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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors  QPEC 30
CANNON HILL INVESTMENTS PTY LTD AND AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD TRADING AS AUSTRALIAN COUNTRY CHOICE GROUP (ACC)
MALT BREWING COMPANY PTY LTD (ACN 616 916 128) TRADING AS REVEL BREWING COMPANY
BRISBANE CITY COUNCIL
DUNHILL PROPERTIES PTY LTD (ACN 602 466 339)
Planning and Environment
Planning and Environment Court, Brisbane
4 June 2021
26 May 2021 – 27 May 2021
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – whether development application was impact assessable, not code assessable – whether the proposed development was for a “Hotel” and not for a “Food and Drink Outlet” – whether the proposed development exceeded 250m² gross floor area – whether relief should be refused in the exercise of discretion
Planning and Environment Court Act 2016 (Qld) s 11
Planning Act 2016 (Qld) s 45
Ferreyra & Ors v Brisbane City Council & Anor  QPELR 334
Brassgrove K B Pty Ltd v Brisbane City Council  QPEC 42  QPELR 119
Bon Accord Pty Ltd v Brisbane City Council  QPELR 23
MZAPC v Minister for Immigration and Border Protection & Anor  HCA 17
Fox & Anor v Brisbane City Council  QPELR 215
D R Gore QC and B G Rix for the applicant
J G Lyons and R Yuen for the second respondent
M J Batty and S J Hedge for the first and third respondents
Kinneally Miley Law for the applicant
City Legal for the second respondent
Thynne + Macartney for the first and third respondents
- The originating application seeks declarations and consequential orders pursuant to s 11 of the Planning and Environment Court Act 2016 (“PECA”) in relation to the development application lodged by the first respondent with the second respondent for a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet (“the development application”) in respect of the land situated at 82 Colmslie Road, Morningside (“the land”).
- The land is owned by the third respondent.
- Specifically, in the originating application the applicant seeks declarations that the development application was for impact assessable development, not code assessable development as it purported it to be, either because it sought a development permit for a material change of use which should properly be characterised as High Impact Industry and Hotel, or alternatively, on the ground that the Gross Floor Area (“GFA”) of this latter component of the proposed uses exceeds is 250m². Orders are also sought pursuant to s 11(4) of the PECA that all steps taken with respect to the development application after it was lodged with the second respondent be set aside.
The development application
- According to the confirmation notice issued by the second respondent, the development application was properly made on 6 November 2020. In the DA Form 1 which is headed “Development application details”, the proposed development was stated to be a code assessable development seeking a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet where the proposed uses would respectively be a brewery with a GFA of 538m² and a restaurant with a GFA of 250m².
- The development application included a report from Murray Bell Planning Co dated 30 October 2020 which provided further details about the proposed development. In the report, the executive summary stated:
“This Development Application seeks a Development Permit for a Material Change of Use to repurpose a portion of a State Heritage listed building into a brewery and associated restaurant …”
The report further stated that the Food and Drink Outlet is proposed to support and promote the brewery and that it is to comprise 250m² GFA and an additional 180m² of external dining area. Subsequently, it is stated that the land contains buildings that were constructed between 1917 and 1920 which were specifically designed for brewing purposes and that the proposed development “presents a unique opportunity to re-establish the original use within the heritage building” while also enabling the public “(by way of the Food and Drink Outlet) to experience a unique piece of Queensland’s heritage, which has not previously been accessible to the public.”
- The development application was accompanied by some plans including a plan entitled “B1 Floor Plan” which sought to delineate with red the “Area Primarily used for Brewery production purposes” from an area outlined in blue described as “Area Primarily used for Food and Beverage purposes.” This was a little ambiguous and lacking in precision given that the Food and Drink Outlet had to be less than 250 m2 to be code assessable.
- It is uncontentious that the second respondent accepted that the development application was properly made, issuing the confirmation notice referred to above under cover of a letter dated 20 September 2020 which confirmed that public notification was not applicable to the development application.
- Despite the development application not being publicly notified, the applicant became aware of it and made representations to the second respondent that the development application should properly be subject to impact assessment and taking issue with the appropriateness of the proposed development.
- The originating application was filed on 18 December 2020 before the development application was approved by the second respondent.
The development approval
- On 23 February 2021 the second respondent, by its delegate, decided to approve the development application and issued a decision notice approving a Development Permit for a Material Change of Use for High Impact Industry and Food and Drink Outlet subject to conditions (“the development approval”). Relevantly, the conditions included the following:
“1) Maintain the Approved Development
Maintain the approved development in accordance with the approved DRAWINGS AND DOCUMENTS, and any other relevant Council approval required by the conditions.
3) Carry Out the Approved Development
Carry out the approved development in accordance with the approved DRAWINGS AND DOCUMENTS.”
The approved plans included the B1 Floor Plan submitted with the development application together with two other plans showing less precise representations of the extent of the proposed restaurant.
- The following condition was also included:
“4) Limitation of use – Food and drink outlet
The approved Food and drink outlet must remain less than 250 m2 gross floor area (excluding the unroofed outdoor dining areas shown on the APPROVED DRAWINGS AND DOCUMENTS).
The approved Food and drink outlet must operate per the Brisbane City Plan 2014 (v20) Table SC1.1.1.B definition of a Food and drink outlet and is limited to:
- (a)preparing and selling food and drink for consumption on or off the premises; or
- (b)providing liquor for consumption on the premises, if the use is ancillary to the use in paragraph (a).
Note: The separate display and sales of pre-packaged/bottled alcoholic beverages for consumption off the premises is not permitted as part of this development approval.”
The disputed issues
- At the commencement of the hearing of the originating application the parties agreed that the issues in dispute for determination are as follows:
- “1.Whether the development application proposed development for the use of “Hotel”, not the use of “Food and Drink Outlet”, and was therefore a development application for impact assessment development.
- 2.Whether the development application proposed development for a Food and Drink Outlet of 250 m2 gross floor area or more and was therefore a development application for impact assessable development.
- 3.In the event that the Court finds in favour of the Applicant with respect to either or both of issues 1 and 2:
- (a)whether the Court should refuse relief in the exercise of its discretion;
- (b)alternatively, whether the Court has power under s. 37 of the Planning and Environment Court Act 2016 to excuse the non-compliance and whether, in the discretion of the Court, such relief should be granted.”
- Significantly, the enforceability of the conditions attaching to the development approval are not put in issue.
- It is uncontentious that at the time the development application was made, the planning scheme of the second respondent was the Brisbane City Council City Plan 2014 v20 (“the planning scheme”) and that the land is located within the Industry Zone, General Industry B Precinct. Relevantly, a Food and Drink Outlet was therefore code assessable on the land “if less than 250 m2 gross floor area”.
- Pursuant to the planning scheme, Food and Drink Outlet adopts the definition in the Planning Regulation 2017, which states that Food and Drink Outlet means the use of premises for:
- “(a)preparing and selling food and drink for consumption on or off the premises; or
- (b)providing liquor for consumption on the premises, if the use is ancillary to the use in paragraph (a).”
Examples of a Food and Drink Outlet are given with a definition and include “restaurant”.
- Conversely, the term Hotel is defined as a use of premises for:
“(i)selling liquor for consumption on the premises; or
(ii)a dining or entertainment activity, or providing accommodation to tourists or travellers, if the use is ancillary to the use in subparagraph (i).”
The term is further defined to not include a bar.
- The above definitions are also set out in Schedule 1 of the planning scheme.
- Mr Neven, a director of the first respondent, gave evidence at the hearing of the originating application. He stated in his evidence-in-chief that if the applicant was successful, it was his intention that a development application for a Food and Drink Outlet over the land with a maximum GFA of less than 250 m2 would be re-lodged. Thereafter he was vigorously cross‑examined. He maintained that his consultants were directed to stay at under 250 m2 GFA to ensure that the Food and Drink Outlet component of the proposed development was code assessable. He repeatedly stated that he intended to operate the proposed business in accordance with the conditions imposed by the development approval. He stated that his business model was to have a restaurant and a production brewery and that they have a symbiotic relationship that makes his business viable. He stressed that selling food was not subordinate to selling liquor. He stated “we will be operating a café/restaurant and we’ll be selling food for its primary use, and secondary to that is alcohol that comes with it …”
- I accept the evidence of Mr Neven that the Food and Drink Outlet, or restaurant business is separate from but has a symbiotic relationship with the brewery, that the restaurant is intended to sell alcohol as an adjunct to the sale of meals and that this use will involve the selling of food as the primary activity and the sale of alcohol, including products from the co-located brewery, as secondary to it. In the circumstances, the proposed non-brewing activity does not come within the definition of a Hotel as this requires the selling of liquor for consumption on the premises to be the primary use which I have found it is not to be. Rather, the use in question is correctly classified as a Food and Drink Outlet as the provision of liquor for consumption on the premises is ancillary to the selling of food.
- I further find that it was always the intention of the first respondent to conduct a Food and Drink Outlet use of less than 250 m² GFA, that is what was intended by the development application and is what is intended to be conducted pursuant to the development approval. This is so despite the unfortunate reference in the DA Form 1 and the accompanying report to this use being 250 m² GFA rather than less than 250 m² GFA.
- It is important to bear in mind that the relief sought is discretionary in nature. As to the nature of the relief sought in the originating application, this was well summarised by Her Honour Bowskill QC DCJ (as Her Honour then was) in Ferreyra & Ors v Brisbane City Council & Anor in the following terms:
“ It is well-established that the function of the court in proceedings which seek declaratory relief of this kind are analogous to judicial review proceedings. Consequently, the same constraints apply. As recently observed by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at :
“These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:
‘an appellate procedure enabling either a general review of the … decision… or a substitution of the … decision which the … court thinks should have been made.’”
 The burden is on the applicants to demonstrate that the Council’s decision was affected by jurisdictional error….”
- As Kefford DCJ observed in Brassgrove K B Pty Ltd v Brisbane City Council, relevant considerations to the making of a declaration are that it will quell a controversy between the parties and that it is demonstrated that there is some utility to the grant of a declaration in the terms sought. In Bon Accord Pty Ltd v Brisbane City Council Rackemann DCJ observed that discretionary considerations loom large in circumstances where the discretion is both wide and unfettered. Most relevantly, His Honour observed:
“The case for exercising the discretion in favour of the Third Respondent is stronger in relation to those grounds acceptance of which would only result in the need for further code assessable applications. There would appear to be little to be gained by forcing the Third Respondent to make a further application of the kind for the same proposal, to the same decision makers, in circumstances where there would be no public notification, objection or appeal rights.”
- The submission of the applicant that the decision of the second respondent to accept the development application and assess it as code assessable depended upon a determination which was beyond power, which must be set aside, is too simplistic. Obviously there is a significant difference between a code assessable development application and an impact assessable development application. For a start, pursuant to s 45 of the Planning Act 2016, code assessment is much more constrained. Of greater significance for the applicant is the absence of any rights to make a submission or appeal against a subsequent development approval.
- This submission does not represent the entirety of the relevant considerations in exercising the discretion conferred upon the court pursuant to the originating application. So much is apparent from the observations of Kefford DCJ and Rackemann DCJ noted above. Relevant considerations were recently canvassed by the majority of the High Court in MZAPC v Minister for Immigration and Border Protection & Anor:
“…Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute…
…The principle enunciated is that a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”.”
Furthermore their Honours subsequently observed:
“Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.”
- While the first and third respondents take issue with the fact that the originating application does not expressly seek to set aside the development approval, the fact remains that the decision of the second respondent to confer jurisdiction on itself to assess and decide the development application as code assessable is nevertheless open to challenge in circumstances where the originating application was filed before the development approval issued. This much is now conceded by the first and third respondents.
- In circumstances where I have found that it was always intended that the Food and Drink Outlet operate below the code assessable threshold of 250m², that the plans submitted with the development application were ambiguous, and that the second respondent conditioned the development approval to ensure that it was not approving a use beyond the code assessable development threshold, I find that there is no real controversy that requires quelling through the relief sought by the applicant. Although there is now evidence before me that the B1 Floor Plan which was submitted and approved by the second respondent, appears to have included a slightly larger area than 250m², I am not satisfied that this is a material consequence given the conditions attaching to the development approval.
- The second respondent assessed a purportedly code assessable development application and conditioned it to ensure that it did not authorise a use which was other than code assessable. This is a very different fact scenario to that where relief of the type sought by the applicant has been granted by this court, such as in Fox & Anor v Brisbane City Council, where there was a clear intent to subvert impact assessment with demonstrable consequences. On the facts before me, the first respondent always intended to submit a code assessable development application for, amongst other things, a Food and Drink Outlet. It intends to comply with the conditions attaching to the development approval which have been imposed to ensure that it does not exceed threshold for a code assessable development. On the evidence I accept, in the event that the applicant was successful in this proceeding, all that would happen would be that it would submit another more carefully drafted code assessable development application.
- On the evidence before me, I decline to make the declarations and consequential orders sought in the originating application. The applicant has not demonstrated any error in the categorization of the proposed non-brewery use as a Food and Drink Outlet, nor any utility in granting the relief sought. The conditions imposed in the development approval do not give rise to a controversy as to the categorization of the proposed development as code assessable. If need be these conditions can be the subject of enforcement proceedings. The applicant has not discharged the onus of demonstrating material noncompliance on the part of the second respondent in receiving and assessing the development application. The result has been a suitably conditioned development approval.
- The originating application is dismissed.
Ibid p 2.
Ibid p 5.
Ibid Exhibit 4.02, p 32.
Exhibit 5.02, p 7.
Exhibit 7.02, Site plan, p 17 and Tenancy Layout B1, B2 & B3, p 19.
Exhibit 5.02, p 7.
Exhibit 6.08, p 32.
Section 7, Schedule 3, Schedule 24.
T1-54, ll 30-35.
T1-61, ll 5-11.
T1-62, ll 35-40, 41 T1-69, ll 25-28.
T1-71, ll 10-15.
T1-71, ll 45-46.
T1-72, ll 10 – 13.
Exhibit 4.09, p 220.
 QPELR 334.
 QPELR 124 at .
 QPELR 23.
p 58,  – .
Ibid at .
See Fox & Anor v Brisbane City Council & Ors  QPELR 227 at .
 HCA 17 at  –  per Kiefel CJ, Gageler, Keane and Gleeson JJ.
T2-29, ll 5 – 46.
Exhibit 7.02, p 12.
 QPELR 215.
- Published Case Name:
Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors
- Shortened Case Name:
Cannon Hill Investments Pty Ltd v Malt Brewing Company Pty Ltd
 QPEC 30
04 Jun 2021