The case of Alexander Jason Elks v Brisbane City Council [2023] QPEC 33 concerned an originating application to the Planning and Environment Court of Queensland (Court) by Alexander Jason Elks (Applicant) for declarations under section 11(1)(a) and section 11(1)(b) of the Planning and Environment Court Act 2016 (Qld) (PEC Act) in respect of a decision by the Brisbane City Council (Council) to impose two conditions, having regard to an updated version the Brisbane City Plan 2014 (version 17) (Planning Scheme), requiring the establishment of an environmental protection zone as part of the approval of the Applicant's development application for a development permit for reconfiguring a lot into five lots (Development Application) at Everton Park, Queensland (Subject Land).

The originating application sought declarations invalidating the decision to impose the conditions on the basis that the development assessment process did not accord with the Development Assessment Rules (version 1.2) (DA Rules). The Applicant also sought compensation for loss suffered as a result of an alleged adverse planning change.

The primary issues for the Court were as follows:

1. Whether the Council's decision was invalid because of defects in the development assessment process.

2. Whether the Council's decision to impose the relevant conditions was invalid by reason of section 65 of the Planning Act 2016 (Qld) (Planning Act).

3. Whether the Court should grant the relief sought by the Applicant with respect to an adverse planning change and compensation.

The Court found that the Council was entitled to have regard to the updated Planning Scheme and to impose the conditions requiring the establishment of the environmental protection zone as part of the approval of the Development Application and that the Court did not have jurisdiction to consider the matters related to the alleged adverse planning change. Thus, the originating application was dismissed.

Version 16 of the Planning Scheme was in effect when the Applicant made the Development Application on 1 November 2019 (at [1]).

On 22 January 2021, the Council gave the Applicant a decision notice approving the Development Application subject to a number of conditions including conditions requiring "…the establishment of an environmental protection zone in which no may occur and an environmental covenant to ensure the management and protection of the environmental protection zone" (Conditions) (at [3]).

The environmental protection zone coincided with what was described as the "ecological significance overlay area" on proposed lots 4 and 5. The Applicant was dissatisfied with the Council's decision to impose the Conditions and commenced this proceeding on 18 January 2022.

The Applicant alleged that there were defects in the development assessment process followed by the Council and that "…the imposition of the [Conditions] are the result of the Council's unauthorised attempt to manipulate timelines in the development assessment process to justify the imposition of the [Conditions] by reference to version 17 of the [Planning Scheme]" (at [6]). Version 17 of the Planning Scheme relevantly took effect on 29 November 2019.

The Applicant sought relief for alleged losses suffered as a result of the inclusion of the Subject Land in the High Ecological Significance Strategic Sub-Category of the Biodiversity Areas Overlay in version 17 of the Planning Scheme, which resulted in the Council's imposition of the Conditions (at [7]).

The Court considered each of the following stages in the development assessment process as follows:

• Application stage – The Court found that the Council complied with its obligations under sections 2.1 and 2.2 of the DA Rules but had not complied with section 2.3 in respect of the giving of the confirmation notice as the Council did not provide the confirmation notice within the confirmation period. The Court held that the confirmation notice was not invalid because "…there is no legislative purpose to invalidate a confirmation notice…" for failure to comply with section 2.3 of the DA Rules (at [93]).

• Information request stage – Whilst there was an error in the Council's information request which stated that an assessment against the Biodiversity Areas Overlay Code was "required", the evidence before the Court indicated that the Development Application was to be assessed against version 16 of the Planning Scheme (at [114]). The Court also held that the Council's failure to give the information request within the timeframe stipulated in section 12.2 of the DA Rules did not invalidate the information request (at [118]) and that the Applicant had, by an email from a consultant engaged by the Applicant, provided a valid response to the Council's information request under section 13.1 of the DA Rules.

• Public notification stage – The Development Application required public notification under section 53 of the Planning Act (at [127]). The Court noted that there was no direct evidence regarding when public notification occurred, but inferred compliance with the public notification requirement by reference to a number of documents in which the satisfaction of the requirement was mentioned (at [129]).

• Decision stage – Between 27 May 2020 and 22 January 2021 the Council made several requests for further information to which the Applicant responded. The Court disagreed with the Applicant's contention that these exchanges were of no relevance to the development assessment process (see [131] to [143]). The Court also noted that the Council had a discretion under section 45(8) of the Planning Act to have regard to the amendments in version 17 of the Planning Scheme and to give the amendments "…the weight that the Council considered appropriate on the understanding that version 17 is not a vehicle for displacement or modification of version 16…" (at [101]). The Court was not persuaded by the Applicant's argument that the decision notice was invalid for reasons including that the Applicant had not demonstrated a defect in the development assessment process, that the Council was required to obtain the Applicant's consent to impose the Conditions, and that the Conditions were invalid having regard to section 65 of the Planning Act (at [180]).

Accordingly, the Applicant did not demonstrate that the process followed by the Council involved any deliberate delay in an effort to enable the assessment of the Development Application against the new version of the Planning Scheme. Any non-compliances or defects did not render the process followed by the Council invalid.

The Court observed that the Applicant's allegation that the decision to impose the Conditions was invalid involved a "challenge to the merit's of the Council's decision" and that because this proceeding was not a merits appeal the Court had no power to review the correctness of the Council's decision (see [196] to [197]).

The Court was not satisfied that the Council had considered irrelevant matters so as to make the imposition of the Conditions unreasonable (at [199]). In this regard, the Court considered a number of authorities regarding the appropriate exercise of discretion when imposing conditions, the recommendations contained in an ecological assessment report, and other material provided by the Applicant, and found that the Conditions were not unreasonable or invalid (at [209]).

The Court was satisfied that the decision to impose the Conditions was legally and factually justifiable.

The Applicant acknowledged that the relief sought in respect of the alleged adverse planning change may not be within the Court's jurisdiction under section 11 of the PEC Act (at [221]).

The Court held that it does not have jurisdiction to consider the allegation of an adverse planning change under section 11 of the PEC Act nor does it have original jurisdiction in respect of the associated claim for compensation (see [225] to [228]).
Thus, the Court was not prepared to grant the relief sought by the Applicant.

The Applicant failed to discharge the onus and the originating application was dismissed.