In brief
The case of Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3) [2021] QPEC 8 concerned two appeals to the Planning and Environment Court of Queensland (Court) that were heard together, each against the decision of the Moreton Bay Regional Council (Council) to refuse a development application for reconfiguring a lot. One development application sought to reconfigure one lot into 14 lots, and the other development application sought to reconfigure one lot into five lots (Development Applications).
The Development Applications were made under the Integrated Planning Act 1997 (Qld) (IPA) in December 2009, but the Council did not decide the Development Applications until May 2018, after the repeal of both the IPA and the Sustainable Planning Act 2009 (Qld) (SPA).
The Court considered the following legal questions:
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Did the Council have authority to decide the Development Applications?
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Does section 311(1)(c) of the Planning Act 2016 (Qld) (Planning Act) confer a right of appeal?
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Does the Planning Act provide for an appeal against a deemed refusal of a development application made under the IPA?
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Does the Acts Interpretation Act 1954 (Qld) (AI Act) preserve a right of appeal?
The Court held that a right to appeal is preserved under the AI Act, and went on to consider the merits of the Development Applications. The Court found that each proposed development did not comply with the relevant planning provisions and therefore ordered that both Development Applications be refused and the appeals be dismissed.
Court finds the decision notices are not decision notices for the purposes of the IPA or the SPA, and there is no appeal right under the Planning Act
Each Development Application was made under the IPA. The transitional provisions in section 802 of the SPA preserved each Development Application under the IPA as an "existing application" and stipulated that such existing development applications would continue to be dealt with under the IPA.
Immediately prior to the SPA being repealed, the Council had not decided the Development Applications. The Applicant did not adduce evidence that the Development Applications were accepted as properly made or establish that the Development Applications had not lapsed, and the Court therefore found that it was unclear whether the Development Applications were legitimate and capable of being progressed (at [13]).
The Court went on to assume that the Development Applications had not lapsed, in which event the Applicant acknowledged that there is no transitional provision under the Planning Act in respect of the continued assessment of a development application made under the IPA (see [14] to [15]). The Court held that upon the repeal of the SPA the Council's authority to decide the Development Applications was no longer extant and therefore the decision notices issued by the Council on 11 May 2018 are not decision notices under the IPA or under the SPA (at [16]). The Court therefore concluded that the Applicant did not have an appeal right under section 289 of the Planning Act (at [16]).
Court finds that section 311(1)(c) of the Planning Act does not confer a right of appeal
The Applicant submitted that the appeals were legitimately commenced under section 311(1)(c) of the Planning Act, for the following reasons:
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"[T]here is a clear legislative intent that appeals commenced during the currency of the Planning Act 2016 should be heard and determined having regard to the assessment framework (and associated matters) in the Planning Act 2016" (at [18]).
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"[T]here is no legislative provision under any other Act or regime, other than the Planning Act 2016 or the Planning and Environment Court Act 2016, that would provide it with an appeal right with respect to the development applications" (at [20]).
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"[T]he relevant explanatory notes do not indicate an intention to treat applications made under the Integrated Planning Act 1997 differently to those made under the Sustainable Planning Act 2009" (at [22]).
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Section 285 of the Planning Act, which deals with the transition of the SPA to the Planning Act, when read in context, "…acts to extend the transitional appeal arrangements found in s 311 of the Planning Act 2016 to applications made under the Integrated Planning Act 1997" (at [30]).
The Court ultimately disagreed with the Applicant, finding that these submissions were "not persuasive" (see [21] and [28]). The Court held that the Applicant did not properly demonstrate the assertions made in the first or second submissions, and that the explanatory notes and section 285 of the Planning Act relied upon in the third and fourth submissions did not confer the rights that the Applicant claimed.
Court finds that the Planning Act does not provide for an appeal against a deemed refusal of a development application made under the IPA
Assuming the Development Applications were properly made and had not lapsed at the time of the commencement of the Planning Act, it is likely that the decision-making period would have ended such that the Applicant may have had a right to commence an appeal in the Court, at any time, against the Council's deemed refusal of the development applications (at [14]). The Applicant therefore argued an alternative position, being that the Applicant had a right under the Planning Act to appeal against the deemed refusal of the Development Applications.
The Court considered the categories of appeal that may be commenced in the Court, in accordance with section 229 and schedule 1, table 1, item 1 of the Planning Act, and found that the Planning Act does not provide a right of appeal against a deemed refusal of a development application made under the IPA (at [38]).
Court finds that a right to appeal could exist under the AI Act
The Court found that if the Applicant's Development Applications were properly made and had not lapsed at the time that the SPA was repealed, a right to commence the appeals against the deemed refusal of the Development Applications exists under the AI Act (at [47]).
The AI Act provides in section 20(2) that the repeal of an Act does not "affect a right, privilege or liability acquired, accrued or incurred under the Act" or "affect…a remedy in relation to a right, privilege, liability or penalty…" under the Act. Whilst the Court found that the Applicant had not clearly demonstrated that its Development Applications were valid and effective at the time that the SPA was repealed, the Court did find that a possibility existed to appeal against the deemed refusal of the Development Applications under section 20 of the AI Act.
The Court relevantly concluded as follows (at [48]):
"Were the only obstacle to [the Applicant's] success its ability to demonstrate that its development applications were still on foot at the time the Sustainable Planning Act 2009 was repealed, I would have permitted [the Applicant] the opportunity to file an amended notice of appeal and adduce evidence about the progress of the development application. However, for reasons that follow, such a course is pointless."
Court finds that the merits of the Development Applications do not justify approval
Having established that a right of appeal may exist under the AI Act, the Court went on to consider the merits of each proposed development and the compliance with the relevant planning instruments. The Court considered whether there was compliance with the planning scheme in effect at the time the Development Applications were made, being the Redcliffe City Planning Scheme 2005 (2005 Planning Scheme), and also decided to give weight to the later planning scheme being the Moreton Bay Planning Scheme 2016 (2016 Planning Scheme).
The Court first considered compliance with the 2005 Planning Scheme, in respect of which the Council argued that it ought to be assumed that vegetation will be cleared for houses if the Development Applications are approved, and therefore the provisions in respect of ecology are relevant. The Applicant argued that the assumption ought not be made and that any future house would be subject to impact assessment, and therefore the provisions with respect to ecology are irrelevant for the Development Applications which are for reconfiguring a lot.
The Court did not accept the Applicant's submissions given that clearing for a boundary fence can occur without a development permit, and there is a prohibition under section 43(5)(b) of the Planning Act and section 16 and schedule 6 of the Planning Regulation 2017 (Qld) against a planning scheme stating particular forms of development are assessable development (at [72]). In particular, the Court stated as follows (at [73]):
"[The Applicant's] submissions assume that the only relevant issue when considering a proposed reconfiguration of lots is that the approval authorises the creation of lots of particular dimensions for disposition on separate titles. That approach is artificially constrained."
The Court went on to consider how it ought to construct the 2005 Planning Scheme with respect to the ecological issues. The Court relevantly stated as follows (at [89]):
"… I do not accept [the Applicant's] submissions about the approach to be taken to the construction of the [2005 Planning Scheme]. That is not to say that an absolute approach is appropriate, such that the loss of a single tree would sound in conflict warranting refusal. Rather, whether there is compliance is a question of fact and degree to be determined by reference to the circumstances of the case."
The Court found that there are ecological values present on the site which align with the values ascribed by the Natural Features or Resources Overlay, which are intended to be protected by the provisions of the corresponding Natural Features or Resources Overlay Code, as well as the described environmental outcomes under the 2005 Planning Scheme (at [120]). The Court found that the extent of clearing did not comply with those provisions, and "…will sound in unacceptable ecological impacts and an appreciable adverse planning consequence" and "…will unacceptably compromise the ecological and biodiversity value of the area" (at [120]). The Court concluded that
"[t]he non-compliance warrants refusal of the applications" (at [120]).
In respect of the 2016 Planning Scheme, the Court found that "[t]he contents of the 2016 Planning Scheme do not suggest a different result should follow" and that "the 2016 Planning Scheme only serves to reinforce my view that the applications should be refused" (at [134]).
Conclusion
The Court found that the Applicant had not demonstrated a legitimate right to appeal as it had not demonstrated that the Development Applications were valid at the time the SPA was repealed. Furthermore, and in any event, the Court found that the Development Applications ought not be approved having assessed their merits. The Court therefore ordered that the Development Applications be refused, and the appeals be dismissed.