In brief

The case of Klinkert v Brisbane City Council [2018] QPEC 30 involved an appeal to the Planning and Environment Court by the Appellant against the decision of the Brisbane City Council (Council) to refuse the Appellant's code assessable development application, for a development approval for building works to authorise the demolition of the pre-1947 dwelling house situated on the Appellant's land in Toowong.

The Appellant argued that the proposed development complied with the relevant assessment benchmarks in force at the time the application was properly made, including the Traditional building character (demolition) overlay code (Demolition code), and that section 60(2)(a) of the Planning Act 2016 (Planning Act) was engaged so that the development application must be approved.

The Appellant also argued in the alternative that if section 60(2)(a) of the Planning Act was not engaged, the Court should exercise its discretion under section 60(2)(b) to approve the development application, by giving little or no weight to the amendments made to the City Plan 2014 (City Plan) and the Traditional building character planning scheme policy (PSP) in December 2017. 

In considering the issues, the Court determined as follows:

(a) the proposed development complied with the assessment benchmarks in force at the date the development application was properly made (including the Demolition code);

(b) section 60(2)(a) of the Planning Act was engaged and required the development application to be approved; 

(c) it was not necessary for the Court to exercise its discretion under section 60(2)(b) of the Planning Act because section 60(2)(a) of the Planning Act was engaged; and

(d) if section 60(2)(a) of the Planning Act was not engaged, the Court would have dismissed the appeal because it was not persuaded that the amendments to the City Plan and the PSP should be given little or no weight. 

The Court determined to allow the appeal, and ordered that the Council deliver a draft suite of conditions to the Appellant and that the appeal be listed for further review.

Compliance with Demolition code

The Sustainable Planning Act 2009 (SPA) was in force when the development application was made.

Under the SPA, the development application triggered code assessment under the City Plan and the delegate had to assess and decide the development application in accordance with the relevant codes in the City Plan, namely the Demolition code. The City Plan, including the Demolition code, was amended on 1 December 2017.

The Council submitted that the proposed development did not comply with the Demolition code at the date the development application was properly made.

Central to the issue of whether the proposed development complied with the Demolition code in force at the time the application was properly made, was whether the proposed development involved a building which represents "traditional building character".

The Court looked to the PSP for guidance for the definition of "traditional building character", and determined that the dwelling house was not of "traditional building character".

Accordingly, the Court determined that the proposed development complied with the assessment benchmarks in force at the date the development application was properly made, including the Demolition code.

Application of section 60(2)(a) Planning Act

The Court then had to consider whether section 60(2)(a) of the Planning Act was engaged. 

Section 60(2)(a) of the Planning Act relevantly provides that:

"(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

(a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and".


The Appellant argued that section 60(2)(a) of the Planning Act was engaged and the development application must be approved. 

The Respondent argued that the section was not engaged for the following reasons:

(a) the section required the Appellant to demonstrate that the proposed development complied with all assessment benchmarks (including those in force at the date of the development application and those that came into force on and from 1 December 2017); and

(b) the Appellant cannot establish compliance with the benchmarks in force after 1 December 2017. 

The Court considered the definitions of "code assessment" and "carrying out" contained in the Planning Act, and was satisfied that these provisions did not require the development application to be assessed against the amended provisions of the PSP and City Plan.

The Court also considered section 45(7) of the Planning Act in order to determine the relevance of the amended PSP and City Plan in its decision. The Court determined that section 45(7) relates to the weight to be given to the amended statutory instrument and does not reference the notion of "carrying out an assessment". 

The Court found that section 60(2)(a) of the Planning Act mandates that the assessment manager must decide to approve an application to the extent the relevant development complies with all of the assessment benchmarks, and does not require the assessment manager to make findings about the weight to be given to the amended PSP and City Plan. 

Accordingly, the Court held that section 60(2)(a) of the Planning Act was engaged and the development application must be approved. 

Weight to be given to amendments to City Plan and PSP

It was not necessary for the Court to exercise its discretion under section 60(2)(b) of the Planning Act to approve the development application because the Court found that section 60(2)(a) of the Planning Act was engaged.

The Court then considered what weight should be given to the amendments made to the City Plan and the PSP on and from 1 December 2017, if section 60(2)(a) of the Planning Act was not engaged, and whether it would have exercised its discretion under section 60(2)(b) in favour of the Appellant. 

Section 60(2)(b) of the Planning Act confers a discretion to approve a development application where a non-compliance with an assessment benchmark is established. 

The Court was satisfied that the changes to the PSP have resulted in the dwelling house being regarded as having a traditional building character, and would therefore conflict with the Demolition Code in force on and from 1 December 2017. The Appellant also conceded this point. 

The Appellant argued that the amendments should be given no weight were based on the following:

(a) the proposed development complied with the assessment benchmarks in force at the time the development application was made, and:

(i) (but for the amendments), section 60(2)(a) of the Planning Act mandates that the development application must be approved; and

(ii) the Council delegate's decision was incorrect; and 

(b) it would be unfair to the Appellant.

The Court accepted that the proposed development complied with the assessment benchmarks in force at the time the development application was made, but noted that it was only one of a number of considerations in determining the weight to be given to the amendments. 

The Court rejected the submission that the Council delegate's decision was wrong, because the decision making rules under SPA permitted the delegate to refuse the application. The Court noted that section 60(2) of the Planning Act did not apply to the delegate at the time the decision was made.

The Court acknowledged that fairness has a role to play in determining the weight to be given to the amended documents, however, it varied depending on the circumstances of the case and was only one of a number of considerations which the Court had to have regard to.

The Court was not persuaded that the amendments should be given little or no weight, because "the amendments represent deliberate contemporary planning that is consistent with a long held planning strategy of the Respondent" (see [137]). The Court went further to state that if the circumstances allowed, it would have given the amendments determinative weight and dismissed the appeal for the following reasons:

(a) no conditions of approval could be imposed for the proposed development to comply with the amended City Plan;

(b) "the demolition of the dwelling house would represent a substantial loss of traditional building character in circumstances where the house forms part of an exceptional setting of traditional houses." (see [140]), which the Court considered to be an unsatisfactory planning outcome; 

(c) the amendments to the City Plan and PSP had been advertised before the development application had been properly made;

(d) the amendments form part of a deliberate planning decision;

(e) it would be contrary to the Council's deliberate planning policy (to retain buildings of traditional building character), and could impact the adjoining land; and

(f) the Appellant has other rights of recourse under the Planning Act.

Order

The Court determined that the Appellant had discharged the onus and allowed the appeal. The Court ordered that the Council deliver a draft suite of conditions to the Appellant and that the appeal be listed for review for the purpose of either making final orders or making directions to facilitate the resolution of any dispute between the parties with respect to the suite of conditions of approval.

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.​

Related Articles