The case of Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd  QCA 19
concerned an appeal to the Queensland Court of Appeal from the decision of the Planning and Environment Court in Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council  QPEC 8
in which the primary judge determined to set aside the infrastructure charges notice issued by the Fraser Coast Regional Council for three-bedroom relocatable homes on the basis that Walter Elliott's development was only for two-bedroom relocatable homes.
In allowing the appeal by the council, the majority of the Court concluded that:
- the development approval was for "home sites" and not for two-bedroom dwellings or three-bedroom dwellings
- once the council approved the development application, it was required to give an infrastructure charges notice
- the only avenue for Walter Elliott to appeal the infrastructure charges notice was by way of an appeal under section 478 of the Sustainable Planning Act 2009
- the making of an application for declaratory relief under section 456 by Walter Elliott rather than an appeal under section 478, "…appeared to be an inappropriate attempt to circumvent the limited nature of the statutory appeal process"(at )
- as the proposed development was for the exclusive use of people who are over 50 years of age, the development may contravene sections 7(f), 76 and 77 of the Anti-Discrimination Act 1991
This judgment, with respect to the majority of the Court, raises a number of potential issues, in particular the following:
- That it is now unclear to what extent a development approval is limited by a development application.
- That it is now unclear whether a development approval for aged persons accommodation can be validly given.
The development approval did not expressly or by necessary implication incorporate the example house designs or the planning report which would prescribe the development as being for 2 bedroom or 3 bedroom dwellings
The majority of the Court identified the following two legal principles which would limit the development approved by a development approval:
- A development approval should be construed only by reference to the approval itself together with any documents incorporated, expressly or by necessary implication, into the development approval.
- A development application marks out the boundaries of the development approval being sought and the scope of a development approval cannot be wider than the application to which it relates.
In interpreting the application of these principles to this case, the majority noted that Walter Elliott had identified in its planning report that a maximum of two people were to reside in each dwelling and plans demonstrating example house designs included two bedrooms and a multi-purpose room or a study.
However, the development approval was silent on the number of bedrooms being approved and the example house designs were not approved plans. It appears that the majority may also have been influenced by Walter Elliott's request that the council not include the example house designs as approved plans.
The majority determined that nothing in the development approval or the conditions of approval, either expressly or by necessary implication, incorporated either the example house designs or the planning report into the development approval. On this basis, the approval was for neither two-bedroom nor three-bedroom dwellings but for "home sites".
Given that the development approval did not limit the number of bedrooms for land use purposes, in the majority's view, the council was not prohibited from determining that the dwellings had three bedrooms for infrastructure charging purposes.
The limited scope of appeals in respect of infrastructure charges notices should not be circumvented by allowing declaratory relief
Walter Elliott commenced declaratory proceedings under section 456 of the Sustainable Planning Act 2009
to seek declarations that its development application was for two-bedroom dwellings and that the council had no power to issue an infrastructure charges notice for three-bedroom dwellings.
Before the initial declaratory proceedings were determined by the Planning and Environment Court, the council approved the development application and issued an infrastructure charges notice for three-bedroom dwellings. Walter Elliott did not appeal the development approval or the infrastructure charges notice and instead it amended its application for declarations.
The majority determined that once the council approved the development application, it was required to give an infrastructure charges notice for the development approval. If Walter Elliott had an issue with the infrastructure charges notice, a limited right of appeal exists under section 478 of the Sustainable Planning Act 2009
, which should not be circumvented by declaratory proceedings.
The majority relevantly stated that it "…is clear from the applicable statutory provisions that the legislative intent was to limit any appeals from a local government's determination of an infrastructure charges notice to the grounds specified in s 478(2)" (at ).
In the majority's view in this instance, it was an improper use of the declaratory power and the primary judge had "…impermissibly used the declaratory powers under s 456 to usurp the function of the Council as the planning authority" (at ).
The majority questioned the lawfulness of any development application for aged persons accommodation in Queensland
The majority of the Court also queried whether a proposed development for occupation exclusively for those who were over 50 years old was unlawful as contrary to section 7(f) of the Anti-Discrimination Act 1991
, which prohibits discrimination on the basis of age.
The Court considered that while the Queensland Civil and Administrative Tribunal has the power to exempt a person from the operation of a specified provision of the Anti-Discrimination Act 1991
, in considering QCAT decisions regarding applications for such an exemption "…it cannot be assumed that, were the respondent to apply for an exemption under the Anti-Discrimination Act 1991
, it would be granted" (at ).
While the majority did not reach a concluded view on whether the implementation of the development approval by Walter Elliott would be unlawful as contrary to the Anti-Discrimination Act 1991, this was a factor in its determination to refuse to grant Walter Elliott the declaratory relief sought.
Dissenting judgment concluded that the development application was for 2-bedroom dwellings and that the Anti-Discrimination Act 1991 was not relevant in assessing a development application
In the dissenting judgment, Morrison JA did not agree with the matters concluded by the majority in relation to whether the planning report was 'incorporated' in the development approval and the application of the Anti-Discrimination Act 1991
to a planning decision and relevantly determined as follows:
- The development approval must be taken to incorporate, by necessary implication, a statement in section 7.2 of the planning report that all future dwellings across the development would consist of two bedrooms, in order to resolve an ambiguity in the development approval.
- The development application, properly construed, could not be treated as merely being for "home sites" without reference to the number of bedrooms and was in fact seeking a development approval for two-bedroom dwellings.
- Declaratory proceedings were not inappropriate to determine whether the council acted beyond power in setting an infrastructure charge based on three-bedroom dwellings.
- In assessing a development application requiring code assessment, an assessment manager must not have regard to anything other than a matter stated in section 313 of the Sustainable Planning Act 2009, which would not include a potential subsequent violation of the Anti-Discrimination Act 1991.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.