Planning and Environment Court is not persuaded to allow a local government to change its position to grant a preliminary approval with conditions

In brief

The case of Waterman & Ors v Logan City Council & Anor [2018] QPEC 44 concerned an application in pending proceeding to the Planning and Environment Court brought by the Logan City Council (Council) seeking an order to identify further issues in dispute by reference to a document titled "Respondent's Issues in Dispute" (Issues Document) which included a change to the Council's original position.

The case concerned the Council's decision to grant a preliminary approval with conditions in respect of the Appellants' development application for a development permit for a material change of use and reconfiguring a lot. The Appellants' appealed to the Planning and Environment Court against the conditions.

The Council subsequently brought the application in pending proceeding, seeking an order to identify further issues in dispute, as provided for in the Issues Document, which included the allegation that "[a]ll aspects of the development application should be refused" (at [1]) despite the Council's original decision to approve the development application. 

The Appellants contended that the Court should deny the relief sought by the application in pending proceeding for the following reasons:

• the Court does not have jurisdiction to grant the order sought as the further issues identified are outside the Court's jurisdiction; and
• the Court should not exercise its discretion as the Council did not provide an adequate explanation for its change of position and the Appellants would suffer prejudice if the relief was granted.

Ultimately, the Court dismissed the Council's application in pending proceeding on the basis that, although the Court had jurisdiction to make the order, the Court was not persuaded to exercise its discretion to do so. 

Court determined that it did have jurisdiction to make the order sought by the Council

The Court considered a range of provisions within the relevant planning legislation to determine if the Court had jurisdiction to decide the matter. The Court noted that the appeal was by way of hearing under section 43 of the Planning and Environment Court Act 2016 (P&E Court Act). The Court also considered the decision of Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, in which the Court noted at paragraph [54] that there is clear legislative intent within the P&E Court Act that the Court is to exercise an original jurisdiction.

The Court held that, under section 65 and section 66 of the Planning Act 2016 (Planning Act),  the Court had jurisdiction to hear an appeal about a development application to the extent that the appeal relevantly concerned a decision to give a preliminary approval.

The Court also noted that it had jurisdiction to hear an eligible submitter appeal to the extent the appeal is relevantly against the decision to approve the application or a provision of the development approval.

Further, the Court stated that the Court had jurisdiction to confirm, change, or set aside the Council's decision under section 47 of the P&E Court Act.

Lastly, the Court considered rule 20(5) of the Planning and Environment Court Rules 2018, which provides that the Court is permitted to make an order about the conduct of a proceeding, including an order or direction concerning issues in dispute.

The Court therefore concluded that it did have jurisdiction to make the orders sought, as the appeal was within the jurisdiction of the Court as it was an applicant appeal and an eligible submitter appeal against a decision to give the preliminary approval and the relevant conditions.

Court determined not to exercise its discretion to make an order to include the Issues Document as further issues in dispute as the Court was unpersuaded by the Council's arguments

The Court had a discretion to consider whether the Council should have been permitted to change its position and defend the appeal by contending that the development application should have been refused. The Council alleged the following six reasons to justify why the Court should have exercised its discretion in the Council's favour:

1. The issues in dispute were important and the Court would have been in an unenviable position if the Court retained issues in dispute that did not refer to any parts of the relevant planning scheme.

2. The Council's experts would be precluded from complying with the expert's duty to the Court under rule 428(3)(b) and (d) of the Uniform Civil Procedure Rules 1999 (UCPR), as the experts could not confirm if they made all the appropriate enquires or referenced all matters which they deemed significant in the relevant expert reports. 

3. The grounds of refusal are not new as the basis for refusal can be extracted from the preliminary approval conditions.

4. The new grounds of refusal would not cause unjustifiable delay in the proceeding.

5. The Appellants cannot point to any prejudice which would arise as a consequence of the addition of the new issues.

6. The issues should be litigated as it is in the public interest.

The Court observed that the only explanation provided by the Council for the change in position was by way of an affidavit of the solicitor for the Council. The Court held that the contents of the affidavit did not provide an adequate explanation for the Council's change in position as the affidavit did not attach the advice of the external experts and did not disclose whether the relevant Council officer had delegated authority, if the Council officer's view was supported by any relevant Councillors, or if the Council officer's decision was passed by a Council resolution.

Firstly, the Court was not persuaded that the additional issues were important as they did not allege conflict which is material or unacceptable or could not be adequately addressed by additional conditions. Further, in regard to the relevant planning scheme provisions, the Court held that although they were beneficial, they were not necessary, as a party can tender relevant planning scheme provisions as part of the evidence.

Secondly, the Court was not satisfied that the Council's experts would be precluded from complying with their duty to the Court under rule 428(3)(b) and (d) of the UCPR. Additionally, the Court noted that the Council had not put the relevant opinions of the experts before the Court and there was no evidence which suggested that the experts sought to refer to matters which were inadmissible.

The Court noted that, thirdly, the Appellants accepted that the grounds of refusal were not new as they relate to the subject matter of the disputed conditions. The Court observed that the Council did identify three issues which were unrelated to the contested conditions; however the Court noted that those three issues could have been adequately dealt with by way of conditions.

The Court was not satisfied with the Council's fourth argument, as although they intended to raise these grounds at an early stage, they failed to provide an explanation as to why they were not identified before the original decision.

With respect to the Council's fifth argument, the Court was not satisfied that the new grounds of refusal would not cause prejudice to the Appellants or delay the proceeding. The Court noted that the identification of these issues would have increased the length of the proceeding and increased the associated costs.

With respect to the final ground, the Court held that it is not in the public interest for the Council to conduct a collateral attack on its own decision as the purpose of the Planning Act is to establish an efficient, transparent and accountable system of development assessment. Permitting such an attack, in the Court's view, would undermine public confidence in the development assessment process.

Conclusion

The Court was not persuaded by the Council's arguments to exercise its discretion and therefore dismissed the application in pending proceeding.