Redevelopment of Eagle Street Pier, Brisbane CBD

In brief

The case of Riverside Development Pty Ltd v Brisbane City Council & Ors [2022] QPEC 53 concerned an originating application by the landowner of Riparian Plaza (Adjoining Owner) to the Planning and Environment Court (Court) in respect of a development permit granted by the Brisbane City Council (Council) for a material change of use for a bar, hotel, and centre activities (Approval), which authorises the redevelopment of the Eagle Street Pier in Brisbane City.

The Adjoining Owner relevantly sought an order that the Approval be set aside, as well as the following declarations under section 11 of the Planning and Environment Court Act 2016 (Qld) (PECA):

1. A declaration that the development application was impact assessable.

2. A declaration that the development application was not properly made.

3. A declaration that changes made to the development application resulted in "substantially different development" and were not a "minor change".

4. A declaration that the Approval is invalid.

The applicants for the Approval (Applicants) and the Council opposed the Adjoining Owner's originating application.

The Court dismissed the originating application, and relevantly held as follows:

1. The Adjoining Owner did not establish that the category of assessment was impact assessable (at [178]).

2. The Council's delegate (Delegate) was required by section 51(4)(a) of the Planning Act 2016 (Qld) (Planning Act) to accept the development application because the Delegate was satisfied that the development application complied with section 51(1) to section 51(3) of the Planning Act (at [95]).

3. The Delegate was permitted to accept the change to the development application without affecting the development assessment process because the Delegate was satisfied that the changes were in response to the information request from the Council and was thus not required to consider whether the change was a minor change, and further that the Court does not have the power to review the correctness of the Delegate's decision and replace it with its own because the proceeding is not a merits appeal (see [185] and rule 26.1(b) of the Development Assessment Rules (DAR)).

4. Where a decision-maker is required under a statute to be "satisfied" of a particular matter, which "…is a matter of opinion or policy or taste it may be very difficult to show that it has erred…or that the decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the Courts" (at [186], which quotes Buck v Bavone [1976] HCA 24; (1998) 194 CLR 355 at [69] to [78]" (Buck case)).

5. The establishment of legal unreasonableness involves "a stringent test", which is "rarely established"; does not involve a merits review; "is not made out if the court disagrees with an evaluative decision or with the weight attributed to a factor taken into account in the decision"; and "the court's task [is] to examine the reasoning of the impugned decision to determine whether it was a decision that could be justified even though '…reasonable minds could reasonably differ' or whether the decision was so unreasonable that it lacked an evident and intelligible justification" (at [190], which quotes WB Rural Pty Ltd v Commissioner of State Revenue [2017] QSC 141; [2018] 1 Qd R 526 at [64] and [65] (WB Rural case)).

6. There is no realistic possibility that a decision other than accepting the change to the development application could have been made based on the material before the Delegate. In any event, if the Delegate did not comply with the DAR in accepting the changes to the development application, the Court would excuse the non-compliance under section 37 of the PECA because the evidence did not suggest that the non-compliance had an adverse impact on the development assessment process and there would be no practical utility in requiring the development application to return to the confirmation stage (see [212] to [216]).

The Delegate had regard to the relevant overall outcomes in the Brisbane City Plan 2014 (version 19) (City Plan) and assessed the development application against them (at [226]), and the Delegate's decision that the development application complied with all relevant assessment benchmarks was not legally unreasonable (see [315] and [321]).

Subject Land and proposed development

The Subject Land has a site area of 22,307 m², with a primary frontage to Eagle Street, a secondary frontage to Mary Street and Felix Street, and a frontage of approximately 250 metres to the Brisbane River.

The Subject Land is included in the Principal Centre Zone and the River Precinct of the City Centre Neighbourhood Plan (CCNP) under the City Plan.

The development application was code assessable and was to be assessed against the relevant assessment benchmarks in the CCNP Code, Waterway Corridors Overlay Code, Bicycle Network Overlay Code, and Transport, Access, Parking and Servicing Code.

The development application relevantly proposed the following (at [8]):

• The demolition of existing buildings, the Riverwalk, pontoons, and in-river moorings.

• The reclamation of 1,800 m² of a riverbed lease to facilitate the construction and expansion of an existing basement carpark.

• Two high rise premium grade office towers, each including basement carparking, a podium, and a public area.

• The construction of a new Riverwalk, approximately 274 metres in length.

• A shared access arrangement servicing the proposed development and Riparian Plaza.

The following change was made to the development application as part of the Applicants' response to an information request from the Council (Information Request) (at [18]):

• An increase of the towers and podium gross floor area, the total gross floor area for the project, and the building height.

• A reduction of the podium and setbacks to the eastern boundary, an increase in the setback to Eagle Street, changes to the setbacks from the Riverwalk, and an increase of the width of the Riverwalk.

• An increase in site cover from 44.5% to 48.8% and the area of landscaped open space from 56.5% to 68.1%, and a reduction in the tower site cover from 28.2% to 27.5%.

• ​ An increase of the total number of carparking, visitor, motorcycle, and bicycle spaces.

​The Council received 46 adverse submissions in respect of the development application, including some from the Adjoining Owner. The Delegate considered the adverse submissions in assessing the development application, but nevertheless under section 60(2) of the Planning Act granted the Approval on the basis that it complied with all of the relevant assessment benchmarks.

The Court held that, whilst the Delegate did not explicitly state the development complied with all of the relevant assessment benchmarks, it was evident by the "Notice about decision assessment report" prepared by the Delegate not including a statement of "the reasons why the application was approved despite the development not complying with any of the benchmarks" as required under section 63(5)(e) of the Planning Act and the statement that the Delegate was "…satisfied the application accords with the requirements of the Planning Act 2016" (at [40]).

Adjoining Owner's allegations

The Court relevantly considered the following allegations made by the Adjoining Owner (at [41]):

1. Adjoining Owner's consent – The Council did not have jurisdiction to grant the Approval because the development application could not properly be made without the Adjoining Owner's consent.

2. Impact rather than code assessable – The decision to grant the Approval was infected by jurisdictional error because the development application was impact assessable rather than code assessable.

3. Minor change not considered – The Council did not have jurisdiction to grant the Approval based on the changed development application because the change was not in response to the Information Request and the Delegate did not consider whether the changes resulted in "substantially different development".

4. Relevant considerations – The Delegate failed to take into account relevant considerations, including the overall outcomes of the relevant codes in the City Plan, non-compliances with the assessment benchmarks in the City Plan, and facts relating to easements. Thus, the decision to grant the Approval was unreasonable. 

5. ​Decision made under wrong provision – The decision to grant the Approval was infected by jurisdictional error because the decision was made under section 60(2)(a) of the Planning Act, rather than section 60(2)(b), which permits an assessment manager to approve a development application even if the development does not comply with some of the assessment benchmarks.

Development application was properly made

The Court held that the Adjoining Owner failed to demonstrate that the development application was not properly made for the following reasons (see [54] to [83] and [95]):

1. The delegate was satisfied after the giving of a confirmation notice, but before the giving of the Information Request, that the Adjoining Owner's consent was not required for the development application, which from the time of satisfaction required the Delegate under section 51(4)(a) of the Planning Act to accept the development application, and by virtue of section 60(1) of the Planning Act enlivened the power to decide the development application.

2. Whilst being satisfied about owner's consent after the giving of the confirmation notice did not comply with section 51 of the Planning Act, which relevantly states that an assessment manager must not accept a development application unless satisfied the application is in the approved form and is accompanied by relevant written consent of the owner, the non-compliance was not material for the following reasons and thus did not render the decision to grant the Approval invalid:

(a) The Delegate formed and remained of the view that the Adjoining Owner's land was not required to form part of the development application.

(b) The Approval does not authorise development on the Adjoining Owner's land or development that is inconsistent with an easement in favour of the Subject Land (Easement AB).

3. The proposed development does not rely on Easement AB for access, and if it did, consent would only be required if the development was inconsistent with the terms of Easement AB.

4. The Adjoining Owner's allegation that the driver of a service vehicle turning left from Creek Street into the Subject Land would be required to cut across the corner of Easement AB, or contrary to Queensland Road Rules straddle two lanes before turning into the Subject Land, was incorrect because in circumstances where it is not practicable to turn left from within the left lane, section 28(2) of the Transport Operations (Road Use Management―Road Rules) Regulation 2009 (Qld) permits a service vehicle that meets the other requirements of section 28(2) to use the lane next to the left lane as well.

5. The right to pass or repass over an easement is not lost because a vehicle exceeds the height of the volumetric easement.

Development application was code assessable 

The Adjoining Owner did not establish that the development exceeds the building height or site cover stated in the CCNP (see [97] to [164]). Thus, the Court was satisfied that the development application was code assessable and the Delegate was correct to assess it on that basis (see [165] and [176]).

Delegate not required to decide whether the change was a minor change

A development assessment process is not required to stop because a change is made to a development application, if the assessment manager is satisfied that the change is a minor change under the Planning Act or if rule 26.1 of the DAR is satisfied in that the assessment manager is satisfied that the change "only deals with a matter raised in a properly made submission for the application", "is in response to an information request for the application", or "is in response to further advice provided by an assessing authority about the application" (see [183] and section 52(3) of the Planning Act).

The Delegate was satisfied that the change to the development application was in response to the Information Request, and was therefore not required to determine whether the change was a minor change under the Planning Act (at [184]).

The Court held that the submission by the Adjoining Owner that a change to a development application is in response to an information request only where the information request calls for the change or discussed the change or something akin to the change is too narrow of an approach, which is not called for by the Planning Act or the DAR (at [196]).

The Court held that the nature of qualitative objectives in and the number of design solutions to demonstrate compliance with the City Plan "…needs to be borne in mind when considering whether a design change is responsive to an information request that calls for, in part, a re-design to demonstrate compliance with City Plan 2014" (see [197] and [198]). 

The Court was satisfied that the City Plan admitted of the prospect of more than one design solution to demonstrate compliance, and that it was open to the Delegate to accept the change to the development application as being in response to the Information Request (see [197], [199], [203], [205], [207], [209], and [210]).

In the event that the Delegate's decision to accept the change under rule 26.1(b) of the DAR was infected by legal error, the Court held that the decision is not invalid because "…there is no realistic possibility that a different decision could have been made…" and that the non-compliance, if any, "represents a matter of form rather than substance" (see [214] and [215]). The Court was also satisfied that if there was non-compliance by the Delegate with rule 26.1 of the DAR that the non-compliance was appropriate for excusal under section 37 of the PECA.

Relevant considerations were considered by the Delegate 

A decision-maker will fall into error where it fails to have regard to a consideration that it was bound to take into account. The matters which a decision-maker is bound to take into account is to be determined by construing the statute conferring the decision-making power (see [89] and [218]).

The Court relevantly held as follows in respect of the Adjoining Owner's allegations that the Delegate failed to take into account relevant considerations:

1. Overall outcomes in the City Plan – As a general proposition the Delegate was required to take into account compliance with overall outcomes in the City Plan, but "…it does not follow [that] the delegate was bound to consider every overall outcome in every code prescribed for assessment of the development application". For example, the failure to consider an overall outcome in the CCNP which relates to a precinct other than the River Precinct, in which the Subject Land is located, is not likely to be material. The evidence before the Court demonstrated that the Delegate considered compliance with the relevant overall outcomes in the applicable codes in the City Plan (see [223] to [226]).

2. ​Easement AB – The Delegate considered and therefore did not fail to take into account relevant matters in respect of Easement AB (at [92]). The Queensland Road Rules were not a mandatory consideration for the Delegate because the considerations are not expressly identified in the Planning Act and there is little, if any, thing about the scope, subject matter, and purpose of the Planning Act which suggests that the Queensland Road Rules are a mandatory consideration as distinct from a consideration that may be taken into account by an assessment manager (at [91]).

The Adjoining Owner sought to have excluded from the proceeding evidence of the Delegate in respect of the Delegate's consideration of the relevant considerations. The Court held that "…whilst a decision-maker is ordinarily bound by and confined to the reasons given for a decision, there are exceptions to this principle. Further evidence is admissible where its purpose is to elaborate on matters before the decision-maker and provide elucidation, rather than fundamental alteration or contradiction of the decision", which is what the Delegate's evidence did (at [234]).

The Court held that the assessment carried out by the Delegate was "entirely orthodox and practical".

Delegate's findings of compliance with the assessment benchmarks was not legally unreasonable

The Court held that the language of the provisions in the City Plan are performance-based, and "…provide a degree of elasticity, or flexibility, for the decision-maker to arrive at a finding of compliance" (at [246]).

The Court considered the test for legal unreasonableness on the basis of the principles established in the Buck case and WB Rural case, and the Delegate's decision in respect of each relevant overall outcome and performance outcome of each relevant code. The Court held that the Adjoining Owner failed to establish that the Delegate's findings were unjustifiable or lacking an evident or intelligible basis and thus were not legally unreasonable (see [253], [257], [260], [265] to [266], [274] to [277], [280] to [282], [285], [287], [290] to [294], [297], [301] to [303], [306], [313], and [315]).

Delegate's decision to grant the Approval was rightly made under section 60(2)(a) of the Planning Act

The Delegate was authorised to make a decision to grant the Approval under section 60(2)(a) of the Planning Act on the basis that the Delegate was satisfied that the proposed development complied with all the relevant assessment benchmarks. Section 60(2)(b) of the Planning Act was therefore not enlivened (see [319] to [322]).

Conclusion 

The Court held that the Adjoining Owner did not demonstrate that it is entitled to the relief sought and dismissed the originating application.