Leeward Management Pty Ltd v Sunshine Coast Regional Council
[2025] QCA 11
•14 February 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Leeward Management Pty Ltd v Sunshine Coast Regional Council [2025] QCA 11
PARTIES:
LEEWARD MANAGEMENT PTY LTD ATF LE TRUST T/AS PROJECT BA
ABN 12 119 712 501
(applicant)
v
SUNSHINE COAST REGIONAL COUNCIL
ABN 37 876 973 913
(respondent)FILE NO/S:
Appeal No 9932 of 2024
P & E Appeal No 183 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Planning and Environment Court Act
ORIGINATING COURT:
Planning and Environment Court at Maroochydore – [2024] QPEC 31 (Cash KC DCJ)
DELIVERED ON:
14 February 2025
DELIVERED AT:
Brisbane
HEARING DATE:
18 November 2024
JUDGES:
Bond and Boddice JJA and Wilson J
ORDERS:
1. Leave to appeal the primary decision be granted.
2. The appeal be dismissed.
3. Leave to appeal the costs decision refused.
4. The applicant pay the respondent’s costs of the application for leave to appeal.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant seeks leave to appeal, pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld), against a decision of the Planning and Environment Court, which dismissed an application for a declaration that a development approval sought by the applicant did not require impact assessment – whether leave to appeal should be granted
APPEAL AND NEW TRIAL – APPEAL – ENVIRONMENT AND PLANNING – PLANNING – PLANNING CONTROLS – QUEENSLAND – GENERALLY – LOCAL PLANNING INSTRUMENT – where the applicant seeks leave to appeal against a decision of the Planning and Environment Court, which dismissed an application for a declaration that a development approval sought by the applicant did not require impact assessment – where the applicant made a change application to the respondent under the Planning Act 2016 (Qld) to change the development permit for material change of use to establish a dwelling house – where the change application related to the plans and sought to provide for building new structures – where the respondent determined that the new proposed structure would exceed the height limit imposed by its planning scheme – where the respondent determined that the changed development proposal required impact assessment – whether, as contended by the applicant, the primary judge erred in determining that the applicant’s change application requires impact assessment – where the respondent accepted that the planning scheme is a local planning instrument within the meaning of s 8 of the Planning Act 2016 (Qld) – whether the respondent’s submission is consistent with legislative provisions
Building Act 1975 (Qld), s 5, s 7
Building Regulation 2021 (Qld), s 6
Planning Act 2016 (Qld), s 8, s 43, s 45
Planning and Environment Court Act 2016 (Qld), s 63
Planning Regulation 2017 (Qld), s 31(1)(f)COUNSEL:
A N Skoien for the applicant
M J Batty, with R Yuen, for the respondentSOLICITORS:
Jacky Timmins for the applicant
Sunshine Coast Council Legal Services for the respondent
BOND JA: I agree with the reasons for judgment of Boddice JA and the orders proposed by his Honour.
BODDICE JA: On 17 June 2024, the primary judge dismissed an application for a declaration that a development approval sought by the applicant did not require impact assessment.
On 25 July 2024, the primary judge ordered, pursuant to s 60(1)(b) of the Planning and Environment Court Act 2016 (Qld), that the applicant pay the respondent council’s costs of the proceeding, including of the application, on the standard basis.
The applicant seeks leave, pursuant to ss 63(2) and 64 of the Planning and Environment Court Act 2016 (Qld), to appeal those decisions. The applicant submits that, in respect of the primary decision, there are important questions of law that have general application to legislation and planning schemes throughout Queensland. The applicant further submits that the cost decision ought not to stand if the primary decision is set aside.
Grounds
Leave to appeal the primary decision is sought on the grounds that the primary judge erred in law:
“(a)by determining that the Applicant’s application (the “Change Application”) made to the Respondent under the PA, to change the development permit for material change of use to establish a dwelling house at 37 Adaluma Avenue, Buddina, in the State of Queensland, properly described as Lot 436 on Registered Plan 118150, requires impact assessment under Sunshine Coast Planning Scheme 2014 (the “Respondent’s Planning Scheme”) and the Planning Act 2016 (the “PA”);
(b)by determining that section 8(5) of the PA does not preclude the Respondent’s Planning Scheme from categorising the development proposed by the Change Application as impact assessable development under the PA;
(c)by failing to find that, in respect of a material change of use for a dwelling house, sections 8(5) and 8(6) of the PA and/or section 43(4) of the PA precludes the Respondent’s Planning Scheme from doing any of the matters under section 43(1) of the PA on the basis of building height; and/or
(d)by failing to find that provisions of the PA, the Planning Regulation 2017, the Building Act 1975 and the Building Regulation 2021, which impose limitations or exclusions in respect of provisions of a planning scheme, apply to provisions of a planning scheme regulating or limiting building height in respect of a material change of use of premises.”
Leave to appeal the costs decision is sought on two grounds:
“(a)the Primary Judge’s mischaracterisation of the Applicant’s case as one alleging that the Change Application sought permission for ‘building work’ under the PA and the Respondent’s Planning Scheme for a dwelling house over 8.5 in height rather than permission under the PA and the Respondent’s Planning Scheme for a ‘material change of use’ of a dwelling house more than 8.5m in height; and/or
(b)the Primary Judge’s failure to recognise the Applicant’s arguable legal propositions in relation to the construction of the planning legislation in Queensland and the Respondent’s Planning Scheme and their application to the Change Application concerning a material change of use of a dwelling house more than 8.5m in height.”
Background
In early 2023, the applicant obtained a development approval from the respondent council for a material change of use in respect of land at Buddina. The approval related to establishing a dwelling house. A condition of the approval was that the development was to be undertaken generally in accordance with the accompanying plans. Relevantly, the plans provided for a dwelling house with two above ground storeys, a basement car park and a building height not exceeding 8.5 metres.
In October 2023, the applicant submitted a “change application”, seeking permission from the respondent to change the development approval. The change related to the plans, and sought to provide for building new structures above the second storey, including a habitable rumpus room, with the result that the building height would be 10.2 metres above the ground.
The respondent council determined that as the new proposed structure would exceed the height limit of the “Height of Buildings and Structures Overlay” in its planning scheme,[1] as such the changed development proposal required impact assessment. An action notice was issued to the applicant.
[1]Sunshine Coast Planning Scheme 2014 (“the planning scheme”).
In response, the applicant sought a declaration that the change application did not require impact assessment.
Legislative regime
Planning Act
The purpose of the PA is the provision of “an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning and development assessment to facilitate an achievement of ecological sustainability.”
Chapter 2 of the PA provides for planning instruments. Relevantly, s 8 states:
“8 What are planning instruments
(1)A planning instrument is an instrument that sets out policies for planning or development assessment, and is either—
(a) a State planning instrument; or
(b) a local planning instrument.
(2)A State planning instrument is a planning instrument made by the Minister to protect or give effect to State interests, and is either—
(a) a State planning policy (including a temporary State planning policy); or
(b) a regional plan.
(3)A local planning instrument is a planning instrument made by a local government, and is either—
(a) a planning scheme; or
(b) a TLPI; or
(c) a planning scheme policy.
(4)To the extent of any inconsistency—
(a) a State planning policy applies instead of a regional plan or local planning instrument; and
(b) a regional plan applies instead of a local planning instrument; and
(c) a planning scheme applies instead of a planning scheme policy; and
(d) a TLPI applies instead of a planning scheme or planning scheme policy.
Note—
A TLPI may also suspend, or otherwise affect, the operation of a planning scheme or planning scheme policy—see section 23(3).
(5)A local planning instrument must not include a provision about building work, to the extent the building work is regulated under the building assessment provisions, unless allowed under the Building Act.
(6)To the extent a local planning instrument does not comply with subsection (5), the local planning instrument is of no effect.”
Chapter 3 of the PA provides for development assessment. Section 43 deals with categorising instruments. It provides:
“43 Categorising instruments
(1)A categorising instrument is a regulation or local categorising instrument that does any or all of the following—
(a) categorises development as prohibited, assessable or accepted development;
(b) specifies the categories of assessment required for different types of assessable development;
(c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.
(2)An assessment benchmark does not include—
(a) a matter of a person’s opinion; or
(b) a person’s circumstances, financial or otherwise; or
(c) for code assessment—a strategic outcome under section 16(1)(a); or
(d) a matter prescribed by regulation.
Examples of assessment benchmarks—
a code, a standard, or an expression of the intent for a zone or precinct
(3)A local categorising instrument is—
(a) a planning scheme; or
(b) a TLPI; or
(c) a variation approval, to the extent the variation approval does any of the things mentioned in subsection (1).
(4)A regulation made under subsection (1) applies instead of a local categorising instrument, to the extent of any inconsistency.
(5)A local categorising instrument—
(a) may state that development is prohibited development only if a regulation allows the local categorising instrument to do so; and
(b) may not state that development is assessable development if a regulation prohibits the local categorising instrument from doing so; and
(c) may not, in its effect, be inconsistent with the effect of a specified assessment benchmark, or a specified part of an assessment benchmark, identified in a regulation made for this paragraph; and
Note—
Assessment benchmarks are given effect through the rules for assessing and deciding development applications under section 45, 59 or 60.
(d) may not include an assessment benchmark about the effect or impact of development on the stated cultural heritage significance of a Queensland heritage place.
(5A)To remove any doubt, it is declared that subsection (5)(d) applies even if the Queensland heritage place is also a local heritage place.
(6)To the extent a local categorising instrument does not comply with subsection (5), the instrument has no effect.
(7)A variation approval may do something mentioned in subsection (1) only in relation to—
(a) development that is the subject of the variation approval; or
(b) development that is the natural and ordinary consequence of the development that is the subject of the variation approval.
(8)Subsections (4) and (6) apply no matter when the regulation and local categorising instrument commenced in relation to each other.”
Section 44 provides for three categories of development; prohibited, assessable or accepted development. It was not in dispute, either at the primary hearing, or on appeal, that the relevant development was an assessable development, and that as such, development approval was required.
Section 45 provides for two categories of assessment for assessable development:
“45 Categories of assessment
(1)There are 2 categories of assessment for assessable development, namely code and impact assessment.
(2)A categorising instrument states the category of assessment that must be carried out for the development.
(3)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 for this paragraph.
(4)When carrying out code assessment, section 5(1) does not apply to the assessment manager.
(5)An impact assessment is an assessment that—
(a) must be carried out—
(i)against the assessment benchmarks in a categorising instrument for the development; and
(ii)having regard to any matters prescribed by regulation for this subparagraph; and
(b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
Examples of another relevant matter—
•a planning need
•the current relevance of the assessment benchmarks in the light of changed circumstances
•whether assessment benchmarks or other prescribed matters were based on material errors
Notes—
1See section 275ZI in relation to restrictions on impact assessment for particular applications.
2See section 275ZJ for the matters the chief executive must have regard to when deciding an application involving a State heritage place.
(6)Subsections (7) and (8) apply if an assessment manager is, under subsection (3) or (5), assessing a development application against or having regard to—
(a) a statutory instrument; or
(b) another document applied, adopted or incorporated (with or without changes) in a statutory instrument.
(7)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.
(8)However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to—
(a) if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document; or
(b) another statutory instrument—
(i)that comes into effect after the development application is properly made but before it is decided by the assessment manager; and
(ii)that the assessment manager would have been required to assess, or could have assessed, the development application against, or having regard to, if the instrument had been in effect when the application was properly made.”
Planning regulations
Regulation 16(1) provides:
“For section 43(5)(b) of the Act, a local categorising instrument is prohibited from stating that development stated in schedule 6 is assessable development.”
Part 2 of Schedule 6, provides that a local category instrument is prohibited from stating that a material change of use process for a dwelling house is assessable development if:
“(a)the material change of use is for a residential purpose in a residential zone other than a medium density residential zone or high density residential zone; and
(b)the material change of use does not involve a basement or an underground parking area; and
(c)1 of the following applies –
(i)no relevant overlay applies to the premises;
(ii)only an overlay about bush fire hazards applies to the premises and the premises are less than 2,000m2;
(iii)a relevant overlay applies to the premises and the application of the overlay does not result in the material change of use being categorised as assessable development.”
Building Act
Section 5 defines building work:
“5 What is building work
(1)Building work is –
(a)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or
(b)excavating or filling –
(i) for, or incidental to, the activities mentioned in paragraph (a); or
(ii) that may adversely affect the stability of a building or other structure, whether on the land on which the building or other structure is situated or on adjoining land; or
(c)supporting, whether vertically or laterally, land for activities mentioned in paragraph (a); or
(d)other work regulated under the building assessment provisions.
(2)For subsection (1)(d), work includes a management procedure or other activity relating to a building or structure even though the activity does not involve a structural change to the building or structure.
Examples –
• a management procedure under the fire safety standard relating to a budget accommodation building
• a management procedure under the fire safety standard (RCB) relating to a residential care building”
Section 7 defines building assessment work:
“7 What is building assessment work
Building assessment work is the assessment, under the building assessment provisions, of a building development application for compliance with those provisions.”
Primary decision
The primary judge recorded that the applicant sought a declaration that the “change application” did not require impact assessment because, under the planning scheme, the respondent council could not characterise development as impact assessable merely because of building height.[2] That conclusion was said to follow from a contention that the change sought amounted to “building work” as defined in the Building Act 1975 (the BA) and “building work” is characterised by Regulation as code assessable and any contrary provision in the planning scheme was of no effect, because it was inconsistent with higher order provisions in the Regulations.
[2]Code assessable applications follow a narrower scope of assessment compared to impact assessable applications as per s 45(3)–(5) of the PA.
The primary judge found that if those submissions were 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.
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.”
In reaching these conclusions, the primary judge recorded:
(a)the application for a material change of use was made pursuant to the PA and the respondent’s planning scheme.
(b)there was no dispute that the original application was code assessable.
(c)the original application, under the heading ‘Aspects of development’, prescribed the permission sought as a development permit for a material change of use to establish a single dwelling house; and in, answering the question ‘Does the proposed development application involve any of the following?’, ticked only the box beside ‘Material change of use’, leaving blank the box beside ‘Building work’. Further, a 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” was stated to be not relevant by checking the adjacent box “Not applicable”.
(d)the decision notice specifically recorded that the 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”.
(e)the change application form cited the development permit for a material change of use as the “existing development approval subject to this change application” and was said to involve “building work”, with the relevant part of DA Form 2 concerning building work being provided with the change application. The applicant also indicated, under the heading “Checklist and application declaration”, that building work was associated with the 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.
The primary judge found that what the applicant sought originally was permission for a material change of use, not for approval of building work and that the original approval was given because the proposal could be conditioned to comply with the relevant assessment benchmarks in s 60(2) of the PA. However, the change application form lodged in October 2023, specifically referred to “building work”. Those references, the primary judge found, stood “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”.[3]
[3]Leeward Management Pty Ltd v Sunshine Coast Regional Council [2024] QPEC 31 at [12].
After setting out the legislative framework, the primary judge found that the applicant’s change application was to be decided in accordance with s 82 of the PA, which meant that s 45(6)–(8) of that Act obliged the respondent council to assess the change application against, or having regard to the planning scheme in effect when the change application was properly made. The planning scheme provides that development ‘exceeding the maximum height specified for the site on the applicable Height of Buildings and Structures Overlay Map’ requires impact assessment.[4] As the change application proposed involving a building height that exceeded the 8.5 metre limit, if the respondent’s planning scheme was to apply to that application, the proposed development would be subject to impact assessment.
[4]The planning scheme, Table 5.10.1.
The primary judge recorded that whilst the applicant conceded that must be the effect of the planning scheme, the applicant contended that it was the Planning Regulation 2017 (Qld) (PR) and not the planning scheme which was the categorising instrument and that as a result, the change application could only be subject to code assessment.
The primary judge found that the determination of what was the correct position, required resolution of three questions. First, what was the development approval to which the change application applied? Second, what was the categorising instrument which applied to the change application? Third, what was the category of assessment required by the categorising instrument?
As to the first, the primary judge found that the applicant’s original application was for a material change of use and was not concerned with building work. Accordingly, that was the development approval for which a change application could be made and the applicant’s attempt to change the application, to recast the approval as one concerning building work, was disingenuous and ineffective.
As to the second, once it was found that the only approval which could be the subject of the change application was the approval for a material change of use, the PR had no relevance to the category of assessment required of the change application. It was the planning scheme which was the categorising instrument.
As to the third, the effect of the planning scheme was to require impact assessment of the change application and accordingly, the respondent council was correct to identify the change application as deficient because it wrongly proceeded on the basis that the category of assessment was code assessment.
Consideration
The hearing before the primary judge was conducted by the applicant on the basis that, while the planning scheme characterised the development as impact assessable, that characterisation was inconsistent with the PR, because the BA “prescribes the building height is regulated under the building assessment provisions and is therefore defined as building work and categorised as code-assessable development under the regulation”,[5] and the PR prevailed by reason of s 43(4) of the PA.
[5]AB 694/45.
At the hearing of the appeal, the applicant expressly disavowed reliance on s 43 of the PA.[6] Instead, the applicant submitted that the characterisation of such a material change of use, as impact-assessable development by the planning scheme, on the basis of building work necessarily associated with that change of use, was invalid by reason of ss 8(5) and (6) of the PA.
[6]Transcript of proceedings, 14/40–47.
The respondent submitted that this represented an impermissible change in the applicant’s case. However, a perusal of the record supports a conclusion that ss 8(5) and (6) of the PA, were raised at the primary hearing, although they did not assume a primary focus. Against that background, the applicant’s reliance upon those provisions does not represent an impermissible change to its case.
As invalidity, by reason of ss 8(5) and (6) of the PA, is the sole basis for continued reliance upon the three grounds of appeal, it is appropriate to address that argument collectively.
Central to the applicant’s contention of invalidity, is an assertion that Part 5 of the planning scheme sets assessment benchmarks for assessable development which breach the prohibition in s 8(5) of the PA. Relevantly, it is submitted that the planning scheme operates to require an application to be the subject of impact assessment for building work. The applicant submits that all of the provisions of the planning scheme have to be viewed in the context of being about building work.
Reliance is placed on MP1.2 of the Queensland Development Code (QDC), which applies to new building work for single detached dwellings and its associated buildings and structures on lots 450 metres square and over. Under that code, “building” has the same meaning as in the BA and “building height” is defined as “the vertical distance between the highest point of a building, excluding any antennae, chimney or flues, and the natural ground surface vertically below that point”.
In responding to these submissions, the respondent accepted that the planning scheme is a local planning instrument within the meaning of s 8 of the PA, and that the assessment benchmark for height of buildings and structural overlay is “a provision about building work”. However, the respondent submitted the building work is not “regulated under the building assessment provisions”.
The respondent’s submission is consistent with the proper interpretation of the legislative provisions.
The definition of “building assessment provisions” in s 30(d) of the BA includes “any provisions of a regulation made under this Act relating to building assessment work or accepted building work”. By s 6 of the Building Regulation 2021 (Qld), Design and siting standards for single detached housing, a local government planning scheme may provide for “all or some of performance criteria 4, 5, 7, 8 or 9 under QDC Part 1.1 [and 4, 5, 7 or 8 under QDC Part 1.2] and the acceptable solutions for the performance criteria” and “a qualitative statement for a matter provided for under the performance criteria mentioned in [s 6(b) of the PR], if the [planning scheme] also provides for quantifiable standards for the statements”.
The relevant planning scheme, insofar as it dealt with height of buildings and structures overlay, details maximum height from ground level to the top of a structure erected on that site, for the purposes of determining category of assessment. The planning scheme does not provide any performance criteria for “height” or any acceptable solution or quantifiable standards for height.
This maybe be contrasted with boundaries. Performance criteria is specified for boundaries, when the dwelling house is above certain heights.
Section 5.10.4 of the planning scheme, insofar as it provides the assessment benchmark for height of Buildings and Structures Overlay, is not a provision about building work regulated under the building assessment provisions of the BA.
Conclusion
There was no error in the primary judge’s dismissal of the application for a declaration.
Although there was no error, the appeal was argued on an interpretation of a legislative provision not determined below. As such, there was a question of law warranting a grant of leave to appeal.
No question of law arises from the exercise of the discretion to award costs.
Orders
I would order:
1.Leave to appeal the primary decision be granted.
2.The appeal be dismissed.
3.Leave to appeal the costs decision be refused.
4.The applicant pay the respondent’s costs of the application for leave to appeal.
WILSON J: I agree with Boddice JA.
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