In brief

The case of The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPEC 32 concerned an application for directions with respect to an order seeking to define the issues in dispute for an appeal by an applicant (Applicant) against the decision of the Brisbane City Council (Council) to refuse a development application for a material change of use for a retirement village located in Lota, within the Council's local government area. 

The Council relevantly sought the following order,"[t]he issues in dispute for this appeal are those stated in paragraph 13 to 15 of the notice of appeal and paragraph 4 of the [Council's] letter dated 9 May 2019 [(Council's Letter)]…". The Applicant opposed the order sought by the Council and, in particular, opposed the Council's contention that the development application failed to comply with Overall Outcome 3(f) of the purpose of the Wynnum-Manly Neighbourhood Plan (Neighbourhood Plan), which was expressed in paragraph 4(d) of the Council's Letter. 

The Applicant argued that the Council ought to apply for leave to enlarge the issues in dispute. 

The Court held that the Council did not require leave to enlarge the issues in dispute as there was no prior order made by the Court which defined the issues in dispute, and that the Council was entitled to raise other matters not contained in its decision notice. The Court further held that the inclusion of Overall Outcome 3(f) of the Neighbourhood Plan was not irrelevant and did not prejudice the Applicant. 

Issues in dispute

The Court noted that the threshold question for consideration was whether the Council required leave to rely on matters identified in the Council's Letter.

The Court considered the following issues:

  • whether there was an existing order defining the issues in dispute;

  • whether the matters raised in the Council's Letter were new matters for determination;

  • whether the decision in Waterman & Ors v Logan City Council [2018] QPEC 44 (Waterman) was applicable to the present case;

  • whether a party is able to rely on matters not expressed in a decision notice.

Council's Letter

The Council's Letter stated that the Council would be relying on a further five provisions of the Brisbane City Plan 2014 (City Plan 2014). The Applicant did not oppose the first four provisions outlined in paragraph 4(a) - (c) of the Council's Letter as "the tenor of those grounds were not novel, and reflected the substance of the Council's reasons for refusal…" However, the Applicant did oppose the inclusion of Overall Outcome 3(f) of the Neighbourhood Plan.

Overall Outcome 3(f) of the Neighbourhood Plan relevantly states as follows:

"…Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development".

The Council argued that the development application failed to comply with Overall Outcome 3(f) of the Neighbourhood Plan for the reason that low density development of one to two storeys is expected in the area and no community need and economic need had been demonstrated to support the proposed development.

The Court held that the Council did not require leave to rely on the matters identified in the Council's Letter for the below reasons.

There is an established practice of the Court to define the issues in dispute by way of an order

The Court found that a party may only vary issues in dispute if leave is granted by the Court, but only if the issues in dispute have been defined by a pre-existing order. The Court held that as there was no prior order defining the issues in dispute, the Council was not required to apply to the Court for leave to vary the issues in dispute.

The matters raised in the Council's letter were not new matters for determination

The Court found that the nature of the matters raised in the Council's Letter had already been raised in the Applicant's Notice of Appeal.

The Court noted that the Notice of Appeal relevantly states that "[t]he development application ought to be approved because the proposed development complies with all of the assessment benchmarks for the development" . 

The Court found that the matters raised in the Council's Letter go to the issue of compliance with the assessment benchmarks as expressed in the Notice of Appeal, and as such the Court held that Overall Outcome 3(f) of the Neighbourhood Plan ought to be assessed as it is an assessment benchmark under the City Plan 2014.

Additionally, during the course of the hearing, the Applicant confirmed that it would be advancing a need argument in favour of the appeal. The Court found that Overall Outcome 3(f) of the Neighbourhood Plan involves the issue of town planning and community need. Consequently, the Court held that Overall Outcome 3(f) of the Neighbourhood Plan is not a novel issue for the Court to consider and is not irrelevant to the proceeding. 

The Waterman decision does not apply

The Applicant argued that the Waterman decision was consistent with the present case, and as such argued that the Council is required to provide an adequate explanation for its intention to enlarge the issues in dispute beyond what was contained in its reasons for refusal. 

The Court noted that the Waterman decision must be treated with caution as it is factually different from the present case. Relevantly, the local government in the Waterman decision decided to change its position with respect to its original decision to refuse a development application and therefore sought orders to vary the issues in dispute. On that basis, the Court in the Waterman decision held that the local government was required to provide an adequate explanation. 

The Court found that the present case does not have existing orders to vary and is not seeking to change its position with respect to the development application. On this basis, the Court held that the Waterman decision was not relevant and dismissed the Applicant's argument. 

The legislative regime does not require a party to obtain leave to resist an appeal for reasons other than those expressed in a decision notice

The Applicant argued that the Council ought to apply for leave to enlarge the issues in dispute as Overall Outcome 3(f) was not contemplated by the Council's reasons for refusal.

The Court found that the right conferred under section 230 of the Planning Act 2016 is a right to appeal against a "decision" and not the "reasons" for the decision. Relevantly, the Court noted that when deciding an appeal, the Court under section 47 of the Planning and Environment Court Act 2016 has the power to either confirm, change, or set aside a "decision". 

Additionally, the Court noted that the nature of a Planning and Environment Court appeal is by way of hearing anew and as such, an assessment manager is not bound or limited to its reasons for refusal. 

The Court further found that it has been long established by case authority that matters other than those defined in the decision notice can be raised at a hearing. Relevantly, the Queensland District Court found in Chalk & Anor v Brisbane City Council [1966] 13 LGRA 228 at 230, and Walker v Noosa Shire Council [1983] 2 Qd R 86 at 88, that the issues of an appeal are not restricted to the reasons stated by the Council for its refusal of the development application, and that a local government is not precluded from raising other such matters provided that they are relevant considerations. Additionally, the Court noted that the Planning and Environment Court in LMRM v Brisbane City Council [2017] QPEC 7 found that a local government that seeks an order to include additional reasons for refusal in its response to an applicant appeal need not explain why those issues were not originally stated. 

Conclusion

The Court held that the Council was not required to apply for leave to vary the issues in dispute. 

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 2019.

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