Gladstone Regional Council v Motolake Pty Ltd

[2024] QPEC 41

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Gladstone Regional Council v Motolake Pty Ltd [2024] QPEC 41

PARTIES:

GLADSTONE REGIONAL COUNCIL

(Appellant)

v

MOTOLAKE PTY LTD

(Respondent)

FILE NO/S:

566 of 2024

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against a decision of the Development Tribunal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

29 August 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2024

JUDGE:

Kefford DCJ

ORDER:

I ORDER:

(A)       THE APPEAL IS ALLOWED;

(B)      THE DECISION OF THE DEVELOPMENT TRIBUNAL DATED 2 FEBRUARY 2024 IS SET ASIDE;

(C)       THE APPEAL TO THE DEVELOPMENT TRIBUNAL (FROM THE DECISION OF THE APPELLANT MADE ON 8 MAY 2023, TO ISSUE A PRELIMINARY APPROVAL RATHER THAN A DEVELOPMENT PERMIT, FOR THE RESPONDENT’S DEVELOPMENT APPLICATION) BE REMITTED TO THE DEVELOPMENT TRIBUNAL TO BE DETERMINED AFRESH ACCORDING TO LAW; AND

(C)       EACH PARTY BEARS THEIR OWN COSTS OF THIS PLANNING AND ENVIRONMENT COURT APPEAL.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – where the Council granted a preliminary approval in lieu of a development permit for a material change of use for a dwelling house – where the owner of the land appealed to the Development Tribunal – where the Development Tribunal replaced the Council’s decision and granted a development permit subject to conditions – whether the Development Tribunal erred in law – whether the Development Tribunal erred in considering changes to the development application made after the Council’s decision

LEGISLATION:

Planning and Environment Court Act 2016 (Qld), ss 253, 254

COUNSEL:

M Rodgers for the Appellant
D Purcell for the Respondent

SOLICITORS:

Clayton Utz Lawyers for the Appellant
MacDonnells Law for the Respondent

1. Motolake Pty Ltd owns land at 10 Ocean Drive, Seventeen Seventy.  The land is properly described as Lot 5 on S85613.  I will refer to that as the subject land.  Motolake Pty Ltd made a development application with respect to the subject land to Gladstone Regional Council on or about the 10th of February 2023.  In its development application, it sought a development permit for a material change of use for a dwelling house.  The development application was code assessable and required assessment against, amongst other codes, the Character residential zone code in version 2 of Our Place Our Plan Gladstone Regional Council Planning Scheme, which I will refer to as the planning scheme. 

2. On the 8th of May 2023, Gladstone Regional Council, which I will refer to as the Council, gave a notice of its decision to grant a preliminary approval in lieu of the development permit sought by Motolake Pty Ltd.  That decision was appealed to the Development Tribunal on the 3rd of July 2023.  On the 2nd of February 2024, the Development Tribunal replaced the Council’s decision with another decision, namely,

   “…approving a Development Permit for the proposed siting, design, built form, excavation and landscaping elements in respect of Development Application DA/8/2023 (dated 13 February 2023) and as amended by the Appellant’s post-hearing submission to the Tribunal (dated 1 December 2023), subject to the following conditions:

   (a)That the proposed tree/palm planting shown on Landscape Plan Drawing 316-LO1 prepared by LA3 Pty Ltd (included in the Appellant’s submission to the Tribunal dated 1 December 2023) be mature trees (in excess of 2m in height) and that mature tree/palm plantings be incorporated into the area shown as lawn adjacent to the driveway;

   (b)Drawings A.O4.2(C) and A.O7.4(C) indicate the front face of the ‘catch pool’ overhanging the front walls to lower-level office and garages by approximately 1250mm and 50mm respectively.  The Tribunal requires that this design element be retained in the final development;

   (c)Other reasonable and relevant conditions imposed by the Assessment Manager that are not inconsistent with the above.”

3. Both parties submit that the Development Tribunal erred in law and made a jurisdictional error in making that decision.  I agree.  The error made by the Development Tribunal is evident on the face of the Development Tribunal’s decision, namely, that it undertook an assessment against the applicable assessment benchmarks as though the development application that was to be assessed was one that was amended by Motolake Pty Ltd’s post-hearing submission to the Development Tribunal dated 1 December 2023. 

4. The Development Tribunal does not have the power to conduct a hearing anew. Pursuant to section 253(4) of the Planning Act 2016 (Qld), the Development Tribunal must hear and decide the appeal by way of reconsideration of the evidence that was before the person who made the decision appealed against. Under section 253(5), the Development Tribunal may consider other evidence presented by a party to the appeal with the leave of the Development Tribunal. Although the Development Tribunal was permitted to consider revised plans when determining, for example, whether compliance with the assessment benchmarks could be achieved by imposition of conditions, it nevertheless was obliged to assess the development application as made to the Council.

5. To the extent that the Development Tribunal could consider revised plans when determining whether to impose a condition requiring the development to proceed in accordance with revised plans rather than those that were the subject of the Council’s decision, in imposing any such condition, it must also respect the limitation placed on it under section 254(3) of the Planning Act 2016. This is not the approach that was taken by the Development Tribunal in its consideration of the revised plans placed before it. That error is a fundamental one that infects the entire decision. For that reason, it is unnecessary for me to consider the other errors that are alleged by the Council. As I have said, the identified error infects the entire decision and persuades me that the matter ought be remitted to the Development Tribunal to be determined afresh, having regard to the error that I have just explained.