Queensland Court of Appeal serves up a decision refusing leave to appeal against a refusal to grant a declaration that a proposed restaurant was impact assessable

In brief

The case of Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QCA 281 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) against the dismissal by the Planning and Environment Court of Queensland (P&E Court) in the case of Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QPEC 30 of an originating application for a declaration that a development application for a development permit for a material change of use for high impact industry and a food and drink outlet (Development Application) lodged with the Brisbane City Council (Council) was impact assessable rather than code assessable.

A summary of the P&E Court's decision is available in our November 2021 article.

The issue for the Court of Appeal was whether there was any legal error in the P&E Court's determination that the restaurant component of the proposed development was less than 250 m² gross floor area (GFA), and was therefore code assessable under the Brisbane City Plan 2014 (Version 20) (City Plan).

The Court of Appeal observed that under section 63(1) (Who may appeal) of the Planning and Environment Court Act 2016 (Qld) the findings of fact of the P&E Court could not be challenged on appeal, and that no error or mistake in law or jurisdictional error had been made out so as to warrant a grant of leave to appeal against the P&E Court's decision.

Given the Court of Appeal's dismissal of the application for leave to appeal, it was unnecessary for the Court of Appeal to consider an associated application to adduce further evidence (see [49] to [50]).

Background

The Development Application relevantly stated that the proposed development comprises a brewery with a GFA  of 538 m² and a restaurant with a GFA of 250 m^2.

Cannon Hill Investments Pty Ltd operates an abattoir adjacent to the land the subject of the Development Application (Adjacent Operator), and before the Development Application was decided, made representations to the Council that the Development Application ought to properly be subject to impact assessment because, relevantly, the restaurant component of the proposed development was not "less than 250 m²" as set out in the table of assessment for code assessable development in the industry zone in the City Plan.

Despite the description in the Development Application Form 1 that the restaurant was 250 m² GFA rather than less than 250 m² GFA, the Council approved the Development Application subject to conditions, which relevantly included that the development must be maintained and carried out in accordance with the approved drawings and documents, and that the restaurant component "…must remain less than 250m² gross floor area…" (Relevant Conditions) (see [14] to [16]).

P&E Court dismisses the application for a declaration

The P&E Court dismissed the Adjacent Operator's application seeking a declaration that the Development Application was to be subject to impact assessment because the P&E Court found that the restaurant component was for less than 250 m² GFA and thus did not require impact assessment.

The P&E Court's finding was supported by evidence in respect of the intention of the Applicant that the restaurant be less than 250 m² GFA, some of the plans of development, the town planning expert  reporting, and the Council's decision to accept the Development Application as code assessable and approve the Development Application with the Relevant Conditions (see [8] and [22] to [27]).

Whilst there was some ambiguity in some of the plans of development about the exact area of the restaurant, the P&E Court found at [26] that the error in the description of the GFA for the restaurant was of no material consequence given the Relevant Conditions attaching to the development approval.

Approach to resolve ambiguity in development applications

In respect of the ambiguity of the area of the restaurant component of the proposed development in some of the plans of development, the Court of Appeal found no error in the P&E Court's approach and held that the approach "…was consistent with authority establishing that the construction of a development approval or consent should not be done in the same way as statute or as a document drafted with legal expertise, but rather liberally and to achieve practical results" (at [26] citing for example Matijesevic v Logan City Council [1984] 1 Qd R 599, 605 and Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]).

No failure to take into account relevant evidence

The Court of Appeal rejected the Adjacent Operator's submission that the P&E Court did not take into account additional areas that it alleged were incorrectly omitted from the plans of development for the restaurant (Additional GFA) for the following reasons (see [31] to [42]):

• The P&E Court's findings of fact about the total GFA of the restaurant and the Council's acceptance of the Development Application implicitly rejected the contention that the Additional GFA ought to be included.

• The P&E Court expressly stated in [26] of its judgment that the plans of development submitted and approved by the Council appeared "…to have included a slightly larger area than 250m²".

• The P&E Court accepted that the Development Application was advanced as being code assessable, and a planning report stated that the area of the restaurant was no more than 250 m².

• A response to a query by the Council during the development assessment process confirmed that the restaurant "does not exceed 250 m² of gross floor area", which relevantly excluded the Additional GFA; as did another plan of development which showed the Additional GFA as being included in the area for brewery production purposes, which the P&E Court accepted.

The Court of Appeal also held that how much GFA is occupied by the restaurant component of the proposed development is a question of fact, which cannot be challenged on appeal (at [43]).

No jurisdictional error

The Adjacent Operator relevantly contended that the Council's decision to approve the Development Application was affected by jurisdictional error because "…the question of whether an application was code assessable admitted of only one correct answer, and that answer constituted a jurisdictional fact which, if answered incorrectly, revealed an excess of jurisdiction" (at [44]).

The Court of Appeal held that there was no jurisdictional error for reasons, including that the Development Application was intended to be code assessable, the restaurant was intended to be less than 250 m², and the Council understood, assessed, and decided the Development Application on those bases (see [45] to [47]).

Conclusion 

The Court of Appeal found no error or mistake in law or jurisdictional error and dismissed the application seeking leave to appeal against the P&E Court's refusal to grant a declaration that the Development Application was impact assessable.