BGM Projects Pty Ltd v Brisbane City Council & Ors [2026] QPEC 13

[3] Council has filed a certificate of its Chief Executive Officer, but no other material. The certificate contains the material said to be before the decision maker.

[4] The second and third respondents have filed no material. Nor have they identified any formal position in response to the Originating application, including discretionary reasons that are said to militate against granting the relief sought.

[5] A review of the Originating application reveals BGM's case. It asserts the development approval granted by Council's delegate is contrary to law and invalid. Consequential relief is sought, namely that the approval be set aside and taken to have no effect.

[6] The grounds relied upon by BGM are set out in the Originating application. The grounds allege that Council's assessment of the development application it approved "miscarried and was in legal error" because: (1) Council failed to take into account relevant considerations; and (2) Council took irrelevant considerations into account.

[7] The legal error is said, in the circumstances, to have the following result:

(a) be satisfied that the Development Application complied with the relevant assessment benchmarks of the Planning Scheme, including Performance Outcome ("PO") 1(b), PO2, PO3, PO4, PO5, Acceptable Outcome 8.2 and corresponding PO8, PO11 and PO12 of the Stormwater Code; and

(b) properly exercise its power to approve the Development Application."

[8] The grounds of the Originating application also allege: (1) the development approval was granted contrary to law because the development application made to obtain it did not include all of the relevant land; (2) the development approval lacks finality because it imposes conditions deferring material matters for future consideration; and (3) the exercise of the decision making power was unreasonable.

[9] There can be little doubt that each of the allegations I have just referred to seek to impugn the development approval the subject of the proceeding. The Originating application plainly puts the validity of the approval at risk. As a consequence, from the date this proceeding was commenced, there has always been a risk for the second and third respondents that the development authorised by the conditional operational works approval may be subject to further consideration against Council's planning scheme.

[10] The Originating application was drawn with the benefit of a statement of reasons, which were provided to BGM's solicitors on 21 October 2025, some 10 days before the proceeding was commenced.

[11] The first return date for the Originating application was 8 December 2025. On that day, orders were made requiring Council to file the material it contends was before the decision maker. Further, an order was made requiring BGM to file and serve any further material, including its written submissions.

[12] Council filed a certificate of its Chief Executive Officer on 23 January 2026.

[13] BGM filed its affidavit material on 20 February 2026, after two extensions of time were granted, by consent, on the papers. The written submissions followed on 23 February 2026.

[14] This application in pending proceeding accompanied BGM's affidavit material and was served on 20 February 2026. The form of the amendments proposed to the Originating application are set out in Annexure A to the application in pending proceeding. A review of Annexure A reveals amendments are proposed to one of the declarations sought and supporting grounds. The amendments fall into one of two categories; editorial or substantive.

[15] Editorial changes are proposed to paragraphs 19(a)(ii) and 19(a)(iii) of the Originating application. The former involves deleting the word "and". The latter involves deleting a semicolon at the end of the subparagraph. In my view, leave is not required for these amendments. They properly fall within an amendment contemplated by a combination of r 4(2) of the Planning and Environment Court Rules 2018 and r 377(2) of the Uniform Civil Procedure Rules 1999. If I am wrong about this, I would have granted leave in any event. The editorial amendments are, on any view, de minimis.

[16] As to substantive changes, they appear at paragraphs 19(c) and 20(a) of Annexure A. The change to paragraph 19(c) is also reflected in an amendment to the declaration sought at paragraph 2 of the Originating application.

[17] Paragraph 19(c) is a new subparagraph. It is in the following terms:

"(c) The First Respondent failed to assess and decide the Development Application in accordance with the Planning Act 2016.

(i) the Development Application was assessed against a version of City Plan which was not in effect at the time the Development Application was properly made;

(ii) the Development Application was not assessed against the overall outcomes and purpose of the Infrastructure design code, Stormwater code and Operational work code;

(iii) the Development Application was not assessed against the provisions of the Flood overlay code and Waterway corridors overlay code."

[18] The amendment proposed to subparagraph 20(a) involves a deletion. BGM seeks leave to delete reference to specific Performance outcomes and Acceptable outcomes in the Stormwater code of Council's planning scheme. The relevant provision numbers follow the word "including".

[19] Paragraph 20 of the Originating application, in its unamended form, asserts that the decision maker could not have been satisfied the development application, if approved, complied with relevant assessment benchmarks of the planning scheme, including provisions of the Stormwater code. Paragraph 19 identifies the circumstances relied upon to found this contention. Paragraph 19 alleges that the decision maker failed to, amongst other things, take into account relevant considerations, and took into account irrelevant considerations.

[20] Despite the opening words of paragraph 19(c), the amendment in Annexure A introduces further particulars of the assertion made in paragraph 19(a) of the Originating application. Indeed, the new subparagraph alleges the decision maker failed to take into account: (1) the version of the planning scheme in force when the application was properly made; and (2) the outcome of an assessment against specific parts of a number of codes in the planning scheme, which are said to be relevant assessment benchmarks.

[21] To remove any doubt about this, an amendment I allow will involve deleting the opening words to subparagraph 19(c) and relocating the particulars that follow to paragraph 19(a) of the Originating application.

[22] The codes referred to in paragraph 19(c)(ii) and (iii) of Annexure A include the Stormwater code, which is pleaded at paragraph 20 of the Originating application. This is what follows the word "including". The balance of the codes referred to are new. The new codes referred to are the Infrastructure design code, the Operational works code, the Flood overlay code and the Waterway corridors overlay code. Reference to the particulars provided in relation to these codes reveal they are relied upon to allege the first respondent failed to take into account relevant considerations.

[23] An explanation was given for the amendments in affidavit form. The affidavit was sworn by Mr Connor of Connor O'Meara Solicitors. A review of the affidavit reveals that Mr Connor's firm was given instructions to file and serve this proceeding as quickly as possible. To draw the proceedings, a statement of reasons was requested and obtained. The reasons, as I have already said, were delivered on 21 October 2025. The proceedings were filed some 10 days later, and some 8 weeks after the impugned decision was made. The 10 day turnaround period between receiving the statement of reasons and filing the Originating application, given the complexity of the decision making process and its associated content, is by no means slow. The timing does not suggest there was any unreasonable delay associated with the commencement of the proceeding.

[24] Mr Connor knew why he had been given instructions to file the proceeding as quickly as possible. He understood that works under the development approval had commenced on or about 15 October 2025. It is against this background, and having received the statement of reasons on 21 October 2025, his focus when drawing the proceeding was on four things. They are identified at paragraph 3 of Mr Connor's affidavit as follows: (1) the potential impacts of the development approval on the land owned by BGM; (2) the adequacy and relevancy of the reporting provided by the second respondent lodged in support of the development application; (3) whether the supporting material was adequate to demonstrate compliance with the applicable assessment benchmarks in the planning scheme; and (4) whether the development application should have included BGM's land.

[25] Mr Connor goes on to say that he did not turn his mind to whether the decision maker had failed to consider particular assessment benchmarks. He gave reasons for this. They can be summarised as follows: (1) he wrongly assumed Council had identified the correct version and provisions of the planning scheme required for assessment; (2) time pressure meant he overlooked the accuracy of Council's identification of the relevant planning scheme version and assessment benchmarks; and (3) at the time the Originating application was drafted, only limited advice was sought from the applicant's stormwater engineer, which was directed to a review of the reporting included with the development application, and referred to in the statement of reasons. It was pointed out that the reporting provided with the development application, and reviewed by the stormwater engineer, does not refer to the assessment benchmarks pleaded in paragraph 19(c) of Annexure A.

[26] Council did not file and serve the material it contends was before the decision maker until 23 January 2026. Mr Connor said it was upon closer review of this material that it became apparent an assessment against the Flood overlay code and Waterway corridors overlay code might have been required.

[27] The review of Council's material caused Mr Connor's team to contact BGM's stormwater engineer to confirm a preliminary view, namely that the development application should have been assessed against the two codes I have referred to in [26]. Advice was received from the engineer on the 13 February 2026. The advice confirmed the correctness of the preliminary view, namely, the development application triggered assessment against two particular overlay codes in version 30 of Council's planning scheme.

[28] Unsurprisingly at this point, Mr Connor undertook a further review of the material. He said this led him to conclude that: (1) Council had relied on an incorrect version of the planning scheme in its assessment; and (2) Council had not assessed the development application against the purpose and overall outcomes of relevant assessment benchmarks.

[29] On 19 February 2026, BGM's stormwater expert provided Connor O'Meara Solicitors with more substantial advice about the triggers for assessment against the overlay codes. This advice forms part of the evidence at paragraphs 46 and 47 of Mr Giles' affidavit, which is Court document No. 18.

[30] On 19 February 2026, when the stormwater engineer's advice was received, BGM's affidavit material and written submissions were well advanced. The substance of the material, in total, led Mr Connor to conclude that the matters not identified in the Originating application were of consequence to the decision maker's assessment and were material to the exercise of the power under the Planning Act 2016. Instructions were then sought to amend the Originating application to include the amendments set out in Annexure A. The application in pending proceeding and the amendments in Annexure A were served on the respondents on 20 February 2026.

[31] I accept Mr Connor's explanation for the amendments. It is frank, accepting that assumptions were made as to the correctness, or otherwise, of Council's assessment and decision that, with the benefit of hindsight, should not have been made. The assumptions were made given time pressure. They were not unreasonable assumptions given: (1) Council is a very experienced assessment manager for applications of the kind that were approved and can be assumed to correctly identify, inter alia, the version of the planning scheme against which the assessment must proceed; and (2) the development application material appears, on BGM's case, to make the same alleged errors as Council, providing a false sense of security that the decision maker's assessment was carried out against the correct assessment benchmarks. The assumptions made by Mr Connor about the correctness, or otherwise, of the assessment and decision making process here were not, in my view, unreasonable in the circumstances.

[32] The explanation given by Mr Connor also demonstrates that the amendments to the Originating application evolved, in part, with the provision of new material and further advice. The material provided by Council on 23 January 2026, and the advice received from BGM's stormwater engineer, fall into this category. It is "new information" received after the commencement of the proceeding. This information informed the decision to amend the Originating application.

[33] The explanation given by Mr Connor is an adequate one for leave to amend the Originating application. Taken in combination with the following matters, it is my view, a strong case for leave has been demonstrated. The matters are: (1) the amendments to paragraph 19(a) of the Originating application are de minimis; (2) the amendments to paragraph 20(a) of the Originating application involve deleting particulars, and do not add issues, nor change BGM's case in a fundamental way; (3) the amendment proposed to 19(c) of the Originating application is, in substance, a new particular of an existing allegation in paragraph 19(a), namely the decision maker failed to have regard to a relevant consideration - any doubt or concern about this can be resolved in the way identified at [21]; (4) the amendments have, contrary to the second and third respondents' submission, been advanced in a timely way; and (5) it has not been contended the amendments have no prospects of success or lack utility.

[34] I would add a further matter to the above, which is particularly directed at paragraph 19(c)(i) of Annexure A. The allegation contained therein is a simple one. It is alleged the development application was assessed against a version of the planning scheme, which was not in effect at the time the development application was properly made. The allegation, in my view, makes express what is otherwise implied in the assertion that Council failed to take into account a relevant consideration.

[35] There appears to be little room for argument that the development application, which was approved and now challenged, was subject to code assessment and treated as properly made on 2 December 2024. The statutory assessment rules prescribed by the Planning Act 2016, and applying to code assessment, contain a strict assessment regime. The assessment regime requires the development application to be assessed against only two things, one of which is an assessment benchmark: s 45(3) of the Planning Act 2016. The assessment benchmark/s referred to are those in effect when an application was treated as properly made: s 45(6) of the Planning Act 2016.

[36] With this in mind, and taking paragraph 20(a) of the Originating application in its unamended form, the issues to be determined in the proceeding already include this question for determination: was the decision maker satisfied the development application complied with the relevant assessment benchmarks in effect on 2 December 2024? This question, and the answer to it, will be the same that is prompted by the new particular sought to be added to the Originating application in paragraph 19(c)(i). The new particular begs this question: was the development application assessed against the relevant assessment benchmarks in effect on 2 December 2024? On BGM's case, the answer will be the same to both questions.

[37] The above demonstrates, in my view, that it is inescapable the particular alleged in paragraph 19(c)(i) will need to be considered in order to resolve issues already pleaded in the Originating application.

[38] The application to amend is unopposed by Council. It accepts the issues as presently cast will require consideration of the matter expressly raised by paragraph 19(c)(i) of Annexure A.

[39] The application to amend was opposed by the second and third respondents. Three reasons were advanced in opposition: (1) there is no adequate explanation for the amendments; (2) the amendments are late; and (3) granting leave would give rise to prejudice that cannot be remedied by a costs order.

[40] The second and third respondents criticise, in the first instance, the explanation for the amendments given by junior counsel at a review on 10 March 2026. The explanation, which was given in response to a question from the Court, was to the effect that the amendments had arisen out of expert input during the preparation of affidavit material. It was submitted this explanation does not accord with the evidence. This is an unfair submission.

[41] In the light of Mr Connor's evidence, the explanation given by junior counsel does accord, in part, but not completely, with the evidence. The explanation given by junior counsel captures those amendments attributable to advice received from BGM's stormwater engineer. I would also add that the criticism is unfair because the explanation provided to the Court by junior counsel was reluctantly provided during a review when this application was listed for hearing. The explanation was not advanced in the hearing of the application proper, nor was it suggested by junior counsel that the explanation given at the review on 10 March 2026 was supported by affidavit material.

[42] The criticisms of greater weight are those directed to Mr Connor's affidavit. The criticisms can be reduced to this proposition: at the time the Originating application was prepared, BGM had sufficient information to raise the matters it now seeks to plead in Annexure A. This is said to be made good having regard to: (1) the statement of reasons received on 21 October 2025; (2) correspondence from BGM to Council before, and during, the development application assessment process; and (3) BGM's own development application, which makes reference to the very codes that are now sought to be raised in Annexure A. All of these matters, taken in combination, are said to demonstrate that BGM had, or should be imputed with, knowledge of the relevance of Flooding, Waterway and Stormwater codes, which are the subject of the amendments proposed in paragraphs 19(c)(ii) and (iii) of Annexure A. This can be accepted in so far as it relates to BGM, but only to a point. I will return to this at [44].

[43] It does not follow, in my view, that the above criticisms, even if accepted, render Mr Connor's explanation inadequate. The evidence does not establish that Mr Connor was armed with all of the knowledge referred to above and failed to take it into account. Rather, in drawing the originating document, Mr Connor said he made assumptions about the material, which have proven to be wrong. The assumptions made, and the reliance placed upon them, as I have said, are fairly explained by time pressure. The assumptions were also based on a misapprehension that Council had correctly identified the relevant assessment benchmarks for assessment. Mr Connor was not required for cross-examination to suggest otherwise.

[44] Further, the adequacy of Mr Connor's explanation is not diminished because there is an absence of evidence from a BGM representative who can explain why the topics underlying the amendments were not drawn to Mr Connor's attention prior to filing the proceeding. To expect BGM to have drawn what are legal errors or matters of planning scheme construction to Mr Connor's attention is a step too far, even assuming the history set out above. This area of the law can be complex, requiring specialist knowledge to navigate. To suggest BGM had that necessary experience and knowledge to give Mr Connor instructions to plead legal errors, or particulars thereof, based on the history referred to above is unpersuasive. Further, the proposition should not be lightly accepted in any event where, as here: (1) the legal issues raised are not straight forward, requiring a detailed examination of development application material in concert with Council's planning scheme; and (2) BGM was entitled to act on the advice of its lawyers, and experts, as to the appropriate grounds and relief to be sought in the proceeding.

[45] I am satisfied the explanation given by Mr Connor is an adequate one. The first reason advanced by the second and third respondents in opposition to a grant of leave is rejected.

[46] The second reason for opposing a grant of leave is delay. It was submitted that delay in making the amendments should be considered against the background of the relevant history, dating back to February 2025. This is the first time proceedings of the kind commenced were threatened by BGM.

[47] It can be accepted BGM engaged in an exchange of correspondence with Council, and the respondents, from February 2025 about the development application the subject of this proceeding. It does not however follow that delay is to be measured from this point. To do so would be unfair to BGM - the impugned decision was not made until 7 months later.

[48] The evidence reveals the Originating application was filed after a request for a statement of reasons was received on 21 October 2025. From this point, it took BGM four months to finalise all its affidavit material, including submissions. The amendments arise out of the evolution of that material and were communicated in a timely way to the respondents. To suggest delay of this kind is sufficient to deny a grant of leave, in my view, is unpersuasive. Delay is not a reason to refuse a grant of leave to amend in this case.

[49] The third reason for opposing a grant of leave is prejudice. This point arises in the context that the operational works the subject of the Originating application and impugned development approval are well underway. This is known to all parties. It explains the urgency with which the Originating application was filed relative to the receipt of the statement of reasons.

[50] The evidence reveals Mr Pask made the decision to continue with the works the subject of the impugned approval despite the commencement of this proceeding. At paragraph 77 of his affidavit, Mr Pask identified the following impacts that he says would arise if the amendments proposed to the Originating application are permitted:

"77. The proposed new grounds now allege that some key Planning Scheme Codes and other criteria were entirely missed in the First Respondent's original assessment, such that the Applicant proposes to change how it now says the OPW Approval may be invalid. I am concerned that if the grounds are included this:

(a) could affect my ability to lawfully progress the Stormwater Works; and / or

(b) could result in design or condition changes to the Stormwater Works if they have to be re-assessed and approved..."

[51] This evidence is relied upon to establish: (1) a grant of leave will give rise to prejudice; and (2) the prejudice cannot be cured by a costs order.

[52] I do not accept Mr Pask's affidavit establishes the foundation for (1) and, in turn, (2).

[53] Mr Pask's evidence exposes the difficulty with the prejudice point advanced on behalf of the second and third respondents. He has sworn that the amendments to the Originating application will change BGM's case in a way that says the operational works approval is invalid for different reasons. I do not accept this is an accurate characterisation of the proposed amendments. The Originating application has always alleged that the development approval is invalid because of a failure to take into account relevant considerations. The amendments do not alter this position. Further, Mr Pask's evidence ignores, in my view, that the amendments to the Originating application: (1) include deletions and minor changes to editorial form; (2) raise new particulars, rather than new reasons, for alleging the operational works approval is invalid; and (3) do not alter the position that the proceeding challenges the validity of the operational works approval, which could be set aside, requiring further assessment of works already, or partially completed, against Council's planning scheme. Once these matters are appreciated, it is difficult to see how the prejudice referred to arises by reason of the proposed amendments to the Originating application.

[54] The risk to which Mr Pask refers in his affidavit, in my view, has always existed in this proceeding. That a decision was made to proceed with the works despite that risk is a commercial decision. The decision appears to have been made assuming: (1) BGM has poor prospects of success, which was tied to the grounds pleaded in the Originating application; and (2) a particular risk profile informed by (1). The first assumption is problematic.

[55] The assumption made in (1) appears to have been approached as if prospects of success are static. That is, no allowance was made by Mr Pask for a change in circumstance, let alone a change in prospects. As experience shows, this is always a risk in litigation.

[56] More specifically, there is always a risk of amendment to an Originating application, such as here, where there is a time lag between the issues identified in the originating document and provision of the decision maker's material. That the originating process might be the subject of amendment, such as to add new particulars upon the receipt of the decision maker's file, should have been accounted for in Mr Pask's decision to proceed with the works the subject of challenge. That this factor was not apparently accounted for bespeaks an under assessment of risk rather than prejudice arising by reason of an amendment to the Originating application (that is intended to further particularise an existing allegation of legal error).

[57] This is not to say, however, that prejudice to the second and third respondents by reason of the relief sought in this proceeding will not be a valid issue at trial. That works have been undertaken and are well underway, if not substantially completed, will be relevant to the exercise of the discretion to grant the relief sought. Nothing that I have said should be taken as a statement about considerations of this kind for the trial of the proceeding. My remarks are limited to prejudice associated with a grant of leave to amend the Originating application.

[58] The application to amend the Originating application will be allowed, and more specifically: (1) leave is granted to make the editorial changes to the Originating application; and (2) leave is granted to amend the Originating application such that the particulars below paragraph 19(c) are to form part of the particulars for paragraph 19(a) with the remainder of paragraph 19(c) to be deleted. With respect to paragraph 20(a), the amendment proposed is also allowed to the extent it involves striking through the words "including" down to the word "code".

[59] There is one final matter. The second and third respondents have cross-applied for their costs of the application in pending proceeding. I accept the Court's costs power is enlivened here by reason of BGM's decision to introduce new material. A costs order will be made. The costs will be as agreed between the parties. The order will be as follows: the applicant pay the second and third co-respondents' costs of the application in pending proceeding, fixed at $15,000.

[60] The parties are to forward a draft order to my chambers that reflects the above reasons.

[61] I will also hear from the parties as to additional directions that can be made to facilitate the hearing of the Originating application.