Bell 13Nov2019 · RAL19/0011

 Blake Bell                                                                          13 November 2019



Assessing and Deciding the Application

As noted above, the application is code assessable.

The application must be assessed in accordance with section 45 (3) of the Planning Act 2016 which
requires that the assessment be carried out only:

    1. against the assessment benchmarks in a categorising instrument for the development; and
    2. having regard to any matters prescribed by regulation for this paragraph.

Sections 26 and 27 of the Planning Regulation identifies additional matters for the assessment of
code assessable applications.

Of the assessment benchmarks identified in the Act and Regulations, the assessment against the
applicable parts of the Planning Scheme is the most relevant for present purposes.

By reference to Table 8.9 in the Planning Scheme, the application is to be assessed against the
following codes:

    1.   Mary River Catchment Locality Code; and
    2.   Reconfiguring a Lot Code; and
    3.   Landscaping Code; and
    4.   Engineering Works Code.

The Locality Code and the Reconfiguring a Lot Code are the most relevant to this advice.

We have reviewed both of those Codes and have been unable to identify a provision which
stipulates minimum, pre-existing characteristics of the lots proposed to be reconfigured, nor have
we identified any requirement for an applicant to demonstrate the utility of the existing lots.

The application must be decided in accordance with section 60 of the Planning Act. The Planning and
Environment Court has said this about deciding code assessable applications:

         [7] As the development application giving to the appeal was code assessable, s 45 of the PA
         states that the assessment must only be carried out against, relevantly, the assessment
         benchmarks which, in the circumstances before me, are found in the planning scheme.
         Unlike impact assessment, the court cannot have regard to relevant matters as defined in s
         45(5) of the PA. Pursuant to s 59(3) of the PA, the decision of the court must be based on an
         assessment against the assessment benchmarks, subject to s 60, with relevantly provides:

                 “(2) To the extent the application involves development that requires code
                 assessment… the assessment manager, after carrying out the assessment –

                         (a) must decide to approve the application to the extent the development
                         complies with all of the assessment benchmarks for the development; and

                         (b) may decide to approve the application even if the development does not
                         comply with some of the assessment benchmarks; …”

         [8] As Williamson QC DCJ observed in Klinkert v Brisbane City Council:

                 “The discretion is expressed in permissive (‘may’) and broad terms. It is subject to an
                 important constraint, namely the constraint expressed in s 59(3) of the PA requiring


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