September 18, 2019

Planning and Development

Since the new test for assessing impact assessable development applications was introduced by the Planning Act 2016, a number of questions have been on our minds: Will relevant matters be the same as sufficient grounds?  Will the new test lead to a greater emphasis on performance-based development assessment?  And what weight will they carry?

Whilst there is some way to go before all of these questions are answered, some judicial guidance is emerging from the Planning and Environment Court.

What is a relevant matter?

A list of what can be a relevant matter is developing.  Some notable mentions, which seem to be accepted by the Court with some frequency, are:

  • planning, economic and community need (no surprises there)
  • the absence of any unacceptable impacts, and
  • whether conditions could be imposed to address areas of non-compliance.

What weight do they carry?

Recently, in the case of Peach v Brisbane City Council [2019] QPEC 41, the Court considered what weight should be applied to the relevant matters identified.

The submitter appellant argued relevant matters should be given less weight than the prescribed planning controls.  In support of their argument, the submitter pointed to the explanatory notes to the Planning Bill 2015, which they said supported the position that prescribed matters (which had undergone extensive community consultation) should carry more weight in assessment than relevant matters.

In rejecting this argument, the Court found:

  • it was not appropriate to have recourse to the explanatory notes, and
  • ultimately, the Planning Act 2016 did not call for less weight to be applied to relevant matters compared to applicable provisions of a planning scheme.

Discretion remains with the assessment manager to identify the appropriate weight to be given to the matters accepted as relevant matters in any particular case.

Getting the test right.

In a number of cases since the Planning Act 2016 has been introduced, the Court has also made it abundantly clear that:

  • the new test differs from the old
  • relevant matters are not the same as sufficient grounds
  • when applying the new test, it is not necessary for an assessment manager to first find a conflict before a relevant matter can be taken into account.  

Everyone who is involved in the development assessment process (applicants, submitters or assessing entities) or those involved in disputes about development proposals need to let go of the old approach and learn to apply the new test…which continues to evolve.