Spring has sprung, and the race to the end of the year has begun. School holidays are upon us, footy finals are in full swing, and Melbourne Cup is just around the corner. While we all try and make it through to party season in December, there are a number of interesting decisions on some novel and noteworthy legal issues to catch up on. Partner Sarah Macoun, Special Counsel Gemma Chadwick and Solicitors Ella Hooper and Georgia Mackenzie summarise cases concerning:
- the Court of Appeal’s decision in Yorkeys Knob BP Pty Ltd v Cairns Regional Council (we covered the decision at first instance in our April 2022 edition)
- a case where flood risk was the decisive factor;
- the interplay between existing use rights and reasonable and relevant conditions;
- another example of when a change is not a minor change;
- an application for “start work” orders;
- conditions requiring the offer or grant of easements; and
- a judicial review style challenge to the Minister’s decision on a change application.
Yorkeys Knob BP Pty Ltd v Cairns Regional Council  QCA 168
This case involved a proposed service station, shop and food and drink outlet on land in a rural area at Yorkey’s Knob. The application had been refused by Council, and the P&E Court upheld that decision on appeal at first instance.
In this application for leave to appeal to the Court of Appeal, the applicant contended the primary judge’s decision was affected by an error or mistake of law in three respects. The first and third are interesting, and relate to an alleged failure to consider compliance with a use code (the Service station and car wash code of Cairns Plan 2016) and an alleged error in the assessment of need for the proposed development.
The applicant’s first complaint was that the primary judge failed to make an express finding about whether the proposed development complied with the Service station and car wash code and that, as a consequence, the impact assessment was not carried out in the manner required by s 45(5)(a)(i) of the Planning Act.
In the proceedings at first instance, the Council submitted that the provisions of the Service station and car wash code were not complied with, because the other uses (fast food and shop) were not “ancillary to” the service station. The Applicant had emphasised that separate uses were applied for, and submitted that the Service station and car wash code applied only to the assessment of a service station and not the other uses. The evidence of the town planning experts was that the development was compliant, or generally compliant, with the use code. The use code did not assume significance in the planners’ overall consideration of compliance with various other relevant assessment benchmarks. The Court of Appeal observed that the use code was at the bottom of the hierarchy of assessment criteria, with the strategic framework, statewide codes, overlay codes, local plan codes and zone codes all prevailing over use codes.
The Court of Appeal agreed that the primary judge did not make an express finding about whether the Service station and car wash code was complied with, but noted that, given the evidence and submissions before the primary judge, that was not surprising. Further, the Court of Appeal adjudged that, in the circumstances of the case, the primary judge was not required to. The Court helpfully outlined the reason for this as:
“The instruction in s 45(5)(a)(i) of the Planning Act 2016 that an impact assessment “must be carried out against the assessment benchmarks in a categorising instrument for the development” does not mean that the decision-maker is required, in order to lawfully make a decision, to expressly make a finding about every “assessment benchmark” that might be referred to by a party(ies), particularly where it is said to be of no application by a party, is at the bottom of a hierarchy of provisions, many others of which do not support the development, or is not in dispute on the evidence before the Court.”
The Applicant’s third ground included an allegation that the primary judge made an error of law by taking account of development applications (rather than development approvals) in assessing need. The allegation was that “involves speculation and is not the correct test”.
In deciding that point, Court of Appeal said that the assessment of need in this context is a “flexible process” and that while it may be accepted that development applications, as opposed to approvals, are not a sure guide of what may be expected to occur in the future, the primary judge’s comments about development applications had to be read in the context of his reasons as a whole. The Court of Appeal succinctly summarised its conclusion as:
“This is not a case where the court had reached the view that the proposed development suitably filled an identified need, but rejected it because another or better site was (or could be) available; in that context referring to development applications. Rather, the court had reached the view that a sufficient level of need for the proposed development had not been established and, in [the relevant paragraph of the primary judge’s reasons], was simply making the additional point that to the extent there might be attractions to an integrated facility such as the proposed development, it was apparent there were other sites where a need for this, should it be established, could be met.”
The application for leave was refused with costs.
NL Varsity Nominees Pty Ltd v Gold Coast City Council  QPEC 29
This appeal related to Council’s decision to refuse an application for a material change of use for a retirement facility on land on the Nerang River, opposite Bond University. The site was entirely flood affected, and lost access somewhere between a Q10 and Q20 event. The access was classified as extremely hazardous.
Council refused the application and, in the appeal, maintained that the proposed development was incompatible with the flood risk of the site. It pointed to the fact that approval would represent a deliberate decision to concentrate a vulnerable sub-set of the community on a risky site, in circumstances where the “soft” controls advanced by the applicant did not adequately manage that risk.
The applicant had advanced a number of hard and soft measures –building design and construction, a Flood Emergency Management Plan (FEMP) and a Flood Emergency Operation Plan (FEOP) – in an attempt to address the risk. The “hard” controls were directed towards making the building itself flood immune – with residential levels above the PMF, a helipad for emergency evacuation, and back up supplies for water, sewer and power. The “soft” controls, to be implemented through the FEMP and FEOP involved shelter in place as the primary strategy. Given the issues with access, the evidence was that residents could be isolated up to 46 hours in the Q100, and for up to 72 hours in the PMF. High-risk residents were to be evacuated at lower flood levels. The evidence was this early evacuation would be triggered, on average, every 4.8 years.
Council’s position was that risks were not sufficiently mitigated because the “soft” control measures (the proposed FEMP and FEOP) could not be assumed to be:
- sufficient and effective
- properly implemented in any particular instance or, importantly
- kept in place for the life of the development.
It pointed to an underlying policy of conservatism in the City Plan which informed the balancing exercise when considering risk. It also argued that the very number of mitigative measures planned indicated the proposed development was an inappropriate use for the land.
The case advanced for the applicant was that the risk was reasonably acceptable in light of the mitigation measures proposed. The applicant also contended that the use proposed was contemplated in the zone – the proposed development was of good design, provided excellent amenity and was generally well located.
The Court ultimately concluded that the flood risk was not – despite the best efforts of the building design, the FEMP and FEOP – mitigated to an acceptable level. That was so in circumstances where:
- the life of the development is 70–80 years, a lengthy period during which one or more severe flooding events may arise, which greatly impact access;
- it is intended to house an older and ageing cohort;
- a severe flooding event during that time is potentially catastrophic;
- the soft controls do not adequately manage the risk where human response to serious emergencies is variable and to a degree unpredictable, the residents and others may over time become desensitised to the plans, and helicopter or stretcher-based evacuation is problematic.
The Court concluded that the focal provisions in the Flood Overlay Code and strategic framework were important assessment benchmarks, and the conclusions as to risk meant they were not complied with. The Court observed:
“As previously noted, development in natural hazard areas should only occur if it is located, designed and managed to mitigate the risk to life and property. In my view, there is much in the Council’s argument that the City Plan has an element of conservatism, particularly in the context of a retirement facility.”
In the exercise of the planning discretion, the Court noted that the need for the development, as well as its other positive attributes (which included high-quality built form an amenity, and improvements to a trunk park) did not outweigh the conclusions as to flood risk. The appeal was dismissed.
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council  QPEC 22
This appeal to the Court dealt with the interesting issue of existing use rights. The appellant, Ashanti Logistics Pty Ltd (Ashanti Logistics) applied to the Sunshine Coast Regional Council (the Council) for a development permit for a material change of use for a service station in Moffat Beach (Subject Land). The application was approved, but subject to a condition that limited its hours of operation. Ashanti challenged the condition on the basis that it sought to have 24-hour operations.
The land was already improved by a service station that has been there since 1975. That service station had replaced another service station that had operated from the location since at least 1958. The existing service station was an existing lawful use that was unconstrained in its hours of operation. There was no dispute about the extent of lawful use rights.
The condition in dispute was as follows:
“Condition 5: Nature and Extent of Approved Use –
The approved use must not operate outside the hours of 7am to 10pm Monday to Sunday”.
Ashanti Logistics contended that Condition 5 should not be imposed, either because it is not lawful (i.e. not ‘reasonable’ or ‘relevant’ under both limbs of section 65(1) of the Planning Act) or because it should not be imposed in the exercise of discretion. The Council disagreed. Its position was that Condition 5 was required to mitigate adverse amenity impacts.
The Court noted that the conditions test in the Planning Act (specifically section 65(1)(b) as to whether a condition is reasonably required) called for consideration of the proposed development and the changes that the development is likely to produce. In that respect, the Court considered that the scope of the existing use rights for the existing service station were relevant when considering the existing amenity of the local area. The current service station has chosen not to operate for 24-hours a day, seven days a week; however, in the past, it had operated for those extended hours. The existing use rights were not constrained in terms of operating hours. The Court concluded Condition 5 was not a reasonable response to a change that would be occasioned by the development – and that the changes were sufficiently addressed by the other conditions proposed by Council.
Amenity considerations also played into the Court’s consideration of whether the condition was “reasonably required” (section 65(1)(b) of the Planning Act). Council’s position was that the condition was required to address potential impacts on existing sensitive land uses. The Court accepted the evidence of Ashanti’s experts that the development (with 24-hour operations) would comply with assessment benchmarks for noise impacts, lighting and glare – and the amenity of the surrounding areas (zoned low-density residential) would be protected.
The Court concluded that Condition 5 was not required to achieve compliance with relevant assessment benchmarks, and in addition, found that the imposition of the condition would be an unreasonable imposition.
The Court concluded that the condition could not be lawfully imposed under section 65(1) of the Planning Act, and should not otherwise be imposed in the exercise of the Court’s residual discretion.
The Court allowed the appeal, approving the use for a 24-hour operation.
Ginardi & Anor v Brisbane City Council  QPEC 24
This case involved an application for “start work” orders.
The applicants had applied for approval to construct a new house at Bulimba, on land adjoining the Brisbane River. Council imposed conditions which required a trunk infrastructure contribution, comprising the dedication of a 10-metre-wide strip of land fronting the Brisbane River to facilitate the future construction by Council of its planned Riverwalk. The conditions also required the demolition of existing structures (including a jetty) within that strip of land before it was transferred to Council, and the completion of a revetment/riverwall along the length of the tidal boundary of the dedication area.
The Applicants did not dispute the requirement to dedicate the land, but did dispute the timing for the dedication and the extent of works they were required to complete. The Applicants argued that the outcome of the appeal would not be affected by allowing work to commence on the house. The development itself (the house) was not controversial and the area of land would be dedicated regardless. The dispute was about whether the works should be completed (as required by the Council’s conditions) or whether the Appellants could instead pay a contribution towards the Council’s costs of constructing the Riverwalk (and for the jetty to remain).
In the application for “start work” orders, the Applicant’s position was that construction of the house would be more efficient and cost-effective if it was coordinated with development of land to the east – where construction for multiple dwellings was underway. The applicant’s site was long and narrow, and would no longer be able to gain access over the adjoining land once the unit development was completed. There would also be simplified construction processes (underground basements, walls, roofs) if the sites were developed contemporaneously, and a reduction in amenity impacts if all the construction occurred at once.
Conversely, the Council’s position was that the construction of the Riverwalk within the area to be dedicated would be more expensive if it occurred after the construction of the dwelling on the land. The only guaranteed access would be via barge, which substantially increased the costs of the works on that strip of land.
The Court noted that there is a broad discretion to make start work orders pursuant to s 72(2)(b) of the Planning Act 2016 (Qld), but that orders of that type should be the exception, not the rule. An application can only be approved when the Court considers the outcome of the appeal would not be affected.
The critical point seemed to be that the Appellants wanted the jetty to be retained, and Council wanted it demolished. Council did not accept that the start work orders involved only uncontroversial elements of the proposed development. Its position was that the works required by the conditions under challenge were part of the proposed development.
The Court ultimately agreed. It determined that there was a direct nexus between the dwelling house and the jetty – future occupants of the house could assert a loss of amenity as a consequence of being required to demolish the jetty.
In the exercise of the Court’s discretion, it was also relevant that the appellants had not established any pressing need to commence construction of the dwelling house, or any actual intent to do so in the future. There was no evidence to show the appellants had actually entered into a contract to construct the dwelling house, or that this construction was in any way imminent. Additionally, His Honour noted the appellants made no attempts to expedite the hearing of the appeal.
The Court dismissed the application and declined to make the start work orders.
Earthteck Qld Pty Ltd v Redland City Council  QPEC 25
This case is another example of where changes to a proposed development were found not to be minor changes.
The proposed development was a 15-lot residential subdivision at Victoria Point. The deemed refusal appeal had been resolved through without prejudice discussions, and the Appellant sought a minor change to its development application. The change proposed involved increasing the number of lots from 15 to 20.
The submission from the appellant was that the change would ultimately provide for a better development outcome than initially proposed. It characterised the changes as ameliorative, particularly from a bushfire management perspective, as they would result in (amongst other things) separation between residential lots and hazardous vegetation, and the removal of existing dwellings that would otherwise be located in a bushfire management zone.
In determining the minor change application, the key question for the Court was whether the change involved substantially different development. The appellant asserted that, even with the proposed changes, the development would still represent a small-scale, low density residential development comprising detached housing in a bushland setting. While that was accepted by the Court, it was not determinative of the question of whether or not the changes would result in substantially different development.
His Honour observed there was a markedly different lot layout, with an increased number of lots, and that the proposed lots were to be much smaller. His Honour concluded the changes clearly resulted in an essentially or materially different development – one where the layout of the proposed reconfiguration and the lots themselves were radically different. The ameliorative nature of the changes did not have the automatic consequence that the development remained essentially or materially the same.
The Court determined that, on the facts, the proposed development would be markedly changed, and the changes fell outside the concept of a minor change.
The application was dismissed.
Karagianis v Body Corporate for Northpoint Carseldine & Anor  QPEC 26
In this case on 19 April 2016, Brisbane City Council approved a development application for a material change of use for multiple dwelling (20 units), subject to conditions, on land in Carseldine.
The development approval included Conditions 21 and 23 relating to the grant or offer of easements in favour of Council and to adjoining lots. The Applicants were the registered owners of the adjoining lot (Lot 1 on RP95222). The Respondent – the body corporate – came into existence on about January 2018 (after the approval was granted).
Condition 21 stated, relevantly:
Grant the following easement(s): (i) Easements for underground drainage, overland flow and access purposes as may be required, in favour of Brisbane City Council. (ii) Easement for the purpose of access, construction and maintenance of utility services and/or storm water drainage over lot(s) L1 RP. 28985 in favour of lot L.1 RP. 95222 PAR NUNDAH. Timing: Prior to commencement of use (MCU) or as part of the registration of the plan of sub-division notated by Council (ROL). And then to be maintained:”
It was not in dispute that the easement specified in Condition 21(ii) has not been granted and that the time specified for the granting of the easement has passed. Northpoint submitted that the condition should be construed as creating an obligation to “offer an easement” to the Owners, for the purposes specified in the condition. Further, it could not take steps to, for instance, lodge a plan of subdivision with the necessary easement documentation, until the owners agreed to the terms of the easement pursuant to section 83(1)(b) of the Land Title Act 1994 (Qld).
That was accepted by the Court. The applicants themselves acknowledged the practical difficulty of a condition of a development approval requiring the grant of an easement in favour of an adjoining owner given that the grantor can only offer to grant an easement. An easement can only be registered if it is signed by the owners of both the burdened land and the benefited land. The owner of the land subject to an approval cannot “grant” an easement.
The evidence established that Northpoint’s solicitors had made an offer of an easement, for the purpose contemplated by Condition 21. The Court found that offer demonstrated compliance with Condition 21.
The remainder of the dispute concerned Condition 23, which required:
- an “offer to grant easement(s)” be made to the owners of Lot 1 on RP 95222 “for the purpose of two-way vehicle access (including vehicles for servicing and refuse collection) through the subject land …. with access to Stay Place”
- that the offer be made “prior to site work commencing”;
- that the offer be capable of immediate acceptance; and
- that it stand for a period of five years from the commencement of the use on the subject land unless accepted earlier.
The applicant did not dispute that there had been offers to grant easements in purported compliance with Condition 23. There offers were made in a number of letters – one from the previous owners of the land, sent in June 2016, and two from Northpoint sent after it became the owner of the land – one in November 2018, and another in June 2021. The applicant was not, however, satisfied with the terms of the offers made by Northpoint. On that point, the Court noted that the precise terms of the easement were not specified by Condition 23 – rather, that was a matter left to the parties to the easement. The Court observed that the owners of Lot 1 may prefer the easements to be granted on other terms, but that was not a matter that could be addressed by the current proceedings.
The Court was satisfied that, to the extent there had been any non-compliance with the conditions, it had been remedied by actions that Northpoint took after it became the owner of the land. The Court did not make any of the declarations sought by the Applicants.
Burke v Minister for State Development, Infrastructure, Local Government and Planning & Anor  QPEC 23
In this case, the applicant challenged the validity of the Minister’s decision to approve a minor change to the development approval for the Pacific View Estate in Worongary.
The Pacific View Estate has a long history. It is a significant development for the Gold Coast, and was ultimately approved following a Ministerial call in. The approval, originally granted in March 2015, facilitates the staged development of 324 hectares of land for urban purposes. It involves a maximum of 3,500 dwellings in a wide range of housing products, a residential population in the range of 8,000 to 10,000 persons, and retail, commercial and industrial uses in various precincts over the land.
The approval had been changed previously, on three occasions. The most recent changes sought (most contentiously) a change to the residential densities contemplated by the Skybridge Development Code, being the document which identifies how the approval varies the effect of Council’s planning scheme.
The change concerned residential densities in a particular precinct which covered a significant portion of the land. The change sought was from one dwelling per/700m2 net site area (up to 14.3 dwellings per/net Ha) to one dwelling /500m2 net residential density (up to 20 dwelling per/net HA). The rationale being that, absent the change, the development would not reach its planned target of 3,500 dwellings.
The Minister decided the change was minor. His observations included that the change assisted in achieving the originally intended yield of 3,500 dwellings, and did not materially alter the development, result in new or increased impacts, or changed infrastructure provisions. A range of material was before the Minister when he made that decision – included an assessment undertaken by the Department (which traversed the minor change test and the merits of the change application), and submissions received during the original assessment process.
The applicant advanced two grounds of challenge. First, it contended the Minister failed to take into account a number of mandatory considerations. Second, it contended the Minister’s decision was legally ‘unreasonable’.
The applicant’s challenge was essentially in the nature of judicial review. The statutory tests relevant to the first ground of challenge set a high bar, and involve demonstrating that the decision-maker failed to take into account a consideration that it was bound to take into account (which involves construing the relevant statute to see what matters the decision making is bound to consider).
The Planning Act sets up a particular assessment and decision-making framework for minor changes and, even more particularly, for the Minister in deciding such an application as a “relevant entity”. The Court canvassed those requirements in detail, and found that the Applicant had not established that the Minister failed to have regard to a mandatory consideration. The applicant’s first ground of challenge failed.
The second contention – that the Minister’s decision was not legally reasonably – was founded on the first contention; that is, that the Minister failed to take into relevant considerations. The Court found that the underlying assumption for the second ground had not been made out. In short, the applicant had not established the Minister failed to take into account a relevant consideration. The Court was satisfied that a review of the material established the decision made was legally reasonable, and open to the Minister.
The application was dismissed.