In Smith v Brisbane City Council & Anor [2026] QPEC 35, the Planning and Environment Court adjourned a five-day trial of a submitter appeal, listed to begin within weeks, because the State Government had signalled it might take the development application out of the appeal altogether. Kefford DCJ vacated the hearing dates after the Acting Minister for State Development, Infrastructure and Planning gave notice that she was considering declaring the application a State facilitated development, a declaration that, if made, would discontinue the appeal and restart the application. The decision is a useful early look at how the State’s relatively new State facilitated development power interacts with a merits appeal that is ready for hearing.
Background
The appeal was a submitter appeal brought by Suzanne Smith on 20 August 2025 against the Council’s approval of a development application by Zen Group (Aust) Pty Ltd. The application sought development permits for a material change of use and building work for a multiple dwelling of 176 units, together with a community use, a food and drink outlet, an office and a shop, over two stages and in two buildings connected by a bridge, on land at 24 Duncan Street, West End. The appeal was case managed under the Court’s Practice Direction 3 of 2025, which is directed at the just and expeditious resolution of larger residential merits appeals and anticipates that they will be ready for hearing within a year of filing. After an early detour for a minor change application, the matter was ready, and on 3 August 2026 Williamson KC DCJ listed it for a five-day hearing commencing 26 October 2026, with working documents and written submissions due by 19 October 2026.
Late on 25 September 2026, the parties jointly asked for the appeal to be relisted for review. The reason was that, the day before, the Acting Minister had written to the parties enclosing a notice of a proposed declaration that the application be treated as a State facilitated development. At the review on 29 September 2026, the co-respondent, Zen Group, applied orally for the hearing dates to be vacated, relying only on the Minister’s letter. No formal application or affidavit was filed. All parties supported the course, to avoid the risk of wasted preparation.
The State facilitated development framework
State facilitated development is one of the tools introduced by the Housing Availability and Affordability (Planning and Other Legislation Amendment) Act 2024 to streamline the assessment of development the State treats as a priority. Chapter 3, part 6A of the Planning Act 2016 sets out the process. Under s 106C, the Minister may propose to declare an application a State facilitated development by giving a notice of the proposed declaration, which must allow a period for representations; here that period ended on 16 October 2026. Under s 106D, the Minister may then, within ten business days after the representation period ends, declare the application to be for State facilitated development, but only if satisfied that the development will assist in delivering development for an urban purpose that is an identified priority for the State, that the application meets the criteria prescribed by regulation, and that it is appropriate for the chief executive, rather than the original decision-maker, to assess and decide the application. On the timing in this case, any declaration could be made between 17 and 30 October 2026.
What makes the power significant for a party to an appeal is its effect. Under s 106H, once a declaration takes effect, any decision on the application, including any deemed approval, and any decision notice, stops having effect, and any appeal against the decision is discontinued. If the declaration notice states a restarting point, the application is administered again from that point. Here, the proposed declaration indicated that the application would restart at the beginning of public notification. In short, a declaration would end the appeal and return the application to the assessment process under State control. If, on the other hand, the Minister decided not to declare, s 51E of the Planning Regulation 2017 required notice of that decision to be given to the parties by 30 October 2026. The pathway sits within the same broader response to housing pressure as the local reforms we have written about recently, including Brisbane’s More Homes, Sooner changes, although it operates at the State level and by a very different mechanism.
The Court’s reasoning
The Court treated the request as an oral application to adjourn, to be decided by reference to s 10 of the Planning and Environment Court Act 2016, which requires the Court to facilitate the just and expeditious resolution of the issues and to avoid undue delay, expense and technicality. The difficulty was one of timing. The Minister’s notice arrived when trial preparation was essentially complete and the hearing was set to run from 26 to 30 October 2026, the last of those days being the final day on which the Minister could make a declaration.
Weighing in favour of vacating the dates was the real prospect of wasted resources if a declaration were made shortly before or during the trial, including the cost of finalising expert material and written submissions, the pre-trial expert conclave and attendance at the hearing itself. Against that, the Court was conscious that vacating the dates carried its own risk. If the Minister ultimately decided not to declare, the appeal might not secure a fresh five-day listing until late February 2027 or later, which would waste the hearing time already set aside and cut against the streamlining purpose of the State facilitated development process.
The decision
On balance, Kefford DCJ vacated the hearing dates and the associated timetable and listed the matter for review on 2 November 2026, by which time the Minister’s position will be known. Her Honour noted that if the Minister decided not to declare, and did so early in the week of 19 October 2026, the parties had experienced counsel accustomed to preparing trials at short notice and little remained to be done, so it might still be feasible to run the hearing on the allocated dates. That would be revisited with the parties depending on the timing of any decision by the Minister.
Why this decision matters
The decision is an early illustration of how the State facilitated development power can overtake a merits appeal. A submitter, a council and an applicant can complete a year of case managed preparation and reach the door of the court, only for the State to signal that it may remove the application from the appeal entirely. Because a declaration discontinues the appeal and can restart the application at public notification, the stakes for a submitter are considerable: the appeal falls away and the assessment shifts to the State, with the application to be assessed and decided by the chief executive rather than on its merits by the Court. For an applicant, the power offers a possible alternative route to approval for priority housing, but one whose timing rests with the Minister. It is also a further reminder, alongside decisions such as X-Elio Sixteen Mile Solar Farm Pty Ltd v Western Downs Regional Council [2026] QPEC 31 and Philip Usher Constructions Pty Ltd v Logan City Council [2026] QPEC 33, that the framework governing an application is not fixed once a proceeding is on foot.
Practical implications
For parties to a live appeal about a significant residential development, the possibility of a State facilitated development declaration is now a real case management variable. Where the State signals interest late in the piece, the Court will weigh the waste of trial preparation against the cost of losing an allocated hearing, and may vacate the dates while keeping the matter on a short leash for review. Applicants considering the State pathway should be alive to its effect on any existing appeal, and to the restarting point proposed in a declaration notice, which may return the application to public notification. Submitters should understand that a declaration would end their appeal and move the decision to the State and should treat the representation period on a proposed declaration accordingly.
A note on this update
This article is a general summary and is not legal advice. QPEC 35 concerned only whether to vacate the hearing dates; the Minister’s decision on the proposed declaration, and the future conduct of the appeal, remained to be determined, with the matter listed for review on 2 November 2026. We can advise applicants, councils and submitters on State facilitated development declarations, including representations on a proposed declaration, and on the conduct of merits appeals affected by them.
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