In brief

The case of Wilhelm v Logan City Council & Ors [2020] QCA 273 concerned an application for leave to appeal under section 63 of the Planning and Environment Court Act 2016 (Qld) to the Queensland Court of Appeal against a decision of the Planning and Environment Court (P&E Court) to dismiss a submitter appeal against the Logan City Council's (Council) approval of an impact assessable development application for a service station, shop, and food and drink outlet in Cornubia, Queensland. 

Our summary of the judgment at first instance can be read here

The Court of Appeal refused the application for leave to appeal. In doing so, the Court of Appeal stated that while the change in the decision-making framework under the Planning Act 2016 (Qld) (Planning Act) has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land, it can no longer be said that approval of a development which conflicts with a planning scheme is, in general, against the public interest. 

Proposed development

The subject land is located in the park living precinct of the rural residential zone of the Logan Planning Scheme 2015 (Planning Scheme). The proposed development is for a 7-Eleven service station, shop, and food and drink outlet, which will operate 7 days a week, 24 hours a day, and that was approved by the Council in July 2018. The submitter appellant has a commercial interest in a BP service station located some 200 metres south-west of the subject land. 

Proceeding at first instance

The main argument at first instance was that the proposed development does not comply with the centre provisions of the Planning Scheme and ought to be refused. In particular, it was argued that the application was seeking approval to locate centre activities on land included in the rural residential zone, which did not anticipate or encourage such activities. It was suggested that an approval would be contrary to an important forward planning strategy, which was that centre activities are to be located in designated centres. 

The strategic intent for centres is set out in section 3.2.4 of the strategic framework as follows:

Logan has a hierarchy and network of interrelated centres comprising principal centres, major centres, district centres, neighbourhood centres, and specialised centres. Centres are vibrant, accessible and integrated places.

Particular attention was given to section 3.5.1 of the Planning Scheme, which contains a description of each of the centre types and what a centre ought to contain. Section 3.5.8.1(1)(a) of the Planning Scheme sets out requirements for centre activities, including that they be located in a centre. 

The P&E Court noted that, as a matter of construction, the Planning Scheme permitted uses which are centre activities to be located in out of centre locations. For example, no part of the rural residential zone code requires land uses comprising centre activities in the park living precinct to satisfy section 3.5.8.1 of the Planning Scheme. The P&E Court concluded that section 3.5.8.1 was aimed at new or expanded centres. In any event, the P&E Court concluded that the proposed development was not a “new centre”. 

The P&E Court also dealt with a submission by the submitter appellant that overall outcome 3(e)(i) of the rural residential zone code does not include the uses proposed by the development. However, the P&E Court concluded that “discouragement” from the proposed development ought not be assumed as a matter of implication or inference from the absence of encouragement, unless it was assumed that the provision covered the field of uses anticipated by the rural residential zone. 

Ultimately, having weighed the relevant factors in favour of or against approval, the P&E Court concluded as follows:

"Against the background of the above considerations, it is my view the public interest, in a planning sense, is not better served by refusing the development application. To refuse it would represent a triumph of form over substance. The form constitutes textual non-compliance with s.3.5.8.1 of the planning scheme. The substance involves a meritorious proposal."

Grounds of appeal

On application for leave to appeal to the Court of Appeal, the submitter appellant asserted that the P&E Court erred in law, in the ways set out below. 

Centre points

The submitter appellant asserted that the P&E Court erred in determining that the word "centre" meant a centre identified in the hierarchy and network of centres in section 3.5.1(1) of the Planning Scheme, and in determining that the proposed development would not constitute a centre for the purposes of section 3.5.8.1 of the Planning Scheme. 

The Court of Appeal noted that the interpretation of the word "centre" must be construed in the context of all the provisions of the Planning Scheme (Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QCA 147 at [52]-[58]).

The Court of Appeal then proceeded to reject the submitter appellant's grounds of appeal for the following reasons:

  • "There is a consistency in the use of the concept of centre in the Scheme as one of the centres in the centre hierarchy" (at [55]).

  • "[U]ses which are Centre activities can be undertaken outside of a centre that is in the centre hierarchy in accordance with the relevant zone code" (at [55]). 

  • "The literal meaning of s 3.5.8.1(1)(a)(i) that Centre activities must be located in a centre is displaced by taking into account the heading of s 3.5.8 (which is treated as part of s 3.5.8.1 pursuant to s 35C of the Acts Interpretation Act 1954), the entirety of s 3.5.8.1(1)(a), and considering the whole of s 3.5.8.1 in the context of the Scheme. As the heading indicates, the provision deals with new and expanded centres" (at [57]).

  • "The word "centre" under the Scheme is therefore properly construed … as a reference to a centre in the centre hierarchy in s 3.5.1(1) or any new centre that is permitted pursuant to s 3.5.8.1, which is subject to the limitation in s 3.5.8.1(2) that no new principal centre or major centre other than shown on the relevant strategic framework map are created." ([at 58]).

The Court of Appeal also rejected a submission by the submitter appellant that the P&E Court relied on evidence of two town planners to construe the Planning Scheme. 

Rural residential zone point

The submitter appellant asserted that the P&E Court erred in concluding that the rural residential code did not discourage the proposed development.

The Court of Appeal rejected this ground of appeal. In so concluding, the Court of Appeal stated as follows (at [73]):

"It is a compelling aspect of the primary judge's reasoning that non-residential uses, including Centre activities, are expressly contemplated for the [rural residential zone] under the [rural residential] Code and that uses are anticipated (as in PO7) which are not otherwise specified in the Overall Outcomes for the [rural residential zone]. It is also consistent with the structure of the table of assessment for the [rural residential zone] that a use that is not listed in the table is impact assessable against the Scheme…"

Public interest points

The submitter appellant asserted that the P&E Court erred in failing to carry out the assessment required by section 45(5) of the Planning Act on the assumption that an approval of the proposed development was not in the public interest. 

The Court of Appeal noted that all of the parties relied on the approach in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; [2019] QPEC 16 to the decision-making required under section 60(3) of the Planning Act. However, the Court noted that there was a "difference in emphasis" between the parties as to the weight to be given by the decision-maker to compliance with the Planning Scheme. 

The Court of Appeal rejected the submitter appellant's grounds of appeal. In doing so, the Court of Appeal stated as follows:

  • The statement in Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409; [2019] QCA 132 at [67] that "it is, in general, against the public interest to approve a development that conflicts with the Planning Scheme" cannot be applied to the new regime for decision-making in respect of development applications under the Planning Act without modifying it for the effect of the new regime. 

  • The assessment required by section 45(5) of the Planning Act is not required to be carried out on the assumption that an approval of the proposed development would be against the public interest.

  • Section 45(5) of the Planning Act does not involve "two steps in the intellectual process that the section contemplates". Section 45(5) refers to an assessment that is the one assessment that is carried out against the mandatory benchmarks under paragraph (a) and may be carried out having regard to any other relevant matter. 

  • As explained in Abeleda v Brisbane City Council [2020] QCA 257 at [43], "the assessment manager's decision under section 60(3) of the Act based on the assessment carried out under section 45(5) depends on the weight given by the assessment manager to each of the matters that can be taken into account for the purpose of exercising the discretion either to approve all or part of the application … or to refuse the application". 

Conclusion

The Court of Appeal was not satisfied that any of the proposed grounds of appeal would succeed and refused the application for leave to appeal. 

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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