Australia: Queensland Planning and Environment Court allows appeal on the basis of the Development Tribunals failure to consider Part E of the State Planning Policy 2017

In brief

The case of Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman) [2020] QPEC 61 concerned an appeal to the Planning and Environment Court against a decision by the Development Tribunal (Tribunal) to set aside a decision by the Southern Downs Regional Council (Council) to refuse a development application for a dwelling house on land at Tummaville Road, Leyburn.

The Court allowed the appeal and remitted the development application to the Tribunal for determination. Although the Council asserted seven grounds of appeal, the Court only found error in respect of the first ground, which concerned the Tribunal's failure to consider or give adequate reasons for the proposed development's non-compliance with Part E of the State Planning Policy 2017 (SPP 2017).

Brief Background

The subject land spans about 4.45 hectares. The proposed development was for the construction of a one-bedroom dwelling house in the north-eastern part of the subject land, approximately 80 metres from the northern boundary and the adjoining Tummaville Road.

Homeworthy Inspection Services, the respondent in the appeal, was the agent for the landowners (Respondent). The Respondent lodged a code assessable development application with the Council for a development permit for a material change of use to facilitate the outcome sought by the landowners. That development application was refused by the Council, on the basis that the proposed development did not comply with the Flood Hazard Overlay Code. In particular, the Council concluded that there is no alternative flood free area on the land, and there is no flood free access route if Tummaville Road is flooded.

The Council's decision was appealed to the Tribunal, which set it aside and approved the development application subject to conditions. On appeal to the Court, the Council asserted seven grounds of appeal, but only one ground of appeal was found to have any merit. This successful ground of appeal and the Court's determination of the appropriate relief in the circumstances are considered below.

Tribunal failed to consider or give adequate reasons relating to the proposed development's non-compliance with Part E of the SPP 2017

The Court held that the Tribunal erred in law by failing to assess the proposed development against Part E of the SPP 2017 and that this error materially affected the Tribunal's decision. Further, the Court concluded that if it was wrong about this, the Tribunal erred in law by failing to give adequate reasons for its decision.

The Planning Act 2016 (Qld) (Planning Act) relevantly states as follows:

1. "A code assessment is an assessment that must be carried out only­- (a) against the assessment benchmarks in a categorising instrument for the development; and (b) having regard to any matters prescribed by regulation" ( section 45(3) of the Planning Act).
2. "A categorising instrument is a regulation or local categorising instrument that . sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against ( section 43(1)(c) of the Planning Act).
3. "The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made" (section 45(6) and (7) of the Planning Act).
4. Section 60(2) of the Planning Act makes clear that "the issue of compliance with each assessment benchmark is a material consideration in any decision following code assessment" (at [20] of the judgment).

The Planning Regulation 2017 (Qld) (Regulation) is a categorising instrument for the purposes of section 43(1)(c) of the Planning Act. Relevantly, section 26(2)(a)(ii) of the Regulation states that if the prescribed assessment manager is the local government, a code assessment must be carried out against the assessment benchmarks stated in "the State Planning Policy, part E, to the extent part E is not identified in the planning scheme as being appropriately integrated in the planning scheme".

Pertinently, at the time the development application was lodged, the Council's Planning Scheme did not identify the SPP 2017 as being appropriately integrated, and consequently, it was mandatory for the Tribunal to undertake an assessment against Part E of the SPP 2017 before making a decision under section 60(2) of the Planning Act.

Although the Tribunal was aware that the Council asserted non-compliance with the SPP 2017, its reasons made no reference to the assessment benchmarks in Part E of the SPP 2017 or to the SPP 2017 at all. Additionally, the Court did not accept that the Tribunal assessed the proposed development against a later version of the Council's Planning Scheme, which integrated the SPP 2017.

In the facts and circumstances of this case, the Court concluded that there was no evidence that the Tribunal undertook the necessary assessment against Part E of the SPP 2017.

Court concluded that it was appropriate to remit the development application to the Tribunal

Following the finding of legal error by the Tribunal, there was a dispute as to whether the nature of the appeal was a merits review (by way of rehearing) contingent upon the threshold of legal error being established.

The Court referred to the decision of Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 in which the High Court stated that "an 'appeal' is not a procedure known to the common law, but, rather, always is a creature of statute" (see [64]). The Court stated (at [66]):

Section 47 of the Planning and Environment Court Act 2016 (Qld) (PEC Act) states that in deciding a Planning Act appeal, the Court must decide to confirm or change the decision, or set aside the decision and either make a decision replacing it or return the matter to the entity that made the decision.

The Court noted that section 229 and schedule 1 of the Planning Act confers judicial power to examine the Tribunal's decision for legal or jurisdictional error, and that the exercise of that power arises from the Court exercising its original jurisdiction (as opposed to appellate jurisdiction).
The Court accepted the following propositions posited by the Council:

1. ".it is inappropriate to construe provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words of the grant" (at [68]).
2. ".the conferral of a court with jurisdiction is intended to include all the procedures of the court unless expressly displaced" (at [68]).
3. ".the necessity for the Court's power to be exercised judicially tends in favour of the most liberal construction" (at [68]).

However, the Court stated that the Council's approach to the construction of section 47 of the PEC Act, which asserted that the words of the section and the Explanatory Notes confirmed Parliament's intention for the Court's power to either replace or remit the Tribunal's decision, did not have regard to the broader legislative context of the PEC Act.

Having regard to section 47 of the PEC Act and the broader statutory context, the Court concluded that the appeal was not by way of a merits review contingent only upon the threshold of legal error being established for the following reasons:

1. Section 47 of the PEC Act must be construed by reference to the broad range of appeal rights in section 229 and schedule 1 of the Planning Act (at [71]).
2. Section 47 of the PEC Act "does not enlarge the Court's jurisdiction. It confers powers on the Court in aid of the exercise of its jurisdiction in a variety of appeals" (at [72]).
3. Section 47 of the PEC Act confers the Court with broad power to determine an appeal from the Tribunal. For example, the Court may make a decision replacing the Tribunal's decision where the facts and circumstances of the case only permit one conclusion to be reasonably entertained (at [73]).
4. ".there has already been an opportunity to have the decision about the development application considered on its merits" and this "supports a legislative intent to narrowly confine the right of appeal with respect to the decision" of the Tribunal in this case (at [75]).

Conclusion

The Court did not accept the Council's submission that if the appeal did not involve a merits review, the Court could replace the decision with its own given there were no contested facts.
The Court concluded that the legal error relating to the failure to consider or give adequate reasons for the consideration of Part E of the SPP 2017 meant that several factual matters had to be determined. Consequently, the Court allowed the appeal and remitted the matter to the Tribunal for determination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.