Shifting the goalposts: Queensland Planning and Environment Court confirms changed appeal rules for development applications under former planning legislation

A recent decision by the Queensland Planning and Environment Court has important implications for appeals in relation to the development applications made, but not decided, before 3 July 2017.

Background

On 3 July 2017, the Planning Act 2016 (Qld) (Planning Act) commenced, replacing the Sustainable Planning Act 2009 (Qld) (SPA) as Queensland’s main item of planning legislation.

As is usually the case when legislation is replaced, the Planning Act includes transitional provisions dealing with matters, such as applications, appeals and planning instruments, already existing or commenced under SPA. Those provisions set out how the matters existing under the SPA continue to have effect under the Planning Act.

However, in the 10 months since the Planning Act’s commencement, an ambiguity in those transitional provisions has emerged as a source of contention and confusion. The issue, outlined in more detail below, relates to development applications (DAs) made under the SPA, but decided after the Planning Act’s commencement – in particular, whether an appeal to the Planning and Environment Court (Court) involving such a DA is to be decided in accordance with the SPA or the Planning Act.

Until now, the Court had not yet considered the issue. However, in a decision delivered on 30 April 2018, in the case of Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21[1] (Jakel), the Court has now decided that the Planning Act’s regime will apply, with potentially important implications for both developers and assessment managers, such as local governments.

Ambiguity in transitional provisions

The issue arises from an ambiguity in sections 288 and 311 of the Planning Act.

Sections 288(1) and (2) of the Planning Act confirm that if a DA was made under the SPA, the SPA continues to apply to the DA, despite the Planning Act’s commencement. This ensures, sensibly, that a DA made under the SPA can continue to be processed and decided in accordance with the SPA, without disruption from the Planning Act.

However, once the DA is decided, if the developer (or a submitter) wishes to appeal against the decision (e.g. if a local government refuses the DA, and the developer wishes to challenge that refusal), section 311(4) of the Planning Act provides that the proceeding must be ‘brought only under’ the Planning Act.

Unfortunately, the Planning Act’s transitional provisions do not clarify whether this means that the appeal is to be decided in accordance with the assessment regime of the SPA or of the Planning Act.

On the one hand, section 288 requires the assessment manager to decide the DA in accordance with the SPA, suggesting that the Court, in any appeal, should do likewise. On the other hand, section 311 clearly states that the appeal must be brought ‘under’ the Planning Act, suggesting that the Planning Act’s regime should apply. This ambiguity has important implications because, as discussed below, there are subtle, but significant, differences between the two regimes.

The Jakel decision

The Jakel case concerned an appeal, by a developer, against the Council’s decision to refuse a DA for a multi-unit dwelling.

The DA was made in 2016, under the SPA, but decided on 17 July 2017, after the Planning Act’s commencement. Given this, the DA enlivened the ambiguity noted above.

The developer and the Council disagreed as to whether, in the appeal, the Court was required to apply the assessment regime of the SPA or the Planning Act.

The developer (likely mindful of some of the potential benefits of the Planning Act regime discussed below) argued that the Planning Act’s regime applied.[2]

In contrast, the Council argued that this would lead to an “absurd” outcome,[3] because the Council, under section 288, was required to make its decision on one basis, in accordance with the SPA, but, on appeal, the Court would be required to make its decision on a different basis, in accordance with the Planning Act.

Despite the developer ultimately not succeeding in the appeal, the developer had a (pyrrhic) victory on this legal issue. The Court agreed with the developer that, in the appeal, the Court was required to decide the appeal on the basis of the Planning Act’s regime, albeit primarily on the basis of the planning instruments (e.g. planning scheme) in effect when the DA was made.[4]

Implications

If the Court’s decision in Jakel is followed in other cases, it means that where an appeal is commenced after 3 July 2017, in relation to a DA made under the SPA, the Court will decide the appeal on the basis of the Planning Act’s assessment regime, rather than the SPA’s regime.

While the two regimes are generally very similar, there are important differences, particularly in relation to how a DA can be decided in the event that it conflicts with a planning instrument (e.g. a planning scheme).

The specific differences vary depending on whether the development was subject to code assessment or (more rigorous) impact assessment.

Under section 326 of the SPA, for both code and impact assessable development, an assessment manager was generally[5] prohibited from making a decision that conflicted with a planning instrument unless there were ‘sufficient grounds to justify the decision, despite the conflict’.[6] This concept of ‘sufficient grounds’ was, almost invariably, relied upon by developers, in appeals, to support approval of development. For example, planning need for development (e.g. to meet community demands) was commonly relied upon as a ‘ground’ weighing in favour of approving development despite conflicts with a planning scheme.

In contrast, this prohibition has been removed in the Planning Act. Instead:

1. For code assessable development, an assessment manager must approve a DA to the extent that development complies with the relevant assessment benchmarks under planning instruments, and may approve the DA even if it does not comply with those benchmarks (without any requirement for sufficient grounds). In something of an inversion, the assessment manager is also prohibited from refusing a DA unless compliance with the benchmarks cannot be achieved through approval conditions.[7]
2. For impact assessable development, the assessment manager simply has a discretion to approve (wholly or partly) or refuse the DA. While there is no concept of ‘sufficient grounds’, the assessment manager is able to consider ‘any other relevant matter, other than a person’s personal circumstances, financial or otherwise’, with planning need being given as an example of such a matter. This means, in effect, that a DA does not have to be refused if it conflicts with a planning instrument and there are not sufficient grounds. That is, there is no express prohibition preventing an approval in such a satiation (in contrast with the position under SPA).

Accordingly, an assessment manager is no longer required to refuse a DA that conflicts with a planning instrument in the absence of sufficient grounds. Instead, the assessment manager generally has a broad discretion.

In most circumstances, the practical likelihood is that the SPA and Planning Act regimes will operate similarly, and lead to the same ultimate outcome. The fact that the developer in Jakel was still ultimately unsuccessful, despite the Court applying the Planning Act’s regime, reflects this.

However, given its greater flexibility, the Planning Act’s regime is nonetheless more favourable to developers, which could make an important difference in some cases.

While welcome news for developers, this also creates an immediate practical difficulty for assessment managers who are currently processing DAs made under SPA.

Due to section 288 of the Planning Act, the assessment manager is required to decide the DA in accordance with the SPA regime, including section 326.

However, in light of the Jakel decision, assessment managers are now on notice that, in any appeal, the Court will be deciding the DA on the basis of the, more flexible, Planning Act regime.

Given this, in considering potential appeal risks, assessment managers should be conscious that, on appeal, the Court will be applying a different assessment regime. Potentially, depending on the circumstances, this means that an assessment manager may find itself in a position where it is required to refuse a DA under SPA, but the developer may have stronger prospects of success in any appeal.