QLD Planning and Environment Court refuses change of position in conditions appeal

A recent decision[1] of the Queensland Planning and Environment Court (Court) has refused to allow a local government to change its position in a conditions appeal without adequate explanation for the change. 

While particular circumstances of the case were determinative (i.e. in an appeal against conditions of approval, the local government sought to change its position to a refusal), it remains to be seen how the Court will consider the expansion of issues in dispute more generally.

The facts of the case

Logan City Council had granted preliminary approvals, subject to conditions, for reconfiguring a lot and material change of use, in circumstances where the development application sought development permits. The Appellants appealed against the decision to give preliminary approvals only, as well as a number of conditions of the approvals.

The issue before the Court related to an application in pending proceeding made by the Council, in which it sought an order to permit it to identify issues in dispute which it relied upon to contend for refusal of the development application.

Comments by the Court

The Court dismissed the application in pending proceeding and did not permit the Council to change its position to a refusal of the development application. In the course of reaching its decision, the Court had regard to the following key matters:

1. Jurisdiction

Section 47 of the Planning and Environment Court Act 2016 provides that in deciding an appeal the Courts jurisdiction extends to confirming, changing or setting aside “the decision being appealed against”. Accordingly, the Court found that it had jurisdiction to hear and determine an appeal against the Council’s decision to give a preliminary approval with conditions.

If the Council wished to defend the appeal by contending for a refusal of the development application, it would only be permitted to do so if the Court was satisfied it should exercise its discretion.

2. Discretion

Her Honour Judge Kefford considered the following factors to be of relevance to whether the Court should exercise discretion and permit a party to change its position in an appeal:

• the overall legislative context and purpose of the Act, including whether the decision would undermine public confidence in the development assessment process;
• the requirement for the Court to facilitate the just and expeditious resolution of the issues and the avoidance of undue delay, expense and technicality;
• whether the document changing the issues in dispute is limited to identifying the bases on which both parties join issue with the decision that is the subject of the appeal (or whether it is a collateral attack on the party’s original decision);
• whether the proposed issue is an entirely new issue and its importance;
• if it involves a change to the party’s decision, whether there is an adequate explanation? This could depend on things such as:
  • the reason for the change; and
  • how and when the matters that informed the change came to the attention of the party seeking to change their position;
  • the extent of any delay in notifying an intention to change the issues in dispute (and whether there is an explanation for the delay);
  • the stage of the litigation; and
  • the potential prejudice to the other parties (and the extent to which that could be remedied by, for example, an order for costs).[2]

In this case, the Court was not satisfied that there was adequate explanation for the change in position or that the identification of new issues would not cause prejudice to the Appellants and otherwise cause delay.

The Council’s explanation was provided by way of an affidavit of the solicitor for the Council, on information and belief, to the effect that:

• a new coordinator of the Council’s town planning and appeals team had taken carriage of the matter and sought advice of external planning and traffic experts; and
• as a consequence of that review and advice, it was the Council’s position that the development application would be in conflict with the planning scheme and should be refused.

The advice of the external experts was not received by the Court, nor did the affidavit disclose whether the officer had delegated authority to decide the matter, or the support of the Councillors.

Judge Kefford cautioned that the Court should be slow to allow local authorities to expand the issues in an appeal where there is not an adequate explanation for the change, and that this is especially relevant where a local authority seeks to convert an approval into a refusal in a conditions appeal[3].

Her Honour stated that allowing changes without adequate explanation could undermine public confidence in the development assessment process[4].

In particular, her Honour made the following comments at [70]:

“…I do not accept that, in the absence of an adequate explanation, it is in the public interest that the Council be permitted to mount a collateral attack on its own decision. As I have already noted above, the purpose of the Planning Act 2016 includes establishing an efficient, transparent, and accountable system of development assessment. To permit local authorities to mount a collateral attack on their own decision without explanation has the potential to undermine public confidence in the development assessment process.”

What does this mean for local governments?

This decision provides authority that a local government will only be permitted to change its position in an appeal in certain circumstances. In particular, the adequacy of the explanation for the change in attitude will be important.

It is also clear that the Court intends to set a high bar for permitting a local government to convert its own original decision from approval to refusal.

The facts in this case were obviously critical to the decision – that is, an appeal against conditions of approval where the local government, very early in the interlocutory stages, sought to change its position to a refusal.

This case is a timely reminder that assessment managers should exercise diligence in drafting their reasons for a decision, to ensure that the reasons are to a standard that the Council is comfortable to rely upon to maintain its position on appeal.