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Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman)

 

[2020] QPEC 61

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman) [2020] QPEC 61

PARTIES:

SOUTHERN DOWNS REGIONAL COUNCIL

(appellant)

v

HOMEWORTHY INSPECTION SERVICES (AS AGENTS FOR ROBERT AND CHERYL NEWMAN)

(respondent)

FILE NO/S:

2974 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against the decision of the Development Tribunal made 19 July 2018

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

10 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2020 and further written submissions delivered on 23 July 2020, 19 August 2020 and 18 September 2020

JUDGE:

Kefford DCJ

ORDER:

I order:

1. the appeal be allowed;

2. the decision of the Development Tribunal of 19 July 2018 be set aside; and

3. the appeal be remitted to the Development Tribunal to be determined according to law.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – where the Council refused a development application for a development permit for a material change of use for a dwelling house – where the owner of the land appealed to the Development Tribunal – whether the Development Tribunal erred in law

PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – NATURE OF THE APPEAL – where the Council refused a development application for a development permit for a material change of use for a dwelling house – where the owner of the land appealed to the Development Tribunal – whether the nature of the appeal to the Planning and Environment Court permits the Court to make findings of fact inconsistent with undisturbed findings of the Development Tribunal

LEGISLATION:

Planning Act 2016 (Qld), s 43, s 45, s 59, s 60, s 229, s 231, s 251, s 255

Planning and Environment Court Act 2016 (Qld), s 9, s 45, s 47

Planning Regulation 2017 (Qld), s 26, s 27

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, cited

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793, cited

BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197, applied

Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, considered

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, applied

Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, applied

Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, applied

Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554, applied

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 124 [20]

Houssein & Anor v Under Secretary, Department of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, applied

Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, considered

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, considered

Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486, applied

Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410, applied

Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611, applied

Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, followed

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, applied

Pivovarova v Michelsen [2019] QCA 256, applied

Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489, applied

Southern Downs Regional Council v Homeworthy Inspection Services [2020] QPEC 7, approved

Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, applied

Super Turnkey Pty Ltd v Queensland Fire and Emergency Service [2020] QPEC 43, approved

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied

SOLICITORS:

Connor O’Meara Solicitors for the appellant

Ms Cheryl Newman for the respondent

TABLE OF CONTENTS

Introduction4

What are the grounds of appeal?4

Did the Development Tribunal err in law by failing to assess the development against Part E of State Planning Policy 2017?5

Was the Development Tribunal required to take into account compliance with the State Planning Policy?5

What was the decision of the Development Tribunal?11

Did the Development Tribunal fail to assess against the State Planning Policy?14

Did the Development Tribunal fail to give adequate reasons?16

Conclusion regarding failure to assess against Part E of the State Planning Policy16

Did the Development Tribunal err regarding the draft planning scheme?16

Did the Development Tribunal take into account irrelevant considerations?18

Did the Development Tribunal misconstrue the Flood hazard overlay code and err in law in approving the development?19

Did the Development Tribunal make a decision that was irrational?20

What is the appropriate relief?21

Can the Court undertake a merits review?22

Should the matter be remitted to the Development Tribunal?26

Conclusion27

Introduction

  1. [1]
    Robert and Cheryl Newman own about 4.45 hectares of land at Tummaville Road, Leyburn.  The land adjoins Canal Creek.  The Newmans want to build a dwelling house that has one bedroom and a total floor area of approximately 80 square metres.  They want to locate it on the north-eastern part of their land, approximately 80 metres from the northern boundary and the adjoining Tummaville Road. 
  2. [2]
    The respondent, Homeworthy Inspection Services, made a development application to Southern Downs Regional Council (“the Council”) for a development permit for a material change of use to facilitate the outcome sought by the Newmans.  The Council refused the application because it did not comply with all the assessment benchmarks.  The Council was of the view that conditions could not change that.  The proposed location of the dwelling house land was within the Flood hazard overlay and there was no alternative flood free area on the land.  Tummaville Road is also subject to flooding, and the Council concluded that there were no alternative flood free access routes.    
  3. [3]
    The Newmans, through their agent Homeworthy Inspection Services, appealed the Council’s decision to the Development Tribunal (constituted by Professor Victor Feros, Lama Khalifa and Anne-Maree Ireland).  On 19 July 2018, the Development Tribunal set aside the decision of the Council and approved the development application subject to conditions.  On 16 August 2018, the Council commenced the current appeal against the decision of the Development Tribunal. 

What are the grounds of appeal?

  1. [4]
    The Council may only appeal to the Planning and Environment Court on the grounds of an error or mistake in the law on the part of the tribunal, or jurisdictional error.[1]  It must establish that the appeal should be upheld.[2]
  2. [5]
    In paragraph 9 of the Notice of Appeal, the Council alleges the Development Tribunal erred in law, or made a jurisdictional error, in seven respects.
  1. The Development Tribunal failed to directly address and to give adequate reasons relating to the non-compliance alleged with the assessment benchmarks contained in Part E of the State Planning Policy 2017.
  2. The Development Tribunal failed to directly address and give adequate reasons relating to why weight and decisive weight should not be given to the amendments to section 8.2.5.3 of the Flood hazard overlay code of the Council’s Southern Downs Regional Council Planning Scheme.
  3. The Development Tribunal failed to take into account relevant considerations, namely the evidence and submissions of the Council at the hearing before the Tribunal.
  4. The Development Tribunal took into account irrelevant considerations, namely that it was relevant that the Appellant had not alleged conflicts with other provisions of the Flood hazard overlay code, in particular performance outcome PO5.
  5. The Development Tribunal decided to allow the appeal and approve the development application notwithstanding that the development did not comply with relevant assessment benchmarks contained in the Flood hazard overlay code.
  6. The Development Tribunal misconstrued the requirement that development “maintains the safety of people… and “minimises the potential damage from flooding to property”.
  7. The Development Tribunal made a decision that was irrational.
  1. [6]
    The Council no longer pursues the third alleged error.

Did the Development Tribunal err in law by failing to assess the development against Part E of State Planning Policy 2017?

  1. [7]
    The Council alleges that the Development Tribunal erred in law by:
    1. (a)
      failing to take into account a relevant consideration, namely whether the proposed development complied with Part E of State Planning Policy 2017; and
    2. (b)
      failing to give adequate reasons for its decision.

Was the Development Tribunal required to take into account compliance with the State Planning Policy?

  1. [8]
    The respondent submits that the Development Tribunal was not required to consider the assessment benchmarks in Part E of the State Planning Policy 2017.
  2. [9]
    Section 251(2) of the Planning Act 2016 states that the Development Tribunal must decide the proceeding based on the laws in effect when the application was properly made.  However, it is permitted to give the weight it considers appropriate, in the circumstances, to any new laws. 
  1. [10]
    The development application was properly made on 22 September 2017.  It is common ground that, under the development assessment regime in the Planning Act 2016 (Qld), the development application required code assessment by the Council as assessment manager.  As such, the relevant laws to be considered by the Development Tribunal included the assessment and decision-making rules for code assessment under s 43, s 45, s 59 and s 60 of the Planning Act 2016[3].
  2. [11]
    Pursuant to s 45(3) of the Planning Act 2016, the assessment of the proposed development by the Development Tribunal must be carried out only:
    1. (a)
      against the assessment benchmarks in a categorising instrument for the development; and
    2. (b)
      having regard to any matters prescribed by regulation.  
  3. [12]
    A categorising instrument is defined in s 43 of the Planning Act 2016, which states:

43 Categorising instruments

  1. (1)
    A categorising instrument is a regulation or local categorising instrument that does any or all of the following
  1. (a)
    categorises development as prohibited, assessable or accepted development;
  1. (b)
    specifies the categories of assessment required for different types of assessable development;
  1. (c)
    sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.
  1. (2)
    An assessment benchmark does not include–
  1. (a)
    a matter of a person’s opinion; or
  1. (b)
    a person’s circumstances, financial or otherwise; or
  1. (c)
    for code assessment–a strategic outcome under section 16(1)(a); or
  1. (d)
    a matter prescribed by regulation.

Examples of assessment benchmarks–

a code, a standard, or an expression of an intent for a zone or precinct

  1. (3)
    A local categorising instrument is–
  1. (a)
    a planning scheme; or
  1. (b)
    a TLPI; or
  1. (c)
    a variation approval, to the extent the variation approval does any of the things mentioned in subsection (1).
  1. (4)
    A regulation made under subsection (1) applies instead of a local categorising instrument, to the extent of any inconsistency.
  1. (5)
    A local categorising instrument
  1. (a)
    may state that development is prohibited development only if a regulation allows the local categorising instrument to do so; and
  1. (b)
    may not state that development is assessable development if a regulation prohibits the local categorising instrument from doing so;
  1. (c)
    may not, in its effect, be inconsistent with the effect of a specified assessment benchmark, or a specified part of an assessment benchmark, identified in a regulation made for this paragraph.

Note–

Assessment benchmarks are given effect through the rules for assessing and deciding development applications under section 45, 59 or 60.

  1. (6)
    To the extent a local categorising instrument does not comply with subsection (5), the instrument has no effect.
  1. (7)
    A variation approval may do something mentioned in subsection (1) only in relation to–
  1. (a)
    development that is the subject of the variation approval; or
  1. (b)
    development that is the natural and ordinary consequence of the development that is the subject of the variation approval.
  1. (8)
    Subsections (4) and (6) apply no matter when the regulation and local categorising instrument commenced in relation to each other.”

(emphasis added)

  1. [13]
    The Planning Regulation 2017 (Qld) is a categorising instrument. 
  2. [14]
    Section 26 of the Planning Regulation 2017 stipulates assessment benchmarks against which code assessment must be carried out for s 45(3)(a) of the Planning Act 2016.  It states: 

26 Assessment benchmarks generally—Act, s 45

  1. (1)
    For section 45(3)(a) of the Act, the code assessment must be carried out against the assessment benchmarks for the development stated in schedules 9 and 10.
  1. (2)
    Also, if the prescribed assessment manager is the local government, the code assessment must be carried out against the following assessment benchmarks
  1. (a)
    the assessment benchmarks stated in
  1. (i)
    the regional plan for a region, to the extent the regional plan is not identified in the planning scheme as being appropriately integrated in the planning scheme; and
  1. (ii)
    the State Planning Policy, part E, to the extent part E is not identified in the planning scheme as being appropriately integrated in the planning scheme; and
  1. (iii)
    any temporary State planning policy applying to the premises;
  1. (b)
    if the local government is an infrastructure provider—the local government’s LGIP.
  1. (3)
    However, an assessment manager may, in assessing development requiring code assessment, consider an assessment benchmark only to the extent the assessment benchmark is relevant to the development.”

(emphasis added)

  1. [15]
    Section 27 of the Planning Regulation 2017 stipulates matters to which regard must be had for s 45(3)(b) of the Planning Act 2016.  It states: 

27 Matters code assessment must have regard to generally—Act, s 45

  1. (1)
    For section 45(3)(b) of the Act, the code assessment must be carried out having regard to
  1. (a)
    the matters stated in schedules 9 and 10 for the development; and
  1. (b)
    if the prescribed assessment manager is the chief executive—
  1. (i)
    the strategic outcomes for the local government area stated in the planning scheme; and
  1. (ii)
    the purpose statement stated in the planning scheme for the zone and any overlay applying to the premises under the planning scheme; and
  1. (iii)
    the strategic intent and desired regional outcomes stated in the regional plan for a region; and
  1. (iv)
    the State Planning Policy, parts C and D; and
  1. (v)
    for premises designated by the Minister–the designation for the premises;
  1. (c)
    if the prescribed assessment manager is a person other than the chief executive or the local government—the planning scheme; and
  1. (d)
    if the prescribed assessment manager is a person other than the chief executive
  1. (i)
    the regional plan for a region, to the extent the regional plan is not identified in the planning scheme as being appropriately integrated in the planning scheme; and
  1. (ii)
    the State Planning Policy, to the extent the State Planning Policy is not identified in the planning scheme as being appropriately integrated in the planning scheme; and
  1. (iii)
    for designated premises–the designation for the premises; and
  1. (e)
    any temporary State planning policy applying to the premises; and
  1. (f)
    any development approval for, and any lawful use of, the premises or adjacent premises; and
  1. (g)
    the common material.
  1. (2)
    However
  1. (a)
    an assessment manager may, in assessing development requiring code assessment, consider a matter mentioned in subsection (1) only to the extent the matter is relevant to the development; and
  1. (b)
    if an assessment manager is required to carry out code assessment against assessment benchmarks in an instrument stated in subsection (1), this section does not require the assessment manager to also have regard to the assessment benchmarks.”

(emphasis added)

  1. [16]
    Consistent with s 251(2) of the Planning Act 2016, under s 45(6)[4] it was mandatory to undertake the assessment against the statutory instrument or document in effect when the application was made.  In addition, the Development Tribunal was entitled to give such weight that it considered appropriate, in the circumstances, to any amendment or replacement to the statutory instrument or document. 
  1. [17]
    At the time the development application was properly made, version 3.1 of the Southern Downs Regional Council Planning Scheme (“the Planning Scheme”) applied.  It is a local categorising instrument. 
  2. [18]
    Version 3.1 of the Planning Scheme did not identify the State Planning Policy July 2017 (“the State Planning Policy”) as being appropriately integrated in the Planning Scheme.  As such, pursuant to s 26(2)(a)(ii) of the Planning Regulation 2017, the State Planning Policy, Part E – Natural hazards, risk and resilience was an assessment benchmark for the development application.  It was a mandatory consideration for the Development Tribunal.
  3. [19]
    Under s 59 of the Planning Act 2016, the Development Tribunal’s decision about the development application must be based on the assessment of the development carried out in accordance with s 45 of the Planning Act 2016. 
  4. [20]
    Further, the issue of compliance with each assessment benchmark is a material consideration in any decision following code assessment.  This is apparent from s 60(2) of the Planning Act 2016, which states:

“To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

Examples—

1 An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks.

2 An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency’s response.

  1. (c)
    may impose development conditions on an approval; and
  1. (d)
    may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.

Example of a development condition—

a development condition that affects the way the development is carried out, or the management of uses or works that are the natural and ordinary consequence of the development, but does not have the effect of changing the type of development applied for

What was the decision of the Development Tribunal?

  1. [21]
    Section 255 of the Planning Act 2016 states:

255 Notice of tribunal’s decision

A tribunal must give a decision notice about the tribunal’s decision for tribunal proceedings, other than for any directions or interim orders given by the tribunal, to all parties to proceedings.”

  1. [22]
    Pursuant to s 6 and schedule 2 of the Planning Act 2016, the decision notice from the Development Tribunal was required to state, amongst other things, the decision and the reasons for the decision.
  2. [23]
    The Development Tribunal’s decision was given on 19 July 2018.  It set aside the decision of the Council and approved the development application subject to conditions that required:
    1. (a)
      general compliance with the submitted plans;
    2. (b)
      preparation of an emergency evacuation plan for flood events; and
    3. (c)
      the keeping of a hard copy of the emergency evacuation plan at the property.
  3. [24]
    The Development Tribunal – Decision Notice records that the material considered in arriving at the decision comprised:

“(i) Form 10 – Appeal Notice, grounds of appeal and correspondence accompanying the appeal lodged with the Tribunals Registrar on 1 March 2018.

  1. (ii)
    Southern Downs Regional Planning Scheme 2012
  1. (iii)
    Leyburn Flood Risk Management Study
  1. (iv)
    Information Request dated 17 October 2017
  1. (v)
    Applicant’s Information Request Response dated 21 December 2017
  1. (vi)
    Decision Notice dated 31 January 2018
  1. (vii)
    Instructions of Appeal including written representations dated 28 February 2018
  1. (viii)
    Two (2) photographs of the dwelling house provided at the Hearing and marked as Exhibit 1
  1. (ix)
    Request for Building Information from Southern Downs Regional Council to Homeworthy Inspection Services dated 6 September 2017 provided at the hearing and marked as Exhibit 2
  1. (x)
    Drawings/maps provided at the Hearing and marked as Exhibits 3 and 4.”
  1. [25]
    The Development Tribunal – Decision Notice also records:

“The Tribunal makes the following findings of fact:

  1. The property is zoned Rural in the Southern Downs Regional Planning Scheme 2012 and is located within the Flood Hazard Overlay Map and subject to Code Assessment.
  2. The Leyburn Flood Risk Management Study was the basis of informing the Flood Hazard Overlay within the Scheme.
  3. The entire property and evacuation routes are located in a low flood hazard area with reference to the Flood Hazard Overlay Map.;
  4. Council’s primary concern is the safety of persons and the community during a flood event; namely, that the property would be cut off and persons be unable to evacuate or attempt to evacuate and be exposed to an unacceptable risk.  In relation to the community, Council’s concerns are that rescue activities in relation to others would be adversely affected if rescue activities are required in respect of the subject property and its residents.
  5. The raising of the dwelling house places it above the level of predicted flooding.
  6. An early warning system for flooding exists and operates in Leyburn whereby flooding is predicted to reach the dwelling within a period of six to eight hours.
  7. A key aspect of flood management is education.”
  1. [26]
    Under a heading “Reasons for the Decision”, the Development Tribunal – Decision Notice states:

“15. The Tribunal has reviewed the material provided and the submission made and finds as follows:

  1. (a)
    The proposed development is Code Assessable within the Rural Zone Code and is assessable against the provisions of the Residential Uses Code and the Physical Infrastructure Code including relevant Overlays, in particular Flood Hazard Overlay.
  1. (b)
    There are no stated grounds within the Council’s refusal with reference to the Rural Zone Code or the Physical Infrastructure Code.
  1. (c)
    With reference to the Flood Hazard Overlay Code:
  1. (i)
    The Tribunal considers that the subject development meets Clause 8.2.5.2 Purpose (1) as the siting and construction of the proposed dwelling house seeks to minimise risk to life, property, community and environment.
  1. (ii)
    Notwithstanding that the whole property is located in the Low Hazard designation, the house is situated in an appropriate part of the property with respect to access to Tummaville Road; and further, its construction above the expected flood event minimises risk and accordingly, meets Clause 8.2.5.2 Purpose (2)(a) and (b).  Furthermore, the Tribunal considers that Clause 8.2.5.2 Purpose (2)(c) is met, as the construction of a single one-bedroom dwelling house of minimal floor area is not inconsistent with conserving the majority of the land for sustainable rural use.
  1. (iii)
    Acceptable outcome AO1 is not met by the proposed development and therefore the development is to be assessed against Performance Outcome PO1, which states:
    Development siting and layout responds to flooding potential and maintains personal safety at all times.
  1. (iv)
    Accordingly, it is concluded that the siting and layout of the proposed development does respond to flooding potential and given the elevation of the dwelling house, it is considered that personal safety is maintained at all times.  House occupants may remain in the dwelling during a maximum flood event or, alternatively, have the ability to evacuate given the time in which a maximum flood event is likely to occur.
  1. (v)
    Council did not refer any further conflicts with the Flood Hazard Overlay Code.  This is relevant as PO2 relates to development design and construction and PO5 relates to avoiding increases in relevant flooding parameters.
  1. (d)
    With reference to the Residential Uses Code:
  1. (i)
    Clause 9.3.7.2 Purpose (1) is not particularly relevant to the development, rather Clause 9.3.7.2 Purpose (2) provides that dwelling houses should only occur on land suited to the development and occupation of residential buildings and are responsive to the Region’s climate.  The Tribunal acknowledges that Council does not consider residential houses as suitable development on land subject to a flooding risk.  However as concluded above, as there is no conflict with the Flood Hazard Overlay Code and as the property is in a Low Flood Hazard Area, it is considered that there is little conflict with the purpose of the Residential Uses Code.
  1. (ii)
    The subject development does not meet Acceptable Outcome AO1 in Clause 9.3.7.3 and therefore the development is to be assessed against Performance Outcome PO1 which (relevantly) provides that “Dwelling house is located on a site that is free from natural hazards.
  1. (iii)
    Natural hazards” is not defined in the Planning Scheme.  The relevant natural hazard at issue in this Appeal is a flood event.  It is considered that there is conflict with PO1 as the dwelling house is located on a property that is not free from a flood event given that the property is located in the low hazard flood area.  However, it is concluded that the development complies with the purpose of the Residential Uses Code, with reference to Clause 5.3.3(4)(c)(i), and that therefore the development complies with the Residential Uses Code.

16. In the circumstances, it is unnecessary to consider proposed changes to the Southern Downs Regional Council Planning Scheme.”

Did the Development Tribunal fail to assess against the State Planning Policy?

  1. [27]
    As is apparent from the background cited in the Development Tribunal – Decision Notice, the Development Tribunal was aware that the Council contended that the proposed development did not comply with the assessment benchmarks in Part E of the State Planning Policy 2017.  Relevantly, in its decision notice dated 31 January 2018,[5] the Council states:

“3. The proposed development does not comply with the following Assessment Benchmarks of the State Planning Policy 2017.

  • Part E – Natural hazards, risk and resilience

3) Development avoids natural hazard areas, or where it is not possible to avoid the natural hazard area, development mitigates the risks to people and property to an acceptable or tolerable level.

4) Development supports and does not hinder disaster management response or recovery capacity and capabilities.

5) Development directly, indirectly and cumulatively avoids an increase in the severity of the natural hazard and the potential damage on the site or to other properties.”

  1. [28]
    As is apparent from paragraphs [24] to [26] above, the Development Tribunal – Decision Notice made no reference to the assessment benchmarks in Part E of the State Planning Policy, or to the State Planning Policy at all:
    1. (a)
      under the heading “Material Considered”, where the Development Tribunal listed the material it considered in reaching its decision;
    2. (b)
      in its findings of fact; and
    3. (c)
      in the reasons for its decision.
  2. [29]
    The respondent submits the Development Tribunal assessed the proposed development against the relevant assessment benchmarks.  In support of this submission, the respondent notes that the Southern Downs Regional Planning Scheme 2012 was identified as part of the material considered and that there is no evidence as to the version of the Planning Scheme considered by the Development Tribunal.  The respondent says that the Development Tribunal had jurisdiction to give weight to version 4.1 of the Southern Downs Planning Scheme 2012 and that, if it did so, the State Planning Policy did not apply because the State Planning Policy requirements had been integrated into the Planning Scheme. 
  3. [30]
    The fact that the Development Tribunal was permitted to give weight to a later version of the Planning Scheme that integrated the State Planning Policy did not absolve the Development Tribunal of its obligation to assess the proposed development against Part E of the State Planning Policy.[6]  In any event, I do not accept that the Development Tribunal assessed the proposed development against the later version of the Planning Scheme.  That it considered it unnecessary to do so is apparent from paragraph 16 of the Development Tribunal – Decision Notice set out in paragraph [26] above.
  4. [31]
    The respondent also submits that the relevant assessment benchmarks were considered by the Development Tribunal.  It says that the consideration is evident from the fact that the Development Tribunal – Decision Notice identified that the Council’s reasons for refusal alleged that the development did not comply, inter alia, with three assessment benchmarks of the State Planning Policy.  The respondent also notes that its “Instructions of Appeal including written representations dated 28 February 2018” was listed as part of the material considered.  It says that document repeated the relevant assessment benchmarks from the State Planning Policy and made detailed representations in relation to each one of them. 
  5. [32]
    At best, this demonstrates that the Development Tribunal considered those documents, which documents quoted the relevant assessment benchmarks.  That is insufficient.  Pursuant to s 45(3) of the Planning Act 2016, the Development Tribunal was required to carry out an assessment of the proposed development against the assessment benchmarks.  Under s 59 of the Planning Act 2016, the assessment is to form the basis of the decision.  There is no evidence that the Development Tribunal undertook the necessary assessment against Part E of the State Planning Policy, nor that it based its decision on such an assessment. 
  6. [33]
    As I have already explained in paragraphs [8] to [19] above, the assessment benchmarks in Part E of the State Planning Policy were mandatory considerations for the Development Tribunal.  The Development Tribunal was required to assess the proposed development against those benchmarks.  It failed to do so.[7]  This is an error of law.

Did the Development Tribunal fail to give adequate reasons?

  1. [34]
    For the reasons already provided in paragraph [32] above, I do not accept the respondent’s submission that the identification of the Council’s decision notice (which quoted its reasons for refusal and the assessment benchmarks in Part E of the State Planning Policy) and the “Instructions of Appeal including written representations dated 28 February 2018” as part of the material considered demonstrates that the Development Tribunal assessed the proposed development against Part E of the State Planning Policy.  If I am wrong about that, the Development Tribunal erred in law by failing to give adequate reasons for its decision.[8] 
  2. [35]
    The Development Tribunal – Decision Notice contained no findings about the State Planning Policy, or about matters raised by the assessment benchmarks in Part E of the State Planning Policy where they differed from the assessment benchmarks in the Planning Scheme.  For example, Part E of the State Planning Policy required assessment of whether the proposed development would support and not hinder disaster management response or recovery capacity and capabilities.  This issue is not raised by the assessment benchmarks in the Planning Scheme.  There are no findings about the impact of the proposed development on disaster management response or recovery capacity and capabilities. 
  3. [36]
    Further, the Development Tribunal – Decision Notice discloses no reasoning process about how the proposed development, or how the conditions imposed on the approval, achieves compliance with the assessment benchmarks in Part E of the State Planning Policy or, in the event that it does not, why the proposed development otherwise warrants approval as an exercise of discretion.[9]

Conclusion regarding failure to assess against Part E of the State Planning Policy

  1. [37]
    For reasons provided above, I am satisfied that the Development Tribunal erred in law in failing to assess the proposed development against Part E of the State Planning Policy.  The failure materially affected the decision of the Development Tribunal. 

Did the Development Tribunal err regarding the draft planning scheme?

  1. [38]
    The Council’s reasons for refusal of the proposed development included:

“4. Under the Coty Principle, the proposed development cannot comply with the following sections of the proposed amendments to the Southern Downs Regional Planning Scheme:

  • Section 8.2.5.3, Flood hazard overlay code, Assessment Criteria:

AO1(a) With the exception of farm sheds and outbuildings associated with an existing dwelling, new buildings are not located within the overlay area; or

(b) New buildings are located within the overlay area only where the local government has confirmed in writing that the following criteria are met:

(i) There is no part of the lot that is outside of the Flood hazard overlay area;

(ii) New buildings are located on the highest part of the lot to minimise the entrance of floodwaters;

(iii) New buildings are located in areas of low flood hazard only as follows:

 Maximum flood depth is 0.3 m; and

 Maximum flood velocity is 0.4 m/s.

(iv) Direct access is available to low hazard evacuation routes as follows:

 Maximum flood depth is 0.3 m; and

 Evacuation distance is less than 200 m.

 New buildings are located on the highest part of the lot to minimise the entrance of floodwaters;

PO1 Development siting and layout responds to flooding potential and maintains personal safety at all times.

  1. [39]
    It is apparent from the background cited in the Development Tribunal – Decision Notice that the Development Tribunal was aware that the Council relied on these proposed amendments as a reason for refusing the proposed development.
  2. [40]
    Before the Development Tribunal heard the appeal, s 8.2.5.3 of the Flood hazard overlay code of the Planning Scheme was amended.  The amendments mirror the draft referred to in the Council’s decision notice.
  3. [41]
    Under s 251(3) of the Planning Act 2016, the Development Tribunal was permitted to give the weight that it considered appropriate, in the circumstances, to the amendments to s 8.2.5.3 of the Flood hazard overlay code. 
  4. [42]
    The Development Tribunal – Decision Notice relevantly states:

“16. In the circumstances, it is unnecessary to consider proposed changes to the Southern Downs Regional Council Planning Scheme.”

  1. [43]
    The Council alleges that two errors of law are manifest in this part of the Development Tribunal – Decision Notice.  First, the Development Tribunal failed to provide adequate reasons for its decision on this point.  Second, considerations arising from the decision of this Court in Klinkert v Brisbane City Council[10] and the Court of Appeal in Brisbane City Council v Klinkert[11] do not arise in this proceeding as the Development Tribunal found non-compliance with the purpose of the Residential uses code and performance outcome PO1 of the Residential uses code.  As such, the Development Tribunal was not obligated to approve the proposed development pursuant to s 60(2)(a) of the Planning Act 2016 and erred by failing to have proper regard to the amendments to the Planning Scheme.  The Council submits that, in the circumstances of this case, the Development Tribunal ought to have had regard to the amendments to the Planning Scheme given s 45(7) of the Planning Act 2016, which stipulates that if a statutory instrument is amended before the assessment manager decides an application, the assessment manager may give the weight that the assessment manager considers is appropriate to the amendment.
  2. [44]
    It was not mandatory for the Development Tribunal to consider the amendments to the Flood hazard overlay code.  Under s 45 and s 251(3) of the Planning Act 2016, it had the discretion to do so if it considered it appropriate in the circumstances.  The provisions that the Council put in issue before the Development Tribunal were performance outcome PO1 and acceptable outcome AO1 of the Flood hazard overlay code.  Performance outcome PO1 of the Flood hazard overlay code was in identical terms in version 3.1 and version 4.1 of the Planning Scheme.  Although there were differences between the acceptable outcomes, it was unnecessary for the Development Tribunal to consider those differences because the standards set in the acceptable outcome only represent a potential design solution, not a mandatory outcome.  The real issue was whether there was compliance with performance outcome PO1.  The Development Tribunal addressed compliance with that provision in paragraph 15(c)(iv) of the Development Tribunal – Decision Notice. 
  3. [45]
    Accordingly, the Council has not established this ground of appeal.

Did the Development Tribunal take into account irrelevant considerations?

  1. [46]
    Paragraph 15(c)(v) of the Development Tribunal – Decision Notice states:

“Council did not refer any further conflicts with the Flood Hazard Overlay Code.  This is relevant as PO2 relates to development design and construction and PO5 relates to avoiding increases in relevant flooding parameters.”

  1. [47]
    The provisions of the purpose and overall outcomes of the Flood hazard overlay code put in issue by the Council required consideration of:
    1. (a)
      whether the proposed development minimised risk to life, property, the community and the environment, as referenced in the purpose;
    2. (b)
      whether the proposed development maintains the safety of people on the development site from flood events, as required by overall outcome 2(a); and
    3. (c)
      whether the proposed development would result in adverse impacts on people’s safety, the environment or the capacity to use land in the floodplain, as required by overall outcome 2(b).
  2. [48]
    The Council submits that given the matters put in issue, whether the proposed development was compliant or not with PO2 and PO5 was irrelevant. 
  3. [49]
    Performance outcomes PO2 and PO5 of the Flood hazard overlay code are concerned with the resilience of structures, rather than safety of people.  As the Council did not take issue with compliance with these outcomes, compliance with them was not a matter that need have troubled the Development Tribunal.  However, that does not demonstrate that compliance with the provisions is irrelevant.  The provisions form part of the assessment benchmarks applicable to the proposed development.  The Council has not established this ground of appeal.

Did the Development Tribunal misconstrue the Flood hazard overlay code and err in law in approving the development?

  1. [50]
    The Council alleges that the Development Tribunal erred:
    1. (a)
      by deciding to allow the appeal and approve the development application notwithstanding that the development did not comply with relevant assessment benchmarks contained in the Flood hazard overlay code; and
    2. (b)
      by misconstruing the proper meaning of “maintains the safety of people” and “minimises the potential damage from flooding to property” in the Flood hazard overlay code.[12]
  2. [51]
    The Council says the Development Tribunal proceeded on an assumption that it was inevitable that a dwelling house would be constructed on the land.  It submits that the assumption is evident from the Development Tribunal’s findings that:

“Notwithstanding that the whole property is located in the Low Hazard designation, the house is situated in an appropriate part of the property with respect to access to Tummaville Road; and further, its construction above the expected flood event minimises risk and accordingly, meets Clause 8.2.5.2 Purpose (2)(a) and (b).”

  1. [52]
    The Council’s argument misunderstands the reasoning of the Development Tribunal.  When read together, the Development Tribunal’s findings of fact and reasons for the decision reveal that the Development Tribunal was satisfied that if the proposed development was approved and proceeded, it would ensure “personal safety is maintained at all times” and it would minimise the risk of damage from flooding.  Effectively, the Development Tribunal found that the proposed development minimises the potential damage from flooding by constructing the house above what it considered to be the expected flood event.  It also found that the elevation of the house would permit the house occupants to remain in the dwelling during what the Tribunal regarded as a maximum flood event and that the siting of the house on that part of the lot proximate to Tummaville Road would ensure that the occupants would have the ability to evacuate given the time in which a maximum flood event is likely to occur and the existence of an early warning system for flooding in Leyburn.  These are findings of fact made by the Development Tribunal with reference to the Leyburn Flood Risk Management Study. 
  2. [53]
    In its Written Submissions dated 19 August 2020, the Council submits:

“… the Court would ultimately recognise that the Tribunal’s position, while not incorrect, only accounts for the 1% AEP in the Leyburn Study.”

  1. [54]
    The Council submits that to adopt such an approach is to impermissibly constrain the meaning of the assessment benchmarks.  It says that by reading the Leyburn Study as a whole, and the facts that flow from it, much larger floods can and do occur.  It submits that the maximum possible flood is the Probable Maximum Flood, which is 0.01% AEP or greater.
  2. [55]
    I do not accept that the Development Tribunal erred in its construction of the assessment benchmarks.  The assessment benchmarks contain no quantitative indication of the level of risk that should be regarded as acceptable or tolerable when assessing whether the proposed development satisfactorily maintains the safety of people and minimises the potential damage from flooding to property.  Rather, the question of compliance calls for the Development Tribunal to make a broad, evaluative judgment having regard to the facts and circumstances of the case.
  3. [56]
    The Development Tribunal’s findings reveal that it was satisfied that the development would appropriately maintain the safety of people and minimise the potential damage from flooding to property.  There is no demonstrated legal error in those findings of fact. 

Did the Development Tribunal make a decision that was irrational?

  1. [57]
    The Council alleges that the Development Tribunal’s decision was irrational and illogical by reason of the alleged errors. 
  2. [58]
    In Minister for Immigration and Citizenship v SZMDS & Anor,[13] Crennan and Bell JJ observed:

“… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

  1. [59]
    Only one of the alleged errors of law was established by the Council, namely the failure to assess the development against Part E of the State Planning Policy.  It does not follow from that error that a decision to approve the proposed development is illogical or irrational.  As was recently recognised by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd:[14]

“The Act’s approach in respect of code assessments is slightly different in that s 45(3) does not include reference to “any other relevant matter” but s 60(2) of the Planning Act 2016 expressly confers the assessment manager with the discretion to approve the application “even if the development does not comply with some of the assessment benchmarks”.  The inter-play of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument.[15]

  1. [60]
    Whether an unfavourable assessment of the development against the assessment benchmarks in Part E of the State Planning Policy would warrant refusal of the development application will depend on the exercise of the decision maker’s discretion.  As such, the Council has not established this ground of appeal.

What is the appropriate relief?

  1. [61]
    His Honour Judge Williamson QC records relevant background to the hearing of this appeal at paragraphs [7] to [27] of his decision in Southern Downs Regional Council v Homeworthy Inspection Services.[16]  As he notes, at the hearing on 27 September 2019, the Council’s submissions about the relief it sought focussed on s 9(1) of the Planning and Environment Court Act 2016 (Qld).  At that time, neither Mr Connor for the appellant nor Counsel for the respondent directed my attention, in written or oral submissions, to relevant authorities with respect to the nature of the appeal and the proper function of this Court in hearing and determining the appeal.  At that time, based on the submissions made, I determined that the matter was not one which should be remitted to the Tribunal.  I ordered that the appeal be allowed, and the Development Tribunal’s decision made on 19 July 2018 be set aside.  I also listed the appeal for further review.
  2. [62]
    When this appeal came back before me on 26 June 2020, I sought further assistance from the parties about the nature of the relief sought and the Court’s authority to substitute its own decision on the merits.
  1. [63]
    The Council now contends that the appeal before the court is a merits review (by way of rehearing) but only once the threshold of legal error is established.  The respondent disagrees.  It submits that the Court’s jurisdiction in this matter is not based on the merits of the Development Tribunal’s decision, but rather on its legality.  The respondent says a decision to refuse the development would require the Court to descend into a merits review of the Development Tribunal’s decision, which is not consistent with the appeal right conferred.  It says if a legal error is found, the Court should remit the matter to the Development Tribunal for reconsideration rather than substitute its own decision.

Can the Court undertake a merits review?

  1. [64]
    The nature of the burden assumed by the appellant and the proper function of this Court on appeal requires consideration of the language of the statute.[17]  In Dwyer v Calco Timbers Pty Ltd,[18] the High Court[19] observed:

“The issues which arise illustrate the proposition, emphasised in a number of decisions of this Court, that an “appeal” is not a procedure known to the common law, but, rather, always is a creature of statute.[20]  Further, the term “appeal” may be used in a number of senses.  In Fox v Percy[21], Gleeson CJ, Gummow and Kirby JJ referred to the fourfold distinction drawn by Mason J in an earlier decision[22] as follows:

(i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo.”

But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeal is concerned, may use the term appeal” to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh J pointed out in Eastman v The Queen[23]:

Which of these meanings the term appeal’ has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.”

In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature.[24]

(original footnotes)

  1. [65]
    The legal meaning of the statute will be informed by the nature of the body from which the appeal is to be brought (including its composition, degree of specialisation and the nature of its work) and the interrelationship between the right of appeal and other applicable statutes.[25]
  2. [66]
    In this case, the relevant right of appeal is conferred by s 229 and schedule 1, item 1(4) and table 2, item 1 of the Planning Act 2016.  It states:

“An appeal may be made against a decision of a tribunal, other than a decision under s 252, on the ground of –

  1. (a)
    an error or mistake in law on the part of the tribunal; or
  1. (b)
    jurisdictional error.”
  1. [67]
    This provision confers judicial power to examine the decision of the Development Tribunal for legal or jurisdictional error.  While the right of review is described as an appeal, the Court is exercising original jurisdiction, rather than appellate jurisdiction, as the power conferred relates to the review of a decision that does not involve the exercise of a judicial power.[26] 
  2. [68]
    The Council relies on five matters in support of its contention that the appeal before the court is a merits review (by way of rehearing) but only once the threshold of legal error is established.  First, it is inappropriate to construe provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words of the grant.[27]  Second, the conferral of a court with jurisdiction is intended to include all the procedures of the court unless expressly displaced.[28]  Third, the necessity for the Court’s power to be exercised judicially tends in favour of the most liberal construction.[29]  Fourth, the language of s 47 of the Planning and Environment Court Act 2016 makes clear that Parliament intended for the Court to either make a decision replacing it or remit the matter, and there is nothing on the face of the provision which expressly displaces that construction.  Fifth, the Council submits that its construction is confirmed when regard is had to the Explanatory Notes which provide, by way of an example, that “if the appeal was about the decision about a Development Tribunal, the Court may remit the matter to the committee with a direction to make its decision according to law.  The Council says the use of the word “may” indicates a permissive power and supports its views.
  3. [69]
    The first three general propositions relied on by the Council are undoubtedly correct.  It is equally important that a grant of power is construed in accordance with ordinary principles and that the words used are given their full meaning unless there is something to indicate to the contrary.[30]  I do not accept the last two propositions.  They approach the construction of s 47 of the Planning and Environment Court Act 2016 without regard to the broader legislative context.
  4. [70]
    Section 47 of the Planning and Environment Court Act 2016 outlines the powers of the Court in the appeal.  It states:

47 Appeal Decision

  1. (1)
    In deciding a Planning Act appeal, the P&E Court must decide to do 1 of the following (the appeal decision) for the decision appealed against–
  1. (a)
    confirm it;
  1. (b)
    change it;
  1. (c)
    set it aside and–
  1. (i)
    make a decision replacing it; or
  1. (ii)
    return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate.
  1. (2)
    The appeal decision may also include other orders, declarations or directions the P&E Court considers appropriate.
  1. (3)
    The appeal decision (other than one to confirm the decision appealed against or to set it aside and return the matter) is taken, for the Planning Act (other than chapter 6), to have been made by the entity that made the decision appealed against.”
  1. [71]
    This provision does not only apply to appeals from a decision of the Development Tribunal.  It applies to any “Planning Act appeal”.  That term is defined in Schedule 1 of the Planning and Environment Court Act 2016 to mean “an appeal to the P&E Court for which the Planning Act is the enabling Act”.  As such, it is necessary to construe s 47 of the Planning and Environment Court Act 2016 in the context of the broad range of appeal rights conferred in s 229 and Schedule 1 of the Planning Act 2016
  2. [72]
    Another type of “Planning Act appeal” is an appeal against the refusal of a development application.  That type of appeal is by way of hearing anew.  When viewed in that light, it is apparent that s 47 of the Planning and Environment Court Act 2016 does not enlarge the Court’s jurisdiction.  It confers powers on the Court in aid of the exercise of its jurisdiction in a variety of appeals.[31] 
  3. [73]
    In determining an appeal from the Development Tribunal, s 47 of the Planning and Environment Court Act 2016 provides the Court with broad power.  For example, in exercise of its jurisdiction in an appeal from the Development Tribunal, the Court may make a decision replacing that of the Development Tribunal where only one conclusion is open on the correct application of the law to the facts found by the Development Tribunal.  Such a case arises when no other conclusion could reasonably be entertained.  In that event, the Court can make the order that the Development Tribunal should have made.[32] 
  4. [74]
    That said, in exercising its powers under s 47 of the Planning and Environment Court Act 2016, the Court must be careful not to exceed the express limitation on jurisdiction found in s 229 and schedule 1, item 1(4) and table 2, item 1 of the Planning Act 2016.  As was observed by French CJ, Gummow and Bell JJ in Osland v Secretary, Department of Justice (No. 2):[33]

“… Absent such restraint, a question of law would open the door to an appeal by way of rehearing.  Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal.  When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.”

  1. [75]
    The situation here differs from that referred to in Osland v Secretary, Department of Justice (No. 2)[34] in that the Development Tribunal is not the only entity that can undertake a merits review and decide whether an assessment manager’s decision about a development application should be set aside on the basis of the entity’s own factual determinations and evaluative judgments.  Under s 229 and schedule 1, item 1(1) and table 1, item 1 of the Planning Act 2016, an applicant for a development application can elect to appeal to either the Planning and Environment Court or the Development Tribunal.  Nevertheless, that there has already been an opportunity to have the decision about the development application reconsidered on its merits (by the Development Tribunal) supports a legislative intent to narrowly confine the right of appeal with respect to the decision of the Development Tribunal.[35]
  2. [76]
    The legislative context referred to above supports a construction of the appeal as one where the existence of an error of law or jurisdictional error is the subject matter of the appeal itself.  It is not merely a qualifying condition to the ground of appeal.[36] 
  3. [77]
    For the reasons provided in paragraphs [64] to [76] above, I do not accept the Council’s submission that the appeal is by way of a merits review contingent only upon the threshold of legal error being established.

Should the matter be remitted to the Development Tribunal?

  1. [78]
    The Council submits that, even if the appeal is not by way of a merits review, there is no utility in remitting the matter to the Development Tribunal as the fate of the development application is clear.  It says that to dispose of this appeal would not require the Court to embark upon an inappropriate adjudication of contested fact and merit.  In its Written Submissions dated 19 August 2020, the Council:
    1. (a)
      identifies the relevant assessment benchmarks;
    2. (b)
      summarises the uncontested evidence;
    3. (c)
      outlines the Appellant’s evidentiary response to the Council’s reasons for refusal; and
    4. (d)
      explains why it says the Court would be satisfied that there is non-compliance with the assessment benchmarks.
  2. [79]
    The Council’s submissions are premised on the assumption that all the findings of the Development Tribunal have been found to be infected by error.  This is not the case.
  3. [80]
    The relevant legal error to be corrected is the failure of the Development Tribunal to assess the proposed development against Part E of the State Planning Policy.  The correction of that legal error requires several factual matters to be determined, namely:  
    1. (a)
      whether the proposed development avoids natural hazard areas; or, where it is not possible to avoid the natural hazard area, whether the proposed development mitigates the risks to people and property to an acceptable or tolerable level;
    2. (b)
      whether the proposed development supports and does not hinder disaster management response or recovery capacity and capabilities; and
    3. (c)
      whether the proposed development directly, indirectly and cumulatively avoids an increase in the severity of the natural hazard and the potential for damage on the site or to other properties.
  4. [81]
    The Council’s submissions about those matters invites the Court to make findings that are premised on the assumption that there is an unacceptable or intolerable level of risk unless the proposed development would maintain the safety of people during the probable maximum flood event.  As such, the Council invites findings that are inconsistent with undisturbed findings of the Development Tribunal.
  5. [82]
    In those circumstances, and given the error found, I am not persuaded that, in this case, s 47 of the Planning and Environment Court Act 2016 can be legitimately used by this Court to substitute its own decision with respect to the development application.  The matter should be remitted to the Development Tribunal to be determined according to law.

Conclusion

  1. [83]
    I would order that:
  1. the appeal be allowed;
  2. the decision of the Development Tribunal of 19 July 2018 be set aside; and
  3. the appeal be remitted to the Development Tribunal to be determined according to law.

Footnotes

[1]Section 229(1)(a)(iii) and Schedule 1, Item 1(4) and Table 2 Item 1 of the Planning Act 2016.

[2]Section 45(1)(e) of the Planning and Environment Court Act 2016 (Qld).

[3]Reprint current as at 13 September 2017. 

[4]This provision was later renumbered to s 45(7).

[5]This is the decision from which the respondent appealed to the Development Tribunal.

[6]See paragraphs [8] to [19] above.

[7]See paragraph [28] above.

[8]Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, 237-8 [57]-[64]; Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, [36]. 

[9]See Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 in relation to the decision and the discretion reserved to the decision maker.

[10][2018] QPEC 30; [2018] QPELR 941.

[11][2019] QCA 40; [2020] QPELR 579

[12]These are the fifth and sixth alleged errors.

[13][2010] HCA 16; (2010) 240 CLR 611, 625 [40] and 647-8 [130]-[131].

[14][2020] QCA 253, [62].

[15]Compare the position under s 326(1)(b) Sustainable Planning Act 2009 (repealed), which required an assessment manager’s decision “must not conflict with a relevant instrument” other than in proscribed circumstances.  For an explanation of the significance of the move to the less proscriptive approach of the Planning Act, see the observations of His Honour Judge Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793, whose observations were endorsed by the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257.

[16][2020] QPEC 7.

[17]Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 418 [89]. 

[18][2008] HCA 13; (2008) 234 CLR 124, 128-9 [2].

[19]Constituted by Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.

[20]The authorities collected in Fox v Percy (2003) 214 CLR 118 at 124 [20].  In Graziers Association (NSW) v Australian Legion of Ex-servicemen and Women (1949) 49 SR (NSW) 300 at 303, Jordan CJ said that re-hearings under the pre-Judicature Act procedures of the Court of Chancery were appeals “in effect”.

[21](2003) 214 CLR 118 at 124 [20].

[22]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-622.

[23](2000) 203 CLR 1 at 40-41 [130].  See also Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281 at 297-298 per Glass JA.

[24]Elliott v The Queen (2007) 234 CLR 38 at 42-43 [7].

[25]Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) 290 citing Eastman v The Queen [2000] HCA 29, (2000) 203 CLR 1, 40-1 [130] per McHugh J cited with approval in Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, 128-9 [2].

[26]See, eg, Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489, 510-1 [49]-[50] per McHugh J citing Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652, Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 371 and Pasini v United Mexican States (2002) 209 CLR 246 at 253-4 [10]-[13] per Gleeson CJ, Gaudron, McHugh and Gummow JJ.  See also BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197, 1204 [40].

[27]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.  

[28]Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554, 560; Houssein & Anor v Under Secretary, Department of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, 96; Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486. 

[29]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410, [22]-[24].

[30]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205.

[31]See, eg, Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 331-3 [17]-[20].

[32]See, eg, Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 332-3 [20].

[33][2010] HCA 24; (2010) 241 CLR 320, 333 [20].  See also Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439.

[34][2010] HCA 24; (2010) 241 CLR 320.

[35]See Pivovarova v Michelsen [2019] QCA 256, [4].

[36]See, eg, Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, 333 [21] quoting TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070; 82 ALR 175 at 178.  See also Southern Downs Regional Council v Homeworthy Inspection Services [2020] QPEC 7, [42]-[46] and Super Turnkey Pty Ltd v Queensland Fire and Emergency Service [2020] QPEC 43, [14]-[15].  I do not accept the submission in paragraph 17(c) of the Council’s Written Submissions dated 19 August 2020.  The exclusion of judicial review in s 231 of the Planning Act 2016 is expressed to be subject to Schedule 1 of the Planning Act 2016, in which the relevant appeal right is found.

Close

Editorial Notes

  • Published Case Name:

    Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman)

  • Shortened Case Name:

    Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman)

  • MNC:

    [2020] QPEC 61

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    10 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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