The Court ultimately found that the Brisbane City Council (Council) was the responsible entity for the change application and declined to exercise its discretion to hear the application.
The Applicant questioned to whom the change application should be made
The Applicant initially applied to the Council to change a development approval. The Council opined that the Court was the responsible entity for the change application as the relevant development approval was given as a result of a Court order.
The Applicant consequently applied to the Court and questioned to whom the change application should be made. To resolve the issue the Court considered section 78 of the Planning Act which relates to the making of a change application.
The parties agreed that section 78(3)(b) of the Planning Act was applicable to the change application
Section 78(3)(b) of the Planning Act relevantly lists the circumstances in which the Court will be the responsible entity for a change application. The parties agreed that section 78(3)(b) of the Planning Act applied to the change application for the following reasons:
- the change application was for a minor change;
- the development approval was given as a result of a Court order; and
- the development application was code assessable and was not subject to any properly made submissions.
The Court found ambiguity in section 78(3)(c) of the Planning Act
The Court found that ambiguity lay in the application of section 78(3)(c) of the Planning Act, which nominates the "assessment manager" as the responsible entity if no other sub-paragraphs of section 78 apply.
The Court identified that Schedule 2
of the Planning Act provides the following definition of assessment manager:
"(a) has the meaning given in section 48; and
(b) includes a prescribed assessment manager and a chosen assessment manager."
The Court considered section 48 of the Planning Act, which relates to who the assessment manager is for a development application and emphasised as follows:
- the assessment manager is the person responsible for assessing and deciding part or all of a development application; and
- a regulation generally prescribes who is the assessment manager to the development application.
The Court found that every word of section 78 of the Planning Act must be given meaningful operation
The Court found that if it was the intention of the legislature for the Court to be the responsible entity for all minor change applications involving a development approval resulting from a Court order, it could have easily omitted section 78(3)(b)(iii), which makes reference to properly made submissions.
The Court also held that section 78 must be construed in the context of section 48 of the Planning Act so as to give each word in the provision meaningful operation. The Court determined that the opinion reached by the Council deprived section 78(3)(b)(iii) of such operation.
The Court held that the Council's interpretation of section 78 was inconsistent with other provisions within Chapter 3, Part 5, Division 2, Subdivision 2 of the Planning Act
The Court considered the reference to "assessment manager" within section 78(3)(c) in the context of other provisions within Chapter 3, Part 5, Division 2, Subdivision 2 of the Planning Act.
The Court identified that section 80
of the Planning Act requires a person proposing to make a change application to give notice of the proposal and the details of the application to "an affected entity
." The Court held that the assessment manager is taken to be an affected entity, where the Court is the responsible entity under section 80(2)(c) of the Planning Act.
The Court also held that section 83(1)(g)
of the Planning Act relevantly requires that responsible entities other than the Court give a decision notice for a change application to the Court if the original approval resulted from a Court order.
The Court held that section 83(1)(g) operates to reinforce the legislature's acceptance that situations will arise in which the Court will not be the assessment manager for a change application despite having given the development approval.
The Court ordered that the change application be referred back to the Council
Based on the above reasoning, the Court found that it was not the responsible entity for the change application and therefore dismissed the originating application.
To avoid unnecessary delay the Applicant nevertheless requested that the Court exercise its discretion under section 37
of the Planning and Environment Court Act 2016
and consider the matter. The Applicant's request was aided by the fact that the Council was not opposed to the ultimate relief sought and was prepared to allocate appropriate internal resources to resolve the matter.
The Court expressed sympathy in relation to the Applicant's plight but held that it was appropriate for the Council to decide the change application given the extensive obligations imposed by Chapter 3, Part 5, Division 2, Subdivision 2 of the Planning Act.
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.