P&E Court hops to practical decision on appeal

In a decision of the Queensland Court of Appeal handed down on 14 December 2021, Thynne + Macartney successfully represented the First and Third Respondents (referred to collectively as Malt Brewing) in having the Planning and Environment Court’s (P&E Court) decision to dismiss an originating application seeking to set aside Council’s approval of their development upheld.

Whilst the Court seeks to deliver practical results, developers should ensure applications are sound and error free to minimise ambiguity and the risk of approvals being challenged and disputed in court.

The matter was: Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd Trading as Revel Brewing Company & Ors [2021] QCA 281.

Facts & Decision at First Instance

In dispute was Second Respondent Brisbane City Council’s (Council) approval of a code-assessable development application for an extension to an existing brewery and the addition of a restaurant at an existing premises at Morningside. Not having any appeal rights by virtue of the development application being subject to code assessment, an adjoining landowner (Cannon Hill Investments) commenced declaratory proceedings in the P&E Court seeking declarations the approval was invalid as the development application should have been subject to an impact assessment.

The Applicant argued the development application was impact assessable for two reasons:

1. The development application was properly characterised as High Impact Industry and Hotel; or, in the alternative,
2. The GFA of the proposed Food and drink outlet exceeded 250m².

In dismissing the Originating Application in June 2021, the P&E Court found:

• The applicant had not demonstrated an error in the categorisation of the proposed non-brewery use as a Food and Drink Outlet, nor any utility in granting the relief sought.
• The conditions imposed in the development approval did not give rise to a controversy as to the categorization of the proposed development as code assessable.
• The applicant had not discharged the onus of demonstrating material noncompliance on the part of the Council in receiving and assessing the development application.

Click here for more information about the original decision.

Cannon Hill Investments subsequently applied to the Court of Appeal for leave to appeal the decision of the P&E Court.

Court of Appeal

Cannon Hill Investments raised two grounds of appeal, namely:

1. The trial judge failed to properly consider the evidence of the GFA of certain areas of the site (referred to as Areas 1 – 5); and
2. The decision of Council (and by extension, the P&E Court) was infected with jurisdictional error.

Cannon Hill Investments also made an application to introduce new evidence, namely Temporary Local Planning Instrument 2 of 2021, Colmslie Road Industry Precinct, which came into effect on 29 June 2021. This was after the date of the original decision of the P&E Court, and would have the effect that an application for a Food and Drink Outlet would be impact assessable (regardless of GFA).

Failing to deal with GFA Evidence

Cannon Hill Investments argued that the trial judge had failed to engage with the evidence of the GFA on the separate areas of the plan (referred to as Areas 1-5), which they contended would ‘prove’ the GFA of the use was or exceeded 250m². In dismissing this ground, the Court of Appeal held that the trial judge had made findings of fact that, whilst acknowledging there were “unfortunate” references to a use of 250m²:

• Malt Brewing intended to apply for a restaurant use of less than 250m²;
• That is what the development application intended; and
• The Council assessed the application on the basis it was code assessable.

Given these finding of the trial judge that “…the use was intended and understood as being less than 250m² GFA”, it followed that this necessarily excluded the inclusion of Areas 1 – 5.

Based on the above findings of fact, the Court of Appeal said that it can be taken from this that there was an inferred fact that the Council understood that the development Malt Brewing was seeking was less than 250m² in GFA and as such, code assessable.

Jurisdictional Error

Cannon Hill Investments contended that the decision of the Council to approve the development application was infected with jurisdictional error, given the references in the material to “250m² GFA”. It was submitted that, “…the question of whether an application was code assessable admitted of only one correct answer, and that answer constituted a jurisdictional fact which, if answered incorrectly, revealed an excess of jurisdiction.”¹

In finding that no question of jurisdictional error arose, the Court of Appeal pointed to the implicit finding of fact of the primary judge that the reference to 250m² GFA was a known error, which was corrected by Council in imposing conditions.

Application to introduce new evidence

Given the Court of Appeal did not grant leave to appeal, the application to introduce the further evidence was also refused.

Conclusion

In dismissing the application for leave to appeal, the Court of Appeal restated the important principle that the construction of a development approval or consent, including the application for the approval itself, “…should not be done in the same way as a statute or as a document drafted with legal expertise, but rather liberally and to achieve practical results.”

While the Court will interpret development approvals and applications liberally and with the view to achieving practical results, developers can take the following actions to minimise the risk of legal proceedings being brought challenging their applications and approvals, by ensuring:

• All development applications and supporting documentation (especially site plans) comply with the code requirements without ambiguity.
• Documents are revised by more than one expert prior to submission to attempt to avoid the potential for inaccuracies and ambiguities.
• There is consistency between all supporting reports and drawings before the development application is lodged.

[1] QCA Judgment para [44].

Sign up to receive updates from our Planning + Environment group

About Tim

Recognised as a finalist at Lawyers’ Weekly’s 2021 Partner of the Year – Planning and Environment, Tim leads Thynne + Macartney’s team and has over 20 years’ experience in enforcement and prosecution proceedings for developments and environmental offences. His objective is to guide clients through the intricacies of planning and environment law to create the best commercial result with minimal delay or obstruction.

About Holly

Holly is a lawyer in the Planning + Environment group at Thynne + Macartney. She assists clients to navigate the complexities of planning and environment law at all stages of their projects. Working closely with Tim Quirk who leads the Planning + Environment group, Holly advises developers and local governments. Holly is recognised by Doyle’s Guide to Leading Lawyers as a 2022 Rising Star for Planning & Environment Law in Queensland.

About Lewis

Lewis is a lawyer in the Planning + Environment group at Thynne + Macartney. From 2019 to 2021, Lewis was a Judge’s Associate in the District Court of Queensland where he was an Associate to His Honour Judge William Everson, His Honour Judge Kerry O’Brien and Her Honour Judge Nicole Kefford. His planning + environment experience includes land development and land use, heritage and demolition issues, environmental offences and vegetation clearing and management.