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Burke v Minister for State development, infrastructure, local government and planning[2022] QPEC 23

Burke v Minister for State development, infrastructure, local government and planning[2022] QPEC 23

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Burke v Minister for State development, infrastructure, local government and planning & Anor [2022] QPEC 23

PARTIES:

PETER THOMAS BURKE

(applicant)

v

MINISTER FOR STATE DEVELOPMENT. INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(first respondent)

and

PACIFIC VIEW FARM (QUEENSLAND) PTY LTD

(second respondent)

FILE NO/S:

787/22

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

20 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2022

JUDGE:

Williamson QC DCJ

ORDER:

The Originating application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where applicant challenges the validity of the Minister’s decision to approve a change application under the Planning Act 2016 – where the applicant contends the Minister failed to take into account relevant considerations – where applicant contends the Minister’s decision is legally unreasonable.

CASES:

Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal & Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124

Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2021] QPELR 809

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13

House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24

Novadeck Pty Ltd v Brisbane City Council [2017] QPELR 152

LEGISLATION:

Planning Act 2016, ss 3, 4, 5, 78, 78A, 79, 80, 81, 81A, 105 and Schedule 2

Planning and Environment Court Act 2016, s 11

Sustainable Planning Act 2009, s 422

COUNSEL:

Mr P Burke, self-represented

Mr D O'Brien QC and Mr W Macintosh for the first respondent

Mr L Sheptooha for the second respondent

SOLICITORS:

Crown Solicitor for the first respondent

Minter Ellison Gold Coast for the second respondent

Introduction

  1. [1]
    The applicant, by his Originating Application, challenges the validity of the Minister’s decision of 31 December 2021, as the responsible entity,[1] to change an extant development approval under the Planning Act 2016 (PA). 
  2. [2]
    The development approval the subject of the change application was granted in March 2015[2] for the Pacific View Estate located at Hinkler Drive, Worongary and varies the effect of Gold Coast City Council’s planning scheme (the development approval).[3]  The development approval has been changed on three occasions prior to the decision of 31 December 2021[4] and incorporates, by express reference, a document described as the ‘Skyridge Development Code’ (the Code).  The Code identifies how the approval varies the effect of the planning scheme.
  3. [3]
    The applicant advances two grounds of challenge.  First, it is contended the Minister failed to take into account a number of mandatory considerations.  Second, it is contended the Minister’s decision is legally ‘unreasonable’.  The second ground assumes the applicant’s case in relation to the first ground is successful, in part.
  4. [4]
    The Originating Application is opposed by the Minister and Pacific View Farm (Queensland) Pty Ltd (PVFQ).

Background

  1. [5]
    The development approval facilitates the staged development of 324 hectares of land at Worongary for urban purposes.  The extent of development envisaged is stated, in broad terms, in a preamble to the decision notice.  The preamble records that the approval facilitates ‘a maximum of 3,500 dwellings delivered in a wide range of housing products’; ‘a residential population in the range of 8,000 to 10,000 persons’; and retail, commercial and industrial uses in particular parts of the land.[5]
  2. [6]
    Condition 2(a) of the development approval states that the Code is the ‘applicable development code’.[6]  The Code provides a site-specific framework for the staged development of the land over a 10 to 20 year period.  In terms of its structure, the Code includes: (1) a statement of intent;[7] (2) tables of development and overlay provisions; and (3) a place code and place code plans.[8]
  3. [7]
    The Code divides the land into 8 precincts, which are identified on Map 3.  The intent for each precinct is set out in section 5.0 of the Code.[9]  Precincts 6 and 7 are relevant to this proceeding.  The former is the ‘Medium Density Residential’ precinct.  The latter is the ‘Low density residential’ precinct.
  4. [8]
    With respect to the place code plans, the Code states, in part:[10]

Place Code Plans and drawings…illustrate the conceptual/indicative master planning and urban design outcomes that could be achieved through the application of this preliminary approval as well as key site or statutory features such as slope and defined watercourses which are specifically referenced for assessment purposes by the Development Code. These drawings include:

  • Place Code – Map 5 – Residential Density;
  1. [9]
    Map 5 depicts the development site in its entirety.  The purpose of the map is to indicate where particular residential densities are anticipated.  Density is determined by the colours on the map, read with an associated legend.  The map indicates that a significant proportion of the land is designated ‘RDpve2’.  The legend states the following for this designation:

RDpve2 – one dwelling per/700m2 nett site area (up to 14.3 dwellings per/nett Ha).

  1. [10]
    The RDpve2 designation applies to precinct 7, and part of precinct 6.
  2. [11]
    Relevantly for this proceeding, Map 5 has application to two parts of the Code.
  3. [12]
    Map 5 informs Tables of Development in the Code for, inter alia, the material change of use overlay.[11]  The relevant table provides that a material change of use involving Building Work will be code assessable where the following criterion is met:[12]

Precincts 4, 5, 6, 7 & 8

Does not exceed the maximum density for the site identified on Place Code – Map 5 – Residential Density.

  1. [13]
    Map 5 also informs performance based planning provisions in section 10 of the Code. Performance outcome PC8 and its corresponding Acceptable solution, AS8, apply to all precincts, and are in the following terms:[13]

RESIDENTIAL DENSITIES

PC8

Development must achieve nett residential densities that meet the intent and desired outcomes of the precinct

AS8

Residential densities as indicated in Place Code Map 5 – Residential Density are achieved for each stage of the development

  1. [14]
    Performance outcome PC8 refers to the ‘desired outcome of the precinct’. The ‘desired outcome’ can be discerned from a statement of objectives for each precinct.[14]  Common to the Low residential density and Medium residential density precincts is an intent for development to achieve an overall residential density generally in accordance with that shown on Map 5.[15]
  2. [15]
    Under cover letter dated 6 October 2021,[16] PVFQ’s consultant made an application to the Minister under s 78 of the PA to change the development approval.  The change sought was characterised in the application as a ‘minor change’.  This is a defined term in Schedule 2 of the PA.  The application identifies the Minister as the ‘responsible entity’.[17]
  3. [16]
    The minor change proposed to the development approval was described in the letter of 6 October 2021, and the accompanying Change application ‘Form 5’, in these terms:[18]

The Applicant seeks approval to change the approved Skyridge Development Code in the following ways:

1.  Amend Skyridge Code Map 5 Residential Density in the following ways:

  • change the code assessable density for RDpve2 from ‘one dwelling/700m2 nett residential density (up to 14.3 dwelling per/nett Ha)’ to ‘one dwelling /500m2 net residential density (up to 20 dwelling per/net HA)’.
  • change all references from ‘nett’ to ‘net

2. Amend Performance Criteria 8 reference ‘nett’ residential densities to ‘net’ residential densities.

  1. [17]
    The application suggests there are two underlying reasons for the proposed change to the development approval.
  2. [18]
    First, the change from ‘nett’ to ‘net’ is to achieve consistency between the development approval and other planning instruments in effect, namely Council’s planning scheme.  I did not understand Mr Burke to take issue with the Minister’s decision to approve this change. In planning terms, it is an innocuous textual change to the Code.
  3. [19]
    Second, the material before the Minister included a ‘yield plan’ for stages 1 to 9 of the development.  The plan suggests that the approved, and expected, code assessable development yield achievable under the development approval is in the order of 2,922 dwellings.[19]  This falls short of the 3,500 dwellings referred to in the preamble to the decision notice.  It is with this in mind that the reason for the change to Map 5 emerges.  The change involves an increase in residential densities to ‘assist in…achieving the approved development yield of 3,500 dwellings’.[20]  An increase in 493 dwellings can be achieved in an area of the site described as ‘west of powerlines (including Stage 9)’.
  4. [20]
    The application makes clear that the proposed change to Map 5 would, if approved, alter the code assessable development yield in a manner that is adverse to future rights of submission.  For example, section 4.1 of the letter of 6 October 2021 states:[21]

While the proposed changes will result in an increase in the code assessable development yield, this increase will not exceed the existing 3,500 dwelling cap. The proposed change will not change the development footprint for the estate as this is controlled by development constraints that are not proposed to be changed. The change will only ensure the development footprint is used more efficiently so the estate is more likely to reach the 3,500 dwelling target.

  1. [21]
    There is no dispute between the parties as to the material before the Minister for his consideration.  The material is identified in the affidavit of Ms Sophie Smith, filed on 9 May 2022.[22]

Statutory assessment and decision-making framework

  1. [22]
    The right to make an application to change a development approval is to be found in s 78(1) of the PA.
  2. [23]
    The responsible entity for a change application is determined having regard to s 78A of the PA.  Here, it is uncontroversial that the Minister was the responsible entity for the change application.  This is because the change application sought a change to a development approval given or changed by the Minister for a development application that had been ‘called in’.[23]
  3. [24]
    The requirements for change applications are identified in s 79 of the PA. Subsections (1) and (1A) provide:

79 Requirements for change applications

(1) A change application must be—

(a) made in the approved form; and

(b) accompanied by—

(i) the required fee; and

(ii) for an application for a minor change—a copy of any pre-request response notice for the application.

(1A) Also, a change application must be accompanied by the written consent of the owner of the premises the subject of the application to the extent—

(a) the applicant is not the owner; and

(b) the application is in relation to—

(i) a material change of use of premises or reconfiguring a lot; or

(c) the premises are not excluded premises.

(underlining added)

  1. [25]
    The Minister was satisfied the change application complied with s 79 of the PA.[24] In this circumstance, s 79(2)(a) of the PA required the Minister to accept the change application.
  2. [26]
    Section 80 of the PA required PVFQ to give affected entities notice of the change application.  The Minister was satisfied the required notice was given to each affected entity as defined in s 80.[25]
  3. [27]
    Section 81 of the PA identifies the matters to be considered by the responsible entity when ‘assessing’ a change application for a minor change.  Before the assessment begins, there is a threshold requirement identified in s 81(1) of the PA; the responsible entity must be satisfied the change application seeks a minor change to a development approval.  As I have already observed, the phrase ‘minor change’ for a development approval is defined in Schedule 2.  The relevant part of the definition is in the following terms:

minor change means a change that—

(b) for a development approval—

(i) would not result in substantially different development; and

(ii) if a development application for the development, including the change, were made when the change application is made would not cause—

(A) the inclusion of prohibited development in the application; or

(B) referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or

(C) referral to extra referral agencies, other than to the chief executive; or

(D) a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or

(E) public notification if public notification was not required for the development application.

  1. [28]
    Once a responsible entity is satisfied a change application seeks a minor change to a development approval, the assessment can begin under s 81(2) of the PA.  The matters of particular relevance to the Minister were as follows:

81 Assessing change applications for minor changes

(1) This section applies to a change application for a minor change to a development approval.

(2) In assessing the change application, the responsible entity must consider—

(a) the information the applicant included with the application; and

(c) any pre-request response notice or response notice given in relation to the change application; and

(d) if the responsible entity is, under section 78A(3), the Minister—all matters the Minister would or may assess against or have regard to, if the change application were a development application called in by the Minister; and

(e) another matter that the responsible entity considers relevant.

  1. [29]
    There is, in my view, little practical difference here between ss 81(2)(d) and (e). The latter required the Minister to have regard to ‘another matter’ he considered relevant.  This can be compared with s 81(2)(d), which required the Minister to have regard to ‘all matters’ he would or may assess against, or have regard to, if the change application were a ‘called in’ development application.  Section 105 of the PA identifies the relevant matters that would apply in such circumstances. In particular, ss 105(4)(a), (5) and (6) provide:

105 Deciding called in application

(4) The following provisions do not apply to the application

(a) for a development applicationsections 45(3) to (8), 60 to 62, to the extent those sections impose obligations on the assessment manager, and  section 64;

(5) For an application that is not a cancellation application, the Minister may consider anything the Minister considers relevant.

(6) The Minister need not consider any referral agency’s response.

  1. [30]
    Sections 105(4) and (5) of the PA make clear that the Minister, in the context of a call in for a development application, is not constrained by the same decision making rules that apply to an assessment manager, or this Court on appeal; the assessment and decision-making rules for code and impact assessment do not apply.  The Minister is guided by, inter alia, s 105(5), which is expressed in broad terms.  It confers a broad discretion on the Minister to have regard to ‘anything’ that is considered relevant.  By operation of s 105(6), that need not include a referral agency response.
  2. [31]
    After assessing the change application for a minor change under s 81, the Minister was obliged to exercise the discretion in accordance with s 81A(2), which states:

(2) After assessing the change application under section 81, the responsible entity must decide to 

(a) make the change, with or without imposing or amending development conditions in relation to the change; or

(b) refuse to make the change.

  1. [32]
    It can be observed that s 5(1) of the PA has application to the exercise of the Minister’s discretion as a ‘responsible entity’.  The provision states:

(1) An entity that performs a function under this Act must perform the function in a way that advances the purpose of this Act.

  1. [33]
    Section 5(2) of the PA provides a list of matters that advance the purpose of the Act.  The list makes no reference to the exercise of Ministerial powers. That said, the list is non-exhaustive; it is an inclusive list.  Having regard to ss 3 and 4(j) of the PA, advancing the purpose of the PA may be regarded as including the exercise of Ministerial powers in a manner that ‘protect(s), or give(s) effect to, the State’s interests relating to planning and development assessment’.

The Minister’s decision and statement of reasons

  1. [34]
    On 31 December 2021, the Minister decided to approve PVFQ’s change application for a minor change.  A statement of reasons[26] was prepared in response to a request by Mr Burke.  The Minister’s written reasons are dated 14 February 2022.
  2. [35]
    A review of the Minister’s reasons reveal the following.
  3. [36]
    In the exercise of the discretion, the Minister had regard to:[27]
    1. (a)
      a briefing note, which attached:
      1. the change application submitted on behalf of PVFQ;
      2. a draft amended decision notice;
      3. a draft amended version of the Code;
      4. a draft letter to the chief executive officer, Gold Coast City Council;
      5. a draft letter to the chief executive officer of Powerlink;
      6. a draft letter to the chief executive officer of Energex; and
      7. a departmental ‘Planning Assessment Report’.
    2. (b)
      Legislation and statutory instruments, including:
      1. the PA;
      2. Sustainable Planning Act 2009;
      3. Development Assessment Rules under the PA, s 68, version 1.3 dated 11 September 2020.
  4. [37]
    At paragraph 2.4 of the reasons, the Minister recognised that the change application could be assessed and approved provided the statutory definition for ‘minor change’ was satisfied.  The reasons set out the terms of definition (relating to a minor change for a development approval), and an extract of Schedule 1 to the Development assessment rules.[28]  The latter provides a list of matters that may be considered in relation to the first limb of the minor change definition, namely the ‘substantially different development’ test.[29] 
  5. [38]
    With these matters in mind, the Minister was satisfied the change proposed to the development approval was a minor change for the following reasons:

2.7. I was satisfied that the proposed change was a minor change because the material before me informed me that:

  • the proposed change would not cause any of the effects listed in paragraph (b)(ii) of the definition of minor change
  • in relation to paragraph (b)(i) of the definition of minor change, none of the matters listed in Schedule 1 of the DA rules (set out above) apply to the proposed change. In relation to this point, I note the material indicates:
    • the applicant proposes to amend SkyRidge Code Map 5 Residential Density by changing the code assessable density for RDpve2 from ‘one dwelling/700m2 nett site area (up to 14.3 dwelling per/net Ha)’ to ‘one dwelling/500m2 net site area (up to 20 dwelling per/net Ha)’
    • while the original approval anticipated a maximum yield of some 3,500 dwellings, the residential densities included within the development could effectively be limited to 3,000 dwellings
    • the change to the code assessable density for RDpve2 may facilitate approximately 500 additional dwellings on the site and assist in  achieving the original intended yield of 3,500 dwellings for the site
    • the proposed change is not considered to materially alter the development, result in new or increased impacts or require changes to infrastructure provision
    • more specifically, the material indicates that:
      • the character and appearance of the development, namely detached housing, is not materially impacted by the change to the code assessable density for the RDpve2 area
      • the proposed change does not introduce new impacts or affect the severity of any known impacts. The original assessment of impacts was based on the same development footprint and a maximum yield of 3,500 dwellings
      • the proposed change does not dramatically change the built form in terms of scale, bulk and appearance
      • the proposed change does not significantly impact on traffic flow or the transport network. The original traffic impact assessment was based on a maximum yield of 3,500 dwellings
      • the proposed change does not impact on infrastructure provision. The assessment of infrastructure requirements was based on a maximum yield of 3,500 dwellings and as such infrastructure already conditioned is appropriately sized.
    • The changes to terminology, substituting the word ‘nett’ for the word ‘net’, are cosmetic only and will not have any impact on the operation of the development code.
  1. [39]
    The reasons record that the Minister decided to approve PVFQ’s change application for the following reasons:

2.9 I decided to approve the change application because:

  • I was informed that:
    • the department undertook an assessment of the application which concluded that the proposed change is consistent with the intent of the original approval
    • the proposed change does not offend submissions received during the original assessment process
  • as set out above, the proposed change may facilitate approximately 500 additional dwellings on the site and assist in achieving the original intended yield of 3,500 dwellings for the site
  • the proposed change is not considered to materially alter the development, result in new or increased impacts or require changes to infrastructure provision
  • with respect to the changes to terminology, these are cosmetic only and will not have any impact on the operation of the development code
  • the material provided to me stated that my decision would not limit human rights.
  1. [40]
    The Minister’s reasons refer to a planning assessment report prepared by the relevant department.  This assessment was attached to a briefing note before the Minister.[30]  Section 5 of the report traverses the minor change test and the merits of the change application.  Section 6 of the report records that the department considered the application as one seeking a minor change, and recommended approval.[31]
  2. [41]
    The executive summary to the planning assessment report includes a ‘Summary of assessment’, which states:[32]

The requested change consists of changes to code assessable densities and terminology in [the] applicable code.

The proposed change to the code assessable density provides for approximately 500 additional dwellings on site without exceeding the maximum dwelling yield of 3,500 dwellings as identified in the original Ministerial Development Approval. The change is not considered to materially alter the development, result in new or increase impacts or require changes to infrastructure provision.

Other changes, being changes to terminology, are cosmetic only and will not have any impact on the operation of the development code.

The Department….recommends that the change be approved in full.

The grounds of challenge

  1. [42]
    Mr Burke, who is self-represented, made a number of attempts to articulate the grounds of review relied upon.  The final landing point was captured in an order made on 10 June 2022, which defines the issues in dispute.
  2. [43]
    By reference to the order of 10 June 2022, the issues can be identified as follows:
  1. Whether the Minister failed to have regard to the following matters he was bound to consider,[33] namely:
    1. (i)
      the true meaning of PC8 and AS8 in the Code;[34]
    2. (ii)
      the effect of PC8 and AS8 on the change sought to the development approval; [35]
    3. (iii)
      the original approving Minister’s call-in approval report, and statement of reasons, to the legislative assembly;[36]
    4. (iv)
      an updated traffic impact assessment report assessing the development and its impact on the internal and external road network;[37]
    5. (v)
      the increase in the severity of known impacts on traffic and stormwater flows; [38]
    6. (vi)
      the material change of use provisions in the Code that require development exceeding the density on Map 5 to undergo impact assessment;[39] and
    7. (vii)
      the applicant’s letter to the Minister of 28 November 2021.[40]
  2. Whether the Minister acted so unreasonably that no reasonable responsible entity under the PA could have come to the same decision[41] because he failed to have regard to:
    1. (i)
      the original Minister’s call-in approval report, and statement of reasons, to the legislative assembly;[42] and
    2. (ii)
      the material change of use provisions in the Code that require development exceeding the density on Map 5 to undergo impact assessment.[43]

Objections to affidavit material

  1. [44]
    Before dealing with the grounds of challenge, it is necessary to rule on a number of objections taken on behalf of the Minister and PVFQ to affidavit material relied upon by Mr Burke.
  2. [45]
    The objections are set out in the attached document marked ‘A’, which is exhibit 1.  The objections were the subject of detailed written submissions.[44]
  3. [46]
    Each objection to Mr Burke’s affidavit material succeeds.  I have, as a consequence, not had regard to those parts of the material to which objection was taken.[45]

Did the Minister fail to take into account a relevant consideration?

  1. [47]
    The failure of a decision maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion.[46]  When relied upon as a ground of review, it will only be made out if the decision-maker failed to take into account a consideration that it was bound to take into account.[47]
  2. [48]
    The matters a decision-maker is bound to consider is determined by construing the statute conferring the discretion to be exercised.[48]  In this context, Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24, at 39-40, observed:

“…If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors –– and in this context I use this expression to refer to the factors which the decision-maker is bound to consider –– are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act… where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

  1. [49]
    Mr Burke contends the Minister failed to have regard to seven matters which, it is said, he was bound to consider.  The seven matters are identified in the first question at paragraph [43] above (paragraph 1).
  2. [50]
    Turning to the matters in paragraph 1(i), (ii) and (vi), central to each contention is the proposition that the Minister failed to have regard to a consequence of the change application, namely by changing Map 5 of the Code, future submission rights for later development applications would be adversely affected.
  3. [51]
    As I have already observed, Map 5 informs a number of parts of the Code, including the material change of use overlay provisions, which are discussed at paragraph [12].  The overlay provisions inform the level of assessment for future development applications made in reliance upon the development approval.  A request to increase development densities on Map 5, as was correctly submitted, alters the threshold for code assessment in a way that reduces the prospect of public involvement in future development applications.
  4. [52]
    Mr Burke submits the Minister was bound to have regard to this consequence but did not do so.  It was pointed out in this context that in failing to do so, the Minister’s decision sits uncomfortably with ss 5(1) and (2)(b) of the PA.  The former requires the Minister to perform the function of responsible entity in a manner that advances the purpose of the Act. The latter provision states:

(2) Advancing the purpose of this Act includes –

(b) providing opportunities for the community to be involved in making decisions; and…

  1. [53]
    I have difficulty accepting the Minister was bound to take into account the impact of the change on public involvement in future development applications.  This is so having regard to the following matters.
  2. [54]
    First, ss 81(1) and (2) and 105 of the PA do not expressly support Mr Burke’s contention.
  3. [55]
    Second, whilst s 5(2)(b) of the PA recognises that opportunities for community involvement in making decisions advances the purpose of the Act, the provision does not suggest, by implication, that an impact on future submission rights was a mandatory consideration for the Minister.  This is supported by the following statutory context, which suggests the Minister was not bound to consider the matter, but rather conferred a broad discretion to take the matter into account if he considered relevant.
  4. [56]
    Relevant statutory context is to be found in ss 81(2)(da) and 105 of the PA. The former provision applies to a responsible entity who is not the Minister.  The responsible entity in that instance may be an assessment manager, referral agency, or the Court.  Under s 81(2)(da), the responsible entity to which it applies must have regard to all matters it would, or may assess against or have regard to, if the change application were a development application.  If the provision applied to the development approval, the responsible entity (other than the Minister) would be obliged to have regard to s 61(2)(c) of the PA in assessing the change application.  This provision requires the following to be considered:

(c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and

  1. [57]
    Section 61(2)(c) of the PA calls for an examination of the issue underlying Mr Burke’s case in relation to question 1 (i), (ii) and (vi).  By operation of s 105(4)(a) of the PA, the provision has no application to the Minister. That it does not apply to the Minister is intended by the legislature.  The intention is clear from ss 81(2)(d) and 105 of the PA. For Mr Burke to succeed, it would need to be assumed that this intention is displaced by s 5 of the PA.  I was not persuaded that this assumption is a sound one.
  2. [58]
    Third, while it can be accepted that the impact on future rights of submission may have been regarded as a relevant consideration, the subject matter, scope and purpose of the PA do not suggest it is elevated to a mandatory consideration.  Indeed, the powers conferred upon the Minister is broadly stated.  This, it can be inferred, is to facilitate the Ministerial power being exercised in a way that advances the purpose of the PA in the manner discussed in paragraph [33].
  3. [59]
    In any event, it is unnecessary to express a final view about whether the Minister was bound to consider the effect the change would have on future submission rights.  This is because, if it is assumed the Minister was bound to consider the matter, he did so.
  4. [60]
    The material establishes the Minister was aware the change proposed would restrict future submission rights.  As a starting point, the material contains numerous references to the nature of the change sought, which included a change to ‘code assessable density’.  There are at least four (4) such references in the change application[49].  There are at least six (6) similar references in the planning assessment report prepared by the department.[50]  With this material in mind, the Minister’s written statement of reasons state:[51]

the applicant proposes to amend…[the Code]…by changing the code assessable density…

  1. [61]
    Cognisant that the change sought by PVFQ would, if granted, alter the code assessable density, the Minister’s written reasons record he was satisfied about the following matters.  The matters, taken collectively, speak to the acceptability of the impact on future submission rights, namely:
    1. (a)
      the original approval anticipated a yield of 3,500 dwellings, but ‘could effectively be limited to 3,000 dwellings’;
    2. (b)
      the change facilitated approximately 500 additional dwellings ‘to assist in achieving the original intended yield of 3,500 dwellings’;
    3. (c)
      the change was not considered to ‘materially alter the development, result in new or increased impacts or require changes to infrastructure provision’; and
    4. (d)
      the department’s planning assessment concluded that the ‘proposed change is consistent with the intent of the original approval’ and ‘does not offend submissions received during the original assessment process’.
  2. [62]
    Mr Burke has not established the Minister, in the exercise of his discretion, failed to consider the impact on future submission rights.
  3. [63]
    Turning to paragraph 1(iii), Mr Burke contends the Minister was obliged to have regard to, and take into account, the report and statement of reasons prepared for the development approval as originally granted.  The development approval was granted after an earlier Ministerial call in.  At the time, s 422 of the Sustainable Planning Act 2009 required the then Minister to prepare and publish a report about the call in decision. A copy of the report was required to be tabled in parliament.
  4. [64]
    I do not accept the Minister was bound to have regard to the earlier report, and a statement of reasons given for the development approval.  In simple terms, ss 5, 81(2) and 105 of the PA do not mandate that the report or reasons must be considered in the exercise of the discretion.  It can also be said that the subject matter, scope and purpose of the PA do not elevate, by implication, the report and reasons to a mandatory consideration.
  5. [65]
    In my view, s 105(5) of the PA left the matter to the Minister’s discretion. If the Minister regarded the earlier report and reasons as relevant, he was permitted to have regard to them.  The written statement of reasons suggest, by their silence, that he did not regard them as relevant.  Rather, the Minister took into account the ‘intent’ of the original approval.  This was informed by departmental advice.  The advice, which is recorded and accepted by the Minister in the written statement of reasons, was that ‘the proposed change is consistent with the intent of the original approval’.
  6. [66]
    The Minister was permitted to act on the advice he received. The advice did not take into account what was intended[52] by another Minister at a different time, ascertained by reference to extrinsic material.  Consistent with established principle, the advice was founded on the terms of the development approval itself.[53]  The report and statement of reasons Mr Burke refers to do not form part of the development approval; it is extrinsic material.
  7. [67]
    Mr Burke has not established the Minister erred in failing to consider an earlier Minister’s report and statement of reasons published for the development approval.
  8. [68]
    Turning to the matter raised in paragraph 1(iv), Mr Burke contends the Minister was obliged to have regard to an updated traffic impact assessment for the development.  I do not accept the Minister was bound to call for, or have regard to, an updated traffic assessment report.
  9. [69]
    Section 105(5) of the PA confers a broad discretion on the Minister to consider any matter he regarded as relevant.  The material demonstrates that the Minister did regard traffic considerations as relevant and took it into account.
  10. [70]
    The topic was canvassed in the change application and the planning assessment report prepared by the relevant department.  The latter records the following submission made on behalf of PVFQ in the change application:

The traffic modelling undertaken to justify the [development approval] assumed a maximum development of 3,500 dwellings and 15,000 GFA of non-residential space in village area.

The proposed change will result in an estimated dwelling count of 3,415 dwellings so there is no change in the known traffic impacts ‘authorised’ by the existing approval/code…

  1. [71]
    In response to this submission, the department’s planning assessment report recorded the following statement:

traffic flows and the transport network will not be significantly impacted by the change

  1. [72]
    The above material supports the following finding stated in the Minister’s written reasons:

the proposed change does not significantly impact on traffic flow or the transport network. The original traffic impact assessment was based on a maximum yield of 3,500 dwellings.

  1. [73]
    The extract set out above from the Minister’s reasons is clear; he took into account traffic impacts arising by reason of the change and found those impacts would not be significant.  Given this, I do not accept Mr Burke has established the Minister was bound to consider an updated traffic impact assessment or, more over, failed to consider traffic impacts in the assessment.
  2. [74]
    Turning to the matter raised in paragraph 1(v), Mr Burke contends the Minister was obliged to have regard to the severity of impacts arising by reason of traffic and stormwater considerations.  Again, I do not accept the Minister was bound to have regard to these matters, particularly in the light of ss 81(2) and 105 of the PA.  This is not to say that the severity of impacts arising as a consequence of the change were irrelevant to the exercise of the Minister’s discretion.  The material reveals the Minister had regard to these matters.
  3. [75]
    The written statement of reasons read in conjunction with the planning assessment report establish the Minister considered the severity of impacts arising by reason of traffic and stormwater.  In this regard, the planning assessment report, which was considered by the Minister and acted upon, records that the change would not materially alter the development, result in new or increased impacts or require changes to infrastructure provision.  Infrastructure provision includes stormwater and traffic considerations.  Traffic impacts were also considered as a discrete item in the planning assessment report over and above infrastructure provision.  The written statement of reasons reveals the department’s conclusions about these matters were accepted, and acted upon, by the Minister.
  4. [76]
    It has not been established the Minister failed to have regard to the severity of impacts arising by reason of traffic and stormwater considerations.
  5. [77]
    Turning to the matter raised in paragraph 1(vii), Mr Burke contends the Minister was obliged to have regard to a letter dated 28 November 2021.  The letter is in the form of an adverse submission made by Mr Burke.
  6. [78]
    I do not accept the Minister was bound to have regard to Mr Burke’s letter.  In the first instance, ss 81(2) and 105 of the PA do not suggest the letter was a mandatory consideration for the Minister.  Further, it must be remembered that a change application is not an impact assessable development application subject to public notification.  It is a particular vehicle provided by the PA to change development approvals without having to repeat the development assessment process.  That process may include, in some instances, the right to make a submission.  There is no such right for a change application.  In this context, whilst Mr Burke’s letter may have been relevant to the exercise of the discretion, the Minister was not obliged to consider it.  As a consequence, no error in this respect has been established.
  7. [79]
    For these reasons, Mr Burke has not established the Minister failed to have regard to a mandatory consideration.  The first ground of challenge fails.

Is the Minister’s decision unreasonable?

  1. [80]
    Mr Burke contends the Minister’s decision is not legally reasonable. This contention assumes the Minister failed to take into account two relevant considerations, both of which are referred to in the second question in paragraph [43].  Those considerations are said to be mandatory and align with paragraph 1, subparagraphs (i), (ii) (iii) and (v).
  2. [81]
    For reasons given above, the underlying assumption for the second ground of challenge has not been made out.  That is to say, it has not been established that the Minister failed to take into account a relevant consideration(s).  As a consequence, Mr Burke has not established the Minister’s decision is ‘legally unreasonable’ for the reasons alleged.[54]
  3. [82]
    For my part, a review of the material establishes that the decision made was legally reasonable, and open to the Minister.  This is only reinforced when the material is considered with an appreciation of the matters discussed in paragraphs [17] to [19].

Disposition of the proceeding

  1. [83]
    The Originating application seeks a declaration under s 11 of the Planning & Environment Court Act 2016 that the Minister’s decision to approve a change application is unlawful.  The challenge to the decision was based on two grounds of review.  The grounds have not been established by Mr Burke.
  2. [84]
    The Originating application is dismissed.

A

Burke v Minister for State development, infrastructure, local government and planning [2022] QPEC 23

Burke v Minister for State development, infrastructure, local government and planning [2022] QPEC 23

Burke v Minister for State development, infrastructure, local government and planning [2022] QPEC 23

Burke v Minister for State development, infrastructure, local government and planning [2022] QPEC 23Burke v Minister for State development, infrastructure, local government and planning [2022] QPEC 23

Footnotes

[1]  s 78A(3), PA.

[2]  Affidavit of Smith, p. 77.

[3]  The development approval was granted when s 242 of the Sustainable Planning Act 2009 was in force.

[4]  Affidavit of Smith, p. 329; the development approval was changed on 11 November 2015, 1 August 2017 and 28 May 2021.

[5]  Affidavit of Smith, p. 78.

[6]  Affidavit of Smith, p. 84.

[7]  Affidavit of Smith, pp. 179 to 180.

[8]  Affidavit of Smith, p. 181, s 4.0.

[9]  Affidavit of Smith, p. 184 and onwards.

[10]  Affidavit of Smith, p. 182.

[11]  Affidavit of Smith, p. 207.

[12]  Affidavit of Smith, p. 207.

[13]  Affidavit of Smith, p. 216.

[14]  ss 5.6 and 5.7.

[15]  Affidavit of Smith, pp. 191 and 192; s 5.6.3(iv) and s 5.7.4(ii).

[16]  Affidavit of Smith, p. 14.

[17]  Affidavit of Smith, p. 32, Part 3, item 4; referring to s 78A of the PA.

[18]  Affidavit of Smith, p. 14 and 32-33.

[19]  Affidavit of Smith, p. 65.

[20]  Affidavit of Smith, p. 16.

[21]  Affidavit of Smith, p. 27.

[22]  Court documents 6 and 7, exhibits, pp. 11 to 348.

[23]  s 78A(3)(iii).

[24]  Affidavit of Smith, p. 7, paras 2.2 and 2.3.

[25]  Affidavit of Smith, p. 7, para 2.3.

[26]  Affidavit of Smith, pp. 6 to 9.

[27]  Affidavit of Smith, p. 9, para 3.1.

[28]  Affidavit of Smith, p. 7, paras 2.5 and 2.6.

[29] Novadeck Pty Ltd v Brisbane City Council [2017] QPELR 152, [9]; Cleanaway Solid Waste Pty Ltd v Ipswich City Council [2021] QPELR 809, [21].

[30]  Affidavit of Smith, p. 9, para 3.1, Attachment 7; see also pp.326 onwards.

[31]  Affidavit of Smith, p. 347, s 6.0 Conclusion.

[32]  Affidavit of Smith, p. 329.

[33]  Applicant’s Application in Pending Proceeding, paras 2 and 4.

[34]  Affidavit of Salam, p. 8, email of 7 June 2022, para 1.

[35]  Affidavit of Salam, p. 8, email of 7 June 2022, para 1.

[36]  Affidavit of Salam, p. 8, email of 7 June 2022, para 2.

[37]  Affidavit of Salam, p. 8, email of 7 June 2022, para 3.

[38]  Affidavit of Salam, p. 8, email of 7 June 2022, para 4.

[39]  Affidavit of Salam, p. 8, email of 7 June 2022, para 5.

[40]  Order of 10 June 2022, para 2(c).

[41]  Applicant’s Application in Pending Proceeding, paras 3 and 4.

[42]  Affidavit of Salam, p. 8, email of 7 June 2022, last paragraph on page.

[43]  Affidavit of Salam, p. 8, email of 7 June 2022, last paragraph on page.

[44]  Submissions filed on behalf of the Minister, paras 33 to 47; Submissions filed on behalf of PVFQ, paras 49 to 51.

[45]  Save for the purpose of considering and ruling on the objections.

[46] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24, 39 per Mason J.

[47] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24, 39 per Mason J.

[48] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24, 39 per Mason J; Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal & Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, [191].

[49]  Affidavit of Smith, pp. 14 (item 1), 32 (question 6.1), 38, 39.

[50]  Affidavit of Smith, pp. 329 (Executive summary), 330 (Introduction), 331 (Details of change application), 337 (4.2 Proposed change), 337 (4.2.1 Code assessable densities), 344 (Table of assessment).

[51]  Affidavit of Smith, p. 8, para 2.7.

[52] cf House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440, 449; Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, [38].

[53] cf Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13, [41] to [45]; Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, [38] to [39].

[54]  In the sense helpfully discussed at paragraphs [49] to [52] of the written submissions filed on behalf of the Minister, dated 24 May 2022.

Close

Editorial Notes

  • Published Case Name:

    Burke v Minister for State development, infrastructure, local government and planning & Anor

  • Shortened Case Name:

    Burke v Minister for State development, infrastructure, local government and planning

  • MNC:

    [2022] QPEC 23

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    20 Jul 2022

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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