In brief

The case of Ellendale (Qld) Pty Ltd LFT Ellendale (Qld) Unit Trust v Brisbane City Council [2020] QPEC 68 concerned an appeal to the Planning and Environment Court of Queensland against the Brisbane City Council's (Council) decision to refuse an application under section 78 of the Planning Act 2016 (Qld) (Planning Act) to change a development approval for land situated at Canvey Road, Upper Kedron, Queensland.

The appeal raised the issue of whether the Court can approve a change to a development approval that was not originally proposed in the change application made to the Council. In short, the Court concluded as follows:

  • The Court can approve a change to a development approval not sought in a change application, provided that the change is the product of the exercise of the conditions power conferred in section 81A(2) of the Planning Act.

  • Section 46 of the Planning and Environment Court Act 2016 (PEC Act) does not empower the Court to consider a change to a change application.

Question to be answered

The appeal was against the Council's decision to refuse an application under section 78 of the Planning Act to change a development approval, other than the currency period, after all appeal periods in relation to the development approval had ended (change application).

The relevant development approval included a condition requiring the development "to be carried out generally in accordance with approved drawings and documents" (at [5]). The change application sought to amend one of the drawings, an approved landscape concept plan, to reinstate four carparks which had been deleted from the plan by the assessment manager.

Prior to the hearing of the appeal, the parties participated in without prejudice discussions and agreed that the change application ought to be approved. The basis for this agreement was that compensatory landscaping would be provided, however, the scope of the landscaping to be provided was different to that proposed in the original change application.

This gave rise to the following question to be answered by the Court: Could the Court approve a change to a development approval that was not sought in the change application made to the responsible entity?

The parties invited the Court to answer this question in the affirmative, on the basis that it either had power under section 81A(2) of the Planning Act, or section 46 of the PEC Act.

Court can approve a change to a development approval not sought in a change application by utilising the conditions power in section 81A(2) of the Planning Act

The Court concluded that it did have power under section 81A(2) of the Planning Act to make the changes proposed by the parties.

The Court was satisfied that the change proposed was a minor change to the development approval. Consequently, the provisions of sections 81 and 81A of the Planning Act applied. Section 81A(2) of the Planning Act relevantly states:

(2)      After assessing the change application under section 81, the responsible entity must decide to –

(a) make the change, with or without imposing or amending development conditions in relation to the change; or

(b) 
refuse to make the change.

The Court stated that it can approve a change to a development approval not sought in a change application, provided that the change is the product of the exercise of the conditions power provided for in section 81A(2) of the Planning Act.

Critically, the Court stated that the power is constrained by sections 65 and 66 of the Planning Act, and the need for a connection between the exercise of the conditions power and the change approved by the responsible entity. The Court stated that this connection should not be approached narrowly, or in a restrictive way, and that whether a connection was established would depend on the facts and circumstances of each case.

In the facts and circumstances of this case, the Court concluded that there was a sufficient connection between the proposed change, being the reinstatement of the four carparks, and the development conditions relating to the landscaping issues. In order to give effect to the change, it was necessary to amend the development conditions to address the issues concerning compensatory landscaping. The Court therefore had power to amend the development conditions to give effect to the new landscaping requirements.

Section 46 of the PEC Act does not empower the Court to change a change application

The Court concluded that section 46 of the PEC Act did not empower it to make the changes proposed by the parties.

Firstly, it was argued that section 46(3) of the PEC Act empowered the Court to consider a change to a change application. Section 46(3) of the PEC Act states that the Court cannot consider a change to a “development application unless the change is only a minor change”. This argument was not accepted for the reason that section 46(3) of the PEC Act applies to a development application, and the clear words of the provision and the statutory context did not suggest that the section should apply to a development approval.

Secondly, it was argued that section 46(4) of the PEC Act empowered the Court to consider a change to a change application. Section 46(4) of the PEC Act states that the Court cannot consider a change to a development approval the subject of a change application under section 78 of the Planning Act “unless the change is only a minor change to the approval”. This argument was not accepted for the following reasons:

  • The plain words of section 46(4) of the [PEC Act] do not suggest the provision is relevant to a change to a change application. To suggest otherwise requires the provision to be re-drafted in a manner that impermissibly alters its meaning” (at [29] and [36]).

  • “…if the plain meaning of the provision is to be read as facilitating a change to a change application, this begs the question: What extent of change may be considered by the court before a fresh application is required? Section 46(4) provides no answer to this question” (at [30]).

  • There is no “immediate, or broader, statutory context that supports re-drafting section 46(4) of the [PEC Act] in the manner contended by Council” (at [37]-[38], [40]-[45]).

  • The submission that construing section 46(4) in this way “avoids inconvenience and impractical outcomes for parties to a proceeding” was overstated and not persuasive (at [47]).

  • The Court in effect concluded that the appeal ought not to be “a vehicle to achieve an objective that goes beyond what the change application can achieve” (at [49]).

The Court also considered its decision in Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52, which the Council argued supported the argument that section 46(4) of the PEC empowered the Court to consider a change to a change application. The Court rejected that submission, concluding that it misstated the reasoning in Catterall because (at [35]):

the point raised for consideration was whether s 46(4) of the [PEC Act], on its face, precluded the court in the exercise of its appellant jurisdiction from considering a change application for other than a minor change. Whilst I accepted that section 46(4), if read in isolation, may be read in this way, I held that such a construction would be absurd. It would render an appeal right conferred by the [Planning Act] a futility…

Conclusion

The Court concluded that the appeal ought to be allowed on the basis that section 81A of the Planning Act empowers the Court to grant the changes proposed by the parties.

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 2021.

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