December 1, 2024

Following on from our previous articles, we will now look at what weight assessment managers can give to draft planning instruments when assessing development applications.

The guiding principle in these instances is what is known as the "Coty principle".

The Coty principle was established in the decision of Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty) and it allows draft planning instruments, not yet in force, to be given weight, especially if the subject development application conflicts with the planning intent of the draft instrument.

The Coty matter itself was an appeal against Sydney City Council's (SCC) refusal of a proposed industrial development on land that was in the process of being rezoned as 'Residential'. A new draft planning scheme had been submitted by SCC for Ministerial approval but had not yet been adopted. Under the new planning scheme (and subsequent rezoning), the proposed industrial development would not have been allowed on the subject land. The court gave weight to that circumstance in dismissing the appeal. The court noted that it should "avoid, as far as possible, giving judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take". In this instance, the court was of the view that an approval of the proposed industrial development would "cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole block should be zoned Residential…"

In Queensland, numerous cases have referred to and applied the Coty principle. Justice Thomas in the Court of Appeal case of Lewiac Pty Ltd v Gold Coast [1996] 2 Qd R 266 provided assistance regarding the Coty principle by stating:

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 plan as it had so far emerged. That 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 strategic plan be given some weight.

The case of Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 also sets in place the concept that assessment managers can take into account draft planning scheme provisions when assessing development applications.

More recent application of the Coty principle occurred in the matter of YQ Property Pty Ltd v BCC & Ors [2020] QPEC 2 (YQ) and its related appeal, BCC v YQ Property Pty Ltd [2020] QCA 253.¹

In this appeal (at first instance), his Honour Judge Everson was tasked with deciding an appeal against Brisbane City Council's (BCC) refusal of a development application for a multiple dwelling development in the low density residential zone.

The relevant issue before his Honour was whether the proposed development should be refused because it did not comply with the amendment to the planning scheme contained in major amendment package H (Package H). Relevantly, Package H was in draft at the time the development application was properly made and it effectively prohibited multiple dwellings in the low density residential zone.

In his Honour's view, the decisions in both Coty and Lewiac illustrated the importance of draft planning controls being given effect where the intended development would permanently change the desired character and amenity of the area in question. The facts in YQ, however, were very different.

In reaching his decision, his Honour noted that there were already numerous multiple dwellings in the vicinity of the site and the proposed development would have minimal impact on the amenity of the neighbourhood. Conversely, the amendments contemplated by Package H had city-wide effect. They were not focused particularly on the area where the site is located.

In his application of the Coty principle, his Honour was of the view that the proposed development would not cut across to a substantial degree the planning strategy evident in the amendment or make it more difficult for BCC and the court to give effect to this planning strategy in the future.

His Honour allowed the appeal and approved the proposed development, subject to conditions.

BCC was not happy with Judge Everson's decision and filed an application for leave to appeal in the Court of Appeal.

Among its grounds of appeal, BCC raised the issue that in reaching his decision, Judge Everson had misapplied the Coty principle and should have given determinative weight to Package H.

The Court of Appeal refused BCC's application for leave and endorsed the decision of Judge Everson.

In its consideration of BCC's grounds, the Court of Appeal noted that the Coty principle identifies two public interest considerations when considering development applications in circumstances where a new planning scheme is under consideration but has not yet taken effect. It was noted that each consideration was separately described in Coty as "important, in the public interest" and both shared the underlying principle that completely ignoring a draft plan would "frustrate, and tend to diminish public confidence in, the planning process". Justic Henry went on to say:

The first public interest consideration is the avoidance, as far as possible, of a judgment which would render more difficult the ultimate decision as to the form the planning scheme should take. The rationale behind that consideration is the desirability of the court not making a decision on a planning appeal in circumstances where it would make the democratic process surrounding the development of a new planning scheme more difficult. This first consideration, is sometimes referred to as the "non-derogation principle".

The second public interest consideration in the Coty principle is that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of its preparation. This consideration allows the court to take into account the terms of a draft scheme or other planning instrument before that draft instrument has entered into force. It is a concession to the reality that planning is an ongoing process and that it is unwise to ignore the future direction of a planning scheme when the development subject of the application will have to co-exist with whatever that future direction might be…

In his reasons, Justice Henry noted that Judge Everson had given regard to the existence of other multiple dwelling developments, contrasting this case with the facts of Coty in which the proposed development would have permanently changed the desired character and amenity of the local area.

Justice Henry agreed with Judge Everson in that YQ "was quite different from a case in which a development like a factory in Coty's case would so fundamentally alter a residential suburb as to cause obvious dissonance with the new planning scheme". Justice Henry found:

that the decision to allow a multiple dwelling development akin to others already dotted about a suburb in which detached dwelling houses will continue to predominate was reasonably open to his Honour. Indeed, that such predominance would continue told against a lack of consonance with the new planning scheme.

BCC also submitted that as per the findings of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, the greater the certainty a draft instrument will be adopted, the greater the weight that may be given to that draft - but BCC also conceded that this decision also recognized that consent may be granted to a development which does not comply with a draft instrument.

In his concluding remarks regarding BCC's submissions regarding the Coty principle, Justice Henry also noted that Council's position was at odds with the current statutory framework under the Planning Act.

His Honour stated that the starting position under s45(7) is that the assessment manager must assess the development application "against or having regard to the statutory instrument as in effect when the development application was properly made". His Honour made clear that:

… this provision does not eliminate the Coty principle. But to invariably accord a draft scheme determinative weight would be at odds with the express statutory obligation to assess a development application by reference to the instrument in operation at the time the application was made.

Secondly, s45(8) provides the assessment manager may give new instruments which have taken effect the weight considered appropriate. In this case, if the amendments had been so advanced that s45(8) did apply, this section:

… only allowed that the judge "may" have given the amended instrument the weight the judge considered appropriate. The retention of such discretion after a new instrument is in effect is inconsistent with Council's position that at an earlier stage the draft instrument is of determinative effect.

Further guidance in relation to weight being given that is proportionate to the maturity of a draft instrument was provided in Ray Donaldson (Holdings) Pty Ltd v Mt lsa City Council [1976] QPLR 109 where it was noted that the further advanced a scheme is in the statutory process, the more weight it can be given. In the Ray Donaldson case, it was stated that a draft that was in a very preliminary state did not carry anything like the weight which it would carry if it had gone through public consultation and been submitted to the Minster for approval.

Key takeaways

In simple terms (and drawing from the case law) it is important to consider the following when applying the Coty principle:

• Planning Intent: Consider whether the draft instrument reflects a significant change in the council's planning strategy for the area, and if approving the proposed development would undermine that strategy or complicate the council's ability to implement the plan in the future.
• Progress of the draft instrument: Consider the maturity of the draft instrument and whether there is any uncertainty about its adoption.
• Fairness to the applicant: Assess whether it is fair to give weight to the draft instrument, taking into account the timing of the amendments and the timing of the development application.
• Context and amenity impacts: Consider the neighbouring land uses and the development's potential impacts on local amenity.
• Compliance with existing assessment benchmarks: Evaluate the degree to which the proposal complies with the relevant assessment criteria.
• Scope of proposed amendments: Determine whether the proposed amendments will have a city-wide impact or are specific to the site in question.

But also remembering:

• The assessment manager's discretion under the Planning Act is broad.
• The discretion should be exercised having regard to proper town planning practice and principle.
• The facts and circumstances of each individual case will determine the weight to be attributed to the relevant assessment considerations (including any draft instruments).
• The ultimate decision must be a balanced decision in the public interest.

1. See also Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 146 for further, recent consideration of the Coty principle