The case of McKean v Council of the City of Gold Coast  QPEC 61 concerned an appeal to the Planning and Environment Court against a decision of a local government to refuse a development application for reconfiguring a lot at Tallebudgera, Queensland. The Applicant had failed to correctly identify the development under the development application as being impact assessable. The Court held that although the development application was ultimately null and void, the application was able to be remitted back to the public notification stage as impact assessable development.
In January 2016, the Applicant made an application for reconfiguring a lot on land at Tallebudgera, Queensland. The Applicant had intended to reconfigure the land into six lots in accordance with the "park living domain" provisions under the Council's planning scheme. The Council refused the development application in December 2017.
The Applicant mistakenly lodged the development application as development which was code assessable instead of impact assessable. The Sustainable Planning Act 2009 (SPA) defines code assessable development as development which is to be assessed by an assessment manager. Development which is impact assessable involves a consideration of the impacts on the surrounding environment for the proposed development and ways of dealing with such effects (see section 313 and section 314 of the SPA respectively).
The relevant provisions under the planning scheme required that where development for reconfiguring a lot resulted in average lot sizes that were less than 8000m2, then the development would be impact assessable. Where a development requires impact assessment to be conducted, the public notification process is engaged under section 297 of the SPA.
The Council argued that because the development application had been made by the Applicant as code assessable, then the application had not been "properly made" for the purposes of section 261(1) of the SPA, and was in effect, a nullity. The Council also argued that as a result, the application had lapsed under section 302(1)(a) of the SPA, that the application was void, and therefore the jurisdiction of the Planning and Environment Court had not been engaged to entertain an appeal against the decision of Council.
Minor change application
A 'minor change' is relevantly described in schedule 2 of the Planning Act 2016 (Planning Act) as a change which does not result in a substantially different development, and if the application including the change would not cause public notification where such notification had not been previously required (at ). The Planning and Environment Court cannot consider a change to a development application unless the change is only a minor change to the application: see section 46(3) of the Planning and Environment Court Act 2016 (PEC Act).
The Applicant reconsidered the development's design, changing it from a community management scheme to freehold title by making the previous communal area part of Lot 1. The Council's position was that the Applicant's minor change application would "change the manner in which the development would operate, casting communal responsibility, unacceptability, on Lot 1" as to road and driveway ownership and maintenance, access to common property and a lack of a binding community management statement (see ).
Impact and public notification
The Council submitted that the proposed change would introduce new impacts or would exacerbate known impacts "by removal of effective mechanisms to deal with problems such as bushfire management, road maintenance, slope stability, and vegetation management requirements" (at ). The Council also submitted that a matter of "overriding importance" in the case was that because the application was defective in nature, it had an effect of "shutting out" the public from the development assessment process which the public was entitled to participate in. The Council further submitted that the exclusion of the public from that process was material in the circumstances as the definition of minor change under the Planning Act "emphasises the importance of proper public involvement in the development assessment process" (at ).
No lawful appeal
The Court held that it was unnecessary to determine the minor change issue as the fundamental problem with the Applicant's case was that there was "no lawful appeal on foot to change [the application], whether the changes could be characterised as a 'minor change' or not" (at ).
Properly made application
The Council submitted that it was mandatory for the Applicant to identify whether or not the development application was code assessable or impact assessable as the wrongful characterisation of the development application had rendered the application void (at ) and as such, the development application should not have proceeded to the subsequent stages of the development assessment process: see Fox & Anor v Brisbane City Council & Ors  QPEC 49.
The Court held that the situation was capable of remediation by the following means:
the non-compliance of the original application could be excused under section 37 of the PEC Act;
the development application was taken not to have lapsed;
the development application would be remitted to the public notification stage in accordance with Chapter 6, Part 4 of the SPA;
the appeal be otherwise dismissed.
The Court dismissed the appeal, excusing the non-compliance of the application as originally made and remitted the development application to the notification stage with each party bearing their own costs.
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 2020.