In brief
Queensland's Planning and Environment Court recently delivered three significant decisions that provide insight into the operation of the Planning Act 2016. The decisions separately address service requirements for submitter appellants, the operation of the transitional provisions in the Act and the categorisation of development. Partner Bill McCredie, Senior Associate David Thorpe and Law Graduate Conor Ruane discuss the lessons learned from these decisions and their impact on the development of land in Queensland.
Ayre & Anor v Brisbane City Council & Ors
The decision
Brisbane City Council approved a development application made by Penfold Acres Pty Ltd (Penfold) for a material change of use and reconfiguration for multiple dwellings, which was the subject of two properly made submissions, one by the appellants and one by Mr Heers. The appellants gave a copy of the notice of appeal to Mr Heers, who elected to become a party to the Ayres' appeal.
Penfold applied to the Planning and Environment Court (the Court) for a declaration that the Planning Act 2016 (the Planning Act) did not require the appellants to give Mr Heers a copy of the notice of appeal, and an order that Mr Heers be removed as a party. The Court dismissed the application by Penfold.
The effect of the Court's decision is that, in the case of a submitter appeal, the submitter appellant must give a copy of the notice of appeal to each other submitter who has not withdrawn its submission and who has not given the Council a notice stating that it will not be appealing (called an eligible submitter).
What does the decsion mean for you?
- If you are an eligible submitter, it will afford you a low cost option of becoming a party to another submitter's appeal.
- If you are a submitter appellant, remember to serve all other eligible submitters. Depending on the number of eligible submitters, this may result in additional costs.
- If you are an applicant, whose application is subject to a submitter appeal, it is possible that other submitters will join the appeal, which may result in additional or different issues being raised against you, a longer hearing and ultimately additional costs.
Fairmont Group Pty Ltd v Moreton Bay Regional Council
The decision
Fairmont Group Pty Ltd (Fairmont) applied to the Court for declarations as to its right to clear Category X vegetation under the Vegetation Management Act 1999.
The clearing of Category X vegetation is classified as 'exempt clearing work' under the Planning Regulation 2017 (the Regulation), however it is not expressly categorised as either accepted, assessable or prohibited development under the Regulation.
The Court had to consider whether an absence of categorisation of 'exempt clearing work' under the Regulation meant that the vegetation clearing proposed by Fairmont should be treated as accepted development for which no development permit is required, despite the clearing being categorised as assessable development under the Moreton Bay Regional Council Planning Scheme.
The decision of the Court was that as 'exempt clearing work' was not expressly categorised as accepted, assessable or prohibited development under the Regulation, it was open to the Planning Scheme to categorise the development as assessable development, and that a development permit for clearing would be required.
An application for leave to appeal against this decsion has recently been filed in the Court of Appeal.
What does the decsion mean for you?
- Where development is not expressly categorised under the Regulation, it is not by default categorised as accepted development and may be categorised under a local planning instrument (including a planning scheme) as assessable development.
- Prior to undertaking development, always check the categorisation of the development under both the Regulation and local planning instruments.
Jakel Pty Ltd & Ors v Brisbane City Council & Anor
The decision
The applicants appealed to the Court against the Council's refusal of a development application for the construction of residential dwellings.
The development application was made in December 2016, at which time the now superseded Sustainable Planning Act 2009 (SPA) was in force. The development application was refused by the Council in July 2017, following the commencement of the Planning Act on 3 July 2017. An appeal was filed against the Council's refusal in August 2017.
The transitional provisions of the Planning Act required the Council to assess and decide the development application under the SPA.
On appeal, the Court had to determine under which legislative regime the development application ought to be assessed and decided by the Court, who was required to decide the development application anew.
The decision of the Court was that the SPA will only apply to proceedings that had commenced prior to the commencement of the Planning Act. Where an appeal is filed in circumstances where the appeal rights arise (but have not been acted upon) before the Planning Act's commencement, or the appeal rights arise after the Planning Act's commencement in respect of a development application made under the SPA, the development application is to be assessed and decided by the Court as if the Planning Act applies.
What does the decsion mean for you?
- The decision rules under the SPA and the Planning Act are different. Of particular relevance is that the 'sufficient grounds' test under the SPA has been replaced by the 'relevant matters' test under the Planning Act.
- The effect of the decision is that the Court, on appeal, may make a decision on a different basis to that on which the local government made its decision.
- This interpretation will influence the way in which cases are prepared and prosecuted before the Court, and ultimately may affect the decision made by the Court.