Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 [2021] QPELR 987

SUPREME COURT OF QUEENSLAND CITATION: Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 PARTIES: BRISBANE CITY COUNCIL (applicant) v YQ PROPERTY PTY LTD ACN 621 809 783 (respondent) FILE NO/S: Appeal No 3757 of 2020 P & E Appeal No 1409 of 2019 DIVISION: Court of Appeal PROCEEDING: Application for Leave Planning and Environment Court Act ORIGINATING COURT: Planning and Environment Court at Brisbane – [2020] QPEC 2 (Everson DCJ) DELIVERED ON: 17 November 2020 DELIVERED AT: Brisbane HEARING DATE: 27 August 2020 JUDGES: Fraser and Morrison JJA and Henry J ORDERS: 1. Leave to appeal refused. 2. The applicant will pay the respondent’s costs of the application to be assessed on the standard basis if not agreed. CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – DISCRETION OF CONSENT AUTHORITY – where the respondent lodged a development application with the applicant Council to construct multiple townhouses in a low-density residential zone – where the application was properly made at a time where multiple townhouse developments were permitted in low-density residential zones under the Brisbane City Plan 2014 – where, after the conclusion of the hearing before the primary judge, but before judgment, the applicant Council resolved to amend the Brisbane City Plan 2014 to prohibit the development of multiple townhouse developments in low-density residential zones – where the learned primary judge allowed the respondent’s appeal and approved the development – where the applicant complains that the learned primary judge did not take the amendments into account as required by the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 -- 1 of 16 -- 2 – whether the learned primary judge properly considered the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 – whether the principle in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 should be given determinative weight ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the development proposed by the respondent involved the removal of four native trees – where the learned primary judge characterised the four native trees as “unremarkable” – where the applicant Council complains that the learned primary judge’s description of the trees as “unremarkable” was made without evidence – where the applicant Council contends that the relevant provisions of the Biodiversity Overlay Code within the Brisbane City Plan 2014 should be interpreted to require the blanket protection of native trees – whether the learned trial judge erred by describing the trees as “unremarkable” – whether the learned trial judge erred by allowing the respondent’s appeal and approving the development notwithstanding the destruction of the four native trees Planning Act 2016 (Qld), s 45, s 45(5)(a), s 45(5)(b), s 45(7), s 45(8), s 60, s 60(3) Planning and Environment Court Act 2016 (Qld), s 46, s 63 Sustainable Planning Act 2009 (Qld) (repealed), s 326(1)(b) Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; [2019] QPEC 16, cited Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41, cited Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, considered Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209, distinguished Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266; [1994] QCA 2, cited Mathers v North Sydney Council [2000] NSWLEC 84, distinguished Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523; [2018] QCA 146, cited Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289, considered Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306; [1996] QCA 226, applied COUNSEL: D R Gore QC, with M J Batty, for the applicant C L Hughes QC, with K W Wylie, for the respondent SOLICITORS: City Legal, Brisbane City Council for the applicant MacDonnells Law for the respondent -- 2 of 16 -- 3 [1] FRASER JA: I agree with the reasons for judgment of Henry J and the orders proposed by his Honour. [2] MORRISON JA: I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes. [3] HENRY J: The applicant (“the Council”) seeks leave to appeal a decision of the Planning and Environment Court allowing an appeal against the Council’s refusal of a development application by the respondent company (“YQ”). [4] The application confronts the obstacle that the decision of the primary judge involved a reasoned exercise of discretionary decision-making, applying well settled principles. In its quest to avoid that obstacle, the Council ultimately attempted to deny the existence of any real discretion in respect of two aspects of decision-making below. The argument as to each is untenable. Leave to appeal should not be granted. Background [5] YQ’s development application was properly made on 8 January 2019. It sought a development permit for a material change of use and building work involving the construction of multiple townhouses on four adjoining lots of residential land in Holland Park in a low-density residential zone. The Council refused the application on 17 April 2019. YQ appealed that decision to the Planning and Environment Court. [6] The original proposal was to build 25 four-room townhouses on the site. That proposal appears to have been modified during the course of the appeal below, apparently after some intervention by the learned primary judge,1 to a plan to build 23 four-room dwellings. [7] A consequence of the modification was that three “significant trees” were retained instead of one “significant tree”. It remained contentious, in light of the relevant Biodiversity Areas Overlay Code, that four other significant trees would need to be removed in order for the development to proceed. [8] The other contentious issue, relevantly to the present application, was the significance of foreshadowed changes to the applicable planning scheme. On 4 September 2018, prior to the lodgement of YQ’s development application, the Council resolved to amend its city plan to remove provisions allowing multiple dwellings in low residential zones. Nonetheless the planning scheme which applied for the purposes of the appeal before the primary judge remained version 13.00/2018 of the Brisbane City Plan 2014. It was the relevant scheme in force at the time YQ Property made its application on 8 January 2019.2 The hearing before the learned primary judge concluded on 5 February 2020, with judgment reserved. Soon after the conclusion of the hearing, on 11 February 2020, the Council resolved to adopt the “Major H Planning Scheme Amendment”, also known as “Amendment Package H”. That amendment, once made, would have the effect of prohibiting multi-unit dwellings from being built in low-density residential zones. This was a relevant consideration in the appeal, pursuant to the so-called Coty principle, prompting the learned primary judge to entertain further written submissions. 1 Applicant’s Amended Outline of Argument, [7]. 2 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [14]. The learned primary judge recognised, and the applicant admits, that subsequent amendments to the “biodiversity overlay mapping” were insignificant: Applicant’s Amended Outline of Argument, [3]. -- 3 of 16 -- 4 [9] In the upshot, despite the need for the removal of the trees and despite the resolution amending the planning scheme, the learned primary judge reasoned that the appeal should be allowed (subject to the imposition of appropriate lawful conditions). The application for leave [10] Section 63 Planning and Environment Court Act 2016 (Qld) provides an appeal to this Court may be made with its leave and “only on the ground of error or mistake in law or jurisdictional error”. [11] The reasons said to now justify the granting of leave are: “1. The Primary Court Judge erred in law in respects that were material to his decision. 2. The proposed appeal raises questions of general importance about the application of the Coty principle … 3. But for the errors made by the Primary Court Judge, significant vegetation on the land the subject of the proposed development would be preserved, consistently with the Biodiversity Overlay Code of the Brisbane City Council.” [12] The grounds sought to be agitated by the Council, if granted leave, allege subsets of errors. For the purposes of considering leave, they may be summarised as two core grounds, namely: (1) there was a misapplication of the Coty principle; and (2) there was a misapplication of the Biodiversity Areas Overlay Code regarding the significant trees. [13] The applicant’s amended outline of argument put these as four grounds, itemising the second complaint as two separate grounds (“The BOC misinterpretation errors” and “The significant tree errors”) but arguing them in combination. This reflects the proposed notice of appeal, were leave to be given. It is also contended there was a failure to give adequate reasons in connection with the issues involved in the above two complaints but integrated argument about that into discussion of the two core grounds. These reasons will take a similar approach. The statutory context [14] The appeal to the Planning and Environment Court was by way of hearing anew.3 Section 46(2)(a) Planning and Environment Court Act 2016 (Qld) required that the Planning and Environment Court apply s 45 Planning Act 2016 (Qld), a section dealing with the assessment process, as if the Planning and Environment Court were the assessment manager for the development application. [15] Section 45 Planning Act 2016 (Qld) provides: “45 Categories of assessment (1) There are 2 categories of assessment for assessable development, namely code and impact assessment. 3 Planning and Environment Court Act 2016 (Qld) ss 43, 46. -- 4 of 16 -- 5 (2) A categorising instrument states the category of assessment that must be carried out for the development. (3) A code assessment is an assessment that must be carried out only— (a) against the assessment benchmarks in a categorising instrument for the development; and (b) having regard to any matters prescribed by regulation for this paragraph. (4) When carrying out code assessment, section 5(1) does not apply to the assessment manager. (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. (8) However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to— -- 5 of 16 -- 6 (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.” (underlined emphasis added) [16] It is relevant to note, particularly for the purposes of considering argument about the Biodiversity Areas Overlay Code, that YQ’s application required an impact assessment, referred to at s 45(5). Importantly, while s 45(5)(a) requires the assessment must be carried out against assessment benchmarks, s 45(5)(b) allows the assessment to be carried out having regard to any other relevant matter. [17] Relevantly to consideration of the Coty principle it is noteworthy s 45(7) requires that the assessment manager “must” assess the development application by reference to the statutory instrument or other document “as in effect when the development application was properly made”. The alleged misapplication of the Coty principle [18] There have from time to time been cases where an amended or new statutory instrument or related document is under consideration at the time of the assessment manager’s decision but has not yet come into effect. The Council had passed Amendment Package H but it had not yet come into effect at the time of the primary judge’s decision. If it had, then s 48(8) would have allowed it to be given the weight the assessment manager “considers is appropriate”. In circumstances where such amendments are yet to take effect the so-called Coty principle has application. [19] In Coty (England) Pty Ltd v Sydney City Council4 a new local planning scheme, which had been submitted by the council for approval, would, if it were in effect, have meant that the industrial development proposed by Coty (England) Pty Ltd could not be allowed even with the consent of the local council. Hardie J, sitting as a judge of the Land and Valuation Court of New South Wales, gave weight to that circumstance in dismissing the appeal against the Council’s refusal of the development. In so doing, his Honour observed: “It is important, in the public interest, that whilst the respondent council’s local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl. 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing 4 (1957) 2 LGRA 117. -- 6 of 16 -- 7 any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.”5 (emphasis added) [20] The reasoning in the above passage is the so-called Coty principle. It has been repeatedly referred to by courts across Australia, including in Queensland.6 The Council is correct to submit that a failure to consider, or the misapplication of, the Coty principle when presented as a real issue bearing on the merits of a dispute can constitute an error of law.7 [21] The Coty principle identifies two public interest considerations when considering development applications in an era when a new planning scheme is under consideration but not yet taken effect. Each was separately described by Hardie J in the passage quoted above as “important, in the public interest”. Both share the underlying policy that completely ignoring a draft plan would “frustrate, and tend to diminish public confidence in, the planning process”.8 It is convenient to discuss these public interest considerations from the perspective of a court hearing an appeal from an assessment manager, though the Coty principle also applies to that original decision maker. [22] It is conceivable that on the facts of a particular case one or other of those considerations may attract such significant weight as to have a determinative effect on the outcome. Importantly however, neither are expressed as inevitably determinative considerations. That is unsurprising because their relative significance will vary from case to case, depending upon the circumstances of each case. [23] The first public interest consideration is the avoidance, as far as possible, of a judgment which would render more difficult the ultimate decision as to the form the planning scheme should take. The rationale behind that consideration is the desirability of the court not making a decision on a planning appeal in circumstances where it would make the democratic process surrounding the development of a new planning scheme more difficult.9 This first consideration, sometimes referred to as the “non-derogation principle”,10 was not relevant below. That is because Council’s decision had already been made by the time the learned primary judge delivered his reasons. The process by which the draft scheme would in due course become law only remained “a formality”.11 5 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, 125. 6 See eg. Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266; Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306. 7 See, Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523. 8 Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 329. 9 See also, Terrigal Grosvenor Lodge Pty Ltd v Gosford Shire Council (1972) 25 LGRA 450, 456–7. The use of the term “democratic” reflects the current arrangements for the making of a planning scheme. The Coty principle would still have operation, and indeed developed, in a system where the final decision was reserved to the Governor-in-Council. 10 A Fogg, Land Development Law in Queensland (Law Book Company, 1987) 162; Thomson Reuters, Planning and Development Queensland (service at 21 September 2020) [PA60.05]. 11 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [45]. While ultimately irrelevant to the determination of the appeal, during the hearing of this application evidence was tendered to confirm that on 1 May 2020 Amendment H was incorporated into the Brisbane City Plan 2014: Ex 1, Ex 2. -- 7 of 16 -- 8 [24] The second public interest consideration in the Coty principle is that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation. This consideration allows the court to take into account the terms of a draft scheme or other planning instrument before that draft instrument has entered into force. It is a concession to the reality that planning is an ongoing process and that it is unwise to ignore the future direction of a planning scheme when the development the subject of the application will have to co-exist with whatever that future direction might be. It is this second consideration which the Council submits the learned primary judge either misunderstood or failed to properly take into consideration. [25] Senior counsel for the applicant Council suggested the second consideration be referred to as the “decision in consonance principle”. While such terminology is convenient, it tends to obscure the fact Hardie J articulated the second consideration as a relevant public interest consideration in arriving at a judgment, not as mandating that the judgment must accord with the draft planning scheme. These reasons will continue to refer to it as the second public interest consideration. [26] The Council’s complaint that the learned primary judge failed to consider the second public interest consideration invokes a comparison of the language used in Coty and the language used by the primary judge. In particular, the Council points to the following paragraph of his Honour’s reasons and alleges that they only involve consideration of the first public interest consideration, not the second consideration: “Where there are already numerous multiple dwellings in the vicinity of the site, the proposed development is well designed and exceeds numerous benchmarks with respect to site cover, density, and deep planting, the overall impacts of the proposed development will, in my view be minimal in terms of the amenity of the neighbourhood. Indeed I have found there will be an enhancement of ecological values. Conversely, the amendments contemplated by package H have city- wide effect. They are not focussed particularly on the area where the site is located. Accordingly, I am of the view that the proposed development will not either cut across to a substantial degree the planning strategy evident in the amendment or make it more difficult for the respondent and the court to give effect to this planning strategy in the future. Given the matters discussed above, I do not consider it appropriate to give effect to package H.” (emphasis added) [27] The words “cut across to a substantial degree” were also used by Hardie J in Coty when his Honour applied his statement of principle to the facts before him. Hardie J said: “An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned “Residential – Class C”. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced -- 8 of 16 -- 9 with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter.”12 (emphasis added) [28] The Council invited this Court to find that Hardie J, when using the words “cut across to a substantial degree”, was applying the first public interest consideration within his Honour’s statement of principle. Therefore, the Council argues, when the learned primary judge used the phrase “cut across to a substantial degree” in the reasons for judgment below, he was applying the first public interest consideration and ignoring the second public interest consideration.13 This argument’s literal approach to interpreting the words of Hardie J and the learned primary judge should be approached with some circumspection, lest it obscure an understanding of the concepts each sought to express.14 However, even undertaking such a literal comparison, the Council’s submission cannot be accepted. [29] The sentence in which the words “cut across to a substantial degree” appear in Hardie J’s reasons, on a proper reading, is concerned with the second public interest consideration.15 It is concerned with respecting the “considered conclusion” of the respondent council in that case; in other words, taking the council’s decision into account as a matter of weight (so much is clear from the guarded words “having regard to the circumstances of the case”). It is the following sentence, beginning “Furthermore, it would make the ultimate decision more difficult…”, that appears to deal with the first public interest consideration, namely interfering with the proper process of decision making by the Minister.16 It follows that on the literal comparison urged by the Council the learned primary judge used the term “cut across to a substantial degree” in a manner consistent with its use by Hardie J and was applying the second public interest consideration. [30] Quite apart from that literal comparison it is apparent the concepts sought to be expressed by the learned primary judge’s reasons were relevant to the second public interest consideration. His Honour acknowledged the effect of Amendment Package H was to remove provisions allowing multiple dwellings in low density residential zones.17 However, his Honour had regard to the existence of other multiple dwelling developments, contrasting this matter with a case where the intended development would permanently change the desired character and amenity of the local area. He observed: “The proposed development will merely be another multiple dwelling development in an area where there are many, including another on similarly zoned land in the same block and another on the opposite street. …[D]espite the mixed character of the area in terms of the uses which are present, detached dwelling houses predominate and this will continue to be the case even if the proposed development proceeds.”18 12 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, 125-126. 13 T1-7–8 LL40–03. 14 Cf. Comcare v PVYW (2013) 250 CLR 246, 256 [15]–[16]. 15 During the hearing counsel for the Council conceded that the relevant passage in Coty is open to this reading. 16 In New South Wales at the time Coty was decided it was the Minister who ultimately was the repository of the legislative function for approving or disapproving the rezoning: Coty at 124. 17 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [45]. 18 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [48]. -- 9 of 16 -- 10 [31] The relevance of such considerations to the second public interest consideration within the Coty principle makes it obvious proper consideration was given to it by the learned primary judge. [32] Thus, both the literal words of his Honour’s reasons and the concepts thereby expressed, dispense with the complaint that the reasons given in connection with the application of the Coty principle in the case were inadequate. [33] The Council also submitted that, if the second public interest consideration was applied below, it must have been misapplied because it should have been given “significant and determining weight”.19 The learned primary judge’s reasons show he did have regard to the second public interest consideration, along with a variety of other relevant considerations. It was a matter for his Honour to assess the weight to be given to the variety of competing considerations and it was open to his Honour to allow the appeal, notwithstanding the relevance of the second public interest consideration. [34] This was quite different from a case in which a development like the factory in Coty’s Case would so fundamentally alter the residential suburb as to bespeak obvious dissonance with the new planning scheme. The decision to allow a multiple dwelling development akin to others already dotted about a suburb in which detached dwelling houses will continue to predominate was reasonably open to his Honour. Indeed, that such predominance would continue told against a lack of consonance with the new planning scheme. [35] The Council ultimately submitted in effect that the second public interest consideration must as a matter of law be given determinative weight, mandating that the relevant judgment must accord with the draft planning scheme. Such an extreme submission goes beyond the articulation by Hardie J of the Coty principle as two public interest considerations, the relative significance of which will, as mentioned above, depend upon the facts of the case. The Council relies upon a number of subsequent New South Wales cases but none support its extreme submission. [36] The Council’s urging of the words “determining weight” is borrowed from Detita Pty Ltd v North Sydney Council,20 an ex tempore decision of Lloyd J sitting on the Land and Environment Court of New South Wales. The Council relies upon his Honour’s remark that a draft instrument which had “certain and imminent” status “must be regarded as being at an advanced stage and should be afforded determining weight”.21 However, this was not the primary basis of his Honour’s decision. His Honour thought that he was bound to apply the North Sydney Local Environmental Plan 2001, as opposed to the North Sydney Local Environmental Plan 1989, because of his interpretation of a clause dealing with “Heritage Provisions” of the 2001 plan that essentially had retrospective effect (the 2001 plan had entered into force by the time of the hearing, though it was in a draft stage at the time the development application was made). If he was wrong on that narrow issue of interpretation, his Honour would have taken the provisions into account on the basis that they were required to be treated as a draft under a transitional provision. His Honour’s use of the phrase “determining weight” was merely a single line in an ex tempore judgment, 19 Applicant’s Amended Outline of Argument, [27]–[29]. 20 [2001] NSWLEC 209. 21 [2001] NSWLEC 209, [11]. -- 10 of 16 -- 11 unnecessary to his Honour’s ultimate conclusion and premised upon an understanding of transitional provisions in a statutory instrument.22 It was not an extension of the Coty principle. [37] The Council also relies upon Mathers v North Sydney Council.23 That case again dealt with the transition between the North Sydney Local Environmental Plan 1989 and the 2001 Plan (then in its draft state). For present purposes it is sufficient to note that Talbot J thought the draft plan should be given “significant weight”. The Council highlights his Honour reasoned, “[a]ccording to the significant weight that needs to be given to the draft [local environment plan], the application must fail”.24 The conclusion “the application must fail”, when read in the context of the judgment, merely reflects that balancing all of the relevant factors his Honour decided to dismiss the application. That his Honour accorded the draft plan significant weight in that process was a product of the circumstances of that case and did not involve any extension of principle. [38] Finally, the Council submits the New South Wales Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council25 approved a “stream of cases”, including Detita and Mathers, which support the argument a draft instrument must be given determinative weight. [39] Terrace Tower Holdings Pty Ltd v Sutherland Shire Council was concerned with the effect of s 79C(1)(a)(ii) Environmental Planning Assessment Act 1979 (NSW). That provision allowed a “consent authority” to take into consideration “any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority…”. The controversial issue before the Court of Appeal in that case was the effect of a transitional provision in a Local Environment Plan. The application was made when the 1993 Plan was in place. By the time the appeal was heard in the Land and Environment Court the 2000 Plan had come into force. A transitional provision in the 2000 Plan, cl 4(1), provided that any development application that was made but had not been finally determined before the 2000 Plan had come into effect should be decided according to the old plan, however, the decision maker should treat the 2000 Plan as though it were a draft. The “stream of cases” approved in Terrace Tower Holdings were cited when discussing the proper way for a decision maker to approach this intellectual task, namely to treat the “draft” as though it were “certain and imminent” and give it as much weight as that status deserves, which may be significant weight in an appropriate case. The “stream of cases” only inform that specific conceptual process, not how much weight must be given to the draft scheme in an individual case. [40] In Terrace Tower Holdings, Spigelman CJ and Mason P each recognised that the greater the certainty a draft instrument will be adopted the greater the weight that may 22 In Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290, Lloyd J recognised that he gave the draft scheme “determining weight” in the circumstances of Detita: at [28]. However, his Honour went on to observe that phrases such as “determining weight” are not the end of the matter: at [30]. The statutory regime his Honour was concerned with in both Detita and Blackmore Design specifically included a saving clause which preserved the operation of the earlier scheme. Accordingly, despite it being proper to treat a draft scheme as imminent and certain, “that does not mean that there is no further inquiry”. His Honour’s reasons in Blackmore go on to reflect the draft scheme was just one of the many factors his Honour took into account when allowing the appeal in that case. 23 [2000] NSWLEC 84. 24 [2000] NSWLEC 84, [55]. 25 (2003) 129 LGERA 195. -- 11 of 16 -- 12 be given to that draft.26 However, they likewise recognised consent may be granted to a development which does not comply with a draft instrument.27 In remarks clearly at odds with the extreme submission of the Council in the present case, Mason P observed the “decision to give LEP 2000 significant (but not determinative) weight in the circumstances was a matter for his Honour”.28 [41] The extreme submission of Council is also clearly at odds with Queensland authority. In Yu Feng Pty Ltd v Maroochy Shire Council, the Queensland Court of Appeal was confronted, not for the first time, with the same submission.29 In rejecting it Fitzgerald P explained: “Yu Feng’s submission with respect to the ‘Coty principle’ is plainly incorrect; it is not supported by the authorities, and is in direct conflict with at least two decisions of this Court [Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266; Mount Marrow Blue Metal Quarries v Moreton Shire Council [1996] 1 Qd R 347]. Coty establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed. and [sic] usually will be only one of the factors to be considered, although in a particular case it might be decisive.” (some citations omitted, emphasis added) [42] Further to the perennial lack of success of the Council’s extreme submission in Queensland, the submission is at odds with the relevant statutory framework for at least two reasons. [43] First, the starting position under s 45(7) Planning Act 2016 is that the assessment manager (or the Planning and Environment Court on appeal)30 must assess the development application “against or having regard to the statutory instrument … as in effect when the development application was properly made”. As noted above, this Court has previously proceeded on the basis this provision does not eliminate the Coty principle.31 But to invariably accord a draft scheme determinative weight would be at odds with the express statutory obligation to assess a development application by reference to the instrument in operation at the time the application was made. [44] Second, it will be recalled s 45(8) Planning Act provides the assessment manager may give new instruments which have taken effect the weight considered appropriate. In the present case, s 45(8) did not apply because, although there were only formalities remaining, Amendment Package H had not actually become law when the learned primary judge decided the case. If matters had been so advanced that s 45(8) did 26 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, 199 (Spigelman CJ), 204 (Mason P). 27 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, 199 (Spigelman CJ), 204 (Mason P). 28 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, 206. 29 Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 328. 30 Planning and Environment Court Act 2016 s 46(2)(b). 31 Nerinda Pty Ltd v Redland City Council [2019] 1 Qd R 523, [11]. -- 12 of 16 -- 13 apply, s 45(8) only allowed that the primary judge “may” have given the amended instrument the weight the judge considered appropriate. The retention of such discretion after a new instrument is in effect is inconsistent with Council’s position that at an earlier stage the draft instrument is of determinative effect. [45] For all of these reasons the extreme submission of the applicant is untenable. That it has previously been rejected by this court makes it a singularly undeserving vehicle for a grant of leave. Alleged misapplication of the Biodiversity Areas Overlay Code regarding the significant trees [46] The Council submits the learned primary judge misinterpreted a provision of the “Biodiversity Overlay Code”, Performance Outcome 6 (“PO6”). That provision provides: “Development ensures that ecological features and ecological processes, koala habitat trees, areas of strategic biodiversity value and wetlands within the General ecological significance sub-category area are protected, conserved and restored to ensure the area’s long-term viability.” [47] Pursuant to the relevant trail of definitions, “ecological features” included seven native trees present on the site. This was described by his Honour as “the only identified issue of ecological significance”.32 The site had ecological values that were “generally low” according to the evidence of each party’s expert ecologist.33 However, the learned primary judge recognised that the development would have an impact on the seven native trees. There was a joint arborists’ report that rated the three trees that were to remain as “very good specimens” and the four that were to be removed ranged from “good” to “fair” specimens. These were to be removed if the development was approved. In light of the proposed removal, the Council contends his Honour erred in reasoning the development should be approved. [48] In reaching his decision his Honour took account of the overall ecological impact of the development. In addition to discussing PO6 and the proposed removal of the four trees, he also discussed the proposed rehabilitation of the site through planting and landscaping. He observed: “The appellant proposes significant deep planting including three compensatory Eucalyptus tereticornis (Queensland Blue Gums) which Mr Moffitt is confident will achieve a minimum of a 12m canopy and a 15m height. It is proposed the deep planting and landscaping will establish a prominent green spine through the site using native species in deep planting and landscaped areas. Mr Moffitt envisages the rehabilitation of the site through the proposed planting program, replacing current weed species which are not of any particular ecological value, with native species endemic to the landscape which would provide movement pathways for fauna, such [as] possums, gliders, birds and bats. Therefore on the facts before me the most significant native vegetation on the site will be retained and the ecological values of the site will be enhanced through the proposed deep planting and landscaping. In these circumstances the minor non- 32 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [33]. 33 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [26]. -- 13 of 16 -- 14 compliance with the identified assessment benchmarks in the Biodiversity Overlay Code does not justify a refusal of a proposed development.”34 This was, in effect, a conclusion that on the facts of this case, despite the loss of the four trees, the development would actually deliver a net gain in the ecological quality of the site. [49] His Honour’s reasons emphasised, as “a relevant matter” under s 45(5)(b) Planning Act, “the extent to which the proposed development confers ecological benefits”. In discussing those benefits his Honour noted: “[N]ot only will the most significant and valuable native trees be preserved but there will be a notable improvement of native flora site coverage as a consequence of the deep planting and landscaping plans which are discussed above”.35 [50] His Honour went on to observe how the deep planting would utilise 30 per cent of the site, comparing that to the minimum 10 per cent referred to at AO32 of the Multiple Dwelling Code. In a similar vein he noted the development’s favourable proportion of site cover and dwelling density in comparison to the Multiple Dwelling Code. The Council complains this contradicts cl 1.5 of the Planning Scheme, relating to the hierarchy of assessment benchmarks.36 That clause has the effect that in the event of an inconsistency between the Biodiversity Areas Overlay Code and the Multiple Dwelling Code, the former prevails over the latter to the extent of the inconsistency. [51] His Honour’s observations did not contradict cl 1.5, indeed they were not even impliedly touching on an issue of inconsistency between Codes. Rather they were highlighting the extent to which ecologically relevant aspects of the proposed development exceeded other assessment benchmarks. This approach was consistent with cl 5.3.3 of the Plan which provided at paragraph 5(b) of impact assessment that “assessment is to have regard to the whole of the planning scheme, to the extent relevant”. It was also simply another way of developing the point that despite the loss of the four trees the proposed development would, considered in totality, substantially enhance the ecology of the site. [52] After his Honour discussed the ecological benefits of the proposed development, he contrasted those benefits with the fact “there is no significant non-compliance with the planning scheme other than the extent to which it contemplates the removal of four unremarkable native trees”.37 [53] The Council submits there was no evidence for his Honour’s conclusion that the four native trees slated for removal were “unremarkable” and there was thus was an error of law. The submission elevates his Honour’s use of the word “unremarkable” out of the context in which it was used. His Honour well appreciated and had earlier acknowledged the significance of the four trees under the Biodiversity Areas Overlay Code. By this point he was, in conclusion, juxtaposing the relative significance of the non-compliance inherent in the trees’ removal with the significance of the matters in favour of approval. There was no error in his conclusion. 34 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [35]. 35 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [38]. 36 RB 2 Vol 2 pp 80-81. This hierarchy was explained earlier in his Honour’s reasons at [14]. 37 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [40]. -- 14 of 16 -- 15 [54] His Honour earlier observed:38 “I accept that the Moreton Bay Fig, a very large tree, is highly visible, and that the Queensland Brush Box and the Pink Bloodwood are particularly significant to the site and the wider community, with trees of their size and species in the developed urban environment an extreme rarity. While I accept that the other four trees are considered significant flora species pursuant to Table 8.2.4.3.C of the planning scheme, and therefore, ecological features as defined therein, that does not in my view, entitle them to blanket protection as a consequence of PO6 and PO9 of the biodiversity areas overlay code.” (citations omitted, emphasis added) [55] The Council submits PO6 required the native trees to be “protected, conserved and restored” and the primary judge therefore erred in concluding the four trees were not entitled to “blanket protection”.39 [56] Considered in context his Honour’s observation merely reflected that he was cognisant on the one hand that the proposed development did not fully comply with PO6 and on the other hand that it was not a determinative consideration. The observation does not evidence error. To the contrary, it bespeaks an entirely orthodox exercise of his Honour’s discretion in which he did not put as much weight on the PO6 non-compliance as he did on other considerations. [57] The above analysis demonstrates his Honour gave ample reasons in explanation of his decision. There is no substance to the complaint that the reasons given in connection with the application of the Biodiversity Areas Overlay Code were inadequate. [58] As with the Council’s approach to the Coty principle, once it is appreciated its complaints about various aspects of his Honour’s reasoning have no prospect of demonstrating an error or mistake in law, the Council is left relying upon another extreme submission. The effect of that submission is that a PO6 non-compliance is an inevitably determinative consideration, mandating that the development should not have been approved. [59] Such an extreme submission is clearly incorrect. The ultimate decision called for when making an impact assessment under s 45 and s 60 Planning Act is a broad, evaluative judgment. It will be recalled that while s 45(5)(a) requires the assessment must be carried out against assessment benchmarks, s 45(5)(b) gives the assessment manager broad warrant to have regard to “any other relevant matter”. [60] The reservation to the decision-maker of that element of discretion in carrying out an impact assessment fits with s 60(3) Planning Act, which relevantly provides: “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 38 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [34]. 39 YQ Property Pty Ltd v Brisbane City Council [2020] QPEC 2, [34]. -- 15 of 16 -- 16 (b) to approve all or part of the application, but impose development conditions on the approval; or (c) to refuse the application.” [61] Section 60(3) simply requires the assessment manager, after carrying out the impact assessment, to approve all or part of the application or to do so imposing conditions or to refuse the application. It thus stipulates the potential decision outcomes without proscribing which decision should be reached. [62] The Act’s approach in respect of code assessments is slightly different in that s 45(3) does not include reference to “any other relevant matter” but s 60(2) expressly confers the assessment manager with the discretion to approve the application “even if the development does not comply with some of the assessment benchmarks”. The inter- play of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument.40 [63] None of this is to suggest the nature and extent of an application’s inconsistency with a planning instrument might not end up being a determinative consideration against approval in an individual case, depending upon the circumstances of that case. However, a case like the present, in which an inconsistency with the Biodiversity Areas Overlay Code was outweighed by the overall ecological benefits of the development, well illustrates the utility of the discretion which the Planning Act reserves to the assessment manager. [64] The extreme submission of the Council is so obviously at odds with the statutory scheme as to be untenable. Conclusion [65] While these reasons have necessarily ventilated the absence of merit in what the applicant would seek to advance if leave were granted this is not a case in which I would on that account grant leave but refuse the application. [66] The applicant’s argument about the application of the Coty principle and the Biodiversity Areas Overlay Code complained of some features of the primary judge’s reasoning which clearly did not involve errors of law. This left the applicant in each instance relying upon extreme arguments to the effect that the Coty principle and the Biodiversity Areas Overlay Code are of inevitably determinative consequence when it was clear that could not be correct. [67] Applications which are unable to advance a tenable ground of error or mistake in law ought not be granted leave. [68] I would order: 1. Leave to appeal refused. 2. The applicant will pay the respondent’s costs of the application to be assessed on the standard basis if not agreed. 40 Compare the position under s 326(1)(b) Sustainable Planning Act 2009 (repealed), which required an assessment manager’s decision “must not conflict with a relevant instrument” other than in proscribed circumstances. For an explanation of the significance of the move to the less proscriptive approach of the Planning Act, see Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793 (Williamson QC DCJ). -- 16 of 16 --