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Queensland Judgments
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Abeleda & Anor v Brisbane City Council & Anor

Unreported Citation: [2020] QCA 257
EDITOR'S NOTE

In this significant decision, the Court of Appeal provided guidance as to the nature of the discretion conferred by s 60(3) of the Planning Act 2016. In doing so, the Court explained how the Planning Act framework differs from that under s 326 of its predecessor the Sustainable Planning Act 2009. The Court also broadly endorsed the parties’ approach of relying on the analysis of the Act undertaken by Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793.

Mullins JA and Brown and Wilson JJ

20 November 2020

A developer successfully applied to the respondent for approval of a material change of use of a multi-storey public car park facility opposite the Royal Brisbane and Women’s Hospital. The proposed development was impact assessable under s 45(5) of the Planning Act 2016. [1]. The applicants, who operated car parking facilities near the hospital, unsuccessfully challenged the approval in the Planning & Environment Court. [1].

Overall Outcome 4(d)(i) of the Ithaca District Neighbourhood Plan Code (“the planning scheme”), relevantly required the development to be of a type that “supports non-residential uses that have a close nexus with the Royal Brisbane and Women’s Hospital complex … “ While the primary judge considered that the proposed development had a close nexus with the hospital, his Honour held that it did not support a non-residential use with a close nexus. Consequently, the proposed development did not comply with the planning scheme. [22]. However, the primary judge then, held that, in “stark contrast” to the regime under s 326 of the Sustainable Planning Act 2009, under s 60(3) of the Planning Act 2016 this conflict was not decisive of the appeal. [23]. His Honour concluded that “the balance of the relevant factors fell in favour of approval, despite the non-compliance with the planning scheme”. [25].

The applicants sought leave to appeal on grounds including, inter alia, that the primary judge had erred as to the effect and consequences of non-compliance with Overall Outcome (4)(d)(i) of the planning scheme. [26].

Effect of conflict with a planning scheme on decisions under the Planning Act 2016

In deciding the application, Mullins JA (Brown and Wilson JJ agreeing) explained the process for deciding development applications under the Planning Act 2016 ([27]–[62]), including the extent to which recent decisions about the Sustainable Planning Act 2009 continue to correctly state the law applicable under the Planning Act 2016 where a proposed development conflicts with a planning scheme. [37]–[51].

Justice Mullins explained that an impact assessment under s 45(5) of the Planning Act 2016 requires an assessment to be made by the assessment manager “against the assessment benchmarks in a categorising instrument for the development”. By s 43(3), the planning scheme was such an instrument. [28]–[30]. Section 45(5) also permits any other relevant matters to be considered, although it is not mandatory to consider them. [32]. After undertaking the impact assessment – in accordance with the requirements in s 59 – s 60(3) required the assessment manager to make a decision either to approve, approve with conditions, or refuse the application. [34].

Her Honour observed that s 60 of the Planning Act 2016 abolished the “two stage” or “two part” test that had governed decisions under the Sustainable Planning Act 2009 involving a proposed development that conflicted with a relevant planning scheme. The Sustainable Planning Act 2009 established that a “decision on a development application could not conflict with the matters set out in a planning scheme … unless there were sufficient grounds to justify the decision, despite the conflict”. [35]–[36]. Conversely, under the Planning Act 2016 one could no longer state “in absolute terms” that it is in the public interest that any relevant planning scheme should be applied in making a development decision unless the contrary is demonstrated. [40]. Section 60(3) of the Planning Act 2016 established that:

“the outcome of the development application is not necessarily determined by the degree of compliance against the assessment benchmarks and the decision-maker is permitted to have regard to other relevant matters, in addition to the mandatory assessment against the assessment benchmarks in the planning scheme.” [40]

While the planning scheme remained the “starting point” and was to be given appropriate weight as a reflection of the public interest, any non-compliance was “to be considered and balanced by the decision-maker with any other relevant factors”. [42]–[43].

Relevant matters under s 45(5)(b) of the Planning Act 2016

One of the examples of a “relevant matter” under s 45(5)(b) of the Planning Act 2016 is a “planning need”. [31]. In further contrast to the Sustainable Planning Act 2009, Mullins JA held that under the Planning Act 2016 such a need did not have to “be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site”. [47]–[51]. The Planning Act 2016 “does not restrict planning need to the proposed development of the specific site … but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter”. [47]–[51].

More generally, her Honour held that the “relevant matters” in a particular case “will be informed by the examples that follow s 45(5)(b) and the subject matter, scope and purpose of the Act”. Those examples were not an exhaustive list. [60]. Her Honour also accepted that the absence of negative impacts or detriment from a proposed development may constitute a relevant matter. [61].

Was there an error of law?

In Mullins JA’s view, the primary judge “accurately identified” why the proposed development did not comply with Overall Outcome 4(d)(i). Furthermore, there was no error of law in the primary judge nonetheless placing weight on the close nexus between the proposed development and the hospital and finding that there was “a planning need for more car parking in the vicinity of the Hospital”. [78] Justice Mullins held that the primary judge had correctly undertaken the tasks required by s 60(3) by assessing the development application under s 45(5) and finding that “the balance of the factors favoured … approval … despite the non-compliance with Overall Outcome (4)(d)(i)”.

Disposition

Justice Mullins also rejected the other proposed grounds of appeal agitated by the applicants. [26], [79]–[96].

In the result, the application for leave to appeal was refused with costs. [97].

S Walpole

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