The case of Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 63 concerned two appeals. The first appeal was an appeal against the Moreton Bay Regional Council's (Council) decision to approve a development application for a development permit for a material change of use to facilitate a local centre lodged by BGM Projects Pty Ltd (First Applicant). The second appeal was an appeal by Australian National Homes Pty Ltd (Second Applicant) against the Council's decision to refuse a development application for a local centre which was proposed to be located on a site 600 metres away from the First Applicant's development.
The appeals were ordered to be heard together as both appeals concerned the Moreton Bay Regional Council Planning Scheme 2015 (Planning Scheme) and involved common experts.
The substantive hearing of the appeals commenced on 11 June 2018, but did not conclude. In the course of the Court attempting to allocate final hearing dates, four applications in pending proceeding were filed by the parties.
The Second Applicant and a submitter filed an application in pending proceeding seeking permission to adduce evidence of an adjoining development approval that impacted the Second Applicant's access to an adjacent road (Satterley Approval), further amended plans, and additional expert evidence. The First Applicant filed an application in pending proceeding to the effect that if the Second Applicant was successful in its application an order should be made to set aside the order that the appeals be joined. The Council supported the First Applicant's application.
During the hearing, the Second Applicant sought to commit to a singular design depicted in further amended plans and confirmed it no longer sought a preliminary approval which allowed a multitude of designs. The Court adjourned the hearing of the applications in pending proceeding in order for the Second Applicant to file a variation request.
The Second Applicant filed an application requesting its appeal be heard and determined based on a proposed change to the Second Applicant's development application, being that the variation request aspect of the development application refer to further amended plans. The Second Applicant later sought to amend the application in pending proceeding such that the preliminary approval aspect of the development application also refer to the further amended plans.
The Second Applicant argued the proposed change was a minor change, which was opposed by the First Applicant and the Council.
The Court held as follows:
the proposed change was a minor change;
it was appropriate to permit the Second Applicant to proceed with the changed development application;
the appeals continue to be heard together; and
the Second Applicant pay some of the First Applicant's and the Council's relevant costs.
Court held that the proposed change to the development application is a minor change
The Court noted that it could not consider a change to a development application unless the change is a minor change under section 46(3) of the Planning and Environment Court Act 2016. The First Applicant and the Council argued that the Second Applicant's proposed change resulted in a "substantially different development", and therefore was not a minor change.
The Court firstly considered the nature of the Second Applicant's development application. The Court considered the Second Applicant's town planning report which accompanied its development application. The Court found that the town planning report stated that the proposed development sought to achieve a local centre with the intent to provide a range of goods and services consistent with the Planning Scheme's Centre Zone - Local Centre Precinct (at  - ). The Court found that the development application could have been drafted with more clarity but there were sufficient references in the development application to indicate that the Second Applicant was seeking a preliminary approval to change the use of the site to a local centre.
The Court secondly considered the effect of the changes reflected in the Second Applicant's variation request. The Court noted that the development application originally indicated 41 proposed land uses for the site. The Second Applicant in its variation request sought to remove reference to 32 proposed land uses. The nine remaining proposed land uses included food and drink outlet, health care services, indoor sport and recreation, office, service industry, service station, shop, shopping centre, and veterinary services. The Court found that the removal of the uses caused the development application to require code assessment rather than impact assessment.
The First Applicant argued that the Second Applicant sought to change its development application from a "bald variation request" which sought to impose an alternative planning regime over the land, to a development application which ties code assessable development to a particular plan. The First Applicant additionally argued the new plan resulted in a "substantially different development" (at ). The Court found that the Second Applicant's development application was not a "bald variation request" for the reason that upon a fair consideration of the development application it was ascertainable that the Second Applicant was seeking a preliminary approval for a material change of use to change the site to a local centre. The Court referred to the town planning report which demonstrated the proposed development sought to achieve a local centre. The Court additionally found that given that the scope of the original development application was not defined by reference to a plan, the reliance on a new plan was not of itself determinative that the development application would result in a "substantially different development".
The Council argued that the Second Applicant's original development application sought a combination of any of the 41 proposed land uses. The Court rejected the Council's argument on the basis that the development application did not seek a material change of use for a local centre made up of a combination of any of the 41 proposed land uses and that the proposed changes to the development application contemplated a local centre. The Court held that the reduction of the proposed land uses did not result in "substantially different development" and rather it demonstrated that the proposed development was intended to be a local centre. The Court therefore held that the proposed changes were a minor change.
Court allowed a change to the development application
The First Applicant argued that the development application ought not be changed as the Second Applicant continually delayed the appeal and inhibited the First Applicant from capitalising from its development.
The Court held that the Second Applicant did exacerbate delays but noted that both parties had progressed the proceedings on an unrealistic timetable. The Court was satisfied that it was appropriate to permit the Second Applicant to proceed with the changed development application and held that the hearing was to resume on 8 April 2019.
Court was not prepared to sever the hearing of the two appeals together
The Court considered whether or not it was prepared to accede to the First Applicant's request for the appeals to proceed separately.
The First Applicant submitted the hearings ought be heard separately for the reasons that the delays encountered were not caused by the First Applicant, the proposed developments are not comparable, the Second Applicant's proposed development is not ready to be assessed, and the ongoing joinder will result in further delays caused by of the Second Applicant.
The Second Applicant argued the appeals ought to be heard together as there are common issues and overlapping evidence between both proceedings.
The Court accepted the First Applicant's first three submissions, but gave weight to the Second Applicant's argument that the appeals do possess an extensive overlap. The Court noted an overlap with the Planning Scheme provisions in each appeal, common experts, and that the severing of the expert evidence would unnecessarily consume Court resources.
The Court therefore on balance, decided to uphold the joinder of the appeals.
Court ordered that the Second Applicant pay costs
The First Applicant and the Council submitted that the Second Applicant be ordered to pay costs in relation to:
the tender and replacement of plans and the subsequent objection hearing regarding those plans in June 2018;
the application to admit the new plan and evidence on 31 August 2018;
the application to revise the development application filed on 13 September 2018; and
the costs of the hearing.
In respect to the tender and its subsequent objection hearing, the Council submitted the plans tendered had been made obsolete by the plans the subject of the application to revise the development application. The Council submitted that in relation to the tendered plans the Second Applicant failed to act in an expeditious way given that it had behaved "on the run", it did not properly consider its development application, it tendered evidence in an unacceptable manner, and delayed the hearing of the appeals. The Court held that the timing and delivery of those plans was contrary to orderly case management and caused interruptions to the progress of the trial. The Court ordered that the Second Applicant pay half the costs incurred by the Council and the First Applicant for the objection hearing regarding the tendered plans.
In respect to the Second Applicant's application to admit a new plan and evidence which was heard on 31 August 2018, the Council submitted that the application was avoidable if the Second Applicant had taken steps to avoid the risk that another entity may seek a development approval which may impact its proposed road access. The Council additionally submitted that the Second Applicant did not need to admit new evidence as a result of the Satterley Approval. The Court agreed with the Council's submission and held that the Second Applicant pay the costs incurred by the Council and First Applicant for the 31 August 2018 application.
In respect to the variation request filed on 13 September 2018, the Council submitted that its costs had been thrown away due to the Second Applicant's application for leave to amend that application. The Council submitted that the Second Applicant had failed to particularise and properly consider the structure of its variation request and had taken advantage of the Court's process to identify faults in its development application. The Court held that the Second Applicant had not improperly used the Court process and therefore refused to award costs.
Lastly, the First Applicant sought costs of the trial to date. The Court found it was not possible to ascertain the extent to which the trial costs had been thrown away and reserved the question of an award of those costs.
The Court ordered that the hearing of the appeals proceed based on the changes made to the Second Applicant's development application.
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 2022.