Recent Case Hightlights Need For Reasonableness

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Published by Preston Law on 04/11/2020

The need to condition planning approvals in a proportionate and reasonable manner is well understood by local governments in Queensland.  However, a recent case in the Planning and Environment Court offers a reminder to Councils about the tips and traps with conditioning approvals.

On 28 October 2020, for the third time in relation to the same development before the Planning and Environment Court, section 65 of the Planning Act 2016 was considered in the conditions appeal of Pimpama Commercial Pty Ltd v Council of the City of Gold Coast (No. 3) [2020] QPEC 56.

The development related to a Tavern within an approved integrated commercial development. In the first instance in June 2020, the Court was asked to determine the appropriate hours of operation for the development.  Council was seeking they be restricted to closing at 12am (midnight), seven days a week and the appellant argued they should be permitted to operate until 2am. In finding for the appellant, the Court decided that the tavern was allowed to remain open until 2am.

The matter was brought before the Court again seeking a change to the conditions of approval, on this occasion whether the tavern should have been permitted to operate for seven days per week.  Council argued for the application to be dismissed or, alternatively, that the trading hours be limited to 2am Thursday, Friday and Saturday nights and otherwise limited to 12am. The Court again found in favour of the applicant, determining that the tavern be permitted to operate until 2am, seven days a week.

The third occasion that brought the matter back before the Court, was for the consideration as to limiting the number of patrons at the tavern between the hours of 12am and 2am following a condition imposed by the Council:

“From 12.00am (midnight) to 2.00am, the number of patrons shall be limited to no more than 50.”

The cap of 50 patrons arose in the substantive proceedings where information provided by the tavern operators anticipated, even on their busiest nights (Friday and Saturday), that expected patronage numbers would be around 50 people.  Council, in support of their argument for the condition to remain, argued it was a simplistic condition that could be easily enforced without requiring sophisticated or complicated monitoring.  However, in response, the appellant argued the difficulty in determining which of the 50 patrons would be permitted to stay and which of those would be required to leave.

The Court rejected any connection to Covid-19 requirements as a basis for imposing the patronage limit, and found the condition could possibly give rise to “anti-social conduct” when being evicted from the premises, and determined that the number of 50 patrons arose in the substantive proceedings only as an estimate by the tavern operators.  The Court found that “while the number of patrons might be a relevant matter for the purposes of s 65 of the Planning Act, the condition under-challenged would place an unreasonable and indeed probably an unworkable imposition on the appellant” and as such allowed the appeal.

The decision serves as a reminder for local governments tasked with the responsibility of drafting planning conditions that they need to not only be relevant but also reasonable in accordance with section 65 of the Planning Act 2016.

Preston Law regularly assists local governments in planning and development matters.  Please contact our Local Government Team if you require further advice.

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