In the recent decision of Abeleda & Anor v Brisbane City Council & Anor  QCA 257, the Queensland Court of Appeal (Court) dismissed an appeal against a judgment of the Planning and Environment Court (P&E Court), in turn upholding an earlier decision of Brisbane City Council (Council) to approve a development application.
The Court endorsed an interpretation of Queensland’s planning legislation, taken in recent P&E Court decisions, that provides greater flexibility and somewhat reduces the significance of non-compliance with planning scheme provisions.
The case arose out of a decision by Council to approve an impact assessable development application for multi-storey car park.
A commercial competitor (Abeleda) challenged this approval, primarily on the basis of non-compliance with various provisions in the relevant planning scheme. Most contentious was an overall outcome requiring the development to support non-residential uses that have a close nexus with an adjoining hospital.
In contrast, the key argument of the developer and the Council was that there was significant community and economic need for the development, especially given the close nexus to the adjoining hospital.
At trial, the P&E Court held that non-compliance with the Overall Outcome was not determinative, in light of section 60(3) of the Planning Act 2016 (Qld) (the Planning Act). That section gives the assessment manager, for an impact assessable development application (like the one here) a broad discretion – in contrast to earlier provisions discussed below.
Instead, the P&E Court dismissed the commercial competitor’s appeal, in light of the factors supporting the development emphasised by the developer and the Council. Abeleda then applied for leave to appeal against the decision in the Court of Appeal.
Court of Appeal decision
The Court of Appeal unanimously upheld the P&E Court’s decision.
Much of the Court of Appeal’s reasoning was particular to the facts of this case, and not of general relevance. However, the case is important because it is the first occasion that the Court of Appeal has had the opportunity to consider the P&E Court’s approach to the development assessment framework contained in the Planning Act, and how that framework differs from the earlier (now-repealed) Sustainable Planning Act 2009 (Qld) (SPA) and Integrated Planning Act 1997 (Qld) (IPA).
Interpretation of the Act
Under the SPA and IPA, if a proposed development conflicted with a planning scheme, the assessment manager was prohibited from approving the development unless there were sufficient grounds, being matters of public interest (e.g. economic need), to justify approval despite the conflict. Effectively, this meant that conflict was determinative unless outweighed by other factors in the public interest.
Conversely, under the Planning Act, compliance with the planning scheme, while important, is merely one factor to be considered alongside other public interest considerations.
In particular, Section 45(5) of the Planning Act states that the assessment manager conducting an impact assessment of an assessable development must have regard to relevant assessment benchmarks. The assessment manager may also have regard to other relevant matters (e.g. economic need).
After carrying out this assessment, as noted above, section 60(3) of the Planning Act gives the assessment manager broad discretion to approve all or part of the application, including with conditions, or refuse the application. Accordingly, while the planning scheme remains the embodiment of community interest under the Planning Act, non-compliance with its assessment benchmarks does not automatically warrant refusal of the development application in the absence of sufficient grounds.
In deciding the case, Mullins JA, who delivered judgment on behalf of the Court, referred to the P&E Court’s decision in Ashvan v Investments Unit Trust v Brisbane City Council  QPEC 16 (Ashvan) on this point, being a key P&E Court decision recognising the flexibility conferred by section 60(3) of the Planning Act. In Ashvan, the P&E Court noted that competing considerations of the need for rigid application of planning documents and the desirability of a flexible approach must be balanced. Mullins JA echoed this observation in Her Honour’s judgment.
The Court of Appeal’s decision affirms the P&E Court’s interpretation of the Planning Act as providing for a broader, more flexible development assessment framework and upholds the wider interpretation of the discretion under section 60(3) of the Planning Act.
For developers, this flexible framework means more likelihood of approval on grounds of community and economic need despite non-compliance with planning schemes.
For assessing authorities, such as local governments, the decision confirms their broad discretion to take a more holistic approach to development assessment (particularly of impact assessable development applications), involving a ‘multi-faceted balancing exercise’ of all relevant factors.
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