Queensland Court of Appeal refuses leave to appeal the Planning and Environment Court’s decision reinforcing the use of the Coty principle and the discretion to approve a development application despite inconsistency with a planning instrument

In brief

The case of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 concerned an application by the Brisbane City Council (Council) for leave to appeal to the Queensland Court of Appeal against the decision of the Planning and Environment Court (P&E Court) to allow (subject to conditions) an appeal by YQ Property Pty Ltd (Respondent) against the decision of the Council to refuse a development application for multiple dwellings at Eric Road, Holland Park (Subject Site).

The Court of Appeal considered the following two grounds of appeal:

• That the P&E Court misapplied the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty) by failing to give determinative weight to the draft Amendment Package H.

• That the P&E Court misapplied the Biodiversity Areas Overlay Code (Overlay Code) by failing to find that the development application ought to be refused by reason of the removal of native trees on the Subject Site, an action being inconsistent with the Overlay Code.

The Court of Appeal refused to grant leave and stated the following (at [4]):

"The application confronts the obstacle that the decision of the primary judge involved a reasoned exercise of discretionary decision-making, applying well settled principles. In its quest to avoid that obstacle, the Council ultimately attempted to deny the existence of any real discretion in respect of two aspects of decision-making … [being the application of the Coty principle and the discretion to approve a development application despite inconsistency with a planning instrument]…"

Background to the Council’s application for leave to appeal to the Court of Appeal

The Respondent made an impact assessable development application (Development Application) for a material change of use and building work for multiple dwellings over the Subject Site (Proposed Development). The Subject Site was included in the Low-density residential zone.

The Council decided to refuse the Development Application and the Respondent subsequently appealed the decision to the P&E Court (the relevant judgment is YQ Property Pty Ltd v Brisbane City Council & Ors [2020] QPEC 2).

The P&E Court allowed the appeal (subject to the imposition of lawful conditions), and relevantly noted the following in the written judgment:

• Whilst three ‘significant trees’ would be retained, four ‘significant’ trees would be removed by the Proposed Development.

• Whilst the Council had resolved to make Amendment Package H to amend the Council’s planning scheme to limit multiple dwellings in the Low-density residential zone prior to the Development Application, the Amendment Package H did not come into effect until after the conclusion of the hearing in the P&E Court.

Court of Appeal considers the Coty principle and the weight to be given to a draft planning scheme amendment in the assessment and decision process

The Planning Act 2016 (Planning Act) requires that the P&E Court apply section 45 of the Planning Act as if the P&E Court were the assessment manager for the Development Application. Section 45 (Categories of assessment) of the Planning Act relevantly requires that [underlining added]:

"(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.

…

(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."

The Court of Appeal noted that if Amendment Package H had come into effect at the time of the P&E Court’s decision, the P&E Court could have given the weight the Court considered was appropriate to Amendment Package H under section 45(8) of the Planning Act. However, as Amendment Package H was not yet in effect, the common law Coty principle applied.

The Court of Appeal noted that the Coty principle, as relevantly stated in the Coty judgment, comprises the following two public interest considerations (at 125):

1. First public interest consideration – “avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take”.

2. Second public interest consideration – “arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation”.

The P&E Court had considered the relevant circumstances of the Proposed Development, including the location of numerous multiple dwellings in the vicinity and the impacts of the removal of the native trees, and held that it was not appropriate to give effect to the draft Amendment Package H.

The Council argued that the P&E Court had misapplied the second public interest consideration as the P&E Court ought to have made a judgment that accorded with the draft Amendment Package H. The Court of Appeal disagreed and relied on the decision of Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306; [1996] QCA 226 which stated that “the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances” (at 328).

Court of Appeal considered the Council’s submissions that the P&E Court misapplied the Overlay Code regarding the removal of native trees

The Council also submitted that the P&E Court had misinterpreted Performance Outcome 6 of the Overlay Code, which applied to seven native trees on the Subject Site. Performance Outcome 6 of the Overlay Code relevantly stated as follows:

“Development ensures that ecological features and ecological processes, koala habitat trees, areas of strategic biodiversity value and wetlands within the General ecological significance sub-category area are protected, conserved and restored to ensure the area’s long-term viability.”

The Court of Appeal found no error in the P&E Court’s conclusion that despite the loss of four of the native trees the Proposed Development would actually deliver a net gain in the ecological quality of the Subject Site. The Court of Appeal also found no error in the P&E Court's consideration of the juxtaposition of the relative significance of the non-compliance with the Overlay Code against the significance of the matters in favour of approval.

The Council further submitted that the Overlay Code entitled the native trees to a “blanket protection”. The Court of Appeal did not accept the Council’s submission and stated that “the interplay of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument” (at [62]). The Court of Appeal went on to state that (at [63]):

"However, a case like the present, in which an inconsistency with the Biodiversity Areas Overlay Code was outweighed by the overall ecological benefits of the development, well illustrates the utility of the discretion which the Planning Act reserves to the assessment manager."

Conclusion

The Court of Appeal therefore dismissed the application for leave to appeal the decision of the P&E Court.