Summary
Since the commencement of the Planning Act 2016 (PA), the Planning and Environment Court (Court) has been providing increasing guidance through its decisions on the changes to development assessment and decision making under the new legislation. From this emerging case law, the PA represents far more than a simple rebadging of previous concepts and approaches and a substantially new and different approach now applies to development assessment in Queensland. This affects all those involved in the development assessment process in Queensland, from applicants to assessment managers to owners to submitters.
Legislative Framework
Section 45 of the PA establishes the categories of code assessment and impact assessment for assessable development and defines the scope of these assessments. In short, code assessment is a bounded assessment and must only be carried out against the assessment benchmarks having regard to any matters prescribed by regulation, whereas impact assessment must be carried out against the assessment benchmarks having regard to any matters prescribed by regulation and may be carried out against, or having regard to, any other relevant matter, other than a person's personal circumstances, financial or otherwise.
Section 60 of the PA applies to deciding development applications and imposes the following rules:
• For code assessment, the assessment manager must approve the application to the extent the development complies with all of the assessment benchmarks and may decide to approve the application even if the development does not comply with some of the assessment benchmarks. Further, the assessment manager may, to the extent that the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.
• For impact assessment, the assessment manager must decide to approve all or part of the application, subject to development conditions on the approval or refuse the application.
Case Law
The most significant decision from the Court to date has been Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 (Ashvan) in which the Court provided a detailed consideration of requirements for development assessment under the PA and how this differs to the approach previously taken under the Sustainable Planning Act 2009 (SPA).
In Ashvan, the applicant made an impact assessable application to the Council for a material change of use approval for a Childcare centre situated in The Gap. This application was rejected by the Council on the basis that the proposal did not comply with the Council's planning scheme (City Plan 2014), and in particular, the low density residential zone code. The Council, along with Co-respondents by Election, contended that the application did not comply with planning controls for the size and function of such a facility. In addition, they alleged that the development would not comply with other complimentary planning controls in the planning scheme designed to protect the high level of amenity expected in the low density residential zone .(1)
Despite each party's acceptance that the PA applied to the appeal, the Court noted the way in which the parties had framed the issues in dispute largely mirrored the approach taken under the repealed Act. In this regard, the Court found that the list of issues simply replaced the tests for “conflict” and “grounds” in the SPA with “does not comply” and “relevant matters sufficient” to shoehorn in the provisions of the PA.(2)
Under section 326(1)(b) of the SPA, refusal of an application was mandated if conflict between the approval and relevant instrument could be identified except where sufficient grounds could justify an approval despite the conflict. The Court expressed that this two-step process is non-existent in the PA and is instead replaced by the discretionary powers of the assessment manager found in section 60(3) of the PA.
Section 60(3) of the PA provides an assessment manager with the discretionary power to approve all or part of, impose conditions or to refuse an application. The relevancy of this power is that unlike the SPA, non-compliance with assessment benchmarks does not assume primacy in the exercise of planning discretion.(3) The discretionary power in section 60(3) of PA admits more flexibility for an assessment manager to consider factors aside from the non-compliance itself.
The Court highlighted the need for a balanced approach between a rigid application of assessment benchmarks (including planning documents) and an adoption of a flexible approach to the exercise of discretion in a manner that advances the purposes of the PA .(4)
Scope of discretion
The discretion of an assessment manager is subject to three requirements, as the Court first identified in Smout v Brisbane City Council :(5)
(1) it must be based on the assessment carried out under section 45 of the PA;
(2) the decision making function must be performed in a way that advances the purpose of the Act; and
(3) The discretion is subject to any implied limitation arising from the purpose, scope, and subject matter of the PA.(6)
The first requirement is reflected in section 59(3) of the PA and requires discretion to be based on the assessment of the development carried out. The exercise of the planning discretion must be based on the assessment of the application. While the PA provides no specific provision for the definition of ‘assessment’, the Court endorsed code and impact assessment as the two principle categories of assessment along with an ordinary reading of the word.
The second requirement evokes section 5 of the PA which highlights the need for the purposes of the PA to underpin all applications of it legislative controls. Subsection (5)(2) provides a non-exhaustive list of matters that may be treated as advancing the purpose of the PA. These include broad consideration of community issues such as environmental, economic and cultural considerations.
The final requirement is that the discretion must be exercised for a purpose that is within the contemplation of the PA and can simply be read as the discretion must arise from the subject matter, scope and purpose of the PA.
Along with providing a comprehensive framework for exercising discretion, the Court addressed the requirements of both parties in either refusing an application or to successfully approve one.
Grounds for refusal
Where a party contends that a non-compliance with an assessment benchmark warrants refusal, that party will need to identify at least two things in any document purporting to articulate the issues in dispute in the context of an appeal against Council's decision:
(1) it will need to identify the non-compliance alleged; and
(2) it will need to identify the planning basis it relies upon to contend the non-compliance warrants refusal in the exercise of the discretion under section 60(3) of the PA (with a recommendation of town planning experts for assistance).(7)
Grounds of approval
An applicant is required to identify all matters that will be relied upon to contend an approval should be granted in the exercise of discretion. The Court in this case suggests that the reasons relied upon will usually be founded on one of two alternative cases:(8)
• Where it is assumed an approval will comply with the assessment benchmark; or
• Where non-compliance is established with an applicable assessment benchmark, the applicant must prove that non-compliance ought not be determinative in the circumstances of the case .
In Ashvan, the Court utilised these discretionary powers, as conferred in the Planning and Environment Court Act 2016 (9) , and held that an approval would result in a contravention of the adopted planning controls of the land. Additionally, an approval would have unacceptable impacts on the amenity and character of the local area. While the applicant successfully proved a demand in the area for the facility, the Court held that this demand must yield to amenity and planning considerations. The size and scale of the facility was noted as the underlying explanation for non-compliance. The appeal was dismissed.
Conclusion
The key takeaway from Ashvan is that non-compliance with an assessment benchmark does not result in an automatic refusal nor is it based on the “conflict” or “sufficient grounds” tests as found in the SPA. Instead, a balancing of flexible and rigid approaches is required under the PA which is achieved by granting broad discretionary powers to take relevant considerations into account subject to the context of the assessment.
1 Ashvan para [6]
2 Ashvan para [37]
3 Ashvan para [51]
4 Ashvan para [54]
5 Smout v Brisbane City Council [2019] QPEC 10
6 Ashvan para [62]
7 Ashvan para [67]
8 Ashvan para [69]
9 Section 47