Queensland Court of Appeal clarifies code assessment under the Planning Act

In brief

The case of Brisbane City Council v Klinkert [2019] QCA 40 concerned an appeal to the Queensland Court of Appeal against a decision of the Planning and Environment Court to allow an appeal against a decision of the Brisbane City Council (Council) to refuse a development application for approval of building work, namely the demolition of a house on land at Archer Street, Toowong. 

The issue was the interpretation of provisions under the Planning Act 2016 (Planning Act) relating to a development application requiring code assessment. The Court of Appeal held that where a development application requiring code assessment is compliant with the relevant assessment benchmarks, an assessment manager must decide to approve a development application in accordance with the Planning Act.

Background

The Respondent was the owner of the land, which had been improved with a dwelling house constructed prior to 1947. The house was described in the proceedings as a "high quality piece of architecture" in the English Tudor revival style forming "part of a cohesive group of five contiguous inter-War houses” situated at the south-eastern end of the street.

In June 2017, the Respondent made to the Council a development application requiring code assessment for a development approval for building works to authorise the demolition of the house. The land was within the Traditional Building Character (Demolition) overlay (Demolition code) and required code assessment under the Brisbane City Plan 2014 (City Plan). 

The Council resolved in September 2015 to amend the City Plan, including the Demolition code and the relevant Planning scheme policy. Public notification of the amendments occurred between 17 October 2016 and 25 November 2016. The amendments came into effect on 1 December 2017 (see [12]), being after the respondent lodged the development application on 30 June 2017 and the Council refused the development application on 15 August 2017. The Respondent commenced an appeal to the Planning and Environment Court against the decision of the Council (see Klinkert v Brisbane City Council [2018] QPEC 030 [1]-[3]).

The Planning and Environment Court relevantly held as follows: 

• the proposed development had complied with the assessment benchmarks that were in force at the date the development application was properly made; and

• section 60(2)(a) of the Planning Act was engaged and required that the assessment manager, after carrying out the assessment, decide to approve the application to the extent the development complies with all of the assessment benchmarks.

The Council sought leave to appeal against the decision of the Planning and Environment Court.

Competing interpretations of the code assessment provisions

The Council argued that section 60(2)(a) of the Planning Act supported the conclusion that the assessment benchmarks should include consideration of both the assessment benchmarks under the Demolition code (prior to amendment) and, where the assessment manager considers it appropriate to give weight to the amended Demolition code, the assessment benchmarks under the amended Demolition code. 

The Council also argued that the Planning and Environment Court had made an error in law in finding that "the weight to be given to the amended code was irrelevant to the decision maker's enquiry" in determining whether section 60(2)(a) of the Planning Act had been engaged or not (see [23]). 

Conversely, the Respondent contended that on the basis of its plain and ordinary meaning, section 60(2)(a) of the Planning Act was "expressed in mandatory terms and determinative weight must be given to its language" (see [25]).

The appeal turned on a perceived tension in the operation of the Planning Act, in particular sections 43, 45 and 60. Under the Planning Act, a categorising instrument is a regulation or a local categorising instrument which sets out the assessment benchmarks that an assessment manager must assess assessable development against (see section 43(1)(c)). The relevant local categorising instrument was the City Plan and under section 43(5)(c) of the Planning Act, a local planning instrument may not, in its effect, be inconsistent with the effect of a specified assessment benchmark in the Planning Regulation 2017.

The Court of Appeal determined that, when carrying out code assessment under section 45 of the Planning Act, the assessment manager "must be carried out only against the assessment benchmarks in a categorising instrument for the development and having regard to any matter prescribed by regulation [in that sub-section]". Section 45(7) of the Planning Act makes qualifications to situations in which an assessment manager may “give weight” to a document which is to be amended or replaced. However, the Court determined that section 45(7) "is not a vehicle for displacement or modification by the assessment manager of the statutory instrument or other document as in effect when the application was properly made" (at [6]).

The Court of Appeal held that section 60 of the Planning Act provided that, where a development application is properly made, the assessment manager "must decide" to approve the development application where the development application is compliant with the relevant assessment benchmarks; and "may decide" to approve the development application even where there is non-compliance with those benchmarks. Relevantly, the obligation to do so only arises on the assessment manager "after carrying out the assessment".

Order

The Court of Appeal granted leave to appeal, however, held that the Planning and Environment Court had correctly concluded as to the operation of section 60(2)(a) of the Planning Act, and therefore dismissed the appeal. The Court of Appeal ordered that the Council pay the Respondent's costs of the application for leave and the appeal on the standard basis.