Waterman v Logan City Council [2018] QPEC 44

1. For a development application - an eligible submitter for the development application
2. For a change application - an eligible submitter for the change application
3. An eligible advice agency for the development application or change application

1. For a development application - the assessment manager
2. For a change application - the responsible entity

1. The applicant
2. If the appeal is about a concurrence agency's referral response - the concurrence agency

[26] An excluded application is defined in schedule 2 of the Planning Act 2016 as:

(a) a change application, or development application, called in under a call in provision;

(b) a change application, or development application, decided by the P&E Court;

(c) a change application made to the Minister as the responsible entity under section 78(3)(bb)."

[27] An eligible submitter is defined in schedule 2 of the Planning Act 2016 as:

"eligible submitter, for a development application or change application, means a submitter -

(a) whose submission was not withdrawn before the application was decided; and

(b) who has not given the assessment manager a notice stating the submitter will not be appealing before the appeal period ends for the application."

[28] A principal submitter is defined in schedule 2 of the Planning Act 2016 as:

"principal submitter, for a properly made submission, means -

(a) if the submission is by 1 person - the person; or

(i) the submitter that the submission identifies as the principal submitter; or

(ii) if the submission does not identify a submitter as the principal submitter - the submitter whose name first appears in the submission."

[29] Section 230 of the Planning Act 2016 states:

(1) An appellant starts an appeal by lodging, with the registrar of the tribunal or P&E Court, a notice of appeal that -

(b) succinctly states the grounds of the appeal.

(2) The notice of appeal must be accompanied by the required fee.

(3) The appellant or, for an appeal to a tribunal, the registrar, must, within the service period, give a copy of the notice of appeal to -

(c) for an appeal about a development application under schedule 1 , table 1, item 1 - each principal submitter for the development application; and

(d) for an appeal about a change application under schedule 1 , table 1, item 2 - each principal submitter for the change application; and

(e) each person who may elect to become a co-respondent for the appeal, other than an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d); and

(f) for an appeal to the P&E Court - the chief executive; and

(g) for an appeal to a tribunal under another Act - any other person who the registrar considers appropriate.

(a) if a submitter or advice agency started the appeal in the P&E Court - 2 business days after the appeal is started; or

(b) otherwise - 10 business days after the appeal is started.

(5) A notice of appeal given to a person who may elect to be a co-respondent must state the effect of subsection (6).

(6) A person elects to be a co-respondent by filing a notice of election, in the approved form, within 10 business days after the notice of appeal is given to the person.

(7) Despite any other Act or rules of court to the contrary, a copy of a notice of appeal may be given to the chief executive by emailing the copy to the chief executive at the email address stated on the department's website for this purpose."

[30] Pursuant to s 43 of the Planning and Environment Court Act 2016, subject to any relevant enabling Act and s 46(2) to (5), an appeal commenced in this court after 3 July 2017 is by way of hearing anew.

[31] As I observed in Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21 at [54], with respect to decisions on development applications, there is a discernible legislative intent that, subject to s 46(2) to (5) of the Planning and Environment Court Act 2016, the court is to exercise original jurisdiction. It is to determine the matter on fresh evidence and on the law applicable at the date of the proceedings.

[32] The effect of s 46(2) of the Planning and Environment Court Act 2016 and s 45(6) and s 45(7) of the Planning Act 2016 is to require the court to assess the development application against the statutory instruments that applied at the time the development application was properly made.

[33] Section 45 of the Planning Act 2016 is clearly applicable where the court is hearing and determining an appeal against a decision to refuse or approve a development application. Such a decision is required, by s 59(3) of the Planning Act 2016, to be based on the assessment under s 45. However, s 45 of the Planning Act 2016 may have less, or no, relevance where the court is required to determine the lawfulness of conditions. In such an appeal, s 65 and s 66 of the Planning Act 2016 will be relevant to the determination.

[34] Section 47 of the Planning and Environment Court Act 2016 stipulates that in deciding a Planning Act appeal, the court must confirm, change or set aside "the decision being appealed against."

(a) the court has jurisdiction to hear an appeal about a development application to the extent the applicant appeals against:

(i) the refusal of all or part of the development application; or

(ii) the deemed refusal of the development application; or

(iii) a provision of the development approval; or

(iv) if a development permit was applied for - the decision to give a preliminary approval;

(b) the court has jurisdiction to hear an appeal about a development application to the extent an eligible submitter appeals against the decision to approve the application; or a provision of the development approval, or a failure to include a provision in the development approval, to the extent the matter relates to any part of the development application that required impact assessment;

(c) there is no right of appeal conferred on an assessment manager to dispute its decision, but an assessment manager has a right to be heard in the appeal; and

(d) while the nature of the appeal is by way of hearing anew, in a Planning Act appeal, "the decision being appealed against" is the decision that, under s 47 of the Planning and Environment Court Act 2016, the court is to confirm, change or set aside.

[36] The Council submits that the court has jurisdiction to hear and determine its allegations that the development application should be refused. During oral submissions, in response to queries from the court about the basis of the submission, Mr Wylie for the Council submitted that the jurisdiction of the court on an appeal is defined by reference to s 43 and s 46 of the Planning and Environment Court Act 2016.

[37] The provisions referred to by Mr Wylie do not confer jurisdiction. Rather, they inform the nature of the appeal.

[38] In oral submissions, Mr Wylie also referred to the court's power to make directions to identify issues in dispute.

[39] Rule 20(5) of the Planning and Environment Court Rules 2018 permits the court to make an order about the conduct of the proceeding, including an order or direction identifying matters as an issue in dispute in the proceeding.

[40] The Planning and Environment Court Rules 2018 do not require parties to prepare pleadings. In the absence of pleadings, this rule permits those parties who have a right to be heard in the appeal to identify those facts, matters or contentions contained in the notice of appeal that are not disputed, as well as those that are disputed and the basis of the dispute. The rule does not extend the jurisdiction conferred on the court.

[41] Here, the appeal is within the jurisdiction of the court. It is an appeal against the Council's decision to give a preliminary approval when a development permit was applied for, as well as against a provision of the development approval, namely conditions imposed by the Council.

[42] The real question is whether the Council should be permitted, as a matter of discretion, to defend the appeal by contending, as it does in paragraphs 1 to 4 of the document titled "Respondent's Issues in Dispute", that the development application should be refused.

[43] An appellant's notice of appeal is to include grounds of appeal. The appeal, and the grounds of appeal, define those parts of the decision of the assessment manager that are the subject of the dispute.

[44] In an applicant appeal, the assessment manager and submitters have a right to be heard in the appeal. This permits them to join issue with the applicant appellant's grounds of appeal. The legislation does not afford them an opportunity to identify their own grounds of appeal. However, it also does not require them to file a document identifying the bases on which they join issue with the decision the subject of the appeal or the grounds of appeal.

[45] As I have identified above, r 20(5) of the Planning and Environment Court Rules 2018 permits the court to make an order identifying the issues in dispute. This enables the court to make orders, where appropriate, to limit the dispute by reference to documents that identify the bases on which the parties join issue with the decision the subject of the appeal or the grounds of appeal.

[46] In any appeal, whether an issue a party to the appeal seeks to agitate involves that party "being heard in the appeal" is a matter that must be determined by reference to the issue itself.

[47] Here, paragraphs 1 to 4 of the document titled "Respondent's Issues in Dispute" do not purport to join issue with the decision the subject of the Appellants' appeal, namely the Council's decision to give a preliminary approval of the development application subject to conditions. Those paragraphs also do not purport to join issue with the Appellants' grounds of appeal. To the contrary, they involve a collateral attack on the Council's own decision.

[48] By way of contrast, paragraph 5 of the document titled "Respondent's Issues in Dispute" can properly be characterised as joining issue with the Appellants' grounds of appeal.

[49] When considering whether the court should allow an assessment manager to mount a collateral attack on its own decision, it is relevant to have regard to the overall legislative context in which the appeal right is conferred.

[50] Section 3 of the Planning Act 2016 records that the purpose of the Act is to establish an efficient, effective, transparent, integrated, coordinated and accountable system of land use planning and development assessment. Section 3 of the Sustainable Planning Act 2009 provided to similar effect.

[51] Both the Sustainable Planning Act 2009, under which the development application was decided, and the Planning Act 2016, which applies on appeal, provide a comprehensive development assessment process.

[52] Under the Sustainable Planning Act 2009, the Council was afforded the opportunity to ask the Appellants, by written request, to give it the further information it needed to assess the application. It is apparent from the Delegate Assessment Report that the Council took advantage of that opportunity on 15 June 2017 and received a response on 25 October 2017.

[53] The development application was one that required public notification, thereby affording the public the right to make a submission about the proposed development. It is apparent from the decision notice that there was a properly made submission about the development application. It is apparent from the Delegate Assessment Report that the Council, in making its decision, had regard to that submission.

[54] It is also apparent from the Delegate Assessment Report that Council had longer than the statutorily prescribed timeframe within which to make its decision. The report records that on 14 February 2018, the Appellants agreed to extend the decision making period. (It can be inferred that Council had from 21 November 2017 to 4 June 2018 to assess and decide the development application, that being the day after all of the other stages applying to the application ended.[1])

[55] Another relevant aspect of the legislative regime is that the appeal right is conferred in circumstances where separate provision is made, in the Planning and Environment Court Act 2016, for any person to seek a declaration about a matter done, to be done or that should have been done under the planning legislation. The Council has not sought to challenge the decision by way of such declaratory proceedings.

[56] In those circumstances, and having regard to the purpose of the Planning Act 2016, this court should be slow to give its imprimatur to a local authority expanding the issues to be determined in an appeal in the absence of an adequate explanation for the change in its position as notified in the decision notice. The degree of caution is heightened where a local authority seeks to convert an approval into a refusal in a conditions appeal. To do so could undermine public confidence in the development assessment process.

[57] Other factors that are relevant to whether a party should be permitted to rely on a document to change the issues in dispute in an appeal include, but are not limited to:

(a) s 10 of the Planning and Environment Court Act 2016, which states:

(1) In conducting P&E Court proceedings and applying the rules, the P&E Court must -

(a) facilitate the just and expeditious resolution of the issues; and

(2) The parties to a P&E Court proceeding impliedly undertake to the court and each other to proceed in an expeditious way."

(b) whether the document is limited to an identification of the bases on which the party joins issue with the decision the subject of the appeal and the grounds of appeal, or seeks to mount a collateral attack about matters for which the court has a separate declaratory jurisdiction;

(c) whether the proposed issue is an entirely new issue and its importance;

(d) if the issue involves a change to the position a party adopted during the development assessment process or earlier in the appeal, the adequacy of the explanation for the change in attitude. Whether an explanation is adequate may depend on matters such as:

(ii) how and when the matters that informed the change came to the attention of the party seeking to change their position;

(e) the extent of any delay in notifying an intention to change the issues in dispute and the explanation for it;

(f) the stage that the litigation has reached; and

(g) the potential prejudice to the other parties and the extent to which the prejudice can be addressed by, amongst other things, an order of costs.

[58] The Council relies on six reasons it says justify the court exercising the discretion in its favour. They are:

(a) the issues in dispute are important and, absent the inclusion of additional grounds, the court would be in the unenviable position of retaining issues in dispute that did not refer to any parts of the relevant planning scheme;

(b) the Council's experts would be precluded from complying with their duty to the court under r 428(3)(b) and (d) of the Uniform Civil Procedure Rules 1999 (Qld). The Council submits the experts could not confirm they have made all enquiries they consider appropriate and referred to all matters they consider significant;

(c) whilst the proposed the Council issues identify, for the first time, grounds for refusal, the bases for most of those grounds are not new, and their basis can be seen in the preliminary approval conditions which were imposed by the Council, and which are challenged by the Appellants in this proceeding;

(d) there has been no meaningful delay in raising these issues, in that they were raised as early as was practicable. The requirement for their inclusion was canvassed at the first return of this proceeding;

(e) the Appellants can point to no prejudice in this litigation that would arise as a consequence of these issues being added as issues in dispute. The parties are yet to have their first without prejudice conference, and experts are yet to be nominated. The trial directions order made on 24 August 2018 will not be imperilled by this order; and

(f) it is not only in the interest of the parties that the Council's issues be litigated, but in the public interest that this occur.

[59] Before considering each of these submissions, it is helpful to set out the explanation for the change provided by the Council.

[60] The only explanation provided is by way of an affidavit on "information and belief" by the solicitor for the Council, Mr Day. Mr Day says:

"I am informed and verily believe that since the Respondent was served with the appeal, Mr Nick Ferero, the coordinator of the Respondent's Town Planning Appeals and Plan Sealing Team, has:

(a) taken over carriage of the matter from the town planners in the Respondent's Development Assessment Branch; and

(b) engaged and sought the advice of external experts Shane Adamson (Town Planning) and Bryce Trevilyan (Traffic) regarding the proposed development the subject of the appeal.

I am informed by Mr Ferero, and verily believe, that as a consequence of his review of the proposed development the subject of the appeal, and advices received from the Respondent's external experts, it is Council's position that:

(c) The proposed development, if allowed even in the form of a preliminary approval, would result in conflict with the Respondent's planning scheme;

(d) The development application ought accordingly be refused;

(e) The issues in dispute that should be considered by this Honourable Court in this appeal are those identified in the document titled Respondent's Issues in Dispute dated 3 September 2018 in the appeal."

[61] The affidavit did not attach the advice of the external experts, nor identify the instructions they were given. It is not clear whether the experts were asked to advise about the issues the subject of the appeal or, for example, to otherwise advise about any issue they suggest the Council identify to bolster its prospects of success in the appeal. By providing an affidavit on information and belief only, and by failing to attach the advice, the Council denied the Appellants the opportunity to challenge the advice.

[62] Further, unlike the delegated decision, the affidavit did not disclose whether the view of Mr Ferero was supported by Councillors, or by a resolution of the Council. There is no evidence that Mr Ferero has any delegated authority.

[63] Here, the Council has not provided an adequate explanation for its change in approach. It had over 12 months to assess and decide the development application. It is apparent from the Delegate Assessment Report that there was a detailed and careful assessment of the development application by the Council. The Council does not contend that its decision to approve the development application was not open or otherwise infected by some error, lack of jurisdiction or otherwise. Rather, its change of position is because a different Council employee has apparently formed a different view to that formed by the delegated officer. There is no evidence that this different view has been put to the Council or Councillors for its consideration.

[64] In those circumstances, I am not persuaded, as submitted by the Council that the issues sought to be agitated are important, or that they reflect the issues of real concern to the Council. Paragraphs 1 to 4 of the document titled "Respondent's Issues in Dispute" allege conflict, but do not allege that the conflict is material or unacceptable, or that the conflicts could not be adequately addressed by the imposition of further conditions. There is no evidence that the matters raised in this new document are of strategic importance to the Council as planning authority, nor manifests in any material impact.

[65] As for the submission that the court would be ignorant of the relevant planning scheme provisions, although it is beneficial to identify those planning scheme provisions relied on by a party in the documents identifying the basis for its position in the appeal, it is not necessary. A party can tender relevant planning scheme provisions as part of the evidence.

[66] As for the Council's second reason, I am not satisfied that the Council's experts would be precluded from complying with their duty to the court under r 428(3)(b) and (d) of the Uniform Civil Procedure Rules 1999. The Council has not put the relevant opinions of the experts before the court. There is no evidence that, in discharge of their duty, they seek to refer to matters that are inadmissible having regard to the issues currently in dispute. In any event, the Appellants are not seeking an order restraining an expert retained by the Council from complying with their duty. To the extent a report refers to enquiries the expert considers appropriate or refer to matters the expert considers significant with respect to the opinions they express, an issue may arise during the hearing about the admissibility of those parts of the report or the weight to be afforded to the opinions expressed. However, those are matters that can only be determined at that stage, should they arise.

[67] As for the third reason, the Appellants accept that whilst the Council issues identify, for the first time, grounds for refusal, the bases for most of those grounds are not new. It was submitted by Mr Connor during oral submissions that there is general coincidence between the subject matter of the issues the Council seeks to rely on as grounds of refusal and the conditions that are already in dispute. On the Appellants' reconciliation, the Council identifies only three issues that are not otherwise the subject of conditions. With respect to those issues, the Appellants note that there is no suggestion by the Council that they could not adequately be dealt with by way of conditions imposed on a preliminary approval. As such, this reason is of little weight in my determination.

[68] In terms of the Council's fourth reason, I accept that the Council sought to raise them at an early stage in the proceeding. However, there has been no explanation as to why the issues were not identified prior to the Council's decision.

[69] With respect to the Council's fifth reason, I am not satisfied that the identification of the new issues would not cause prejudice to the Appellants nor otherwise cause delay to the existing trial directions. It seems inevitable that there will be an increase in the costs and length of the proceedings. There is also a real prospect that the parties may contend that it is appropriate to hear and determine the approval or refusal issue first and have a subsequent hearing about the conditions.

[70] Finally, I do not accept that, in the absence of an adequate explanation, it is in the public interest that the Council be permitted to mount a collateral attack on its own decision. As I have already noted above, the purpose of the Planning Act 2016 includes establishing an efficient, transparent, and accountable system of development assessment. To permit local authorities to mount a collateral attack on their own decision without explanation has the potential to undermine public confidence in the development assessment process.

[71] Further, as is submitted by Mr Connor, there is no evidence that the public interest could not be addressed by the Council's issues, to the extent they reflect real concerns held by the Council, being addressed by additional conditions.

[72] While it is appropriate for the Council to identify the bases on which it joins issue with the Appellants grounds of appeal, I am not persuaded that it should be permitted to expand the dispute in the manner sought by paragraphs 1 to 4 of its document titled "Respondent's Issues in Dispute". I do not hold similar reservations about paragraph 5 of the document should the Council wish to identify the matters identified therein as issues in dispute. If Council wishes to rely on paragraph 5 alone, it would be helpful if it was re-drafted to be self-contained, rather than cross-referencing matters in paragraphs 1 to 4.

[73] For the reasons provided above, the Council's application in pending proceeding is dismissed.

[1] See s 309 of the Sustainable Planning Act 2009. The Delegate Assessment Report records there were no referral agencies and the notice of compliance with public notification was submitted on 20 November 2017.