Recent Decisions Highlight Test for Development Assessment Under the Planning Act

5th December 2018

Two recent decisions, one from the Court of Appeal and another from the Planning & Environment Court, will be of interest to developers in light of the courts’ comments about the weight to be afforded to a local government’s planning scheme and the extent to which deviation from the planning scheme will be tolerated. The decisions are also of interest because they highlight a key difference between the Planning Act 2016 and the now repealed Sustainable Planning Act 2009 in circumstances where there is a conflict with the planning scheme.

Bell v Brisbane City Council & Ors [2018] QCA 84 (‘Bell’) was an appeal by a submitter against a decision of the Planning & Environment Court to approve a development application that would facilitate development, mainly for residential use, on the former Australian Broadcasting Commission site on the riverside at Toowoong. The development was proposed to involve the construction of three towers, two of 24 storeys and one of 27 storeys.

In circumstances where the relevant planning instruments specified a limit of 15 storeys, overall outcome (3)(h) of the Toowoong-Auchenflower Neighbourhood Plan provided that:

Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development (emphasis added).

In view of the conflict, this was a clear ‘grounds’ case. Section 326(1) of the Sustainable Planning Act 2009 was the relevant legislative provision and is, in part, reproduced below:

(1) The assessment manager’s decision must not conflict with a relevant instrument unless –

(a) The conflict is necessary to ensure the decision complies with a State planning regulatory provision; or

(b) There are sufficient grounds to justify the decision, despite the conflict; or

(c) The conflict arises because of a conflict between –

2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or
2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument (emphasis added)

In allowing the appeal, the Court of Appeal stated that:

…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.[1]

Although the trial judge had noted that this was an ‘exceptional case in which the proposal warrants approval notwithstanding’ conflict with the scheme, the Court of Appeal pointed to the fact that there were no reasons provided for why this was an exceptional case.

The judgment in Bell, on its face, could be argued to limit the discretion afforded to assessment managers in circumstances where they are confronted with a proposal which conflicts with a planning instrument.

In the later decision of Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32 (‘Parmac’), which concerned a development application that was assessed under the Planning Act 2016, her Honour Judge Kefford allayed those concerns, stating:

‘…the decision of the Court of Appeal in Bell is of diminished significance in this case. The statutory assessment process under the Planning Act 2016 differs from the assessment regime that applied under the Sustainable Planning Act 2009, which was being considered in Bell. The new assessment and decision rules for both code and impact assessment dispense with the “2 Part Test” (i.e. the conflict and grounds test) that existed under the Sustainable Planning Act 2009’ [2]

The relevant test, under section 45(5) of the Planning Act 2016, is reproduced below:

(5) An impact assessment is an assessment that:

(a) Must be carried out –

(i) Against the assessment benchmarks in a categorising instrument for the development; and

(ii) Having regard to any matters prescribed by regulation for this subparagraph; and

(b) May be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.

Examples of another relevant matter –

A planning need
The current relevance of the assessment benchmarks in the light of changed circumstances
Whether assessment benchmarks or other prescribed matters were based on material errors

Her Honour further observed that: ‘the description of the planning scheme providing a “comprehensive expression of what will constitute, in the public interest, the appropriate development of land” should not be taken as a statement that the planning scheme is a complete expression of what is in the public interest’. [3]

It is clear that the new test, under section 45(5) of the Planning Act 2016, involves a consideration of the assessment benchmarks and other relevant matters in their totality (rather than a two-stage test). While the distinction may – at first glance – appear to be academic, Judge Kefford’s reasoning in Parmac illustrates that there are practical implications for the change in legislative test.

Ultimately, the level of conflict with a planning instrument that will be tolerated will depend on the individual facts and circumstances of each case. If you would like to know more about the law as it applies to town planning please do not hesitate to contact Dan Morton or William McKenzie.

[1] [2018] QCA 84, [66].

[2] [2018] QPEC 32, [24].

[3] [2018] QPEC 32, [26].

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