In brief

The case of Wheldon and Armview Pty Ltd v Logan City Council and RG Property Three Pty Ltd as Trustee [2015] QPEC 22 involved an application in the Planning and Environment Court by Mr Wheldon and Armview Pty Ltd, seeking declarations and consequential relief under section 456 of the Sustainable Planning Act 2009 in relation to the validity of a negotiated decision notice given by a delegate of the Logan City Council. The negotiated decision notice related to an extension and refurbishment of an existing shopping centre at Park Ridge. The development application was code assessable under the Logan Planning Scheme 2006.

The issues the court had to consider included whether condition 1.2 of the negotiated decision notice was beyond power and invalid, whether there had been inconsistent findings of fact, whether there had been a failure to take into account relevant considerations, whether there had been findings about which there was no evidence, whether the decision maker had erred in a number of his findings and whether the decision was unreasonable.

The court considered and dismissed each of those issues and consequently dismissed the application.

A proceeding, under section 456 of the Sustainable Planning Act 2009, was analogous to a judicial review proceeding and was limited to reviewing the legality of the decision of a decision maker and did not involve a merits review of the decision

The court, by reference to a number of High Court and the Planning and Environment Court decisions, noted that proceedings under section 456 of the Sustainable Planning Act 2009 were not concerned with the merits of the approval but were similar to judicial review proceedings having regard to the material before the decision maker. That means, it would be limited to reviewing the legality of the decision of the decision maker and, where the decision was legally and factually defensible, the decision should stand.
The court, in considering the relevant decisions, noted the following:

  • Jurisdictional error - This would include a failure to take into account all relevant considerations, taking into account irrelevant considerations and purported exercise of powers. Consideration would need to be given to whether the council, through its delegate, had exceeded its authority or powers in making the decision and how it had affected the decision.
  • Fact finding - There was no reviewable error simply in making a wrong finding of fact. The question was whether, on the available material, it was reasonably open for council's delegate to come to the view in question.
  • Wednesbury unreasonableness - The decision made must be accepted unless it was able to be shown to have been one that no reasonable council could have formed or that it was based on irrelevant considerations, or that it was unjustifiable. Where the decision was justifiable, it should stand irrespective of whether or not others agree with it.

The court dismissed the challenge of condition 1.2 and found that the condition was not beyond power or invalid

Mr Wheldon and Armview challenged condition 1.2 which required the relocation or removal of one of the approved uses, namely the mini-major use, within a specified timeframe. They asserted that the condition was beyond power on two grounds, firstly that it approved a temporary retail development which had not been the subject of the development application and secondly that it offended the principle of finality.
The court found that the council's imposition of a time limit on the mini-major use at the given location was a proper exercise of the power under section 346(1)(a) of the Sustainable Planning Act 2009 which allowed the imposition of a condition which placed a limit on how long a lawful use may continue. The court did not accept that the use could be characterised as a temporary retail development or that the condition lacked finality as the condition did not alter the development in a fundamental way and did not excuse or truncate the need for the developer to comply with approval processes in relation to the relocation or removal of the mini-major use in the future.

The court dismissed the assertion that inconsistent findings of fact had been made and was not satisfied that the council's decision was not unreasonable in the Wednesbury sense

Mr Wheldon and Armview asserted that the council, through its delegate, had made inconsistent findings which were relevant to the exercise of the power to conclude that there was no conflict with the council's planning scheme with respect to integration.

The court considered that the approach taken by Mr Wheldon and Armview was flawed for a number of reasons. Firstly, the findings relied upon were findings in a council officer's precursor report which the court did not accept could be attributed to the council's decision made through its delegate as there was no evidence of the delegate adopting or incorporating the report. This fatal flaw of unsupported attribution was observed by the court in respect of a number other assertions by Mr Wheldon and Armview. Secondly, their assertion relied on findings on the Overall Outcomes when instead it was the consistency of findings on the Specific Outcomes which were relevant to a code assessable development application. Finally, the overall findings were not materially inconsistent when considered in their full context.

The court found that this was a situation where reasonable minds may differ in relation to integration and the court was not satisfied that the council's decision in this respect was unreasonable in the Wednesbury sense.

The court dismissed the assertion that the council had failed to take into account relevant considerations
Mr Wheldon and Armview asserted that the council, through its delegate failed to take into account relevant considerations when determining conflict with the council's planning scheme. The court observed that Mr Wheldon and Armview would only succeed where there had been a failure to take account of a consideration that the decision maker was bound to do so in reaching a decision.

The court was unable to draw any inference, from the council's conduct, that the council had failed to take account of relevant considerations and even if such a failure could have been established, in the circumstances it was considered that it would have had no bearing on the ultimate result.

The court dismissed the assertion that the council's delegate's findings were based on matters about which there were no evidence and dismissed the remaining assertions in respect of a material error or unreasonableness

Mr Wheldon and Armview asserted that the council's delegate made a number of findings about which there was no evidence and had erred in a number of his findings.

The court, by reference to Waratah Coal Pty Ltd v Coordinator-General, Department of State Development, Infrastructure and Planning [2014] QSC 36, observed that to establish the no evidence ground there must be absolutely no evidence and the error relating to the lack of evidence must be a jurisdictional error which would be a basis to invalidate an administrative decision. In the court's view, the matters raised by Mr Wheldon and Armview as lacking evidence were obvious and could be gleaned without the need for strict proof of evidence and that the findings were not unreasonable in the Wednesbury sense.
As to the remaining assertions, the court was not satisfied that Mr Wheldon and Armview had discharged the requisite burden of establishing any material error or unreasonableness in the Wednesbury sense in the council's delegate's findings, particularly in relation to the following:

  • there was no conflict with a desired environmental outcome under the council's planning scheme;
  • the identification of the nature and extent of the conflict with the council's planning scheme; and
  • there were sufficient grounds to overcome conflict with the council's planning scheme.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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