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  4. GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council - [2023] QPEC 16

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GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council[2023] QPEC 16

GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council[2023] QPEC 16

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 16

PARTIES:

GB TECHNOLOGY & CONSULTING PTY LTD (ACN 138 711 719)

(applicant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO:

69/2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Application in pending proceedings

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

15 May 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

16 June 2022

JUDGE:

Long SC DCJ

CATCHWORDS:

PLANNING AND ENVIRONMENT COURT – APPEAL – Application in pending proceedings – Appeal against the decision of the respondent to refuse a development permit for operational works (earthworks) – Where the applicant seeks for the appeal proceed upon the basis of an amended development application on the basis there is only a minor change to that application – Where the expert evidence supporting respondent’s position omits to state the matters required for an expert report – Where the parties have not actually identified the issues in dispute in the substantive proceeding – Whether any assertions in the Respondent’s Amended Particularised Reasons for Refusal are liable to be struck out as irrelevant to any decision which made be made on this code assessable development application, pursuant to s 60(2)(b) of the Planning Act 2016

LEGISLATION:

Acts Interpretation Act 1954 (Cth) ss 14A, 14B

Planning Act 2016 (Qld), ss 43, 45, 59, 60(2), 65, Sch 2

Planning and Environment Court Act 2016 ss 10, 14, 43, 46(3), Sch 1

Planning and Environment Court Rules 2018 rr 5, 20, 33, 34(1), 35(5)

Planning Regulation 2017 (Qld) ss 26, 27

CASES:

Brisbane City Council v Klinkert [2019] QCA 40

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

Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41

Di Carlo v Brisbane City Council [2019] QPELR 548

Fort Street Real Estate Capital Pty Ltd v Redland City Council [2020] QPEC 59

Irvine v Brisbane City Council [2019] QPEC 50

Klinkert v Brisbane City Council [2018] QPELR 941

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

R v A2 (2019) 269 CLR 507

Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPEC 9

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4

Wagner Investments Pty Ltd v Toowoomba Regional Council [2018] QPEC 23

Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 56

COUNSEL:

K Wylie for the Applicant

S Hedge for the Respondent

SOLICITORS:

P&E Law for the Applicant

Sunshine Coast Regional Council Legal Services for the Respondent

Introduction

  1. [1]
    The application to be determined is one made in pending proceedings instituted by the notice of appeal filed by the applicant on 7 May 2021, against the decision of the respondent to refuse a development permit for operational works (earthworks) on land located at 960 Bald Knob Road, Bald Knob and described as Lot 4 on SP294699 (“the Land”).
  1. [2]
    Some uncontentious context is that:
  1. (a)
    the land has an area of 7.87 hectares and is owned by the applicant;
  1. (b)
    the application for development permit for operational works (earthworks) was properly made on behalf of the applicant on 21 January 2021 and by the accompanying drawings, indicated that the proposed works were to:
    1. permit vehicular access to the land;
  1. (ii)
    construct driveways and footpaths within the land as well as an area for potential parking of vehicles;
  2. (iii)
    undertake a series of cut and fill activities to create a series of level areas on the site; and
  3. (iv)
    deliver ancillary storm water improvements.
  1. (c)
    The development application is to be assessed pursuant to the Sunshine Coast Planning Scheme 2014 (Version 22), by code assessment, on the basis of being within the rural zone and wholly or partly subject to the following overlays:
    1. Biodiversity, Waterways and Wetlands Overlay (for Stream Order 1-2 and Native Vegetation Area);
    2. Bushfire Hazard Overlay (for Medium Bushfire Hazard Area and Medium Bushfire Hazard Area Buffer);
    3. Height of Buildings and Structures Overlay (for 8.5 m);
  1. (iv)
    Land Slide Hazard and Steep Land Overlay (for Moderate Hazard Area, Very High Hazard Area, High Hazard Area, Slope 20-25%, Slope 15-20% and Slope greater than 25%);
  2. (v)
    Regional Infrastructure Overlay (for Major Road Corridor and Buffer);
  1. (vi)
    Scenic Amenity Overlay (for Scenic Route); and
  1. (vii)
    Water Resource Catchments Overlay (for Water Resource Catchment Area).
  1. (d)
    the application was refused by the respondent, by decision notice dated 7 April 2021.
  1. [3]
    Although there is not understood to be any absence of common ground in respect of the applicable assessment benchmarks, that is a position which has only emerged in the hearing of this application. In the notice of appeal, it is noted that the respondent’s decision notice did not advert to any non-compliance with any relevant benchmark but rather provided the following reason for refusal:

“The earthworks proposed by this application are documented to create a wedding venue, which is not a currently approved use on the site and, is noted to also be an inconsistent use for the rural zoning.”

  1. [4]
    As the proceeding constituted by the notice of appeal has progressed in this Court and in prompting this application, the respondent has provided “Particularised Reasons for Refusal” of the development application.[1] The “Amended Particularised Reasons for Refusal”, filed on 12 May 2022, has the effect of identifying that the “proposed development departs from” variously identified provisions of each of:
  1. the Landslide Hazard and Steep Land Overlay Code;
  1. the Works Services and Infrastructure Code;
  1. the Biodiversity Waterways and Wetlands Overlay Code; and
  1. the Stormwater Management Code.

The fifth paragraph asserts that “[t]here are discretionary matters that favour refusal of the proposed development” and proceeds to identify those as arising from various aspects of the Rural Zone Code, the Scenic Amenity Overlay Code and the Landscape Code. It is only necessary to set out, in full, those matters identified in subparagraphs 5(d), (f) and (g), as follows:

“(d) the proposed development departs from the following provisions of the Scenic Amenity Overlay Code – Purpose (1), Overall Outcome (2)(a)(i) and (iv) and PO1;

….

  1. (f)
    approval of the proposed development would result in unacceptable safety impacts and risks arising from the steepness of the land and geotechnical issues;
  2. (g)
    approval of the proposed development would result in unacceptable Scenic Amenity impacts both during the construction phase and once the proposed development had been carried out.”
  1. [5]
    However, it is to be noted from the reference to the “Appellant’s List of Matters in Support of Approval”, filed 15 December 2021, that this included the following contentions:

“1. The Appellant joins issue with the Respondent’s Particularised Reasons for Refusal dated 30 August 2021.

  1. The development complies with, or can be conditioned to comply with, the provisions listed in paragraphs 1-4 of the respondent’s Particularised Reasons for Refusal, including by compliance with the Acceptable Outcomes relevant to the Performance Outcomes listed by the respondent.
  2. The ‘discretionary matters’ listed in paragraph 5 of the respondent’s particularised reasons for refusal are irrelevant to the assessment of the subject application, which is code assessable.”

The application

  1. [6]
    Although the applicant’s stated position in the notice of appeal, was that the relevant assessment benchmarks for its development application were the Stormwater Management Code and the Works Services and Infrastructure Code, by the application filed in pending proceedings on 13 April 2022, it essentially seeks relief only in the following four respects:
  1. An order that the appeal proceed upon the basis of an amended development application, upon the courts determination, pursuant to s 46(3) of the Planning and Environment Court Act 2016 (“PECA”), that there is only minor change to that application;
  2. A consequential order that the matters identified in paragraph 3 of the Amended Particularised Reasons for Refusal, pursuant to the Biodiversity Waterways and Wetlands Overlay Code, are not in dispute in the substantive proceeding;
  3. An order that all of the matters identified in paragraph 5 of the Amended Particularised Reasons for Refusal (except 5(d)) are not issues in dispute in the substantive proceeding; and
  4. An order requiring the respondent to provide further and better particulars as to which of the issues in dispute are to be addressed by its nominated town planning expert.

Minor change

  1. [7]
    The applicant seeks to change its development application to consequently avoid any contention of non-compliance with or departure from the Biodiversity Waterways and Wetlands Overlay Code, as identified in paragraph 3 of the Amended Particularised Reasons for Refusal. Pursuant to s 46(3) of the PECA, this Court “cannot consider a change to the development application unless the change is only a minor change to the application”. The concept of “minor change” is relevantly defined in Schedule 2 of the Planning Act 2016 (“PA”),[2] as follows:

“minor change means a change that—

  1. (a)
    for a development application—
    1. does not result in substantially different development; and
    2. if the application, including the change, were made when the change is made—would not cause—
  1. the inclusion of prohibited development in the application; or
  2. referral to a referral agency if there were no referral agencies for the development application; or
  3. referral to extra referral agencies; or
  4. 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
  5. public notification if public notification was not required for the development application.”
  1. [8]
    Save for one technical formal respect, the respondent does not in any way oppose this aspect of the application. Nor is it otherwise contended that if the change is allowed, that there will remain any contended inconsistency with the Biodiversity Waterways and Wetlands Overlay Code.
  1. [9]
    It may therefore be observed that:
  1. (a)
    it may be accepted that, as canvased in the materials,[3] the change application does not engage any of the exclusions set out in sub-paragraph (ii) of the definition of minor change; and
  2. (b)
    as supported by the affidavit of Mr Thomson, a senior civil and environmental engineer engaged by the applicant, it may be accepted that the proposed change does not result in “substantially different development”.[4]
  1. [10]
    In the latter respect, it may be noted that the evidence of Mr Thompson summarises that:

“[19] In summary, the proposed changes merely reduce the amount of works necessary to complete the development and remove the proposed works from the mapped Native Vegetation Area and remove the stream crossings as marked under the Biodiversity, Waterways and Wetlands Overlay, eliminating any possible direct impact on these features. The works are easily relocatable within the site, and I have not identified any new or increased impact as a result of those changes.”

More particularly, Mr Thompson avers that:

“17. Having regard to the matters listed in Sch 1 of the DA Rules, I make the following observations in relation to whether the Proposed Changes would result in a substantially different development;

  1. the subject application is for operational works for engineering work and filling and excavating (not associated with a material change of use). The Proposed Changes are designed to remove the proposed works from the Biodiversity, Waterways andWetlands Overlay mapping, including the removal of stream crossings. In this regard, it is my opinion that the changes are entirely ameliorative, in that they both reduce the scope of works on the site, and ensure the works do not occur in locations with recognised ecological significance by the relevant Planning Scheme;
  1. I have had regard to the removal of parts of the proposed operational works, and the removal of those parts do not adversely impact upon the capacity of the balance work to be undertaken on the site; and
  2. the proposed changes also involve very minor changes to the driveway and track designs to include storm water table drains (or swales) and associated outlets to better control storm water movement on the site in the vicinity of these roads and tracks. From my experiences an engineer, this comprises an improvement to the proposed development design, because storm water runoff from catchments above the unsealed access tracks in the original design potentially discharged as sheet flow over the track’s surfaces. The amended design incorporated a system of table drains to collect and control the upstream sheet flow without crossing the tracks.
  3. the proposed changes result in increased compliance with the Planning Scheme, including but not limited to access track longitudinal grades.
  1. Having regard to the above matters, I confirm that the Proposed Changes do not:
    1. involve a new (or any) use, or result in the development applying to a new parcel of land;
    2. dramatically change the built form, in that there is no built form. Further, given the rural nature of the location, and the limited observation over the site, the changes to the development will be, in reality, barely appreciable;
    3. change the ability of the proposed development to operate as intended, which I have been advised is to construct flattened pads on the site, and to provide improved vehicular access to the site; and
    4. impact traffic flow or the transport network, such as by increasing traffic to the site. In particular, the internal access tracks proposed to be removed are not integral to the operation of the development, because no uses are proposed as part of this application, and suitable access to all parts of the site is still achievable from Bald Knob Road from the two access points to that road (which remain unchanged).”
  1. [11]
    The only issue raised by the respondent is to identify that Mr Thomson’s affidavit does not state the matters required for an expert report under r 35(5) of the Planning and Environment Court Rules 2018 (“P&E Court Rules”), or if that rule is said not to apply, r 429H(4) of the Uniform Civil Procedure Rules 1999. The identified problem is said to be in the self-evident purpose of the rules in ensuring that the court “is not provided with expert evidence in circumstances where the expert is not aware of their duty to the court and, inter alia, their duty to identify the factual basis of their report and identify any matters which would assist in reaching a more reliable conclusion.” It is contended without such statement being made “the court cannot know if the expert understood their duty of independence, considered all relevant facts, and would not have been assisted by other material”. It is acknowledged that the applicant has attempted to address this difficulty by producing an email from Mr Thomson confirming such matters.[5] The respondent raises no objection to the reading of that affidavit and simply takes the position that “it is ultimately a matter for the court whether the material is sufficient for it to accept the affidavit”, being as it is understood, to accept and rely upon this acknowledgement and the affidavit of Mr Thompson.
  1. [12]
    In her affidavit, Ms Spicer seeks to explain that in preparing Mr Thomson’s affidavit for this application and because it was in such sworn form and not in the form of a report as such,[6] she did not consider it necessary to include a statement pursuant to either of the identified rules.[7]
  2. [13]
    As the respective regimes for dealing with expert evidence are to substantially similar effect, it is only necessary to refer to r 35(5) in the context which it appears in the P&E Court Rules. Indeed, each sub-rule may be noted to be in the same terms as to what is required to be stated in an expert report, except that r 35(5) is addressed only to any “separate report” of the expert.[8]
  3. [14]
    The purpose of this rule is in having express acknowledgement of the effect of the duty of an expert, as stated in r 33 and the code of conduct to which reference is made, and the remedy for non-compliance would be that the evidence, which is not so expressly acknowledged, may be regarded as inadmissible. However, no such objection is taken in this instance, perhaps in cognisance of the effect of r 5, in recognising the court’s power to waive compliance and to excuse non-compliance with rules, where appropriate.
  1. [15]
    An essential difficulty with the explanation as to why the requirements of r 35(5) were not addressed in the expert’s affidavit, is that it does not address the desirability of doing so, in order to achieve the purpose for which the sub-rule exists, in having express confirmation of the opinions being providing in cognisance of the expert’s duty to the court. Another difficulty may be that r 34(1) requires that experts “must prepare a report for the hearing of the P&E Court proceeding.” The concept of “P&E Court proceeding” may be defined widely enough in Schedule 1 of the PECA, to encompass an application made in P&E Court proceedings and the primary expectation that such an application is to be heard and decided on affidavit evidence.[9] As not uncommonly occurs, such an affidavit of an expert may be, in effect, to aver the contents of an attached report which includes the confirmation required by r 35(5).
  1. [16]
    However, these issues as to the form in which the evidence or Mr Thomson was presented, in this instance, were not the subject of particular attention in the hearing of this application. It suffices to note the ability of the Court to excuse any non- compliance with the rules and to conclude that, in the circumstances where Mr Thompson is demonstrated to have some particular experience as an expert witness in proceedings in this Court and has, albeit irregularly, provided an acknowledgement of the matters required by r 35(5), it is appropriate to proceed upon his evidence given in support of this aspect of this application.
  1. [17]
    Accordingly, it is appropriate to have regard to Mr Thomson’s affidavit and on that basis, to determine that the proposed changes constitute a minor change to the development application and to permit the appeal to proceed upon that changed development application.

Issues in dispute

  1. [18]
    As noted to be conceded by the respondent,[10] the result of that conclusion as to change to the development application, means that there is no longer any reliance upon contended departure from or non-compliance with, the Biodiversity, Waterways and Wetlands Overlay Code. However, the respondent contends that there should be no order as sought by the applicant and most particularly, that sought by the applicant in respect of the fifth paragraph of the Amended Particularised Reasons for Refusal, as not being appropriately sought pursuant to s 14 of the PECA or rule 20 of the P&E Court and Rules and in any event, not raising a preliminary issue appropriate for preliminary determination.
  1. [19]
    There are difficulties with each contention, although and the reasons to follow, some merit in the second and more particularly pressed contention, in the particular circumstances.
  1. [20]
    First, s 14 of the PECA allows the court to “make an order or direction about the conduct of a P&E Court proceeding”. And it is to be noted that rule 20 of the P&E Court Rules, engages that statutory power and relevantly provides:
    1. (a)
      that an active party to a P&E Court proceeding may apply for an order or direction about the proceeding: r 20(1)(b) and (2);
    2. (b)
      specifically, and without limitation of earlier more generally expressed provisions:
      1. that such an order may be “about the conduct of the proceeding … including … identifying matters as an issue in dispute in the proceeding”: r 20(5)(c)(i);
      2. separately, that such an order or perhaps direction about a procedural matter, may be as to “giving, for use by the Court before the hearing, a copy of … a document identifying the issues in dispute in the proceeding”: r 20(5)(c)(vii); and
      3. generally, that such an order or direction may be about “any other matter the Court considers appropriate”: r 20(5)(c)(xvii).

Secondly, and in noting that r 20(5)(b) also specifically allows for “an order or directions to identify an issue to be decided in the proceeding at a preliminary stage of the proceeding”, the respondent’s contention to characterise what is sought here as in the nature of seeking such a determination and as has been the subject of observation as to being appropriate only in limited circumstances,[11] is not apposite.

  1. [21]
    As the respondent points out, the issues in dispute in this proceeding have already been the subject of a commonly sought order made pursuant to r 20(5)(c)(i), on 17 December 2021, that:

“The issues in dispute are those identified in the respondent’s Amended Particularised Reasons for Refusal dated 22 October 2021, Council’s letters dated 4 November and 3 December 2021, and the Appellant’s  List  of  Matters  in  support  of  Approval  dated 15 December 2021.”

The respondent complains that the effect was to then include but now seek to depart from, paragraph 5 of the Amended Particularised Reasons for Refusal. However and as noted above, the applicants response in the Appellant’s List of Matters in Support of Approval, was to specifically raise an assertion of irrelevance of the “discretionary matters” addressed in that paragraph.

  1. [22]
    Having regard to the referenced authorities as to when it may be appropriate to separately resolve a substantive issue, the respondent submits that:

“… the present issue is not ‘ripe’ for determination in circumstances where:

  1. (a)
    it is not known which assessment benchmarks, if any, the Court will find there is non-compliance with;
  2. (b)
    it is not known what expert evidence may be available in relation to the issues raised in paragraph 5(a)-(c) and (e)-(g), and so the application cannot proceed on the basis of ‘agreed facts’ as to what will be raised by those paragraphs if they become issues in dispute;
  3. (c)
    this issue will not resolve the dispute between the parties and will leave the matter unresolved.”
  1. [23]
    At face value, the applicant’s approach does not attract any such consideration, in the sense of seeking to factually determine any of the issues sought to be raised by paragraph 5 but rather to vindicate the contention that the nominated issues cannot be issues in dispute in the proceeding, as they are irrelevant. Moreover, that contention is pursued in the sense of such irrelevance as a matter of law and accordingly able to be viewed as within the ambit of rule 20(5)(c)(i), engaging that particularised power of the court to make an order “identifying matters as an issue in dispute in the proceeding”. That must necessarily extend to power to rule on a dispute of this kind purported by the applicant and so that time, effort and resources in the further preparation and any hearing of the matter, not be wasted on any clearly irrelevant issue, consistently with the application of s 10(2) of the PECA.
  1. [24]
    The essential proposition which is raised by the applicant is that the matters identified in paragraph 5 of the Amended Particularised Reasons for Refusal cannot be taken into account in reaching the determination which the Court must ultimately reach pursuant to s 60(2) of the PA. The respondent maintains a position that the paragraph “appropriately identifies matters which could be relevant to a discretion to be exercised under s 60(2)(b) of the PA” and appropriately identifies that “the key point of difference between the appellant and the respondent is what may be taken into account in exercising that discretion”. It is therefore convenient to note the provisions in s 60(2):

“(2) 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
  2. (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
  2. (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”.

  1. [25]
    The applicant contends that the approach of the respondent, in paragraph 5, is misconceived. In the first instance, that is based upon the preamble which asserts “discretionary matters that favour refusal”. It is correctly pointed out that there is, effectively, no discretion to refuse a code assessable development application. Such refusal may only occur pursuant to s 60(2)(d) “to the extent that the development does not comply with some or all of the assessment benchmarks …. only if compliance cannot be achieved by imposing development conditions”. Therefore and apart from any necessity to consider development conditions, so as to achieve compliance, or more generally:
    1. (a)
      to the extent that there is compliance with all assessment benchmarks for the development (which must necessarily include a situation of the imposition of conditions to achieve such compliance), approval is mandated by s 60(2)(a); and
    2. (b)
      the discretion allowed pursuant to s 60(2)(b), is only as to approval despite some non-compliance with assessment benchmarks.[12]

Further, it is contended that the discretion in s 60(2):

“… does not extend to a capacity to consider matters beyond the prescribed assessment benchmarks …”[13]

And that an assessment manager:

“… may not consider anything other than the matters which may be considered in undertaking code assessment under s 45(3) …”[14]

That provision is:

“(3) A code assessment is an assessment that 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 for this paragraph.”
  1. [26]
    Accordingly, some tension in the extracted submissions may be observed, in understanding that the assessment provided for in s 45(3) expressly allows for regard being to matters other than the assessment benchmarks. Reference to s 27 of the Planning Regulation 2017, relevantly, discloses the following:

“Matters code assessment must haveregard 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. (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 assessment manager considers 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.

Assessment benchmarks are established pursuant to s 43 of the PA, relevantly as follows:

“Categorising instruments

  1. (1)
    A categorising instrument is a regulation or local categorising instrument that does any or all of the following—

….

  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
    2. (b)
      a person’s circumstances, financial or otherwise; or
    3. (c)
      for code assessment—a strategic outcome under section 16(1)(a); or
    4. (d)
      a matter prescribed by regulation.

Examples of assessment benchmarks—

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

  1. (3)
    A local categorising instrument is—
    1. (a)
      a planning scheme; or

….

  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. (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. (8)
    Subsections (4) and (6) apply no matter when the regulation and local categorising instrument commenced in relation to each other.”

And further, s 26 of the Planning Regulation 2017, provides:

“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.
  2. (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. 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
    2. 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
    3. any temporary State planning policy applying to the premises;
    1. (b)
      if the local government is an infrastructure provider—the local government’s LGIP.
  3. (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.”
  1. [27]
    On this application, there was nothing identified as arising out of Schedules 9 and 10 of the Planning Regulation and the relevant assessment benchmarks were identified, without dissention, by reference to the Tables of Assessment in Part 5 of the Sunshine Coast Planning Scheme 2014 (Version 22) and by application of s 5.3.3,[15] to be:
    1. (a)
      the Stormwater Management Code and the Works, Services and Infrastructure Code;[16] and
  1. (b)
    in respect of the applicable overlays, the Biodiversity, Waterways and Wetlands Overlay Code; the Landslide Hazard and Steep Land Overlay Code and the Scenic Amenity Overlay Code.[17]

The exclusion of sub-paragraph 5(d) from this application, was ultimately explained to be on the basis that it was accepted that the Scenic Amenity Overlay Code was, relevantly, engaged as an assessment benchmark.[18]

  1. [28]
    For the respondent, it was not contended that the notations in sub-paragraphs 5(a), (b), (c) and (e), in reference to the Rural Zone Code and the Landscape Code, was to any relevant assessment benchmark. Neither was there any attempt to relate any of the matters in paragraph 5 to any consideration arising under the Regulation, including those dealt with in s 27 of the Regulation as matters to which regard may be had in the code assessment pursuant to s 45(3)(b) of the PA. However, it was maintained that the paragraph did appropriately address reasons for refusal, in that the identified matters “could assist the court, if non-compliance is found, in determining the significance or importance of non-compliance”.[19] Despite the language which is used (including the word “departs”) that contention is further explained, as follows:

“The Respondent submits these cases indicate that the discretion includes consideration of the significance of the assessment benchmark or benchmarks with which there is non-compliance. The respondent submits that may, in at least some cases, be done by reference to matters outside the assessment benchmarks, for example other sections of the Planning Scheme which indicate the policy, intent and importance of certain assessment benchmarks, or other relevant town planning principles including for example impacts on people or places, which given content to the significance of non-compliance.”[20]

The cases to which reference is made are Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council[21] as follows:

“[25] In Murphy v Moreton Bay Regional Council & Anor, Kefford DCJ observed:

“… as was noted by Judge Williamson QC in Ashvan, it is not possible to forecast the will of the community, in land use terms, with scientific precision. The needs of a community are not static and immutable.

The legislation requires the planning scheme to include measures to facilitate the achievement of the strategic outcomes…

When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set out in a planning scheme, does not necessarily result in haphazard development. Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequences, because of its own merits and the particular combination of facts and circumstances relevant to it. This underscores the importance of flexibility in the decision-making process.

… The (decision makers) decision must withstand scrutiny against the background of the planning scheme and proper practice. Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the extent of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”

[26] In Murphy, Her Honour was concerned with s 45(5) of the Planning Act which deals with development that is subject to impact assessment. However, with respect, I consider these remarks to be equally applicable to the scope and operation of s 45(3) dealing with code assessment. Of course, the more important the assessment benchmark, the more likely is it that non-compliance will be determinative against approval. In this context, in Brisbane City Council v YQ Property Pty Ltd, the Court of Appeal observed:

‘[62] 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) 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.

[63] None of this is to suggest the nature and extent of an application’s inconsistency with a planning instrument might not end up being a determinative consideration against approval in an individual case, depending upon the circumstances of that case. However, a case like the present, in which an inconsistency with the Biodiversity Areas Overlay Code was outweighed by the overall ecological benefits of the development, well illustrates the utility of the discretion which the Planning Act reserves to the assessment manager.’”

And also, Fort Street Real Estate Capital Pty Ltd v Redland City Council[22] noted to be expressed in reliance on the YQ Property Pty Ltd decision,[23] as follows:

“[34] Although all of the relevant assessment benchmarks have been met by the proposed development, the discretionary matters raised in the Amended Agreed List of Disputed Issues would also allow, in the exercise of my broad evaluative judgment, for the appeal to be upheld in circumstances were some non- compliance to be found. As stated above, s 60(2) of the PA expressly confers upon the court the discretion to approve such an application even when some of the assessment benchmarks are not met. In the event a non-compliance with any of these generally worded assessment benchmarks was ultimately found to exist, it would not justify a refusal of the proposed development, which is a use expressly contemplated by the planning scheme for the site and an appropriate design response to the realities of the setting, which is a section of a large car park in a District centre, which sits above the road frontage for most of the corner where the restaurant is proposed to be located.”

  1. [29]
    Each party asserts that their submission is consistent with the observations made in Klinkert v Brisbane City Council.[24] And particularly the reference in Klinkert to the discretion being subject to the important constraint expressed in s 59(3) of the PA, requiring the decision to be based on an assessment caried out pursuant to the earlier provisions of the Act, relevantly including s 45(3).
  1. [30]
    It is notable that each of these decisions is essentially concerned with issues as to compliance with the Traditional Building Character (Demolition) Overlay Code, in the Brisbane City Plan 2014. Except for the Di Carlo matter, the observation as to the application of s 60(2)(b) as in the nature of the obiter dicta because the appeal in each instance was allowed under s 60(2)(a) and upon determination of compliance with all assessment benchmarks. Another exception is in the reference, made for the applicant, to Delta Contractors (Aust) Pty Ltd v Brisbane City Council,[25] with the concession for the respondent that its submissions as to the potential relevance of the matters addressed in paragraph 5, are not consistent with the following observations in that case:[26]
  1. “[100]
    Under s 60(2)(b) of the Planning Act 2016, the court may approve an application even if the development does not comply with some of the assessment benchmarks.
  2. [101]
    With respect to the exercise of this residual discretion, it was common ground between the parties that the approach that ought be taken is that outlined by His Honour Judge Williamson QC in Klinkert v Brisbane City Council [2018] QPEC 30 at [101]-[102]. I have considered His Honour’s detailed analysis of the statutory assessment regime for code assessment under the Planning Act 2016 and respectfully agree.
  3. [102]
    At [102], His Honour said:

“The discretion is expressed in permissive (“may”) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on the assessment carried out pursuant to an earlier provision of the Act, which in this case includes, inter alia, s 45.”

  1. [103]
    The appellant submits that the court should have regard to the reasons advanced by Mr McDonald at paragraph 4.1 of his statement of evidence, which he says justify a decision to approve the proposed development.
  2. [104]
    Mr McDonald identified three matters, namely:
  1. (a)
    the proposal complies with the broad policy intent of City Plan to protect Brisbane’s traditional building character as the proposal retains and enhances the subject building’s traditional character;
  2. (b)
    the subject building is located in a good traditional streetscape setting but its current unattractive appearance does not promote public appreciation of the subject building’s traditional character; and
  3. (c)
    the proposal would retrieve the subject building’s lost traditional character for the benefit of the public and would retain it in a traditional setting where it would contribute to the betterment of the character housing precinct in which it is located and where it would continue to be appropriately protected for future generations.”[27]

What may be simply observed is that the most critical observations, at [105], are necessarily responsive to the breath of the considerations noted at [104] as being relied upon and to the extent, as the applicant seeks to rely upon these observations, that they may be interpreted as requiring the decision to be bound by the assessment against the relevant benchmarks, rather than based upon that assessment, that is far from clear.

  1. [31]
    There is no difficulty in the emphasis which is placed upon the observations made in Klinkert as to the significance of s 59(3), as far as they go. In that case those observations were made in respect of an alternative proposition as to the engagement of s 60(2)(b), which was noted to assume that there was compliance with the relevant assessment benchmarks and that little or no weight be given to later amendments to those benchmarks.[28] It may be seen from what follows that this approach was responsive to the issues which were raised in that case and which were substantially influenced by the respondent’s attempts to have determinative weight given to the amendments to the relevant benchmarks after the lodgement of the development application,[29] which were found to warrant a conclusion of non-compliance.[30]
  2. [32]
    It should also be noted in the context, as correctly pointed out for the respondent, of the persuasive rather than binding nature of other decisions in this Court, as opposed to those of the Court of Appeal, that the Klinkert matter was considered in the Court of Appeal.
  1. [33]
    For present purposes it may be noted that the effects of the decision in Brisbane City Council v Klinkert,[31] were that:
  1. (a)
    leave to appeal was granted having regard to the issues raised as to the proper construction of provisions of the PA;[32] and
  2. (b)
    the appeal was dismissed upon the confirmation of the primary judge’s conclusion that: “s 60(2)(a) of the Planning Act required the respondent’s application to be approved by the assessment manager once it was determined there was compliance with the relevant assessment benchmarks in operation at the time of the application.”[33]
  1. [34]
    Further and in respect of that conclusion and the appellants continued contentions as to the relevant engagement of s 45(7) of the PA,[34] it was explained that:

…

  1. “[32]
    The clear intent of s 60 is that there be no discretion in the assessment manager’s decision in respect of developments that comply with all of the assessment benchmarks. However, that obligation only arises on the assessment manager, “after carrying out the assessment”.
  2. [34]
    …That assessment must, pursuant to s 45, be carried out against a statutory instrument or document as in effect when the application was properly made, subject to the qualification in subsection 7, that if the statutory instrument or other document is amended or replaced before the assessment manager decides the application, “the assessment manager may give the weight that the assessment manager considers is appropriate in the circumstances to the amendment or replacement.”
  3. [35]
    A proper interpretation of s 60(2)(a) of the Planning Act, having regard to the contents of the Act as a whole, is that s 60(2)(a) requires the assessment manager to approve a development application that complies with the assessment benchmarks in the Code in force at the time the application was properly made. The primary judge was correct in rejecting the applicant’s submission below that, for s 60(2)(a) to operate, there was required to be an assessment of the properly made application carried out for compliance with both the original assessment benchmarks and the amended assessment benchmarks.
  4. [36]
    The assessment manager determines whether the assessment benchmarks in the original Code have been met, after giving weight to the contents of the amended Code, if the assessment manager determines to give weight to that amended Code. The giving of weight, if appropriate, does not mean s 60(2)(a) requires that an assessment manager must decide to approve the development application only if it complies with the assessment benchmarks in both the original Code and the amended Code. In carrying out a code assessment of a properly made application, the assessment manager may not replace the assessment benchmarks in the original Code with those in the amended Code.
  5. [37]
    This conclusion is consistent with the contents of s 45(3) of the Act. That section confirms that a code assessment is to be undertaken only against assessment benchmarks. The reference in s 43(2) of the Act to a matter of personal opinion not being an assessment benchmark is also consistent with this conclusion. The code assessment is being undertaken having regard to whether the relevant assessment benchmarks are met by the proposed development. The paramountcy of those assessment benchmarks is confirmed by s 43(5). It provides that a local categorising instrument may not in its effect be inconsistent with the effect of a specified assessment benchmark.”[35]

Otherwise, a submission of the respondent, there, that s 45(7) is only intended to play a role in impact assessment was rejected, as “not supported by a consideration of s 45 as a whole,”[36] and “not giving rise to any inconvenience, injustice, or absurdity in an interpretation of s 60(2)(a) which gives appropriate force to the contents of s 45(7) of the Act”,[37] and that:

“It is in the public interest that an assessment manager have the ability to give weight to such amendments, if considered appropriate, whilst ensuring that properly made applications are ultimately assessed in accordance with the assessment benchmarks in operation at the time of the properly made application.”[38]

Whilst there was unanimous agreement with this result and these reasons,[39] there was also agreement, between the other two judges constituting the court, with the following observations:

  1. “[2]
    The meaning intended for s 45(7) of the Planning Act 2016 (Qld) is unclear. It follows a provision, s 45(6), which mandates that an assessment of an application that is carried out against a statutory instrument or other document which is applied, adopted or incorporated, must be carried out against such instrument or document as is in effect when the application was properly made.
  2. [3]
    Section 45(7) operates if the statutory instrument or other document is amended or replaced before the application is decided. The section implies that when there is such an amendment or replacement, the assessment which is to precede determination of the application may be carried out having regard to the terms of the amendment or the replacing document.
  3. [4]
    However, as I have noted, the immediately preceding provision, s 45(6), expressly stipulates that the assessment must be carried out against the statutory instrument or other document as in effect when the application was properly made; that is to say, the statutory instrument or other document as it is in effect prior to the amendment or replacement.
  4. [5]
    Within the framework for which s 45(6) provides, it is quite unclear how the assessment manager might “give weight” to the amendment or replacement. Section 45(7) gives no guidance as to what is meant by that expression. Moreover, the provision confers a discretion to give weight but throws no light on when, or for what purpose, the discretion is intended by the legislature to be exercised.
  5. [6]
    Despite this lack of clarity, it is, I think, tolerably clear from the emphatic terms in which s 45(6) is enacted, that s 45(7) is not a vehicle for displacement or modification by the assessment manager of the statutory instrument or other document as in effect when the application was properly made.”

Otherwise, this decision of the Court of Appeal did not deal with the implications or application of the remaining provisions of s 60(2) and in particular s 60(2)(b).

  1. [35]
    The respondent relies upon the decision in Brisbane City Council v YQ Property Pty Ltd,[40] but it is necessary again, to understand the non-determinative nature of the observations made there, in respect of s 60(2)(b). In that instance, the court was concerned with an impact assessable application and the reference in paragraph [62] to the discretion embodied in s 60(2)(b), was no more than for the purpose of contrast and the further observations in paragraph [63], were necessarily directed at the impact assessment which was in issue in that case.
  1. [36]
    Accordingly, what emerges is that the clear effect of s 60(2)(b) is that the residual discretion is:
  1. (a)
    only engaged in terms of considerations enlivening the prospect of approval of the application, despite and only where there is some identified non- compliance with the assessment benchmarks;
  2. (b)
    to be exercised in reaching the decision whether or not to approve the application, by being “based on the assessment of the development carried out by the assessment manager”; and
  3. (c)
    therefore to be based on an assessment (subject to whatever relevant application s 45(7) may have) which “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 for this paragraph.”[41]
  1. [37]
    Germanely to the determination of this application, what remains unclear, is what considerations may be engaged in terms of the prospective exercise of that discretion. As pointed out for the respondent and in contrast to the requirement for the assessment pursuant to s 45(3), s 59(3) is not expressed in terms of the decision being based “only” upon that assessment. That may be the effect if s 60(2)(a) is engaged but cannot logically be the effect pursuant to s 60(2)(b) because what is contemplated is a decision which departs from the effect of the assessment as otherwise reflected in mandatory alternative binary outcomes in s 60(2)(a) and (d). Otherwise, there is to be noted a discretionary power, pursuant to s 60(2)(c), to “impose development conditions on an approval”. That is, as permitted by s 65 of the PA and as explained in Sincere International Group Pty Ltd v Council of the City of Gold Coast:[42]
  1. [24]
    There is no requirement for an assessment manager, or this Court on appeal, to impose each and every condition that passes one of the tests prescribed in s.65(1) of the PA. The power to impose lawful conditions on an approval is a broad residual discretion to be exercised for a proper planning purpose. In Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2015] QPELR 49 at 55, his Honour Judge Rackemann in dealing with an analogous conditions power in SPA said:
  2. “[24]
    There is, of course, no requirement for an assessment manager or, on appeal, the court to impose each and every condition which might pass one of the above tests. There is a relatively broad residual discretion as to what lawful conditions to impose on the approval at hand. That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority. In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Div 2 of Pt 5. That includes assessment by reference to the planning scheme.”
  3. [25]
    I would add to the above that the “planning purpose” of a condition is not ascertained from some preconceived general notion of what constitutes planning. The planning purpose underlying the exercise of the conditions power in any given case is to be ascertained from the PA, and the documents to which regard must, or may be had, in the assessment of the application.”
  1. [38]
    It is of importance to bear in mind that s 59 of the PA applies to all of the decisions which are required pursuant to Division 2 of Chapter 3 of the PA and, therefore, applies as much to the decisions allowed pursuant to s 60(3), in respect of impact assessable development, as it does to the decisions allowed pursuant to s 60(2), in respect of code assessable development and, consistently with the passage noted immediately above, in respect of the decision as to imposition of development conditions. Moreover, it is necessary to understand that an essential distinction between the alternative assessments, is that code assessment does not permit of regard to consideration of matters beyond the requirements of the relevant assessment benchmarks and prescribed matters, whereas and pursuant to s 45(5)(b), impact assessment is permissive of regard to broader considerations, as follows:

“(b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.

Examples of another relevant matter—

  • a planning need
  • the current relevance of the assessment benchmarks in the light of changed circumstances
  • whether assessment benchmarks or other prescribed matters were based on material errors

Another distinction is that s 45(4) of the PA, excludes application of s 5(1) of the PA to code assessment. That is, any requirement that the exercise of that assessment function be performed “in a way that advances the purpose of this Act” and thereby, any prospect of introduction of any additional considerations as might arise under s 5(2).

  1. [39]
    In the first instance, the requirements that the decision be based on the necessary assessment and that identified non-compliance with assessment benchmarks is the qualification for any engagement of s 60(2)(b), must necessarily mean that the enquiry must start with that identified non-compliance. The potential relevance of regard to the matters prescribed by regulation was not the subject of any particular attention in the submissions made in this application.
  1. [40]
    The observations in Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council,[43] as to the applicability of the earlier observations in Murphy v Moreton Bay Regional Council & Anor,[44] to this exercise of discretion which is allowed in respect of code assessable development, should be accepted, with the qualification, arising from what has been previously noted as to the essential distinction between the alternative assessments, that care must be taken to avoid introducing the breadth of matters which might be relevantly introduced into an impact assessment.
  1. [41]
    In particular, that the very basis upon which such an exercise of discretion is premised, indicates acceptance of the proposition that not every non-compliance will warrant refusal, including that there will be necessity to consider the relative importance of the non-compliance in the context of the planning scheme and whether or not such non-compliance should be determinative, and that:

“It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”[45]

  1. [42]
    Any such exercise of discretion in respect of a particular assessment, must necessarily be directed at achieving a proper planning purpose and as noted in the extract set out above from the Sincere International Group decision,[46] that is, such as is to be ascertained from the legislation applying to that assessment and the documents to which regard must or may be had in that assessment and not “from some preconceived general notion of what constitutes planning”.
  1. [43]
    Accordingly, there may be discerned to be some substantial support for the position contended for the applicant, not to the full extent that it was perhaps contended that the discretion in s 60(2)(b) was bound by rather than based upon the assessment performed pursuant to s 45(3), but in the sense that given the contextual significance given to the achievement of compliance with all of the assessment benchmarks, the necessary concern must be as to whether there is some discernible planning purpose to be achieving by allowance of departure from the identified non-compliance, on the basis of that assessment. Such an approach may be seen as consistent with the examples provided in s 60(2)(b).[47] And also in having regard to the reference made for the applicant to the following extract of the explanatory note for the introduction of the PA, to assist as to the purpose sought to be achieved in respect of the alternative assessments and in confirming such an interpretation of the application of s 60(2)(b):[48]

“Code assessment under the Bill is a bounded assessment, requiring assessment “inside the box” – in other words only against, and having regard to, the prescribed matters. Subject to the obligation to approve complying development and test whether conditions could be imposed to achieve compliance however, the assessment and decision rules for code assessment allow for weighing and balancing of any conflicting or competing prescribed matters for assessment in reaching a decision.

Impact assessment under the Bill is an “unbounded” assessment, meaning relevant matters other tan those prescribed can also be taken into account, and weighing and balancing “inside the box” as well as with factors “outside the box” can take place in reaching a decision.

For both code assessment and impact assessment, it is intended the new assessment and decision rules should lead to a renewed emphasis on the quality, rigour, legibility and consistency of policies in planning instruments, and their primacy in determining the outcome of performance-based development assessment.”

And it may be accepted that as was a particular concern for the applicant, it is not a matter of seeking to oust a favourable exercise of the discretion by simply seeking to demonstrate non-compliance with other codes, which are not relevantly engaged benchmarks.

  1. [44]
    However and to the extent that the applicant strove to contend and demonstrate that the issues embedded in paragraph 5 were properly able to be seen as directed at contextual considerations in the planning scheme, which served to support a conclusion of determinative weight being given to the contended issues of non- compliance with relevant assessment benchmarks, an underlying difficulty is the very contention, otherwise made as to the lack of actual determination as to any particular non-compliance, makes that a difficult task at this stage. More particularly and whilst it is understood that the applicant will seek to engage s 60(2)(b), in the event that any non-compliance with assessment benchmarks is determined, there is, at this stage ,no indication from the party bearing the onus in the proceeding,[49] as to any particular basis upon which any such contention would proceed, as must be a necessary starting point for any response and allowing for any determination of relevance of any particular reference to any particular part of the planning scheme or other consideration. That makes it inappropriate to attempt to rule upon whether such considerations, as may be identified, could or could not, be relevant to any issue to be determined, apart from observing that paragraph 5, including sub-paragraph (d) appear in a form which is completely unsuitable to the identification of any relevant issue which might be in dispute.
  1. [45]
    The form in which the parties have sought to identify the issues in dispute reflects a commonly adopted contemporary approach and which appears to be driven by the more open-ended or flexible approaches to decisions to be made under the PA. It can be observed, in circumstances where the appeal in this matter will be by way of hearing anew,[50] that very little insight as to the basis upon which the appellant was seeking to obtain the relief sought, was provided in the grounds set out in the notice of appeal.[51] In any event and where there is to be a hearing anew and where the antecedent decision of an assessment manager will not bind the position to be taken by that decision maker on the hearing anew, there may be logic in seeking that this party confirm or identify what non-compliance with assessment benchmarks is contended and from there, identify what disputed issues are to be for the Court’s determination. As has been noted, such considerations underpin rules 20(5)(i) and (vii)(A) of the P&E Court Rules and as further contemplated by Practice Direction 2 of 2020, at [25], an expectation that such issues may be narrowed as a matter approaches hearing. It is apparent from what has occurred here and this application, that the issues in dispute in this matter are far from adequately identified.

Conclusion

  1. [46]
    It is to be further noted that as this hearing proceeded and in the light of some indications given in the respondent’s written submissions, the application, as far as it was directed at the basis for town planning evidence, was not pressed. In any event, it may be expected that proper identification of the issues in dispute will also serve to inform that question.
  1. [47]
    Accordingly and apart from orders to permit the change to the development application and the appeal to proceed upon the changed application, there will be further orders to vacate the order made on 17 December 2021 and to direct, in the light of these reasons, that, on or before the next review date, the parties either file an agreed list issues in dispute in the substantive appeal or file and serve their individual lists of such issues.

Footnotes

[1]Originally in a document dated 30/8/21 and subsequently in an amended document, dated 21/10/21.

[2]See Sch 1 of the PECA

[3]Affidavit of C M Spicer filed 13/4/22, at [17] and affidavit of B A Thompson, filed 13/4/22, at [16].

[4]As that concept is informed by reference to Sch 1 of the Development Assessment Rules 2020 (“DA Rules”).

[5]Affidavit of C M Spicer filed 9/6/22 at CMS-16.

[6]Thereby noted to be in a form with the affirmation that “all the facts affirmed in this affidavit are true to my knowledge and belief except as stated otherwise”.

[7]Affidavit of C M Spicer filed 9/6/22, at [3].

[8]In the P&E Court Rules the same requirements in respect of a joint expert report is expressed in r 28(4).

[9]P&E Court Rules, r 40.

[10]See respondent’s written submissions at [2] and [7].

[11]See Wagner Investments Pty Ltd v Toowoomba Regional Council [2018] QPEC 23 and at [6]-[10] and Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 56 at [38] and [73].

[12]Applicant’s written submissions, filed 8/6/22, at [23]-[24].

[13]Applicant’s written submissions, filed 8/6/22, at [23], with original emphasis.

[14]Ibid at [24].

[15]Affidavit of C M Spicer filed 13/4/22, at CMS-8, pp 9-12.

[16]Ibid at p 14.

[17]Ibid at pp 18, 24 and 27.

[18]T1-8.4-8.

[19]Respondent’s written submissions, filed 14/6/22, at [29].

[20]Ibid at [27].

[21][2021] QPEC 4 at [25]-[26].

[22][2020] QPEC 59.

[23]Ibid at footnote 77.

[24][2018] QPELR 941 at [101]-[102], as noted for the applicant to have been adopted in Di Carlo v Brisbane City Council [2019] QPELR 548 at [6]-[8] and Irvine v Brisbane City Council [2019] QPEC 50, at [8].

[25][2018] QPEC 41.

[26]See Respondent’s written submissions, filed 14/06/2022 at [28] and Applicant’s written submissions, filed 08/06/2022 at [25]

[27]At [100] – [104].

[28][2018] QPELR 941 at [98] and [103]. The later paragraph is explicit in confirming that there was no error in the notation of assumption in the earlier paragraph, such as the omission of a negative adverb before “complies” and despite notation of the terms of s 60(2)(b) in paragraph [101].

[29]Ibid at [96], [118], [132], and [137] – [148].

[30]Ibid at [116].

[31][2019] QCA 40.

[32]Ibid at [9] and [43].

[33]Ibid at [41].

[34]Ibid at [23] – [24].

[35]Ibid at [32], [34]-[37].

[36]Ibid at [38].

[37]Ibid at [39].

[38]Ibid at [40].

[39]Ibid at [1] and [7].

[40][2020] QCA 253.

[41]Section 45(3) of the PA.

[42][2019] QPEC 9.

[43][2021] QPEC 4 at [26].

[44][2019] QPEC 46.

[45][2019] QPEC 46 at [22].

[46]See paragraph [32] above.

[47]See paragraph [19] above, noting that reference to such examples is, pursuant to s 14D of the Acts Interpretation Act 1954, permissible as context but not to be regarded as exhaustive, nor in limiting as opposed to extending the meaning of the provision.

[48]Acts Interpretation Act 1954; s 14A, S 14B; R v A2 (2019) 269 CLR 507 at [32] to [37].

[49]Section 45(1)(a) of the PECA.

[50]See PECA ss 43 and 46.

[51]Section 230(1)(b) of the PA.

Close

Editorial Notes

  • Published Case Name:

    GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council

  • Shortened Case Name:

    GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2023] QPEC 16

  • Court:

    QPEC

  • Judge(s):

    Long SC DCJ

  • Date:

    15 May 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brisbane City Council v Klinkert [2019] QCA 40
2 citations
Jump To
Cite 1 - [2019] QCA 40
Cite 2 - [2019] QCA 40
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41
2 citations
Jump To
Cite 1 - [2018] QPEC 41
Cite 2 - [2018] QPEC 41
Di Carlo v Brisbane City Council [2019] QPELR 548
2 citations
Jump To
Cite 1 - [2019] QPELR 548
Cite 2 - [2019] QPELR 548
Fort Street Real Estate Capital Pty Ltd v Redland City Council [2020] QPEC 59
2 citations
Jump To
Cite 1 - [2020] QPEC 59
Cite 2 - [2020] QPEC 59
Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49
1 citation
Jump To
Cite 1 - [2015] QPELR 49
Irvine v Brisbane City Council [2019] QPEC 50
2 citations
Jump To
Cite 1 - [2019] QPEC 50
Cite 2 - [2019] QPEC 50
Klinkert v Brisbane City Council [2018] QPEC 30
1 citation
Jump To
Cite 1 - [2018] QPEC 30
Klinkert v Brisbane City Council [2018] QPELR 941
3 citations
Jump To
Cite 1 - [2018] QPELR 941
Cite 2 - [2018] QPELR 941
Cite 3 - [2018] QPELR 941
Murphy v Moreton Bay Regional Council [2019] QPEC 46
3 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Cite 3 - [2019] QPEC 46
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Sincere International Group Pty Ltd v Council of the City of Gold Coast (No.2) [2019] QPEC 9
2 citations
Jump To
Cite 1 - [2019] QPEC 9
Cite 2 - [2019] QPEC 9
Terry Wall, Director-General of the Environmental Protection Agency v Douglas SC [2008] QCA 56
2 citations
Jump To
Cite 1 - [2008] QCA 56
Cite 2 - [2008] QCA 56
Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4
3 citations
Jump To
Cite 1 - [2021] QPEC 4
Cite 2 - [2021] QPEC 4
Cite 3 - [2021] QPEC 4
Wagner Investments Pty Ltd v Toowoomba Regional Council [2018] QPEC 23
2 citations
Jump To
Cite 1 - [2018] QPEC 23
Cite 2 - [2018] QPEC 23

Cases Citing

Case NameFull CitationFrequency
Hunt v Douglas Shire Council [2025] QPEC 192 citations
1

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