In brief

The case of Spry v Brisbane City Council & Anor [2017] QPEC 16 involved an appeal against the decision of the Brisbane City Council to approve a development permit for a material change of use for a multiple-dwelling comprising of three units at 72 Gladstone Road, Highgate Hill in Brisbane.

The grounds of the appeal related to the following matters:
  • conditions 35 and 36 in the decision notice lacked finality and certainty and were so unreasonable that no reasonable decision maker would impose them;
  • the Brisbane City Council failed to impose a condition that no connection be made to the private foul water or private pipeline traversing the premises. 
The former issue was settled by the consent of the parties and did not require a determination by the Court. Nonetheless, the Court did remark that it considered this ground of appeal to be 'curious' as it seemed to suggest that the inability to comply with one of two possible options rendered the condition incapable of performance. 

In respect of the latter issue, the Court accepted that the decision notice issued by the Brisbane City Council did not impose a condition in those terms, but went on to remark that the notice of appeal went no further than this and therefore failed to:
  • identify the basis for the imposition of the condition;
  • identify any conflict with the planning scheme;
  • raise any allegation of unacceptable or adverse impacts from the proposed development; or
  • raise the need for such a condition by reference to some planning purpose.
As such the Council found that there was also no allegation that, in the absence of the condition, the proposed development would in some manner be inadequate.

The Applicant nonetheless pursued the issue on the following basis:  
  • In Sansom v Beaudesert Shire Council [2003] QPELR 335, the Planning and Environment Court relevantly stated:
"From the point of view of the perfectionist, it may be said to be otiose to put a condition on an approval which says, effectively, “it is a condition that you obey the law” but it is often seen, does no harm and acts as a reminder. And it does serve the useful purpose of making a breach of the law a breach of the development approval from which different or extra consequences may flow"; and
  • Section 7.6.7.2 of the Brisbane City Council's Infrastructure Design Planning Scheme Policy relevantly states:
"New stormwater connections to existing foul-water lines are not permitted, nor is it acceptable to assume that these lines are redundant.

Development must not damage these lines and any proposed diversion must connect to the existing stormwater system or a lawful point of discharge
."

However, the Court was not convinced either submission was relevant for the following reasons:
  • there was no allegation in the grounds of appeal that the provision of a connection to a foul water or private pipeline traversing the premises would amount to a breach of the law;
  • while the Infrastructure Design Planning Scheme Policy was relevant to the assessment of the development, it served as a guideline only and as such non-compliance with section 7.6.7.2 did not necessarily amount to a conflict with the planning scheme.
The Court was therefore satisfied that there was no identified need to impose the condition. 

In this respect, the Court referred to Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2015] QPELR 49, in which the Planning and Environment Court relevantly stated:
"There is, of course, no requirement for an assessment manager or, on appeal, the court to impose each and every condition which might pass one of the above tests. There is a relatively broad residual discretion as to what lawful conditions to impose on the approval at hand. That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority. 
In the case of the [Sustainable Planning Act], the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application … by reference to the planning scheme.
"
In conclusion the Court made orders in the terms agreed between the parties in respect of conditions 35 and 36 and did not impose the further condition sought by the Applicant in respect of foul water connections. 

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 2019.

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