Planning and Environment Court of Queensland allows inconsistent conditions in two different development approvals over the same premises

In brief

The case of Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12 concerned the determination of a preliminary point in an appeal to the Planning and Environment Court (Court) of Queensland by Wormell Pty Ltd (Appellant) against the Gold Coast City Council's (Council) decision to approve the Dance Headquarters Pty Ltd's (Co-Respondent) application for a material change of use in relation to premises at 1 Geary Crescent, Molendinar (Premises). The Premises is owned under a two-lot scheme by the Appellant and the Co-Respondent.

The preliminary point under consideration by the Court was whether section 66(2) of the Planning Act 2016 (Planning Act) prohibited the imposition of a condition on the proposed development, being a dance studio (Proposed Dance Studio Development), where that condition was agreed to be inconsistent with a condition on an earlier development approval for a warehouse (Earlier Warehouse Approval).

Ultimately the Court, agreeing with the Co-Respondent and the Council, concluded that the condition could be imposed on the Proposed Development despite the agreed inconsistency.

Inconsistent condition in respect of landscaping plan and revised traffic management plan

Conditions in the Earlier Warehouse Approval required the provision and maintenance of a landscaped garden area of at least three metres in depth adjoining the street frontage of the Premises. However, a proposed condition requiring compliance with a revised traffic management plan in the Proposed Dance Studio Development would require a one-metre-wide concrete pathway to be constructed through the landscaped garden area.

Although the Court in obiter remarked that a footpath may not be mutually exclusive with a landscaped garden area, the Appellant, Council and Co-Respondent agreed that the two conditions were inconsistent.

Planning Act prohibits inconsistent conditions for the development unless certain circumstances are in existence

The prohibition on inconsistent conditions is contained within section 66(2) of the Planning Act, which relevantly states as follows [underlining added]:

"66 Prohibited development conditions
…
(2)       A development condition must not be inconsistent with a development condition of an earlier development approval in effect for the development, unless—

(a)        both conditions are imposed by the same person; and
(b)        the applicant agrees in writing to the later condition applying; and
(c)        if the development application for the later development approval was required to be accompanied by the consent of the owner of the premises—the owner of the premises agrees in writing to the later condition applying."

The Co-Respondent could not obtain owner's consent from the Appellant and therefore the exceptions in section 66(2)(a) to (c) could not be met.

Co-Respondent and Council argued that the prohibition only limited inconsistent conditions between development approvals "for the same development"

The Co-Respondent and the Council relied on the case of Liquorland (Australia) Pty Ltd v Gold Coast City Council & Anor [2002] QCA 248 (Liquorland) which supported the position that the words "for the development" in section 66 of the Planning Act are to be read by reference to the development as a whole, not simply the location of the development.

In Liquorland the Court of Appeal relevantly stated as follows (at [19] to [20] of Liquorland) [underlining added]:

"Mr Lyons QC, for Liquorland, whilst conceding that the phrase ‘for the development’ means ‘for the same development’, sought nevertheless to construe it to mean ‘with respect to the land the subject of the same development’. In my opinion there is no justification for such an artificial construction."

In applying the principle in Liquorland, the Co-Respondent and the Council noted that the Earlier Warehouse Approval and Proposed Dance Studio Development were for separately defined uses, namely a Warehouse use and an Indoor sports and recreation use, and were therefore for different development despite both developments occurring on the Premises.

The Co-Respondent and the Council also referred to the principle that different development approvals may attach to the same premises and in doing so relied on the Court of Appeal's statements in Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175.

Appellant argued that the development approvals both attach to the land

The Court did not accept the Appellant's arguments, which included that the Proposed Dance Studio Development would benefit from the Earlier Warehouse Approval and therefore could not avoid the burdens of the Earlier Warehouse Approval, in particular, the development conditions of that approval.

Conclusion

After hearing the arguments from the Co-Respondent, Council and Appellant in relation to the application of section 66 of the Planning Act, the Court agreed with the arguments of the Co-Respondent and the Council that the conditions of the Earlier Warehouse Approval were not in effect for the Proposed Dance Studio Approval.

The Court therefore held that section 66(2) of the Planning Act did not prohibit the condition requiring compliance with the revised traffic management plan being imposed on the Proposed Dance Studio Development.