The case of East Coast Gravel Pty Ltd v Brisbane City Council  QPEC 15 concerned an appeal by a developer (Developer) to the Planning Environment Court of Queensland (Court) against the Brisbane City Council's (Council) decision to refuse a request to change a development approval under the Sustainable Planning Act 2009 (SPA). The Developer sought to amend an infrastructure charges condition to allow an offset against the transport infrastructure charge for the value of a bike path provided by the Developer.
The Court dismissed the appeal on the basis that it was a change that would likely cause the Council to make a properly made submission objecting to the proposed change.
Issues in dispute
The issues for determination were identified by the Court as follows:
whether the change requested by the Developer was outside the intended scope of the legislative provisions;
whether the change was a "permissible change" under section 367 of the SPA;
whether the Court had the power to amend the condition and compel the Council to issue an offset;
whether the appeal should be approved on the basis that there was no legal impediment to approve the change.
Proposed change to the development approval
The Developer lodged on 19 June 2008 a development application with the Council that sought a preliminary approval for a material change of use to facilitate 51 residential lots and a development permit for reconfiguration of land at 59 Wypama Road, Bald Hills. To quell the Council's concerns regarding the inconsistency of the development with the zoning of the area, the Developer promised that the site would be provided with "the appropriate infrastructure for the intended purpose of the site" and that "the infrastructure costs would be borne by the Developer" (at ).
The Council granted a development approval on 26 March 2010. The decision notice noted that the proposed development had demonstrated sufficient grounds for approval despite the conflicts with the Brisbane City Plan 2000 (City Plan). One of the grounds listed in support of the proposed development included the "provision of a bike path along the wetland for public use" (at ).
The development approval permitted the Developer to develop 76 residential lots subject to conditions. Relevantly, condition 9 of the development approval required the payment of infrastructure charges. Condition 35 required the Developer to construct a bike path at the Developer's expense.
The Developer acted on the development approval, constructed the bike path and paid the infrastructure charges. After the completion of the development, the Developer submitted a change request to the Council on 12 December 2016 to amend condition 9 of the development approval. The Developer sought an offset to the transport infrastructure charge "as fair compensation for the significant cost of the public bike path" (at ).
The Council refused the request and the Developer subsequently appealed the decision.
Intended scope of legislative provisions
Section 369 of the SPA allows a person to request a "permissible change" to a development approval. Relevantly, section 367 of the SPA provides that a proposed change to a development approval is a permissible change if the change would not:
"(a) result in a substantially different development; or
(b) if the application for the approval were remade including the change—
(i) require referral to additional concurrence agencies; or
(ii) for an approval for assessable development that previously did not require impact assessment—require impact assessment; or
(c) for an approval for assessable development that previously required impact assessment—be likely, in the responsible entity's opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
(d) cause development to which the approval relates to include any prohibited development."
The Council argued that the requested change to condition 9 was outside the scope of section 369 of the SPA, as it was absurd to suggest that the legislature intended to allow a developer to obtain a refund on money spent complying with a condition of the development approval where the development approval had been fully acted upon. The Council further contended that it would be irrational to construe the provision to mean that it permitted a right to compensation against the Council.
The Council submitted that the conditions of a development approval are not a mechanism to impose obligations on a local government, but rather to impose obligations on the beneficiary of a development approval.
The Court considered the natural and ordinary meaning of section 369 of the SPA and found that as it imposes no statutory timeframe or deadline for making a permissible change request, it did not preclude the making of a permissible change request where the development had been completed. The Court therefore held that the proposed change was not outside the scope of the SPA.
Was the requested change a permissible change?
The Council submitted that the requested change was not a "permissible change" for the purposes of section 367 of the SPA as the requested change would likely cause the Council to make a properly made submission objecting to the requested change in its capacity as an infrastructure provider.
The Developer relied upon the decision of the Planning and Environment Court in Ausbuild Pty Ltd v Redland Shire Council  QPELR 409 to consider the likelihood of a submission and argued that the hypothetical potential objector must "… be taken to be an average representative of the community…taking a rational view of the matter" (at ). The Developer submitted that the Council, as the infrastructure provider, was not a "hypothetical potential objector" and an "average representative of the community". The Developer further argued if the Council made a submission in their capacity as the infrastructure provider, it would be providing the submission to itself as the assessment manager, and it would therefore be impossible to establish whether the Council had objectively considered the submission.
The Court held that there was no practical impediment for the Council to make a submission as the infrastructure provider to itself as the assessment manager. The Court held that in any other circumstance, if an infrastructure provider wished to make its position known to an assessment manager it would be by way of a submission. The Court found that it should be no different in the circumstances and held that there was nothing pointless about such an exercise given the different capacities of the Council. The Court also noted that it is usual for local governments to operate in different capacities and to follow the usual procedures to ensure each action is appropriately referrable.
The Developer further argued that it was unlikely for the Council to make a submission against the requested change as the Council had requested the bike path as planned infrastructure on the basis that it constituted trunk infrastructure. The Developer contended that the requested change did not remove the requirement to provide a bike path, but rather amends the condition requiring it to meet the cost of the provision of the trunk infrastructure.
The Council refuted the Developer's claim that it had imposed the construction of the bike path as planned infrastructure on the basis that it was trunk infrastructure. The Council submitted that it relied on the provision to construct the bike path at no cost to the Council as a ground to approve the development application despite the conflicts with the City Plan.
The Court disagreed with the Developer and held that there was insufficient evidence to substantiate its assertion that the Council had requested the bike path as planned infrastructure on the basis that it was trunk infrastructure. The Court held that although the requested change would not remove the requirement to provide a bike path, it would remove the public benefit of it being of no cost to the community. The Court found that the requested change to the development approval would remove one of the grounds relied on by the Council to justify the approval of the development application despite its conflicts with the City Plan.
The Court held that it was likely that a properly informed person, including the Council as the infrastructure provider, would make a submission against the requested change to the development approval and therefore it was not a "permissible change" under section 367 of the SPA.
The Court's power to approve the change sought
The Council contended that the Court did not have the power to grant the relief sought even if the Court found that the Developer was entitled to an offset. The Council submitted that the Court did not have the power to require the Council to enter into an infrastructure agreement or to require it to undertake a valuation for the purposes of determining an offset.
The Developer submitted that the requested change did not seek a change that required anything other than to recognise its entitlement to an offset for the cost of the trunk infrastructure it provided.
The Court held that it was unnecessary to address the issue further in light of its finding that the request was not for a "permissible change".
Should the appeal be approved on its merits
In considering the merits of the appeal, the Court held that the requested change should be refused on four grounds.
Firstly, the Court held that the requested change should not be approved as there was a substantial delay in submitting the change request with no reasonable explanation for the delay. The Court noted that the Developer had waited almost six years from the original grant of the development approval and after the payment of the relevant infrastructure charges to then pursue an amendment to the conditions.
Secondly, the Court held that the requested change should be rejected as the Developer had not elected to challenge the conditions of the development approval by way of appeal when it was granted.
Thirdly, the Court held that the appeal should be refused on the basis that the Council had relied upon the construction of the bike path as one of the grounds to approve the development application despite its conflicts with the City Plan. The Court held that the cost to construct the bike path constituted a portion of the community price paid by the Developer to secure the right to develop the rurally zoned land. The Court held that the appeal ought to be refused in relation to this matter alone.
Finally, the Court found that the Developer's election to not appeal the relevant conditions at the time of the granting of the development approval would be prejudicial towards the Council. The Court held that as the request was submitted after the development was complete, it denied the Council the ability to argue that the development application should be refused.
The Court held that the Developer had not discharged its onus and dismissed the appeal.