In a decision that will impact those in the development industry who grapple with the many grey areas in modern planning schemes, the Queensland Court of Appeal has rejected the Planning and Environment Court’s “best fit” test in favour of a return to more traditional statutory interpretation principles.
The case highlights the difficulties that developers can face in defining land use under a development proposal when faced with two apparently applicable definitions or a novel proposal that does not sit within the “conventional” uses defined in planning schemes. The categorisation of land use is particularly relevant as it may well determine the type of development application to be made in a particular instance.
In AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44, the Court of Appeal was asked to determine whether a detached residential dwelling, containing 10 bedrooms which were separately let to students, was a "House" or a "Multi-unit Dwelling" under Brisbane's City Plan 2000.
The case turned on which of the definitions of “House” and “Multi-unit Dwelling” applied to the use.
The key features of the definitions were:
|
House |
Multi-unit Dwelling |
|
“principally for residential occupation” |
“as the principal place of longer term residence…does not include a house…as defined elsewhere” |
|
“a domestic group of individual/s” |
“several discrete households, domestic groups or individuals” |
The “best fit” test
When it heard the matter on appeal from the Building and Development Dispute Resolution Committee, the Planning and Environment Court determined that the use was a “Multi-unit Dwelling” by applying the “best fit” test.
This test, developed by the Planning and Environment Court as a practical and common sense way to determine the appropriate class to describe the activities in question before it, provides:
“Where there are two or more defined purposes which are apt to cover a particular proposal, a “best fit” approach is appropriate” [1].
Rejection of the “best fit” test
In AAD Design, the Court of Appeal confirmed that the use in question was properly categorised as a "Multi-unit Dwelling", however it reached its determination by considering the purpose and language of the planning scheme provisions. Using this established legal doctrine, known as the “purposive” approach, conflict is alleviated, as far as possible, by adjustments which best give effect to the purpose and language of the provisions while maintaining the unity of all the statutory provisions [2].
In rejecting the “best fit” test, and noting it was unique to the Queensland Planning and Environment jurisdiction, the Court stated:
“While it may have practical attraction it offends the legal principle applicable to statutory construction pronounced by courts of the highest authority…All statutes in all jurisdictions should be construed according to the same established legal principles.”
Justice Phillipides, with whom Justice Margaret Wilson agreed, made the following observations based on her analysis of the language of the planning scheme:
-
the critical distinction was the nature of the user described in the definitions, in particular, the word “discrete” in the definition of “Multi-unit Dwelling”
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the use, involving individuals under separate tenancy agreements, is correctly categorised as being used by “discrete” individuals, so the proposed use was for a “Multi-unit Dwelling”.
The Court’s conclusions on the proposed use may be contrasted with an arrangement by a number of individuals entering into a single tenancy agreement with a landlord for the whole of a premises.
In conclusion
The starting point for any new development is defining the proposed land use and the effect that will have on the level of assessment for the development application.
In Queensland, this task has been made challenging by planning scheme definitions that have not been drafted with the skill of a parliamentary draftsman and are often non-current or unresponsive to novel development proposals. An added level of difficulty is caused by the fact that land use definitions vary widely in planning schemes across the state and there is no consistency in approach to land use categorisation.
In response to these challenges, the Planning and Environment Court had developed a practical and common sense approach to planning scheme interpretation based on a “best fit” method to break deadlocks over definitions.
The Court of Appeal’s rejection of the “best fit” test in favour of traditional statutory interpretation principles heralds a return to a more legalistic approach to determining land use categorisation.
We can help you
At DibbsBarker, our Planning and Environment team are available to assist you with interpreting planning legislation and framing your development proposals to optimise the prospect of a successful outcome meeting your commercial objectives. For more information, please contact:
Linda Morris | Partner
T +61 7 3100 5014
F +61 7 3100 5001
Footnotes:
2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]
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