PLANNING LAW COMPLETES FULL CIRCLE IN JUST TWO YEARS
It has to be acknowledged that all professionals in the Planning Law jurisdiction earn their money, particularly when one considers the 360-degree rotation of the Planning Law regime in just two years.
In the 2018 seminal decision of Bell v Brisbane City Council, the Queensland Court of Appeal clearly emphasised the over-riding importance of a Local Authority’s Planning Scheme (in fact, any planning instrument) such that “… a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land…”
Thus, an assessment of a development application was required to not conflict with the planning instrument unless there were “sufficient grounds to justify the decision despite the conflict”.
The Court of Appeal in Bell made it clear that “sufficient grounds” was a very high standard to be met since the public interest requires confidence in the wording and intent of a planning scheme.
One could be forgiven for thinking that such strident Court authority would therefore be able to be relied on by all involved in the planning and development industry. But it didn’t take long for the Court of Appeal itself to make qualifying statements about what would be “sufficient grounds”. For instance, in Nerinda Pty Ltd v Redland City Council, the Council itself argued its own impending Planning Scheme, about to be adopted after the usual extensive investigation and implementation process, was already out of date and should be ignored! Remarkably, the Court accepted that argument.
Then, to further confuse matters, the Planning Act 2016 (“PA”) came into effect from 1 July 2017 with the consequence that planning assessment has been turned on its head, at least for Impact Assessible development. Section 45 of the PA makes it clear that any Code Assessible application must comply with the relevant assessment benchmarks and the relevant planning instrument (usually the relevant Planning Scheme); but Impact Assessible development must be assessed against the relevant assessment benchmarks and may also be assessed against “…any other relevant matter…”.
Numerous decisions of the Planning and Environment Court considering section 45 have concluded that the assessment manager now has a very broad discretion to consider “site specific benefits of a proposed development”.
A comprehensive statement of the planning assessment regime under the PA was delivered by Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council where he said “It will be a matter for the assessment manager… to determine how, and in what way, non-compliance with an adopted statutory planning control informs the discretions. … it should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal”.
And now, the Court of Appeal in two decisions in the week of 17 November 2020 has confirmed the very broad discretion of the assessment manager in assessing Impact Assessible development applications.
In both decisions, the Court of Appeal endorsed Judge Williamson’s analysis in Ashvan.
So, in less than two years, consideration of a development opportunity, either for or against, has undergone a 360-degree turn. Whether or not that is an improvement on the status imposed by Bell remains to be seen. In any case, we are truly back to the assessment process based on “planning merits” first envisaged by the Integrated Planning Act 1997.