WEEK SEVEN
Assessing development applications
Aims
Following your study of how development applications are processed in week 6, this week you will look at how they are assessed. You will look at the factors local governments (and the courts on appeal) must take into account when deciding whether or not to approve assessable development. You will also study some recent case law to gain an understanding of how these principles are applied in practice. You may be asked to decide hypothetical development applications based on the applicable legal principles.
This week’s study guide is divided into two topics:
1. SPA assessment criteria and decision rules
2. Judicial contributions to development assessment
Objectives
By the end of this week, you should be able to:
Identify the criteria that must be taken into account when development applications are assessed under IDAS
Discuss, with reference to some recent case law, how the PEC applies the relevant decision-making criteria in practice
Decide hypothetical development applications in accordance with the SPA
Required reading (for the whole week)
Note: For a good understanding of how the courts assess development applications you are strongly advised to select and read at least two cases from the recommended further reading list for topic 2 in addition to the reading listed below.
SPA, Ch 6, Pt 5 (ss.313-314; 316-317; 324-326) available at http://www.legislation.qld.gov.au/
England, P, Sustainable Planning in Queensland, 2011, Federation Press, chapter 5 (pp.170-186)
DIP, Sufficient grounds for decisions that conflict with a relevant instrument, Statutory Guideline 05/09, available at
http://dlgp.qld.gov.au/guidelines/statutory-guidelines-for-planning.html
Arksmead Pty Ltd v Gold Coast City Council [1999] QPELR 322 esp. paras [329]-[335]
Australian Capital Holdings Pty Ltd v Mackay City Council no.2 [2008] QCA 101 espparas [41]-[72]
1. SPA assessment criteria and decision rules
SPA assessment criteria
In the SPA development may require self-assessment, compliance assessment, code or/ and impact assessment (s.231).
Self-assessable developmentdoes not require a development permit but must still comply with any applicable codes (s.236).
Development or work requiring compliance assessment will be assessed for compliance against any applicable regulation, planning instrument, approval or compliance permit (s 393). Conditions in a development approval may only require compliance assessment for certain types of documents or works as prescribed under s 398(3).
For applications requiring code assessment, the assessment manager must assess the application, to the extent they are applicable, against (s.313(2)):
• State planning regulatory provisions
• Any applicable regional plan to the extent it is not identified in the planning scheme as being appropriately reflected therein
• Applicable codes (other than concurrence agency codes the assessment manager does not apply)
• State planning policies to the extent they are not identified as being appropriately reflected either in an applicable regional plan or the planning scheme
• Any applicable codes in a temporary local planning instrument, a preliminary approval to which s 242 applies or a planning scheme
• The priority infrastructure plan or the adopted infrastructure charges resolution if the assessment manager is an infrastructure provider
In addition to the above, the assessment manager must have regard to (s 313(3)):
• The common material
• Any development approval for, and any lawful use of, premises the subject of the application or adjacent premises
• Any referral agency’s response for the application
• The purposes of any instrument containing an applicable code
The assessment manager must not assess the application against, or with regard to, any other matters than those stated in s 313 (s 313(5)).
For applications requiring impact assessment, the assessment manager must assess applications to the extent they are applicable, against (s 314(2)):
• State planning regulatory provisions;
• Any applicable regional plan to the extent it is not identified in the planning scheme as being appropriately reflected therein;
• If the assessment manager is not a local government, the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application;
• State planning policies to the extent they are not identified as being appropriately reflected either in an applicable regional plan or the planning scheme;
• Any applicable temporary local planning instrument, and preliminary approval to which s 242 applies;
• the planning scheme;
• If the development is not in a planning scheme area—any planning scheme or temporary local planning instrument for a planning scheme area that may be materially affected by the development;
• If the assessment manager is an infrastructure provider, the priority infrastructure plan or an adopted infrastructure charges resolution.
In addition to the above, the assessment manager must have regard to (s 314(3)):
• The common material;
• Any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
• Any referral agency’s response for the application.
In assessing an application, the assessment manager may give the weight it is satisfied is appropriate to a planning instrument, code, law or policy that came into effect after the application was made but before the day the decision stage for the application started or was restarted (s 317). Separate assessment rules apply for code and impact assessment under superseded planning schemes (s 315) and for s 242 preliminary approvals that affect a local planning instrument (s 316).
In some circumstances, SARA will be the assessment manager for an application (not just the referral agency). When acting as an assessment manager, SARA is not bound by the rules stated in ss.313-314 (ss.255A&B).
Assessment managers must approve, approve with conditions or refuse all or part of an application (s 324 (1)). They may issue a preliminary approval instead of a development approval (s 324(4)) and they must include any conditions or requirements that were included in a SARA response in the exact form given by it (s 325).
SPA decision rules
In addition to the above assessment criteria, the SPA prescribes decision ruleswhich help deal with inconsistencies within or between planning instruments etc. These rules are:
1. When deciding an application, the assessment manager must ensure its decision is not inconsistent with a State planning regulatory provision (s 324(3)); and
2. Also, the decision must not conflict with any other relevant instrument (as stated in ss 313-314) unless:
• the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
• there are sufficient groundsto justify the decision, despite the conflict; or
• the conflict arises because of a conflict between:
o 2 or more relevant instruments of the same type and the decision best achieves the purposes of the instruments; or
o 2 or more aspects of any 1 relevant instrument and the decision best achieves the purposes of the instrument (s.326).
The legislation defines grounds as “matters of public interest” (Schedule 3 Dictionary). Read Statutory Guideline 05/09 (available on the course web site) which gives some examples of what may constitute relevant “grounds” for the purpose of s.326.
2. Judicial contributions to development assessment
General principles
Read England, at pp. 170-177. As noted in week 3, the courts generally prefer to read planning schemes as a whole; broadly not pedantically and with a sensible, practical approach (Luke v Maroochy Shire Council (2003) QPELR 447) – but this liberal approach to interpretation does not allow the judiciary to circumvent the clear terms of a planning scheme. Read Australian Capital Holdings Pty Ltd v Mackay City Council no.2 [2008] QCA 157esp paras [41]-[70] for one example of how these issues may play out in the courts. For contrasting examples of the court’s approach in hard cases (prior to the SPA), see further, England, “Flexibility or Restraint: Interpreting Performance Based Planning Schemes”(2006) Local Government Law Journal 209 and more recently, the discussion in Woodman McDonald Hardware Pty Ltd v Mackay Regional Council [2013] QPEC 21 esp. pp.12-21; 25-30; 44-45 (conclusions) (that is, paras [49]-[98]; [125]-[140];[206]-[208]).
The SPA, section 326, endorses the court’s preference for a purposive interpretation in hard cases. Two good examples of the court’s purposive approach are: Luke v Maroochy Shire Council &Watpac Developments [2003] QPEC 005; and Bundaberg City Council v Burnett Shire Council and Ors [2004] QPEC 004. For a recent statement of the relevant law, see, Lockyer Valley Regional Council v Westlink Pty Ltd &Ors[2011] QCA 358, esp. pp.7-17.
For guidance on the interpretation of planning scheme codes for code assessment purposes, see Purcell Family v Gold Coast City Council [2004] QPEC 009. This case demonstrates the weight to be attached to code purposes, performance criteria and acceptable solutions. Does this approach offer the right amount of flexibility and discretion? See further, K Page Main Beach Pty Ltd v Gold Cost City Council and Ors [2011] QPEC 001; Central Equity Ltd v Gold Coast City Council [2007] QPEC 006 and Westfield Management Ltd v BCC [2003] QPEC 010.
The Test of “Sufficient Grounds”
Read England at pp. 177-186 and Arksmead v GCCC [1999] QPELR 322. Decisions on impact assessment must not conflict with the applicable planning instruments unless there are sufficient grounds to justify the decision (s.326). The SPA defines grounds as matters of public interest and states the term does not include the personal circumstances of an applicant, owner or interested party (schedule 3). Read Statutory Guideline 05/09 (Sufficient grounds for decisions that conflict with a relevant instrument) and summarize the key grounds identified therein. This guideline is said to be based on principles developed by the courts under the IPA.
In Weightman v Gold Coast City Council [2002] QCA 234, the Court of Appeal ruled on how to apply the test of “sufficient grounds” to particular cases. Decision-makers are required to:
1. Examine the nature and extent of the conflict.
2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict .[14]
In Kentbrook Pty Ltd v Gold Coast City Council [2003] QPEC 020, McLaughlan QC stated:
There is no definition of the expression “planning grounds” but some assistance with respect to its meaning can be gathered from the definition of “town planning” which is defined to include all matters necessary or expedient for securing the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conservation or commercial advancement of an area or a part of an area. [31]
Is this definition consistent with the type of grounds identified in the statutory guideline? Do you prefer a narrow or wide interpretation of the “sufficient grounds” exception? Why? The decision in Australian Capital Holdings Pty Ltd v Mackay City Council no.2 [2008] QCA 157 demonstrates how the courts apply the sufficient grounds test.
For a good understanding of how the courts assess development applications you are strongly advised to select and read at least two cases from the recommended further reading list. Cases you may find particularly interesting are followed by **.
Should PEC judges be re-deciding planning cases on their merits? Revise your notes from week 1.
Do PEC judges take a different view of where the balance between public and private interests should be drawn to that of planners and local councils?
Have judges been giving more or less weight to planning documents than you (or a planner) would like to see?
Will the courts have to give more weight to relevant planning instruments in the future?
Recommended further reading
England, P, “Flexibility or Restraint? Interpreting Queensland’s Performance Based Planning Schemes” (2006) 11 Local Government Law Journal 209
Stein, L, Principles of Planning Law, OUP,2008, chapters 5 & 6
Galpin,D, “Planning Principles: Policy-Making by the Land and Environment Court (NSW)” (2005) 11 Local Government Law Journal 94
Webb, T, “Grounds – an Analysis of the concept and Addressing Planning Scheme Conflict”(2011-2012) Queensland Environment Practice Reporter 78(17)201-208
Wood, C, “What constitutes ‘sufficient grounds’ to justify permitting conflict under SPA?” (2012/13) Queensland Environment Practice Reporter 18(82) 88-92
Vyonatas Pty Ltd v BCC [2001] QCA 24
Weightman v Gold Coast City Council [2002] QCA 234
Grosser v Council of the City of the Gold Cost [2001] QCA 423**
Woolworths Ltd v Maryborough City Council [2005] QCA 262
Central Equity Ltd v Gold Coast City Council [2007] QPEC 006 (codes)
Stappen Pty Ltd v BCC [2005] QPEC 003
Edwards &Anor v Gold Coast City Council &Anor [2004] QPEC 061 (impact assessment) **
Westfield Management Ltd v Pine Rivers Shire Council (no.1) [2004] QPELR
Bundaberg City Council v Burnett Shire Council and Ors[2004] QPEC004
Kotku Education and Welfare Society Inc v Brisbane City Council &Ors[2004] QPEC 068 **
Luke v Maroochy Shire Council &Watpac Developments [2003] QPEC 005**
Tod v BCC [2003] QPEC 055**
Kentbrook Pty Ltd v Gold Coast City Council [2003] QPEC 020
Westfield Management Ltd v BCC [2003] QPEC 010 (code assessment)
Purcell Family v Gold Coast City Council [2004] QPEC 009 (code assessment)
Stariha v Redland Shire Council &Anor [2002] QPEC 039 **
Chesol Pty Ltd v Logan City Council [2007] QPEC 001**
Macadam v Moreton Bay Regional Council and Anor[2012] QPEC 38(residential subdivision of agricultural land within the Urban Footprint)
Metroplex v Brisbane City Council &Ors[2009] QPEC 110
Bird v Logan City Council and Ors[2011] QPEC 145 (MCU application; shopping centre extension at Jimbooba; conflict with SEQRP)
Moncrieff v Townsville City Council and Anor(no.2) [2011] QPEC 100* (MCU rural to park residential zone outside the Urban Growth Boundary)
Baskerville and Ors v Brisbane City Council and Anor[2010] QPEC 143
Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council &Ors (no 2) 2010 QPEC 140 (MCU residential subdivision)
Bushland Grove Pty Ltd Trading as Mount Low Developments v Townsville City Council and Anor[2011] QPEC 84 (successful submitter appeal; shopping complex; meaning of planning need)
Newman and Ors v BCC and Ors[2011] QPEC 87
K Page Main Beach Pty Ltd v Gold Cost City Council and Ors[2011]QPEC 001
Lewiac P/L v Gold Coast City Council &Anor[2011] QPEC 23** esp. paras [40]-[50] (planning strategy); [166]-[172] (need); [69] (amenity) and [116-117] (conclusions)
Lockyer Valley Regional Council v Westlink Pty Ltd &Ors[2011] QCA 358, esp. pp.7-17
Holcim (Australia) Pty Ltd v Brisbane City Council and Ors[2012] QPEC 32 (declaratory proceedings /meaning and significance of amenity)
Woodman McDonald Hardware Pty Ltd v Mackay Regional Council [2013] QPEC 21 esp. pp.12-21; 25-30; 44-45 (conclusions) (that is, paras [49]-[98]; [125]-[140];[206]-[208])
Questions for Discussion
Question One
“Amenity, need and the weight of public opinion are all thinly veiled planning “grounds” that unjustifiably allow the courts to impose their own view on whether or not controversial development applications should be approved.” Discuss.
Question Two
Look back at the Lovely Chooks Scenario in the week 6 study guide (question two) and assume the following additional facts:
• The Lovely Chooks farm is situated within but on the edge of the Urban Footprint.
• Three years ago, Council approved a residential subdivision for multiple dwellings on land partly adjacent to the farm (and close to a main road). That approval is now being acted upon.
• Neighbours have uncovered ‘conclusive’ evidence the existing farm is contributing to pollution in the near-by water course. Unfortunately that evidence was not available when the DERM (acting as referral agency) recommended a conditional approval for the application.
• The land is currently zoned Rural-Residential in the local planning scheme but, as anticipated in the current planning scheme, that designation is currently under review because of “the pressing need to increase the supply of land for housing south of the City”.
Acting as the local council for this application, decide this application. Give reasons for your decision.
Would your answer be any different if the land was zoned “Future Urban Development”?
NB. See further, Macadam v Moreton Bay Regional Council and Anor[2012] QPEC 38(residential subdivision of agricultural land within the Urban Footprint)
