SUPREME COURT OF QUEENSLAND

CITATION:	Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175	
PARTIES:	GLADSTONE REGIONAL COUNCIL
(applicant)
v
HOMES R US (AUSTRALIA) PTY LTD
ACN 103 492 217
(respondent)	
FILE NO/S:	Appeal No 89 of 2015
P & E No 3213 of 2014	
DIVISION:	Court of Appeal	
PROCEEDING:	Application for Leave Sustainable Planning Act	
ORIGINATING COURT:	
Planning & Environment Court at Brisbane – [2014] QPEC 66	
DELIVERED ON:	22 September 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	23 July 2015	
JUDGES:	Fraser and Morrison JJA and Flanagan J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made	
ORDERS:	1.	Grant the application for leave to appeal.
2.	Dismiss the appeal.
3.	Remit the matter to the Planning and Environment Court for the making of final orders, including any costs orders, in the appeal in that court against the refusal of the respondent’s development application.
4.	The applicant is to pay the respondent’s costs of the application and the appeal in this Court.	
CATCHWORDS:	ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – REFUSAL – OTHER MATTERS – where the applicant council issued a development permit to the respondent developer which approved a reconfiguration of the land on the condition that the respondent developer pay an infrastructure charge – where the Sustainable Planning Act 2009 (Qld) was amended in a way which, in relation to future approvals of this kind, precluded the imposition of infrastructure charges – where the respondent developer subsequently applied for an approval to reconfigure the same land – where the applicant council refused this application upon the ground that the development was inconsistent with the conditions of an existing development permit – where the primary court judge held that this case involved merely the substitution of a development permit for a more advantageous one – whether the second permit was a mere substitution – whether the primary judge gave adequate reasons
ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – REFUSAL – OTHER MATTERS – where the development permit required the completion of operational works – where the respondent developer had completed the operational works – where the applicant council alleged assessable development had commenced – where the applicant council relied upon the decisions of Genamson Holdings Pty Ltd v Caboolture Shire Council and Peet Flagstone City Pty Ltd v Logan City Council & Ors – whether assessable development had commenced – whether the decisions in Genamson Holdings Pty Ltd and Peet Flagstone City Pty Ltd were distinguishable
ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – CONSENTS, APPROVALS AND PERMITS – REFUSAL – OTHER MATTERS – where the applicant council alleged that the reconfiguration authorised by the first development permit would be approved by the second – where the applicant council alleged there was legislative intent which warranted the enlivening of discretionary grounds to refuse the development application – whether the development authorised by the second approval would have been authorised by the first – whether there was such an intent
Sustainable Planning Act 2009 (Qld), s 243, s 347(1)
Avel Pty Ltd v Jerdway Pty Ltd & Ors [1998] QPELR 62; [1997] QPEC 55, considered
Ballymont Pty Ltd & Anor v Ipswich City Council & Ors [2003] 2 Qd R 461; [2002] QCA 233, considered
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, cited
Genamson Holdings Pty Ltd v Caboolture Shire Council [2009] QPELR 305; [2008] QCA 374, distinguished
Liquorland (Australia) Pty Ltd v Gold Coast City Council & Anor (2002) 121 LGERA 197; [2002] QCA 248, considered
Peet Flagstone City Pty Ltd v Logan City Council & Ors [2015] QPELR 68; [2014] QCA 210, distinguished	
COUNSEL:	M Williamson, with M Batty, for the applicant
M Hinson QC for the respondent	
SOLICITORS:	MRH Lawyers for the applicant
Hopgood Ganim for the respondent	
[1]	FRASER JA:  In 2010 the applicant council issued a development permit to the respondent developer which separately approved both a material change of use of land at Calliope from Community Use to Village and the reconfiguration of the land into 66 residential lots.  The conditions of this reconfiguration approval (“the 2010 reconfiguration approval”) included conditions requiring the payment of infrastructure charges which, according to the applicant’s evidence, exceed $2,000,000.
[2]	In 2011 the Sustainable Planning Act 2009 (“the Act”) was amended by the Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011 in a way which, in relation to future approvals of this kind, precluded the imposition of a condition requiring payment of infrastructure charges and instead provided for an “adopted infrastructure charges notice”.  In 2014, the respondent applied for an approval to reconfigure the same land into 64 residential lots, a drainage reserve and a lot to accommodate a sewer pump station (“the 2014 application”).  According to the respondent’s evidence, the infrastructure charges payable by it under the amended Act in relation to approval of that application would amount to about $1,500,000.
[3]	The applicant refused the 2014 application upon the ground that the proposed development was inconsistent with the conditions of an existing development permit.  The Planning and Environment Court allowed the respondent’s appeal against the applicant’s refusal of that application.  The applicant now seeks leave to appeal from that order.  Such an appeal may be brought only upon the ground of error or mistake in law, or absence, or excess of jurisdiction.  The applicant contended for errors of law.  In accordance with the Court’s usual practice, argument on the application proceeded on the footing that the Court would dispose of the appeal if leave to appeal were granted.
Decision of the primary judge
[4]	In the Planning and Environment Court the applicant advanced argument in support of the ground of its refusal of the 2014 application.  Section 347(1)(a) of the Act precludes the imposition of a condition of a development approval which would be inconsistent with a condition of an earlier development approval still in effect for the development.  The only conditions of the 2010 reconfiguration approval upon which the applicant relied in that respect in the Planning and Environment Court were the conditions requiring the payment of infrastructure charges.  The primary judge rejected the applicant’s argument for the reason that (in my words) there could be no inconsistency such as is proscribed by s 347(1)(a) because the Act, as amended, precluded the imposition in an approval of the 2014 application of any condition requiring payment of infrastructure charges.  The applicant did not seek to challenge this aspect of the primary judge’s decision.
[5]	The applicant also argued in the Planning and Environment Court that there was a discretion to refuse the respondent’s application which should have been exercised on the grounds that:
(a)	Approval of the 2014 application would give rise to an inconsistency which would become manifest when a plan of reconfiguration was submitted to the applicant for compliance assessment, because the applicant then would become obliged to satisfy itself both of compliance with an operational works permit which incorporated the 2010 reconfiguration approval and of compliance with a new reconfiguration approval for the same development with different burdens.
(b)	Approval of the 2014 application would facilitate the respondent taking the benefit of the 2010 reconfiguration approval and the operational works permit whilst avoiding the burden of the condition requiring the respondent to pay the infrastructure charge.  In this respect the applicant invoked a doctrine submitted to be derived from Genamson Holdings Pty Ltd v Caboolture Shire Council and Peet Flagstone City Pty Ltd v Logan City Council & Ors that a developer who takes the benefit of a development approval cannot avoid the concomitant burdens of that approval.
[6]	The primary judge distinguished Genamson Holdings Pty Ltd v Caboolture Shire Council and Peet Flagstone City Pty Ltd v Logan City Council & Ors on the ground that the respondent was not seeking to avoid a legal obligation imposed by a condition of a development approval which was necessary for a development to occur lawfully; rather, what the respondent proposed was “merely the substitution of a development permit for reconfiguration of a lot with another which is more advantageous to the appellant from an infrastructure charges perspective as a consequence of the new regime”, there was “no discernible legislative policy intent which seeks to prevent developers making development applications to reduce their liability for infrastructure charges”, and “the tenor of the new regime is quite the opposite, seeking as it does to restrict the burden on developers in this regard.”  The primary judge observed that he could not discern any legislative intent warranting discretionary grounds which might justify refusal of the 2014 application.
The applicant’s case on appeal
[7]	The applicant repeated the arguments it had made in the Planning and Environment Court.  The applicant pointed out that the effect of s 245 of the Act was that the reconfiguration approval granted in 2010 and the operational works approval granted in 2012 attached to the land and would remain so even if the 2014 application were approved.  It argued that what the respondent proposed was not the substitution of a new reconfiguration approval for the 2010 approvals; the statutory provisions which might lead to the 2010 approvals ceasing to have effect did not operate in this case.  The applicant argued that a cancellation under Ch 6, Pt 8, Div 4 could not have been requested because development under the 2010 development approval had started (s 380(1)), no request had been made under Ch 6, Pt 8, Div 2 for a permissible change, and the provision for lapsing in s 341 did not apply.  It argued that the proposed reconfiguration was materially identical with the reconfiguration approved in 2010.  If the applicant were asked to endorse a plan of subdivision submitted with reference to an approval of the 2014 application, the respondent necessarily would also rely upon the 2010 reconfiguration approval and the applicant would be obliged to assess the plan for compliance with both approvals.  That was submitted to be so because the operational works permit, upon which the respondent would rely to prove that the operational works were lawfully completed, referred to the 2010 reconfiguration approval and included a condition that the conditions in that approval “also apply to this Development Permit”.  The applicant argued that Genamson and Peet were not distinguishable on the ground articulated by the primary judge, because the respondent had taken the benefit of the 2010 reconfiguration approval by completing the operational works pursuant to an operational works permit which itself was granted with reference to that reconfiguration approval.
[8]	I will discuss those arguments, and additional arguments the applicant advanced by way of challenges to the primary judge’s reasoning, under headings which set out the seven errors of law for which the applicant contended in its draft notice of appeal.
Appeal Ground (a): “erroneously holding that this case involved "merely the substitution of a development permit for reconfiguration of a lot with another which is more advantageous ... "”
[9]	An approval of the 2014 application would not bring the previous approval to an end.  Section 245(1) of the Act provides that “[a] development approval attaches to the land the subject of the application to which the approval relates and binds the owner, the owner’s successors in title and any occupier of the land.”  Section 245(2) provides that “[t]o remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured.”  That subsection is consistent with decisions that under the Act different development approvals for the same land may co-exist.
[10]	The 2010 reconfiguration approval has not been cancelled, made the subject of a request for a permissible change, or lapsed under the provisions of the Act which provide for those things, but it is not inevitable that it will remain in force at a time when the land is subdivided under the authority of an approval of the 2014 application.  For the reasons given in relation to appeal ground (b), the assessable development authorised by the earlier approval has not occurred.  If that approval has not lapsed, the applicant will be obliged to cancel it at any time before such development occurs upon a request for cancellation by the respondent in proper form accompanied by the required fee: Sustainable Planning Act 2009 (Qld), ss 379 – 381.
[11]	For those reasons there may be a “substitution”, not in the sense that the 2010 reconfiguration approval would cease to have legal effect upon the issue of a development permit pursuant to the 2014 application, but in the sense that from that time the respondent would pursue only the development authorised by the later approval and the respondent could bring about cancellation of the earlier approval.
Appeal Ground (b): “erroneously distinguishing two authorities, namely Genamson Holdings Pty Ltd v Caboolture Shire Council and Peet Flagstone City Pty Ltd v Logan City Council & Ors”
[12]	The applicant’s arguments under appeal ground (b) incorrectly assumed that something less than registration of a plan of subdivision amounted to ‘assessable development’ authorised by the 2010 reconfiguration approval.
[13]	Section 243 of the Act relevantly provides that a “development permit authorises assessable development to take place to the extent stated in the permit and subject to the conditions of the permit…”.  Such a permit therefore renders lawful a development which otherwise would be unlawful because of the provision in s 578(1) of the Act that “[a] person must not carry out assessable development unless there is an effective development permit for the development”.  The assessable development authorised by the development permit granted in 2010, the 2010 reconfiguration approval, is described as “reconfiguring a lot”.  Section 10 defines “reconfiguring a lot” as “creating lots by subdividing another lot”.  That occurs upon registration of a plan of subdivision, which can occur only after the plan of subdivision is approved by the local government.  It is a prerequisite for such an approval that the local government assess the plan of subdivision for compliance with the conditions of the development permit which authorised the reconfiguration and with the operational works permit which authorised the necessary operational works, and ensures that there are no outstanding local government rates or charges.
[14]	The applicant did not contend that the Act obliged the respondent to request such an assessment with reference to the 2010 reconfiguration approval.  As I have mentioned, the respondent could bring about cancellation of that approval before commencing any assessable development.  In any event, the evidence showed that the respondent had not made such a request, with the result that no plan of subdivision of the land has been registered.  It follows that no development authorised by that approval has occurred.
[15]	The relevant provisions of the 2010 reconfiguration approval were contained in the applicant’s “Changed Negotiated Decision Notice” of 12 October 2010.  Condition B2 required the respondent to obtain a development permit for operational works before proceeding with the construction works for the reconfiguration.  A condition of that permit provided that the conditions in the 2010 reconfiguration approval also applied to the development permit. (The applicant acknowledged in the course of argument that the operational works permit incorporated only those conditions of the 2010 reconfiguration approval which concerned the operational works; it did not incorporate the conditions requiring the payment of an infrastructure charge.)  It follows from [13] – [14] that the grant of the operational works permit and the completion of the work authorised by it did not amount to assessable development authorised by the 2010 reconfiguration approval.  That work was assessable development of the kind described in s 10(1) of the Act as “operational work”.  It was authorised by the operational works approval.  The fact that the grant of the operational works permit and the completion of that work satisfied conditions of the 2010 reconfiguration approval does not suggest that assessable development of reconfiguring a lot authorised by that approval occurred.  Similarly, if a compliance assessment under an approval of the 2014 application will include a check that the conditions of the operational works permit have been fulfilled, that does not mean that the assessable development authorised by the 2010 reconfiguration approval will have occurred.
[16]	It may be said that the respondent derived from the 2010 reconfiguration approval an indirect benefit in the sense that the operational works permit was issued with reference to that approval.  It may also be said that the permit gave the respondent legal authority to complete work which will be required to fulfil the conditions of an approval of the 2014 application.  (In the Planning and Environment Court the respondent submitted that the operational works permit was consistent with the layout plan in the 2014 application.)  However, the applicant did not point to any provision of the Act or any case which suggests that a benefit of that kind is relevant in the present context.
[17]	It was held in Genamson that a developer who undertook a development which was authorised only by a particular rezoning approval was obliged to comply with the conditions of that approval; that was the “plain effect” of provisions of the Integrated Planning Act 1997 (Qld).  It was held in Peet that the conditions of a development approval for vegetation clearing, which were not expressed in a way which limited its currency to the duration of the clearing work, did not terminate when that development was completed.  In those cases development authorised by the approvals had taken place.  As the primary judge concluded, the developer sought to avoid the legal obligations imposed by the conditions of development approvals which were necessary for that development to occur lawfully.
[18]	This case is quite different.  The condition which the applicant seeks to enforce is attached to an approval for a reconfiguration which has not occurred, that approval might lapse or be cancelled before there is any development, and the respondent applies for approval of a different reconfiguration which will not contain that condition.
Appeal Grounds (c) and (d): “erroneously holding that there was a discernable legislative policy intent which encourages developers making development applications to reduce their liability for infrastructure charges” and “erroneously holding that the legislative policy intent referred to in (c) above was evidenced by reference to extrinsic material rather than by exhausting the application of the ordinary rules of statutory interpretation in their application to the Sustainable Planning Act 2009”
[19]	In relation to paragraphs (c) and (d) of the draft notice of appeal, the respondent did not contest the applicant’s submission that the Explanatory Notes do not support the proposition that the amendments made to the Act in 2011 were designed to restrict the burden of infrastructure charges upon developers imposed by conditions of an approval granted before the enactment of those amendments.  The Explanatory Notes are silent upon that point, as is the Act.  As the respondent submitted, however, that is of no moment.  No provision in the Act prevented the respondent from making a new development application for a different reconfiguration after the commencement of the amendments.  The infrastructure charges regime introduced by the amendments necessarily would apply in relation to an approval of that application.  It is not necessary to consider the questions about legislative policy which these grounds of appeal seek to agitate.
Appeal Ground (e): “erroneously holding that the no legislative intent could be discerned that warranted the enlivening of any discretionary grounds which would warrant refusal of the development application before the Court”
[20]	Under appeal ground (e), the applicant argued that the primary judge should have exercised a discretion to refuse the application on the grounds set out in [5](a) and (b) of these reasons.
[21]	The proposition in [5](b) is wrong for the reasons given in relation to appeal ground (b).
[22]	The proposition in [5](a) assumes that when the respondent submits a plan of reconfiguration for compliance assessment under an approval of the 2014 application the same development will be authorised by the 2010 reconfiguration approval but upon different conditions.
[23]	Plainly enough the proposed developments are not the same.  The differences are set out in the following passage of an affidavit by the respondent’s consulting engineer:
“(a)	the Approved Plan of Subdivision shows 66 residential lots.  The New Plan of Subdivision shows 64 residential lots, plus a drainage reserve (over old lots 13, 14 and 15) and a separate lot for the sewer pump station;
(b)	there have been changes to the lot sizes, most notably:
(1)	Lot 1 was previously 937m2 and is now 818m2;
(2)	Lot 12 was previously 900m2 and is now 702m2;
(3)	Lots 31 and 32 (now lots 29 and 30) were previously 645m2 and are now 600m2;
(4)	Lot 33 (now lot 31) was previously 645m2 and is now 604m2;
(5)	Lot 34 (now lot 32) was previously 800m2 and is now 698m2;
(6)	Lot 46 (now lot 44) was previously 826m2 and is now 671m2;
(7)	Lot 52 (now lot 50) was previously 962m2 and is now 983m2;
(8)	Lot 53 (now lot 51) was previously 720m2 and is now 792m2;
(c)	There [have] also been changes to the lot sizes for lots 2 to 11, 16 and 17 (now 13 and 14), 18 and 19 (now lots 15 and 16), lot 29 (now lot 26), lot 26 (now lot 34) and lot 62 (now lot 60);
(d)	The stage boundary has changed to include lot 31 (now lot 28) in stage 2 rather than stage 1; and 
(e)	The internal road layout has changed, particularly the connection onto Tarrawonga Drive.  “Road B” shown on the Approved Plan of Subdivision approached Tarrawonga Drive on an angle.  “Woodward Avenue” shown on the New Plan of Subdivision now has a more direct approach to Tarrawonga Drive.”
[24]	In oral argument the applicant retreated from the proposition that the plans were the same but it contended that a reconfiguration authorised by an approval of the 2014 application would also be authorised by the 2010 reconfiguration approval because the differences were minor.  The applicant relied upon the circumstances that documents lodged with the application described it as being for “re-approval” and that the evident purpose of the 2014 application was to reduce the burden of infrastructure charges.  Those matters do not bear upon the proper characterisations of the proposed reconfigurations.  If their degree of similarity is relevant, it must be ascertained objectively by comparing the plan approved under the 2010 reconfiguration approval with the plan accompanying the 2014 application.  Contrary to another of the applicant’s arguments, the respondent’s counsel did not concede in the Planning and Environment Court that the new reconfiguration was generally in accordance with the 2010 reconfiguration approval.  The relevant discussion instead concerned a comparison between the work done under the operational works permit and the reconfiguration sought in the 2014 application.
[25]	The number and nature of the differences between the two plans, particularly the different numbers and sizes of proposed lots, makes it difficult to accept that a development authorised by approval of the 2014 application inevitably would also be authorised by the 2010 reconfiguration approval, but it is not necessary to express a conclusion on that question or upon the consequences of such a conclusion.  The proposition in subparagraph [5](a) is wrong in any event.  For reasons given in relation to appeal ground (b), the 2010 reconfiguration approval might lapse or be cancelled before the respondent submits a plan of reconfiguration for compliance assessment under an approval of the 2014 application.  It cannot be assumed that the latter approval would contain any condition requiring the applicant to assess compliance with the operational works permit in a way which would require reference to the 2010 reconfiguration approval.
[26]	Furthermore, the propositions in [5](a) and (b) would in any event be irrelevant considerations in a decision upon the 2014 application.  The applicant argued that the Planning and Environment Court was given a broad discretionary power to refuse a development application which did not exclude consideration of the material upon which the applicant relied.  In that respect, s 496 of the Act empowers that court to make the orders and directions it considers appropriate and s 496(2) provides that:
“Without limiting subsection (1), the court may - (a) confirm the decision appealed against; or (b) change the decision appealed against or (c) set aside the decision appealed against and make a decision replacing the decision set aside.”
[27]	These provisions say nothing about the matters which are properly to be taken into account by the Planning and Environment Court in deciding upon the appropriate orders in a planning appeal.  When that court is standing in the shoes of the original decision-maker, the matters which may be taken into account are those which are identified by the relevant provisions of the Act.  The 2014 application required code assessment.  Section 324(2) relevantly provides that “[t]he assessment manager’s decision must be based on the assessments made under division 2”.  Section 313(2) is in division 2.  It obliged the applicant to assess the application “against each of the following matters or things to the extent the matter or thing is relevant to the development”.  The relevant matters are planning provisions of various kinds.  Section 313(3) provides:
“In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess … the application having regard to the following –”
[28]	The applicant argued that sub-paragraph (a) (“the common material”) made relevant the statements in the documents accompanying the 2014 application describing it as seeking “re-approval” of the 2010 reconfiguration approval and suggesting that its purpose was to reduce the amount of infrastructure charges.  The applicant argued that sub-paragraph (b) (“any development approval for, and any lawful use of, premises the subject of the application or adjacent premises”) made relevant the 2010 reconfiguration approval and the operational works permit.  Those arguments overlooked the obligation imposed by s 313(2) to assess the 2014 application “against” various planning provisions.  No doubt the assessment manager must have regard to the matters identified in s 313(3), but that must occur in the course of an assessment against the planning provisions identified in s 313(2).  Something which has no potential bearing upon the application of any relevant planning provision cannot be a relevant consideration in the decision.  If it were otherwise, a developer could seek to skew a planning decision by including in the “common material” promises to benefit a local government in ways which are wholly extraneous to the purposes of the Act.
[29]	The substantial and intended effect of the applicant’s argument in support of the propositions in [5](a) and (b) was that the applicant was entitled to take into account as a factor supporting refusal of the 2014 application that the respondent’s purpose in seeking a new approval was to reduce the amount of the infrastructure charges payable by the respondent to the applicant as a condition of developing the land by subdivision.  The applicant did not contend and it is not the case that such a purpose has any potential relevance in an assessment against the planning provisions specified in s 313(3); the evidence in the Planning and Environment Court was to the effect that the 2014 application complied with the relevant planning provisions.
[30]	The applicant relied upon the statement by Fryberg J in Ballymont Pty Ltd & Anor v Ipswich City Council & Ors that, “[i]n theory, [the Planning and Environment Court, sitting in place of the local government] might be satisfied in a particular case that there were sufficient planning grounds to justify approving the application, despite a conflict with a strategic plan; but that for other town planning reasons, the application should nonetheless be refused.”  The “other town planning reasons” presumably referred to planning provisions against which the application was to be assessed.  The statement does not advance the applicant’s argument.
Appeal Ground (f): “failing to give adequate reasons”
[31]	In relation to paragraph (f) in the draft notice of appeal, the applicant submitted that the reasons of the primary judge were inadequate in three respects.  First, the applicant relied upon the absence of any reference in the primary judge’s reasons to s 245 of the Act.  In this respect, the applicant’s submission in the Planning and Environment Court was that the 2010 reconfiguration approval would remain in effect if the 2014 application were approved, even after registration of a plan of subdivision in accordance with the later approval.  That was said to rebut an argument by the respondent that, upon approval of the 2014 application, conditions attaching to the 2010 reconfiguration approval would “fall away, because the parent lot no longer exists.”  Secondly and thirdly, the applicant argued that the primary judge’s reasons with respect to “substitution” and the arguments about discretionary refusal of the application amounted only to assertions.
[32]	In my respectful opinion, the primary judge’s reasons do not adequately explain what is meant by “substitution” (see [10]-[11] of these reasons) or why the applicant’s proposition in [5](a) of these reasons does not justify refusal of the application (see [20] – [30] of these reasons).  The applicant’s arguments upon these points were not so weak as to justify not adverting to them at all.
Appeal Ground (g): “allowing the appeal and denying the Local Authority the opportunity to be heard in relation to the imposition of conditions of approval”
[33]	In relation to ground (g) of the draft notice of appeal, the only order made by the primary judge was to allow the appeal to the Planning and Environment Court against the refusal of the 2014 application.  If appropriate conditions can be formulated, the application should be approved upon those conditions.  The primary judge’s order allowing the appeal does not preclude the applicant from insisting upon an opportunity to be heard in relation to such conditions.
Disposition and proposed orders
[34]	I would grant leave to appeal on the ground that the primary judge’s reasons are inadequate but would dismiss the appeal for the reasons I have given.  Nevertheless, it is appropriate to make an order to reflect the parties’ agreement that, in the event that the challenge in this Court failed, the matter should be remitted to the Planning and Environment Court for final orders, including any orders about conditions and costs in the Planning and Environment Court.
[35]	I would make the following orders:
1.	Grant the application for leave to appeal.
2.	Dismiss the appeal.
3.	Remit the matter to the Planning and Environment Court for the making of final orders, including any costs orders, in the appeal in that court against the refusal of the respondent’s development application.
4.	The applicant is to pay the respondent’s costs of the application and the appeal in this Court.
[36]	MORRISON JA:  I have read the reasons of Fraser JA and agree with those reasons and the orders his Honour proposes.
[37]	FLANAGAN J:  I agree with the reasons of Fraser JA and with the proposed orders.