Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QCA 281 [2023] QPELR 389

SUPREME COURT OF QUEENSLAND CITATION: Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QCA 281 PARTIES: CANNON HILL INVESTMENTS PTY LTD AND AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD TRADING AS AUSTRALIAN COUNTRY CHOICE GROUP (ACC) (applicant) v MALT BREWING COMPANY PTY LTD TRADING AS REVEL BREWING COMPANY ACN 616 916 128 (first respondent) BRISBANE CITY COUNCIL (second respondent) DUNHILL PROPERTIES PTY LTD ACN 602 466 339 (third respondent) FILE NO/S: Appeal No 7722 of 2021 P & E No 3596 of 2020 DIVISION: Court of Appeal PROCEEDING: Application for Leave Planning and Environment Court Act ORIGINATING COURT: Planning and Environment Court at Brisbane – [2021] QPEC 30 (Everson DCJ) DELIVERED ON: 14 December 2021 DELIVERED AT: Brisbane HEARING DATE: 25 November 2021 JUDGES: Morrison and Mullins JJA and Callaghan J ORDERS: 1. Application for leave to appeal refused. 2. Application to adduce further evidence refused. 3. The applicant pay the respondents’ costs of and incidental to the application for leave to appeal and the application to adduce further evidence. CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where an application was made for a Development Permit for a Material Change of Use to repurpose a portion of a State Heritage listed building into a brewery and associated restaurant – where the Food and Drink Outlet was proposed to support and promote a brewery and was to comprise 250 m² gross floor area and an -- 1 of 9 -- 2 additional 180 m² of external dining area – where the Council accepted the development application and issued a confirmation notice – where the applicant filed an originating application in the Planning & Environment Court seeking declarations that the development application was for impact assessable development rather than code assessable development – where the Planning & Environment Court dismissed the application – whether the development application was impact assessable rather than code assessable – whether the proposed development exceeded 250 m² gross floor area – whether the decision of the Council to approve the development application was in jurisdictional error Planning and Environment Court Act 2016 (Qld), s 63 COUNSEL: D R Gore QC, with B G Rix, for the applicant C Hughes QC, with M J Batty and S J Hedge, for the first and third respondents J G Lyons and R Yuen for the second respondent SOLICITORS: Kinneally Miley Law for the applicant Thynne + Macartney Lawyers for the first and third respondents Brisbane City Council for the second respondent [1] MORRISON JA: On 6 November 2020 Malt Brewing Company Pty Ltd lodged a development application with the Brisbane City Council, seeking a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet. [2] That was proposed to be on land owned by the third respondent at Colmslie Road, Morningside. Across the other side of Colmslie Road there is an abattoir operated by Cannon Hill Investments Pty Ltd. [3] The Development Application Form included a section entitled “Development application details”, which stated that the proposed development was to be a code assessable development seeking a development permit for a material change of use for High Impact Industry and a Food and Drink Outlet, where the proposed uses would respectively be a brewery with a gross floor area (GFA) of 538 m² and a restaurant with a GFA of 250 m². [4] The development application included a report from a town planner, which provided further details about the proposed development. In the report, the executive summary stated that the development application sought: “… a Development Permit for a Material Change of Use to repurpose a portion of a State Heritage listed building into a brewery and associated restaurant …”. [5] The report further stated that the Food and Drink Outlet was proposed to support and promote the brewery and that it was to comprise 250 m² GFA and an additional 180 m² of external dining area. [6] The report also stated that the land contained buildings that were constructed between 1917 and 1920 which were specifically designed for brewing purposes and that the proposed development “presents a unique opportunity to re-establish the original use -- 2 of 9 -- 3 within the heritage building” while also enabling the public “(by way of the Food and Drink Outlet) to experience a unique piece of Queensland’s heritage, which has not previously been accessible to the public.” [7] The development application was accompanied by some plans including one entitled “B1 Floor Plan”, which sought to delineate (in red) the “Area Primarily used for Brewery production purposes” from an area outlined in blue and described as “Area Primarily used for Food and Beverage purposes.” [8] The learned primary judge found that “this was a little ambiguous and lacking in precision given that the Food and Drink Outlet had to be less than 250m 2 to be code assessable”.1 [9] The Council accepted that the development application was properly made, issuing a confirmation notice on 20 September 2020. It confirmed that public notification was not applicable to the development application. By that step the Council demonstrated that it understood the application to be for, inter alia, a restaurant with a GFA of less than 250 m 2 . [10] Under the planning scheme,2 if the Food and Drink Outlet was for less than 250 m² then the application was code assessable, not impact assessable. That meant it did not have to be publicly notified, as it would be if it was impact assessable. [11] In any event Cannon Hill Investments Pty Ltd became aware of the application. It made representations to the Council that the development application should properly be subject to impact assessment and it took issue with the appropriateness of the proposed development. [12] On 18 December 2020, Cannon Hill filed an originating application in the Planning and Environment Court, seeking declarations that the development application was for impact assessable development, not code assessable development because: (a) it sought a development permit for a material change of use which should properly be characterised as High Impact Industry and Hotel; or alternatively (b) the GFA of the Food and Drink Outlet component of the proposed uses exceeded 250 m². [13] Orders were also sought pursuant to s 11(4) of the Planning and Environment Court Act 2016 (Qld) that all steps taken with respect to the development application after it was lodged with the Council be set aside. [14] On 23 February 2021 the Council approved the development application and issued a decision notice subject to conditions. Relevantly, the conditions included the following: “1) Maintain the Approved Development Maintain the approved development in accordance with the approved DRAWINGS AND DOCUMENTS, and any other relevant Council approval required by the conditions. … 1 Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QPEC 30, [6] (reasons below). 2 Brisbane City Plan 2014 (v20). -- 3 of 9 -- 4 3) Carry Out the Approved Development Carry out the approved development in accordance with the approved DRAWINGS AND DOCUMENTS.” [15] The “approved DRAWINGS AND DOCUMENTS” included the B1 Floor Plan submitted with the development application together with two other plans showing less precise representations of the extent of the proposed restaurant. [16] The conditions also included condition 4 in these terms: “4) Limitation of use – Food and drink outlet The approved Food and drink outlet must remain less than 250m 2 gross floor area (excluding the unroofed outdoor dining areas shown on the APPROVED DRAWINGS AND DOCUMENTS). The approved Food and drink outlet must operate per the Brisbane City Plan 2014 (v20) Table SC1.1.1.B definition of a Food and drink outlet and is limited to: (a) preparing and selling food and drink for consumption on or off the premises; or (b) providing liquor for consumption on the premises, if the use is ancillary to the use in paragraph (a). Note: The separate display and sales of pre-packaged/bottled alcoholic beverages for consumption off the premises is not permitted as part of this development approval.” [17] The application for declaratory relief was dismissed.3 The approach of the primary judge [18] The learned primary judge set out the agreed issues for the hearing of the application for declaratory relief:4 “1. Whether the development application proposed development for the use of “Hotel”, not the use of “Food and Drink Outlet”, and was therefore a development application for impact assessment development. 2. Whether the development application proposed development for a Food and Drink Outlet of 250 m 2 gross floor area or more and was therefore a development application for impact assessable development. 3. In the event that the Court finds in favour of the Applicant with respect to either or both of issues 1 and 2: (a) whether the Court should refuse relief in the exercise of its discretion; 3 Reasons below. 4 Reasons below [12]. -- 4 of 9 -- 5 (b) alternatively, whether the Court has power under s.37 of the Planning and Environment Court Act 2016 to excuse the non-compliance and whether, in the discretion of the Court, such relief should be granted.” [19] The first issue may be put to one side. The learned primary judge held that the proposed development did not come within the use of “Hotel”, and there is no challenge to that finding. [20] Therefore, the central issue below was whether the development application proposed development for a Food and Drink Outlet of 250 m 2 GFA or more and was therefore impact assessable. [21] It was uncontentious that under the planning scheme a Food and Drink Outlet use5 was only code assessable if it was “less than 250 m 2 gross floor area”. [22] Mr Neven, a director of Malt Brewing, gave evidence and was cross-examined. In his evidence he said that: (a) his consultants were directed to stay at under 250 m 2 GFA to ensure that the restaurant component of the proposed development was code assessable; (b) he intended to operate the proposed business in accordance with the conditions imposed by the development approval; (c) his business model was to have a restaurant and a production brewery and that they have a symbiotic relationship that makes his business viable; and (d) selling food was not subordinate to selling liquor; “[w]e will be operating a café/restaurant and we’ll be selling food for its primary use, and secondary to that is alcohol that comes with it …”. [23] The learned primary judge accepted Mr Neven’s evidence. On that basis his Honour made several findings:6 “I further find that it was always the intention of the first respondent to conduct a Food and Drink Outlet use of less than 250 m² GFA, that is what was intended by the development application and is what is intended to be conducted pursuant to the development approval. This is so despite the unfortunate reference in the DA Form 1 and the accompanying report to this use being 250 m² GFA rather than less than 250 m² GFA.” [24] Those findings are findings of fact which cannot be challenged in this Court on an appeal: s 63 Planning and Environment Court Act 2016 (Qld). [25] The component parts of those findings are important. His Honour found as fact that, notwithstanding the reference in the development application to the restaurant use being 250 m² GFA rather than less than 250 m² GFA: (a) it was always the intention of Malt Brewing to conduct a restaurant use of less than 250 m² GFA; 5 For ease of reference, unless necessary to do otherwise I shall refer to the Food and Drink Outlet as “the restaurant”. 6 Reasons below [20], [26] and [27]. -- 5 of 9 -- 6 (b) that is what was intended by the development application; (c) the plans submitted with the development application were ambiguous; (d) the Council assessed a purportedly code assessable development application; (e) the Council applied conditions to ensure that it did not authorise a use which was other than code assessable; and (f) it was always the intention of Malt Brewing to conduct a restaurant use of less than 250 m² GFA pursuant to the development approval. [26] That approach was consistent with authority establishing that the construction of a development approval or consent should not be done in the same way as statute or as a document drafted with legal expertise, but rather liberally and to achieve practical results.7 A fortiori that approach is applicable to a development application. [27] The learned primary judge held that there was no real controversy to be quelled given the findings referred to above. His Honour went on:8 “Although there is now evidence before me that the B1 Floor Plan which was submitted and approved by the second respondent, appears to have included a slightly larger area than 250m², I am not satisfied that this is a material consequence given the conditions attaching to the development approval.” Failure to deal with the evidence of the GFA of Areas 1-5 [28] The learned primary judge made findings of fact that, whilst the plans submitted with the development application were ambiguous, and the reference in the development application and report to a use of 250 m² was “unfortunate”: (i) Malt Brewing intended to apply for a restaurant use of less than 250 m²; (ii) that is what the development application intended; and (iii) the Council assessed a purportedly code assessable development application. What follows as an inferred fact from those findings is that the Council understood the development application to seek a restaurant use of less than 250 m², and the application was dealt with on that basis. [29] The inferred fact is, in my view, inevitable. So much is evident from the Council’s confirmation notice and approval. There was also evidence that before lodgement of the development application the Council had raised the issue of the restaurant use being less than 250 m², leading to the response that it “does not exceed 250m² of gross floor area”.9 [30] Those factual findings cannot be challenged on the proposed appeal. [31] Further, his Honour made findings that the B1 Floor Plan went beyond 250 m² GFA: see paragraph [26] above. His Honour’s reference to evidence showing that the B1 Floor Plan went beyond 250 m² GFA was to Exhibit 7.02, page 12. That is a plan10 7 See, for example, Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245, [36]; Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114, [41]; Ryde Municipal Council v Royal Ryde Homes [1970] 19 LGRA 321, 324; Weston Aluminium Pty Ltd v Environmental Protection Agency (2007) 82 ALJR 74, 77, 78; Matijesevic v Logan City Council [1984] 1 Qd R 599, 605. 8 Reasons below [26]; internal footnote omitted. 9 Town planning report, AB 64, Table 5, 1 st item. 10 AB 320. -- 6 of 9 -- 7 which shows (in blue) the area to be occupied by the restaurant, nominated on the face of the plan as 249 m². As was established in cross-examination of Mr Neven, the blue shading omitted an area to be occupied by the restaurant use, comprising a kitchen bench and shelving, and an ice machine. Those components are shown on other maps: Exhibit 7.02 pages 5 and 10,11 and in elevation form on Exhibit 7.08.12 [32] The plan also shows non-blue areas which were allocated to the brewery, totalling another 123 m². Those areas were referred to by Mr Gore QC, appearing with Mr Rix for Cannon Hill, as Areas 1-5. [33] A central contention for Cannon Hill before this Court was that the learned primary judge did not deal with the submission below, that the GFA reflected in Areas 1-5 was such that it should have been included in the GFA of the restaurant, taking it well above 250 m².13 [34] In my respectful view, that contention cannot be accepted. [35] First, the factual findings are that Malt Brewing intended to apply for a restaurant use of less than 250 m² GFA, the development application meant that, and the Council dealt with the application on that basis. That contains an implicit rejection of the contention that Areas 1-5 were or should have been included. [36] Secondly, the submissions before the learned primary judge focussed on the contention that Areas 1-5 should be added to the GFA of the restaurant. His Honour did not misunderstand that contention as shown by his Honour’s reference to the plan, Exhibit 7.02 page 12, as evidence that the B1 Floor Plan which was submitted and approved by the Council “appears to have included a slightly larger area than 250m²”. That plan was at the heart of the greater GFA contention. [37] His Honour plainly rejected the contention that the GFA of Areas 1-5 should be included in the GFA of the restaurant. The reference to the plan, namely that it “appears to have included a slightly larger area than 250m²”, could not have been made unless his Honour rejected the greater GFA contention. [38] Thirdly, the contention was that Areas 1-5 were all of such a nature that the restaurant would likely make use of them. So, for example, Area 1 consisted of a space where the brewery barrels were to be stored, but in sight of patrons in the restaurant. Therefore, it was said, that display was part of the ambience of the restaurant and should have been included as part of its use. Similar comments were made as to the other parts, such as Area 3 (the brewery cold store), Area 4 (production planning and brewery dry store) and Area 5 (the brewery dry store loading area). [39] The town planning report that accompanied the development application made it clear that the restaurant use was no more than 250 m² GFA, and the application was advanced as code assessable.14 Further, that report contained a response to the Council’s raising the question (prior to lodgement of the application) as to the restaurant use only being code assessable if it was less than 250 m² GFA. The response was that it “does not exceed 250 m² of gross floor area”.15 That response necessarily excluded Areas 1-5 as part of the restaurant use. 11 AB 313, 318. 12 AB 331. 13 Applicant’s amended outline paragraphs 10-21. 14 AB 48 (4 th para), 50, 53, 64 Table 5, 1 st item), 107. 15 Town planning report, AB 64, Table 5, 1 st item. -- 7 of 9 -- 8 [40] Further, the plans accompanying the town planning report showed Areas 1-5 in red and as being areas “primarily used for Brewery production purposes”.16 Of itself that showed that the application was not advanced on the basis that any of Areas 1-5 were to be included in the restaurant GFA. [41] Fourthly, as was meant in the development application, the Council considered it on the basis that the restaurant use was less than 250 m² GFA as defined in the planning scheme. A condition to that effect was imposed. [42] There can be no doubt that the Council was acutely aware of the controversy as to whether the restaurant use was less than 250 m² GFA. Before it approved the application: (i) it had received submissions from Cannon Hill, contending that it was greater than that, and that the application was impact assessable;17 and (ii) the originating application had been filed. [43] How much of the gross floor area of a building is occupied by the restaurant use was a question of fact, as was conceded by Mr Gore QC. The learned primary judge found that the use was intended and understood as being less than 250 m² GFA, and was approved on that basis. That necessarily excluded Areas 1-5, and was a finding of fact that the restaurant use was less than 250 m² GFA. The alleged jurisdictional error [44] Cannon Hill contended that the decision of the Council to approve the development application was infected by jurisdictional error. This followed, it was said, if the development application was for a restaurant use of a GFA other than “less than 250 m² gross floor area”. Relying on University of Queensland v Brisbane City Council18 and Public Service Association of South Australia Inc v Industrial Relations Commission (SA),19 it was contended that the question of whether an application was code assessable admitted of only one correct answer, and that answer constituted a jurisdictional fact which, if answered incorrectly, revealed an excess of jurisdiction. [45] The factual findings referred to above answer this contention. The development application: (a) was intended to be code assessable; (b) was intended to be for a restaurant use of less than 250 m² GFA; (c) meant a restaurant use of less than 250 m² GFA; (d) was understood as meaning that by the Council; and (e) was assessed and approved on that basis. [46] To the extent that the development application used incorrect words to express the GFA of the restaurant use, namely that the use was “250 m² gross floor area”, Mr Gore QC conceded that such an error could be corrected by the applicant at the instance of Council without resulting in the development application being invalid. The implicit finding of fact was that the reference to the restaurant use being “250 m² gross floor area” was a known error which was corrected. 16 AB 78. 17 Exhibit 4.12, AB 163; Reasons below [8]. 18 [2016] QPELR 654 at [12]. 19 [2012] 249 CLR 398, [2012] HCA 25, at 413 [31]. -- 8 of 9 -- 9 [47] In my view, no question of jurisdictional error arises. Exercise of the discretion [48] For the reasons given above the learned primary judge was right to conclude that no occasion arose to exercise the discretion in favour of the grant of declaratory relief. Leave to appeal should be refused. Application to adduce further evidence [49] Cannon Hill brought an application to adduce evidence in the event it succeeded on the appeal and discretionary considerations arose in this Court. The application was to tender the Temporary Local Planning Instrument No. 2 of 2021 (Colmslie Road Industry Precinct). That instrument came into force on 29 June 2021, after the decision below had been delivered. Its potential relevance was that it stipulated that an application for a Food and Drink Outlet was impact assessable. [50] Leave to appeal having been refused, the application to adduce further evidence should be refused. Conclusion [51] For the reasons given above I propose the following orders: 1. Application for leave to appeal refused. 2. Application to adduce further evidence refused. 3. The applicant pay the respondents’ costs of and incidental to the application for leave to appeal and the application to adduce further evidence. [52] MULLINS JA: I agree with Morrison JA. [53] CALLAGHAN J: I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour. -- 9 of 9 --