The difference between 250m2 GFA and less than 250m2 GFA can be a day in court.
In a recent decision handed down by the Planning and Environment Court of Queensland on 4 June 2021, Thynne + Macartney successfully represented the first respondent and third respondent in having an originating application dismissed on the basis the applicant had not demonstrated any error in categorisation or discharged the onus of demonstrating material noncompliance.
The first respondent lodged a development application with Brisbane City Council (the second respondent) for a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet on land owned by the third respondent. The proposed development was stated to be a code assessable development seeking a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet where the proposed uses would respectively be a brewery with a Gross Floor Area (GFA) of 538m2 and a restaurant with a GFA of 250m2.
The applicant sought declarations that the development application was for impact assessable development, not code assessable development, either because it sought a development permit for a material change of use which should properly be characterised as High Impact Industry and Hotel or alternatively on the ground that the GFA of the proposed Food and Drink Outlet exceeded 250m2.
The applicant was seeking to have the development application lodged on 6 November 2020 with Brisbane City Council and subsequently granted approval on 23 February 2021, set aside.
Code assessment vs impact assessment
According to the Brisbane City Council, a code development application is assessed against the codes identified for use within City Plan and this type of application can be assessed relatively quickly and does not require public notification. Where an accepted development, subject to requirements, does not meet one or more of the acceptable outcomes of the relevant code, a code application is triggered. The application will only need to address the aspects of development that do not meet the accepted development requirements.
An impact assessable development application is for development that must be assessed against all identified codes and City Plan as a whole to the extent relevant. This is to ensure that identified development impacts are addressed. These applications must be publicly notified to take into account the community’s views.
In this instance, the development application was submitted as a code development application which did not require public notification. However, the Applicant become aware of the proposal and filed the originating application in the Planning and Environment Court of Queensland.
In this instance the court recognised there is significant difference between a code assessable development application and an impact assessable development application. For a start, pursuant to section 45 of the Planning Act 2016, code assessment is much more constrained. Of greater significance for the applicant is the absence of any rights to make a submission or appeal against a subsequent development approval.
Disputed in court
The issues in dispute were:
- Whether the development application proposed development for the use of “Hotel”, not the use of “Food and Drink Outlet”, and therefore, the development application ought to have been subject to an impact assessment.
- Whether the development application proposed development for a Food and Drink Outlet of 250m2 GFA or more and was therefore a development application for impact assessable development.
In the event that the court finds in favour of the applicant with respect to either or both of issues 1 and 2:
- whether the court should refuse relief in the exercise of its discretion;
- alternatively, whether the court has power under section 37 of the Planning and Environment Court Act 2016 (Qld) to excuse the non-compliance and whether, in the discretion of the court, such relief should be granted.
On the first issue, the court accepted the evidence of the director of the first respondent given at the hearing of the originating application that the restaurant is only intended to sell alcohol as an adjunct to the sale of meals and that this use will involve the selling of food as the primary activity and the sale of alcohol, including products from the co-located brewery, was secondary to it. The proposed non-brewing activity does not come within the definition of Hotel as this requires the selling of liquor for consumption on the premises to be the primary use, and Everson DCJ found this not to be.
The second issue examined a town planning report submitted as part of the original development application stating, “that the Food and Drink Outlet is proposed to support and promote the brewery and that it is to comprise 250m2 GFA and an additional 180m2 of external dining area“. The accompanying development plans showed the Food and Drink Outlet layout contained some ambiguities in the floor space layout and this received significant attention in the proceedings.
Again, based on the evidence of the director of the first respondent, the court found that it was always the intention of the first respondent to conduct a Food and Drink Outlet use of less than 250m2 GFA, that is what was intended by the development application and is what is intended to be conducted pursuant to the development approval. Everson DCJ referred to the “unfortunate reference in the DA Form 1 and the accompanying report to this use being 250m2 GFA rather than less than 250m2 GFA”.
The first respondent made it clear that if the applicant was successful, the development application for a Food and Drink Outlet would be relodged with a maximum GFA of less than 250m2.
The 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 second respondent in receiving and assessing the development application.
The originating application was dismissed.
Thynne + Macartney’s recommendations for avoiding similar situations
In our experience, these proceedings often involve commercial competitors attacking the validity of a development approval in circumstances where traditional appeal rights are unavailable. Such proceedings are typically hard fought from start to finish.
Developers can take the following actions to minimize the risk of proceedings being brought by:
- Ensuring all development applications and supporting documentation (especially site plans) comply with the code requirements without ambiguity.
- Ensuring documents are revised by more than one expert prior to submission to attempt to avoid the potential for inaccuracies and ambiguities.
- Take care that there is consistency between all supporting reports and drawings before the development application is lodged.
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.
Katie is a law clerk at Thynne + Macartney where she has worked with the Planning + Environment team since November 2019. Katie is currently studying a Bachelor of Behavioural Science (Psychology) and a Bachelor of Laws (Honours) at QUT. She is currently an Australia Awards Peer Tutor for Contract Law at QUT.
This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.
Authors: Tim Quirk (Partner) and Katie Wagner (Law Clerk)