be viewed as ‘relevant matters’, are relevant assessment benchmarks, as they are not so specified in s45(3) PA or the regulations.[45]
Still ‘residual discretion’ to approve despite non-compliance
Section 60(2)(b) provides that, even if there is non-compliance with assessment benchmarks, the assessment manager has discretion to approve an application, despite the non-compliance.
In Klinkert, Williamson QC DCJ held that, in these circumstances, a broad discretion is enlivened, which is (as for impact assessment) constrained by the decision having to be based on the assessment under the PA, and in particular s45(3).[46]
In addition to consideration of changes to the planning scheme since the application was lodged (pursuant to s45(7)),[47] his Honour gave consideration to a large number of factors related to, in particular, the fairness of giving weight to those changes. He clearly accepted that the giving of determinative weight to changed planning scheme provisions can be open under s60(2)(b).[48]
In this approach to the s60(2)(b) discretion, Klinkert was cited with approval and followed in Delta Contractors (where the discretion to approve was not exercised),[49] and Di Carlo v Brisbane City Council [2019] QPEC 4 (Di Carlo) (where the discretion was exercised to approve).[50] In this latter case, as a factor in exercising his discretion to approve, Everson DCJ, perhaps reflecting the increasing emphasis on planning principles in relation to the exercise of assessment discretion, referred to the lack of a proper planning basis for preventing demolition.[51]
Conclusion
Williamson QC DCJ has observed: “The change to the statutory assessment and decision making framework will, I expect, impact on the manner in which reasons for refusal are articulated. I also expect it will impact on the manner in which issues are articulated in an appeal before this Court. ”[52]
Beyond this, an understanding of the new provisions could potentially inform decisions relating to the size, form and type etc of new proposals. For example, for a potentially controversial proposal, or a proposal facing an upcoming adverse planning change, it may be preferable to sidestep a high-risk impact assessment and look to design a proposal to fit a ‘must approve’ code assessment decision.
On a cautionary note, any court’s interpretation and application of new legislative provisions naturally develops over time;[53] the court’s approaches discussed here are unlikely to be exceptional in this respect.
Disclaimer: This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Specific legal advice should be sought for particular circumstances. No responsibility is taken for any reliance on this article.
My liability is limited by a scheme approved under Professional Standards Legislation.
A version of this article appeared in the November 2019 edition of Proctor, the magazine of the Queensland Law Society.
© Harry Knowlman 2019
[1] Compare SPA s326 to PA ss60(2) and 60(3). Development generally is classified under the PA as either prohibited, accepted (not requiring an approval), or assessable (requiring approval) – see s44(1) PA. This article is limited to consideration of ‘everyday’ assessable applications.[2] By s48 PA, the assessment manager is identified by regulation – see Planning Regulation 2017 (PR), s21.
[3] To be more complete, s45(2) sets out that a ‘categorising instrument’ sets the level or ‘category’ of assessment. S43 defines ‘categorising instrument’.
[4] See s45(1) PA.
[5] S229 PA; ss43-47 of the Planning and Environment Court Act 2016 (PECA) empower the Planning and Environment Court to hear the appeals.
[6] For example, a decision handed down only days ago (1 November 2019) by the Planning and Environment Court was decided under SPA provisions: Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54.
[7] See detailed analysis by Kefford DCJ in Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 (Jakel) at [16]–[89], which has been generally accepted by the court – see, for example, Klinkert v Brisbane City Council [2018] QPEC 30 (Klinkert) at [38]–[39] (Williamson QC DCJ) and WOL Projects Pty Ltd v Gold Coast City Council [2018] QPEC 48 (WOL Projects) at [8] (Everson DCJ).
[8] Explanatory notes to the Planning Bill 2015, p74.
[9] See Jakel at [80], citing explanatory notes to PA, Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 32 (Parmac) at [24] (Kefford DCJ), Mirani Solar Farm Pty Ltd v Mackay Regional Council [2018] QPEC 38 (Mirani) at [14] (Jones DCJ), Mary Valley Community Group Inc & Anor v Gympie Regional Council & Ors [2018] QPEC 58 (Mary Valley) at [24] (Jones DCJ), Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3 (Walters) at [330] (Kefford DCJ), Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 (Ashvan) at [38], [45]–[46], [50]–[51] (Williamson QC DCJ).As a corollary, it seems inevitable that the widely-applied three-step test set out in Weightman v Gold Coast City Council [2003] 2 Qd R 441 at [36], which relied on conflicts vs grounds evaluations, may no longer be applicable.
[10] S60(3) PA.
[11] S60(2) PA.
[12] Ashvan at [39]–[86].
[13] Jakel at [81], WOL Projects at [10] , Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5 (Hotel Property) at [9], [12]–[13] (Everson DCJ), Walters at [330]–[332], Ashvan at [41], [43], [50] (noting the broad s60(3) discretion is reflected in s47 Planning and Environment Court Act 2016 (PECA)). By contrast, under the SPA, assessment managers were obliged to refuse an application under certain circumstances – see s326.
[14] Ashvan at [62]. See also Parmac at [20], Mirani at [22].
[15] See PA s59(3). A s45 impact assessment is, typically, assessment against the provisions of the relevant planning scheme, with regard being had to any matters prescribed by regulation (such as a previous approval on the site) and any “relevant matters”.
[16] See PA s5, but also see Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37 at [28], where Everson DCJ, confronted with submissions from both sides that their positions advanced the purpose of the PA, opined that “… the purpose of the PA and what is said to advance it are expressed in such general terms, that such arguments do not assume any real significance or add in any way meaningful way to the issues I need to resolve in this appeal.”.
[17] Ashvan at [62]–[64], citing Smout v Brisbane City Council [2019] QPEC 10 (Smout) (Williamson QC DCJ).
[18] See the explanatory notes p74, Mirani at [21] (citing the explanatory notes with implicit approval), Ashvan at [50]–[57].
[19] Hotel Property at [12]-[13]. The relevant matters under consideration were site-specific benefits. See also Mirani at [110], likewise considering the benefits of a proposed development.
[20] Ashvan at [79]-[82].
[21] Ashvan at [38].
[22] Ashvan at [51].
[23] Ashvan at [86].
[24] See for example K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9 at [13]–[14], [16] (Kefford DCJ), Mirani at [30]–[32] citing with approval Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34 at [47]–[48] (Williamson QC DCJ), Ashvan at [65]–[66], Peach v Brisbane City Council & Anor [2019] QPEC 41 at [67]-[69], [79] (Williamson QC DCJ), Mater Health Services North Queensland Ltd v Townsville City Council & Ors [2019] QPEC 45 at [49] (Fantin DCJ) . By contrast see WOL Projects at [7], Mary Valley at [18]–[19], Bilinga Beach at [50] for (perhaps implicit) judicial approval of confinement of issues, where appropriate.
[25] Explanatory notes to the Planning Bill 2015, p74
[26] See Bell v Brisbane City Council & Ors [2018] QCA 84 at [66] (McMurdo JA), also Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [42], [48] (Sofronoff P, Fraser JA and Flanagan J agreeing).
[27] See Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132, [67] (Sofronoff P): any such decision should ensure that “the desired deviation from the Planning Scheme serves the public interest to an extent greater than the maintenance of the status quo”, cited with approval in Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33, at [21] (R.S. Jones DCJ). See also Ashvan at [57]-[61], Peach v Brisbane City Council & Anor [2019] QPEC 41 at [305] – [307],and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council &Anor [2019] QPEC 46 [2019] QPEC 46 at [12]-[22] (Kefford DCJ).
[28] Ashvan at [67].
[29] Ashvan at [68].
[30] The PA and PR regulate the content of planning schemes in detail – see s16 PA, and Part 2 Division 2 PR. Typically a ‘strategic framework’ sets out broad planning objectives for the planning scheme area, while specific criteria aimed at achieving those objectives are grouped into ‘codes’ applicable to various uses, planning zones, development types, neighbourhoods, and ‘overlays’ (specified parts of the scheme area to which other criteria are applicable, for example, bushfire, airport environs).
[31] Smout v Brisbane City Council [2019] QPEC 10 (Smout) at (for example) [41]–[49] (Williamson QC DCJ), Ashvan at (for example) [88]–[94]. See also Walters at [332], [356]–[357].
[32] Murphy at [201].
[33] Hotel Property at [33].
[34] Brisbane City Council v Klinkert [2019] QCA 40, at [32].
[35] Klinkert at (100], [138].
[36] Klinkert at [124].
[37] Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41 (Delta Contractors) at [23] (Kefford DCJ).
[38] Beauchamp v Brisbane City Council [2018] QPEC 43 (“Beauchamp”) at [45] (Rackemann DCJ).
[39] See s60(2)(d) PA.
[40] For code assessment, the relevant assessment benchmarks will usually comprise a limited number of planning scheme codes, such as, to take Klinkert as an example, the Traditional Building Character (Demolition) Overlay Code, and the Toowong-Auchenflower Neighbourhood Plan Code.
[41] Klinkert at [82]–[97].
[42] For completeness, it should be noted that s45 has now been amended, so that what were sections 45(6) and 45(7) are now sections 45(7) and 45(8) respectively, and there are some wording changes. However, the operation of the provisions appears to remain unaltered, so the earlier numbering has been retained here to match that cited in the majority of judgments (noting that at least one judgment, Peach, does refer to the amended numbering scheme).
[43] The Court of Appeal subsequently affirmed Williamson QC DCJ’s decision and reasoning in Klinkert – see Brisbane City Council v Klinkert [2019] QCA 40 at [35]–[40] (Boddice J), and at [6] (Gotterson JA, also agreeing with Boddice J), Philippides JA agreeing with both judges. See also footnote 42 in relation to now-modified sub-clause numbering in s45.
[44] The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 62 at [122].
[45] Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41, [21], [104]–[105]. Also see s43(2)(c) PA, which provides that a ‘strategic outcome’ is not an assessment benchmark for code assessment.
[46] Klinkert at [102], citing s59(3) PA. See also Di Carlo v Brisbane City Council [2019] QPEC 4 (Di Carlo) at [7] (Everson DCJ), also Jakel at [76], finding similarly, but noting the “common material”, which covers significant ground (definition in Schedule 1 of the Planning Regulation 2017), can be considered.
[47] See Klinkert, [101]–[148].
[48] Klinkert at [131], [138].
[49] Delta Contractors, at [101].
[50] Di Carlo at [8].
[51] Di Carlo at [13].
[52] Ashvan at [65].
[53] As an example, the Court of Appeal recently further clarified the interpretation and application of the assessment rules under the SPA, some two years after that Act was repealed, in Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at, inter alia, [67].