INTRODUCTION
Like others here, my practice has spanned five different legislative regimes: the 1936 Act[1] (and the CBTPA[2]), the LGPEA,[3] the IPA,[4] the SPA[5] and now the PA.[6] Each regime has reposed in the decision-maker a different degree of discretion. The pendulum has swung from legislative provisions and planning schemes that, under the 1936 Act, provided very general assessment criteria, permitting of a broad and flexible discretion by the decision-maker to, under the SPA, quite regimented and detailed performance criteria or assessment benchmarks, permitting only a narrow discretion. Now, under the PA, as seen in the recent P&E Court and Court of Appeal decisions, it has swung back again to a more flexible and balanced discretion.
In keeping with this year’s conference theme, the change gives us cause, as practitioners, to reflect upon from where we have come, reset our ideas about how we go about deciding, or persuading decision-makers to decide, development applications and revive a focus upon the merits of the case, and the first principle considerations likely to influence the exercise of the planning discretion.
REFLECTIONS OF THE PAST
The 1936 Act (and the CBTPA)
Under the 1936 Act (and the CBTPA), appeals were heard before the then Local Government Court established under s 27 of the CBTPA. It was not unlike the present Court. Appeals were heard de novo[7] and, on appeal, the Court had the same powers and duties as the planning authority.[8] As with now, the Applicant had the onus and had to show affirmatively that approval should be granted or that conditions should be removed or modified.
More relevantly, and remarkably, until 1976, under the 1936 Act (and the CBTBA), there was no statutory list of the considerations which a local authority, or the Court, had to take into account in deciding a development application either for rezoning applications or development consents. All relevant factors were open for consideration in each particular case. Historically, this may have been the result of lower population growth which enabled development to be considered more incrementally and individually, than later in the 90’s and noughties.
Be that as it may, most factors or considerations were judge made. The Court established its own criteria for relevance in appeals. Accordingly, in Lamont v Brisbane City Council,[9] his Honour Byth DCJ identified the following important, but not exclusive, factors for consideration in a rezoning from Residential to Local Business:
a) the need in the area for the particular uses or services to which the land is proposed to be put;
b) the proximity of the site to other similarly zoned land;
c) the availability in such zone or zones of vacant land or vacant building space sufficient for the use or services for which it is proposed to put the subject site;
d) whether the rezoning and the proposed development are likely to impact upon surrounding amenity by the emission of noise, vibration, smell, fumes, dust, waste products etc. or by the erection of ugly or unsightly buildings, or by the accommodation of parked motor vehicles;
e) whether the rezoning and the proposed development would create, or be likely to create, a traffic hazard.
The decision in Lamont was subsequently applied more widely than the particular zoning with which it was concerned.[10]
Local planning authorities did sometimes include considerations in planning schemes, usually in planning by-laws. But, if they existed at all, they were very general and allowed for exercise of a wide discretion. For example, under the Noosa Shire Town Planning By-Laws, in determining an application for rezoning for residential buildings in excess of 3 storeys in height, regard had to be had to, inter alia, “the location of land in relation to major recreation centres such as the beachfront, Noosa River or lakes”. Similarly, in relation to development consent applications, it was frequent to find specific requirements in by-laws or ordinances relating to matters such as minimum areas, setbacks, carparking spaces and building height.
Even when statutory criteria were introduced into the 1936 Act (and the CBTBA) in 1976, that criteria, both in respect of applications for rezoning and applications for development consent, were broad in nature and left open the detailed evaluation of such considerations to the local authority and the Court in each individual case. In respect of rezoning applications, they comprised matters such as whether the proposal would:
a) “create a traffic problem or increase an existing traffic problem”;[11]
b) “detrimentally affect the amenity of the neighbourhood”;[12]
c) “create a need for increased facilities”;[13]
d) upset the “balance of zones”;[14]
e) “be in accord with or conflict with the strategic plan (if any) or any development control plan”;[15]
f) be “so low-lying or so subject to flooding as to be unsuitable for use” in that zone;[16]
g) have available water, gas, electricity, sewerage and other essential services;[17]
h) have “any deleterious effect on the environment”;[18] and
i) impact on “neighbouring localities”.[19]
These statutory considerations were not closed. The beginning of s 33(6A)(e) and s 8(5) required that they be considered “amongst other things”[20]. The Court, accordingly, continued to consider non-statutory considerations. In Sheezel v Noosa Shire Council,[21] his Honour Carter QC DCJ collected the principles found in a number of decisions establishing judicial considerations relevant to rezoning applications. In addition to those identified in Lamont, his Honour identified as relevant:
a) the need in the area for the particular use or services which it is proposed to put on the site; and
b) the proximity and availability in the area of other land of the same zoning as that which is sought to use the subject site.
The Local Government Court did not, as a matter of regular practice, necessarily scrutinise each consideration, either in detail or sequentially. In many decisions, the Court simply referred to the legislative considerations generally and dealt only specifically with the particular issues in each case. The weight to be attached to any particular consideration also varied according to the circumstances of the matter under scrutiny.[22]
In respect of applications for development consent, even after 1976, other than a necessity to consider objections required by the 1936 Act s 33(18)(i) and the CBTPA s 22(5A), there remained no prescribed considerations in the principal legislation required to be taken into account by a local planning authority or the Local Government Court. Although design considerations, such as height, density, scale, bulk, setbacks considerations were contained in provisions of the planning scheme, by-laws or ordinances, again the Local Government Court established its own considerations relevant to development consents. These included:
a) need (including in the sense of what we now call community or public need, namely, the idea of the “physical well-being of the community or some part of it”[23] whether, “a proposal will enhance the general well-being of the residents of the area or those who resort to it”);[24]
b) amenity; and
c) traffic.
It was in the context of this background that his Honour Carter QC DCJ in Williams McEwans,[25] articulated the requirement, recently revived by the decision in Ashvan and affirmed by decisions of the Court of Appeal, to take a balanced and flexible approach to assessment:[26]
“The ultimate task must be to ensure a proper balance which at a particular time adequately expresses the community will. My point is to emphasise, on the one hand, the necessity for control or the necessity for rigidity in a planning scheme, and on the other, the necessity to recognise the need or adjustment of that scheme if needs be or, the necessity for flexibility. This dichotomy is recognised by the legislature itself by providing not only for a system of re-zoning, but also by the provision of certain statutory criteria to regulate that system. This Court has, since its inception, drawn on its experience and sought to define other criteria, which ought to be seen as relevant in any application to re-zone. It should not be thought that the list of relevant criteria is exhaustive. The various criteria have been drawn from the experience of a great variety of applications in many diverse situations, some of which criteria may be relevant in one case and others in a different case. Also the application of the statutory criteria will vary from case to case. The recognition by the legislature of the element of flexibility is best illustrated by its use of the phrase “amongst other things” when setting down some of the relevant considerations to which the Council and the Court must have reference. The Council, and perhaps the Court, has the difficult task of deciding whether, in all of the circumstances of the individual case, the sought after adjustment should be made.”
In essence, the Court adopted a broad and flexible judgement in matters under the 1936 Act (and the CBTPA).
The LGPEA
It is often thought that it was under the IPA and the SPA that the legislature first introduced the conflict test. Although more firmly entrenched under that legislation, it was, in fact, first introduced under the LGPEA.
Section 4.4(5A) of the LGPEA had provided:
“(5A) The local government must refuse to approve the application if—
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
Under that provision, the decision-maker’s discretion was couched in negative terms. As the Court of Appeal observed in Grosser,[27] If there was conflict, the application had to be dismissed unless there were sufficient planning grounds. It was a mandatory requirement. It prescribed the local authority “must refuse” the application if it conflicts with any strategic plan or development control plan, unless there are sufficient grounds to justify approving it.
The IPA
Under the IPA, the words “sufficient planning grounds” were replaced with “sufficient grounds”. Section 3.5.14 provided:
“(2) If the application is for development in a planning scheme area, the assessment manager’s decision must not—
(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”
In Weightman,[28] the Court of Appeal again held that the word “must” was used in an imperative sense, and a proposal must be refused if there are not sufficient grounds to justify the approval despite the conflict. The Court of Appeal went on to expound what became known as the three-part test. As his Honour Rackemann DCJ recently summarised in E.J. Cooper & Son v Townsville City Council:[29]
“In considering whether there are sufficient grounds, reference is often made to the following three step process described in Weightman v Gold Coast City Council per Atkinson J in respect of similar provisions of the then Local Government (Planning and Environment) Act:
“… the decision maker should:
1. examine the nature and extent of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
[45] The provision of IPA refers to “sufficient grounds” rather than “sufficient planning grounds” and the passage from Weightman must be read subject to that qualification. Grounds are defined in IPA, as matters of public interest. They do not include the personal circumstances of an applicant, owner or interested party.”
The SPA
The sufficient grounds test was continued in operation under the SPA. It was under the SPA that the highwater mark was reached with regard to the restriction placed upon the decision-making discretion.
This followed a ‘trilogy’ of Court of Appeal decisions in Bell[30], K & K[31] and King of Gifts[32]. In each of those decisions, the Court of Appeal again emphasised the mandatory nature of the Weightman test, and the pre-eminent importance of the planning scheme. It held the planning scheme was “a comprehensive expression of what will constitute, in the public interest, the appropriate development of land”.[33] Accordingly, “[i]f the placement of a development in a particular location would conflict with a Planning Scheme, then it must be accepted that it is the intent of the Scheme that, subject to there being a matter of public interest that overrides the public interest in maintaining a Scheme, the need should met by a development on a site that does not give rise to a conflict.”[34]
Some have suggested that the system of assessment under the SPA, by this test, had become a tick and approve or cross and disapprove type of assessment process. If that was the case, it was not the result of the Court of Appeal decisions per se, but the legislative provisions themselves.
The historical reasons and legislative intentions for narrowing the earlier flexible discretion are important to reflect upon. What was it that caused the pendulum to swing away from the broader discretion under the 1936 Act (and the CBTPA)?
The various Explanatory Notes, particularly to the IPA and the SPA, provide some insight. One reason was population growth and the introduction of an expanded regional planning framework and State planning regulatory provisions. Another was the aim of providing better coordination and consideration of the community’s needs overall and the making development better fit into a clear pattern devised by planning scheme makers. A third was the economic aim of providing faster development assessment and a reduction in participants’ costs. The Explanatory Notes to SPA provided (emphasis added):
“Outcomes to be achieved by the Bill are a significantly improved and streamlined land use planning and development framework and systems that reduce costs and get development on the ground sooner through:
· streamlining - at plan-making and development assessment levels leading to simpler, clearer and better integrated planning that produces more certain development assessment. This results in greater certainty, faster processing, and reduced costs for both applicants and the local government. Broad economic benefits are realised including the State's commitment to the Housing Affordability Strategy.
· clarity - in plan-making that "front loads" plans with consistent provisions and structure, and clearer and better integrated State interests in planning. This certainty and integration enables faster development assessment and cost benefits.
· greater flexibility and responsiveness - the streamlined systems including the movement of processes out of a regulatory framework gives the State greater flexibility to adjust the framework and its State level planning interests to meet emerging needs of the State and other stakeholders.”
RESETTING OF THE EXERCISE OF DISCRETION
The statutory assessment and decision-making framework changed under the PA.
Under the PA, a development application is now required to be assessed in accordance with, inter alia, s 45, and decided in accordance with ss 59 and 60. As we all know, in the seminal decision of Ashvan Investments Unit Trust v Brisbane City Council,[35] his Honour Williamson QC DCJ closely examined these provisions and identified a change in approach. His Honour stated:
“[43] Subject to s 62 of the PA, the above provision confers a power on an assessment manager (and this Court on appeal) to exercise a broad planning discretion. The discretion must be exercised in one of three ways, which are identified in subss (3)(a), (b) and (c). The provision does not require an application to be approved, or refused, in any particular circumstance, let alone a circumstance where non-compliance is established with an adopted statutory planning control.
…
[45] Unlike its statutory predecessor, the exercise of the planning discretion under s 60(3) of the PA is not mandated by a conflict and grounds test. …
…
[53] An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. That question is no longer answered by a provision such as s 326(1)(b) of the SPA. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.
[54] In practical terms, the change to the statutory assessment and decision making framework may call for an assessment manager (or this Court on appeal) to reach a balanced decision in the public interest where two competing considerations are at play: (1) the need for the rigid application of planning documents on the one hand; as against (2) the adoption of a flexible approach to the application of planning documents to, inter alia, exercise the discretion in a manner that advances the purpose of the PA.
…
[60] The planning discretion, and the inherent balancing exercise, is invariably complicated, and multi-faceted. It is a discretion that is to be exercised based on the assessment carried out under s.45 of the PA. It will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark.
…
[67] In the context of an appeal about an impact assessable application where a party contends that a non-compliance with an assessment benchmark warrants refusal, that party will need to identify at least two things in any document purporting to articulate the issues in dispute: (1) it will need to identify the non-compliance alleged; and (2) it will need to identify the planning basis it relies upon to contend the non-compliance warrants refusal in the exercise of the discretion under s 60(3) of the PA. The second category of matters may be identified having regard to, inter alia, town planning principle and practice. It is a matter about which town planning experts will be expected to assist the Court. The document identifying the issues in dispute may also need to allege, where relevant, how and in what way an approval would not advance the purpose of the PA.”
The PA’s newfound breadth of discretion received the approval of the Court of Appeal in Abeleda,[36] YQ[37] and Wilhelm[38]. In each of those decisions, the Court of Appeal affirmed the P&E Court’s decision in Ashvan. The Court of Appeal affirmed, in contrast to its statutory predecessor, the discretion conferred by s 63(3) of the PA admits of more flexibility to approve an application in the face of non-compliance with the Planning Scheme and that the exercise of the planning discretion involves a balanced decision.[39] The assessment is intended to be “of the merits of the proposal based on established policy, and other relevant considerations to reach a balanced decision in the public interest”, where it is apparent that the reference to “established policy” is to assessment benchmarks such as the relevant planning scheme and the reference to the other relevant considerations are those which the decision-maker is permitted to consider under s 45(5)(b) of the Act.[40]
In YQ, Henry J, with the other members of the Court agreeing, shortly stated: “the ultimate decision called for when making an impact assessment under s 45 and s 60 of the Planning Act is a broad, evaluative judgment”.[41]
THE REVIVAL OF PLANNING MERITS
This resetting of the bounds of discretion under the PA, has revived the flexible and balanced approach previously taken under the 1936 Act (and the CBTPA). The endorsement[42], in particular, of the decision of his Honour Carter QC DCJ in Williams McEwans is telling.
The broad and flexible discretion has reset what we do and how we do it.
Parties must now identify and, more importantly, support by evidence the planning merits or basis upon they contend that an approval should or should not be granted. As Danny Gore QC and Chris Buckley aptly put it in a recent QELA seminar,[43] the process now asks lawyers, experts and decision-makers to ask “Why?”. Why does any incompatibility or non-compliance with the planning scheme warrant or not warrant a refusal of the application?
It has revived a focus upon the real planning merits of a particular case. It directs all of us involved in the decision-making process to now identify and elucidate why the planning scheme should or should not be given dominance. Those of us who appear as practitioners and advocates in the P&E Court, in particular, must now look for what the former Chief Justice Barwick famously called “the merit point”. What are the merits for or against development? The Court, ultimately, will be seeking to exercise its discretion in the interests of doing justice and making the right “balanced” decision. It will be by identifying and proving those merits that the Court will be most persuaded to exercise its discretion in our favour.
The more flexible discretion also permits of a more first principled based approach to assessment. It encourages decision-makers to ask what are the good town planning (or other) first principles which justify a decision one way or another? The identification of what are good town planning first principles is itself an interesting topic.[44] Professor Keeble described good planning as “the art and science of ordering the use of land, and the character and sighting of buildings and communication routes so as to secure the maximum practical degree of economy, convenience and beauty”. In his book, Principles and Practice: Town and Country Planning 4th Ed, he identified four characteristics of successful town planning:[45]
“(1) The promotion of accessibility: accessibility of homes to work, shops, schools and entertainment, of industry to sources of labour, power and raw materials and so on. It would hardly be going too far to call Planning a study in accessibility.
(2) The employment of resources as economically as possible, so as to achieve the greatest possible measure of improvement with necessarily limited means.
(3) The separation of incompatible land uses from each other and the association of compatible or mutually helpful uses.
(4) The carrying out of all development in as visually pleasant manner as practicable.”
These characteristics no doubt change over time to accord with current values of society. But whatever they are, it is re-energising to think that, in our practice, we can now be engaged in such questions and be able to assist in the art and science of good town planning.
Of course, a balanced decision does not mean that the planning scheme is irrelevant or unimportant or inconsistent with earlier enunciations regarding the planning scheme being the embodiment of the public interest or the public interest generally being served by compliance with the planning scheme[46]. As his Honour Williamson QC DCJ himself recently made it clear in Barro Group Pty Ltd v Sunshine Coast Regional Council,[47] the statutory assessment and decision-making framework under the PA still requires consideration of the planning scheme. The clear words of s 45(5)(a)(i) of the PA mandate that development must be assessed against applicable assessment benchmarks and the primary assessment benchmark is usually the planning scheme.
His Honour Carter QC DCJ in Williams McEwans also earlier stated:[48]
“The scheme, once it becomes law, must be seen to be an expression of the will of the community that its various needs are best provided for in the manner, by which the scheme controls the use to which land might be put.”
Similarly, her Honour Kefford DCJ in Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [49]stated:
“The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act 2016. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the applicable planning scheme and proper planning practice. It should recognise that the provisions of a planning scheme are seen to embody the public interest and, as such, there is a public interest in compliance with them. However, not every non-compliance is contrary to public interest or will warrant refusal. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”.”
In short, the new statutory regime has not altered the planning scheme’s significance.[50] Prepared and promulgated by elected representatives with the input of a number of interested groups and the State, it remains a principal expression of planning policy. It continues to have significant weight, albeit balanced against other relevant factors, in the exercise of discretionary power to approve or reject a development.
There are legal boundaries to the exercise of a broad and flexible discretion. Judicial discretion requires that the Courts only act on evidence adduced before it, and only after affording parties full opportunity to be heard on the merits of an issue. In a sentiment similar to that of her Honour Judge Kefford above, his Honour R S Jones DCJ stated in Hawke v Brisbane City Council:[51]
“… of course the discretion must be exercised judicially and, as Judge Williamson QC said in Ashvan, while the introduction of the Planning Act, coupled with the express deletion of a test of the type contemplated pursuant to s 326 of the Sustainable Planning Act, conferred a broad planning discretion, that did not mean the discretion admitted of an unbridled opportunity to approve or refuse development appeals.”[52]
In the classic decision of House v R,[53] Starke J said that judicial discretion, even when a broad conferral, “must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”[54] Their Honours Dixon, Evatt and McTiernan JJ also discussed some principles of which a failure to exercise judicial discretion may occur:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitute for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may under that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.” [55]
Other more general legal principles regarding the legitimate exercise of discretion also may be engaged. These include:
a) the exercise of a discretion consistent with Human Rights. Under the Human Rights Act 2019, decision makers are obliged to act or make a decision in a way that is not incompatible with human rights and to give proper consideration to a human right relevant to the decision.[56] As postulated in a recent CLE by her Honour, President Kingham of the Land Court, it is not difficult to foresee arguments being raised for, or against development based upon its consistency or inconsistency with fundamental rights;[57]
b) possibly, the principle of consistency. Traditionally, the principle of consistency which has long been recognised in administrative law,[58] has not been applied to Courts in the exercise of their planning jurisdiction.[59] However, there have been recent examples of the Court calling out and expressing its dislike of inconsistent positions being taken, particularly by local authorities, in the decision-making process; and
c) administrative law principles.
CONCLUSION
Queensland has had a rich history in the area of the planning assessment. As his Honour Rackemann DCJ often tells us, the P&E Court is the envy of other jurisdictions in its de novo review of planning merits, case management and use of expert evidence.[60] It is a specialist Court with specialised processes and judges whose expertise, skill and industry are well able to carry out the task of exercising planning discretion.
For many years, under the 1936 Act (and the CBTPA), the Court was entrusted with the identification and development of considerations appropriate for evaluating the planning merits of a case. There is no reason why, with the resetting of a similarly broad and flexible discretion under the PA, it cannot be entrusted with that responsibility in the future.
The resetting of a more balanced evaluative and flexible discretion has renewed a focus upon delivering good planning outcomes. That is exciting. But it also brings with it responsibilities. Ultimately, the Court engages in an adjudicative process which depends, for its legitimacy, upon the presentation and proof of evidence. The responsibility upon all of us, as participants and practitioners, is to ask the question ‘Why?’, and to elucidate and prove by evidence, the facts and circumstances, and “relevant matters”, upon which the merits of the case must be determined. More importantly, the responsibility upon us all, is to do so economically and efficiently. We need to exercise judgement in the points we raise and the evidence we run. We need to remember from where we came and why, previously, the pendulum swung away from where we have returned. We must ensure that the exercise of a broader discretion under the PA, as well as achieving a balanced and evaluative judgment of the planning merits, also remains aimed at achieving certainty, faster development assessment, and reduced costs for both applicants and the local government. It will only be in doing so, that we may be assured of keeping it.
The exercise of a broad and flexible planning discretion served us well in the past. With our assistance, I am confident it can do so again into the future.
