Ellendale (Qld) Pty Ltd LFT Ellendale (Qld) Unit Trust v Brisbane City Council [2020] QPEC 68 [2021] QPELR 1251

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Ellendale (Qld) Pty Ltd LFT Ellendale (Qld) Unit Trust v Brisbane City Council [2020] QPEC 68 PARTIES: ELLENDALE (QLD) PTY LTD LTF ELLENDALE (QLD) UNIT TRUST (ACN 628 577 819) (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 1016 of 2020 DIVISION: Planning and Environment Court PROCEEDING: Appeal against the refusal of a change application for a minor change ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 17 December 2020 DELIVERED AT: Brisbane HEARING DATE: 25 September 2020 and 13 November 2020. JUDGE: Williamson QC DCJ ORDER: Order in accordance with the draft, which was initialled and placed with the papers on 13 November 2020. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where appeal against respondent’s decision to refuse a change application for a minor change under s 78 of the Planning Act 2016 – where appellant sought an order that the appeal proceed to be heard and determined on the basis of a changed change application – whether a change can be made to a change application – whether the changes to the change application can be approved by way of conditions under s 81A of the Planning Act 2016. LEGISLATION: Planning Act 2016, ss 52, 65, 66, 77, 78, 79, 80, 81, 81A, 81B, 82 & Schedule 2 Planning & Environment Court Act 2016, ss 43, 46 & 47 CASES: Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52 Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors [2006] QPELR 490 O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Stockland Developments Pty Ltd v Thuringowa City Council (2007) 157 LGERA 49 -- 1 of 11 -- 2 COUNSEL: Mr M Connor (Sol) for the appellant Mr G Gibson QC and Mr N Loos for the respondent SOLICITORS: Connor O’Meara for the appellant City Legal for the respondent [1] This is an appeal against Council’s decision to refuse a change application made under s 78 of the Planning Act 2016 (PA). With the consent of the parties, I made orders bringing the appeal to an end on 13 November 2020. The appeal was allowed, and a minor change approved to a development approval for land situated at Canvey Road, Upper Kedron (the development approval). [2] Whilst the orders were made with the consent of the parties, the path to making those orders was not a smooth one. The parties agreed the development approval should be changed; however, not all of the agreed changes could be sourced back to a specific change sought in the application made to Council as the responsible entity. This gave rise to the following question for consideration prior to making the orders sought with the consent of the parties: Can the court, exercising its appellate jurisdiction under s 81A of the PA, approve a change to a development approval that was not sought in the change application made to the responsible entity? [3] This question was the subject of submissions by Mr Connor at a hearing on 25 September 2020. He submitted the question was answered in the affirmative having regard to s 46(3) of the Planning and Environment Court Act 2016 (PECA). As the transcript reveals, I was troubled by this submission, and not immediately persuaded it was correct. As a consequence, I invited further submissions. This invitation was taken up by both parties. The appeal was listed for hearing on 13 November 2020 so the parties could make further submissions. [4] Upon considering the affidavit material, and hearing the further submissions on 13 November 2020, I was satisfied the orders sought by the parties to give effect to the agreement reached were within power. With the consent of the parties, a draft order was initialled by me and placed with the papers. I indicated I would publish, in due course, reasons for judgment. What follows herein are my reasons. [5] The change application the subject of the appeal was made in relation to the development approval, which authorises, subject to conditions, the start of new centre activities.1 Condition 2 requires the development to be carried out generally in accordance with approved ‘drawings and documents’, which are defined by reference to a schedule of drawings and documents. One of the scheduled drawings is a ‘Landscape Concept Plan’, dated 3 September 2019. Reference to this plan reveals it was approved subject to amendments made by the assessment manager at first instance. The amendments require four of the 110 carparks identified on the plan to be used for deep planting/landscape areas and shade trees. 1 Shop, medical centre, food and drink outlet. -- 2 of 11 -- 3 [6] The amendments made by the assessment manager to the Landscape Concept Plan are consistent with condition 25 of the development approval. This condition relates to access, parking and manoeuvring requirements. Condition 25(iii) requires 106 visitor/tenant carparking spaces to be provided for the development. [7] On 6 December 2019, a change application was made to Council on behalf of Ellendale. An application of this kind is defined in s 78(1) of the PA. It is a mechanism by which a development approval may be changed after an appeal period has expired. Two categories of changes are contemplated, namely a minor change and other than a minor change. The type of change proposed informs the assessment and decision-making process that follows. Here, the change application made on behalf of Ellendale sought a minor change2 to the development approval. [8] What minor change did Ellendale’s change application seek to the development approval? [9] This question is answered reading the change application objectively, and as a whole.3 [10] The application made to Council on behalf of Ellendale included a completed Form 5, ‘Change application form’. Item 6.1 of the form requires an applicant to provide a ‘brief description of the change proposed to the development approval’. The description provided in the form reads: ‘Revised layout’. This description was supplemented by a letter dated 27 November 2019, which described, in detail, the proposed minor change. [11] An objective reading of the change application as a whole reveals approval was sought for a ‘revised layout’ where: (1) the four car parks deleted by the assessment manager at first instance on the approved Landscape Concept Plan were reinstated; and (2) compensatory landscaping was provided to replace that which would be lost as a consequence of the reinstated car parks. The compensatory landscaping was depicted in figure 3 of the letter of 27 November 2019. In support of the scope of landscaping proposed it was said: “The proposal has been revised to provide a significant amount of landscaping onsite to offset the portrayed bulk and scale of the development from both the street and other viewing angles onsite. We note that the proposal seeks to dedicate 13% of the total site area to genuine Deep Planting Areas.” [12] Ellendale’s change application was refused by Council. The decision was appealed to this court. In the context of the appeal, the parties engaged in without prejudice discussions and agreed the application should be approved. More particularly, it was agreed the four car parks deleted on the Landscape Concept Plan could be reinstated on the footing compensatory landscaping was provided in lieu. The scope of the landscaping agreed differed to that proposed in the change application. The extent of the changes to the proposed landscaping were described in an affidavit of Mr Nguyen,4 who is the town planner retained by Ellendale. He said: 2 As defined in Schedule 2 of the PA. 3 cf Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors [2006] QPELR 490, [16] and Stockland v Thuringowa City Council (2007) 157 LGERA 49, [42]. 4 Court doc # 16, paragraph 7. -- 3 of 11 -- 4 “… the changes proposed include: (a) a reduction in the width of the landscaped area along the southern boundary of the Land from 4 metres to 2.2 metres; (b) the extra width arising from the reduction in the landscaping along the southern boundary being reallocated to the landscaped ‘bookends’ in the carpark; (c) additional landscaping in the form of garden beds and a feature tree to the outdoor dining area adjacent to the “food store” and “shops”; (d) additional landscaping in the area to the west of the “plant room”; (e) an increase in the dimensions of the length of the landscaping located in the centre of the carpark from 10.5 metres to 10.8 metres; and (f) a reduction in the size of the “Diamond cut tree beds” from 1.5 metres to 1 metre; such that compensatory landscaping is accommodated across the balance of the Land.” [13] Having regard to Mr Nguyen’s evidence, I am comfortably satisfied the proposal to amend the development approval to reinstate four carparks and provide the compensatory landscaping identified in his affidavit is a minor change as defined in Schedule 2 of the PA. The question is: Whether the court has power to approve all of the agreed changes, or is limited to a decision that approves the specific changes identified in Ellendale’s change application? [14] In my view, the court has power to approve all of the changes agreed by the parties. This includes the changes contemplated for compensatory landscaping. The power to do so is not derived from a statutory provision that permits the court to consider ‘a change to a change application’. Rather, the power is derived from the power to approve the application subject to conditions, which is stated in s 81A(2)(a) of the PA. I formed this view having regard to the following matters. [15] The appeal before the court is conducted as a hearing anew5 where the assessment and decision-making framework is that applying to the responsible entity at first instance. The relevant framework is prescribed in Chapter 3, Part 5, Division 2, Subdivision 2 of the PA, which is directed to changing development approvals after all appeal periods in relation to the approval have ended.6 Sections 81 and 81A are contained in this part of the PA. Ellendale’s change application is to be assessed in accordance with the former and decided in accordance with the latter. [16] Section 81A(2) of the PA prescribes what a responsible entity must do in deciding a change application for a minor change to a development approval. The provision states: “(2) After assessing the change application under section 81, the responsible entity must decide to — 5 s 43, PECA. 6 s 77, PA. -- 4 of 11 -- 5 (a) make the change, with or without imposing or amending development conditions in relation to the change; or (b) refuse to make the change.” (emphasis added) [17] Three observations can be made about s 81A(2). [18] First, the provision contemplates that the responsible entity’s decision is based on an assessment of the ‘the change application’ under s 81. The change application to be assessed is that accepted by the responsible entity under s 79(2)(a) or (c) of the PA. [19] Second, the provision states three potential decision outcomes, namely the responsible entity: (1) makes the change; (2) makes the change subject to conditions (new or amended); or (3) refuses to make the change. The provision does not prescribe which decision should be reached in any given circumstance. [20] Third, the responsible entity’s power to make the change sought subject to conditions is to be read in conjunction with the words ‘in relation to the change’. In my view, whilst not express, the exercise of the conditions power is also to be read as constrained by ss 65 and 66 of the PA. [21] The phrase ‘in relation to the change’ calls for the demonstration of a connection between the exercise of the conditions power and the change approved by the responsible entity. Given the phrase is an expression of broad import,7 the identification of the necessary connection should not be approached narrowly, or in a restrictive way. A connection can, in my view, be founded upon a direct, or indirect, relationship between the change and the condition imposed, or amended. 8 Ultimately, whether a connection of the kind contemplated by s 81A(2)(a) is established to found the exercise of the conditions power will turn on the facts and circumstances of each case. [22] Having regard to the matters set out in paragraphs [8] to [13] and [16] to [21], I was satisfied on 13 November 2020 that a decision to make the orders sought with the consent of the parties was within the power. The orders had the effect of ‘making the change’ sought in Ellendale’s change application, namely approving the reinstatement of four carparks. To give effect to the change approved, and to address landscaping issues arising in relation to the change, conditions of the development approval were amended by the order. The conditions amended included those in relation to the landscaping, which I was satisfied have a direct connection with the change approved. The amendments made to the development approval about landscaping, as a consequence, fall within the exercise of the conditions power conferred in s 81A(2)(a) of the PA. [23] Whilst Ellendale and Council invited me to proceed on the footing discussed in paragraph [22], they each, at various times, advanced alternative submissions. Each of the alternatives advanced were intended to persuade me that the court had power to consider a change to Ellendale’s change application in the way a change to a development application is considered under s 46(3) of the PECA. 7 O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 374. 8 O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 376. -- 5 of 11 -- 6 [24] Ellendale, in an application in pending proceeding filed on 21 September 2020, sought an order that the appeal proceed to be heard and determined on the basis of a ‘changed change application’. Central to Ellendale’s application was a contention that s 46(3) of the PECA applied to the appeal and empowered the court to consider a change to the change application. This provision states: “(3) The P&E Court can not consider a change to the development application unless the change is only a minor change to the application.” [25] Whilst Mr Connor ultimately abandoned reliance upon this argument, I observe that s 46(3) of the PECA has no application to an appeal about a change application for a minor change. This, in my view, is clear having regard to two considerations. [26] In the first instance, s 46(3) applies to a change to a ‘development application’, which is a different species of application to that before the court. It is defined in the PECA by reference to Schedule 2 of the PA. In that Act, a ‘development application’ is defined as an application for a development approval. This is not the character of the application presently before the court. Ellendale’s application is a ‘change application’ in relation to an extant development approval, which is defined by reference to s 78(1) of the PA. [27] Second, if it was the legislature’s intention that s 46(3) of the PECA have application to the present appeal, it would be reasonable to expect that such an intention would be stated or, alternatively, emerge from statutory context. There is no such intention expressed in the PECA or PA. Nor is there any supporting context in the PECA or ss 77 to 81B of the PA to suggest an alternative conclusion should be drawn.9 [28] Council, through Mr Gibson QC and Mr Loos, advanced a different alternative. They submitted the court has power to consider a change to a change application. This was said to arise under s 46(4) of the PECA, which states: “(4) The P&E Court can not consider a change to the development approval the subject of a change application under the Planning Act, section 78, unless the change is only a minor change to the approval.” [29] I do not accept that the ordinary meaning of s 46(4) contemplates the court may consider a change to a change application in the way s 46(3) provides for a development application. Section 46(4) of the PECA would need to be expressed in different language to convey this meaning or intention. [30] Further, if the plain meaning of the provision is to be read as facilitating a change to a change application, this begs the question: What extent of change may be considered by the court before a fresh application is required? Section 46(4) provides no answer to this question, unlike s 46(3) in relation to a development approval. In my view, this is an indicator that s 46(4) has nothing to do with a change to a change application for a minor change. 9 This is to be contrasted with s 82(2)(a)(ii) and (b) of the PA with respect to a change application for other than a minor change. These provisions contemplate that a change application for other than a minor change is to be administered, assessed and decided by reference to relevant provisions and as if it were the original development application inclusive of the changes. -- 6 of 11 -- 7 [31] The meaning to be attributed to s 46(4) is as I have recently discussed in Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52. I repeat what was said at paragraph [60] of the reasons (footnotes omitted): “Section 46(4), in the context of the scheme of the PA and PECA, is properly understood as a constraint applying to the court when determining an appeal about a change application for a minor change (as defined) to a development approval. In this sense, the provision serves to confirm that the court, in exercising its appellate function, does so by reference to the same limitation applying to the responsible entity at first instance. The limitation requires the extent of any change considered by the court to be a minor change as defined. The need for the limitation is clear. If the court, exercising its appellate function, considers a change that falls outside of the definition, it has the consequence that a materially different assessment and decision making framework applies to that change. It is a framework that the decision maker at first instance did not apply. Section 46(4) puts beyond doubt that such an outcome is not intended.” [32] To accept the construction advanced on behalf of the Council, words need to be read into s 46(4) of the PECA. This is what Mr Gibson QC and Mr Loos invited me to do. They submitted the provision should be read as if it were expressed as follows: “The P & E Court can not consider a change to a change application under the Planning Act, section 78, in respect of a development approval unless the change is only a minor change to the approval.” [33] In summary terms, Mr Gibson QC and Mr Loos submitted it was permissible to read s 46(4) of the PECA in this way: (1) given the court in Catterall held the ordinary meaning of the provision is absurd; (2) because it accords with its plain and ordinary meaning; (3) because it is supported by immediate and broader statutory context; and (4) because this is required to avoid inconvenience. I do not accept these submissions establish that s 46(4) of the PECA should be construed as submitted on behalf of Council. This is so for the following reasons. [34] As to item (1) in paragraph [33], I do not accept that the plain meaning of s 46(4) of the PECA is ‘absurd’ when appreciated in its proper context. The meaning to be ascribed to the provision is that discussed in paragraph [60] of Catterall. That meaning does not sit comfortably with Council’s submissions in this case. This is in circumstances where Mr Gibson QC and Mr Loos did not submit Catterall was wrongly decided and should not be followed. [35] Further, Council’s submissions, in my view, misstate the reasoning in Catterall. In that case, the point raised for consideration was whether s 46(4) of the PECA, on its face, precluded the court in the exercise of its appellant jurisdiction from considering a change application for other than a minor change. Whilst I accepted that s 46(4), if read in isolation, may be read in this way, I held that such a construction would be absurd. It would render an appeal right conferred by the PA a futility. This led to the provision being construed in the manner discussed at paragraph [60] of the reasons, which is set out above. The meaning ascribed to s 46(4) of the PECA at paragraph [60] of Catterall is its plain and ordinary meaning. No words need to be read into the provision to give effect to that meaning. -- 7 of 11 -- 8 [36] As to item (2) in paragraph [33], the plain words of s 46(4) of the PECA do not suggest the provision is relevant to a change to a change application. To suggest otherwise requires the provision to be re-drafted in a manner that impermissibly alters its meaning. [37] As to item (3) in paragraph [33], I do not accept there is any immediate, or broader, statutory context that supports re-drafting s 46(4) of the PECA in the manner contended by Council. [38] Starting with immediate context, s 46 of the PECA is about the nature of an appeal. It has six subsections. None of the six subsections evince an intention, or reflect a policy, that would suggest s 46(4) should be construed as contended by the Council. [39] I pause to observe that Council placed particular reliance on s 46(3) of the PECA as relevant context to support its position. That reliance was misplaced. For the reasons given in paragraph [26], the subsection relates to changes to development applications. It has nothing to do with a change application for a minor change to a development approval. As a consequence, the provision does not evince any relevant contextual, or policy, consideration having application to s 46(4) of the PECA. [40] Section 47 of the PECA can also be considered for immediate context. The provision sets out the powers of the court in deciding an appeal. It comprises three subsections. None of the subsections evince a contextual, or policy, consideration to support a conclusion that s 46(4) of the PECA should be construed as Council contends. [41] Context provided by the PA is also relevant. It points to a contrary conclusion to the one urged upon me by Council. [42] The statutory framework for the administration, assessment and determination of a change application is contained in Chapter 3, Part 5, Division 2, Subdivision 2 of the PA. There is no provision in this part of the PA that provides a mechanism by which a responsible entity may accept, administer and decide a changed change application for a minor change. The absence of any such mechanism is telling because the legislature have included such an mechanism in the PA where intended. For example, an applicant may change a development application under s 52 of the PA. The legislature has only provided for the ability to withdraw,10 rather than change, a change application for a minor change. [43] The absence of an express mechanism to change a change application is fairly regarded as relevant, and significant, context once it is also appreciated that: (a) there is no provision in Chapter 3, Part 5, Division 2, Subdivision 2 of the PA that prescribes when11 a responsible entity may accept and decide a changed change application for a minor change after it is accepted under s 79(2); and (b) there is no provision in Chapter 3, Part 5, Division 2, Subdivision 2 of the PA that prescribes the impact of the change, in a procedural sense, for the statutory assessment and decision-making framework. 10 s 81B, PA. 11 Compare with s 52(1), which requires a change to be made before the application is decided. -- 8 of 11 -- 9 [44] In relation to (b), it can be observed, by way of example, that there is no provision in the PA like s 52(3) applying to a change to a change application. This provision states that: “If the change is a minor change, the change does not affect the development assessment process.” [45] This is not the only example that can be identified. There are no provisions of the PA that prescribe: (1) the impact of a change, if any, on the time provided in s 81A(4) of the PA for the responsible entity to decide the change application; (2) the impact of the change, and the continued relevance of response notices already given under s 80(4); and (3) the extent of change that is anticipated and permitted before the assessment and decision making process stops, and recommences from the beginning. [46] As to item (4) in paragraph [33], the Council submitted that its construction of s 46(4) of the PECA should be preferred because it avoids inconvenience and impractical outcomes for parties to a proceeding. In particular, it was submitted that an inability to make changes to a change application would result in: (a) the parties being discouraged from engaging in without prejudice negotiations; (b) applicants having to restart the process from the beginning, even where an agreed outcome had been reached; and (c) lesser development outcomes achieved because parties cannot fully resolve the issues in dispute in the proceeding. [47] The matters of inconvenience and impracticality raised by the Council are overstated and are not persuasive. [48] As a starting point, it is not credible, in my view, to submit that the ability to change a change application is fundamental to a party’s ability to resolve the issues in dispute in an appeal such as the present. The appeal right granted under the PA is in relation to ‘the change application’. Parties to the appeal are free to negotiate about the disputed issues to resolve the appeal, be it in whole or part. As experience shows, resolutions that are reached in this court without a hearing are directed towards improved development outcomes. There is nothing other than mere speculation to suggest this will no longer be the case in the absence of an ability to change a change application. The speculation is, in any event, contrary to experience. [49] That an applicant may have to restart the change application process from the beginning to make a change to an approval does not, in any event, persuade me Council’s construction of s 46(4) of the PECA should be accepted. This is because the inconvenience does not arise as a consequence of the construction of s 46(4) of the PECA. This provision does not preclude the parties from resolving disputed issues. The inconvenience arises on Council’s submission because a hypothetical applicant wishes to seek approval for something other than the change application made to the responsible entity at first instance. That is to say, it wishes to use the appeal as a vehicle to achieve an objective that goes beyond what the change application can achieve having regard to the decision making power conferred in s 81A(2) of the PA. Once this is appreciated, any suggested inconvenience loses its force. -- 9 of 11 -- 10 [50] Further, it can be accepted, as a general proposition, there will be inconvenience for an applicant who elects to resolve an appeal such as the present in a way that results in a fresh change application being made to a responsible entity. I am not satisfied this inconvenience warrants re-drafting s 46(4) of the PECA in a way that departs from its plain meaning. This is because inconvenience is a relative concept. I do not regard the level of inconvenience to which the Council refers here as cause for serious concern. So much is clear having regard to relevant context. [51] A change application for a minor change under the PA is a fast-tracked mechanism12 to change an extant development approval. That it is fast-tracked is confirmed by the assessment and decision-making rules, particularly s 81A of the PA. This provision sets out, inter alia, a mandatory timeline for assessing and deciding the change application. The timeline is short in duration. The truncated nature of the process is also confirmed by the absence of an express power: (1) for an applicant to change the change application; and (2) for the responsible entity to make a formal information request. Once this is appreciated, the inconvenience to which Council refers is unpersuasive. It is particularly unpersuasive when considered in contrast to the alternative – absent the ability to make a change application, an applicant would be required to repeat the entire development application process, including public notification if relevant, to affect the same change to an approval. A development application would likely involve considerable disadvantages in terms of time and cost for an applicant in comparison to a new change application under s 78 of the PA. [52] In paragraph [2] above, I posed the following question that arose for consideration prior to making final orders in the appeal: “Can the court, exercising its appellate jurisdiction under s 81A of the PA, approve a change to a development approval that was not sought in the change application made to the responsible entity?” [53] For the reasons given above, this question is answered, in my view, in this way: 1. The court cannot consider a change to a change application for a minor change in the manner s 46(3) of the PECA permits for a development application; 2. The court can approve a change to a development approval not sought in a change application, provided the change is the product of the exercise of the conditions power conferred in s 81A(2) of the PA; and 3. The conditions power conferred by s 81A(2) of the PA, whilst permitting the court to approve changes not sought in the change application, is constrained by, inter alia: (a) the requirement to demonstrate a connection between the condition and the change approved, as discussed in paragraph [21]; (b) ss 65 and 66 of the PA; and 12 In comparison to the development application assessment and decision-making process under the PA. -- 10 of 11 -- 11 (c) s 46(4) of the PECA, namely that any change approved through the exercise of the conditions power must be a minor change as defined in Schedule 2 of the PA. -- 11 of 11 --