Costs following the event – We Kando Pty Ltd v Maranoa Regional Council
In March 2021, on behalf of We Kando Pty Ltd, Milne Legal applied to the Planning and Environment Court for an order requiring Maranoa Regional Council to pay We Kando’s costs associated with obtaining expert evidence from a number of experts (such as, traffic, visual amenity and good quality agricultural land).
We sought this order pursuant to section 60(1)(b) and 60(1)(i) of the Planning and Environment Court Act 2016, which say:
60 Orders for costs
(1) The P&E Court may make an order for costs for a P&E Court proceeding as it considers appropriate if a party has incurred costs in 1 or more of the following circumstances-
(b) the P&E Court considers the proceeding to have been frivolous or vexatious;
Example— The P&E Court considers a proceeding was started or conducted without reasonable prospects of success.
(i) an applicant, submitter, assessment manager, referral agency or local government does not properly discharge its responsibilities in the proceeding.
In the Planning and Environment Court usually parties bear their own costs, so it is uncommon for costs to be awarded in the jurisdiction.
Ultimately, in May of 2021, his Honour Judge Everson decided to exercise his discretion and Ordered the Council to pay some costs to We Kando, however on a very limited basis (being the costs associated with the good quality agricultural land expert, the visual amenity expert and the noise and light expert for work up to and including 20 September 2019).
Council’s “no can do” attitude overruled by the Planning and Environment Court
Milne Legal acted for the Applicant/Appellant, We Kando Pty Ltd, in the case of We Kando Pty Ltd v Maranoa Regional Council (the We Kando Case), the developer of a proposed large scale waste facility to the north of Roma.
The We Kando Case involved two proceedings which were heard together. These related to:
1. An application to the Planning and Environment Court in which the Applicant proposed to make minor changes (pursuant to section 78 and Schedule 2 of the Planning Act 2016) to a development approval for a waste facility in Euthulla (near Roma). This application was opposed by the Respondent Council; and
2. An appeal against the decision of the Respondent Council to refuse We Kando’s application for an extension of the relevant period/currency period of the existing development approval.
The We Kando Case involved expert evidence from a multiplicity of disciplines, including town planning, economic need, the resource industry (in particular the CSG industry), odour and a number of engineering experts. Initially, the Respondent Council opposed both the change and the extension for a wide array of reasons, however these issues were ultimately narrowed to focus upon the following:
1. Whether the proposal (both including and without the proposed changes) is non-compliant with the planning scheme in effect at the time when the original application was lodged and the planning scheme in effect now; and
2. Whether there is a planning, economic and/or community need for the proposed development.
Relevant matters also included that the Court was required to be satisfied that the proposed changes are minor changes and that it was appropriate for the relevant period/currency period of the approval to be extended to allow the development to be constructed and implemented.
In coming to a determination, his Honour Judge Everson found that:
(a) There was no sound planning basis for asserting that the proposed development should occur in an Industry zoned area in Roma (as was suggested by the Respondent Council), rather than the isolated area is was proposed;
(b) There was no requirement for We Kando to demonstrate a need for the proposed development pursuant to the current or former planning scheme;
(c) There is a planning and economic need for the proposed development and the fact that there is not a demonstrated community need for it is of no consequence;
(d) There is no useful purpose to be served by requiring We Kando to start again with a fresh development application and accordingly it is appropriate to grant the extension; and
(e) That the changes proposed are minor changes.
Ultimately, Milne Legal on behalf of We Kando Pty Ltd, successfully satisfied the Court that the changes proposed are minor changes and that it is appropriate for the extension application to be granted
Submitter Appeal Quashed – Approval Continues
Milne Legal acted for the Co-Respondent developer in the appeal of Wilson v Brisbane City Council & Settlement Equities Pty Ltd (“the Wilson Appeal”).
The Wilson Appeal was an appeal brought by a third party submitter (Ms Wilson), against the Brisbane City Council’s decision to approve, subject to conditions, Settlement Equities’ development application for the residential development of an exhausted quarry in the Gap, Brisbane. The development approval given was for reconfiguration of a lot (one lot into 38 lots and common property) and a preliminary approval for building work and a material change of use for sales office, dwelling house, rooming accommodation and home based business.
The Wilson Appeal involved expert evidence from town planning experts, traffic engineering experts and ecology experts.
The Appellant, Wilson, objected to the giving of the approval on a number of grounds, largely relating to ecology and biodiversity, traffic, bushfire and town planning issues. On behalf of our client, Settlement Equities, Milne Legal was required to satisfy the Planning and Environment Court that Ms Wilson’s appeal ought be dismissed.
In coming to a determination, his Honour Judge Jones found that:
• Whilst the proposed development did not strictly accord with the relevant provisions of the planning scheme insofar as the level of intensity was concerned, the level of non-conformity was low and outweighed by other positive relevant matters; and
• Whilst there would be an increase in traffic in the specific locality, any negative impact that might arise would be offset by the creation of a safer external intersection.
Ultimately, Milne Legal on behalf of Settlement Equities, successfully satisfied the Court that it was appropriate for Ms Wilson’s appeal to be quashed and for the approval to continue, subject to conditions.
Permitted Hostel Occupancy Numbers – Costs awarded against the Council
This case involved an appeal to the Planning and Environment Court against the decision of the Brisbane City Council (Council) to give our client an enforcement notice in respect of the use of its premises located at 47 Brighton Road, Highgate Hill (Premises) as a backpacker hostel in relation to the purported unlawful use of the Premises regarding the number of people allowed to occupy the hostel.
The only issue for the Court to determine was whether there has been an unlawful increase in the intensity or scale of the use of the premises in terms of the number of people accommodated there.
In its determination, the Court considered the lawful use of the premises which was the subject of a 1989 development approval for an extension to a “community dwelling” (Development Approval). At the time of the approval, “community dwelling” was defined as:
(a) a convent or monastery;
(b) any common place of abode for a number of unrelated persons in the nature of a boarding house, guest house, hostel or lodging house, where that place is not part of a hospital, a hotel, an institutional residence, a retirement village, a sports and convention centre or any other premises being premises elsewhere specifically defined in this section the use of which is not characterised by some residential use.”
Condition E.4.(Ak) of the Development Approval stated:
“The total number of people accommodated within the combined development is not to exceed the number stipulated on the license for the premises.”
In addition, condition 1.(A)(1) also stated, “At all times while the use continues to apply with (sic) all relevant Council ordinances, the Building Act and the current Standard Building By-Laws”, meaning that all relevant Council ordinances continued to apply.
Under Chapter 5, Part 1 of the Council ordinances, the Premises were registered as multiple dwellings which was a broad term that included “boarding house” and “tenement building”. The Court noted that section 14 of the ordinances expressly provided for a cap on the number of people that may be accommodated in the Premises. In 1990, a licence for the registration of the Premises as a multiple dwelling specified 37 rooms and 43 persons, however the number of persons licenced to be accommodated in the entirety of the premises fluctuated under this regulatory regime. These ordinances were repealed when the Local Law (Accommodation Standards) 1999 (Local Law) and the Local Law Policy (Accommodation Standards) 1999 came into effect.
The Local Law provided for conditions relation to the maximum occupancy of a multiple dwelling as well as the calculation of the maximum occupancy for backpackers’ hostels by reference to minimum floor area per occupant. Accordingly, 143 people were authorised to be accommodated at the Premises and this remained the authorised number of people to be accommodated at the Premises at the time of the repeal of the Local Law on 30 August 2005.
The Court found it regrettable that the Council had failed to comprehensively outline the precise regulatory regime that continued or ascertaining the occupation density of the Premises between 9 September 2005 and 4 April 2008. From 4 April 2008, the number of occupants allowed at the Premises became the responsibility of the State Government, the task being undertaken pursuant to the Queensland Development Code (QDC). Under the QDC, the Premises can currently lawfully accommodate up to 291 people.
The Court further found (and this was expressly conceded by the Council) that there was no evidence that the Appellant had, at any point, failed to comply with the regulatory requirements in respect of the permitted extent of the occupancy of the Premises. The Court stated that the number of people accommodated at the Premises had always been the subject of additional regulatory assessment, initially by the Council and, more recently, by the State Government. At the time of the Development Approval this was effected by the issuing a licence to the entity carrying out the use.
The Court’s interpretation of condition E.4.(Ak) was that the regulatory process set the number of people to be accommodated within the premises. If the condition continued to apply, despite changes to the statutory regime, it was uncontentious that the condition is being complied with. Alternatively, if the coming into effect of a different regulatory regime is such that the condition was no longer has effect, then the only cap on the total number of people to be accommodated within the premises is set by the current regulatory regime in force. Either way, the current use is lawfully complying with both the Development Approval and the relevant legislative requirements which regulate this type of use.
When preparing this case we sought to find any other cases ever decided that dealt with the issue of what happens when a condition of a development approval calls up another regulatory regime, and that other regulatory regime (in this case, a local law) is repealed and not directly replaced.
We could not find any other case anywhere on this issue, and accordingly this decision is “new law”.
Resolution and Costs
The Court found that there was no unlawful increase in the intensity or scale of the use of the Premises as a consequence of the number of people accommodated there. The appeal was allowed, and the enforcement notice was set aside.