This case concerned whether certain aspects of the Springfield Structure Plan had to be complied with. The Sustainable Planning Act's transitional provisions only validated the Plan's requirements insofar as they provided that “development must comply” with them. The primary judge had made declarations that were premised on a developer not having to comply with certain subsidiary plans. The Court of Appeal set aside the declaration and concluded that one, although not both, of the subsidiary plans in issue were a prerequisite to development and had to be complied with.
Fraser and Gotterson JJA and Burns J
12 October 2018
The applicant, Springfield Land Corporation (“Springfield”) sought leave to appeal against a judgment of the Planning and Environment Court (“P&E Court”). . The dispute concerned whether the first respondent, Cherish Enterprises (“Cherish”) had made a valid development application which must be assessed by Ipswich City Council (“Council”), despite the absence of Council approval for a Precinct Plan or Area Development Plan. . Those latter two planning instruments were provided for in the Springfield Structure Plan (“SSP”), which applied to the land in question. .
The primary judge had determined that the apparent requirements under the SSP to have a Precinct Plan, or Area Development Plan, should not be given a literal construction. Instead, they should be construed so that Cherish could have its application “assessed on its merits”, which would include the need to justify approval “despite conflict with the applicable local planning instrument” (namely, the SSP). .
On appeal, Springfield contended that Cherish was not entitled to have its application assessed without both a Precinct Plan and Area Development Plan, and that any development must comply with the requirements of each. The Council filed a cross-appeal and contended that only an Area Development Plan was required and must be complied with. –.
The transitional provisions
The question of whether, or which parts, of the SSP continued to have effect was governed by transitional provisions in the Sustainable Planning Act 2009, which provided for the continued effect of Development Control Plans initially made under previous, repealed planning legislation. The SSP was an instance of a Development Control Plan made under the previous legislation. –. The transitional provision relevantly provides (per s 857(5)):
To the extent the development control plan includes a process for making and approving plans, however called, with which development must comply in addition to, or instead of, the planning scheme or provides for appeals against decisions under the plan –
- (a) the development control plan is, and always has been, valid; and
- (b) the development under the development control plan must comply with the plans in the way stated in the development control plan;
The Springfield Structure Plan
The question was whether, by reason of the transitional provisions, the SSP's requirements concerning Area Development and Precinct Plans, were prerequisites to development approval, and had to be complied with. Notably, the transitional provision employed the language of plans “with which development must comply” (outlined in full above).
In relation to Area Development Plans, the SSP relevantly said that “development of any land included within the Structure Plan area cannot take place” unless “there is an Area Development Plan over the land” and the “development is shown on or consistent with” that plan. . However, in relation to Precinct Plans, the SSP did not “state any relevant way in which development must comply”. .
The Court of Appeal's judgment
The Court of Appeal, per Gotterson JA (Fraser JA and Burns J agreeing), granted leave to appeal and allowed the appeal. , , .
The Court considered that s 857 was “expressed in grammatically clear language” and was not ambiguous. . The provision required ascertainment of whether a development control plan (such as the SSP) included a process for the making and approval of plans with which development must comply. . The primary judge had failed to do that, and had instead arrived at a result which “defied the express terms of that provision and is untenable”. .
On its plain meaning, the SSP clearly required that there must be an Area Development Plan prior to development being carried out, and that any development must comply with it. –. Accordingly, the primary judge erred in making a declaration to the contrary. . However, the Court of Appeal agreed with the primary judge that a Precinct Plan is not required to be complied with (because the SSP did not clearly state that development “must comply” with one). .
Finally, the Court considered, and rejected, an argument by Cherish that it was entitled to make an application under s 242 of the Sustainable Planning Act 2009 to vary the effect of the planning instrument so as to dispense with the requirements under the SSP. . In that regard, it was observed that “mere existence of a general mechanism” to vary the effect of the planning instrument (as in s 242), “cannot overcome specific provisions in the same statute which preserve the part of the planning instrument that is sought to be varied”. .
In the result, the appeal and cross-appeal were allowed, and the declaration made at first instance was set aside. –.