In brief

The case of Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41 concerned an application for leave to appeal and an appeal to the Queensland Court of Appeal against a decision of the Planning and Environment Court (P&E Court). The development application the subject of the appeal concerned a material change of use for a service station (including an associated shop and car wash facility), a drive through restaurant and an onsite effluent disposal irrigation area.

King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd (First Respondents) successfully appealed to the P&E Court against the Redland City Council's (Council) decision to refuse the impact assessable development application. The development application had been made under the Sustainable Planning Act 2009 (Qld) (SPA). The development application was refused on the basis that the proposed development materially conflicted with the Redlands Planning Scheme (Planning Scheme), and there were otherwise no sufficient grounds justifying approval.

The Court of Appeal held as follows:

  • The application for leave to appeal was granted.

  • The P&E Court did not err in its construction and application of the ecological provisions in the Planning Scheme.

  • There was no error in the P&E Court's approach to the assessment of economic need. However, to the extent that economic need constituted a "sufficient ground", the primary judge failed to consider whether the need for the development was a matter of such public interest that it overrode the public interest embodied in the Planning Scheme.

Proposed development

The proposed development is to be located on the northeast corner of the roundabout intersection of Redland Bay, Boundary, Duncan and Taylor Roads in Alexandra Hills. The issues on appeal related to the southern part of the site, which was located in the Environmental Protection Zone (EP Zone) and the Kinross Road Structure Plan (KRSP) Overlay.

The built form of the proposed development is to be located on the southern part of the site and is for a combined service station, store and drive through restaurant. The proposed hours of operation are 24 hours a day, seven days a week.

Application for leave to appeal

Section 63 of the Planning and Environment Court Act 2016 (Qld) provides that an appeal against a decision of the P&E Court may only be brought with the leave of the Court of Appeal and on the ground of error or mistake in law, or jurisdictional error. An application for leave to appeal must be brought within 30 business days of the appealable decision.

The First Respondents asserted that the Council's application for leave to appeal filed on 30 July 2018 was filed out of time. The First Respondents relied on Reasons given by the P&E Court on 6 November 2017 to the effect that the First Respondents had satisfied the onus with respect to the appeal. An Order was also made on that date which provided that the appeal would be adjourned "for further hearing to allow for the formulation of reasonable and relevant conditions".

A final Order was subsequently made by the P&E Court on 18 June 2018 allowing the appeal and providing that the development application was to be approved subject to the conditions attached to that Order.

The Court of Appeal ultimately granted the application for leave to appeal. However, the reasons for granting leave differed slightly between the judgments of Philippides JA, and Fraser and McMurdo JJA. The central difference related to their Honours' conclusion as to whether the Order made on 6 November 2017 was appealable to the extent of the substantive dispute between the parties. In the judgment of Philippides JA, Her Honour referred (at [28]) to a useful extract from Clisdell v Commissioner for Police (1993) 31 NSWLR 555 (at 558):

"An appeal from a decision of a court is from an order or other judicial act which affects adversely the rights claimed by the appellant party. It is not an appeal from a pronouncement by the court of an opinion upon a question of law … It is directed to modifying or reversing the action of the court appealed from."

Fraser and McMurdo JJA concluded in separate judgments that the judgment in November 2017 was adverse to the rights claimed by the Council, who had instead sought an order dismissing the appeal. Their Honours' concluded that the decision on 6 November 2017, could have been appealed on the same grounds as contained in the notice of appeal against the orders made in June 2018.

In contrast, Philippides JA concluded that the "findings, reasons and conclusions" delivered on 6 November 2017 were not an appealable decision, except to the extent that they supported an order for adjournment. Her Honour referred (at [28]) to the decision in Maroochy Shire Council v Barns [2001] QCA 273, where Thomas JA stated that "the only order that has been made is an order for adjournment … the appeal is premature."

P&E Court did not misconstrue or misapply the ecological provisions in the Redlands Planning Scheme

The Council asserted that the P&E Court erred in law by misconstruing and misapplying the relevant ecological provisions of the EP Zone Code and the KRSP Overlay Code in the Planning Scheme, and that this error materially affected the judgment.

Of particular relevance was the Council's assertion that the P&E Court incorrectly construed specific outcome S1.1(1) of the EP Zone Code. Specific outcome S1.1(1) relevantly states that "Uses and other development maintain, enhance and protect environment values by…", and then lists eight subparagraphs which it is said the development must comply with. In contrast to the P&E Court's decision, the Council asserted that the interpretation provisions of the Planning Scheme required that all subparagraphs had to be complied with. The Court of Appeal agreed with that assertion.

However, the Court of Appeal noted (at [144]) that "the purpose of the prescribed Specific Outcomes was to contribute to the achievement of the Overall Outcomes". The Court of Appeal held that although the specific outcomes contribute to the achievement of the overall outcomes, they are not essential conditions of that result. In relation to the proposed development, the Court of Appeal concluded that, on the findings of the P&E Court, the overall outcomes would be achieved, and the error was therefore moot.

P&E Court erred at law in failing to consider whether the need for the development overrode the public interest embodied in the Redlands Planning Scheme

The Council asserted that the P&E Court's application of section 326(1) of the SPA was inconsistent with the decision in Bell v Brisbane City Council [2018] QCA 84, which was given after the decision of the P&E Court in this case. In Bell, the Court stated as follows:

"Section 326(1)(b) will be engaged only where there is a tension between the application of … a planning scheme, and the public interest. If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument. Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land."

Section 326(1) of the SPA relevantly provided as follows:

            "The assessment manager's decision must not conflict with a [planning scheme] unless-
            (a)        …
            (b)        there are sufficient grounds to justify the decision, despite the conflict …"

The term "grounds" is defined to mean "matters of public interest".

The P&E Court concluded in this case that there was a "need" for the development, despite clear conflicts with the Planning Scheme. The Court of Appeal noted that the question of "need" was considered in the context of whether there were sufficient grounds to permit the development, pursuant to section 326(1) of the SPA.

The Court of Appeal concluded that although there was no error in the P&E Court's conclusion that there was a "need" for the proposed development, it did not follow from those findings that there was a ground for approving the development despite the inconsistencies with the Planning Scheme. In that regard, the Court of Appeal held as follows (at [169]):

"…What had to be established was not just that there was a need for such a development in the area, but that there was a need for the development in a location where the planning scheme provided that it should not occur. It had to be shown that, in the public interest, it was necessary to override the scheme as it applied to this land."

Conclusion

The Court of Appeal concluded that the appeal ought to be allowed on the basis that the P&E Court failed to consider whether there was a need for the proposed development, such that the public interest would not be served by requiring that the land be developed according to the Planning Scheme.

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.

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