Court finds that development is not "consistent " with a prior approval and is prohibited

In brief

The case of Brennan v Brisbane City Council & Anor [2020] QPEC 39 concerned an originating application to the Planning and Environment Court (Court) seeking a declaration that a development application (Development Application) made to the Brisbane City Council (Council) for a development permit, for reconfiguring a lot into three lots with a cottage to be constructed on each lot and the creation of an access easement (Proposed Development), was a properly made development application under the Planning Act 2016 (Planning Act).
 
The issue for the Court was whether the Proposed Development was contrary to the provisions of the South East Queensland Regional Plan 2017 (SEQ Plan) in respect of the Rural Landscape and Regional Production Area and was prohibited development within the meaning of section 44 of the Planning Act and section 23 of the Planning Regulation 2017 (Planning Regulation). 
 
The applicant submitted that the Proposed Development was "consistent" with a prior development approval granted by the Council in 2001 (Prior Approval) under the repealed Integrated Planning Act 1997 (IPA), and was therefore an exempt subdivision as defined in Schedule 24 of the Planning Regulation and not prohibited development.
 
The Court, interpreted the word "consistent" as requiring more than simply existing in "harmony" with, and held that the Proposed Development was not consistent with the Prior Approval as the Proposed Development was not contemplated by the Prior Approval and therefore did not meet the definition of exempt subdivision.
 
The Court held that the Proposed Development was therefore prohibited development and dismissed the application.

Background

The Prior Approval was for a material change of use for short-term accommodation (two eco‑tourism cottages) and had been acted upon by the Applicant by the time of the making of the Development Application.

The Development Application, if approved, would permit the subdivision of the subject lot into three lots allowing for the improvement of each of the two new lots with an eco-tourism cottage.

The Council did not issue a confirmation notice under section 51(4) of the Planning Act accepting the Development Application because it had formed the view that the Proposed Development was prohibited development under section 44(2) of the Planning Act.

Whether the Proposed Development was prohibited development or not was the critical issue in the proceeding.

Statutory framework 

Section 44 of the Planning Act states that prohibited development is "development for which a development application may not be made" and that development may be categorised by a categorising instrument. The categorising instrument relevant to the proceeding was the Planning Regulation.

As the subject land was within the Rural Landscape and Regional Production Area of the SEQ Plan, section 23(1) of the Planning Regulation was relevant, which relevantly states that "reconfiguring a lot is prohibited development to the extent the lot is in the SEQ regional landscape and rural production area, if the reconfiguration - (a) is a subdivision; and (b) is assessable development…".

It was uncontroversial that the Proposed Development was a subdivision that was assessable development under the Planning Act.

Section 23(2) of the Planning Regulation states that section 23(1) does not apply if the reconfiguration is an "exempt subdivision".

Exempt subdivision is defined in Schedule 24 of the Planning Regulation, which lists development in items (a) to (f) that are an exempt subdivision. Item (e) was relevant to the proceeding, and relevantly states that an exempt subdivision means a subdivision that "is consistent with a material change of use approved under a development approval that applies to the lot being subdivided…".

Parties' positions 

The applicant submitted that the Proposed Development was “consistent” with the Prior Approval and was therefore exempt subdivision as defined in the Planning Regulation, which was not, as stated in section 23(2) of the Planning Regulation, prohibited development. 
 
The respondents submitted the converse, urging the Court not to find for a liberal construction of the phrase “consistent”. 

Liberal construction is inappropriate where it would lead to an improbable result 

In the context of the Planning Act, and relying on the statutory interpretation principles stated in section 14A of the Acts Interpretation Act 1954 (Qld) and by the High Court in R v A2 [2019] HCA 35 [at 32], the Court found it appropriate to find against a construction of the term "consistent" which reflected its ordinary meaning of "agreement, harmony, or compatibility".

The Court therefore held that what was required in the circumstances was evidence that the Prior Approval had contemplated a subdivision of the subject land. However, the Prior Approval had only contemplated a short‑term accommodation use on one lot.

The Court held that the Proposed Development was not consistent with the Prior Approval and therefore did not fall within the meaning of exempt subdivision under the Planning Regulation, and was prohibited development under section 23(1) of the Planning Regulation.

Conclusion 

The Court dismissed the originating application seeking a declaration that the Development Application was a properly made development application under the Planning Act because the Proposed Development was prohibited development for which a development application may not be made.