Welcome to our first Planning and Environment Quarterly Case Review. In these reviews, we will provide a snapshot of topical and interesting cases that have passed through the Queensland Planning and Environment Court (P&E Court) and Court of Appeal in the last three months and how the decisions affect stakeholders. In this quarter’s review, Senior Associate Gemma Chadwick, Solicitor Tom Copley, and Law Graduate Hamish Mulchay summarise cases concerning:

For further information and discussion on any of these cases, please contact our Planning and Environment team.

Existing use rights

Bucknell & Anor v Townsville City Council & Anor [2021] QCA 26

This case analysed the scope of existing use rights, providing an interesting contrast in the approaches of the Justices of Court of Appeal as to the proper construction of a historic approval.

An approval was granted in 1991 for a private airstrip and a hangar. The applicants claimed the owner was using the property for air services, citing the construction of four additional hangars and a second runway in support of their claims as constituting a material change in the scale and intensity of use. Additionally, they claimed the property was used for short term accommodation and publicly advertised fly-ins – uses for which (it was alleged) the owner had no existing use rights.

The key issues were:

  • the nature and extent of the use authorised by the historic approval; and
  • the scope of a condition which required the private airstrip to “substantially comply with the proposal as detailed in the information lodged in support of the subject application”.

The majority dismissed the fly-ins and accommodation issues, due to the infrequency of that use (the fly-in events only happened twice).

The use of multiple hangars and airstrips was more controversial. The majority of Philippides and Bradley J gave the approval a broad construction, determining the approved use was private air strip as defined in the council’s 1988 planning scheme, and that no condition (including condition 3, or the approved site plan) limited the scope of that approved use. McMurdo JA dissented, concluding the use of the land, permitted by the 1991 approval, was the use described and depicted in the relevant documents (including the site plan and development application material).

Given her conclusion about the scope of the 1991 approval, Her Honour would have allowed the appeal and ordered the matter be remitted to the P&E Court, for a decision on whether the use of the land for air services had come to exceed the scale and intensity authorised by any existing lawful use rights. However, the majority concluded the P&E Court did not err in identifying the scope of the 1991 approval and dismissed the appeal.

Currency periods

We Kando Pty Ltd v Maranoa Regional Council [2021] QPEC 1

In this case, the P&E Court overturned council’s decision to refuse an application to extend the currency period for a regulated waste storage facility.

The test under the Planning Act confers a broad discretion on the assessment manager to assess and decide an extension application (compared to the much more limited test that applied under the Sustainable Planning Act).

Council argued there had been a change in policy between its old and new planning schemes, but that was not supported by the evidence of the town planning experts. The P&E Court concluded nothing had materially changed since the development approval was originally given to suggest that the currency period should not be extended for a further two years.

The judge also made note of the appellant’s mental health issues as an explanation for his delay, as well as the significant sums of money spent progressing the approval, which meant We Kando was ready to commence development of the site for the proposed use.

Prematurity and out of sequence development

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4

This case is notable for the role social planning evidence played in addressing the traditional planning concepts of prematurity and out of sequence development.

The matter concerned six appeals, heard together, regarding a proposed development for a total of 835 residential lots across 21 stages. The land was predominantly cleared but retained some ecological value, including some koala habitat. The development was within the emerging community zone, but outside the priority infrastructure area (PIA), which was significant to the appeal.

Ecology, traffic and need were all explored by the judge but, in terms of town planning considerations, the key issue was whether the proposed development was premature.

The judge found the council had a clear planning strategy, expressed through its planning scheme, to have residential development occur in sequence with the availability of infrastructure. In the appeal, the issue of prematurity went beyond the provision of essential infrastructure such as water and sewerage (which the developer proposed to bring to the site) but encompassed broader concerns, such as an inability to access a full range of community and social facilities (like public transport, community centres and sport and/or recreation facilities).

The P&E Court concluded the development was premature. This was compounded by the development’s physical positioning outside the PIA and its creation of costs to the council in bringing forward unplanned infrastructure.

Conditioning powers

Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12

This case dealt with whether a condition imposed on an approval was inconsistent with a condition imposed on a previous approval.

The new approval for a dance studio included a condition requiring the provision of a pathway. However, this pathway would cut in to landscaping which was required by a condition of previous approval over the site for a warehouse. Section 66(2) of the Planning Act states a condition must not be inconsistent with a condition of an earlier development approval in effect for the development unless certain circumstances are met. A submitter challenged council’s decision to issue the new approval for the dance studio and the inconsistency issue arose as a preliminary point in the hearing of the appeal.

The P&E Court observed that, even if the conditions were inconsistent, that was of no moment because:

  • different approvals for different uses may co-exist for the same land; and
  • there is an ability to change or remove conditions imposed by an earlier approval, even if it has been acted upon.

The P&E Court ultimately concluded section 66(2) was not engaged. This was because the earlier development approval and its conditions were not in effect for the subject development, which was for a materially different use – that is, the conditions of the previous approval regulated the warehouse use, and not the dance studio use.

Trask & Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 7

Here, the P&E Court considered whether various conditions controlling vegetation clearing were reasonable and relevant, and contemplated what vegetation clearing is necessary for essential management.

The issue arose out of a long running litigation associated with conditions imposed upon approvals for dwelling houses on two lots on the edge of an existing residential estate at Rothwell. As the appeals progressed towards a hearing, council issued a revised suite of conditions. The substantial dispute centred on two conditions:

  • condition 1, which required a house and its ancillary structures to be located in a building envelop proposed by council (in a cleared area of each lot); and
  • condition 3(b), which sought to prohibit the clearing of native vegetation outside of the area necessary to implement an approved bushfire management plan.

Traspunt alleged there was no town planning justification for council’s building envelopes in condition 1 and raised practical difficulties in terms of access. It proposed house locations in vegetated areas of each lot. The P&E Court determined that condition 1 struck an appropriate balance between the applicable assessment benchmarks with respect to bushfire and ecology and was relevant and reasonable. The P&E Court did, however, accept that it was appropriate to amend condition 1 to permit certain ancillary structures within the bushfire hazard protection zone.

Council contended condition 3(b) was reasonable and relevant. It stated that, without the condition, upon the construction of house or other structure further clearing could be undertaken “as of right” (relying on the essential management exemption in the Planning Regulation) to a distance of 35m from the edge of a building or structure, rather than the 12m zone the bushfire experts said was necessary. The judgment is interesting as it includes relevant commentary on what vegetation clearing is necessary for essential management. Further, the P&E Court concluded condition 3(b) was not a lawful condition. The judge referenced her reasoning in Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 6, which deals with similar issues in respect of conditions imposed on a condition for operational work and noted:

  • clearing vegetation constitutes a form of development in its own right;
  • the planning policy with respect to the protection of the subject vegetation could be adequately implemented through the operation of the applicable planning legislation;
  • there was no apparent planning purpose to a peremptory decision that all future vegetation clearing should be prohibited without consideration of the basis on which the clearing is sought and the facts and circumstances that pertain at that kind.

The judgment contains a thorough analysis of the conditioning powers under section 65 of the Planning Act, as well as a discussion of the residual discretion of a council (and the P&E Court on appeal) to determine what lawful conditions should be imposed.

Costs

Traspunt No. 7 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 9

This instalment in the Traspunt series of cases is a rare example of a successful application for costs based on the P&E Court’s power to award costs where a proceeding is frivolous or vexatious.

The general rule in the P&E Court is that each party must bear its own costs, with the P&E Court only able to award costs in limited circumstances under section 60(1)(b) of the P&E Court Act 2016.

Moreton Bay Regional Council was awarded costs (partially on an indemnity basis), after the dismissal of Traspunt’s appeal against a condition of development approval. The fight had been about whether a condition requiring the dedication of road reserve at no cost to council was a condition about trunk, or non-trunk, infrastructure. Traspunt argued the condition was a necessary infrastructure condition under section 128 of the Planning Act, triggering offset and refund requirements. Council argued the condition was properly imposed under section 145 of the Planning Act – which allows a local government to impose a condition about non-trunk infrastructure.

Kefford DCJ found that Traspunt’s appeal (after a certain point) met the high standard of frivolous and vexatious on the basis:

  • there was no arguable case that the condition engaged the three limbs of section 128 of the Planning Act required to demonstrate it was a necessary infrastructure condition;
  • that was because there was clear and uncontested evidence from both parties’ traffic engineers that it did not satisfy the requirements of section 128(2) of the Planning Act; and
  • that evidence was fatal to Traspunt’s case because – once it was clear its case based on section 128 was doomed to fail – it had no reasonable prospect of success in the appeal given it had earlier conceded that the condition could have been imposed under section 145.

Kefford DCJ was satisfied an award of costs was justified. The costs order was on a standard basis for a portion of the appeal and then on an indemnity basis following the point in time after which Traspunt continued in its appeal despite being given an adjournment (by the P&E Court) to expressly consider the evidence, its position, and the cost ramifications of proceeding.

Patterson v Council of the City of Gold Coast & Ors [2020] QPEC 69

This case is an important reminder of the need to bring any non-compliance to the P&E Court’s attention at the earliest opportunity. Failure to do so may result in cost consequences.

The Council made an application for costs which was triggered by the appellant’s late notification of a photo montage expert, which resulted in the need for the timetable set by a previous directions order to be altered. Council was aware that the appellant intended to notify an additional expert and had been expressing its concern to the Appellant that steps needed to be taken to amend the timetable. Ultimately, the appellant notified the additional expert but failed to bring the matter before the P&E Court. Council filed its own application.

The P&E Court noted the appellant should have acted more swiftly to bring the matter before the P&E Court to vary the directions, and it should not have been left to the council to make the application.

The P&E Court ordered the appellant pay the council’s costs “at least insofar as those costs exceed those costs which the respondent would have incurred had an application to vary the order been brought by the applicant”.

Conclusion

This is just a small sample of the cases decided so far in 2021. There are more interesting decisions on the horizon, so keep a look out for the next Planning and Environment Quarterly Case Review in the middle of the year.