Riverside Development Pty Ltd v Brisbane City Council - [2022] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Riverside Development Pty Ltd v Brisbane City Council & Ors [2022] QPEC 53

PARTIES:

RIVERSIDE DEVELOPMENT PTY LTD
(ACN 084 611 049)

(applicant)

v

BRISBANE CITY COUNCIL

(first respondent)

AND

DEXUS FUNDS MANAGEMENT LIMITED
(ACN 060 920 783)

(second respondent)

AND

PERPETUAL TRUSTEE COMPANY LIMITED
(ACN 000 001 007)

(third respondent)

FILE NO:

401 of 2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9, 10 and 21 March, 28 & 29 April 2022, with further submissions delivered 6, 12 & 13 May 2022.

JUDGE:

Williamson KC DCJ

ORDER:

The Further Amended Originating Application filed by leave on 9 March 2022 is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the development application approved was impact assessable rather than code assessable – whether the decision to grant the development approval was invalid.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the development application required the consent of the applicant – whether the application was properly made for the purposes of the Planning Act 2016 – whether the decision to grant the development approval was invalid.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – where the assessment process continued after the second respondent made a change to its development application – whether the change was made in response to an information request – whether the decision to grant the development approval was invalid.

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the delegate erred in construing and applying City Plan 2014 – whether the delegate failed to have regard to relevant considerations – whether the decision is unreasonable – whether the decision to grant the development approval is invalid.

LEGISLATION:

Acts Interpretation Act 1954, s 7
Judicial Review Act 1991, s 32
Planning Act 2016, ss 5, 43, 44, 45, 51, 52, 59, 60, 62, 63, 68, 71 and 231
Planning & Environment Court Act 2016, ss 11 and 37

Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 28

CASES:

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor (2017) 222 LGERA 136
Buck v Bavone (1975-76) 135 CLR 110
East Melbourne Group Inc v Minister for Planning & Anor (2008) 23 VR 605
Eschenko v Cummins & Ors [2000] QPELR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QPEC 53
Decision Date: 9 December 2022

CaseChat Overview and Summary

Riverside Development Pty Ltd sought relief in the Queensland Planning and Environment Court to challenge a decision by the Brisbane City Council to grant development approval. The applicant argued that the approval was invalid due to several grounds, including the impact assessability of the development application, the necessity of the applicant’s consent, the procedural correctness of the application, and the delegate’s interpretation and application of City Plan 2014. The court was required to determine whether these issues rendered the decision to grant the development approval invalid.

The legal issues before the court encompassed whether the development application was impact assessable, necessitating a more rigorous environmental impact assessment, rather than code assessable. Additionally, the court had to examine if the applicant's consent was required under the Planning Act 2016 and if the application was correctly made. The court also assessed whether the approval process was valid despite changes made to the development application in response to an information request. Furthermore, the court considered whether the delegate's interpretation of City Plan 2014 was correct and if relevant considerations were overlooked, leading to an unreasonable decision.

In dismissing the application, the court found that the delegate's decision was not invalid on any of the grounds raised by the applicant. The court held that the development application was appropriately categorised as code assessable and not impact assessable. The applicant's consent was not required under the relevant statutory provisions. The procedural changes made to the application did not invalidate the approval process. The delegate's interpretation of City Plan 2014 was deemed correct, and no relevant considerations were overlooked. Consequently, the decision to grant the development approval was not unreasonable.

The court dismissed the further amended originating application filed by the applicant on 9 March 2022, affirming the validity of the Brisbane City Council's decision to grant the development approval.

Orders

Orders of the court

The Further Amended Originating Application filed by leave on 9 March 2022 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Riverside Development Pty Ltd v Brisbane City Council & Ors [2022] QPEC 53
PARTIES:	RIVERSIDE DEVELOPMENT PTY LTD (ACN 084 611 049) (applicant) v BRISBANE CITY COUNCIL (first respondent) AND DEXUS FUNDS MANAGEMENT LIMITED (ACN 060 920 783) (second respondent) AND PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007) (third respondent)
FILE NO:	401 of 2021
DIVISION:	Planning and Environment Court
PROCEEDING:	Originating application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	9 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	9, 10 and 21 March, 28 & 29 April 2022, with further submissions delivered 6, 12 & 13 May 2022.
JUDGE:	Williamson KC DCJ
ORDER:	The Further Amended Originating Application filed by leave on 9 March 2022 is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the development application approved was impact assessable rather than code assessable – whether the decision to grant the development approval was invalid. PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the development application required the consent of the applicant – whether the application was properly made for the purposes of the Planning Act 2016 – whether the decision to grant the development approval was invalid. PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – where the assessment process continued after the second respondent made a change to its development application – whether the change was made in response to an information request – whether the decision to grant the development approval was invalid. PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks declaratory relief about a delegate’s decision to give a development approval – whether the delegate erred in construing and applying City Plan 2014 – whether the delegate failed to have regard to relevant considerations – whether the decision is unreasonable – whether the decision to grant the development approval is invalid.
LEGISLATION:	Acts Interpretation Act 1954, s 7 Judicial Review Act 1991, s 32 Planning Act 2016, ss 5, 43, 44, 45, 51, 52, 59, 60, 62, 63, 68, 71 and 231 Planning & Environment Court Act 2016, ss 11 and 37 Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 28
CASES:	Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor (2017) 222 LGERA 136 Buck v Bavone (1975-76) 135 CLR 110 East Melbourne Group Inc v Minister for Planning & Anor (2008) 23 VR 605 Eschenko v Cummins & Ors [2000] QPELR…