Leeward Management Pty Ltd v Sunshine Coast Regional Council

[2024] QPEC 31

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Leeward Management Pty Ltd v Sunshine Coast Regional Council [2024] QPEC 31

PARTIES:

LEEWARD MANAGEMENT PTY LTD ATF LE TRUST TRADING AS PROJECT BA

(applicant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO/S:

183/23

DIVISION:

Planning and Environment

PROCEEDING:

Originating application for declarations

DELIVERED ON:

17 June 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

24 April 2024

JUDGE:

Cash DCJ

ORDERS:

1.        THE APPLICATION IS DISMISSED;

2.        I WILL HEAR THE PARTIES AS TO COSTS.

CATCHWORDS:

PLANNING AND ENVIRONMENT –– ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks a declaration that their application for a development approval does not require impact assessment – where the applicant seeks consequential orders that an action notice issued by the assessment manager be set aside – where the applicant has planning approval for development of a residential dwelling house – where the applicant sought to change the development proposal to add structures above the second storey of the dwelling house – where the effect of the change would be that the dwelling house exceeded the limit in the Height of Buildings and Structures Overlay of the respondent’s planning scheme – whether as a result the change application is impact assessable – whether the development approval is for ‘building work’ – whether there is inconsistency between the regulations and the planning scheme

LEGISLATION:

Building Act 1975 (Qld), s 3
Planning Act 2016 (Qld), s 8, s 43, s 45, s 46, s 54, s 57, s 60, s 78, s 81, s 82
Planning and Environment Court Act 2016 (Qld), s 11
Planning Regulation 2017 (Qld), s 19, s 20, sch 7, sch 9, sch 10

APPEARANCES:

J S Timmins (solicitor) for the applicant
M J Batty with R Yuen for the respondent

SOLICITORS:

Sunshine Coast Council Legal Services for the respondent

Introduction

1. In early 2023 the applicant obtained a development approval from the respondent for a material change of use in respect of land at Buddina to establish a dwelling house on the land.[1] A condition of the approval was that the development was to be undertaken generally in accordance with the plans submitted with the application. These plans were for a dwelling house with two above-ground storeys, a basement carpark, and a building height not exceeding 8.5 metres. In October 2023 the applicant sought the respondent’s permission to change the development approval. The proposed change was to the plans for the proposed development. Instead of a two-storey building, the applicant wanted to build new structures above the second storey, including a habitable rumpus room. The result, if the change was to be approved, would be a building height of 10.2 metres above the ground.

   [1]The land has a street address of 37 Adaluma Avenue, Buddina and is properly described as Lot 436 on RP 118150.

1. The respondent decided this would exceed the height limit of the Height of Buildings and Structures Overlay found in the respondent’s planning scheme.[2] As a consequence, other provisions of the scheme were engaged such that the changed development proposal required impact assessment.[3] An action notice to this effect was issued to the applicant. The applicant says the respondent is wrong about the category of assessment, and seeks a declaration that the ‘Change Application’ does not require impact assessment because the respondent cannot, by its planning scheme, categorise development as impact assessable merely because of building height.[4] Put as simply as it can be, the applicant contends that the change for which it seeks permission amounts to ‘building work’ as that term is defined in the Building Act 1975 (Qld) (‘BA’), that ‘building work’ is categorised by regulation as code assessable, and that any contrary provision in the respondent’s planning scheme is of no effect because it is inconsistent with the higher-order provisions found in the regulations.

   [2]Sunshine Coast Planning Scheme 2014 (‘SCPS’).

   [3]Planning Act 2016 (Qld) (‘PA’), section 45(5).

   [4]The power of the Planning and Environment Court to make such a declaration, and orders about a declaration, are found in section 11 of the Planning and Environment Court Act 2016 (Qld).

1. If the applicant’s submissions are correct, curious results would follow. During oral submissions, the applicant’s solicitor agreed that a consequence of the construction propounded by the applicant would be that a change application to add four, or even ten more storeys to the building would be code assessable. This would be a remarkable result, and one contrary to common sense, good planning, and the apparent purposes of each of the Planning Act 2016 (Qld) (‘PA’), the BA, and the planning scheme. Whether such absurdity is alone a sufficient reason to dismiss the application need not be decided. There are other reasons for rejecting the application.

1. Fundamentally, the applicant’s submissions misunderstand the effect of the complementary legislation found in the PA and the BA, and the distinction between planning approval for a proposed use of land and the need for the approval of building works necessary to give effect to that use. The applicant’s change application relates to the approval for a material change of use and is not concerned with building work. Provisions of other legislation may mean that the category of assessment for building work is ‘code assessable’, but that does not affect the requirement that this proposed change to the development approval for a material change of use be subject to impact assessment.

1. The application for a declaration and ancillary orders must be dismissed.

The applications for approval and change

1. The original application for a material change of use was made pursuant to the PA and the respondent’s planning scheme. There is no dispute that the original application was code assessable. The application, under the heading ‘Aspects of development’, described the permission sought as a development permit for a material change of use to establish a single dwelling house. Part of the form posed the question, ‘Does the proposed development application involve any of the following?’ In answering this question, the applicant ticked the box beside ‘Material change of use’ but left blank the box beside ‘Building work’. The heading ‘Checklist and applicant declaration’ contained the statement, ‘If building work is associated with the proposed development, Parts 4 to 6 of DA Form 2 – Building work details have been completed and attached to this development application’. The applicant indicated this was not relevant by checking the box ‘Not applicable’ adjacent to the statement.

1. It may be taken from this that what the applicant sought was permission for a material change of use, and not for approval of building work.

1. The approval was given because the proposal could be conditioned to comply with the relevant assessment benchmarks.[5] In the decision notice, it was noted that the

approval relates to development requiring approval under the Planning Act 2016 only. It is the applicant’s responsibility to obtain any other necessary approvals, licences or permits required under State and Commonwealth legislation or council local law, prior to carrying out the development.

[5]PA, section 60(2).

1. The decision notice also noted that it remained the responsibility of the building certifier to ensure that building work complied with the PA and the BA, and that the

Council approval consent does not authorise building work to commence and a separate building development permit (building approval) must be obtained from a private building certifier prior to commencing assessable building work.

1. Even though the original application was for a material change of use, and was not concerned with any building work, the respondent gave an early indication of its response to an application for approval of building works. The response advised that the proposed development required referral for approval of building work and noted that any approval for building work would be subject to the conditions attached to the development approval for the material change of use.

1. The applicant then decided to change the proposed development as described above. The change application form was lodged in October 2023.[6] The type of change was identified as ‘Other change application’ (as opposed to a ‘minor change application’).[7]  It cited the development permit for a material change of use as the ‘existing development approval subject to this change application’. In the change application form, the applicant asserted that there was no change to the level of assessment because of the proposed changes. That is, the applicant asserted that the proposed development remained code assessable, despite exceeding the height limit.

   [6]Curiously, the owner’s consent attached to the change application purports to being signed on 23 June 2022. Nothing turns on this.

   [7]PA, Chapter 3, Part 5, Division 2, Subdivision 2, especially sections 81 and 82.

1. Unlike the original application for a material change of use, the change application was said to involve ‘building work’, and the relevant part of DA Form 2 concerning building work was provided with the change application. Similarly, under the heading ‘Checklist and application declaration’, the applicant indicated that building work was associated with the change application. The references to building work in the change application stand in stark contrast to the original application for a material change of use which contained no mention of, and did not seek approval for, any building work.

1. The respondent decided that the change application had not been properly made because it was, contrary to the applicant’s assertion, subject to impact assessment, and the material necessary for impact assessment had not been provided. The respondent advised this in an action notice dated 1 November 2023.

1. Before turning to the applicant’s arguments, it is helpful to summarise the legislative framework relevant to the application and change application, beginning with the aims of the PA and BA.

Legislative framework

1. The PA is an act ‘providing for an efficient, effective, transparent, integrated, coordinated and accountable system of land use planning and development assessment to facilitate the achievement of ecological sustainability’. Part 3 of the PA sets out the process for the assessment of development applications. Development is divided into three categories: ‘prohibited’, ‘assessable’ and ‘accepted’. It is only assessable development that is relevant to this application. Section 45 of the PA provides that there are two categories of assessment for assessable development: ‘code assessment’ and ‘impact assessment’.

1. The category of assessment that will apply to the assessment of a development application will depend on the relevant ‘categorising instrument’. The PA defines ‘categorising instruments’ in section 43. These are regulations or a ‘local categorising instrument’ which specify the category of assessment required for different types of assessable development. A local categorising instrument includes a planning scheme. Critical to the applicant’s argument is section 43(4) of the PA. This provides that if there is inconsistency between the category of assessment fixed under a regulation and that fixed under a local categorising instrument, such as a planning scheme, the regulation applies to the extent of the inconsistency. The applicant says the relevant categorising instrument is the Planning Regulation 2017 (Qld) (‘PR’), pursuant to which the category for assessment of ‘building work’ is code assessable. The respondent says the relevant categorising instrument is the planning scheme, with the result that the category of assessment is impact assessment. If the applicant is right, section 43(4) would operate to give precedence to the PR.

1. The BA has some relevance to the present application. It is an act ‘to regulate building development approvals, building work, building classification…’ and other matters. It sets out to provide for ‘what building work is assessable development or accepted development’ under the PA,[8] and to provide for the assessment of building development applications.[9] ‘Building work’ is defined expansively, and includes ‘building, repairing, altering, underpinning …, moving or demolishing a building or other structure’.[10] It may immediately be noted that the PA and BA have different, if complementary, purposes. The former is aimed at the proper regulation of land use, while the latter aims to regulate (among other things) building development approvals and building work.

   [8]BA, section 3(1).

   [9]BA, section 3(3).

   [10]BA, section 5(1).

1. The applicant required approval for their proposed development because what they wanted to do was ‘development’ for the purposes of the PA. Pursuant to the definition in Schedule 2 of the PA, development means carrying out building work, plumbing or drainage work, or operational work; reconfiguring a lot; or making a material change of use of premises. The original application for development approval was expressly for a material change of use, and engaged the definition in the PA. There was no regulation relevant to the original application which determined the category of assessment. That left the respondent’s planning scheme, as the local categorising instrument, to determine the category of assessment, pursuant to which the original application required code assessment.

1. The applicant’s change application was permitted by section 78 of the PA, which allows a person to make an application to change ‘a development approval’. The change application was to be decided in accordance with section 82 of the PA. Pursuant to this section, ‘the relevant provisions’ applied ‘as if … the change application were the original development application, with the changes included, but was made when the change application was made’.[11] The ‘relevant provisions’ included section 45(6)–(8) of the PA. The effect of section 45(6)–(8), in this case, was that the respondent was obliged to assess the change application against or having regard to the planning scheme as in effect when the change application was properly made.

   [11]PA, section 82(2)(a)(ii).

1. The respondent’s planning scheme includes tables of assessment which identify ‘where an overlay changes … the category of assessment from that stated in a zone or local plan’.[12] The applicable table provides that any development ‘exceeding the maximum height specified for the site on the applicable Height of Buildings and Structures Overlay Map’ requires impact assessment, subject to some presently irrelevant exceptions.[13]

   [12]SCPS, 5.10.

   [13]SCPS, Table 5.10.1.

1. If the respondent’s planning scheme, as a local categorising instrument, was to apply to the change application, it is inevitable that the changed development proposal involved a building height that exceeded the 8.5 metre limit of the Height of Buildings and Structures Overlay. As a consequence, the table of assessment would require that the proposed development be subject to impact assessment. The applicant concedes this must be the effect of the planning scheme, but contends that it is the PR, and not the planning scheme, which is the categorising instrument for the change application. The applicant’s argument further asserts that the result of the application of the PR is that the change application can only be subject to code assessment.

1. To determine if this is correct, it is necessary to answer three questions:

a.       What is the development approval to which the change application applies?

b.       What is the categorising instrument which applies to the change application?

c.       What is the category of assessment required by the categorising instrument?

1. I will deal with each question in turn.

What is the development approval to which the change application applies?

1. The applicant’s original application was for a material change of use. It was not concerned with building work and the approval of the application did not itself authorise any building work. So much is clear from the terms set out above, which included an early response from the respondent pursuant to section 54 of the PA, which permitted the respondent to give a response before a development application for building work was made. That is what the respondent did, noting that the approval of a material change of use did not itself authorise building work. There was a potential for the concurrence agency response to become the response to a further application for approval of development constituted by building work,[14] but that did not convert the respondent’s decision notice of 23 January 2023 from one approving a material change of use to one approving building work.

   [14]PA, section 57(3).

1. There being no approval for building work, and the only extant approval being for development constituted by a material change of use, the latter was the only development approval for which a change application could be made. The applicant was aware of this, and the approval cited in their change application was the material change of use approval (MCU22/0266). The applicant’s attempt in the change application to recast the approval as one concerning building work was disingenuous, and ineffective. Even if the applicant’s changed plans would ultimately involve some ‘building work’, as that phrase is defined in the BA, this does not by itself change the character of the development approval for a material change of use. It must be the case that the only approval which could be the subject of the change application was the approval for a material change of use. So much is conceded by the applicant.[15]

   [15]Applicant’s submissions in reply, filed 9 April 2024, paragraph 4.

What is the categorising instrument which applies to the change application?

1. That being the case, the PR has no relevance to the category of assessment required of the change application. There is no conflict in the categories of assessment for section 43 of the PA to resolve. That is so for the following reasons.

1. As noted, section 43 of the PA permits a regulation or a planning scheme to specify the categories of assessment for different types of assessable development. Pursuant to section 45(2) of the PA, this is the category of assessment that must be carried out for the development. Schedules 7, 9 and 10 of the PR, where applicable, categorise development and assessment. Schedule 7 is concerned only with accepted, not assessable, development and is irrelevant. Schedules 9 and 10 list types of development that are prohibited or assessable. The categories of assessment for assessable development, where applicable, are also listed in the schedules.[16] None of the types of development listed in Schedule 10 are presently relevant.

   [16]PR, sections 19 and 20.

1. Schedule 9, Part 1, is concerned only with ‘[b]uilding work under the Building Act’. The schedule provides that ‘building work’ is assessable development, unless it is accepted development, and by the table in Part 2 is subject to code assessment only. But, for the reasons set out above, the development approval which was the subject of the change application was the approval for a material change of use, not building work. In these circumstances Schedule 9 of the PR is irrelevant. The only categorising instrument that applies to the change application is the local categorising instrument embodied in the planning scheme.

What is the category of assessment required by the categorising instrument?

1. As the applicant accepts,[17] and for the reasons set out in the respondent’s amended outline of submissions,[18] the effect of the planning scheme is to require impact assessment of the change application. The respondent was correct to identify the change application was deficient because it wrongly proceeded on the basis that the category of assessment was code assessment when the planning scheme and other legislation required impact assessment.

   [17]Applicant’s submissions, filed 23 February 2024, paragraph 26.

   [18]Respondent’s amended submissions, filed 15 April 2024, paragraph 88.

Conclusion

1. For these reasons set out above I am unable to accept the applicant’s submissions as to the effect of the legislative provisions. The fundamental flaw in the applicant’s submissions was to conflate the need for approval of the use to which the land is to be put – which is what the PA regulates – and the separate need for approval of the building works that may be necessary or appropriate to give effect to that use – which is what the BA regulates. The assessment and approval of the proposed use of premises is not the same as the assessment and approval of building works. In this case, even if the category of assessment of proposed building works that might be necessary to build structures above the second storey of the dwelling house is code assessment, that does not preclude a ‘local planning instrument’[19] from categorising the proposed use which would be involved as impact assessable. Once this flaw in the applicant’s submissions was realised, the application was doomed to fail.

   [19]PA, section 8.

1. The applicant is not entitled to the declaration they have sought, nor to the ancillary orders. The application must be dismissed.

1. The respondent has indicated it wishes to make submissions about the costs of the application. I will hear the parties about appropriate directions in this regard.