Case Summary: BRISBANE CITY COUNCIL V KLINKERT [2019] QCA 40

The Court of Appeal delivered a decision in light of the assessment requirements in the Planning Act 2016 (Qld) for code assessable developments. At present, the provisions for code assessable developments do not indicate a clear application of the decision-making outcomes available to an assessment manager. The provisions examined by the Court in this judgment are sections 45(3), 45(7) and 60(2).

Overview

Established in 1938, an English Revival (pre-1947) style house located in Toowong was subject to a code assessable development application to approve the demolition of the house. The house was located within the Brisbane City Council’s Traditional Building Character (Demolition) Overlay which required code assessment under the Brisbane City Plan 2014 (‘City Plan’). The City Plan came into effect on 30 June 2014, and compliance with the Traditional Building Character (Demolition) Overlay Code (‘Demolition Code’) was a mandatory provision of the City Plan. The Council subsequently amended the planning scheme, including the Demolition Code, under the City Plan in September 2015, however, the amendments did not come in effect until 1 December 2017.

The development application requiring code assessment was lodged on 30 June 2017, and was refused by the Council on 15 August 2017. An appeal to the Planning and Environment Court was filed by the Respondent on 12 September 2017.

Question of law

The key provisions identified a discrepancy in terms of the assessment manager’s discretion in applying the assessment benchmarks to a code assessable application, especially in context of when the application was properly made and when the amendments have been given effect.

On the facts, the development application would have been compliant with all assessment benchmarks of the City Plan that were in force at the date the development application was made (i.e. prior to the amendments), and it was in accordance with section 60(2) (a) of the Planning Act 2016. In the first instance, the Planning and Environment Court held there was no basis to the amendments in context of section 45(7), and further noted that the amendments were ‘irrelevant’ in circumstances where section 60(2)(a) is applied.

The Council sought leave to appeal against the decision of the Planning and Environment Court.

Statutory interpretation

Section 45 (7) states:

“However, if the statutory instrument or other document is amended or replaced before the assessment manager decides the application, the assessment manager may give the weight that the assessment manager considers is appropriate, in the circumstances, to the amendment or replacement.”

Section 60 (2) states:

“To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment:

  1. must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  2. may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and
  3. may impose development conditions on an approval; and
  4. may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions.”

The inconsistency lies where the assessment manager bases the decision for a development approval, in that the ‘weight’ given to the amendment, or, if the development does not comply with assessment benchmarks, the possibility of imposing development conditions to compensate for the lack of compliance.

The Court of Appeal examined what constitutes a proper interpretation of s 60(2)(a) of the Planning Act, having regard to the contents of the Act as a whole. This interpretation found that s 60(2)(a) requires the assessment manager to approve a development application that complies with the assessment benchmarks in the Demolition Code in force at the time the application was properly made.

Section 45 as a whole provision specifies two categories of assessment, that is, code or impact assessable applications. That assessment must, pursuant to section 45, be carried out against a statutory instrument or document as in effect when the application was properly made, and if the statutory instrument or other document is amended or replaced before the assessment manager decides the application, “the assessment manager may give the weight that the assessment manager considers is appropriate in the circumstances to the amendment or replacement.”

Decision

It was discussed that by the assessment manager ‘giving weight to the development application’ does not necessarily mean compliance with the amended Code and original Code. The assessment manager may decide to retain the assessment benchmarks in the original Code, despite the amended Code in force. The Court viewed this approach as consistent with section 45(3) of the Planning Act 2016. While the assessment manager is permitted to give weight to an amendment or replacement provision in the Code, any weight given is in “context of a statutory requirement for the assessment manager to carry out the assessment only against the assessment benchmarks that are in effect when the application was properly made.”

It was decided that it is in the public interest that the assessment manager holds the ability to “give weight” to an instrument which is to be amended or replaced, and ensure properly made applications are assessed in accordance with the benchmarks at the time of the properly made application.

The Court of Appeal held that the Planning and Environment Court had correctly assessed the operation of section 60(2)(a) of the Planning Act and dismissed the appeal. The Court ordered the Council to pay the Respondent’s costs of the application for leave and the appeal.

The consequences

The repealed legislation of the Sustainable Planning Act 2009, and the subsequent introduction of the new Planning Act 2016, have proven a tumultuous application of assessment benchmarks to development applications over recent years. Prior to the decision of the Court of Appeal, the statutory interpretation of the role of the assessment managers in development applications under the new Planning Act 2016 was not confirmed by precedent, and this outcome presents clarification on the operation of these relevant sections.

While the Court provided further clarification as to the operation of s 60(2)(a) itself, ambiguity remains in the application of sections 45(7) and 60(2)(a) where the relevant assessment benchmarks prevails any ‘weight’ given to a later instrument.

Who is affected by the decision?

For developers, this decision confirms that if a code assessable development is compliant with the assessment benchmarks at the time it is properly made, the assessment manager must approve the application.

The pressure is on for local governments to ensure any strategic planning scheme amendments are not delayed. If a code assessable development application is compliant with the current codes, the local government will not be able to refuse the application based on a planning instrument that comes into effect at a later date.

If you are a developer with a code assessable development application and would like to discuss the decision further, please contact DSS Law on 1300 DSS Law to arrange a consultation with our Property and Commercial team.

Disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on 1300 DSS LAW or epost@dsslaw.com.au.