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Notable Unreported Decision
Appeal Determined (QCA)

Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council[2022] QCA 246Bowskill CJ and Bond JA and Flanagan JA
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Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council[2022] QCA 246

SUPREME COURT OF QUEENSLAND

CITATION:	Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council & Anor [2022] QCA 246
PARTIES:	CANNON HILL INVESTMENTS PTY LTD AND AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD TRADING AS AUSTRALIAN COUNTRY CHOICE GROUP (ACC) ABN 32 079 436 258 (applicant) v BRISBANE CITY COUNCIL (first respondent) RIVERMAKERS WELLNESS & RESEARCH CENTRE PTY LTD ACN 640 086 700 (second respondent)
FILE NO/S:	Appeal No 8424 of 2022 P & E Appeal No 3451 of 2020 P & E Appeal No 23 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Planning and Environment Court Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane – [2022] QPEC 16 (Kefford DCJ)
DELIVERED ON:	2 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	10 November 2022
JUDGES:	Bowskill CJ and Bond and Flanagan JJA
ORDERS:	Application for leave to appeal refused, with costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – GENERAL POWERS – where the proceedings below involved an appeal by the applicant and another entity against a development permit granted by the Council to the second respondent, for a material change of use of certain land, for an indoor sport and recreation centre, in the form of a gym and indoor rock-climbing facility – where the Council imposed a condition on the approval that limited the duration of the use of the land for that purpose to the period of two years – where the Planning and Environment Court found that the proposed development is meritorious and should be approved, subject to the imposition of a condition that requires the proposed development to cease operating within two years after the approval takes effect – where the applicant seeks leave to appeal the decision of the Planning and Environment Court pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) – where the applicant contends the primary judge erred in law, by taking into account an irrelevant consideration (the two year temporary approval condition) and by failing to take into account a relevant consideration (the large scale size of the proposed gym) – whether the primary judge erred in law Planning and Environment Court Act 2016 (Qld), s 63
COUNSEL:	D R Gore KC, with B G Rix, for the applicant T P Sullivan KC, with R Yuen, for the first respondent C L Hughes KC, with M J Batty, for the second respondent
SOLICITORS:	Kinneally Miley Law for the applicant City Legal for the first respondent Thynne & Macartney Lawyers for the second respondent

[1]
THE COURT: The applicants (ACC) and another company, Wilmar Trading (Australia) Pty Ltd, operate an abattoir and a bulk shipping terminal in an industrial area in Morningside. The second respondent (Rivermakers) wants to operate a gym and indoor rock-climbing facility at a nearby site, called the Depot, which already has a service station, drive-through McDonald’s fast-food restaurant and central carpark. Rivermakers applied for a development permit in order to do that. The first respondent (Council) granted the development permit, permitting the land to be used for that purpose (indoor sport and recreation activities) but imposed a condition that limited the duration of the use of the land for that purpose to the period of two years.^[1] Rivermakers did not appeal the imposition of that condition.
[2]
ACC and Wilmar had made submissions to the Council opposing the proposed development. Notwithstanding the temporary nature of the approval, they appealed the Council’s approval of the development application to the Planning and Environment Court. The appeal was heard over nine days in July, September and October 2021. The appeal was dismissed, with comprehensive reasons for judgment delivered on 3 June 2022.^[2] In [436] of the Decision, the learned primary judge said:

“On balance, I am satisfied that, taken in combination, all the matters identified throughout my reasons for judgment above that tell against approval should not stand in the way of an approval given the considerations that I have identified that support approval. Taken in combination, the matters that support approval are compelling. They persuade me that the proposed development is meritorious and should be approved, subject to the imposition of conditions that require the proposed development to:

(a)
cease operation within two years from the date on which the approval takes effect; and

(b)
limit the patrons to no more than 300 at any one time.”

[3]
ACC applies for leave to appeal the Decision.^[3] A party to a proceeding in the Planning and Environment Court may appeal a decision only on the ground of error or mistake in law or jurisdictional error and only with the leave of this Court.^[4]
[4]
There is no suggested jurisdictional error. In the proposed notice of appeal, ACC identifies what it contends are nine “errors of law” affecting the Decision, as follows:

“The primary judge erred in law:

(a)
by failing to find, in accordance with undisputed evidence given by one of the Second Respondent’s witnesses, that the proposed gymnasium would be the largest in Australia, and so by failing to take that material consideration into account in the exercise of the discretion under the Planning Act 2016;

(b)
by failing to address or apply the principle in Jones v Dunkel 1959 101 CLR 298 in response to the Applicant’s submission that the Court should decide that the 2 year temporary approval the subject of the First Respondent’s decision was not in truth proposed by the Second Respondent, and never had been;

(c)
in deciding that even if the premature fitout of the gymnasium involved arrogance and a blatant disregard of the law, that was a matter of private economics;

(d)
in failing to give probative value to the evidence of the fitout costs, on the basis that it was hearsay, in circumstances where the evidence was based upon statements made by the proposed operator of the gymnasium, and was admitted without objection by either the First Respondent or the Second Respondent;

(e)
in failing to take into account that the evidence was all one way that it would not be a commercially rational decision to establish this particular proposed gymnasium for only a 2 year operational period;

(f)
by failing to appreciate that the issue was not whether the 2 year temporary approval condition would be complied with, but rather whether the Second Respondent would seek to entrench the proposed development by making an application for a preliminary approval which overrode the planning scheme, or by taking steps to change the condition;

(g)
in concluding that there was no clearly identifiable non-compliance with the Industry zone code by reason of the nature of the use, having already concluded that the proposed development was not consistent with the purpose of the code;

(h)
in characterising the matters supporting approval as compelling;

(i)
in failing to decide that the 2 year temporary approval condition was an extraneous consideration for the exercise of the discretion, in view of:

(i)
the conclusion of the primary judge that the case for refusal was of significant force; and

(ii)
the conclusions that ought to have been made, were it not for each of any of the errors identified in grounds (a) to (h) above, or some combination thereof.”

[5]
In their outline of oral argument, counsel for ACC conceded that “This is an unusual proposed appeal from the Planning & Environment Court, in the sense that it is not directly concerned with the application or interpretation of provisions of a planning instrument or a planning statute”. They identified the “central issues” as “whether the primary judge erred in law, in a material way, in failing to find:
1. (a)
  that each of Rivermakers and Total Fusion^[5] held the intention, at the time of the hearing, to take steps in the future to change the 2 year temporary approval condition;
2. (b)
  that the gymnasium would be the largest gymnasium in Australia.”
[6]
ACC submits the errors are errors of law “because, to put it simply, the discretion miscarried through:
1. (a)
  the taking into account of a consideration that was, in truth, irrelevant (the 2 year condition);
2. (b)
  the failure to take into account a consideration that was, in truth, directly relevant (the dramatically large scale of the proposal).”
[7]
It is convenient to deal with the application for leave to appeal by reference to this summary of the grounds relied upon by ACC, rather than by reference to the nine purported errors, seriatim, since that is how the parties approached the matter.
[8]
For the following reasons, we are not persuaded that the decision is affected by any error of the kind contended by ACC nor, for that matter, that any of the purported errors are properly characterised as errors of law.
[9]
ACC’s primary contention is that the primary judge should have accepted its submission, made below, that having regard to the large scale of the proposed gym, and the expensive fitout costs involved, the true intention of Rivermakers, at the time of the hearing of the appeal, must have been, and continue to be, to operate the gym for much longer than two years. On that basis, ACC submitted that “little weight should be given to the fact that Rivermakers only seeks a temporary approval”^[6], and that the proper exercise of the primary judge’s discretion ought to have resulted in refusal of the approval.
[10]
The primary judge noted that this aspect of ACC’s submissions were “strongly expressed” and to “avoid any injustice that might be caused by … summarising their effect”, set the submissions out in full in [175] of the Decision. Having done so, her Honour said:

“[176] These submissions are not persuasive. Leaving aside that the only evidence of the fit-out costs is hearsay, the opinions of the economic experts about the commerciality of a two-year operating period are premised on an assumption that the outlay costs are lost at the end of the two-year operating period. There is no evidence establishing the validity of the assumption. I do not accept that the assumption is valid. To the contrary, as was acknowledged by Mr Norling, the costs referred to include a substantial amount of gymnasium equipment which, at the end of the two-year period, could be relocated to a new premises operated by the same business entity.

[177] Further, and in any event, it is of little moment whether the fit out is reflective of premature overexuberance about the prospect of an approval, ignorance of the requirement to obtain an approval, or arrogance and blatant disregard of the law. The decision to spend money on a fit out that may be wasted, or that may adversely affect the commercial success of the business, is a matter of private economics. It is not relevant to the decision of an assessment manager, or the Court, to grant an approval (or a change to an approval). It does not inform whether the use is appropriate.”

[11]
Her Honour then referred to observations made by Acker J in J Murphy & Sons Ltd v Secretary of State for the Environment [1973] 2 All ER 26 at 30-31, emphasising the following passage:

“What the planning authority is concerned with, is how the land is to be used, and not whether the development proposed is going to be a wise commercial venture. The planning authority exercises no paternalistic or avuncular jurisdiction over would-be developers to safeguard them from their financial follies. If it had such jurisdiction, planning inquiries would last even longer than they do now, and the problems of establishing whether or not a particular development was or was not economically justifiable would be countless.”

Before going on to say:

“[179] The approval sought for the proposed development is for a temporary use only. It is to operate for two years. The limited duration of the proposed use is a relevant, and material, fact informing the acceptability of the proposed development. This fact persuades me that the proposed development would not alienate the subject site from use for industrial purposes in the long term. The proposed development is to operate from an existing, approved industrial building. Upon the cessation of the operation of the proposed development (after a two-year period), the opportunity for the existing industrial building to be used for industrial uses will still exist. I accept the evidence of Ms Roughan that the building can be readily repurposed for ‘population serving’ service industry, low impact industry and warehouse uses after the indoor sport and recreation use has ceased. The existing built form was approved for those uses originally.”

[12]
Part of ACC’s submission – expressly recorded by the primary judge – was that:

“If a temporary approval were granted, the only reasonable conclusion open on the evidence is that Rivermakers would later exercise rights to seek to extend the approval. The issue is not whether the condition will not be complied with; the issue is whether Rivermakers will take steps to change the condition. To create an environment for that to potentially occur would be highly undesirable. This case has been conducted on a particular footing about time, and it would almost be a fraud on the Court for Rivermakers to seek to explore its rights in the future to change things.

Rivermakers was put on notice in ACC’s opening that it would rely upon the consideration that neither Rivermakers nor Total Fusion (through an appropriate representative) would be giving evidence.

The principle in Jones v Dunkel 1959 101 CLR 298 is well-known and well-established. The principle is that any inference favourable to ACC for which there is ground in the evidence may be more confidently drawn by this Court when a person able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness for the opposing party, and the evidence at the trial provides no sufficient explanation for the failure.”^[7]

[13]
The appeal to the Planning and Environment Court appropriately proceeded on the basis of acceptance of the two year condition. As the primary judge recorded at [4] of the Decision, Rivermakers did not appeal the imposition of that condition and “[i]t now only seeks a temporary approval for that duration”. In those circumstances, far from being an irrelevant consideration, it would have been an error for the Planning and Environment Court to ignore that limitation – both on what was sought and what had been granted – in determining the appeal.
[14]
The fact that Rivermakers may, subjectively, have an intention to take steps to obtain a further approval in the future is beside the point. ACC does not contend that Rivermakers will not comply with the development approval as granted; nor that in respect of any future steps that Rivermakers may seek to take under the statutory scheme to obtain a further development approval, or change the existing one, that it will not comply with the law more generally in doing so. Rather, ACC’s submission is, essentially, that it was a waste of the Court’s time, and a costly burdensome exercise, to consider an application for a temporary approval, when it is, ACC contends, practically a certainty that Rivermakers will seek to exercise such a legal right in the future, by applying for an extension of the approval. ACC’s point is that a developer such as Rivermakers ought not be able to obtain a temporary development approval at all, if its true intention is to apply for a further approval in the future. In articulating its argument at the hearing of the application, senior counsel for ACC went so far as to describe it as an abuse of process, although accepted that this was not part of the grounds identified in the proposed notice of appeal.
[15]
Relevantly, it was ACC (and Wilmar) that brought the matter to the Planning & Environment Court. So to submit that the proceeding was a waste of the Court’s time, or costly, is somewhat ironic. But in any event, it cannot be said that the two year condition was an irrelevant consideration; nor that the primary judge made any error of law by declining to make the factual finding ACC urged her Honour to make. No error was involved in failing to expressly refer to the principle in Jones v Dunkel, nor in declining to draw the inference which ACC invited the primary judge to draw. It was open to her Honour to find ACC’s submissions on this point “unpersuasive”. Even if the primary judge had drawn the inference that Rivermakers intended, in the future, lawfully, to make a further application for approval for a longer period of time, it does not follow that this would have had any impact on the exercise of the discretion to approve the temporary approval. Her Honour was considering a particular approval, which was limited as to time.
[16]
No error of law has been identified. ACC’s complaint is that the primary judge did not make a factual finding, on the basis of inference, that Rivermakers held the subjective intention to seek to exercise a legal right in the future, by lawfully making an application under the legislation to extend its development approval beyond two years. That is not an error of law; it is a complaint about a matter of fact. There was no requirement for the primary judge, as a matter of law, to enquire into the subjective intention of the applicant for approval as to what it might do beyond the duration of the approval.
[17]
The subject matter of the appeal to the Planning and Environment Court was a particular approval – for the use of the relevant premises for the purpose of indoor sport and recreation activities (a gym and indoor rock-climbing facility) for a limited term of two years. There is no basis on which to find that the two year condition was an irrelevant consideration, regardless of what Rivermakers’ subjective intention for the future might or might not be. The Council’s submission, that any future intention of Rivermakers with respect to the proposed development was not relevant to the primary judge’s determination of the development application which was before the Court for consideration – relevantly, with the temporal constraint – is correct. Any such future intention can only be implemented by an application lawfully made under the statutory scheme and determined on its merits at that time.
[18]
As to the second issue, described as the “largest gym issue”, no error of law has been shown in this regard either. The primary judge did not “fail to make a finding about the particularly large scale of the proposal” as ACC contends. Her Honour addressed the size and scale of the proposed development in the Decision, both in the context of addressing whether the proposed development was an inappropriate use of the land and whether there was a need for the proposed development.^[8] Her Honour may not have used the hyperbolic language favoured by ACC, but that does not matter. As to the use of the land, and reiterating the relevance of the temporal condition, her Honour said:

“[166] … As would be apparent from the provisions of City Plan and the South East Queensland Regional Plan to which I have already referred, at the local government and State government level there is strongly expressed planning policy to preserve and protect land in the Major Industry Area from encroachment by non-industrial uses and to prioritise and maximise the use of such land for industrial purposes. An unconstrained approval of an indoor sport and recreation use of the scale proposed would be at odds with that policy.

[167] Rivermakers and the Council contend that the proposed two-year operational period is a material consideration when assessing the potential for the proposed development to compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area.” [underlining added]

[19]
No error of law has been shown. The application for leave to appeal should be refused, with costs.

Footnotes

[1] AB 564-565 (condition 5).

[2]Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16 (Kefford DCJ) (the Decision).

[3] Wilmar, which was an appellant in the proceedings in the Planning & Environment Court, was initially named as the third respondent, but was removed as a party, prior to the hearing, with the agreement of all parties.

[4]Planning and Environment Court Act 2016 (Qld), s 63(1) and (2).

[5] Total Fusion is the proposed operator of the gym.

[6] Decision at [175].

[7] Decision at [175].

[8] Decision at [15], [16], [64]-[65], [115], [118], [123(h) and (i)], [151], [165]-[166] and [336]-[338].

Editorial Notes

Published Case Name:
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council & Anor
Shortened Case Name:
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council
MNC:
[2022] QCA 246
Court:
QCA
Judge(s):
Bowskill CJ, Bond JA, Flanagan JA
Date:
02 Dec 2022
White Star Case:
Yes

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2022] QPEC 16	03 Jun 2022	-
Appeal Determined (QCA)	[2022] QCA 246	02 Dec 2022	-

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor	[2022] QPEC 16	2 citations Jump To Cite 1 - [2022] QPEC 16 Cite 2 - [2022] QPEC 16
J Murphy & Sons Ltd v Secretary of State for the Environment	[1973] 2 All ER 26	1 citation Jump To Cite 1 - [1973] 2 All ER 26

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Development Watch Inc. & Anor v Sunshine Coast Regional Council	[2023] QPEC 24	2 citations
Edie v Brisbane City Council	[2023] QPEC 9	1 citation

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Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council[2022] QCA 246