The Planning and Environment Court in the recent decision of Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council (2015) QPEC 11 makes a clear distinction between its powers in declaratory proceedings and on appeal when considering an opinion formed by the assessment manager that a person would be likely to make a properly made submission.

In this alert, Partner David Nicholls, Senior Associate Gemma Chadwick and Law Graduate Ruby Rayner comment on this important Court decision, in which HopgoodGanim Lawyers acted for the successful appellant.

The case concerned an appeal against the Council’s failure to decide a request to change a development approval for land at Oxenford pursuant to section 369 of the Sustainable Planning Act 2009 (Qld) (SPA).  The change included the introduction of an additional three lots within the existing development footprint of a 49 lot estate.  The Council had formed the view that it could not proceed with assessment of the permissible change request as it had received correspondence from a resident asserting that the resident would object to the change if the circumstances had allowed.   The Council indicated that it had no other concerns and would have otherwise approved the request.

The developer instituted an appeal against the deemed refusal under section 466 of SPA, which was decided by His Honour Judge Morzone QC in favour of the developer.

An issue in the appeal concerned the scope of the Court’s powers on appeal, and whether an opinion formed by a Council under a statutory instrument must stand unless it can be shown to be vitiated by error.

Key Points

The Court drew a clear distinction between the scope of its powers in an appeal as distinct from in a declaratory proceeding.

  • In declaratory proceedings brought under section 456 of SPA, the opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed, or it was based on irrelevant considerations, or in some other way unjustifiable. If the opinion of Council was justifiable it must stand whether or not others may disagree with it. This is the classic administrative law test arising from Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 223-234 per Lord Greene MR.
  • On appeal, the Court must consider the matter anew. That is, the Court hears the matter afresh (including with fresh evidence) regardless of error, assesses the application on its merits and decides it as the responsible entity. This means that the Court is not bound to follow or adopt the decision of the Council, even where the statutory test calls up the responsible entity’s “opinion”
  • Developers should carefully consider the mechanism they adopt for challenging a decision made by Council on a permissible change request. An appeal under section 466 of SPA provides an unqualified right to a hearing of the request afresh on its merits.The Court’s powers in declaratory proceedings are much more limited, being confined to review of the decision focussing on legal error, procedural unfairness and similar administrative law remedies.

Background

The development at Oxenford had a lengthy history.  The initial development application had been changed several times before the original approval was issued in 2011, and there had been various subsequent changes to the approval between 2012 and 2015. As most recently changed, the approval comprised a residential subdivision for 49 lots.  The subject permissible change request sought the introduction of an additional three lots within the existing development footprint.

Despite the minor nature of the change, the Council received correspondence from a local resident asserting that he would object to the change if the circumstances allowed.  This “would-be submitter” had not made a submission in respect of the original development application and was clearly aggrieved by previously approved changes to the approval.

The Council took the position that, in light of the correspondence, the change was not a permissible change as it could not form the opinion that the change would not be likely to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed (as required by section 367(1)(c) of SPA).  The Council did not, therefore, proceed with assessment of the request, causing the developer to file a deemed refusal appeal.

Judgment

The key issue before the Court was whether the “responsible entity’s opinion” could only be overturned by the Court if the opinion could be shown to be so unreasonable as to meet the Wednesbury unreasonableness test, or whether the Planning and Environment Court had the power on appeal to hear the matter afresh on its merits, unconstrained by the Council’s previous decision, including its opinion about the likelihood of submissions.

The Court decided the issue in favour of the developer and concluded that imposing a requirement to demonstrate Wednesbury unreasonableness would be an “unwarranted fetter to curtail the Court’s appellate function and power”.  The Court noted that in an appeal against a refusal or deemed refusal of a permissible change request, the Court must hear the matter afresh (section 495(1) providing that an appeal is by way of hearing anew), consider the factors required by section 367 of SPA, undertake an assessment under section 374 of SPA and then decide the request under section 375. In doing so, the Court may arrive at its own decision, without the need to find that the Council’s decision (in this case, its refusal to process the request) was infected by administrative error or otherwise unjustifiable.  The case of Hayday Pty Ltd v BCC [2005] QPEC 102 was distinguished.

His Honour also distinguished the case of Christian Outreach Centre v Toowoomba RC [2012] QPELR 542.  That case concerned an application made by a would-be submitter seeking a declaration of invalidity of the Council’s decision on a permissible change request. In Christian Outreach Centre, the Council’s opinion that a submission was unlikely was quashed upon the basis of Wednesbury unreasonableness.  That case turned on its own circumstances and was, notably, an application for declarations rather than an appeal.

It is also worthy of note that the Court determined the matters raised by the “would-be submitter” were directed at the validity of previous changes made to the development approval rather than those that had been requested.

The Court noted that:

  • in applying the test under section 367(1)(c), the question is whether the objection was provoked by the change requested, not the previously approved changes to the original approval.
  • an existing development approval must be treated as valid unless declared invalid by a Court.If a person wished to challenge the validity of the earlier approved development request, he or she must bring an application for declaratory proceedings suitable for the purpose. Where a development approval has been permissibly changed pursuant to SPA, the approval as amended must be taken to be valid and effective.The last manifestation of the development approval becomes the benchmark or yardstick to identify the extent of proposed changes.

Ultimately, the only consideration for the Court was whether the issues raised by the “would-be submitter” were provoked by the changes proposed by the current permissible change request.  His Honour decided that they were not, was otherwise satisfied that the changes were “permissible changes”, and that the permissible change request should be approved subject to reasonable and relevant conditions.