In brief

The case of Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 146 concerned an appeal by Nerinda Pty Ltd (Nerinda) to the Queensland Court of Appeal against a decision of the Planning and Environment Court to allow a submitter appeal and refuse a development application for a development permit to reconfigure a lot, and for preliminary approval for a material change of use for a mixed development in respect of land located at Boundary Road and Panorama Road, Thornlands.

The decision by the Planning and Environment Court in the first instance was Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53 (Lipoma Decision) and concerned a submitter appeal against the Redland City Council's (Council) decision to approve Nerinda's development application. The Planning and Environment Court allowed the appeal and refused the development application. 

In the Court of Appeal, the Appellant argued that the Planning and Environment Court erred in law, in that the Planning and Environment Court:

1. should not have applied significant weight to the draft Redlands City Plan 2015 (Draft Planning Scheme);

2. failed to consider relevant considerations;

3. failed to properly apply the decision rules in SPA; 

4. provided a decision that lacked a rational foundation; and

5. erred by failing to consider an alternative order of partial approval. 

The Court of Appeal held that, by proceeding on the basis that section 495(2) of the Sustainable Planning Act (SPA) or the common law principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 allowed the Planning and Environment Court to apply weight to the Draft Planning Scheme, the Planning and Environment Court erred in law and therefore held that the matter be remitted back to the Planning and Environment Court for a further hearing. 

Background

The Appellant's development application was submitted when the Redlands Planning Scheme 2006 was in force. However, by the time the Council approved the development application, the Draft Planning Scheme had been made publicly available for inspection. 

Planning and Environment Court erred in law by applying weight to the Draft Planning Scheme

Firstly, the Court of Appeal considered the operation of section 495(2)(a) of the SPA, which provides that a development application must be considered against the law applying at the time the development application was made, but that a Court "may give weight to any new laws and policies the court considers appropriate". The Court of Appeal noted that the Draft Planning Scheme was not a new law, merely a draft proposed law and therefore weight could not be applied to it under section 495(2)(a) of SPA.

The Court of Appeal then turned its attention to the decision in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, which established the principle that a Court may give weight to planning decisions that are embedded within a draft planning scheme but do not yet have the force of law (Coty principle). 

However, the Court of Appeal observed that in Lewiac Pty Ltd v Gold Coast City Council [1994] QCA 2; [1996] 2 Qd R 266, the Court of Appeal established that it is possible to give too much weight to the planning considerations within a draft planning scheme. 

The Court of Appeal considered that the Planning and Environment Court had acted on the wrong principle by giving too much weight to the Draft Planning Scheme. The Court of Appeal found that in effect the Draft Planning Scheme "was given a status it does not have under the legislation" and (at [17] and [29]):

"…in circumstances where [the Draft Planning Scheme] replicated the planning scheme provisions in force, …, it is difficult to see why the draft scheme would be of much significance at all".

Court of Appeal agreed with the Appellant that the Planning and Environment Court's role includes addressing deficiencies in the Planning Scheme

The Planning and Environment Court stated that "it is a matter for the council to address perceived deficiencies in its scheme" (at [121] of the Lipoma Decision). However, the Appellant argued in its submissions to the Court of Appeal that the Planning and Environment Court was failing to perform its role under section 326 and section 329 of SPA, which requires the Court to stand in the place of the Council. The Court of Appeal agreed and stated as follows (at [26]):

"Those provisions [sections 326 and 329 of SPA] permit the assessment manager – in this case the Court – to make a decision (approving an application or part of it) which conflicts with a planning scheme. Those provisions therefore permit both the Council, and the Planning and Environment Court standing in its shoes as assessment manager, to address deficiencies in a planning scheme."

In doing so, the Court of Appeal distinguished the case of Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 on the grounds that there was no equivalent to section 495(2) of SPA and that the circumstances of that case were different. 

Court of Appeal considers the application of the SPA decision rules relating to a preliminary approval and determines it is unclear whether the Planning and Environment Court applied the SPA decision rules

The Appellant argued that its development application should not be considered against the parts of the Planning Scheme which it sought to vary via a preliminary approval. The Court of Appeal considered the decision rules of SPA and concluded that the Appellant's argument did not accord with the proper construction of the SPA decision rules. 

However, in considering the Planning and Environment Court's determination of the SPA decision rules, the Court of Appeal found as follows (at [53]):

"On the basis of the exposed reasoning in the [Planning and Environment Court] Decision, I consider that there has been a failure to properly apply the decision rules, because it is not possible to discern, from the Decision, how those rules have been applied".

Further arguments submitted by the Appellant do not find favour with the Court of Appeal

The Appellant further submitted that the Planning and Environment Court decision:

1. failed to consider relevant considerations;

2. lacked a rational foundation possibly due to the 11 month delay between the hearing and the decision publication; and

3. the Court failed to ask itself if it should approve the development application in part.

The Appellant submitted that the Planning and Environment Court failed to take into account relevant considerations. However, the Court of Appeal noted that the Planning and Environment Court did consider the relevant considerations and that an expectation that a different outcome would occur is not a "relevant considerations argument" (at [35]). 

The Court of Appeal determined that any ambiguities in the Planning and Environment Court decision were a consequence of a human proofreading error and did not result from a delay. The Court of Appeal also determined that it was a requirement of the parties to have adverted to the Court the possibility of a part approval and any potential orders, and therefore the Planning and Environment Court did not err in failing to ask if approval in part was appropriate. 

Conclusion

The Court of Appeal held that, by proceeding on the basis that section 495(2) of SPA or the Coty principle allowed the Planning and Environment Court to apply weight to the Draft Planning Scheme, the Planning and Environment Court erred in law, and therefore held that the matter be remitted back to the Planning and Environment Court for a further hearing.

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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