Background
The case of Lipoma Pty Ltd & Anor v Redland City Council & Anor [2020] QCA 180 concerned an appeal to the Queensland Court of Appeal against a decision of the Planning and Environment Court of Queensland brought by the operators of two existing shopping centres, Lipoma Pty Ltd and Lanrex Pty Ltd (Applicants), in respect of a proposed mixed-use development (including shopping centre) to be located at Thornlands (Development Application). The other parties to the appeal were the Redland City Council (Council) and the developer of the Development Application, Nerinda Pty Ltd (Developer).
At first instance, the Applicants successfully appealed against the Council’s decision to approve the Development Application in the Planning and Environment Court. That decision was then overturned in the Court of Appeal in favour of the Developer, remitting the matter back to the Planning and Environment Court on account of an error in the approach of the primary judge.
The Planning and Environment Court then held in favour of Council at the second hearing of the matter, dismissing the appeal (and approving the Development Application), with that decision being subsequently appealed to the Court of Appeal.
Development Application
Pursuant to s242 of the Sustainable Planning Act 2009 (now repealed), a “preliminary approval” may establish (amongst other things) a framework under which a development application for a development permit is to be assessed in respect of a particular designated area.
The preliminary approval aspect of the Development Application had sought to vary the Council’s Redlands Planning Scheme 2006 (2006 Scheme) by altering the levels of assessment for development within various precincts and specifying the assessment criteria for that development (at [5]).
In particular, the retail/commercial component of the preliminary approval was the primary contention between the parties which proposed a full-line supermarket, specialty shops, family tavern, medical centre, service station and car-parking.
Planning schemes
Under the 2006 Scheme, the land the subject of the appeal was partly within four different zones and was also designated as medium density residential and urban residential housing and as part of the Council’s “Greenspace Network” under the Kinross Road Structure Plan (Structure Plan). The land had also been designated as a “centre use” under the “centres hierarchy” within the Strategic framework under the 2006 Scheme.
Council’s Redland City Plan 2018 (2018 Scheme) was later introduced while the proceedings were on foot, superseding the 2006 Scheme. The 2018 Scheme was said by the Court of Appeal to have replicated the planning intent in the 2006 Scheme and incorporated the “mixed zoning” pattern for the land as designated under the Structure Plan.
Proposed development’s conflict with the 2006 Scheme
In the decision below (second hearing), the trial judge considered that the Development Application was in conflict with the 2006 Scheme for the following reasons (see [19]-[20]) as the Proposed Development would:
- Be “out of centre” development, as it had not been contemplated under the “planned centre network” within the Strategic framework under the 2006 Scheme;
- Result in an additional centre not previously contemplated having regard to the “centres hierarchy” under the Strategic framework for the 2006 Scheme; and
- Would be inconsistent with the intention for the utilisation of the land under the Structure Plan.
Notwithstanding the apparent conflict, the trial judge concluded that the 2006 Scheme had expressly excluded the provisions of the Strategic framework in assessing the Development Application.
Was the 2018 Scheme the Council’s “current statement” of its planning intent?
Section 495(2)(a) of SPA provides that the Court:
“must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate“.
The trial judge concluded that it was not appropriate to give weight to the 2018 Scheme in assessing the Development Application for the following reasons:
- The Council’s implementation of the 2018 Scheme was not “destructive” of its own decision to support the Development Application because Council was aware that the 2018 Scheme could not affect any development entitlements or development obligations under the Structure Plan in “any adverse or material way”; and
- The Council did not consider amendments to the 2018 Scheme as having taken account of the Development Application such that “the 2018 Scheme should not be regarded as the Council’s most recent statement of position about supermarket-based shopping centres on the subject site” (at [26]).
Were the Schemes an expression of the “public interest”?
Having regard to its earlier decision in Bell, 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” (at [31]). Notwithstanding, the Court held that on the basis of the findings of the trial judge, the 2006 Scheme or the adopted 2018 Scheme were not an expression of the public interest for the following reasons:
- The primary judge observed that the Council was not appreciative of the deficiencies in its centres planning strategy at the time it assessed the Development Application; and
- In any event, the Council was also bound to carry out its assessment “in parallel to continuing its legislative function of drafting and implementing the [2018 Scheme]” at that time (at [24]).
A critical point in the Applicant’s case was that in accepting in the Court of Appeal that the trial judge’s findings were a finding of fact, the findings could not be challenged. This is because an appeal is limited to an error or mistake in law or for want of jurisdiction pursuant to s63(1) of the Planning and Environment Court Act 2016.
Sufficient grounds
The Court of Appeal then turned to consider the central question of whether the trial judge had erred in finding that there were “sufficient grounds” in the public interest to depart from the 2006 Scheme and the adopted 2018 Scheme. Consistent with the consideration of the trial judge, the Court of Appeal identified that the Developer required “strong grounds” to overcome the nature and extent of the identified conflicts with both Schemes (at [73]) which, in the Court’s opinion, was ultimately borne out for the following reasons:
- Notwithstanding conflict with the 2006 Scheme, Council’s support for the Development Application “had not wavered nor been diluted” (see [43]) since proceedings commenced;
- There was a community, economic and planning need for the Proposed Development;
- The development would not have negative impacts or detrimental effects on the existing and planned hierarchy of retail and neighbourhood centres; and
- Changes to circumstances had occurred since the hearing of the first appeal, which ultimately favoured approval of the development in the public interest.
Order
In dismissing the appeal, the Court of Appeal ordered that the Applicants pay the costs of the application for leave to appeal for both the Council and Developer.
Implications
Where a potential conflict may arise with respect to a planning instrument, developers should be aware of the following considerations:
- The relevant local government’s intentions regarding future amendments to its planning scheme;
- Where a new planning instrument is being prepared, whether there are deficiencies in any assessment benchmarks under consideration, and if so, whether the relevant local government is aware of it and has attempted to remedy it;
- Also if a new planning instrument is being prepared, that the relevant local government is bound to carry out its assessment of the development application in parallel to its continuing legislative function of drafting and implementing the new planning instrument; and
- Note that the “sufficient grounds” test is a creature of the Sustainable Planning Act 2009 (now repealed) and instead, a broad discretion is now conferred on the assessment manager who must have regard to “relevant matters” under the Planning Regulation 2017 in assessing applications made under the Planning Act 2016.
This article was written by Peter Bittner, Partner and Chris Vale, Solicitor.
