Planning and Environment legislation, cases and industry news - Winter Edition 2016

Queensland’s Planning System – Looking forward, looking back » Not just reinstatement - the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 » Gerhardt Revisited » SEQ Regional Plan Under Review » Interpretation of development approvals and calculation of infrastructure charges » Compensation for natural hazards » Case Note – Surfers International » Claims for owner’s time » Costs – further evidence that the rules do not require change EDITION #4 WINTER 2016 Table of Contents EDITORIAL 1 QUEENSLAND’S PLANNING SYSTEM – LOOKING FORWARD, LOOKING BACK 2 NOT JUST REINSTATEMENT - THE VEGETATION MANAGEMENT (REINSTATEMENT) AND OTHER LEGISLATION AMENDMENT BILL 2016 4 GERHARDT REVISITED 6 SEQ REGIONAL PLAN UNDER REVIEW 7 INTERPRETATION OF DEVELOPMENT APPROVALS AND CALCULATION OF INFRASTRUCTURE CHARGES 8 COMPENSATION FOR NATURAL HAZARDS 10 CASE NOTE – SURFERS INTERNATIONAL 12 CLAIMS FOR OWNER’S TIME 15 COSTS – FURTHER EVIDENCE THAT THE RULES DO NOT REQUIRE CHANGE 16 BRISBANE Phone +61 7 3024 0000 Fax+61 7 3024 0300 Level 8, Waterfront Place, 1 Eagle Street, Brisbane QLD 4000 PERTH Phone +61 8 9211 8111 Fax+61 8 9221 9100 Level 27, Allendale Square, 77 St Georges Terrace, Perth WA 6000 Email [email protected] EDITION #4 WINTER 2016 COVER IMAGE CREDIT: BRISBANE MARKETING Editorial SARAH MACOUN The passage of the new suite of planning legislation, the Planning Act 2015 (and Planning and Environment Court Act 2015 and Planning (Consequential) and Other Legislation Amendment Bill Act), on 25 May 2016 was a momentous milestone for planning and development in Queensland, marking the culmination of years of consultation about planning reform. In his Winter Envisage article, David reflects on the problems of the existing and previous planning regimes, and provides his perspective on whether the new Planning Act will make any difference to Queensland’s planning and development landscape. For my part, I believe that the State Government’s oversight of local government planning schemes is critical to ensuring that the new assessment and decision rules function as intended. While the State has tended to confine itself during the “State Interest” check to giving directions about “big ticket” State Interests such main roads, transport and matters of State environmental significance, it is surely a State Interest, having regard to the purpose of the Planning Act, to ensure that planning schemes are drafted to support the ambitions of the new planning regime and, importantly, not actively work against those goals. For that reason, in my opinion, the State must take a more active role in using the State Interest check process to moderate scheme drafting that fails to embrace the aims of the new planning legislation. Olivia’s article this quarter is timely given the recent coastal weather events in New South Wales as it looks at a part of the new Planning Act that proved particularly controversial – the changes to the provisions about compensation for natural hazards. My article about the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 examines some of the key stakeholder submissions in respect of that Bill in an effort to predict where the vegetation management agenda might head next. Since writing that article, the Agriculture and Environment Committee has delivered its report (on 30 June 2016). Noting that the Bill polarised views among submitters, the Committee was unable to reach a majority decision as to whether the Bill be passed. Notably, two strong statements of reservation are appended to the report – from the opposition members of the Committee and the Member for Mount Isa, Rob Katter MP. Robyn touches on the next significant piece of planning for SouthEast Queensland – the expected release of a draft new South-East Queensland Regional Plan later in 2016. Her article comments on some of the early information released by the State Government, in particular the likely focus on infill development . A number of the articles in Winter Envisage analyse recent significant Court decisions. David’s article examines the Court of Appeal’s approach to interpreting development approvals and issues of prospective illegality in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19. David also provides an update on the Brisbane City Council v Gerhardt [2016] QCA 76 in his article “Gerhardt revisited”. Gemma’s case note on the decision in Body Corporate for Surfers International Community Titles Scheme 12247 v Gold Coast City Council & Anor [2016] QPEC 29 questions whether the Court’s approach in that case sits comfortably with the accepted approach to construing planning schemes. Amye’s article rounds out our consideration of recent case law by examining two instances where the Planning and Environment Court has declined to order costs in the context of declaratory proceedings against parties with noncommercial interests in the result. Finally in this edition of Envisage, James continues his specialist series of articles in relation to resumption and compensation, focusing on the established principles regarding the circumstances in which the costs attributable to the time spent by a claimant in preparing a compensation claim will be recoverable. Enjoy the Envisage Winter 2016 edition. PAGE 1 LOOKING BACK Today the planning and development landscape is affected by many competing tensions. These tensions are often underpinned by opposing political and philosophical positions. The planning legislation over the past 15 or so years has changed significantly, and on many occasions, largely in response to environmental issues. On many occasions, there has been a legislative overreaction to a particular issue, and then a subsequent correction usually involving a furious reaction from either the housing or the conservation lobby, followed later by reinstatement of the original position. The IPA/SPA era can clearly be seen as a period of volatility in planning reflected by the numerous and substantive changes to the legislation since 1998. That volatility has been magnified through the integration and coordination of all regulation affecting development under the umbrella of the planning legislation. Politics has largely driven this volatility. The see-saw effects of regular changes to the system and the resultant costs and consequences have on the whole been economically debilitating, mainly because of reduced land supply and upward pressure on the costs of development. Perhaps the most obvious proof that the planning system became dysfunctional lies in the fact that governments of both political persuasions have adopted a mechanism to facilitate development outside the planning system, namely the ULDA / EDQ. There is no doubt that planning and development reached the point where such a circuit breaker was necessary. LOOKING FORWARD The most important change to the planning framework will be the new “decision rules”. The Planning Act 2016 is an earnest attempt to resuscitate what the IPA originally intended to deliver, namely balanced performance based planning decisions. It is hoped this will be achieved when the present “conflict / sufficient grounds” approach to decision making is repealed upon commencement of the new legislation. Many lawyers love the “conflict / sufficient grounds” rules and will no doubt miss them. The word “conflict” portrays the planning system as a battleground. Contextually, its original birthplace was in decisions of the Court when developing jurisprudence around re-zoning applications. Privately initiated re-zoning was sanctioned by the planning legislation and involved changing the planning scheme by taking land out of one zone and putting it into another zone. It is self-evident that what was proposed by re-zoning applications involved removing the “conflict” with the scheme as it stood at the time the re-zoning application was made. The concept of conflict has been extended over the years to cover all types of planning applications through its codification in the planning legislation, more particularly in the IPA and the SPA. “Conflict” is not an appropriate word to use when interpreting planning schemes. Why it has come to be used by the courts, and subsequently codified in the legislation, is a good question. The courts for many years have said that one should not construe planning schemes as if they were acts of parliament. Rather they should be read as a whole with an eye to discerning their true planning objectives. Instead, for many years we have been driven by a legislative directive to search for “conflicts”. This seems counter-intuitive. Queensland’s Planning System – Looking forward, looking back DAVID NICHOLLS I am often asked whether the Planning Act 2016 will make any difference to Queensland’s planning and development landscape. To answer this question, one must look both backwards and forwards. The rear-view mirror allows honest and objective assessment of the present landscape. Looking forward requires an informed prediction based upon a belief that the underlying purpose of the reforms will be embraced. 2 PAGE With the word “conflict” eradicated from the statutory language, hopefully it will also be removed from the lexicon of planning lawyers. What will replace it? Time will tell but it is hoped that in the courts cases will turn upon the degree of “inconsistency” between a development proposal and the true intent and objectives of a planning scheme, while balancing internal competition between a scheme’s measures and standards. This next phase of the reform process will play out in the drafting of planning schemes and the approach taken by planning lawyers and the Court to the new rules. While the Court will no longer be compelled by the statute to refuse development applications, its resulting “discretion” will remain constrained by the language of planning schemes. Difficulties will arise at the margins where a planning scheme is either prescriptive, almost to the point of prohibition, or where it is obscure and unhelpful. Ideally there ought to be improvements in scheme drafting which avoid these extremes and adopt genuine measurable or observable performance standards. At least the planning statute will no longer encourage scheme drafting designed to effect de facto prohibition by precipitating “conflict”. IMAGE CREDIT: FreeImages.com/Andras Deak PAGE 3 Not just reinstatement - the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 SARAH MACOUN Rarely has a piece of environmental legislation generated as much impassioned support, and opposition, as the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 (Reinstatement Bill). Introduced to Parliament on 18 March 2016, the Reinstatement Bill contains a suite of reforms directed primarily at reinstating specific aspects of the vegetation management laws in effect immediately prior to the former LNP government’s reform of the vegetation management framework in 2013. While the title of the Reinstatement Bill suggests that it does no more than “reinstate” past law, it is apparent from a close reading of the provisions that it goes further than “reinstatement”, particularly in relation to proposed amendments to the Environmental Offsets Act 2014. IMAGE CREDIT: FreeImages.com/Ceri Wood The Reinstatement Bill was referred to the Agriculture and Environment Committee. The Committee was to provide its report to the House by 30 June 2016. In considering the Reinstatement Bill, the Committee received nearly 700 submissions, and held public hearings in eight locations throughout Queensland. This article outlines the responses of key stakeholders in an urban development context to the provisions of the Reinstatement Bill. 4 PAGE KEY REFORMS The Reinstatement Bill contains the following reforms: Amendment of the Vegetation Management Act 1999 (VMA) and the Sustainable Planning Act 2009 (SPA) Reinstatement of the regulation of high value regrowth clearing on freehold and indigenous land (category C); Removal of the provisions which permit vegetation clearing for high-value agriculture and irrigated high-value agriculture; Broadening the protection of regrowth vegetation watercourse areas (category R) to include all of the Great Barrier Reef catchments; Reinstatement of compliance provisions to reverse the onus of proof and remove the ‘mistake of fact’ defence for vegetation clearing offences; Introduction of a new item of prohibited development for the SPA. Amendment of the Water Act 2000 Reinstatement of the requirement for a riverine protection permit for the destruction of vegetation in a watercourse. Amendment of the Environmental Offsets Act 2014 (Offsets Act) Removal of “significant” in the context of determining “residual impact”. The proposal that a number of the amendments have retrospective effect (from 17 March 2016 when the Bill was introduced) is also a significant feature of the Reinstatement Bill. KEY STAKEHOLDERS Environmental groups On the whole, the Reinstatement Bill is supported by the various environmental organisations who made submissions and appeared before the Committee. In addition, several submissions urge the government to also consider further changes including: Amendments to the Offsets Act to remove the limitations on local government offsets and the cap (4:1) on the quantum of offsets; Increasing controls on clearing in urban areas, including by reinstatement of the 2 hectare “trigger” (changed to 5 hectares in 2013) for clearing of vegetation in urban areas; Application of the VMA’s protection for Great Barrier Reef watercourses to all watercourses in Queensland; Amendment of self-assessable codes to further restrict clearing; Restoring the Department of Natural Resources’ concurrence agency “powers”, that is, separating responsibility for assessment of clearing under the VMA from the State Assessment and Referral Agency. Urban development Peak bodies representing the urban development industry were frustrated at the lack of consultation in relation to the Reinstatement Bill and expressed particular concerns about: The consequences for urban development of the reinstatement of regulation of high value regrowth clearing on freehold land, particularly for urban development in investigation areas or urban fringe where land may not be zoned for urban purposes; The uncertainty brought about by the proposed retrospectivity of certain provisions (in relation to development applications, applications for PMAV and clearing undertaken from 17 March 2016) and the inherent unfairness of those provisions having retrospective effect in the absence of compensation; The removal of the threshold of “significant”, meaning that all residual impacts will require offsetting under the Offsets Act and the misalignment this change creates between the federal and state offsets regimes; The interference with fundamental legal principles as a result of the reversal of the onus of proof and remove the ‘mistake of fact’ defence for vegetation clearing offences. OBSERVATIONS It is clear that the Reinstatement Bill has consequences for development in an urban context, notwithstanding that urban development is frequently able to rely on the “urban purpose” in an “urban area” exemption under the SPA. In particular, the removal of the threshold of “significant” under the Offsets Act will undoubtedly give rise to greater offset requirements, and a greater number of projects caught in the offsets net. It also emerges from a consideration of the submissions that environmental groups have an agenda in relation to vegetation management that goes beyond the scope of the Reinstatement Bill. Many of the proposals would have a considerable impact on urban development. With the government presently reviewing the South East Queensland Regional Plan and the single State Planning Policy, it is important to be alive to proposed reform measures and their potential impacts on your development projects. PAGE 5 Gerhardt Revisited DAVID NICHOLLS In the Summer edition of Envisage, we provided commentary on the Planning and Environment Court’s decision in Gerhardt v Brisbane City Council (2015) QPEC 34. We noted that the judgment called into question planning scheme provisions which attempt to make building work assessable against a planning scheme where no material change of use is involved. The Court’s judgment has been upheld by the Court of Appeal – Brisbane City Council v Gerhardt (2016) QCA 76. The Court’s reasons were written by Philip McMurdo JA with whom the other members of the Court agreed. The relevant building work application could have been made to the Council which would in that event have been required to assess it in full. In those circumstances, the Council would have been required to assess the building work against both the Traditional Building Character (Design) Overlay Code and of City Plan 2014 as well as the building assessment provisions which include the Building Code of Australia. However, the application was made to a private certifier and in those circumstances, the Council’s role was confined to that of a concurrence agency with jurisdiction where the building work is: “In a locality and of a form for which the local government has, by resolution or in its planning scheme, declared that the form may – a. have an extremely adverse effect on the amenity or likely amenity, of the locality; or b. be in extreme conflict with the character of the locality.” In the circumstances of the case, the Council chose not to exercise that jurisdiction arguing that the applicant was required to first apply to the Council for a preliminary approval for building work assessable against the planning scheme. This argument was rejected by the Court of Appeal. Referring to the note to table 1.6.1 of City Plan 2014, in the context of section 83(1) of the Building Act 1975, the Court said: “These notes reveal misunderstandings of the council from which the course of events in this case can be explained. The apparent practice of the Council, in cases such as this where the Council must assess the proposed work against parts of its planning scheme, is to make that assessment in the course of deciding whether to grant a preliminary approval. However s 83, upon its proper interpretation, refers to an already existing preliminary approval which is relevant in the assessment of the development against the scheme. That is clear from the example given with s 83(1)(b), which explains that in such a case, the application must not be decided until all necessary preliminary approvals are effective for the assessment of the building work against the planning scheme. The primary judge was therefore correct to reject the council’s argument about s 83(1)(b). This provision does not require a preliminary approval where none is otherwise necessary. Rather s 83(1)(b) has an operation, as a qualification to the certifier’s power to grant an approval, where under the Planning Act there is a necessity for an effective preliminary approval. But that was not so in the present case.” A legislative response to the case which was anticipated in some circles has not eventuated, nor has an application by the Council for special leave to appeal to the High Court of Australia been instituted. 6 PAGE A new regional plan, to replace the current 2009 plan, has been on the drawing board for some time. The State has committed to delivering a new draft plan for public consultation in 2016 and expects to release the final plan next year. The Department of Infrastructure, Local Government and Planning anticipates that the new regional plan will: respond to the region’s changing population size and demographics; set responsive directions and targets; boost jobs growth across the region in industries of the future; and drive towards a region that is “smart, sustainable, compact, connected, safe and healthy for now and into the future”. The State’s “Shaping SEQ – Planning for the Future” indicates that the core principles from the current regional plan will continue, including a compact urban form and more development in existing urban areas that creates communities with diverse housing that is well-connected, vibrant and sustainable. The new plan will have five core themes – grow, live, connect, prosper and sustain – to support the affordability, vitality and quality of the region. Consistent with this, it has been reported that the new regional plan will facilitate more infill development such as highrise and townhouse developments. In light of comments that urban renewal does not meet everyone’s needs and there needs to be new greenfield sites, the Minister has indicated the regional plan will provide a balance between infill development close to transport and more affordable greenfield housing. Planning to facilitate greater infill development and minimise greenfield development is generally underpinned by principles about better utilising existing infrastructure, minimising urban sprawl and reducing environmental impacts (e.g. clearing vegetation). While encouraging greater infill development is a reasonable policy, it is also important to acknowledge that from a community viewpoint infill can have undesirable impacts. Recent experiences in Brisbane’s inner city areas demonstrate that existing communities often feel aggrieved by the process of densification and associated impacts on character, traffic and amenity, notwithstanding the rational public policy reasons for encouraging infill in close proximity to the City centre. Further, infill housing does not necessarily accommodate the desires of many demographics to have a house on a reasonably sized lot which is both available and affordable. Ultimately, infill development has its limitations. Existing infrastructure can only accommodate a certain capacity and will eventually need to be upgraded to accommodate a greater population. As the State has undertaken various modes of informal consultation and will shortly undertake formal public consultation, it is perhaps timely to discuss with the community why infill development is desirable, acknowledge and seek to address concerns about impacts on existing communities and understand what type of development in the region people want. It seems likely to be the case that people support infill development in principle, provided impacts can be managed. Critically, the SEQ Regional Plan must also focus on delivering sufficient greenfield development areas to cater for desirable housing options along with reasonable connections to employment and good quality infrastructure. We will continue to “watch this space” in anticipation of dates for public consultation for the new plan. SEQ Regional Plan Under Review ROBYN LAMB Statutory regional planning for South-East Queensland has been in place for more than 10 years, firstly with the 2005 SEQ Regional Plan and followed by the current SEQ Regional Plan which commenced in 2009. IMAGE CREDIT: Brisbane Marketing PAGE 7 In Walter Elliott Holdings No 1, the Planning and Environment Court held that, properly construed, the development approval was for two bedroom dwellings. The judgment in Walter Elliott Holdings No 1 was reversed by the Queensland Court of Appeal in Walter Elliott Holdings No 2. FACTUAL MATRIX The development approval retrospectively permitted 115 relocatable homes which already existed, of which 114 were two bedroom and one of which was expressly approved as three bedroom. The approval also authorised the development of a further 86 relocatable homes of a similar type and style within the same home park, which was described as an “over 50’s lifestyle resort”. The conditions imposed by the Council incorporated a general plan of layout but not the indicative dwelling plans included with the application, and did not contain a condition limiting the dwellings to two bedrooms. The applicant had stated in the planning report supporting the application that the dwellings would contain only two bedrooms and requested the application of infrastructure charges on that basis. However, conditions imposed by the Department of Transport and Main Roads (DTMR) limited the scale and intensity of development by reference to the statements in the Planning report to two bedroom homes. PLANNING AND ENVIRONMENT COURT’S JUDGMENT The Planning and Environment Court construed the approval by reference to the clear statements in the town planning report and floor plans that all dwellings would be resided in by one or two persons and would consist of two bedrooms, so that the charge was declared to be determinable on the basis of two bedroom homes rather than three bedroom homes. COURT OF APPEAL’S JUDGMENT The reasons of the majority of the Court of Appeal justices are essentially based upon a line of cases which hold that approvals cannot be interpreted by reference to the content of development applications. In the dissenting judgement, Morrison JA pointed out that conditions imposed by the DTMR expressly or impliedly called up the relevant part of the planning report that described the dwellings as having two bedrooms. The PEC’s reasoning which led to the finding that the development approval was for two bedroom dwellings and not three bedroom dwellings was therefore correct in Morrison JA’s opinion. Inexplicably, the concurrence agency’s condition was not addressed in the majority’s reasons. An interesting aspect of the case was the QCA’s consideration of the provisions of the Anti-Discrimination Act 1991 (Qld) (AntiDiscrimination Act) which prohibits discrimination based upon age. It appears from the reasons of McMurdo P that the Court itself raised this issue with the parties shortly prior to the hearing in the Court of Appeal. It does not feature in the PEC’s reasons. Why this occurred is not explained in the QCA’s reasons. Interpretation of development approvals and calculation of infrastructure charges DAVID NICHOLLS Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council [2015] QPEC 8 (Walter Elliott Holdings No 1) and Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19 (Walter Elliott Holdings No 2) concerned an application for declaratory relief involving the calculation of infrastructure charges in respect of a relocatable home park. The adopted infrastructure charge was greater for a three bedroom home than for a two bedroom home and at issue was whether the approval permitted only two bedroom homes, or whether it could be construed as permitting three bedroom homes. 8 PAGE After considering the relevant provisions of the Anti-Discrimination Act in the context of whether the “over 50’s lifestyle resort” needed an exemption from the legislation, and noting that it was not possible to reach a concluded view about that, McMurdo P went on to say: “It is enough to observe the development appeared to offend s 7(f) and arguably s 76 or s 77...and that it cannot be assumed that, were the respondent to apply for an exemption under s 113, it would be granted. The fact that the respondent’s development may be contrary to the AntiDiscrimination Act is another reason why a court would be loathe to grant the respondent the declaratory relief sought.” [emphasis added] It is unclear why a tentative conclusion based upon incomplete analysis should influence the exercise of the Court’s discretion one way or another. The analysis of this issue by Morrison JA concludes that neither the development as completed or proposed, nor the development approval, were capable of offending against the anti-discrimination legislation. The leasehold interest granted under the Homes (Residential Parks) Act 2003 (Qld) is not by definition an interest in land within the meaning of that Act and, in any event, there is no potential discrimination under the Anti-Discrimination Act 1991 until the point is reached where a relocatable home is actually offered for sale, absent an exemption if one is required. As Morrison JA points out in the dissenting judgment the development application was code assessable and the Council’s assessment of it was bounded by the provisions of the relevant codes, consistently with very recent authority from the QCA itself: Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175. If the Anti-Discrimination Act was irrelevant to the consideration of the development application, how could it have been a relevant consideration influencing the exercise of the Courts discretion? The approach of the courts has always been that prospective illegality will only be relevant where it will necessarily and unequivocally occur. In that event a development application must be refused by the assessment manager, or on appeal, by the Court - Delonga Constructions Pty Ltd v Landsborough Shire Council (1984) QPLR 262; Food Plus Pty Ltd v Brisbane City Council (1984) QPLR 156. It is evident from the reasons of both the majority and the minority in Walter Elliott Holdings No 2 that the development application was a long way short of passing that threshold. If possible illegality under the anti-discrimination legislation could not have justified refusal of the development application, it should not be a factor influencing the Court’s discretion to grant or refuse declaratory relief. Walter Elliott Holdings has applied to the High Court of Australia for special leave to appeal against the Court of Appeal’s decision. IMAGE CREDIT: FreeImages.com/Michelle Whiffin PAGE 9 Compensation for natural hazards OLIVIA WILLIAMSON In June 2016, the east coast of Australia experienced two intense “east coast lows” bringing heavy rain, flooding and strong winds. The first of these events was exacerbated by a king tide and resulted in severe coastal and structural damage. Some residents with damaged beachfront homes in Collaroy and Coogee, New South Wales have vowed to “take on” the relevant local government and State Government with respect to the failure of plans to provide any real protection for coastal properties. It is timely therefore to consider the effect of changes made to a planning scheme to reduce risks associated with natural hazards and whether an owner is entitled to claim compensation where the change reduces the value of their property. Currently under the Sustainable Planning Act 2009 (SPA), there is an ability for landowners to claim compensation from a local government when a new planning scheme or a change to an existing planning scheme reduces the value of an interest in land. That is continued by the incoming Planning Act 2016 (Planning Act). In both the SPA and the Planning Act, however, there are a range of exceptions to the ability to claim compensation, one of which concerns planning changes aimed at reducing risks associated with natural hazards. Under SPA, compensation is not payable if the change affects development that, had it happened under the superseded planning scheme, would have led to significant risk to persons or property from natural processes (including flooding, land slippage or erosion) and the risk could not have been significantly reduced by conditions attached to a development approval (section 706(1)(i)(i)). IMAGE CREDIT: FreeImages.com/John Boyer 10 PAGE Under the Planning Act, compensation is not payable if the change is made: a. to reduce a material risk of serious harm to persons or property on the premises from natural events or processes (bush fires, coastal erosion, flooding or landslides, for example); and b. under the Minister’s Rules (section 30(4)(e)). While the Minister’s Rules have not yet been released, section 30(5) of the Planning Act identifies that the Minister’s Rules in respect of section 30(4)(e) must require a local government to prepare a report assessing feasible alternatives for reducing the risk, including imposing development conditions on development approvals. The reduction of risk through conditions attached to a development approval that was relevant in the SPA is therefore picked up in the Planning Act, but arguably with less prominence than the SPA. In undertaking consultation on the draft Planning Bill, the State Government specifically sought feedback with respect to compensation arrangements in relation to natural hazards. Submissions received from local governments largely supported the natural hazard compensation exceptions for local governments in relation to adverse planning changes. However, concerns were raised by urban development and property industry associations about an increased scope being given to local government to make changes to a planning scheme in response to natural hazard risks without triggering compensation. Concerns were also raised with respect to local government’s preparing their assessment report at the time the downzoning decision is made, absent the opportunity to explore innovative solutions with landowners. Overall, the new Planning Act continues the policy of ensuring that the wider community is not required to pay the costs of allowing development in locations where there is a risk to persons or property from natural processes. Compensation associated with natural hazards under section 30(4)(e) of the Planning Act will not be payable if a change is made to reduce a material risk of serious harm associated with natural hazards and is made under the Minister’s Rules. Some comfort can be taken from section 30(5) of the Planning Act however we eagerly await the release of the Minister’s Rules and hope: a. there is enough rigour to ensure that an owner retains the right to demonstrate that a relevant risk could have been substantially reduced through conditions imposed on future development approval (as is the approach in the SPA); b. they contain objective criteria for determining if and when there is a material risk of serious harm; and c. they provide precision with respect to preparation of the local government’s report including for assessments to be undertaken in good faith by an appropriately qualified person having regard to the best available information. PAGE 11 The applicants argued that Level 4 was an “apartment” level. In the development application material, Level 4 was described as being one of three “residential recreation levels”. It comprised two lap pools, a spa, another pool, a gym and terrace, change rooms, toilets, a sauna, steam room and sun deck. The recreation level was not open to the public. The applicant submitted that the use of Level 4 was incidental to and necessarily associated with the use of the apartments and did not possess any nexus to the non-residential uses contained within the first three levels of the podium (which were used for restaurants, shops and cafes). The argument from the applicants invoked the definition of “use” under the Sustainable Planning Act 2009 (SPA) which is: “Use, in relation to premises, includes any use incidental to and necessarily associated with the use of the premises”. The Judge considered that the purpose of Level 4 was to exclusively serve the apartment levels above by providing recreational facilities only to the occupants of those apartments. He found, therefore, that the recreation level was part of the apartment use consistent with the case of Walker v Noosa Shire Council [1985] 1 Qd R 387 and the statutory definition The case turned on whether the development proposed “apartments” within the building’s podium because the development involved a recreation deck on the roof of the podium. The decision, based on a technical characterisation of the apartment “use”, sits uncomfortably with a long line of cases in the Planning and Environment Court that emphasise planning schemes should not be construed in an overly technical manner and that a purposive approach is preferred. A purposive approach involves asking why impact assessment is required where development involves “apartments” within a podium. The development approval challenged in Surfers International consisted of a development permit for a material change of use for apartments (693 units) cafe, restaurant, shop and tourist shop on land in Surfers Paradise. The development application was accepted by Council as code assessable, and approved on that basis. The applicants sought a declaration from the Court that the decision to issue the approval was invalid and the decision notice should be set aside. The arguments centred around the height of a podium (a question of fact) and the characterisation of the uses within the podium, which was relevant to the level of assessment (a question of law). There was some controversy over whether or not the podium was three levels or four levels, with the Judge ultimately determining that it was four levels. That question was decided primarily based on the plans for the development, supported by some expert evidence. The Judge then considered the uses within the podium and, in particular, Level 4. Characterisation of the use within the podium was critical because the assessment trigger indicated that an application for apartments was code assessable only where the apartments were “located above podium level”. Otherwise, impact assessment was triggered. Case Note – Surfers International GEMMA CHADWICK In the recent decision of Body Corporate for Surfers International Community Titles Scheme 12247 and Gold Coast City Council & Anor [2016] QPEC 29, the Court declared that the Council’s decision to approve a development application for apartments and other retail uses was invalid and of no effect, because it should have been subject to impact assessment, not code assessment. The planning scheme defined “apartment” as: “Apartment A dwelling that has another dwelling immediately above or below it. It also includes dwellings contained in mixed use buildings located immediately above, below or abutting nonresidential uses. The term does not include an attached dwelling.” “Dwelling” was then defined as: “Dwelling Any building or part of a building comprising a self-contained unit used by, or intended for the exclusive residential use of, one household. The term includes outbuildings normal to a dwelling. The term includes the keeping of domestic animals as pets.” 12 PAGE of “use’. As such, he concluded that Level 4 was an apartment level, meaning the apartments were not “located above podium level”, that the application should have been subject to impact assessment, the assessment manager’s jurisdiction to assess the application as code assessable was never enlivened, and the decision was a nullity. However, the plain language of the trigger requires code assessment where the “apartments” are located above podium level. All of the dwellings were above podium level. The recreation deck was not a dwelling. Rather, it was ancillary to the dwellings. The Court applied the extended definition of “use” in Schedule 3 of SPA to capture the ancillary recreation aspects of the apartment use, however, the Court did not refer to the case of Boral v Cairns [1997] 2 Qd R 31, a decision of the Queensland Court of Appeal, which holds that the ancillary use must be both incidental to and “inevitably” or “unavoidably” involved with the primary use. That is, it is a cumulative test – requiring an ancillary use to be both “incidental to and necessarily associated with” a use. There is nothing “inevitable” about the recreation uses which may be seen as “optional extras”. The Court’s decision is a technical one, which sits uncomfortably with the accepted approach to construing planning schemes – that is, that they should be read as a whole, in a way that is practical and intended to achieve balance between outcomes. The overarching rule is to start and end with the text of the scheme, read in context (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384). The presumption is that defined words have their defined meanings and that is not to be displaced without good reason (Qantas Airways Ltd v Chief Commissioner of State Revenue 2008 NSWSC 1049). IMAGE CREDIT: FreeImages.com/Troy Stoi The purpose and intent of the assessment trigger, which required apartments to be located above a podium, can be gleaned from the relevant local area plan (LAP) with Council’s 2003 planning scheme. The LAP indicated: “Retail and tourist activities commercial services, entertainment, restaurants and eateries are encouraged at ground floor level and within podium level to create a vibrant commercial core, with high rise towers permitted above.” The intent is for mixed uses within the podium with high rise apartment towers above. That outcome had been achieved by the development in question. Was it the intention for the impact assessment trigger in the table of assessment to capture all uses ancillary to an apartment? The answer must be no. The obvious intent was for the apartment use (that is, the use as a dwelling – “a self contained unit”) to be located above the podium, not to require that all the incidental aspects for that use (such as car parking, lobby/reception, access, lifts, stairwells, and recreation areas) also to be located above the podium. In tall towers, it is physically impossible to have apartments located above a podium without having incidental and ancillary parts of that use, for use by residents, located below. It remains to be seen whether the Surfers International decision will be appealed to the Court of Appeal or whether the application is re-lodged in response to the Court’s decision. PAGE 13 IMAGE CREDIT: FreeImages.com/Andrea Paroni Claims for owner’s time JAMES IRELAND It is well established in Queensland that a claim for costs attributable to disturbance can include reasonable expenses incurred in obtaining professional help (from lawyers, valuers, town planners and the like) in formulating a claim for compensation. Claims for owner’s time are less clear cut. 14 PAGE Historically, the Courts in Queensland had consistently denied claims for owner’s time spent in preparing a claim for compensation. That position shifted with the decision of the Land Appeal Court in Heavey Lex No 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177 (Heavey Lex). Following Heavey Lex, the costs attributable to the time spent by a claimant in preparing a compensation claim are potentially recoverable but only in certain, very specific, circumstances. While clearly in the public interest, the resumption of land is often the cause of understandable anguish for affected land owners. Claimants in resumption matters are unwilling litigants and can hardly be expected to renounce a claim for compensation after their land is compulsory acquired. That is, owners have no real choice but to file and pursue a claim for compensation and are likely to devote considerable time to protecting their interests. Against that, resuming authorities should not be exposed to ambit claims for time spent by owners in preparing a claim where there is no evidence of actual loss. In Heavey Lex, the Land Appeal Court struck a balance by indicating that owner’s time may be claimed where it can be demonstrated that the claimant, in devoting his or her own time to the claim, has suffered a “compensable loss”. Heavey Lex involved a claim for just under $100,000 for time spent by a director and an employee in the preparation of the company’s claim for compensation. While the claim failed at the threshold due to a lack of evidence (there was no evidence that the company paid the director at relevant times nor any evidence that the employee had charged for his services, or that the company was legally obliged to pay for those services, meaning it could not be said that the company suffered any loss) the decision marked a shift away from a blanket refusal on claims for owner’s time. Since the Heavey Lex decision, the Land Court has recognised that it is possible, under the Acquisition of Land Act 1967 (ALA), for an applicant to make out a claim for owner’s time, relying on the authority of Heavey Lex and section 20(5)(g) of the ALA. Section 20(5) of the ALA deals with the costs attributable to disturbance and subparagraph (g) allows a claim for “other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land”. In the decision of Lowry v CoordinatorGeneral [2012] QLC 0026, the Land Court provided some practical boundaries around claims for owner’s time. It indicated that an owner cannot be compensated simply for time spent opening correspondence or doing background research on a claim. A value has to put on the owner’s time based on some quantifiable formula, with some link to a form of economic loss. Examples of costs to owners that could be easily, and reasonably, quantifiable include: taking leave from work to be present while a valuer undertakes a full inspection of a landholders property; loss of actual paid employment; employment of substitute or extra, replacement labour. The overarching test, in each case, is whether the activities are reasonable in the circumstances and whether the level of remuneration is reasonable. It should also be noted that a claim for owner’s time is separate to a claim for business loss, or lost profits. In a claim for owner’s time, it will not be sufficient to simply state that a claimant spent an hour or so per week trying to resolve a claim. Proper particulars are required, explaining why the time is claimed and, where necessary, appropriately verifying expenditure. It will be necessary to not only demonstrate that a certain amount of time was spent on relevant activities, that the time incurred was reasonable and that the amount claimed for that time is reasonable but also that there has been some form of economic loss. In the absence of evidence of actual economic loss, an owner is not entitled to recover their time spent in preparing the claim for compensation. PAGE 15 In the two recent cases of Allen & Anor v Cairns Regional Council & Anor No. 31 and Ferreyra & Ors v Brisbane City Council, 2 the Planning and Environment Court has demonstrated a reluctance to order costs in the context of declaratory proceedings against parties with non-commercial interests in the result. The decisions show that, while the Court does have the discretion to make orders for costs,3 it will not ordinarily do so unless it is satisfied that a party has acted unreasonably or for an improper purpose. POWER TO AWARD COSTS The power to award costs is found in section 457(1) of the Sustainable Planning Act 2009. Section 457(2) contains a nonexhaustive list of factors the Court may consider in deciding whether or not to exercise the discretion. 1 [2016] QPEC 25. 2 [2016] QPEC 13. 3 s 457(1) Sustainable Planning Act 2009. ALLEN & ANOR V CAIRNS REGIONAL COUNCIL & ANOR The Applicant (Allen) operated a wholesale nursery and, in response to a show cause notice issued by the Council, filed an Originating Application seeking declarations that the existing use was lawful and that the development application for material change of use was not required. In the proceedings, Allen successfully made out a pre-existing lawful use, and the declarations were granted. The Council supported the application in Court. The Council’s support was based on investigations carried out after the show cause notice was served. Allen and the Council sought costs against the Second Respondents (the Neighbours) who had opposed the declarations on the basis that the Neighbours unnecessarily prolonged the proceedings. In refusing to order costs against the Neighbours, His Honour Judge Rackemann noted: 1. The fact that the Neighbours were the only unsuccessful litigants was relevant, but not the most important consideration. 2. The rejection of a Calderbank4 offerwas relevant, but not fatal to the Neighbours. 3. The Neighbours had no commercial interests in the proceedings, unlike Allen who sought the declarations in relation to a business operated from the premises. 4. Even if the Neighbours had not contested the declarations, the declarations could not be obtained without satisfying the Court that they were necessary and appropriate. 5. His Honour was not convinced that the Neighbours had acted unreasonably, either leading up to or during the proceedings. 6. His Honour was not convinced that the Neighbours had no reasonable prospect of success. 4 [1975] 3 All ER 333. Costs – further evidence that the rules do not require change AMYE MCARTHUR 16 PAGE FERREYRA & ORS V BRISBANE CITY COUNCIL This case concerned Council’s decision to approve a permissible change to the second respondent’s development approval, namely, the construction of an acoustic wall at the Fringe Bar in Brisbane City. The Applicants owned residential units across from the bar and commenced declaratory proceedings challenging the Council’s decision. The Second Respondent was wholly successful in resisting the application, and brought a counter-claim for costs against the Applicants. In refusing to order costs against the Applicants, Her Honour Judge Bowskill noted: 1. In some cases the success of the parties will be a significant consideration, and this is particularly so in cases involving commercial competitors. 2. The Applicants were motivated by concerns about the amenity of their residential units, whereas the Second Respondent, as the operator of the bar, had a commercial interest in the proceedings. 3. The Applicants rejected an offer to compromise, however Her Honour was not convinced that the Applicants acted unreasonably in rejecting the offer (which involved including some glass windows in the acoustic wall). 4. Although the Applicants were unsuccessful, it was not unreasonable for them to have brought the application. ANALYSIS In both cases, the party seeking an order for costs relied heavily upon its complete success in the proceedings, and in both cases the Court noted that this was a relevant consideration, but not a determinative one. Given the non-commercial nature of the interests of the challenging parties, the Court needed to be satisfied that the behaviour of the parties warranted a costs order being made against them. Such conduct was not found in either case, despite the fact that offers to settle or compromise had been rejected. It is noted that the incoming Planning and Environment Court Act 2016 reinstates the general position that each party to a proceeding in the Planning and Environment Court must bear their own costs, unless particular circumstances apply. Circumstances where the Court will have discretion to make an order for costs include where the Court considers the proceeding was started, or conducted by a party to the proceeding, primarily for an improper purpose, or where the Court considers a party has brought a frivolous or vexatious proceeding. The Act also identifies other exceptions to the general costs rule that deal with specific situations, such as: a. proceedings for enforcement orders (where the Court may award costs against the person to whom the order is directed); or b. if the Court declares that an owner wrongly sought the cancellation of a development approval in contravention of the owner’s consent requirement (where the Court must award costs against the owner); or c. if the Court allows an assessment manager to withdraw from an appeal (where the Court must not award costs against the assessment manager). IMAGE CREDIT: FreeImages.com/Jason Morrison PAGE 17 hopgoodganim.com.au David Nicholls, Partner 07 3024 0368 [email protected] Sarah Macoun, Partner 07 3024 0367 [email protected] James Ireland, Partner 07 3024 0369 [email protected] Karen Browne, Partner 08 9211 8142 [email protected] Gemma Chadwick, Senior Associate 07 3024 0377 [email protected] Thomas Buckley, Associate 07 3024 0406 [email protected] Olivia Williamson, Senior Associate 07 3024 0422 [email protected] Robyn Lamb, Associate 07 3024 0388 [email protected]