Nerinda Pty Ltd v Redland City Council & Ors

Here the Court of Appeal considered whether the Planning and Environment Court erred in attaching too much weight to a draft planning scheme which was not in force at the time of the appeal. The court held that as the draft planning scheme was not a law or policy there was no statutory basis for taking it into account under s 495(2)(a) Sustainable Planning Act. Further, the court held that the primary judge misapplied the Coty principle because the draft planning scheme essentially replicated the planning provisions in force. The court concluded that, by attributing weight to the draft planning scheme, the primary judge had committed an error of law because he focused too much on the Council’s role as legislator and he failed to perform the role imposed by ss 326 and 329 of the Act that required him to stand in the shoes of the Council as assessment manager. 

Fraser and Morrison JJA and Bowskill J

29 June 2018

The applicant sought to develop land by building a supermarket, specialty shops, a tavern, a medical centre and service station, as well as residential housing. [3]. It applied to the Redland City Council for a development permit and preliminary approval. [3]. This application was approved by the Council. [3]. The second, third, and fourth respondents, each of whom was the applicant’s commercial competitor, appealed the Council’s decision to the Planning and Environment Court. [3]. The Planning and Environment Court allowed the appeal, and refused the development application, finding that the development proposal conflicted with the Redlands Planning Scheme 2006. [3].

The applicant sought leave to appeal to the Court of Appeal on the basis that the primary judge had made a number of errors of law. [4]. In particular, the applicant argued that the primary judge had erred in relation to the treatment of the draft Redlands City Plan 2015, which at the time of the approval had been made publicly available for inspection, but was not in force and had no operable effect. [4]–[5].

Section 495(2)(a) of the Sustainable Planning Act 2009 provided that in determining an appeal by an applicant for a development application, the Court:

“must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate” (emphasis added). [6].

As Bowskill J (with whom Fraser and Morrison JJA agreed) explained, however, the reference to “new laws and policies” was a “reference to laws and policies which are in force and which have operable, legal effect”. [7]. The section therefore did not permit the primary judge to give any weight to the draft planning scheme, which was “merely a draft proposed law”. [7].

There was common law authority, starting with the decision in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, which provided that it “is possible to give some weight to planning decisions that are in train but which do not yet have the force of law”. [10]. But, again, Bowskill J observed that “it is possible to give too much weight to such a factor, and that is the error that in my respectful view has been made here”. [12].

The asserted error was that the primary judge had failed to perform the role imposed on the court by ss 326 and 329 of the Sustainable Planning Act as it stood in the shoes of the Council in its capacity as an assessment manager. [26]. Those provisions permitted both the Council and the Planning and Environment Court to make a decision which conflicted with a planning scheme. [26]. However, notwithstanding that the Council and expert witnesses had criticised the 2006 planning scheme, the primary judge declined to address the deficiencies because the 2015 draft scheme had effectively replicated the zoning pattern in the 2006 planning scheme. [23]. The primary judge had said “[w]hilst I accept the significant force in the … arguments, it is a matter for the council to address perceived deficiencies in its scheme”. [23].

The Court of Appeal held that this was an error of law. As Bowskill J explained:

“It would appear that, by placing what in my view was too much weight on the draft planning scheme, the learned primary judge has diverted his attention from the role of the Council as assessment manager, in whose shoes the Court was standing for the purposes of the Decision,and focussed instead on the role of the Council as the legislator, the body responsible for making the planning scheme provisions.” [27].

As her Honour explained, the question which should have been determined was whether, despite the conflict with the planning scheme provisions in force, there were sufficient grounds to justify a decision approving the development. [30].

In the result, the Court granted leave to appeal, allowed the appeal, and remitted the matter to the Planning and Environment Court to be determined according to law. [58].

J English