Bell v Brisbane City Council

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SUPREME COURT OF QUEENSLAND

CITATION:

Bell v Brisbane City Council & Ors [2018] QCA 84

PARTIES:

KATE PETA BELL
(applicant)
v
BRISBANE CITY COUNCIL
(first respondent)
SUNLAND DEVELOPMENTS NO 8 PTY LTD
ACN 128 607 714
(second respondent)
CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009
(third respondent)

FILE NO/S:

Appeal No 6214 of 2017
P & E Appeal No 2868 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2017] QPEC 26 (Rackemann DCJ)

DELIVERED ON:

4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2017

JUDGES:

Sofronoff P and Philippides and McMurdo JJA

ORDERS:

1.    Leave to appeal is granted.

2.    The appeal is allowed.

3.    Remit the matter to the Planning and Environment Court, to be further considered according to law.

4.    The first and second respondents are to pay the applicant’s costs of and incidental to the application for leave to appeal and the appeal in this court.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – CONSIDERATION OF PARTICULAR MATTERS – AMENITY AND COMPATIBILITY – PARTICULAR CASES – where the second respondent sought and obtained approval from the first respondent for a material change of use to develop the former Australian Broadcasting Commission site at Toowong for residential use – where the proposed development is three towers that each significantly exceed the relevant height restrictions in the applicable planning scheme – where the applicant lives on adjoining land and made a submission about the development application to the first respondent – where the applicant’s case is that the proposed development does not comply with the planning scheme – where the Planning and Environment Court concluded that there were sufficient grounds, in the public interest, to justify the decision to approve the proposed development despite the conflict with the planning scheme – whether the Planning and Environment Court’s conclusion resulted from errors of law by the judge

Integrated Planning Act 1997 (Qld), s 3.5.14
Local Government (Planning and Environment) Act 1990 (Qld), s 4.4(5A)
Planning Act 2016 (Qld), s 311
Planning and Environment Court Act 2016 (Qld), s 63, s 65, s 76
Sustainable Planning Act 2009 (Qld), s 313, s 326, s 498

Bruce v Caloundra City Council [2007] QPELR 571; [2007] QPEC 46, cited
Clark v Cook Shire Council [2008] 1 Qd R 327; [2007] QCA 139, cited
Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, considered
Grosser v City of Gold Coast (2001) 117 LGERA 153; [2001] QCA 423, cited
Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302; [2012] QCA 370, cited
Nevtan Investments Pty Ltd v Belyando Shire Council [2008] QPELR 326, cited
Palyaris v Gold Coast City Council [2004] QPELR 162; [2003] QPEC 56, cited
Prettlejohn v Cairns Regional Council [2012] QPELR 485; [2012] QPEC 23, cited
Titanium Enterprises Pty Ltd…

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Details
Case
[2018] QCA 84
Decision Date

CaseChat Overview and Summary

In the case of Bell v Brisbane City Council, the applicant challenged the Brisbane City Council's approval of a development application to convert the former Australian Broadcasting Commission site at Toowong into residential use. The applicant, who resides on adjoining land, argued that the proposed development, which consists of three towers that exceed height restrictions in the relevant planning scheme, did not comply with the planning scheme. The Planning and Environment Court had concluded that there were sufficient grounds, in the public interest, to justify the approval despite the conflict with the planning scheme. The central legal issue before the court was whether the Planning and Environment Court's conclusion that there were sufficient grounds to justify the approval resulted from errors of law.

The court examined the statutory framework governing the decision-making process for development consents, specifically section 326 of the Sustainable Planning Act 2009 (Qld). This section outlines the conditions under which a decision may conflict with a relevant instrument unless there are sufficient grounds to justify the decision. The court considered precedents, including Grosser v City of Gold Coast and Weightman v Gold Coast City Council, which interpreted similar provisions in the Local Government (Planning and Environment) Act 1990 (Qld). In these cases, the courts established a two-stage process: identifying the conflict and then determining if there were sufficient planning grounds to justify the approval despite the conflict. The court concluded that the Planning and Environment Court had not correctly applied this statutory framework in its assessment of the development application, leading to errors of law in its decision.

The court granted leave to appeal and allowed the appeal, finding that the Planning and Environment Court's conclusion was flawed due to errors of law. The matter was remitted back to the Planning and Environment Court for reconsideration according to law. Additionally, the first and second respondents were ordered to pay the applicant's costs of and incidental to the application for leave to appeal and the appeal in the court. This decision underscores the importance of correctly applying statutory frameworks in development consent decisions and the potential consequences when such errors occur.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Remit the matter to the Planning and Environment Court, to be further considered according to law.

4. The first and second respondents are to pay the applicant’s costs of and incidental to the application for leave to appeal and the appeal in this court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The remaining arguments for the applicant are relevant to the question of whether there were sufficient grounds to justify the decision, according to s 326 of the SPA which is as follows:“326 Other decision rules(1)The assessment manager’s decision must not conflict with a relevant instrument unless—(a)the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or(b)there are sufficient grounds to justify the decision, despite the conflict; or(c)the conflict arises because of a conflict between—(i) 2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; orExample of a conflict between relevant instruments—a conflict between 2 State planning policies(ii) 2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument.Example of a conflict between aspects of a relevant instrument—a conflict between 2 codes in a planning scheme(2)In this section—relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.” Before going to those arguments, it is necessary to refer to the authorities in this Court on the provision. Many of the cases which were cited in argument were decided under the statutory predecessor of s 326 of the SPA, namely s 4.4(5A) of the Local Government (Planning and Environment) Act 1990 (Qld) (“the 1990 Act”). It provided that a local government must refuse to approve an application if it conflicted with any relevant strategic plan or development control plan and there were not “sufficient planning grounds to justify approving the application despite the conflict”. In Grosser v City of Gold Coast,[51] White J (with whom Thomas and Williams JJA agreed) said that s 4.4(5A) provided “a simple two-stage process which first requires the identification of conflict with the Strategic Plan, then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict.”[52] In that case, the primary judge was found to have erred, by reasoning that s 4.4(5A) was not engaged, because the inconsistencies with the Strategic Plan were not “so fundamental” as to do so.[53][51](2001) 117 LGERA 153; [2001] QCA 423.[52]Ibid at 166 [49].[53]Ibid. The same provision of the 1990 Act was considered in Weightman v Gold Coast City Council,[54] where the primary judge had found that a development would exceed a prescribed maximum height under the planning scheme, but that there were sufficient planning grounds to justify approving the application despite the conflict. The principal judgment was given by Atkinson J, with whom McMurdo P agreed. The Chief Justice dissented in the result, but stated his agreement with the principles expressed by Atkinson J.[55] Her Honour noted that under s 4.4(5A), it was a “mandatory requirement” that the approval be refused if there were not sufficient grounds to justify it. Her Honour considered that the primary judge had wrongly held that the provision was directory only.[56] She said that the provision required the decision maker to: (1) examine the nature and extent of the conflict with the planning scheme; (2) determine whether there were any planning grounds which were relevant to the part of the application which was in conflict with the planning scheme and if the conflict could be justified on those planning grounds; and (3) determine whether the planning grounds in favour of the application as a whole were, on balance, sufficient to justify approving the application notwithstanding the conflict.[57] In her concurring judgment, the President said that only when the extent of the conflict with the planning scheme was appreciated, could the discretion under s 4.4(5A) be properly exercised.[58][54][2003] 2 Qd R 441; [2002] QCA 234.[55]Ibid at 446 [8].[56]Ibid at 453 [35].[57]Ibid at 453 [36].[58]Ibid at 448 [15].

Ratio Decidendi

Legal Principle Established

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