Lack of jurisdiction: The Queensland Court of Appeal considers whether the Planning and Environment Court has jurisdiction to hear and determine an appeal with respect to an application to amend an area development plan under the Springfield Structure Plan

In brief

The case of Spring Lake Holdings Pty Ltd v Ipswich City Council & Anor [2023] QCA 233 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) the decision of the Planning and Environment Court of Queensland (Court) in the case of Spring Lake Holdings Pty Ltd (ACN: 156 492 885) as Trustee for Spring Lake Trust v Ipswich City Council & Anor [2023] QPEC 1 in which the Court dismissed an appeal against the deemed refusal by Ipswich City Council (Council) of an application to amend an area development plan under Part 14 of the Ipswich Planning Scheme 2006 (Planning Scheme), being the Springfield Structure Plan (Structure Plan) on the basis that the Court did not have jurisdiction to hear and determine the appeal by Spring Lake Holdings Pty Ltd (Applicant).

The Applicant applied for leave to appeal on the following grounds:

1. The Court erred in law in finding that an application to amend the Area Development Plan should not be characterised as a development application for a preliminary approval.

2. As a substantial landowner, the Applicant ought to have appeal rights under the Structure Plan.

Background

The Applicant owns land (Subject Land) which is subject to the Structure Plan and has been developed in accordance with the relevant area development plan (Area Development Plan). The Structure Plan "has a considerable legislative history" and is now in Part 14 of the Planning Scheme (at [8]).

The Court of Appeal recited the following relevant matters, facts and circumstances:

1. The Applicant wished to expand the existing development on the Subject Land to include "…an additional childcare centre, an extension of the motel and some additional tenancies of the same type as those already approved under the existing [Area Development Plan]…" (Proposed Development) (at [4]).

2. To do so the Applicant needed development approval under the Planning Act 2016 (Qld) (Planning Act) because the Proposed Development fell within the definition of a material change of use under the Planning Act (also at [4]). The Applicant lodged the development application on or about 6 December 2017 (Development Application) (at [5]).

3. Given that the Subject Land is situated within the area to which the Structure Plan applies, development on the Subject Land must be assessed for consistency with the Area Development Plan (at [8]).

4. The Council sent a letter to the Applicant dated 14 December 2017 in which the Council relevantly stated that an amendment to the Area Development Plan was required because the Proposed Development involves uses already occurring on the Subject Land but in locations different to those shown on the Area Development Plan (see [8] and [13]).

5. The Applicant subsequently made an application to the Council under section 2.2.4.4 of the Structure Plan to amend the Area Development Plan (Area Development Plan Application). At the same time, the Applicant made minor amendments to the Development Application to refer to the amended Area Development Plan the subject of the Area Development Plan Application (see [14] to [15]).

6. The Council did not decide the Area Development Plan Application or the Development Application, and the Applicant appealed to the Court on the basis of a deemed refusal of both applications (at [16]).

7. The Applicant argued that there were no lawful grounds for refusing either of the applications but the Court determined that the primary issue was whether the Court has jurisdiction to hear and decide the appeal in respect of the Area Development Plan Application (see [16] to [17]).

8. The Court held that "[t]he [Court] does not have jurisdiction to hear and determine the appeal from an application to amend the area development plan approved under the [Structure Plan]" (at [18]).

Court of Appeal upholds the Court's interpretation and characterisation of the Area Development Plan

The Applicant argued that the Court erred in the following respects (see [25] and [30]):

1. The Area Development Plan Application should be characterised as a development application for a preliminary approval under the Planning Act.

2. The Structure Plan is a local planning instrument and therefore the Area Development Plan Application was a variation request under the Planning Act as what was sought was to vary the effect of a local planning instrument.

In respect of the first argument, the Court of Appeal found that whilst "at a general level of abstraction it might be thought that there are some similarities in effect between…" the Area Development Plan Application and a development application for a preliminary approval under the Planning Act, each are "…different statutory concepts and processes…" and therefore concluded that "[t]here is nothing in this argument" (at [29]).

In respect of the second argument, the Applicant "fastened" onto discussion by the Court in its judgment that "an approved [area development plan] is not said to form part of the planning scheme and otherwise does not meet the definition of a local planning instrument" (see [30] to [31]). The Applicant's argument relied upon section 7(1) of the Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act) which provides that, "[i]n an Act, a reference…to a law (including [another] Act)…includes a reference to the statutory instruments made or in force under [that] law".

More specifically, the Applicant's argument was that a variation request, being the part of a development application for a preliminary approval which seeks to vary the effect of any local planning instrument, includes a variation to an approved area development plan given the operation of section 7(1) of the Acts Interpretation Act (at [31]). The Court of Appeal rejected the Applicant's argument for the reason that the application of section 7(1) of the Acts Interpretation Act can be displaced, wholly or partly, by a contrary intention appearing in any Act (see [31] and [32]).

The Court of Appeal went on to find that such contrary intention appears within the regime for making and amending local planning instruments under the Planning Act which sets out a process for making or amending a planning scheme and thus it cannot be the case that an area development approval, which has not undergone that process, can be treated as part of the planning scheme (at [31]).

The Court of Appeal held that even if the Structure Plan "…were a local planning instrument, an application to change an [area development plan] is not a variation request within the Planning Act" and "…a variation request is not a development application or an application for preliminary approval; it is something less than each of those things which may be made at the same time as an application for preliminary approval" (see [27], [28] and [32]).

Court of Appeal rejected an argument that it would be "very odd" if the Structure Plan denied appeal rights to landowners

The Applicant argued that it would be "very odd" if the Structure Plan denied appeal rights to substantial landowners such as itself (at [33]).

The Court of Appeal made it clear that "an intention to deny appeal rights would not lightly be inferred by a court" (at [33]). However, the Applicant's argument was ultimately rejected by the Court of Appeal for the following reasons:

1. Whether or not there are appeal rights is a question of law; "it does not matter whether or not the person asking the question is a substantial landowner" (at [34]).

2. "[If] there were a provision which was ambiguous as to whether or not appeal rights were created, it might be relevant to consider a beneficial construction", but in the current circumstances …there is no statute to beneficially construe. There is simply no provision identified by the [Applicant] capable of creating an appeal right" (at [34]).

3. "[The] express provisions of the [Structure Plan] give every indication that there is to be no appeal to the [Court] from a refusal to change an [area development plan]" (at [35]).

4. Section 857(5) of the [repealed] Sustainable Planning Act 2009 (Qld) which has continued operation by section 316(4) of the Planning Act "supports the conclusion that there is no appeal to the [Court] from a rejection of an application for an [area development plan] under the [Structure Plan]" (at [39]).

Conclusion

The Court of Appeal ordered that the application be dismissed with costs.