The case of Leeward Management Pty Ltd v Sunshine Coast Regional Council [2025] QCA 11 concerned an application to the Queensland Court of Appeal (Court), by the applicant development company (Applicant), for leave to appeal against the decision of the Planning and Environment Court of Queensland (P&E Court) in the case of Leeward Management Pty Ltd v Sunshine Coast Regional Council [2024] QPEC 31 (Primary Decision) in which the P&E Court dismissed the Applicant's application for a declaration that a change application it sought did not require impact assessment. 

The Applicant relied on the following four grounds of appeal in respect of the Primary Decision (at [5]):

• The primary judge erred in finding that the Applicant's change application made to the Sunshine Coast Regional Council (Council) under the Planning Act 2016 (Qld) (Planning Act) to change a development permit, which introduced building work and added new structures above the approved second storey (Change Application), required impact assessment under the Sunshine Coast Planning Scheme 2014 (Planning Scheme) and the Planning Act.

• The primary judge erred in finding that section 8(5) of the Planning Act does not preclude the Planning Scheme from categorising the development proposed by the Change Application as impact assessable, rather than code assessable, under the Planning Act.

• The primary judge erred in failing to find that, in respect of a material change of use for a dwelling house, sections 8(5) and 8(6) of the Planning Act and/or section 43(4) of the Planning Act preclude the Planning Scheme from doing any of the matters under section 43(1) because of the building height.

• The primary judge erred in failing to find that provisions of the Planning Act, the Planning Regulation 2017 (Qld) (Planning Regulation), the Building Act 1975 (Qld) (Building Act) and the Building Regulation 2021 (Qld) (Building Regulation), which impose limitations and exclusions in respect of planning scheme provisions, apply to provisions of a planning scheme regulating or limiting building height in respect of a material change of use of premises.

The Applicant also sought leave to appeal against the decision of the P&E Court that the Applicant pay the Council's costs of the proceeding, including of the Change Application, on the standard basis (Cost Decision) 

The Applicant relied on the following two grounds of appeal in respect of the Costs Decision (at [6]):

1. The primary judge mischaracterised the Applicant's case as one alleging that the Change Application sought permission for "building work" under the Planning Act and Planning Scheme for a dwelling house exceeding 8.5 metres in height, as opposed to permission under the Planning Act and Planning Scheme for a material change of use for a dwelling house exceeding 8.5 metres in height.

2. The primary judge erred in failing to recognise the Applicant's legal propositions regarding the construction of Queensland planning legislation and the Planning Scheme and their relevance to the Change Application.

Whilst the Court granted the Applicant leave to appeal the Primary Decision, finding there was a question of law warranting a grant of leave to appeal (at [43]), the Court ultimately dismissed the appeal against the Primary Decision and subsequently refused leave to appeal against the Costs Decision.

The Applicant obtained from the Council in early 2023 a development permit for a material change of use to establish a dwelling house, which was to be undertaken in accordance with plans specifying a building height of no more than 8.5 metres (at [7]).

Later in 2023, the Applicant submitted its Change Application which sought permission to change the development permit to include new structures above the second storey which included a rumpus room, resulting in the development now being 10.2 metres in height (at [8]).

The Council determined that the increased height of the development would conflict with the Height of Buildings and Structures Overlay, and that therefore the development required impact assessment. The Applicant then sought a declaration that the Change Application did not require impact assessment (at [10]).

The Applicant argued that the Planning Regulation, as opposed to the Planning Scheme, was the correct categorising instrument under which the Change Application was to be assessed and that therefore the development was subject to code assessment (at [25]). 

The primary judge found that the Applicant's original development application related only to development permit for a material change of use and that the Applicant's "…attempt to change the application, to recast the approval as one concerning building work, was disingenuous and ineffective" (at [27]).

As a result, the primary judge found that the Planning Scheme was the correct categorising instrument under which the Change Application was to be assessed and the Planning Regulation had no relevance to the category of assessment (at [28]). Therefore, in accordance with the Planning Scheme, the Change Application required impact assessment (at [29]).

The Applicant contended that such a characterisation would be "…inconsistent with the [Planning Regulation], because the [Building Act] 'prescribes the building height is regulated under the building assessment provisions and is therefore defined as building work and categorised as code-assessable development…'" (at [30]).

The Applicant further submitted that the "…characterisation of such a material change of use, as impact-assessable development by the planning scheme, on the basis of building work necessarily associated with that change of use, was invalid by reason of ss 8(5) and (6) of the [Planning Act]" (at [31]).

Accordingly, the Applicant argued that Part 5 of the Planning Scheme is invalid, because it sets assessment benchmarks which breach the prohibition contained in section 8(5) of the Planning Act and operates to require an application for building work to be subject to impact assessment (at [34]).

The Council conceded that its Planning Scheme is a local planning instrument to which section 8 of the Planning Act applies, and that the assessment benchmark dealing with height of buildings and structural overlay is "a provision about building work" (at [36]).

The Council submitted, however, that the building work is not "regulated under the building assessment provisions" as specified in the section 8 prohibition. The Court agreed with this submission, finding that it was "…consistent with the proper interpretation of the legislative provisions" (at [37]).

The definition of "building assessment provisions" in section 30(d) of the Building Act includes "…any provisions of a regulation made under the [Building Act] relating to building assessment work or accepted building work". Further, section 6 of the Building Regulation allows for local government planning schemes to provide for all or some of the performance criteria set out in the Queensland Development Code, including by providing quantifiable standards for qualitative statements regarding the matters provided for under the performance criteria (at [38]).

While the Planning Scheme provides for a maximum height for the purposes of determining a category of assessment, it does not provide any performance criteria for height or any acceptable solution or quantifiable standards for height (at [39]).

The Court therefore found that the relevant section of the Planning Scheme "…is not a provision about building work regulated under the building assessment provisions of the [Building Act]" (at [41]).

The Court found no error in the primary judge's dismissal of the Applicant's application for a declaration (at [42]) and found that no question of law arose from the exercise of discretion to award costs (at [44]).

While leave to appeal the Primary Decision was granted, the appeal with respect to the Primary Decision was dismissed, leave to appeal the Costs Decision was refused, and the Applicant was ordered to pay the Council's costs with respect to the application for leave to appeal.