What weight should be given to a draft Planning Scheme or Planning Scheme Amendment?

A proposed amendment to a planning scheme may have drastic consequences for the development potential of land, particularly where land is proposed to be ‘down zoned’ or a more restrictive overlay constraint is proposed. There are a number of key issues which need careful consideration in terms of appropriately timing development in light of a proposed amendment to a planning scheme.

The starting point is that it is mandatory for the assessment manager to consider the application against the planning scheme in effect when the development application was properly made.[1]

The Coty Principle

In Queensland, the common law authority derived from the decision in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 is recognised. This case established the principle that it is possible to give some weight to planning decisions that are in train but which do not yet have the force of law.[2]

The decision in Coty was based on public interest considerations, in that while a council’s planning scheme was under consideration, the court should avoid, as far as possible, giving a judgment or establishing a principle which would render more difficult the ultimate decision as to the form the scheme should take and that it is also important and in the public interest, that during the drafting period, the court should, as far as possible, arrive at its judgment in consonance with town planning decisions which have been embodied in the local scheme in the course of its preparation.

Applying that principle, it was held that an approval, as sought in that case, for a new, large and permanent industrial building, would “cut across to a substantial degree the considered conclusion of the … council and its town planning committee”, as expressed in the draft planning scheme, that the relevant land should be zoned residential.[3]

The common law principle established in Coty has been applied extensively by Queensland courts, permitting weight to be given to a draft planning scheme or draft planning scheme amendment.

The most authoritative statements in respect of the Coty Principle are those of Fitzgerald P in Yu Feng Pty Ltd v Maroochy SC[4] and Thomas J in Lewiac Pty Ltd v Gold Coast City Council.[5]

Yu Feng established that when determining whether to approve or refuse a development application, it is permissible in appropriate cases for the assessment manager to take account of any provisions affecting the site which are included in a planning scheme in the course of preparation.

Lewiac is authority for the proposition that it is appropriate to take into account a draft planning instrument in determination of a development application. In this case, Thomas J emphasised that in assessing the weight to be given to a draft planning instrument, regard could be had to the planning strategies included in the daft document and to the stage which the draft had progressed to along its legislative path.[6]

How much weight?

The issue that requires further examination is the weight to be afforded to a draft planning scheme or a draft planning scheme amendment when assessing and deciding a development application already on foot.

Thomas J observed in Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 at 271, it is possible to give too much weight to a draft planning scheme or amendment to a planning scheme. His Honour in Lewiac held that:[7]

• It would be extraordinary if a planning strategy which was well on the way to adoption, or even adoption with amendment, could be frustrated by developments created in circumstances where neither the council nor the court could give any weight to the draft plan.
• That it is not to say that it should be given decisive weight, but in circumstances where one proposal is as good as another, it does not seem inappropriate that an existing draft plan be given some weight.
• It may of course be possible to give too much weight to a draft plan.

A key consideration in determining the weight to be given to a draft planning scheme or an amendment to a draft planning scheme is how far the scheme or amendments have progressed.

It was held in Ray Donaldson (Holdings) Pty Ltd v Mt Isa CC[8] that the further advanced the scheme is in the statutory process of preparation, the more cogent are arguments based on the Coty principle.

Quirk DCJ in Elan Capital Corporation Pty Ltd v BCC[9] refused a proposed development that had the potential to cut across the council’s planning strategy that was on the way to adoption. His Honour held that the draft plan should not be pre-empted by ad hoc development.

Other matters that will be relevant in determining the weight to be afforded to a draft planning scheme or planning scheme amendment include:

• whether there is a significant shift in the council’s planning intent for the area and whether approval of the proposed development would cut across that intent;
• fairness to the applicant in giving weight to the proposed draft planning scheme or planning scheme amendments; and
• whether there is any doubt about whether the proposed draft planning scheme or draft planning scheme amendment will be adopted.

Recent judicial consideration of the Coty principle

Recently the Planning and Environment Court in YQ Property Pty Ltd v Brisbane City Council & Ors[10] considered the weight to be given to a draft planning scheme amendment and how the Coty principle should be applied. In YQ Property, His Honour gave no weight to amendment package H to Brisbane City Plan. In summary it was held:

• It is mandatory for the assessment manager to consider the application against the planning scheme in effect when the development application was properly made and that this is the starting point.
• The appropriateness of taking into account draft planning controls is well established (Coty principle).
• It is important that draft planning controls are given effect where the intended development would permanently change the desired character and amenity of the area in question.
• The area surrounding the site already contained a number of uses including multiple dwellings and that the character would not change if the proposed development was approved. The proposed development would merely be another multiple dwelling development in an area where there are many, including another on similarly zoned land in the same block and another on the opposite side of the street.
• Other relevant considerations in exercising the discretion whether or not to give effect to the proposed amendment to a planning scheme include:
  • the applicant’s right to make a superseded planning scheme application;
  • the context of the surrounding area;
  • compliance with the relevant assessment benchmarks;
  • amenity impacts;
  • whether the proposed amendments have city wide effect or are site specific; and
  • whether the proposed development will cut across to a substantial degree the planning strategy evident in the amendment or make it more difficult for the council to give effect to this planning strategy in the future.

Ultimately, it will come down to an assessment of the draft planning scheme amendments in the context of the proposed development and the surrounding area. In YQ Property, His Honour DCJ Everson was influenced by the fact that the proposed development would not really be out of character when assessed against the existing character of the surrounding area.

Key takeaway

The Coty principle establishes that when determining whether to approve or refuse a development application that it is permissible, in appropriate cases, to take account of any provisions affecting a site which are included in a draft planning scheme or planning scheme amendment.

The weight to be given to either the consistency or inconsistency between the draft planning scheme or planning scheme amendment and the development application will depend on the circumstances, including the stage to which the draft planning scheme or planning scheme amendment has progressed, and this usually will be only one of the factors to be considered, although in a particular case it might be decisive.

While each case will turn on its own facts and circumstances, the general proposition is that the proposed amendment is relevant and there is a wide discretion as to what weight that will hold.

We highly recommend seeking advice as to the impact that a proposed draft planning scheme or planning scheme amendment may have on your proposed development.

[1] Section 45(6) and (7) of the Planning Act 2016 makes it apparent that the assessment manager is required to assess the development application against the statutory instruments that applied at the time the development application was properly made.

[2] See, for example, Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 at 270-271 per Thomas J (with whom Macrossan CJ and McPherson JA agreed); see also Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 at 328 per Fitzgerald P.

[3] Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125.

[4] [2000] 1 QdR 306 at 328

[5] [1996] 2 Qd R 266.

[6] At paragraph [98].

[7] At paragraphs [6] and [7].

[8] (1976) QPLR 109.

[9] (1999) QPELR 209.

[10] [2020] QPEC 2.