Raftopoulos v Brisbane City Council [2012] QCA 84

Background

This matter was an application for leave to appeal to the Queensland Court of Appeal (QCA) against a decision of the Planning and Environment Court.

Raftopoulos owned land he intended to develop by building townhouses. A development application, signed by Raftopoulos, was lodged with the Brisbane City Council (‘Council’) for a development permit for a multi-unit dwelling. A Decision Notice approving the development was later given on conditions. At the time, none of the conditions were thought to be contentious. The Council was notified of acceptance of their decision and it was indicated that no right of appeal to the Planning and Environment Court would be exercised.

However, Raftopoulos did not proceed with his development. The reasons are not apparent, but it seems the conditions were too onerous to comply with. Raftopoulos and the Council exchanged correspondence over the course of a number of months, in which Raftopoulos asserted that he was owed $2.2 million compensation pursuant to s 5.4.5 of the Integrated Planning Act 1997 (“IPA”).1 He alleged that a number of the conditions were “erroneous” and noted that the Council “failed to amend the conditions in the Planning and Development Certificate causing major losses.”

The Council denied that it had “any liability”, noting that Raftopoulos “never applied for a Planning and Development Certificate that would justify [his] claim.”2 The Council also disputed that the conditions were erroneous, specifically referring to condition 30 and noting that it was “on any test … a lawful condition.” Raftopoulos’s claim for compensation was rejected.

Planning and Environment Court Decision

In July 2011 Raftopoulos filed a notice of appeal in the Planning and Environment Court against the decision by the Council to deny his claim of compensation under s 5.4.5 of the IPA. His grounds of appeal included that the Council “has a statutory duty … to provide a Development Approval Certificate free from errors and omissions” and the Development Approval Certificate he received contained errors “of such a serious nature that they could not be complied with to obtain building approval.”

In response, the Council pointed out that Raftopoulos never applied for the issue of a Planning and Development Certificate. The Council also noted that although the IPA contained provisions, which conferred rights on dissatisfied Applicants for Development Approval, allowing them to challenge the refusal of an application or conditions imposed on an approval, the Applicant did not exercise any such right.

Accordingly, the Council applied to have the appeal dismissed summarily on the basis that an essential precondition to the right to claim compensation did not exist. The Judge at first instance accepted the Council’s arguments and ordered that the appeal be dismissed. His Honour noted the following:

It is immediately obvious that, as part of the statutory scheme, … the ingredients … in the statutory cause of action conferred by … section [5.4.5] are an error in the certificate, the loss which is financial and which is a loss because of an error or omission and that this is an error which is contained within a planning and development certificate.

The question which has been raised … concerns whether there was, in fact, a Planning and Development Certificate in existence. I am of the opinion that this statutory remedy is available only in circumstances where there is or was in existence a Planning and Development Certificate.

The evidence in this matter clearly demonstrates that there was an approval for a development at the subject property, subject to conditions. The second matter … which is pellucidly clear, is that there is no and there has never been in existence a certificate of the type contemplated by the statutory regime.

Court of Appeal Decision

Chesterman JA noted that, at face value, Raftopoul’s assertion was that “the failure of his development, and his lost profits, were caused by his inability to proceed with his development, because there were conditions he could not comply with.”

The applicant’s argument had two basic premises:

  1. that a Decision Notice and a Planning and Development certificate are identical in content and function;
  2. the conditions he objected to in the Decision Notice of 8 August 2007 were “errors”.

His Honour explained that Raftopoulos’s argument did not “come to grips with the statutory conditions which must be satisfied before a claim for compensation may succeed.” The right to claim compensation is limited to financial loss caused by erroneous or incomplete information in a Planning and Development Certificate, and no other document.

In regards to the first ground, His Honour stated that Raftopoulos “confuses and conflates the nature and function of a Decision Notice with the notice and function of a Planning (and Development) Certificate, apparently because a planning certificate respecting his land contains information about the decision notice and its attendant conditions.” However, Chesterman JA notes that this is an “obvious mistake” as there is “no necessary identity between the two types of document.”

In regards to the second ground, His Honour noted that the approval which the Council gave to Raftopoulos’s development authorised him to proceed with his proposed development subject to the conditions imposed. The conditions complained of were not ‘errors’. Apart from a misdescription of a tree, there was nothing erroneous in the contents of the Decision Notice or the conditions. Chesterman JA noted that “the approval accurately set out the conditions on which the development was allowed to proceed. To the extent that the approval contained information what it said was correct. The conditions did not wrongly state what had to be done to comply with them.”

In conclusion, Chesterman JA stated the following:

“Judge Griffin rightly struck out the applicant’s appeal. His Honour relied upon the absence of a certificate to conclude that the statutory right to compensation had not arisen. His Honour was, with respect, quite right in that regard. More fundamentally the applicant’s claim failed because the alleged loss of profits was not caused by any error in information provided by the respondent. Any loss was caused by the applicant’s incapacity to comply with the conditions for his development which were accurately stated in the decision notice.”

Raftopoulos also raised a number of complaints about the Planning and Environment Court hearing, protesting that he was denied a fair hearing. These complaints were dismissed by His Honour as lacking substance.