In brief

The case of Danseur Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 64 concerned an application to the Planning and Environment Court seeking declarations in respect of a minor change application approved by the Cairns Regional Council (Council) for a minor change to a historical development permit for the Aquarius Building located at 107-113 Esplanade, Cairns (Minor Change Application).

The Minor Change Application was submitted by the owner of Lot 83 (Second Respondent), who has an apartment in the Aquarius Building, and was for the following approved changes (summarised by the Court at paragraph [2]):

  1. "to convert an exclusive use area attached to Lot 83 from a roof top garden area to a "covered and partially enclosed patio area and associated lift""; and

  2. "to reconcile the approved 15 storeys building of 81 units with the certificate of classification and the physical as-constructed building of 16 stories (excluding the effect of the changed roof top garden".

The Applicant, who owned another lot in the Aquarius Building, alleged that the Council's decision notice for the Minor Change Application was void as:

  1. the Minor Change Application was not properly made without the lawful consent of the Body Corporate of the Aquarius Building (Body Corporate); and

  2. the Council's decision notice for the Minor Change Application did not comply with the formal requirements of the Planning Act 2016 (Qld) (Planning Act).

The Second Respondent and the Council opposed the application to the Court.

The Court held that the Council properly treated the Minor Change Application as being properly made and excused the matters of non-compliance with the formal requirements of the Planning Act.

Council was satisfied that the Minor Change Application was accompanied by the owner's consent and the Court did not look behind that decision

Section 79(1A) of the Planning Act requires that a change application be accompanied by the written consent of the owner of the premises the subject of the change application. Section 79(2)(a) and (b) of the Planning Act require that in assessing the change application the Council must form a judgement about whether it is satisfied that an application complies with section 79(1A) of the Planning Act.

The Applicant alleged that there was no lawful meeting of the Body Corporate and therefore no lawful consent by the Body Corporate to the Minor Change Application. In particular, the Applicant alleged that the Body Corporate committee resolution did not comply with the relevant requirements of the Body Corporate and Community Management (Standard Model) Regulation 2008 (Qld) and the Body Corporate and Community Management Act 1997 (Qld) (Body Corporate Act).

The Second Respondent and Council argued that:

  1. The Court, under the Planning and Environment Court Act 2016 (Qld) (P&E Court Act), is limited to making a declaration about a matter done, or that should have been done, for the P&E Court Act or the Planning Act, and is therefore not at liberty to go behind the ostensibly valid form of consent.

  2. The Body Corporate's decision to give consent to the Minor Change Application:

(a)  was not on a "restricted issue" as defined in the Body Corporate Act; and
(b)  ought to be treated as valid under section 100 of the Body Corporate Act.

The Court agreed with the Second Respondent's and Council's arguments, and made the following observations:

  1. The Court must consider whether there is sufficient evidence for the Council to justify the requisite degree of satisfaction required by section 79(2)(a) and (b) of the Planning Act.

  2. The Council's delegate stated that the consent form contained sufficient information to satisfy the Council's delegate that the requirement in section 79 of the Planning Act had been met.

The Court therefore held that the Council's satisfaction with the consent was reasonable and justifiable as ostensibly the form contained a valid consent from the Body Corporate.

Decision notice held to be non-compliant with the formal requirements of the Planning Act, however, the Court excused the non-compliance

Section 81A and section 83 of the Planning Act state the formal requirements that a decision notice for a change application must comply with, which relevantly include that the decision notice must:

  1. state the day when the change application was made (section 83(3)(a));

  2. be accompanied by a copy of the development approval showing the change, including any extra development conditions (section 83(4)(b));

  3. state a description of any assessment benchmarks applying for assessing the change application (section 83(9)(b)); and

  4. state the reasons for the responsible entity's decision (section 83(9)(d)).

The Applicant alleged that the decision notice given in relation to the Minor Change Application did not comply. The Second Respondent and the Council relevantly argued that any non-compliance did not render the decision notice invalid and in any event ought to be excused by the Court.

The Court considered the decision notice given by the Council and concluded that:

  • No stated day when the change application was made (section 83(3)(a)) – The Court found that the decision notice did not comply with this requirement, however, the Court considered sufficient detail was provided to enable an interested party to ascertain the relevant date and determined that the non-compliances were a matter of technicality and form and ought to be excused.

  • Not accompanied by copy of the development approval showing the change, including conditions (section 83(4)(b)) – The Court found that the decision notice was accompanied by the 1980 Consent development approval, but that the changes were separately described by reference to extra development conditions. The Court agreed with the statements of the Council's delegate that due to the age of the development approval it was reasonable to incorporate the changes by reference and therefore held that any non-compliance ought be excused.

  • No description of any assessment benchmarks (section 83(9)(b)) – The Court found that the decision notice sufficiently described the relevant Council planning scheme, and that to the extent further particularisation of the assessment benchmarks was required, any non-compliance ought be excused.

  • No stated reasons for the decision (section 83(9)(d)) – The Court noted that there is no statutory requirement for the reasons to be adequate, lengthy, or elaborate, but ought to have been sufficient to identify the decision maker and allow affected parties to exercise any consequential rights. After considering the reasons stated in the decision notice, the Court held that the decision notice contained sufficient reasons as the decision notice (see paragraph [51]):

    • identified the decision maker and their relevant delegated authority;

    • stated the date of the decision;

    • identified the evidence the delegate took into account, including that no evidence was rejected or less credible;

    • stated the delegate's findings on material questions of fact;

    • expressed the reasons for the decision;

    • stated contact details for a person who was familiar with the decision; and

    • provided information on any appeal or review rights regarding the decision.

The Court noted, in paragraph [54] of the judgment, that "[t]he preferred approach to determining validity is by asking whether it was a purpose of the legislation that an act done in breach of the provision should be invalid", and that section 37 of the P&E Court Act gave the Court the discretion to deal with the matter of non-compliance in the way it considered appropriate.

The Court ultimately found that as there was no claimed injustice caused by the non-compliances; the integrity of the Planning Act was being upheld; the public interest was being served; and the strict non-compliance with the formal requirements for a decision notice stated in sections 83(3)(a), 83(4)(b) and 83(9)(b) of the Planning Act ought to be excused.

Conclusion

The Court held that the Council properly treated the Minor Change Application as being properly made after the Council was satisfied that the Minor Change Application was accompanied by the owner's consent and ordered that the non-compliances in the decision notice for the Minor Change Application ought to be excused.

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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