The case of Leeward Management Pty Ltd v Sunshine Coast Regional Council [2024] QPEC 31 concerned an originating application to the Planning and Environment Court of Queensland (Court) seeking a declaration as to the type of assessment applicable (Declaration Application) to a change application made to the Sunshine Coast Regional Council (Council) in respect of a development approval for a development permit for a material change of use of land located in Buddina, Kawana Waters (Land) for a two-storey dwelling house with a building height limit of 8.5 metres (Development Approval).

The Applicant submitted the change application to change the development the subject of Development Approval to include a habitable rumpus room above the second storey which would result in a building height of 10.2 metres (Change Application), in circumstances where the Land has a building height limit of 8.5 metres (Height Limit) under the Sunshine Coast Planning Scheme 2014 (Planning Scheme).

The Council issued a not properly made notice (Notice) to the Applicant as the Change Application exceeded the Height Limit and triggered impact assessment under the Planning Scheme which the Change Application did not address (at [2]). The Applicant argued that the Council was wrong to categorise the Change Application as requiring impact assessment and sought a declaration that the Change Application be subject to code assessment, as well as an ancillary order that the Notice be set aside (at [2]).

The Court held that the Change Application was correctly subject to impact assessment and dismissed the Declaration Application.

The Court considered the following three questions in determining the Declaration Application (at [22]):

1. What is the development approval to which the Change Application applies?

2. What is the categorising instrument which applies to the Change Application?

3. What is the category of assessment required by the categorising instrument?

The Applicant submitted that the change the subject of the Change Application amounts to "building work" as that term is defined in the Building Act 1975 (Qld) (BA) which is categorised as code assessable under schedule 9, part 1 of the Planning Regulation 2017 (Qld) (PR) (see [2] and [28]). The Applicant's argument was that any contrary position in the Planning Scheme is of no effect as it is inconsistent with the higher-order provisions found in the PR. The Applicant relied on section 43(4) of the Planning Act 2016 (Qld) (PA) which states that "[a] regulation…applies instead of a local categorising instrument, to the extent of any inconsistency" (at [2]).

The Court noted that "curious results would follow" if the Applicant's submission was correct, because on the Applicant's construction of the BA and PR a change application to add four or even ten storeys would also be code assessable (at [3]). The Court noted that this would be "…contrary to common sense, good planning, and the [PA], the BA and the [P]lanning [S]cheme" (at [3]).

The Court stated that "[w]hether such absurdity is alone a sufficient reason to dismiss the application need not be decided" as there are other reasons for rejecting the Declaration Application (at [3]).

The Court found that the Applicant's submissions misunderstood the effect of the PA and BA and the distinction between a development permit for a material change of use and a development permit for building work necessary to give effect to that use (at [4]). Further, the Council had given an early indication to the Applicant that any application for a development permit for building work required referral and would be subject to the conditions attached to the Development Approval (at [10]).

The Court found that that the Development Approval was for a material change of use and was not concerned with building work (at [24]). The Court noted the "building work" section in the development application for the Development Approval was left blank which could show that the Applicant intended to seek permission for a material change of use and not building work (see [6] to [7]).

As there is no development approval for building work for the Land, and the Development Approval is for a material change of use, the Court found the latter was the only development approval which the Change Application could relate to (at [25]). The Court stated that the Applicant's attempt in the Change Application to recast the approval as one concerning building work was "disingenuous and ineffective" (at [25]).

The Applicant acknowledged that the Planning Scheme categorises the Change Application as impact assessable, however in reliance on section 43(4) of the PA contended that because of an inconsistency between the Planning Scheme and the PR the relevant categorising instrument is the PR which categorises "building work" as code assessable (see [16] and [29]).

The Court found that the Applicant's reliance on section 43(4) of the PA to be incorrect as there was no inconsistency or conflict between the PR and Planning Scheme for the PA to resolve (at [26]).

The Court reiterated that the Change Application related to the Development Approval which was for a material change of use and not "building work" and that the PR was irrelevant in the circumstances (at [28]).

As the Court found that the Planning Scheme was the correct categorising instrument, the category of assessment was determined to be impact assessment (at [29]).

The Court noted that the Council was correct to identify that the Change Application was deficient as it wrongly proceeded on the basis of code assessment where the category of assessment was impact assessment.

The Court dismissed the Declaration Application and will hear the parties as to costs.