Elks v Brisbane City Council [2023] QPEC 33 (2025) QPELR 349

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Alexander Jason Elks v Brisbane City Council [2023] QPEC 33 PARTIES: ALEXANDER JASON ELKS (Applicant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 126 of 2022 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 30 August 2023 DELIVERED AT: Brisbane HEARING DATE: 15 July 2022 JUDGE: Kefford DCJ ORDER: The application is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING - where the applicant seeks declaratory relief that the decision made by the assessment manager is invalid and of no effect – where the applicant alleges defects in the development assessment process – whether the confirmation notice is invalid – whether the information request is defective – whether document given out of time, in breach of the Development assessment rules, are invalid – whether subsequent stages of the development assessment process are invalidated by earlier non-compliance PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING - where the applicant seeks declaratory relief that the conditions imposed by the assessment manager are invalid and of no effect – where the decision was informed by weight given to an amendment to the planning scheme – whether the amendment to the planning scheme was an irrelevant consideration -- 1 of 64 -- 2 PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING - where the applicant seeks a declaration that an amendment to a planning scheme is an adverse planning change – where the applicant seeks a compensation order – whether the relief sought is in the Court’s jurisdiction LEGISLATION: City of Brisbane Act (Qld) s 232 Planning Act 2016 (Qld) ss 43, 44, 45, 49, 50, 51, 53, 59, 60, 63, 68, 163, 229, sch 1, sch 2 Planning and Environment Court Act 2016 (Qld) ss 7, 11 Planning Regulation 2017 (Qld) s 31, sch 24 Statutory Instruments Act 1992 (Qld) ss 6 and 7 CASES: Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124, applied Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, applied BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34; (2019) 268 CLR 29, applied Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, applied Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, approved Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, cited Francis v Crime and Corruption Commission & Anor [2015] QCA 218, applied Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, applied Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118; [2020] QPELR 286, applied Massie & Ors v Brisbane City Council [2007] QCA 159, applied Minister for Immigration and Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1, cited Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, applied MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17; (2021) 273 CLR 506, applied -- 2 of 64 -- 3 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, applied Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied Trask & Anor v Moreton Bay Regional Council (No. 2) [2021] QPEC 7; [2022] QPELR 52, approved COUNSEL: B Job KC and N Loos for the Respondent SOLICITORS: The Applicant was self-represented Brisbane City Legal for the Respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 4 What is the Court’s jurisdiction? .......................................................................................... 5 What are the issues to be determined? ................................................................................. 6 Was the Council’s decision invalid because of defects in the development assessment process? ................................................................................................................................ 6 Was the Council obliged to follow the development assessment process? ...................... 9 Has Mr Elks demonstrated there are defects in the development assessment process? ... 9 What does the development assessment process involve? ........................................... 9 What process was followed for Mr Elks’ development application? ......................... 13 Part 1: Application...................................................................................................... 13 Part 2: Referral ........................................................................................................... 25 The amendment to City Plan ...................................................................................... 25 Part 3: Information request ......................................................................................... 28 Part 4: Public notification ........................................................................................... 37 Part 7: Further advice ................................................................................................. 41 Part 5: Decision .......................................................................................................... 44 Do the established non-compliances render the relevant acts invalid? .......................... 53 Should the Court make the declarations sought in the exercise of its discretion? ......... 54 Is the Council’s decision to impose conditions 7 and 8 invalid by reason of s 65 of the Planning Act 2016? ............................................................................................................ 55 Should the Court grant the relief sought by Mr Elks’ with respect to an adverse planning change and compensation? ................................................................................................. 63 Conclusion .......................................................................................................................... 64 -- 3 of 64 -- 4 Introduction [1] Mr Alexander Jason Elks owns land at 50 Rogers Parade West, Everton Park (“the land”) that is approximately 4,047 square metres in area and is improved by a house. On 1 November 2019, he applied to Brisbane City Council (“the Council”) to develop the land by reconfiguring it into five lots (“the development application”). [2] At the time that Mr Elks lodged the development application, version 16 of Brisbane City Plan 2014 (“City Plan”) was in effect. On 29 November 2019, version 17 of City Plan took effect. The amendments to City Plan included the land in the High ecological significance strategic sub-category of the Biodiversity areas overlay. [3] On 22 January 2021, Brisbane City Council (“the Council”) gave Mr Elks notice of its decision to give a development permit (“the development permit”). The development permit authorises the reconfiguration of the land into five lots, subject to conditions. Conditions 7 and 8 require the establishment of an environmental protection zone in which no development may occur and an environmental covenant to ensure the management and protection of the environmental protection zone. One of the approved plans attached to the development permit contains notations in red that indicate that the environmental protection zone is coincident with an area described as “ecological significance overlay area” on proposed lots 4 and 5. [4] Mr Elks is dissatisfied with the Council’s decision to impose conditions 7 and 8. [5] Under the Planning Act 2016 (Qld), Mr Elks had a right to commence an appeal against the Council’s decision within 20 business days of the Council giving him notice of its decision.1 He did not do so.2 Instead, almost a year later, Mr Elks: (a) filed an appeal on 10 January 2022; (b) discontinued the appeal on 19 January 2022, and (c) commenced this proceeding on 18 January 2022.3 [6] By this proceeding,4 Mr Elks challenges the validity of the Council’s decision to give the development approval subject to conditions 7 and 8. He raises multiple grounds of challenge. They are founded on a complaint that the Council breached its statutory obligation to follow the development assessment process and assess his development application against the assessment benchmarks in version 16 of City Plan. He alleges that the imposition of conditions 7 and 8 are the result of the Council’s unauthorised attempt to manipulate timelines in the development assessment process to justify the imposition of conditions 7 and 8 by reference to version 17 of City Plan. [7] Mr Elks also seeks relief that is directed at obtaining compensation for a loss that he says he has suffered because of the inclusion of the land in the High ecological 1 Planning Act 2016 (Qld) ss 229, sch 1, s 1(1) and table 1, item 1, and sch 2 definition of “provision”. 2 Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 47-8. 3 Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 81-2. 4 Mr Elks was given leave to amend his Originating Application by order of the Court made 20 April 2022: Court Doc. No. 10. -- 4 of 64 -- 5 significance strategic sub-category of the Biodiversity areas overlay in version 17 of City Plan. [8] The Council opposes all the relief sought by Mr Elks. [9] Mr Elks bears the onus. What is the Court’s jurisdiction? [10] The Planning and Environment Court is a court of statutory jurisdiction. It has the jurisdiction given to it under any Act.5 [11] Relevantly, Mr Elks seeks declarations under ss 11(1)(a) and (b) of the Planning and Environment Court Act 2016 (Qld), which relevantly provide: “11 General declaratory jurisdiction (1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about— (a) a matter done, to be done or that should have been done for the Planning Act; or (b) the interpretation of this Act or the Planning Act; or … Note— Under the Acts Interpretation Act 1954, section 7, a reference to an Act in this list of subject matter about which a declaration may be sought includes a reference to the statutory instruments made under the Act. … (4) The P&E Court may also make an order about any declaration it makes.” [12] In sch 1 of the Planning and Environment Court Act 2016: (a) “P&E Court proceeding” is defined, generally, to mean a proceeding before the P&E Court; and (b) “Planning Act” is defined to mean the Planning Act 2016. [13] It is well-established that the function of the Court in a proceeding that seek declaratory relief is analogous to a judicial review proceeding.6 Consequently, the same constraints apply. The focus must be on the legality of the decision rather than its merits. The proceeding affords a means of reviewing the lawfulness of local 5 Planning and Environment Court Act 2016 (Qld) s 7. 6 See Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10; [2016] QPELR 334, 336 [5] citing Eschenko v Cummins & Ors [2000] QPELR 386 at 389 [20], Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 at 531 [55]-[57]; Di Marco v Brisbane City Council & Ors [2006] QPEC 35; [2006] QPELR 731 at 733 [14]; Wheldon & Anor v Logan City Council & Anor [2015] QPEC 22; [2015] QPELR 640 at 643 [18]; Birkdale Flowers Pty Ltd v Wilson Four Pty Ltd & Anor [2016] QPEC 4; [2016] QPELR 231 at 243-4 [47]. -- 5 of 64 -- 6 government decision-making. The focus is whether the impugned decision was validly made. This is not a merits appeal from fact finding.7 [14] With those matters in mind, I now turn to consider the issues raised by the relief sought by Mr Elks. What are the issues to be determined? [15] The allegations on which Mr Elks grounds his case for relief raise the following questions for consideration: 1. Was the Council’s decision invalid because of defects in the development assessment process? 2. Is the Council’s decision to impose conditions 7 and 8 invalid by reason of s 65 of the Planning Act 2016? 3. Should the Court grant the relief sought by Mr Elks with respect to an adverse planning change and compensation? Was the Council’s decision invalid because of defects in the development assessment process? [16] In paragraphs i) a., b. and c. of the prayer for relief in the Amended Originating Application,8 Mr Elks seeks the following relief: “i) A declaration pursuant to Division 3, Section 11 of the Planning and Environment Court Act 2016, that the decision notice dated 22 January 2021, with reliance upon s 65 of the Planning Act 2016, make conditions 7 and 8 a nullity; for any, or all of the following reasons: a. That conditions 7 and 8 listed in the Notice, pertaining to application No A005322159, are an error at law, as they are outside the legislative authority given to the assessment manager under s 59(2), and the Development Assessment Rules Ver 1.1; and/or b. That conditions 7 and 8 listed in the Notice, pertaining to application No. A005322159 are an error at law, as they are outside of the legislative authority given to the assessment manager under s 45(7) and 59(2) of the Planning Act 2016; And/or c. That the alterations and changes made by the assessment manager upon the plans and submissions when endorsed, pertaining to environmental protection zones, tree protection fencing areas and other notations, were done so outside of any legislative basis or power, to change or alter the applicant’s submissions; and/or 7 Massie & Ors v Brisbane City Council [2007] QCA 159, [40]; Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, 32 [40]. See also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, 184-5. 8 Attachment A to Court Doc. No. 10. -- 6 of 64 -- 7 [17] Other than the assertions contained in the prayer for relief, the Amended Originating Application does not identify the grounds on which Mr Elks challenges the validity of the Council’s decision. As such, it is necessary to consider Mr Elks’ written and oral submissions to obtain further detail about the grounds of challenge.9 [18] Recourse to the submissions reveals that the relief sought in paragraphs i) a., b. and c. and ii) of the prayer for relief in the Amended Originating Application is founded on allegations that: (a) the Council must follow the development assessment process; and (b) there are irregularities in the development assessment process that result in invalidity of decisions made by the Council during the process and its ultimate decision to impose conditions 7 and 8. [19] There are four issues that inform whether I should grant the declaratory relief. [20] The first is whether the Council was obliged to follow the development assessment process. [21] The second is whether the alleged non-compliances or failures in the development assessment process are established. [22] In BVD17 v Minister for Immigration and Border Protection & Anor,10 Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ observed:11 “As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs12 well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision- maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner.13 The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.14” 9 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument; Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022) 2-65. 10 [2019] HCA 34; (2019) 268 CLR 29. 11 BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34; (2019) 268 CLR 29, 45 [38] (original citations, emphasis added). See also MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17; (2021) 273 CLR 506 about what is a jurisdictional error, materiality, and its proof. 12 (2019) 265 CLR 285. See also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616 [67], 623 [91]–[92]. 13 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. 14 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 606 [32], 617 [70], 623 [91]–[92]. -- 7 of 64 -- 8 [23] As I have already mentioned in paragraph [13] above, the focus is on issues that relate to the legality of act, rather than its merits. [24] The third issue is whether the alleged non-compliance or failure renders the act invalid. [25] In Project Blue Sky Inc v Australian Broadcasting Authority,15 McHugh, Gummow, Kirby and Hayne JJ observed:16 “[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. … [93] ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” (emphasis added) [26] One must examine the provisions of the legislation to discern whether there is an evident legislative purpose to invalidate an act because of a non-compliance with a provision.17 [27] The fourth issue is whether the Court should, in exercise of its discretion, make the declarations sought. 15 [1998] HCA 28; (1998) 194 CLR 355. 16 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388- 9 [91] and 390 [93] (citations omitted). 17 Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118; [2020] QPELR 286, 317- 8 [137]-[138]. -- 8 of 64 -- 9 Was the Council obliged to follow the development assessment process? [28] Mr Elks contends that, under s 59(2) of the Planning Act 2016, the Council was required to follow the development assessment process for the application. [29] Chapter 3, pt 3, div 2 of the Planning Act 2016 relates to assessing and deciding development applications. It, relevantly, provides: “59 What this division is about (1) This division is about deciding properly made applications, including variation requests. (2) An assessment manager must follow the development assessment process for the application even if a referral agency’s response directs the assessment manager to refuse the application.” (emphasis added) [30] The Council accepts that Mr Elks’ development application was a properly made application. The Council was required to follow the development assessment process for the application. Has Mr Elks demonstrated there are defects in the development assessment process? [31] Before turning to consider the development assessment process that was followed for Mr Elks’ development application, it is helpful to outline, in broad terms, the development assessment process provided for in the legislation. What does the development assessment process involve? [32] The “development assessment process” is defined in sch 2 of the Planning Act 2016 to mean “the process for administering applications under chapter 3”. [33] At the outset, chp 3, pt 1 of the Planning Act 2016, explains the types of development and assessment. A development permit is required to authorise assessable development to proceed.18 There are two categories of assessment for assessable development: code assessment and impact assessment.19 The requirements for assessment differ depending on the category of assessment.20 A categorising instrument categorises development as assessable development and states the category of assessment that must be carried out for different types of assessable development.21 [34] Relevantly for this proceeding, City Plan is a categorising instrument for the Brisbane City local government area. On 1 November 2016, when Mr Elks lodged his development application, version 16 of City Plan was in effect. 18 Planning Act 2016 ss 49 and 163. 19 Planning Act 2016 s 45(1). 20 Planning Act 2016 s 45(3) and (5). 21 Planning Act 2016 s 45(2). -- 9 of 64 -- 10 [35] Under version 16 of City Plan, the land was in the Emerging community zone and the McDowall-Bridgeman Downs neighbourhood plan area and was subject to several overlays, but not the Biodiversity areas overlay.22 Reconfiguration of the land was categorised as assessable development.23 Although Mr Elks’ development application asserts that the reconfiguration of the land into five lots was subject to code assessment,24 Mr Elks admits that the development application required impact assessment.25 Consideration of the applicable categorising instrument,26 version 16 of City Plan, demonstrates that the admission is appropriate.27 [36] The steps in the development assessment process are addressed in chp 3, pt 2 and pt 3 of the Planning Act 2016. In broad terms: (a) the applicant for a development permit makes a development application to the assessment manager;28 (b) the assessment manager determines whether it is satisfied that the development application complies with ss 51(1) to (3) of the Planning Act 2016 and: (i) accepts the development application as a properly made application because there is compliance; or (ii) does not accept the application as a properly made application because there is not compliance with ss 51(2) and (3); or (iii) elects to accept the application despite non-compliance with ss 51(1);29 (c) the applicant gives a copy of the development application to any referral agency who is prescribed by regulation to undertake a referral agency assessment and provide a response to the assessment manager about its decision with respect to the development application;30 (d) if the development application requires impact assessment, the applicant publicly notifies the development application;31 (e) the assessment manager carries out an assessment of the development application;32 (f) the assessment manager decides the development application;33 and 22 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, [7] and [8] and pp 1-6. 23 Court Doc. No. 19, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 34-5, 51, 54, 57 and 59, particularly at City Plan s 5.3.2(2) and Table 5.6.1. 24 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 15. 25 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [8(b)]. 26 Planning Act 2016 ss 43(1) and (3)(a), 44(1), (3) and (5), and 45(1), (2). 27 Court Doc. No. 19, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 34-5, 51, 54, 57 and 59, particularly at City Plan s 5.3.2(2) and Table 5.6.1. 28 Planning Act 2016 ss 50 and 51. 29 Planning Act 2016 s 51(4) and (5). 30 Planning Act 2016 ss 54 and 55. 31 Planning Act 2016 s 53. 32 Planning Act 2016 s 45. 33 Planning Act 2016 s 60. -- 10 of 64 -- 11 (g) the assessment manager gives a decision notice about its decision to the applicant.34 [37] In addition to those aspects of the development assessment process expressly provided for in chp 3, pt 2 and pt 3 of the Planning Act 2016, chp 3, pt 4 makes provision for development assessment rules. Relevantly, ss 68 and 69 of the Planning Act 2016 provide: “68 Development assessment rules (1) The Minister must make rules (the development assessment rules) for the development assessment process, including rules about— (a) how and when notification is to be carried out under section 53, including re-notifying the application if— (i) the applicant changes the application under section 52; and (ii) the notice under section 53(1) has been given; and (iii) the change is not a minor change; and (iv) the assessment manager is not satisfied that the change would be unlikely to attract a submission about the matter that is the subject of the change; and (v) the assessment manager is not satisfied the change only addresses a matter raised in a properly made submission; and (b) the consideration of properly made submissions. (2) Also, the development assessment rules may provide for— (a) when a development application may be taken to be properly made for section 51(5); or (b) the effect on a development application of the expiry of a time limit under, or of a contravention of, the rules (the lapsing of the application, for example); or (c) the revival of lapsed applications; or (d) how and when a referral agency may change its response before a development application or change application is decided; or (e) any matter in relation to part 5, divisions 2 to 4; or 34 Planning Act 2016 s 63. -- 11 of 64 -- 12 (f) the effect on a process under this chapter of taking action under the Native Title Act 1993 (Cwlth), part 2, division 3. Examples— • the effect, for section 52, of different types of change on a development application • the period for making referral agency’s responses, including when the responses may be made late • matters to be considered when deciding whether a change to a development application or development approval would result in substantially different development • matters to be considered when deciding if an action is a material change of use • the periods for taking actions under the process • the effect of not taking the actions within the periods • provisions for information requests, and when and how the information can be sought (3) Section 10 applies to making the development assessment rules as if the rules were a State planning policy. (4) The development assessment rules do not have effect unless prescribed by regulation. (5) However, the development assessment rules are not subordinate legislation. 69 Amending the development assessment rules (1) The Minister may amend the development assessment rules. (2) However, the amendment does not have effect until— (a) the chief executive publishes both the amendment, and the rules as amended, on the department’s website; and (b) the rules as amended are prescribed by regulation. (3) Sections 10 and 11 apply to amending the development assessment rules as if the rules were a State planning policy. (4) The regulation must state the day the amendment was published.” (emphasis added) -- 12 of 64 -- 13 [38] The Development assessment rules is divided into seven parts, namely: (a) Part 1: Application; (b) Part 2: Referral; (c) Part 3: Information request; (d) Part 4: Public notification; (e) Part 5: Decision; (f) Part 6: Changes to the application and referral agency responses; and (g) Part 7: Miscellaneous. [39] Each part of the Development assessment rules addresses a distinct component of the development assessment process.35 [40] It is convenient to address the relevant aspects of the Development Assessment Rules in more detail when addressing Mr Elks’ allegations of non-compliance with them. What process was followed for Mr Elks’ development application? [41] Mr Elks alleges numerous defects with the development assessment process followed for his development application. The defects are said to have occurred in several stages of the process. Part 1: Application [42] Chapter 3, pt 2 of the Planning Act 2016 explains how a person makes a development application to an assessment manager for a development approval to carry out assessable development. [43] The right to make a development application for a development approval is conferred by s 50 of the Planning Act 2016.36 The requirements for making a development application are set out in s 51 of the Planning Act 2016, which relevantly states: “51 Making development applications (1) A development application must be— (a) made in the approved form to the assessment manager; and (b) accompanied by— (i) the documents required under the form to be attached to, or given with, the application; and (ii) the required fee. 35 Version 1.1 of Development Assessment Rules was effective from 11 August 2017 to 5 December 2019. Version 1.2 of the Development Assessment Rules was effective from 6 December 2019 to 10 September 2020. There are no differences between versions 1.1 and 1.2 that are material to this proceeding. 36 See the definition of development application in sch 2 of the Planning Act 2016. -- 13 of 64 -- 14 (2) The application must be accompanied by the written consent of the owner of the premises to the application, to the extent— (a) the applicant is not the owner; and (b) the application is for— (i) a material change of use of premises or reconfiguring a lot; or (ii) works on premises that are below high- water mark and are outside a canal; and (c) the premises are not excluded premises. … (4) An assessment manager— (a) must accept an application that the assessment manager is satisfied complies with subsections (1) to (3); and (b) must not accept an application unless the assessment manager is satisfied the application complies with subsections (2) and (3); and (c) may accept an application that does not comply with subsection (1)(a) or (b)(i); and (d) may accept an application that does not comply with subsection (1)(b)(ii) to the extent the required fee has been waived under section 109(b). (5) An application that complies with subsections (1) to (3), or that the assessment manager accepts under subsection (4)(c) or (d), is a properly made application.” (emphasis added) [44] The Council was the relevant assessment manager for the development application made by Mr Elks. [45] In the development application lodged with the Council, Mr Elks sought a development permit for reconfiguration of a lot (1 into 5 lots) with respect to the land. The documents that comprised the development application include the required form and an accompanying report.37 A review of those documents reveals that: (a) Mr Elks was the applicant;38 37 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 13-153. 38 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 13. -- 14 of 64 -- 15 (b) Brett Richards of Pro Town Planners was named as a contact and his email address was provided;39 (c) Mr Elks consented to the making of the development application;40 (d) a box was checked indicating that Mr Elks agreed to receive an information request if determined necessary for the development application;41 and (e) boxes were checked indicating acceptance of the statements: “By making this development application, I declare that all information in this development application is true and correct Where an email address is provided in Part 1 of this form, I consent to receive future electronic communications from the assessment manager and any referral agency for the development application where written information is required or permitted pursuant to sections 11 and 12 of the Electronic Transactions Act 2001”.42 [46] The copy of the development application in the Council’s records is stamped “LODGED 1/11/2019 BCC DS.43 The Council does not dispute that the development application documents were received on Friday, 1 November 2016. [47] It is common ground that on 1 November 2016, the development application did not comply with s 51(1)(b)(ii) of the Planning Act 2016 as the required fee had not been paid. As such, at that time, the development application was not a properly made application.44 [48] On 6 November 2019 at 8.08 am, the Council sent an email to Mr Elks (via his nominated consultant) that states: “Further to previous correspondence, your application has now been checked and appears to satisfy the lodgement requirements. Accordingly a fee quote has been generated for this application which is attached for your convenience. Please ensure the fee quote details are correct prior to making the required payment. Should any changes to the fee quote details be necessary please advise the Planning Application Review Service via email – [email protected]. The fee can be paid using Council’s BPay facility. However there are alternative payment methods which are outlined in the fee quote. 39 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 13. 40 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 13 and 25. 41 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 19. 42 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 23. 43 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 13-153. 44 Planning Act 2016 s 51. -- 15 of 64 -- 16 Please note that this application is currently not made under Section 51 of the Planning Act 2016 as the applicable fee for the application has not been paid under Section 51(1)(b)(ii) of the Planning Act 2016. Should payment not be received within 20 business days of the fee quote being issued for payment the application will lapse.”45 (emphasis added) [49] Mr Elks contends that this email was an action notice given under s 3.1 of the Development Assessment Rules. The Council disagrees. [50] Section 3.1 of the Development Assessment Rules states: “If the application is not a properly made application, the assessment manager must give the applicant an action notice before the end of the confirmation period.” [51] A footnote to the section states: “Where the assessment manager accepts an application in accordance with section 51(4)(c) of the Act it is considered that this is a properly made application, therefore an action notice is not required to be given.” [52] Schedule 4 of the Development Assessment Rules defines “action notice”, relevantly, as: “Action notice is a notice that must be given if an application: (a) is not properly made, by the assessment manager, stating: (i) the application is not properly made; (ii) the reasons the application is not properly made; and (iii) the actions required to make the application comply with section 51 of the Act; (iv) the period in which to comply with all the actions in the action notice as prescribed in section 3.2. …” [53] In sch 4 of the Development Assessment Rules, “Act” is defined as “the Planning Act 2016” and “application” is defined as a development application under schedule 2 of the Act. In sch 2 of the Planning Act 2016, “development application” is defined as an application for a development approval. [54] When pt 1 of the Development assessment rules is read as a whole, and in conjunction with s 51 of the Planning Act 2016, it is apparent that the rules require an assessment manager to use the confirmation period to determine whether the development application is a properly made application and, depending on its determination, to either give a confirmation notice (if one is required under s 2.2 of the Development assessment rules) or an action notice. The rules do not provide an opportunity to give 45 Court Doc. No. 17, Affidavit of Alexander Jason Elks, Exhibit 3AJE-001 pp 1-3. -- 16 of 64 -- 17 more than one action notice, nor do they anticipate that there will be more than one. Rather, they set consequences for compliance with an action notice as though there will only be a single action notice.46 [55] Considered in that context, it is apparent that s 3.1 of the Development assessment rules requires an assessment manager to: (a) give an action notice once it has satisfied itself of the full extent of non- compliance with s 51 of the Planning Act 2016; and (b) state in the action notice: (i) each reason the development application is not a properly made application; and (ii) the actions required to make the development application fully comply with s 51 of the Planning Act 2016. [56] The email does not accord with the definition of an action notice as it does not state that “the application is not properly made”. I am not persuaded that this is only a technical oversight. [57] Having regard to the email, I infer that, at the time that the email was sent, the Council was satisfied that the development application did not comply with s 51(1)(b)(ii) of the Planning Act 2016. However, I am not persuaded that the statement that “your application has now been checked and appears to satisfy the lodgement requirements” demonstrates that the Council had otherwise determined that there was compliance with ss 51(1)(a), (b)(i), (2) and (3) of the Planning Act 2016. Rather, it demonstrates that the Council draws a distinction between “lodgement requirements” and the requirements under s 51 of the Planning Act 2016. [58] In those circumstances, I am not persuaded that the email was an action notice. As such, it is of no legal consequence for the development assessment process. [59] That said, the contents of the email are at odds with s 51 of the Planning Act 2016 or pt 1 of the Development Assessment Rules, which do not authorise an assessment manager to: (a) set minimum lodgement requirements; or (b) determine that a development application is not “made”, as opposed to determining that it is not satisfied that there has been compliance with s 51(1) to (3) of the Planning Act 2016; or (c) treat a development application as one that has lapsed in the circumstances stated in the email. [60] The Council would be well-advised to avoid such representations in the future. [61] On 6 November 2019, the required fee was paid.47 46 See, for example, s 3.7 of the Development assessment rules. 47 Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 38 and 67; Court Doc. No. 11, Certificate of -- 17 of 64 -- 18 [62] It is common ground that on payment of the required fee on 6 November 2019, the development application complied with ss 51(1) to (3) of the Planning Act 2016. As such, by operation of s 51(5) of the Planning Act 2016, it was a properly made application. [63] Mr Elks contends that on 6 November 2019, on receipt of the required fee, the Council determined that it was satisfied that the development application complied with ss 51(1) to (3) of the Planning Act 2016.48 Mr Elks contends that, having made that determination, the Council was obliged to give a confirmation notice on that date or, alternatively by 15 November 2019. He says that the Council deliberately delayed complying with that obligation “in an effort to capture the Applicant with the new amendment”.49 He says that this conduct was an “attempt to manipulate timelines, in an attempt to capture the Applicant under new legislation” and “an authorised attempt to impose harsh, unjust and unreasonable conditions”. He says that the Council contrived and manipulated the process.50 [64] On 7 November 2019, the Council sent an email to Mr Elks (via his nominated consultant) that states: “I refer to your application at 50 ROGERS PDE W EVERTON PARK QLD 4053. Your payment has been received, thank you. Please find attached a copy of the tax invoice relating to your recent payment of development application fees. Council wishes to advise your application is now made. The receipt date located on the tax invoice is the made date for your application. Your application is now in the confirmation period and has been allocated to the relevant Planning Team for assessment. You will be notified of the Assessment Manager shortly. Please phone the Lodgement Support Services Team on (07) 3403 4780 during normal business hours if you have any questions about this matter.”51 (emphasis added) [65] The term “confirmation period” is defined in sch 4 of the Development Assessment Rules as follows: “Confirmation period is the period of time under section 1.2.” [66] Section 1.2 of the Development assessment rules states: “The assessment manager must determine, within 10 days starting the day after the assessment manager receives an application Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 154; Court Doc. No. 17, Affidavit of Alexander Jason Elks Exhibit 3AJE-001 pp 4-5. 48 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [70(d)]. 49 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [70(d)]. 50 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [69]. 51 Court Doc. No. 17, Affidavit of Alexander Jason Elks, Exhibit 3AJE-002 pp 4-5. -- 18 of 64 -- 19 (confirmation period), if the application is a properly made application.” [67] In sch 4 of the Development assessment rules, “day” is defined as “business day” and “properly made application” is defined by reference to sch 2 of the Planning Act 2016. In sch 2 of the Planning Act 2016, “properly made application” is defined by reference to s 51(5). [68] Mr Elks’ development application was received by the Council on Friday, 1 November 2019. The business day after its receipt was Monday 4 November 2019. As such, under s 1.2 of the Development Assessment Rules, the confirmation period began on 4 November 2019. [69] Section 2 of the Development assessment rules deals with the requirement to give a confirmation notice. That section relevantly provides: “2. Confirmation notice 2.1. A confirmation notice can only be given for a properly made application. 2.2. The assessment manager must give the applicant a confirmation notice if any of the following apply— (a) the application requires public notification; (b) the application requires referral under the Act; (c) as required in accordance with section 3.4 and 3.6. 2.3. The assessment manager may, within the confirmation period, give the applicant a confirmation notice for any application. 2.4. For sections 2.2(a) and (b), the confirmation notice must be given within the confirmation period.” [70] In sch 4 of the Development assessment rules, “confirmation notice” is defined as: “Confirmation notice is a notice that must state: (a) the type of approval applied for, and the nature and description of the proposed development; (b) the date the application was properly made; (c) whether part 4 is applicable to the application; (d) if part 4 is applicable, the notice must also state: (i) the public notification requirements; and (ii) the public notification period; (e) whether part 2 is applicable to the application52 52 As a minimum, the assessment manager must include on the confirmation notice whether part 2 applies based on the information provided by the applicant in the approved forms. Nothing prevents the assessment manager identifying particular referral requirements or additional referral requirements to those identified on the approved form by the applicant. -- 19 of 64 -- 20 (f) if part 2 is applicable, the period in which the application must be referred; (g) if the assessment manager does not intend to make an information request; and (h) if the applicant has advised that they do not wish to receive an information request.” (original footnotes) [71] As I have mentioned in paragraph [35] above, Mr Elks’ application required impact assessment. Under s 53 of the Planning Act 2016, an applicant must publicly notify a development application that requires impact assessment. As such, once the Council determined that the development application was a properly made application, it was required to give a confirmation notice under s 2.2(a) of the Development assessment rules. The confirmation notice was required to be given by 15 November 2019. [72] In a certificate provided pursuant to s 232 of the City of Brisbane Act 2010, the Chief Executive Officer of the Council says: “2. On payment of the required fee, the Development Application was considered to be properly made on 6 November 2019.”53 [73] Section 232 of the City of Brisbane Act 2010 states: “232 Evidentiary value of certificates (1) This section applies to a certificate that— (a) purports to be about the state of, or a fact in, a record of the council; and (b) purports to be signed by the chief executive officer. (2) The certificate is evidence of the matters contained in the certificate.” [74] The grammatical construct of paragraph 2 of the certificate of the Chief Executive Officer is unfortunate. It does not clearly state when the Council made the relevant determination under s 51 of the Planning Act 2016 and pt 1 of the Development Assessment Rules. [75] To the extent that the certificate purports to state the date on which the development application was properly made, I do not accept that evidence. The date that the development application was a properly made application is not a matter of fact that the Chief Executive Officer can attest to from the records of the Council. It is a question of mixed fact and law. 53 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, [2]. -- 20 of 64 -- 21 [76] On 20 November 2019, Julijana Lozovskis, an urban planner at the Council, sent a letter to Mr Elks (via his nominated consultant) that states: “I refer to the above application that the Council received on 6 November 2019 and advise that I have been appointed as Council’s assessment manager for the application. Please find attached the confirmation notice in accordance with the requirements of the Planning Act 2016. I would appreciate if you would check the attached notice and contact me if any of the information is incorrect or incomplete. I anticipate that I will be able to advise you of the progress of your application within 10 business days. The Principal Urban Planner is the delegate appointed by Council to determine the application.” [77] The document attached to the letter records: “Confirmation Notice (Development Assessment Rules under section 68(1) of the Planning Act 2016) This is a confirmation notice given under section 2 of the Development Assessment Rules. APPLICANT DETAILS Name of Applicant: Elks Aleander Applicant Address: Elks Aleander C/- Brett Richards PO Box 3515 NORMAN PARK QLD 4170 SITE DETAILS Address of Site: 50 ROGERS PDE W EVERTON PARK 4053 Real Property Description: L633 SL. 11121 City Plan Zone: EMERGING COMMUNITY ZONE Owner: Mr Alexander Jason Elks Ward: McDowall APPLICATION DETAILS Application Reference Number: A005322159 Application Made Date: 06 November 2019 Properly Made Date: 06 November 2019 -- 21 of 64 -- 22 DETAILS OF APPLICATION SOUGHT Aspect of Development: DA – PA – Reconfiguring a Lot (ref DARL382385519) Nature Application: Development Permit Activity: Subdivision of Land Description of Proposal: Reconfiguring a Lot (1 into 5 Lots) PUBLIC NOTIFICATION Part 4 of the Development Assessment Rules (public notification) is applicable to the development application. Public notification is to be carried out for this development application in accordance with the requirements set out in Part 4 of the Development Assessment Rules. The public notification period for the development application must be a period of at least 15 business days in accordance with section 53(4)(b) of the Planning Act 2016. In accordance with the public notification requirements of the Development Assessment Rules, you must give public notice by— (a) publishing a notice at least once in a newspaper circulating generally in the locality of the premises the subject of the application; and (b) placing notice on the premises the subject of the application that must remain on the premises for a period of time up to and including the stated day; and (c) giving notice to the adjoining owners of all lots adjoining the premises the subject of the application. You must give notice to the assessment manager of the intended start date of public notification. Schedule 3 of the Development Assessment Rules prescribes the way in which public notice must be given. INFORMATION REQUEST An information request may be made by the Council within 10 business days or a further period agreed between the applicant and the Council.”54 [78] Having regard to the emails referred to above and the contents of the confirmation notice, I infer that on a date between 7 November 2019 and 20 November 2019, the Council determined that it was satisfied that there was compliance with ss 51(1) to (3) of the Planning Act 2016. 54 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 155-7. -- 22 of 64 -- 23 [79] Mr Elks has not persuaded me that the Council made the relevant determination of compliance with ss 51(1) to (3) of the Planning Act 2016 on 6 November 2019, nor that the Council manipulated the process as alleged. [80] Under s 51(5) of the Planning Act 2016, the development application was a properly made application. By operation of s 68(2)(a) of the Planning Act 2016 and s 1.1 of the Development assessment rules, the development application is taken to be a properly made application on 1 November 2019, i.e., on the day it was received by the Council. [81] Although the confirmation notice wrongly records the name of the applicant, Mr Elks does not allege that this error is one that affects the validity of the confirmation notice. His position in that regard is reasonable. The name of the applicant is not required to be included on a confirmation notice. The error is no more than a technical slip. [82] Mr Elks submits that the confirmation notice was not given within the confirmation period as required under s 2.3 of the Development assessment rules. [83] As I have found in paragraph [68] above, the confirmation period commenced on 4 November 2019. It ended 10 business days later, on 15 November 2019. As such, while the Council complied with ss 2.1 and 2.2, it did not comply with s 2.3 of the Development assessment rules. [84] Mr Elks contends that because the confirmation notice was not given on time, it is void and of no effect. He says that it did not have the effect of ending the application process under pt 1 of the Development assessment rules. [85] Part 1 of the Development assessment rules identifies when the application process ends. It relevantly provides: “Part 1: Application 1. Properly made application — Act, s51(5)55 1.3. The giving of a confirmation notice or an action notice by the assessment manager ends the confirmation period on the day the notice is given to the applicant. 4. End of part 1 4.1. Part 1 is complete when the following occurs— (a) the assessment manager gives a confirmation notice under section 2, section 3.4 or section 3.6 to the applicant; or (b) if the assessment manager does not give a confirmation notice to the applicant and the application is a properly made application, when the confirmation period ends.” (original footnotes) 55 For change applications under section 82 of the Act, section 51 of the Act is not applicable – section 79 of the Act applies instead. -- 23 of 64 -- 24 [86] If, as Mr Elks contends, the confirmation notice is invalid and of no effect, pt 1 of the Development assessment rules ended on 15 November 2019 when the confirmation period ended. If Mr Elks’ allegation of invalidity is incorrect, pt 1 of the Development assessment rules ended on 20 November 2019 when the Council gave the confirmation notice. [87] I will return to the issue of invalidity later. However, at this point it is convenient to make three observations. [88] First, the definition of confirmation notice in sch 4 of the Development assessment rules requires that the notice include certain information. The definition does not include a requirement that the confirmation be given at the time required under pt 1 of the Development assessment rules. [89] Second, under s 68 of the Planning Act 2016, the Minister may make rules that provide for: “the effect on a development application of the expiry of a time limit under, or of a contravention of, the rules (the lapsing of the application, for example)”. [90] The Development assessment rules includes such rules with respect to non- compliances by an applicant56 and by a concurrence agency,57 but does not provide consequences for contraventions by an assessment manager. [91] Third, when s 4.1 of the Development assessment rules is read in the context of the balance of pt 1, it reveals that: (a) s 4.1(a) of the Development assessment rules applies where a confirmation notice is issued: (i) by election under s 2.1; or (ii) as obliged under s 2.2; or (iii) because, after an action notice is given, the required actions have been complied with and there is an obligation to give a confirmation notice under s 3.4; or (iv) because, after an action notice is given, although not all of the required actions have been complied with, the assessment manager elects to accept the application and, having made that election, there is an obligation to give a confirmation notice under s 3.6; (b) s 4.1(b) of the Development assessment rules applies where: (i) no confirmation notice is required under s 2.2; and (ii) no action notice is required under s 3.1; and (iii) the assessment manager does not exercise its discretion to give an election notice under s 2.1 of the Development assessment rules. 56 See, for example, ss 3.7, 8.3, 14.2, 29, and 31 of the Development assessment rules. 57 See, for example, s 28 of the Development assessment rules. -- 24 of 64 -- 25 [92] As such, s 4.1 of the Development assessment rules covers the full spectrum of situations that can arise under s 51(4)and (5) of the Planning Act 2016. [93] These are textual indicators that there is no legislative purpose to invalidate a confirmation notice that is required to be given under s 2.2 of the Development assessment rules but which is given in breach of s 2.3 of the Development assessment rules. That said, I will return to the issue of invalidity in more detail later. For now, it is convenient to continue considering the development assessment process that was followed and the other alleged defects with that process. Part 2: Referral [94] Part 2 of the Development assessment rules relates to the referral process. The development application did not require referral to a referral agency.58 As such, this part of the Development assessment rules does not apply. [95] The next stage of the development assessment process addressed in the rules is the information request stage. It is the subject of pt 3 of the Development assessment rules. However, before any information request was made by the Council, an amendment to City Plan came into effect. The amendment to City Plan [96] After the development application was taken to be a properly made application, City Plan was amended. Mr Elks contends that for the amendment to have legal effect for the development application, it must have legal effect at the time that pt 1 of the Development assessment rules ended. He says that version 17 of City Plan did not take effect until 29 November 2019, which is after pt 1 ended. As such, Mr Elks contends that s 45(8) of the Planning Act 2016 has no operation for his development application. [97] It is common ground that version 17 of City Plan took effect on 29 November 2019.59 [98] Under version 17 of City Plan: (a) the land was included in the Emerging community zone and the McDowall- Bridgeman Downs neighbourhood plan area; (b) the land was subject to several overlays, including the High ecological significance strategic sub-category of the Biodiversity areas overlay; 60 and (c) the Biodiversity areas overlay code contained assessment benchmarks for areas mapped in the Biodiversity areas overlay.61 58 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [8(c)]. 59 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, [5]. 60 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, [7] and [9] and pp 7 to 12. 61 Court Doc. No. 19, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010 pp 123 and 125: City Plan version 16 ss 8.1 and 8.2.4.1; Court Doc. No. 20, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 52-3: City Plan version 17 ss 8.1 and 8.2.4.1. -- 25 of 64 -- 26 [99] The extent to which the amendments to City Plan are relevant to the development assessment process are set out in s 45 of the Planning Act 2016, which relevantly states: “45 Categories of assessment … (5) An impact assessment is an assessment that— (a) must be carried out— (i) against the assessment benchmarks in a categorising instrument for the development; and (ii) having regard to any matters prescribed by regulation for this subparagraph; and (b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise. Examples of another relevant matter— • a planning need • the current relevance of the assessment benchmarks in the light of changed circumstances • whether assessment benchmarks or other prescribed matters were based on material errors Note— See section 277 for the matters the chief executive must have regard to when the chief executive, acting as an assessment manager, carries out a code assessment or impact assessment in relation to a State heritage place. (6) Subsections (7) and (8) apply if an assessment manager is, under subsection (3) or (5), assessing a development application against or having regard to— (a) a statutory instrument; or (b) another document applied, adopted or incorporated (with or without changes) in a statutory instrument. (7) The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made. -- 26 of 64 -- 27 (8) However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to— (a) if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document; or (b) another statutory instrument— (i) that comes into effect after the development application is properly made but before it is decided by the assessment manager; and (ii) that the assessment manager would have been required to assess, or could have assessed, the development application against, or having regard to, if the instrument had been in effect when the application was properly made. (emphasis added) [100] City Plan is a statutory instrument.62 It was amended on 29 November 2019, which was before the Council decided the development application. The amendment also occurred before the Council was even permitted to decide the development application.63 [101] As such, pursuant to s 45 of the Planning Act 2016, the Council: (a) was required to carry out an assessment of Mr Elks’ development application against the assessment benchmarks in version 16 of City Plan; (b) had a discretion to carry out an assessment having regard to the effect of the amendments reflected in version 17 of City Plan to the extent that the amendments were relevant, such as those that mapped the land in the High ecological significance strategic sub-category of the Biodiversity areas overlay, including by having regard to the Biodiversity overlay code; and (c) had a discretion to give the amendments in version 17 of City Plan the weight that the Council considered appropriate on the understanding that version 17 is not a vehicle for displacement or modification of version 16 of City Plan.64 [102] With that in mind, I return to the development assessment process followed by the Council. 62 Statutory Instruments Act 1992 (Qld) ss 6 and 7. 63 See paragraphs [130](g), [178], [192] and [193] below and Development assessment rules s 21.1. 64 Brisbane City Council v Klinkert [2019] QCA 40; [2020] QPELR 579, 581 [6]; Development Watch Inc. v Sunshine Coast Regional Council & Anor [2022] QCA 6, [51]. -- 27 of 64 -- 28 Part 3: Information request [103] Mr Elks contends that the Council did not give a valid and effective information request. He further contends that the subsequent correspondence between his consultant and the Council over the following 12 months were “demands, imposts, changes and alterations to the Applicants submissions, all of which had no legislative basis or power”.65 [104] Part 3 of the Development assessment rules deals with information requests and responses to information requests. In relation to information requests, the Development assessment rules relevantly provides: “11. When part 3 does not apply 11.1 Part 3 does not apply if— (a) the applicant has advised on the approved form that the applicant does not agree to accept an information request; or (b) the assessment manager has stated on the confirmation notice that it does not intend to make an information request and— (i) there are no referral agencies for the application; or (ii) all referral agencies for the application have given responses before the development application was made in accordance with section 57 of the Act. … 12. Making an information request 12.1 Subject to section 11, an assessing authority may make an information request.66 12.2 Any information request made by the assessment manager must be made to the applicant within 10 days, or a further period agreed between the applicant and the assessment manager, starting the day after part 1 has ended.” (original footnotes) [105] In sch 4 of the Development assessment rules, “information request” is defined by reference to sch 2 of the Planning Act 2016. In sch 2 of the Planning Act 2016, “information request” is defined as “a notice that asks the applicant for further information in relation to the application”. 65 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [51], [69], and [70(e)]. 66 Any information request must be within the limits of the assessing authority’s jurisdiction. -- 28 of 64 -- 29 [106] Mr Elks’ development application does not fall within the exclusion of pt 3 under s 11.1 of the Development assessment rules as: (a) on the approved form, Mr Elks agreed to receive an information request;67 (b) the confirmation notice given by the Council on 20 November 2019 did not include a statement that it does not intend to make an information request; and (c) even if, as contended by Mr Elks, the confirmation notice is invalid and of no effect, there is no evidence of the matters referred to in s 11.1(b) of the Development assessment rules. [107] As such, under s 12.1 of the Development assessment rules, the Council was entitled to make an information request. [108] Under s 12.2 of the Development assessment rules, any information request made by the Council was required to be made within 10 business days starting the day after pt 1 of the Development assessment rules has ended, or a further period agreed between Mr Elks and the Council. [109] In sch 4 of the Development assessment rules, “further period agreed” is defined by reference to 33.1 of the Development assessment rules, which states: “Any agreement for a further period under the DA Rules must be made before the end of the relevant period by notice between the parties identified in the relevant section of the DA Rules and must identify the section of the DA Rules to which the agreement relates and a copy must be given by the party who initiated the extension, to any other party to the application.” [110] Although it may be inferred, from Mr Elks’ conduct in responding to the Council’s information request,68 that Mr Elks agreed to a further period, there is no written agreement as required under s 33.1 of the Development assessment rules. As such, under s 12.2 of the Development assessment rules: (a) if pt 1 of the Development assessment rules ended on 20 November 2019 when the Council gave the confirmation notice, any information request made by the Council was required to be made by 4 December 2019; and (b) if pt 1 of the Development assessment rules ended on 15 November 2019 when the confirmation period ended, any information request made by the Council was required to be made by 29 November 2019. [111] The Council did not make an information request by 29 November 2019. 67 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 19. 68 See paragraphs [119] and [120] below. -- 29 of 64 -- 30 [112] On 4 December 2019, the Council sent a letter to Mr Elks (via his nominated consultant). It, relevantly, states: “RE: Information request under the Planning Act 2016 Council has carried out an initial review of the above application and has identified that further information is required to fully assess the proposal. Bushfire hazard … Vegetation Retention 2) The proposal indicates retained vegetation within lots that are impractical due to disturbance created by the construction of future Dwelling houses. Further, the material provided is of insufficient detail including tree species, general health assessment and identified Tree Protection Zones (TPZs). Council acknowledges the Citywide amendment – Biodiversity to Brisbane City Plan 2014 (now in effect) altering the Biodiversity mapping area which identifies the site as High Ecological Significance Strategic (HESS). As such assessment against Section C of the Biodiversity areas code is required. To assist in the assessment against this code, please provide a Tree Survey Plan prepared by a suitably qualified Environmental Professional that includes: a) All trees 150 mm DBH or greater that are likely to be impacted by the proposed works; b) The proposed development plan (as an overlay) including all services/infrastructure, full extent of earthworks (cut/fill), hydrological modifications and footprint required during construction of or resulting from development; c) A clear indication of which trees are to be retained and which trees are to be removed, including the following information:  Scientific name;  Height;  Diameter of tree trunk at breast heigh (DBH);  Crown diameter;  Habitat features including hollows and scratch marks, nests, etc.;  Evidence of Cultural Heritage;  TPZs (in accordance with AS497). -- 30 of 64 -- 31 Please note that all trees identified within the site are protected under a Natural Asset Local Law (NALL) and must not be removed without written permission from the asset owner, Asset Management. Lot size … Access and Servicing … Responding to this request Your response should include a summary table which outlines any changes to performance outcomes and plans that have resulted from addressing the issues outlined above. The table should also include details of any supporting documentation. If a response is not provided within the prescribed response period of three (3) months assessment of the application will continue from the day after the day on which the response period would have otherwise ended. …”69 [113] Mr Elks contends there are two bases on which this letter is invalid and of no effect as an information request. First, he contends that the request for the information about vegetation reveals that the Council regarded the amendment to City Plan as containing assessment benchmarks against which the development application must be assessed, rather than as a matter to which the Council may have regard. As such, Mr Elks says that the request was not within the powers afforded to the Council in s 45(8) of the Planning Act 2016.70 Second, Mr Elks contends that the letter is invalid and of no legal effect because the Council did not comply with s 12.2 of the Development assessment rules as the letter was not provided by 29 November 2019.71 [114] With respect to Mr Elks’ first contention, I accept that the statement that “assessment against Section C of the Biodiversity areas code is required” is incorrect as a matter of law. Further, I am prepared to infer that the statement reflects the view held by Julijana Lozovskis on 6 December 2019. However, I am not persuaded, on the balance of probabilities, that this was the view of the Council given: (a) there is no evidence that Julijana Lozovskis was the Council’s delegate for the assessment and decision of the development application; and, to the contrary, (b) the Council records indicate that the decision was made by Kathy Baguley as delegate of the Council;72 69 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 158-61. 70 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [49]; Court Doc. No. 3, Affidavit of Alexander Jason Elks, [11] to [17]. 71 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [47] and [48]. 72 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 249. -- 31 of 64 -- 32 (c) the record of the decision by the delegate of Council indicates that the delegate considered the application and assessment “detailed above”, which details include “SUBMISSION BY Elrico Koeberg 22 January 2021”;73 (d) a document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg”: (i) contains a box that refers to eight overlays and six overlay categories, which includes “Biodiversity areas overlay” but does not refer to the High ecological significance strategic sub-category of the Biodiversity areas overlay as an overlay category; and (ii) states “Version 16.00/2019 of Brisbane City Plan 2014 was the relevant version applicable at the time of lodgement of the application”; (iii) contains a statement that “The proposal has been assessed against the below. assessment benchmarks under version 16.00/2019 of Brisbane City Plan 2014”, which is followed by a box that identifies the “Biodiversity Areas Overlay Code” but otherwise contains no statement indicating the results of any assessment against that code;74 and (e) Kathy Baguley did not give evidence: she was not subpoenaed by Mr Elks nor called by the Council. [115] Further, and in any event, the letter makes requests for information about matters that are unrelated to the amendment to City Plan. [116] For those reasons, Mr Elks has not established his first contention. [117] Mr Elks’ second contention is founded on his position that: (a) the confirmation notice was invalid and of no effect; (b) pt 1 of the Development assessment rules ended, at the latest, by 15 November 2019; (c) the Council was required to make any information request by 29 November 2019; and (d) an information request that is issued after the timeframe stipulated in s 12.2 is invalid and of no effect. [118] Even if the Council was required to make any information request by 29 November 2019, it does not necessarily follow that the letter sent by the Council on 4 December 2019 was invalid and of no effect. Not every act done in breach of a condition regulating the exercise of a statutory power is necessarily invalid and of no effect.75 I will address the issue of invalidity later. For the time being, it is convenient to continue outlining the progress of the development application. 73 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 254. 74 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 242-8. 75 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388 [91]. -- 32 of 64 -- 33 [119] On 5 February 2020, Mr Elks’ consultant emailed documents to the Council, including an ecological assessment report by Karen Schmidt, Senior Ecologist, Queensland Ecologists.76 The report includes, amongst other things: (a) the results of a tree survey;77 (b) representations about the impacts of the proposed development,78 wherein the author states: “A quarter of the property’s trees (3 of 12) are nominated for retention, and a 497m2 protected area will be nominated along the eastern side of the layout, which incorporates (32%) of the City Plan’s mapped ‘High Ecological Significance Strategic’ area within the property.”79 (c) recommendations about mitigation measures that would minimise potential impacts from the development on fauna and retained vegetation,80 including: “2. The protection area will require a level of formal protection to ensure trees are retained in the lots during future occupation (i.e. a covenant or similar). 3. Ensure the works area does not encroach into the protection area by establishing delineation fencing prior to works occurring (such as star pickets and highly visible flagging tape) and advising contractors and machinery operators of this ‘no-go’ area. 4. Establish and maintain erosion and sediment control measures to capture runoff from the footprint (such as a sediment control fence, affixed hay bales, turfed areas) prior to, and for the duration of, the construction. … 6. Works should be completed in a manner that reduces soil disturbance, including containing all works activities, including stockpiling and vehicle parking, within the footprint. … 8. Retained native trees must be adequately protected from damage during construction activities through the delineation fencing (refer #3). No further entry to the protected areas should occur during construction, and 76 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 164-83. 77 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 167. 78 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 167-8. 79 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 168. 80 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 167-8. -- 33 of 64 -- 34 machinery and materials must not be stored in the protected zone.”81 (d) a representation that: “… The development’s unavoidable impacts can be adequately mitigated through incorporation of a protection area along the eastern side of the layout and improvements to this area through rehabilitation and revegetation. Provided the above recommendations are implemented, the proposed development will adequately protect riparian values, corridor values, maintain sufficient connectivity and mitigate the loss of 9 mature native trees.”82 (e) a tree survey plan that mapped part of proposed lots 4 and 5 as “Retained portion of Ecological significant overlay area (497m2)”;83 (f) a plan that showed a building lot envelope in each of proposed lots 2, 3, 4 and 5;84 and (g) an assessment of the proposed development against the Biodiversity areas overlay code,85 wherein, in response to assessment benchmarks in the code, Ms Schmidt asserts: “Impacts to biodiversity will primarily be mitigated through the retention of a 497m2 protection area along the eastern and southern sides of the proposed layout, retention of three mature trees therein, and the rehabilitation and protection of this area. … Residual impacts to ecological features are proposed to be mitigated through the inclusion of the 497m2 protection area which occurs within part of the ‘High Ecological Significance Strategic’ mapped area, and increases in width in proposed Lot 5 which is located adjacent to the waterway corridor. This protection area is proposed to be rehabilitated as part of the development …”86 [120] The email that forwarded the document states: “Please find attached plans provided by our clients engineer that should address all concerns in the Information Request issued on this 81 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 168. 82 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 170. 83 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 171. 84 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 172. 85 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 173-80. 86 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 174. -- 34 of 64 -- 35 development. Please let me know if this response does not satisfy your request. If it does, then please proceed with processing this application.”87 [121] As I have foreshadowed in paragraph [103] above, Mr Elks contends that the email from his consultant dated 5 February 2020 is not a response to the information request. He says it has no relevant legislative basis or power.88 [122] Part 3 of the Development assessment rules deals with responses to information requests. It relevantly states: “13 Applicant’s response 13.1 The period for the applicant to respond to an information request is 3 months from the date the information request was made or a further period agreed between the applicant and the assessing authority that made the information request. 13.2 The applicant may respond by giving the assessing authority that made the information request, within the period stated under section 13.1— (a) all of the information requested; or (b) part of the information requested; or (c) a notice that none of the information will be provided. 13.3 For any response given in accordance with sections 13.2(b) or (c), the applicant may also advise the assessing authority that it must proceed with its assessment of the application. … 14 End of the applicant’s response period 14.1 The applicant’s response period in section 13.1 ends if— (a) the applicant has responded under section 13.2(a); or (b) the applicant has responded under sections 13.2(b) or (c) and the applicant has advised the assessing authority to proceed with the assessment of the application. 14.2 If an applicant does not respond to the information request in accordance with section 13.2 and 13.3 if applicable within the period stated under section 13.1, the assessing authority’s assessment continues from the day after the day on which the period under section 13.1 would have otherwise ended. 87 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 162-83. 88 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [50], [51] and [70(e)]; Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 84. -- 35 of 64 -- 36 15 End of part 3 15.1 Part 3 is complete when— (a) if no assessing authority makes an information request, the later of the periods stated under sections 12.2 and 12.4, as relevant to the application, has ended; or (b) if any assessing authority makes an information request, the earlier of the following occurs— (i) the applicant has finished responding to all information requests in the way stated under section 14.1; or (ii) all periods for the applicant to respond to all information requests as stated in section 13.1 have ended.” [123] In sch 4 of the Development assessment rules, “assessing authority” is defined as “an assessment manager, concurrence agency or advice agency”. [124] If the Council’s confirmation notice is valid, so too is its information request of 4 December 2019. In those circumstances: (a) under s 13.1 of the Development assessment rules, Mr Elks had until 4 March 2020 to respond to the information request; (b) the letter of 5 February 2020 was a response to an information request under s 13.1; (c) although the Certificate of the Chief Executive Officer only provides extracts of the response, having regard to the email dated 5 February 2020, I infer that Mr Elks responded in accordance with s 13.2(a) of the Development assessment rules by giving the Council all the information requested; and it follows that (d) under ss 14.1(a) and 15.1(b)(i) of the Development assessment rules, the response period ended, and pt 3 of the Development assessment rules was complete, on 5 February 2020. [125] This progression of the development application is consistent with: (a) the timeline of the development assessment process provided to Mr Elks by his consultant, Mr Brett Richards;89 and (b) a document that Mr Elks obtained from the Council in response to a right to information request which is titled “DART application and permit details report” and which appears to contain a log of steps taken by Council officer and correspondence sent and received with respect to the development application.90 89 Court Doc. No. 13, Affidavit of Alexander Jason Elks, [3] and Exhibit 2AJE-020 pp 270-1. 90 Court Doc. No. 13, Affidavit of Alexander Jason Elks, [2] and Exhibit 2AJE-021 pp 272-6. -- 36 of 64 -- 37 [126] If, as alleged by Mr Elks, the Council’s confirmation notice is invalid and the information request was invalid, part 3 ended on 29 November 2019. Part 4: Public notification [127] As I have already indicated in paragraph [71] above, under s 53 of the Planning Act 2016, Mr Elks’ development application required public notification. That provision relevantly states: “53 Publicly notifying certain development applications (1) An applicant must give notice of a development application if— (a) any part of the application requires impact assessment; or (b) the application includes a variation request. (2) The notice must be given in the way or ways stated in the development assessment rules. (3) However, the assessment manager may assess and decide a development application even if some of the requirements of the development assessment rules about the notice have not been complied with, if the assessment manager considers any noncompliance has not— (a) adversely affected the public’s awareness of the existence and nature of the application; or (b) restricted the public’s opportunity to make properly made submissions about the application. (4) The notice must state that— (a) a person may make a submission about the application to the assessment manager; and (b) any submission must be made by a stated day that is at least— (i) for an application that includes a variation request—30 business days after the notice is given; or (ii) for an application of a type prescribed by regulation—the period, of more than 15 business days after the notice is given, prescribed for the application; or (iii) for any other application—15 business days after the notice is given. (5) However, if the development assessment rules require the notice to be given in more than 1 way, the period -- 37 of 64 -- 38 mentioned in subsection (4)(b) starts on the day after the day when the last notice is given. (6) Any person, other than the applicant or a referral agency, may make a submission about the application. … (12) In this section— business day does not include a day between 20 December of a year and 5 January of the next year.” (emphasis added) [128] Part 4 of the Development assessment rules deals with the public notification stage of the development assessment process. It relevantly states: “16 When this part starts 16.1 If there are no referral agencies for the application and part 3 does not apply because: (a) the applicant has advised that it does not wish to receive an information request and it is not an application mentioned in section 11.3; or (b) the assessment manager states in the confirmation notice that it does not intend to make an information request; public notification must start within 20 days of the day after the confirmation notice is given to the applicant. 16.2 If— (a) the applicant has advised that it does not wish to receive an information request; and (b) it is not an application mentioned in section 11.3; and (c) there are referral agencies; public notification must start within 20 days after the day the last referral assessment period for any referral agency has started. 16.3 If sections 16.1 and 16.2 do not apply, public notification must start within 20 days of the day after part 3 has ended. 17 Public notice requirements 17.1 The applicant, or the assessment manager acting under section 53(10) of the Act, must give public notice by— (a) publishing a notice at least once in a newspaper circulating generally in the locality of the premises the subject of the application; and -- 38 of 64 -- 39 (b) placing notice on the premises the subject of the application that must remain on the premises for the period of time up to and including the stated day; and (c) giving notice to the adjoining owners of all lots adjoining the premises the subject of the application. 17.2 The applicant must give notice to the assessment manager of the intended start date of public notification. 17.3 Schedule 3 prescribes the way in which public notice must be given. 17.4 All public notice requirements under section 17.1 and 17.2 must be undertaken within the period prescribed under section 16.91 18 Notice of compliance 18.1 If the applicant gives public notice, it must, within 10 days from the day after the last day on which a submission may be made, or a further period agreed between the applicant and the assessment manager, give the assessment manager notice of compliance with the public notice requirements.92 … 20 End of part 4 20.1 Part 4 is complete— (a) if submissions are received— (i) the day the period to consider submissions under section 19.3 has ended; or (ii) before the period has ended under section 19.3, the day the assessment manager gives notice to the applicant to end the period. (b) if no submissions are received— (i) the day after the assessment manager receives a notice of compliance from the applicant; or (ii) the stated day on the public notice if public notice is given by the assessment manager.” (original footnotes, emphasis added) 91 The public notification period starts in accordance with section 53(5) of the Act. Not taking this action within the period prescribed, will result in the application lapsing – see section 31. 92 Not taking this action within the period prescribed, will result in the application lapsing – see section 31. -- 39 of 64 -- 40 [129] There is no direct evidence about when public notification occurred. However, the evidence includes: (a) a statement in the Certificate of the Chief Executive Officer that “no properly made submissions were received for the development application”;93 (b) a statement in the decision notice that “no properly made submissions were received for the development application”;94 (c) the timeline of the development assessment process provided to Mr Elks by his consultant, Mr Brett Richards, which states: “13/3/20 – did Public notification 3/4/20 – Did Public Notification compliance”95 (d) the document that Mr Elks obtained from the Council that is titled “DART application and permit details report”, which states: “16-MAR-2020 … Notice of Intention to Commence Public Notification received 13/03/20 … 06-APR-2020 … Email – Notice of Compliance uploaded – No submissions received …”96 [130] Having regard to that evidence, I infer that: (a) Mr Elks gave notice of the development application as required by s 53(1) of the Planning Act 2016; (b) if part 3 ended on 29 November 2019, as contended by Mr Elks, the public notification was not started within 20 business days after part 3 had ended, as required under s 16.3 of the Development assessment rules; (c) if part 3 ended on 5 February 2020, the public notification started within 20 business days after part 3 had ended, as required under s 16.3 of the Development assessment rules; (d) regardless of when part 3 ended, on 13 March 2020, Mr Elks gave the Council notice of the intended start date of public notification as required under s 17.2 of the Development assessment rules; (e) on either 3 or 6 April 2020, Mr Elks gave notice of compliance with the public notification requirements as required under s 18.1 of the Development assessment rules; (f) no submissions were received; and (g) regardless of when parts 1 and 3 ended, part 4 of the Development assessment rules was completed on either 6 or 7 April 2020. 93 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, [6]. 94 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 252. 95 Court Doc. No. 13, Affidavit of Alexander Jason Elks, [3] and Exhibit 2AJE-020 pp 270-1. 96 Court Doc. No. 13, Affidavit of Alexander Jason Elks, [2] and Exhibit 2AJE-021 pp 274. -- 40 of 64 -- 41 Part 7: Further advice [131] After the public notification was complete, between 27 May 2020 and the Council’s decision on 22 January 2021, the Council made several requests for further information to which Mr Elks responded. As I have foreshadowed in paragraph [101] above, Mr Elks contends that these exchanges of correspondence are not relevant to the development assessment process. He says it has no relevant legislative basis or power.97 [132] Part 7 of the Development assessment rules contains provisions that relate to the provision of further information by an applicant during the development assessment process. The relevant provisions state: “35. Further advice about an application 35.1 An assessment manager or concurrence agency for the application may, at any time before the application is decided, give further advice about the application to the applicant. 35.2 Further advice may include advice about how the applicant may change the application.98” (original footnotes) [133] On 27 May 2020, the Council sent a letter to Mr Elks raising further issues. It relevantly states: “Thank you for your response to the Information Request received on 5 February 2020. A review of the response has identified outstanding matters that have not been appropriately addressed and as such the proposal is unlikely to be supported in its current form. Provide amended plans and supporting information demonstrating an allotment layout that has considered the bushfire hazard, whilst also protecting the site’s biodiversity values. … Vegetation Retention 1) The submitted material identifies a conflict between Tree retention plan and works shown on the Earthworks and services plan (Drawing reference 4268-SK02 Rev: PD). The ecological areas proposed for retention are subject to cut and fill, stormwater and sewer services resulting in trees that are unviable for retention. To achieve compliance with PO4 of the Biodiversity area overlay code please provide a revised Tree retention plan ensuring it includes the proposed development plan (as an overlay) detailing all services/infrastructure, full extent of all earthworks 97 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [50], [51], [70(e)], [73], and [76] to [84]; Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 84. 98 Any advice must be within the limit of the assessment manager or concurrence agency’s jurisdiction. -- 41 of 64 -- 42 (cut/fill), hydrological modifications and footprint required during construction of the development; This plan must ensure there is no cut and fill within Tree Protection Zones of retained vegetation, whilst also realigning the stormwater services and sewer design to ensure retention of specimens in good health and in perpetuity. All trees proposed for retention remain within realistic sized building envelopes and achieve ecological connectivity with the vegetated areas to the North. An amendment lot layout is expected to ensure earthworks required by development achieves findings of the submitted Ecological report. Note. All proposed changes must be in accordance with AS 4970-2009 Protecting trees on development sites. …”99 (emphasis added) [134] On 3 July 2020, Mr Elks, through his consultant, emailed further documents to the Council. One of the attached documents was a letter from Mr Elks. It responds to the request for information about vegetation retention and includes representations that Mr Elks will “resubmit appropriate drawings” and that he desired “to retain as much green space and trees as possible”.100 [135] The email that forwarded those document states: “Please find attached response to the council’s Further Advice. Please let me know if anything else is required.”101 [136] On 25 August 2020, the Council sent a letter requesting further advice. The letter relevantly states: “Council has reviewed the latest amended plans and documents received in response to the further Issues letter dated 27 May 2020 and have identified a number of inconsistencies with the proposal and the requirements of City Plan 2014. Biodiversity 1) Council has reviewed the response to information request provided by the ecological consultant as well as the Concept Engineering Plan and acknowledge vegetation retention has been addressed. However, conflicts exist between the areas proposed for rehabilitation and revised impacts from the developable areas of Lots 4 and 5. 99 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 184-6. 100 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 191-4. 101 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 190. -- 42 of 64 -- 43 The proposal indicates the biodiversity outcome was being achieved through the retention of Trees 10, 11 and 12 with an additional ecological retention area being rehabilitated. This outcome was a direct response to the code and the impacts in relation to existing mapped vegetation. New impacts can be seen to the proposed rehabilitation area where batters and building envelopes encroach into the negotiated rehabilitation/vegetation retention area. Figures 1 and 2 show the conflict that must be addressed where the retained area provided appears to have been reduced. a) Provide revised plans that retain the portion of ecological significance overall area in accordance with the proposed biodiversity outcome. This may require amendments in earthworks, structural retaining solutions and extent of gross floor building area for proposed lots 4 and 5; and b) Revisions to Engineering Plans and the Reconfiguration of the Lot Plan will be required to reflect the above changes ensuring no plan discrepancies exist. …”102 [137] On 8 October 2020, Mr Elks, through his consultant, emailed further documents to the Council. One of the documents was a letter from DRW Consulting Pty Ltd dated 7 October 2020. It responded to the requests about biodiversity as follows: “Please see DRW drawings 4268-SK01-SK04-PF for revised Engineering plans to reflect biodiversity requirements”103 [138] The email that forwarded those document states: “Please find attached items in response to the Information Request. Please let me know if you require any additional information/reports for a successful approval.”104 [139] On 16 November 2020, the Council emailed Mr Elks’ consultant. The email relevantly states: “As discussed over the phone, can you please confirm that the proposed Detailed Survey Plan, Drawing number 5591_P3 Revision A (received on 05 May 2020) is the latest and most relevant survey plan for the proposed development?”105 102 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 195-6. 103 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 199-204. 104 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 197. 105 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 206. -- 43 of 64 -- 44 [140] On 15 January 2021, Mr Elks (through his consultant) responded stating “Please find attached plans. Please proceed to assessment”.106 The plan attached was drawing number 5591_P4 revision A.107 [141] The letters and emails sent by the Council are authorised under s 35 of the Development assessment rules. [142] The information provided by Mr Elks, including the letters, plans and expert reports, was material about the application that the Council received before the development application was decided. As such, it is “common material” as that term is defined in sch 24 of the Planning Regulation 2017. Under s 45(b) of the Planning Act 2016 and s 31(1)(g) of the Planning Regulation 2017, the Council was required to carry out the assessment having regard to the common material. [143] For the reasons provided above, I do not accept Mr Elks’ submission that there was no relevant legislative basis or power for the exchange in correspondence and no basis for the Council to consider the information so provided. Part 5: Decision [144] By letter dated 22 January 2021, the Council gave Mr Elks the decision notice which notified the delegate’s decision to approve the development application subject to conditions. Mr Elks contends that the decision notice is invalid and of no effect. He advances four grounds for this contention, namely: (a) the Council made a decision to approve the development application on 8 December 2020, and therefore had no power to deliver a decision notice on 22 January 2021; (b) the decision notice sent to him on 22 January 2021 does not comply with s 63(5)(d) of the Planning Act 2016; (c) the decision to impose conditions 7 and 8 is based solely on a document that identifies compliance with assessment benchmarks in version 16 of City Plan without outlining conditions required to achieve compliance; and (d) conditions 7 and 8 were not proposed or agreed to by him and are not “a consideration at law available” having regard to version 16 of City Plan and ss 45(7), 59(2) and 65 of the Planning Act 2016. [145] Each contention will be dealt with below. [146] First, Mr Elks contends that the Council made the decision to approve the development application on 8 December 2020. He says that the decision was a decision under s 60(3)(a) and not under s 60(3)(b) of the Planning Act 2016.108 106 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 205. 107 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 207. 108 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [53] and [54]. -- 44 of 64 -- 45 [147] Section 60(3) of the Planning Act 2016 applies to a properly made application. It states: “60 Deciding development applications … (3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide— (a) to approve all or part of the application; or (b) to approve all or part of the application, but impose development conditions on the approval; or (c) to refuse the application.” (emphasis added) [148] As to the timing of notification of the decision, pt 5 of the Development assessment rules relevantly states: “22 Decision period – generally 22.1 The assessment manager must— (a) assess and decide the application within 35 days (decision period) in accordance with section 60 and 61 of the Act109, or a further period agreed between the assessment manager and the applicant, from the end of the last relevant part in section 21110; and (b) subject to section 22.2, give a decision notice in accordance with section 63 of the Act within 5 days of deciding the application111. (original footnotes, emphasis added) [149] Section 63 of the Planning Act 2016 deals with the approved form and mandatory contents of a notice of decision. It relevantly states: “63 Notice of decision (1) The assessment manager must give a decision notice about the assessment manager’s decision to— (a) the applicant; and 109 For a change application under section 82 of the Act, section 63 of the Act is not applicable – section 83 of the Act applies instead. 110 See section 38 for instances where a further period need not be agreed with the applicant. 111 In accordance with sections 77(1) and 77(2) of the Building and Construction Industry (Portable Long Service Leave) Act 1991 an assessment manager must not give a development permit for certain development types without sighting an approved form showing payment or an exemption of payment of the long service leave levy. -- 45 of 64 -- 46 … (2) The notice must be in the approved form and state— (a) whether the application is approved, approved in part or refused; and (b) if the application is approved in part—the extent to which the application is approved; and (c) if the application is approved or approved in part— whether the approval is a preliminary approval, a development permit, or both; and (d) if section 64(5) applies—that the assessment manager is taken to have approved the application under that subsection; and (e) if development conditions are imposed— (i) the conditions; and (ii) for each condition—whether the condition was imposed directly by the assessment manager or required to be imposed under a referral agency’s response; and (iii) for each condition imposed under a referral agency’s response—the referral agency’s name; and (iv) for each condition about infrastructure under chapter 4—the provision of this Act under which the condition was imposed; and (f) if the application is refused— (i) whether the assessment manager was directed to refuse the application and, if so, the referral agency directing refusal and whether the refusal was solely because of the direction; and (ii) for a refusal for a reason other than because of a referral agency’s direction—the reasons for the refusal; and (g) for a variation approval—the variations; and (h) the name, residential or business address, and electronic address of each principal submitter; and (i) the day the decision was made. (3) The notice must also state, or be accompanied by, the documents prescribed by regulation.” (emphasis added) -- 46 of 64 -- 47 [150] Section 43 of the Planning Regulation 2017 sets out those matters prescribed for s 63(3) of the Planning Act 2016. It does not include a requirement to provide the reasons for the assessment manager’s decision. [151] Mr Elks’ first contention begs the question: when did the Council make its decision? [152] There is no direct evidence of the time at which the Council made its decision. Unfortunately, it is not a matter expressly stated by the Chief Executive Officer. [153] Mr Elks invites the Court to find that the decision was made on 8 December 2020 by reference to a document that Mr Elks attaches to one of his affidavits. He describes it as a document from “the document management system of Brisbane City Council”. On its face, the document appears to be a print-out from the Council’s website. The website pathway suggests that it relates to an application with the identification number “A005322159”, which accords with the application reference number for Mr Elks’ development application referenced on various documents throughout the development assessment process. The document includes a table with, relevantly, the following entries:112 Action Document Name Category Document Date Document Size (KB) Action  Approved Conditions Decision – Application 25/01/2021 306 Action  Notice about decision – Development application Notice – Decision 22/01/2021 0 Action  Contour and detail Survey plan Plan – Applicant Proposed 15/01/2021 833 Action  Updated Plan Plan – Applicant Proposed 18/12/2020 770 Action  Amended Plans Plan – Applicant Proposed 17/12/2020 731 Action  Delegate Decision Decision – Application 08/12/2020 57 Action  Plans_Final Plan – Approved 01/12/2020 5128 [154] Mr Elks did not call any witness from the Council to explain the nature of the document or what it is intended to record. 112 Court Doc. No. 3 and 4, Affidavit of Alexander Jason Elks, [16 ix) and Exhibit AJE-12 p 266. -- 47 of 64 -- 48 [155] Mr Elks also relies on the timeline of the development assessment process provided to Mr Elks’ by his consultant, Mr Brett Richards.113 It states: “18/12/20 – Council will approve it with conditions.”114 [156] Mr Elks did not call Mr Richards to explain his notation. [157] These are not the only documents from which an inference might be drawn about the date on which the Council made its decision. [158] In a certificate provided pursuant to s 232 of the City of Brisbane Act 2010, the Chief Executive Officer of the Council says: “4. By way of decision notice dated 22 January 2021, Council approved the Development Application subject to conditions (Development Approval).”115 [159] The certificate also attaches copies of documents in the Council’s records. [160] A document titled “Decision by Delegate of Council” records that Kathy Baguley, Principal Urban Planner, as delegate of the Council, decided the development application on 22 January 2021. The record of the decision is signed and dated and states: “1. Having considered the application and assessment detailed above, I am satisfied that the application accords with the requirements of the Planning Act 2016 where applicable and as such: (a) approve the application in accordance with the attached development approval package (b) approve the infrastructure charges in accordance with the attached Infrastructure Charges Notice And direct that: 2. the applicant be advised on the decision 3. the Infrastructure Charges Notice for Community Purposes, Stormwater and Transport be given 4. the Central SEQ Distributor-Retailer Authority be advised of the decision 5. the local Ward Councillor be advised of the decision 6. the notice about the decision be published on the website.”116 113 Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 58. 114 Court Doc. No. 13, Affidavit of Alexander Jason Elks, [3] and Exhibit 2AJE-020 pp 270-1. 115 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, [2]. 116 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 254. -- 48 of 64 -- 49 [161] On 22 January 2021, the Council gave notice of its decision to Mr Elks by providing a decision notice.117 The information in this document is consistent with the information provided in the document titled “Decision by Delegate of Council”. In that respect, the decision notice given on 22 January 2021 states: “This is a decision notice given pursuant to section 63 of the Planning Act 2016. The decision to approve the application on 22 January 2021 was made by the Principal Urban Planner as the delegate appointed by Council to determine the application.”118 [162] Having regard to the evidence referred to above, I am not prepared to infer that the Council’s decision was made on 8 December 2020 from the documents on which Mr Elks relies. The information in those documents is discordant with the balance of the evidence such that I have concerns about its veracity. Those concerns are heightened by reason of the absence of evidence about the providence of the information recorded in the documents relied on by Mr Elks. [163] I am persuaded, on the balance of probabilities, that: (a) the Council made its decision on 22 January 2021; (b) the decision was a decision to approve the development application subject to conditions, which include conditions 7 and 8; (c) the Council complied with s 22.1(b) of the Development assessment rules as the decision notice was given on the same day that the Council decided the development application; and (d) the decision notice complied with all the requirements in s 63(2) of the Planning Act 2016. [164] As such, I reject Mr Elks’ first ground. [165] Mr Elks’ second ground is that the decision notice sent to him on 22 January 2021 does not comply with s 63(5)(d) of the Planning Act 2016 because it does not provide the reasons for the assessment manager’s decision.119 [166] Section 63 of the Planning Act 2016 contains the requirements for notice of a decision. Sections 63(1), (2) and (3) are extracted in paragraph [149] above. They 117 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 250-85. 118 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 251. 119 Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 54-7. -- 49 of 64 -- 50 do not contain a requirement to provide reasons. Section 63 of the Planning Act 2016 also relevantly provides: “63 Notice of decision … (4) If— (a) the assessment manager in relation to a development application is— (i) a local government; or (ii) the chief executive; or (iii) an entity prescribed by regulation; and (b) the development application involved— (i) a material change of use; or (ii) reconfiguring a lot; or (iii) building work, other than to the extent the building work is assessable against the building assessment provisions; or (iv) development prescribed by regulation; the assessment manager must publish a notice about the decision on the assessment manager’s website. (5) The notice must state— (a) a description of the development; and (b) a description of the assessment benchmarks applying for the development; and (c) to the extent the development required impact assessment— (i) any relevant matters under section 45(5)(b) that the development was assessed against, or to which regard was had, in the assessment; and (ii) a description of the matters raised in any submissions; and (iii) how the assessment manager dealt with the matters described under subparagraph (ii) in reaching a decision; and (d) the reasons for the assessment manager’s decision; and -- 50 of 64 -- 51 (e) if the development application was approved, or approved subject to conditions, and the development did not comply with any of the benchmarks—the reasons why the application was approved despite the development not complying with any of the benchmarks; and (f) any matter prescribed by a regulation.” (emphasis added) [167] There is no matters prescribed by regulation for s 63(5)(f) of the Planning Act 2016. [168] Mr Elks’ second ground is premised on an assumption that s 63(5)(d) of the Planning Act 2016 relates to the decision notice that must be given to the applicant pursuant to s 63(1) of the Planning Act 2016. I do not accept that construction. Sections 63(2) and (3) of the Planning Act 2016 set out the information required to be provided in a decision notice sent to an applicant under s 63(1) of the Planning Act 2016. Section 63(5) of the Planning Act 2016 sets out the information required to be provided in a notice published on the assessment manager’s website under s 63(4) of the Planning Act 2016. [169] For those reasons, Mr Elks’ second ground fails. [170] Mr Elks’ third ground is that the decision to impose conditions 7 and 8 is based solely on a document titled “Notice About Decision Assessment Report (s63 Development Application)”. He says that document demonstrates compliance with the assessment benchmarks in version 16 of City Plan without outlining conditions required to achieve compliance.120 [171] As I have mentioned in paragraph [29] above, chp 3, pt 3, div 2 of the Planning Act 2016 relates to assessing and deciding development applications. It, relevantly, provides: “59 What this division is about (1) This division is about deciding properly made applications, including variation requests. … (3) Subject to section 62, the assessment manager’s decision must be based on the assessment of the development carried out by the assessment manager.” (emphasis added) [172] As I have already mentioned, there is no direct evidence from the Council’s delegate for the decision, Kathy Baguley. 120 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [55], [56] and [57]. -- 51 of 64 -- 52 [173] The certificate of the Chief Executive Officer attaches a document titled “Decision by Delegate of Council”.121 I have set out extracts from that document in paragraph [160] above. Further, as I have noted in paragraph [114](c) above, that document indicates that the delegate considered the application and assessment “detailed above”, which details include “SUBMISSION BY Elrico Koeberg 22 January 2021”.122 This appears to be the document to which Mr Elks refers, namely a document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg”. [174] As I have noted in paragraph [114](d) above, it: (a) contains a box that refers to eight overlays and six overlay categories, which includes “Biodiversity areas overlay” but does not refer to the High ecological significance strategic sub-category of the Biodiversity areas overlay as an overlay category; (b) states “Version 16.00/2019 of Brisbane City Plan 2014 was the relevant version applicable at the time of lodgement of the application”; and (c) contains a statement that “The proposal has been assessed against the below. assessment benchmarks under version 16.00/2019 of Brisbane City Plan 2014”, which statement is followed by a box that identifies the “Biodiversity Areas Overlay Code” but otherwise contains no statement indicating the results of any assessment against that code. [175] I am not prepared to infer, as invited by Mr Elks, that the document this document was the only information on which the delegate relied in making the decision. To the contrary, the record of the delegate’s decision states that the decision was made “Having considered the application and assessment detailed above”. Reading that statement together with the attached development approval package that is referred to in the record of the delegate’s decision, I find the “the application” to include information that is additional to that referenced in document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg”. The additional information includes other information that forms part of the common material, such as the amended plans provided by Mr Elks in January 2021. [176] As such, Mr Elks’ has not demonstrated his alleged correlation between the document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg” and the decision. His third ground fails. [177] Mr Elks’ fourth ground is that the conditions 7 and 8 were not proposed, or agreed to, by him and are not “a consideration at law available” having regard to version 16 of City Plan and ss 45(7), 59(2) and 65 of the Planning Act 2016. He says that the Council’s reliance on the Biodiversity overlay code in version 17 of City Plan is erroneous as there was no entitlement to give it weight. In that respect, Mr Elks’ allegation is premised on an assertion that the amendments to City Plan did not come into effect until after the Council was obliged to have made a decision. 121 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 254. 122 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, p 254. -- 52 of 64 -- 53 [178] Part 5 of the Development assessment rules stipulates when an assessment manager is permitted to decide a development application. It relevantly states: “21 When this part starts 21.1 The assessment manager cannot decide the application until parts 1, 2, 3 and 4, as relevant to the application, have ended. 21.2 Despite section 21.1, if parts 2, 3 and 4 are not relevant to the application, the assessment manager may end the confirmation period by giving a decision notice. 21.3 If part 2 and part 4 are not relevant to the application and the assessment manager does not make an information request under part 3, the period stated under section 22 starts the day after part 1 ended.” (emphasis added) [179] The decision complied with s 21.1 of the Development assessment rules in that it was not made until after parts 1, 3 and 4 ended (namely either 6 or 7 April 2020). By that time, version 17 of City Plan was in effect. The Council was entitled to give it such weight as it considered appropriate. [180] Mr Elks also has not discharged the onus with respect to the balance of this contention for reasons explained elsewhere herein. In short, Mr Elks has not demonstrated that: (a) there is a defect in the development assessment process that invalidates the decision made by the Council; (b) the Council was obliged to obtain his consent to impose conditions; (c) the Council was not entitled, in the exercise of its discretion, to give version 17 of City Plan such weight as it considered appropriate; and (d) the conditions are invalid by reference to s 65 of the Planning Act 2016. [181] Mr Elks has not demonstrated any of his alleged defects in the Council’s decision or its decision notice. Do the established non-compliances render the relevant acts invalid? [182] Mr Elks submits that the Council’s non-compliances with the development assessment process sound in invalidity of the confirmation notice, the information request and the decision notice. His submission is founded on the mandatory terms in which s 59(2) of the Planning Act 2016 is expressed. [183] As was observed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,123 to determine whether there is a legislative purpose to invalidate an act done in breach of a provisions it is necessary to have regard to the language of the relevant provision and the scope and object of the whole statute.124 123 [1998] HCA 28; (1998) 194 CLR 355. 124 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388- 9 [91] and 390 [93] (citations omitted). -- 53 of 64 -- 54 [184] Here, that calls for consideration of the Development assessment rules in conjunction with the Planning Act 2016. [185] In paragraphs [88] to [93] above, I note those textual indicators that indicate that there is no legislative purpose to invalidate a confirmation notice that is required to be given under s 2.2 of the Development assessment rules but which is given in breach of s 2.3 of the Development assessment rules. The only indication to the contrary to which Mr Elks points is the use of the word “must” in s 59(2) of the Planning Act 2016. I am not persuaded that alone indicates a legislative intent to invalidate every act that fails to achieve complete compliance with the Development assessment rules. Section 68(2)(b) of the Planning Act 2016 provides a very strong contrary indication. [186] For those reasons, Mr Elks has not persuaded me that the confirmation notice was invalid. Consequently, he has not persuaded me: (a) that pt 1 of the Development assessment rules ended prior to 20 November 2019; or (b) that the Council’s information request made 4 December 2019 is invalid; or (c) that his response to the information request given on 5 February 2020 is of no effect and is irrelevant to the development assessment process. [187] As for the other alleged defects in the development assessment process, as they have not been established by Mr Elks, it is unnecessary to consider whether, if established, such defects would have sounded in invalidity. Should the Court make the declarations sought in the exercise of its discretion? [188] The relief Mr Elks seeks is discretionary. Even if Mr Elks had established all his allegations, before granting the relief sought the Court must still ask itself whether, in the exercise of the discretion, the declarations should be made. [189] For the reasons explained above, Mr Elks has not established an entitlement to the declarations that he seeks in paragraphs i) a., b. and c. and ii) of the prayer for relief in the Amended Originating Application. [190] That said, even if he had, I would not exercise the discretion to grant the relief sought for three reasons. [191] First, Mr Elks has not persuaded me that the Council’s conduct: (a) involved deliberate delay “in an effort to capture the Applicant with the new amendment”;125 or (b) was an “attempt to manipulate timelines, in an attempt to capture the Applicant under new legislation”; or (c) was “an authorised attempt to impose harsh, unjust and unreasonable conditions”; or 125 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [70(d)]. -- 54 of 64 -- 55 (d) was contrived and involved manipulation of the development assessment process.126 [192] Second, even if the Council had given a confirmation notice at the first available opportunity and indicated in the confirmation notice that it did not intend to make any information request, under s 21.1 of the Development assessment rules, the Council would have not been permitted to decide Mr Elks’ development application before 29 November 2019. This is because the development application required public notification. That part of the process, at a minimum, would have taken 15 business days.127 [193] As such, even if the development assessment process progressed in the most expedient manner, the Council would have been entitled to give such weight as it considered appropriate to version 17 of City Plan.128 [194] Third, Mr Elks voluntarily participated in the development assessment process without challenge. Under s 13.2(c) of the Development assessment rules, Mr Elks could have responded to the information request by indicating that he did not intend to provide any of the requested information. He chose not to adopt that course. Instead, he provided the ecological report referred to in paragraph [119] above. Mr Elks also chose to amend his plans and provide further information in response to Council’s correspondence between 27 May 2020 and 22 January 2021. He was not obliged to do so. Is the Council’s decision to impose conditions 7 and 8 invalid by reason of s 65 of the Planning Act 2016? [195] In paragraphs i) d. and e. of the prayer for relief in the Amended Originating Application, Mr Elks seeks the following relief: “i) A declaration pursuant to Division 3, Section 11 of the Planning and Environment Court Act 2016, that the decision notice dated 22 January 2021, with reliance upon s 65 of the Planning Act 2016, make conditions 7 and 8 a nullity; for any, or all of the following reasons: … d. That conditions 7 and 8, are not reasonable nor relevant to the application as required by law, under s 65 or the Planning Act 2016; and/or e. That such a decision, could not have been made by any reasonable assessment manager based upon the evidence before them and their statutory obligations under the assessment process, being the assessment of relevant consideration and not that of any irrelevant considerations.” 126 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [69]. 127 Planning Act 2016 s 53. 128 Planning Act 2016 ss 45(7) and (8). -- 55 of 64 -- 56 [196] Mr Elks’ written and oral submissions provide further detail about these allegations.129 Recourse to those submissions confirms that the focus of Mr Elks’ allegations in these paragraphs is conditions 7 and 8 of the decision notice. The submissions also reveal that, in large measure, Mr Elks’ case in relation to this issue involves a challenge to the merits of the Council’s decision,130 including by reference to reports that post-date the Council’s decision.131 [197] This proceeding is not a merits appeal. The Court has no power to review the correctness of the Council’s decision and replace it with its own decision. Mr Elks must establish a basis to judicially review the decision of the Council to impose conditions 7 and 8. [198] To the extent that Mr Elks advances arguments about the legality of the decision, his case is that: (a) the Council considered irrelevant matters, namely the Biodiversity overlay code under version 17 of City Plan; (b) the Council considered irrelevant matters, namely the material about the development application provided by Mr Elks in response to the Council’s: (i) information request, including that information referred to in paragraph [119] above; and (ii) further advice about the application referred to in paragraphs [131] to [143] above; and (c) the decision to impose conditions 7 and 8 is legally unreasonable. [199] I do not accept Mr Elks’ allegations that the Council considered irrelevant matters for the reasons already provided above. [200] The relevant legal principles governing the exercise of the power to review a decision on the ground of legal unreasonableness were helpfully set out by Bond J in Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport.132 I gratefully adopt His Honour’s analysis, the tenor of which is set out in paragraphs [201] and [202] below. [201] In Francis v Crime and Corruption Commission & Anor133 Fraser JA (with whom Morrison JA and Mullins J agreed) observed, in relation to the unreasonableness ground of judicial review, that: (a) it involved a stringent test, and was rarely established; (b) it did not sanction a review on the merits; 129 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument; Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022) 47-53. 130 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [93], [94], [95], [96], [97], and [101]. 131 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [93(b)]. 132 [2019] QSC 124, [155]-[162]. 133 [2015] QCA 218, [33]. -- 56 of 64 -- 57 (c) it was not made out merely if the Court disagrees with an evaluative decision or with the weight attributed to a factor taken into account in the decision; (d) in Flegg v Crime and Misconduct Commission & Anor:134 (i) McMurdo P had expressed the test, with reference to Minister for Immigration and Citizenship v Li,135 as being:136 “whether the ... decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered”; and (ii) Gotterson JA (with whom Margaret Wilson J agreed) noted that in separate reasons in Minister for Immigration and Citizenship v Li,137 French CJ reminded that:138 “the ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision- maker”; (e) the Court’s task was to examine the reasoning of the impugned decision to determine whether it was a decision that could be justified even though “reasonable minds could reasonably differ” or whether the decision was so unreasonable that it lacked an evident and intelligible justification. [202] In Minister for Immigration and Border Protection v SZVFW & Ors,139 Griffiths, Kerr and Farrell JJ observed:140 “The following general principles may be extracted from the three leading authorities [of Minister for Immigration and Citizenship v Li,141 Minister for Immigration and Border Protection v Singh142 and Minister for Immigration and Border Protection v Stretton143 (further general guidance is provided by the Full Court’s decision in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158): • there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J); 134 [2014] QCA 42. 135 [2013] HCA 18; (2013) 249 CLR 332, 362-7 [63]-[76]. 136 Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, [3]. 137 [2013] HCA 18; (2013) 249 CLR 332, 362-7 [63]-[76]. 138 Flegg v Crime and Misconduct Commission & Anor [2014] QCA 42, [16]. 139 [2017] FCAFC 33; (2017) 248 FCR 1. 140 Minister for Immigration and Border Protection v SZVFW & Ors [2017] FCAFC 33; (2017) 248 FCR 1, 12-3 [38]. 141 [2013] HCA 18; (2013) 249 CLR 332. 142 [2014] FCAFC 1. 143 [2016] FCAFC 11. -- 57 of 64 -- 58 • nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J); • the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ and at [76] per Griffiths J); • the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]); • in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J); • legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J); • the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ); • where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).” (emphasis added) [203] Under s 63 of the Planning Act 2016, in deciding the development application the Council had a broad discretion to: (a) approve all or part of the development application; or (b) approve all or part of the development application the application, but impose development conditions on the approval; or (c) refuse the development application. -- 58 of 64 -- 59 [204] The power to impose development conditions was subject to the statutory provisions about lawful conditions in chp 3, pt 3, div 3 of the Planning Act 2016, wherein s 65 of the Planning Act 2016 relevantly provides: “65 Permitted development conditions (1) A development condition imposed on a development approval must— (a) be relevant to, but not be an unreasonable imposition on, the development or the use of premises as a consequence of the development; or (b) be reasonably required in relation to the development or the use of premises as a consequence of the development.” [205] With respect to the scope of this provision, in Trask & Anor v Moreton Bay Regional Council (No. 2)144, in the context of a merits appeal, this Court observed: [21] Whether conditions are reasonably required, for s 65(1)(b), involves a consideration of the proposed development and the changes that the development is likely to produce.145 The condition must be a reasonable response to the change in the existing state of things.146 [22] A condition that is not “reasonably required” in respect of a proposed development may nevertheless be “relevant” if it maintains proper standards in local development or in some other legitimate planning sense, such as where it is reasonably imposed in the interests of rational development of the area.147 The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition.148 It also must not be an unreasonable imposition on the development or use of premises as a consequence of the development.149 The requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use.150 [23] Even if a condition is one that can be legitimately imposed having regard to the constraints in s 65 of the Planning Act 144 [2021] QPEC 7; [2022] QPELR 52. 145 Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, 113; Proctor v Brisbane City Council (1993) 81 LGRA 398, 401-4; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14]. 146 Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, 303; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14]. 147 Proctor v Brisbane City Council (1993) 81 LGRA 398, 404; Wise v Maroochy Shire Council [1999] 2 Qd R 566, 571; Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, 153. 148 Proctor v Brisbane City Council (1993) 81 LGRA 398, 404. 149 See s 345(1)(a) of the Sustainable Planning Act 2009. 150 Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [16]. -- 59 of 64 -- 60 2016, there is no obligation to do so unless it is required to secure compliance with an assessment benchmark. The assessment manager, and this Court on appeal, retains a residual discretion to otherwise determine what lawful conditions should be imposed.151 The discretion is not to be exercised capriciously. Regard must be had to all relevant considerations, including relevant provisions of the planning documents.152 Improper considerations must be disregarded. As was noted by His Honour Judge Rackemann in Intrapac Parkridge Pty Ltd v Logan City Council:153 “… That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority.154 In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Div 2 of Pt 5. That includes assessment by reference to the planning scheme.” [24] The result must not offend against common sense and the conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land.155 The condition must be fair and reasonable in the circumstances of the particular case.”156 (emphasis added, original footnotes) [206] As the cases referred to above note, legal unreasonableness is a stringent test that is rarely established. In this case, the task confronted by Mr Elks is not made any easier by the absence of a statement of reasons and the absence of evidence from the Council delegate who made the decision. 151 Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5]. 152 Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [9]; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 67 [93]; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, 499-500. 153 [2014] QPEC 48; [2015] QPELR 49, 55 [24] citing Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92; [2010] QPELR 148. 154 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 54-6 [56]-[58] and 67 [93]. 155 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 86-8 [152]-[157]. 156 Trask & Anor v Moreton Bay Regional Council (No. 2) [2021] QPEC 7; [2022] QPELR 52, 58-9. -- 60 of 64 -- 61 [207] Mr Elks advances three arguments in support of his allegation that the conditions are invalid. [208] First, Mr Elks invites me to find that: (a) conditions 7 and 8 are not relevant as: (i) the document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg” states: “The proposal demonstrates compliance with the assessment benchmarks, including Brisbane City Plan 2014 and the State Planning Policy 2017 …” (ii) the conditions sterilise two entire blocks, half by a covenant for environmental purposes and the rest by standing block from infrastructure access, making then undevelopable or saleable;157 (b) conditions 7 and 8 are an unreasonable impost as two entire blocks are unusable and sterilised from development for no purpose;158 and (c) conditions 7 and 8 are not reasonably required as the document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg” states that the development application demonstrates compliance with the assessment benchmarks and, as such, the conditions serve no beneficial purpose.159 [209] I am not prepared to make those findings. [210] As I have already noted in paragraph [175] above, I am not prepared to infer that the only information on which the delegate relied in making the decision was the document titled “Notice about Decision Assessment Report (s63 Development Application) Submission by Elrico Koeberg”. Further, and in any event, reading the whole document, it can be inferred that compliance is achieved by approving the development with the conditions proposed in the development approval package. [211] I am also not persuaded that the conditions will result in the alleged sterilisation. The plans show proposed lots 4 and 5 with a building envelope of similar size to proposed lots 2 and 3. [212] Mr Elks’ second argument is that the covenant required under condition 8 would prohibit construction of: (a) the dividing retaining wall between proposed lots 4 and 5; and (b) the stormwater access and sewage discharge designed to cater for proposed lots 4 and 5 that were the subject of engineering design provided to the Council.160 157 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [86]. 158 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [86]. 159 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [86]. 160 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [90]. -- 61 of 64 -- 62 [213] Mr Elks says that the effect of conditions 7 and 8 is to cut off access to sewer and stormwater infrastructure. He says that is totally irreconcilable with the approved plans that require the construction of that infrastructure.161 He says that this demonstrates that the conditions are not a reasonable response to the change occasioned by the development. [214] This second contention is not borne out by a fair reading of condition 8. Condition 8(b) requires the preparation of a covenant that must address the exclusion of retaining walls, one-site stormwater infrastructure, on-site wastewater treatment from the covenant area. However, the condition only requires exclusion of such structures and infrastructure “unless otherwise specified in this development approval or subsequent approvals from Council”. [215] Mr Elks’ third argument is that the Council relied on no ecological investigation or report to support the conditions imposed. As I have already noted, the evidence before me does not include a statement of reasons nor was the Council delegate called to give evidence. As such, Mr Elks has not demonstrated the full extent of the information that was relied on by the Council in reaching its decision. Mr Elks has not established this argument. [216] For reasons already explained, the Council was entitled to give version 17 of City Plan, including the Biodiversity overlay code, such weight as it considered appropriate. [217] Further, conditions 7 and 8, and the approved drawings referred to therein, are consistent with the recommendations contained in the ecological assessment provided by Mr Elks and other plans provided by Mr Elks before the Council’s decision.162 Those documents form part of the common material to which the Council was entitled to have regard in assessing and deciding the development application.163 Reading the document titled “Decision by Delegate of Council” as a whole, including the attached development approval package, it can inferred that the Council relied on the information provided by Mr Elks, which included an ecological report. [218] As such, I am satisfied that the Council’s decision to impose conditions 7 and 8 falls within the range of legally and factually justifiable outcomes. [219] For the reasons provided above, this ground of challenge to the decision notice is not made out. 161 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]; Court Doc. No. 12, Respondent’s Outline of Argument, [90] and [100(f)]. 162 Court Doc. No. 11, Certificate of Chief Executive Officer under s 232 of the City of Brisbane Act 2010, pp 164-83, 202 and 283. 163 Planning Act 2016 ss 45(5), 59(3); Planning Regulation 2017 s 31(1)(g). -- 62 of 64 -- 63 Should the Court grant the relief sought by Mr Elks’ with respect to an adverse planning change and compensation? [220] In paragraphs iii) and v) of the prayer for relief in the Amended Originating Application, Mr Elks seeks: (a) a declaration that, under s 30 of the Planning Act 2016, the effect of the Citywide amendment — Biodiversity overlay in Brisbane City Plan 2014 (“City Plan”) version 17, which came into effect on 29 November 2019: (i) is a “public purpose change” under s 30(3) of the Planning Act 2016; and, as such (ii) is an “adverse planning change” under s 30(2) of the Planning Act 2016; and (b) an order under s 31(2) of the Planning Act 2016 that compensation be payable to Mr Elks for an “adverse planning change”.164 [221] During oral submissions, I sought assistance from Mr Elks about the basis on which he contends such relief falls within the Court’s jurisdiction under s 11 of the Planning and Environment Court Act 2016. In my exchanges with Mr Elks, he appeared to appreciate the potential difficulties with how he framed his relief. He acknowledged that the relief he sought may not be within the Court’s jurisdiction under s 11 of the Planning and Environment Court Act 2016.165 In those circumstances, this issue can be dealt with in short measure. [222] The relief sought by Mr Elks relates to the compensation provisions in chp 2, pt 4, div 2 of the Planning Act 2016. Section 30 of the Planning Act 2016 establishes that chp 2, pt 4, div 2 applies to an adverse planning change, which is defined as a planning change that reduces the value of an interest in premises.166 Section 30(4) of the Planning Act 2016 also contains a lengthy list of planning changes that are not adverse planning changes. For example, an adverse planning change is not a planning change that is made to reduce a material risk of serious harm to persons or property on the premises from natural events or processes such as bushfires, coastal erosion, flooding or landslides.167 [223] Under ss 30, 31, and 32 of the Planning Act 2016, determining whether a change to a planning scheme is a “public purpose change” and an “adverse planning change” requires many factual determinations to be made. The same is true for a determination about whether compensation is payable. [224] As I have observed in paragraph [13] above, the focus of declaratory proceedings is on the legality of a decision rather than its merits. Declaratory proceedings afford a 164 Court Doc. No. 12, Respondent’s Outline of Argument, [25]; Court Doc. No. 18, Applicants Response to Outline of Respondents Argument, [119(a)]. 165 Transcript of Proceedings Elks v Brisbane City Council (Planning and Environment Court of Queensland, 126 of 2022, Kefford DCJ, 15 July 2022), 14-6. 166 Planning Act 2016 div 2, s 30(2). 167 Planning Act 2016 div 2, s 30(4)(e)(i). -- 63 of 64 -- 64 means of reviewing the lawfulness of local government decision-making.168 This is not the exercise that the Mr Elks seeks the Court to undertake.169 [225] The relief sought in paragraph (iii) of the prayer for relief in the Amended Originating Application is not framed as a matter “done, to be done or that should have been done” for the Planning Act 2019, nor does the declaration seek an interpretation of the Planning and Environment Court Act 2016 or the Planning Act 2016. [226] Further, Mr Elks submissions do not attack the legality of any decisions made by the Council about whether the change to Brisbane City Plan reflected in version 17 is a “public purpose change” or an “adverse planning change”. This is unsurprising as it is accepted that the Council has not made any such determinations. [227] As such, the relief sought in paragraph (iii) of the prayer for relief in the Amended Originating Application does not fall within the jurisdiction of the Court under ss 11(1)(a) or (b) of the Planning and Environment Court Act 2016. [228] The Court also does not have jurisdiction to grant the relief sought in paragraph (v) of the prayer for relief in the Amended Originating Application. Although the Court may stand in the shoes of the original decision-maker and order payment of compensation in an appeal commenced under s 229 and sch 1, s 1(4) and table 2, item 4 of the Planning Act 2016, this is not such a proceeding. The Court does not have original jurisdiction with respect to claims for compensation. [229] From Mr Elks’ submissions, it appears that Mr Elks’ complaint is that the Council refused to accept a claim for compensation that he says he made under s 31(2) of the Planning Act 2016. It is unnecessary to determine whether a declaration that the Council should have accepted Mr Elks’ claim for compensation falls within the Court’s jurisdiction. This is because it is not the relief sought by Mr Elks, nor is it the case that the Council came to meet. [230] In those circumstances, I am not prepared to grant the relief sought by Mr Elks in paragraphs (iii) and (v) of the prayer for relief in the Amended Originating Application. Conclusion [231] For the reasons provided above, Mr Elks has not discharged the onus. The application is dismissed. 168 See Massie & Ors v Brisbane City Council [2007] QCA 159, [40]. 169 Court Doc. No. 18, Applicants Response to Outline of Respondents Argument. -- 64 of 64 --