The case of GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 16 concerned an application in pending proceeding (Application) in the Planning and Environment Court (Court) by GB Technology & Consulting Pty Ltd (Applicant) regarding an appeal against the decision of the Sunshine Coast Regional Council (Council) to refuse a development application for a development permit for operational works to facilitate the creation of a wedding venue (Development Application) on land in Bald Knob, Queensland (Land).

As part of the Application, the Applicant sought the following four orders (at [6]):

1. Pursuant to section 46(3) of the Planning and Environment Court Act 2016 (Qld) (PECA), the appeal proceed upon the basis of a minor change to the Development Application.

2. On the basis of the first order confirming a minor change, a consequential order that the matters relating to the Biodiversity Waterways and Wetlands Overlay Code (BWW Overlay Code) identified in the Council's Particularised Reasons for Refusal (Council's Reasons) are not in dispute in the substantive proceeding.

3. That the matters stated in the fifth paragraph, excluding paragraph 5(d), of the Council's Reasons (Paragraph 5) are not issues in dispute in the substantive proceeding.

4. The Council is required to provide further and better particulars as to the issues in dispute which are to be addressed by its nominated town planning expert.

The Court considered whether the change to the Development Application is a minor change, whether there are any non-compliances with the BWW Overlay Code, whether the matters stated in Paragraph 5 are issues in dispute and if the Court is permitted to take them into account under section 60(2) of the Planning Act 2016 (Qld) (Planning Act), and whether the parties have adequately identified the issues in dispute in the substantive proceedings.

The Court found that there would be little utility in making the orders sought, apart from the order that the appeal proceed on the basis of the minor change to the Development Application, in circumstances where the issues in dispute in the substantive proceedings were "far from adequately identified" (at [45]).

The Development Application relevantly proposes various earthworks on the Land (Proposed Development).

The Council refused the Development Application. The Council's decision notice did not refer to particular non-compliance with the relevant assessment benchmarks in the Sunshine Coast Planning Scheme 2014 (Version 22) (Planning Scheme) but rather stated that the Proposed Development to create a wedding venue is an inconsistent use for the rural zone (at [3]).

Paragraphs one to four of the Council's Reasons identify provisions in the Landslide Hazard and Steep Land Overlay Code, the Works Services and Infrastructure Code, the Biodiversity Waterways and Wetlands Overlay Code, and the Stormwater Management Code of Planning Scheme, which the Council asserts the Proposed Development departs from (at [4]).

Paragraph 5 of the Council's Reasons relevantly assert that the following "discretionary matters" also favour a refusal of the Proposed Development (at [4]):

"...
(f) approval of the [Proposed Development] would result in unacceptable safety impacts and risks arising from the steepness of the land and geotechnical issues;

(g) approval of the [Proposed Development] would result in unacceptable Scenic Amenity impacts both during the construction phase and once the proposed development had been carried out."

The Applicant asserts in its List of Matters in Support of Approval that the Proposed Development complies with or can be conditioned to comply with, the relevant assessment benchmarks referred to in paragraphs one to four of the Council's Reasons and that the "discretionary matters" referred to in Paragraph 5 are irrelevant to the assessment of the Proposed Development which is code assessable (at [5]).

The Applicant sought to change the Proposed Development (Change Application) to avoid any non-compliance with the BWW Overlay Code (at [7]). In order for the Court to consider the Change Application, the change must be for a "minor change" as defined in schedule 2 of the Planning Act (see section 46(3) of the PECA).

The Council did not contend that the change was not for a minor change, but took issue with the affidavit of a senior civil and environmental engineer deposing that the proposed change does not result in "substantially different development" because the affidavit did not state the matters required for an expert report under rule 35(5) of the Planning and Environment Court Rules 2018 (Qld) (Rules) (at [9]).

The Court excused the non-compliance with the Rules because the deponent has demonstrated experience in the Court as an expert witness and has acknowledged the matters required by rule 35(5) (at [16]). Thus, the Court had regard to the affidavit and permitted the appeal to proceed on the basis of the changed Development Application (at [17]).

Accordingly, it was uncontroversial that there were no longer any non-compliances with the BWW Overlay Code.

In deciding whether the matters in Paragraph 5 should be considered issues in dispute in the substantive proceeding, the Court had to firstly determine whether they are matters which could be taken into account in exercising the discretion afforded by section 60(2)(b) of the Planning Act in relation to code assessment.

Section 60(2) of the Planning Act relevantly states as follows:

"(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—

(a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
(b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

..."

The Applicant contended that the matters in Paragraph 5 could not be taken into account in making a decision under section 60(2) of the Planning Act, because the discretion does not extend to matters beyond non-compliance with the relevant assessment benchmarks (at [25]). Whereas the Council argued that the matters in Paragraph 5 could be relevant to an exercise of the discretion under section 60(2) (at [24]).

The Court found that the discretion under section 60(2)(b) of the Planning Act is (at [36]):

"(a) only engaged in terms of considerations enlivening the prospect of approval of the application, despite and only where there is some identified noncompliance with the assessment benchmarks;
(b) to be exercised in reaching the decision whether or not to approve the application, by being 'based on the assessment of the development carried out by the assessment manager'; and
(c) therefore to be based on an assessment (subject to whatever relevant application s 45(7) may have) which '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.'"

The Court observed that section 45(3) of the Planning Act may also allow for regard to be had to other matters, being the matters prescribed by the Planning Regulation 2017 (Qld) (at [26]).

The Court held that the discretion in section 60(2)(b) of the Planning Act allows a consideration of the significance of the assessment benchmarks with which there is non-compliance. However, that discretion must be qualified in the sense that "…care must be taken to avoid introducing the breadth of matters which might be relevantly introduced into an impact assessment" (at [40]).

The Court held that it is necessary to consider the importance of a non-compliance in the context of the relevant assessment benchmarks and whether a non-compliance should be determinative (at [41]). In the absence of an indication by the Council that the matters in Paragraph 5 relate to a non-compliance with an assessment benchmark, the Court found it inappropriate to rule on whether Paragraph 5 is relevant to an issue in dispute but noted that the current form of Paragraph 5 is "…completely unsuitable to the identification of any issue..." (see [43] to [44]).

The Court held that at this stage in the proceeding there is no clear identification of the issues to allow a determination of the relevance of a particular part of the Planning Scheme or other consideration (at [44]).

The Court further noted that little guidance was provided by the Applicant as to the bases upon which the Applicant was seeking to obtain the relief sought and that the issues in dispute in the substantive proceeding must be narrowed as the matter approaches hearing (at [45]).

The Court ordered that the appeal proceed upon the changed Development Application but did not make the other orders sought by the Applicant. The Court also relevantly ordered that the parties provide a list of issues in dispute in the substantive appeal on or before the next review date (at [47]).