12/12 SUNSHINE COAST REGIONAL COUNCIL v MC PROPERTY INVESTMENTS PTY LTD (NO 3) [2012] QPEC 12

(JM Robertson DCJ - 1 March 2012)

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Application for contempt of court – s 439 Sustainable Planning Act 2009 – r 930 Uniform Civil Procedure Rules 1999

Facts: This was an application by the Council for an order that the respondent be punished for contempt of Court for contravention of an order of the Court.

An earlier order was made on 13 October 2011 requiring payment of contributions by the respondent within 28 days of the order. 

The parties had agreed on new timeframes for payment in a deed. 

Decision: The Court held that in light of what was effectively a plea of guilty, contrition and remorse expressed by the respondent and the purging of the contempt by the deed, the order was that payments be made in accordance with the deed and a fine of $1000 be payable by the respondent for contempt.

13/12 BRISBANE CITY COUNCIL v WATSON & ANOR [2012] QPEC 15

(Rackemann DCJ - 13 March 2012)

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Building and Development Committee powers in an appeal–whether the Committee can direct the Council to make an alternative decision or should make the decision themselves – error of law and jurisdiction – balance of convenience favours making order – s 564, Sustainable Planning Act 2009

Facts: The Brisbane City Council (Council) appealed against a decision of the Building and Development Committee (Committee) which set aside an earlier decision of the Council to refuse a request to extend the period of an approval and directed the Council to approve the extension.

The Council accepted that the Committee had the power to set aside the Council’s decision but contended that the Committee erred in purporting to make a decision under section 564(2)(c) of the Sustainable Planning Act 2009 (SPA) directing the Council to approve the extension.

The Council submitted that the Committee:

  1. fell into error in formulating its orders or directions to give effect to its substantive decision; and
  2. should have made its own decision replacing that of the Council.

The Council sought orders which would remit the matter to the Committee for decision according to law. The Court also considered whether the Committee’s direction to the Council was within jurisdiction otherwise, even if it did not fall within section 564(2)(c) of the SPA.

The Council submitted that the more generally expressed power in subsection 564(1) did not extend to remitting this matter to the Council with the direction that it approve the extension. Council relied upon cases such as R v Dodds Ex parte Smith [1990] 2 Qd R 80; Capuano v Q-Comp [2005] 1 Qd R 232 and Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] CLR 672 to submit that the provisions of subsection (1) should not be read to include a power of a remitter beyond the express and limited power stated in section 564(2)(d)(i).

Decision: The Court held that:

  1. An appeal to the Court from a decision of the Committee is limited by section 479 of the SPA to errors or mistakes in law or want or excess of jurisdiction.
  2. Pursuant to section 564(2)(c) the Committee may set aside the decision appealed against and may then make its own decision replacing the decision set aside. The order made, purportedly pursuant to section 564(2)(c) did not do that.
  3. In purporting to act under section 564(2)(c) the Committee was in error as to what it was permitted to do, pursuant to that subsection.
  4. The direction of the Committee did not fall under any other part of section 564(2).
  5. The obligation of the Committee in making its decision was to make orders and give directions to dispose of the matter before it. Sometimes these orders will leave something further to be done by the decision-maker at first instance. His Honour found that this was not such a case.
  6. There was no occasion to remit the matter to the Council.
  7. The appeal is allowed and the matter is remitted to the Committee for decision according to law.

14/12 ELESANAR CONSTRUCTIONS PTY LTD v DEPARTMENT OF MAIN ROADS AND TRANSPORT & ORS [2012] QPEC 16

(Judge CF Wall QC DCJ - 1 March 2012)

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Application regarding compliance with requirement for service of notice of appeal on submitters – whether letter and notice of election misleading – s 4.1.41 Integrated Planning Act 1997

Facts: This was an application regarding whether a letter serving a Notice of Appeal and enclosing a draft notice of election was misleading and likely to mislead a reasonable person and whether the notice of appeal was given in compliance with section 4.1.41 of the Integrated Planning Act 1997 and more particularly section 4.1.41(1)(a)(iv), requiring service of a written notice of appeal on submitters.

The Appellant forwarded a sealed copy of its Notice of Appeal to each submitter under a covering letter which stated:

“You are a submitter to the application for sand processing application on Lot 176 and Elesanar has filed in Southport to make it easier for you to attend the Court. A notice of election form PEC 6, should be filed and provided to us so that you can be heard in the proceedings if you so wish. An email address would be helpful.”

“As you can see from the notice of appeal Elesanar is concerned that there should be conditions of development approval that: 16.1 Landscaping to be in accordance with that shown in plan 002Rev1 annexed and marked “MRA”; 16.2 For so long as the use continues on the subject site existing trees and bushes including the long-leaved tuckeroo along the site’s boundary with the Pacific Highway are to be maintained. Elesanar would like your support in the present Court action for conditions 16.1 and 16.2 noted above. And hence the Notice of Election enclosed refers to that if you so wish and a copy could be given to us after signature and filing with the Court.”

The enclosed Notice of Election included the statement:

“I wish to support the conditions proposed by the Appellant Elesanar Constructions Pty Ltd as condition 16.1 and 16.2. I do not agree with the Bermuda Street extension shown on attachment “z” to the Notice of Appeal”.

The notice on the last page of the Notice of Appeal was in the appropriate form.

The Third Respondent Council argued that the submitters would have been misled by the letter and the draft Notice of Election. The Third Respondent submitted that:-

  1. the effect of the notice was tainted by the statements in the accompanying letter and enclosed draft notice of election; and
  2. the statements were misleading and likely to mislead a reasonable person into believing that the election given to the submitters was one which could only be taken up if the submitters supported the appellant’s position.

Decision: The Court held that:

  1. The letter serving the notice of appeal on the submitters and the proforma Notice of Election sent with it:
    1. were misleading and misinformed the submitters of their rights;
    2. adversely affected the submitters awareness of their rights as potential respondents,
    3. restricted their opportunity to exercise rights which submitters have in the case of an appeal; and
    4. reference to conditions 16.1 and 16.2 only may have given the impression that any right to elect to become a respondent to the appeal was a right which was limited to argument about those conditions.
  2. There had not been compliance with section 4.1.41(1)(a)(iv) in relation to service of the written notice of appeal on the submitters.
  3. Ordered that an amended notice of appeal be served on the submitters.
  4. Costs of the application reserved as a result of non-compliance with section 4.1.41.

15/12 EASTPOINT MACKAY P/L V MACKAY REGIONAL COUNCIL & ANOR [2012] QPEC 20

(Robertson DCJ - 16 March 2012)

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Practice and procedure – where developer seeks to change condition of preliminary development approval by this Court – where original unsuccessful submitter appellant seeks to be joined as a party – where developer opposes leave – where Council and DERM support leave being given – whether the presence of the submitter would be desirable and just to enable the court to effectively adjudicate

Facts: This was an application in pending proceeding brought by Mackay Conservation Group Inc (MCG) for an order pursuant to r. 69(1)(b) of the Uniform Civil Procedure Rules 1999 that it be included as a party to an application by Eastpoint Mackay Pty Ltd (Eastpoint) to amend a condition of a preliminary development approval, which condition was imposed as part of a suite of conditions imposed by the Court after a lengthy unsuccessful appeal by MCG as an adverse submitter against Council’s decision to approve the development.

The condition which Eastpoint wished to change was condition 2 of the preliminary approval which limited the period in which it had to construct the hotel part of the development to five years from the commencement of the currency period and after the development of not more than 154 residential detached housing lots in stages 1 and 2 of the development. No housing lots had been established. The period for constructing the hotel had in fact elapsed, but by order of the Court had been extended to the determination of Eastpoint’s application by the Court. Eastpoint wished to extend the period by three years.

The construction of the hotel was a critical factor in the Court originally determining that the proposal, which included a significant residential component, came within the various relevant descriptions in the planning scheme, thus leading to the Court’s opinion that there was no conflict with the planning scheme.

The originating application sought to change condition 2 of the development approval on the basis that it was a permissible change for the purposes of s. 367 of the Sustainable Planning Act 2009 (SPA). The originating application was opposed by both Council and the DERM.

Eastpoint had also made a request to Council pursuant to s. 383(1) of the SPA to extend the period in condition 2, and the appeal was against Council’s deemed refusal of that request.

All parties agreed that if MCG’s application was successful it should be joined as a party to the appeal, which by consent would be consolidated with the originating application.

Decision: The Court held that:

  1. Despite the confined nature of the issues to be determined on the application, it was difficult to conceive how the actual submitter appellant MCG, undoubtedly a highly credentialed and responsible entity with a public interest agenda in the Mackay region, which conducted the lengthy and expensive appeal which resulted in a raft of conditions including condition 2, should now be shut out of the proceedings.
  2. It was difficult to see how MCG would satisfy the first limb of r 69(1)(b) but the wider ambit of the second limb lead comfortably to the conclusion that MCG was an entity whose presence before the Court would be desirable, just and convenient to enable the Court to determine effectively and completely the issue raised on Eastpoint’s application and appeal.

16/12 FORMOSA & ANOR V MAROOCHY SHIRE COUNCIL (NO 2) [2012] QPEC 21

(Robertson DCJ - 16 March 2012)

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Compensation – where Appellants awarded compensation for reduction in value of their land as a result of planning scheme amendment – Interest – Where Respondent submits that the Court’s practice of applying the default judgment rate should not be followed, and that commercial rates should apply – Delay – Where appeal lodged against refusal of claim for compensation and no steps taken for four years – where leave to proceed given only after Court initiated activation of file – whether in all the circumstances the delay was unreasonable

Facts: This was an application for interest on a sum of $350,000 which the Court had ordered Council to pay the Appellants for injurious affection pursuant to s. 5.4.2 of the Integrated Planning Act 1997 (IPA) as being the reduction in value of the Appellants’ land at 92 Memorial Drive, Eumundi resulting from amendments to the Respondent’s planning scheme which came into effect on 7 May 2002.

The Appellants had originally appealed against Council’s refusal of their development application for Sunday markets. That appeal was dismissed on 25 November 2005.

A claim for compensation in the amount of $1,635,000 was then made to Council on 24 May 2006. That claim was refused, and the appeal against that refusal was filed on 8 September 2006.

No formal step was taken in the compensation appeal until it was brought on for review by the Court in 2010. An order was subsequently made granting leave to the Appellants to proceed, notwithstanding the failure to take any step for a period in excess of two years.

The Court’s Judgment in relation to the amount of compensation payable was made on 16 December 2011.

It was common ground that the Court had a broad discretion to award interest on unpaid monies, and that s. 47(1) of the Supreme Court Act 1995 applied.

The Appellants conceded at hearing that interest was to be calculated from the date the Court dismissed the original appeal against Council’s refusal of their development application (25 November 2005).

However, it was argued by Council that the Appellants had “unreasonably delayed” the compensation appeal such that the interest component should be calculated for only 2.5 years of the six years between the date of the Court’s dismissal of the original appeal and the Court’s Judgment in the compensation appeal on 16 December 2011. The Appellants filed an affidavit setting out reasons for the delay, which was unchallenged by Council.

In relation to the rate of interest to be applied, the Appellants submitted that the Court should follow the practice adopted by previous Courts in applying the rate applicable to default judgments when judgment is given. This would mean applying interest rates of 9 per cent up to 30 June 2007 and 10 per cent thereafter. 

Council submitted that the Court should allow interest at 5.5 per cent being the average rate since 2006 by reference to the ten year Government Bond Rate published by the Reserve Bank of Australia, on the basis that the Appellants were entitled to interest as part of “reasonable compensation”.

Decision: The Court held that:

  1. Mere delay was not enough to lead to a reduction in the time over which interest was to be paid; it was only if the circumstances permit of the description “unreasonable delay” that a Court might (not must) reduce the period of time.
  2. A careful analysis of the circumstance that pertained during the four year period characterised as an unreasonable delay by the Council was persuasive that the delay in all the circumstances was not unreasonable. It followed that the Appellants were entitled to interest for the whole period from 25 November 2005 to Judgment on 16 December 2011.
  3. No case could be found, or had been referred to by the parties, in which the rate of interest to be applied seemed to be in dispute. It seemed to have been accepted that the default judgment interest rate applied without any analysis as to why in a particular case that should be so.
  4. The default interest rates throughout the relevant period were well above the commercial rate. Taking into account that generally bank term deposit rates were higher than Bond yields, and inferring that the Appellants would have re-invested the monies for another three years prior to the significant drop in term deposit rates in late 2008 consequent upon the Global Financial Crisis, a rate of 7.5 per cent per annum to be applied throughout the relevant period was just and fair.

17/12 SERBIAN ORTHODOX CHURCH SCHOOL CONGREGATION SVETI NIKOLA V BRISBANE CITY COUNCIL & ANOR [2012] QPEC 22

(Robin QC DCJ - 30 March 2012)

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Submitter appeal by long-established Church (which operated a large licensed function hall and an out-of-ours school) against approval of a waste transfer station on a site separated by a 50 metre wide mutual neighbour – after establishment whole area allocated to a future industry precinct – whether earlier approval of Church gave it precedence and protection against allegedly unacceptable impacts – traffic, ecological, noise, odour, dust, lighting and social impacts of proposal considered – concern about run-off and waterway corridor (Bullockhead Creek) nearby – expert evidence taken from members of the congregation – no conflict with Brisbane City Plan 2000 or South East Queensland Regional Plan – where use applied for already commenced without approval before development application made and continued – where no application to start use before determination of appeal

Facts: This was a submitter appeal against Council’s approval of a development application for a material change of use for a waste transfer station on a two hectare site at 24 and 32 Bandara Street, Richlands.

The waste transfer station had been operating from 24 Bandara Street since 2006. The development application had been made in September 2008, following the receipt of advice from Council, in order to “regularise” the use. After lodgement of the development application, the Co-Respondent purchased 32 Bandara Street, and included it in the development application.

The Serbian Orthodox Church operated from premises at 48 Bandara Street, Richlands. The Church had been operating on that site since the mid 1970s under a 1969 approval.

Under City Plan 2000, both the subject site and the Church site were located within the Future Industry Area.

The grounds of appeal were that the proposed development:

  1. would compromise achievement of the desired environmental outcomes for the planning scheme area;
  2. conflicted with the South East Queensland Regional Plan 2009 – 2031;
  3. conflicted with Brisbane City Plan 2000;
  4. would adversely impact the environment;
  5. conflicted with the planning precedence made by Council in approving development of the Church site in 1969; and
  6. would adversely impact the safety of road users.

Decision: The Court held, in dismissing the appeal, that:

  1. Notwithstanding the Appellant’s criticism of the roads in proximity to the site, all utility and transport infrastructure required for the project was in place. The roadworks situation would be improved by contributions of works and money required of the Co-Respondent.
  2. While the Church community and local people may well consider there was historical, architectural, social or cultural interest associated with the Appellant’s use and buildings, there was no official recognition of these, nor was there anything to particularly distinguish what happened in Bandara Street from what happened in hundreds of similar centres throughout the city.
  3. The proposal would have no adverse impact on Bullockhead Creek, given the design of it and the evidence established that the site had no bushland, flora or fauna or scenic value.
  4. Compatibility did not require that a proposal facilitate, support or enhance existing uses, which rarely would be the effect of any industrial development which was the kind of development envisaged by City Plan for the location. Compatibility required that the existing uses may continue, notwithstanding the impacts of an industrial proposal, unless the impacts were of a kind or scale to render them unacceptable in context. The evidence was all in favour of the Co-Respondent and was, in any event, persuasive.
  5. For all manner of reasons it was unrealistic to expect traffic arrangements to be Utopian or perfect. Implementation of the proposal would not make the traffic situation appreciably worse than if the Co-Respondent did not operate from the site at all. The site’s calculated contribution to traffic flows in Bandara Street had been and would be modest, even if expansion doubled it.
  6. As to the fact that the use had been operating on the site absent the requisite development approval for about six years, the Co-Respondent derived no advantage from having “got its foot in the door”, but nor was it to be disadvantaged or penalised in the Council’s or the Court’s assessment of the merits of the application because it may have been committing a development offence (something not established). The development application was to be considered simply on its merits.
  7. It was not considered that the South East Queensland Regional Plan told against the application.
  8. The proposal would have impacts which in the precinct shared by the site and the church were shown to be acceptable in their context by the evidence of experts in ecological and wider environmental matters, traffic and also noise, dust, odour and lighting.

18/12 PRETTEJOHN v CAIRNS REGIONAL COUNCIL & ORS [2012] QPEC 23

(Everson DCJ - 30 March 2012)

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Appeal against refusal – conflict with planning scheme – conflict with strategic plans – sufficient grounds – complex engineering solutions – minor earthworks – visual amenity – ss. 4.1.52, 6.1.28, 6.1.29 and 6.1.30 of the Integrated Planning Act 1997 – ss. 4.4(3)(b), 4.4(5A) and 5.1(6A) of the Local Government (Planning and Environment) Act 1990 – s. 819 of the Sustainable Planning Act 2009

Facts: This was an appeal against the Council’s refusal of a development application for material change of use (“MCU”) and reconfiguration of a lot (“ROL”) to create 30 residential lots with dwelling houses plus park. The 18.8 hectare area of land was at Taylor Point, which was well vegetated coastal headland. The Appellant proposed to develop the site in an environmentally sensitive way with building location envelopes, covenants and dedication of land as publicly owned reserves for beach protection and coastal management purposes.

The development application was lodged under the provisions of the Integrated Planning Act 1997 (“IPA”) and was to be assessed against the 1996 Planning Scheme. The IPA provided that the MCU and ROL components of the development application were both to be assessed and decided pursuant to the relevant provisions of the Local Government (Planning and Environment) Act 1990 (“PEA”). Relevantly, the development application required refusal if it conflicted with any relevant strategic plan or development control plan, and there were not sufficient grounds to justify approving the application despite the conflict.

The delays in the IDAS process meant that the Cairns Plan 2005 took effect during the assessment of the development application, as did the subsequent Cairns Plan 2009. The zoning under these planning schemes meant that residential development was contemplated in some areas, but further development was not to occur in others. The land was also included in the urban footprint of the Far North Queensland Regional Plan 2009-2031 (“FNQRP”).

The Respondent Council and the Second Co-Respondent by Election (Save Our Slopes Community Action Group Inc) argued that the proposed development was not contemplated by the planning controls for Taylor Point and that it represented an overdevelopment of the subject site which would have unacceptable environmental and visual impacts.

The Appellant submitted that the proposed development addressed all legitimate concerns of the Respondent and Second Co-Respondent by Election in terms of the impacts on the visual amenity of Taylor Point and the significant vegetation and ecosystems. The Appellant also raised a number of grounds which it said justified approving the proposal despite any conflicts with the relevant planning controls.

Decision: The Court held, in dismissing the appeal, that:

  1. The provisions of the 1996 Planning Scheme indicate that the nature and scale of the proposed development was not in accordance with the Strategic Plan.
  2. The nature and extent of the conflict with the Development Control Plan in the 1996 Planning Scheme was flagrant as many requirements had not been complied with.
  3. It was appropriate to give significant weight to the Cairns Plan 2009 and the relevant provisions of the FNQRP, which effectively preclude the proposed development. The lack of support for the proposed development in the Strategic Plan and Development Control Plan under the 1996 Planning Scheme was reinforced by the current planning provisions and the parts of the DNQRP relevant to the site.
  4. Having regard to the provisions of the 1996 Planning Scheme, the skyline and ridgelines as viewed from the beach and foreshore would be adequately protected in the circumstances. The proposed development would be subservient to the surrounding landscape and unobtrusive when viewed from any distant viewpoint (with the exception of a few allotments).
  5. The proposed development would not have significant impacts on the significant flora values present on the site. The vegetation management plan would control environmental weeds and would be beneficial in protecting the native vegetation. The proposed development would ensure the protection of the essential vine forest, which was the most significant feature on the site in terms of vegetation.
  6. In weighing the planning grounds with the clear planning intent in the Strategic Plan and Development Control Plan of the 1996 Planning Scheme, on balance the planning grounds were not sufficient to justify approving the development application notwithstanding the conflict. The benefits of the proposed development did not warrant derogating from the very clear planning intent that Taylor Point was not to be developed for residential purposes in the manner proposed.

19/12 GOLD COAST CITY COUNCIL v “CREST HILL” PASTORAL COMPANY PTY LTD & ORS [2012] QPEC 25

(Robin QC DCJ - 22 March 2012)

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Interim enforcement order to prevent sale by mortgagee exercising power of sale –separate title required to be dedicated as part under a condition of a development approval – risk that purchaser would take land free of the condition – Council offers undertaking as to damages – balance of convenience favours making order – ss. 245, 603 and 604 Sustainable Planning Act 2009 – ss. 3.5.28 and 3.7.2 Integrated Planning Act 1997

Facts: The Council applied to the Court for an enforcement order pursuant to section 604 of the Sustainable Planning Act 2009 (SPA) to effectively restrain the Respondents from disposing of or dealing with a parcel of land. A development approval had previously been granted by the Council for a reconfiguration, which included a condition that “The land shown as park on the plan of subdivision shall be dedicated to the Crown as park at the applicant’s expense”. The relevant parcel of land was remote from the developer’s multi-staged subdivision and was described as lot 15.

The reconfiguration had partially proceeded, with a number of lots being made available for auction by the mortgagee in possession. The advertisement of the auction included lot 15, which prompted the Council to commence this proceeding.

The mortgagee in possession argued that it could deal with its security (including lot 15) disregarding the entitlements the Council may have had under the condition of approval, and that a purchaser would be subject to the principles of caveat emptor. It submitted that if only a modest number of the approved lots were reproduced, the condition for dedication might be considered unreasonable.

The Council provided an undertaking as to damages under section 603(2) of the SPA, so that if it failed in its proceeding the mortgagee in possession would be protected in respect of any damages.

Decision: The Court held that:

  1. The Council, representing the public interest, had a well grounded fear that if lot 15 was sold, that may be an end to prospects of its becoming park for the enjoyment of the public. It was appropriate to have the status and fate of lot 15 clarified before any sale.
  2. There was a risk that a purchaser of lot 15 would hold it free of any obligation to dedicate it to the Council, even if the balance of the development were to go ahead on the basis that the new owner of lot 15 had not implemented any development proposal. The effect of section 245 of the SPA and section 3.5.28 of the Integrated Planning Act 1997 was that conditions only bind an owner or occupier who carries out development under the approval. Indefeasibility of titles under the Torrens System was likely to protect a purchaser from having to comply with some development conditions.
  3. The fact that lot 15 was remote from the land being subdivided did not vitiate a condition of reconfiguration for its dedication as park.
  4. The balance of convenience favoured the making of the enforcement order.

20/12 MEEHAN v BRISBANE CITY COUNCIL [2012] QPEC 26

(Robin QC DCJ - 22 March 2012)

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Conditions appeal – lack of State resource entitlement – part of parkland to be used as road for subdivision – Crown land but Council trustee – Council provided owners consent – park should have been regarded as State resource – developer acted in good faith – Department provided evidence of entitlement to State resource – minor change issues – ss. 350 and 820 Sustainable Planning Act 2009 – s. 3.2.1(5) Integrated Planning Act 1997

Facts: This was an appeal against conditions which was all but resolved between the Appellant developer and Respondent Council. Two issues required consideration before final orders could be made – one relating to a lack of State resource entitlement, and one relating to “minor change” matters.

The development application sought a reconfiguration of a lot, which included the use of an existing park to accommodate part of a road giving access to some of the new proposed lots. The park was owned by the Crown, but the Council was its trustee for management purposes. The Council provided the requisite owners consent to the development application. However, further consideration revealed that the Council could not give such consent as owner, because the park was a State resource which required evidence of an allocation of or entitlement to the resource under section 3.2.1(5) of the Integrated Planning Act 1997. Accordingly, the development application was not “properly made”.

The Appellant had been able to secure full cooperation from the Department of Environment and Resource Management (DERM), which provided a letter advising that the development was consistent with an allocation of, or entitlement to, the State resource.

The Court also had to consider a proposed “minor change” issue under section 350 of the Sustainable Planning Act 2009. The proposed changes included reduction in the sizes of the proposed lots, an increased area of parkland, changed road configurations, and the alteration to the easement and covenant arrangements.

Decision: The Court held that:

  1. The retrospective validation of development applications that are not “properly made” is relatively easy where the cooperation of the State authority is forthcoming.
  2. The Appellant developer acted bona fide throughout the application and appeal, and had taken appropriate steps to regularise matters expeditiously. No rights or entitlements of members of the public had been limited or adversely affected by reason of the non-compliance.
  3. For the purposes of section 3.2.1(5) of the Integrated Planning Act 1997, the letter from DERM constituted sufficient evidence of the Appellant’s resource entitlement.  It would bring discredit upon the system if the Court didn’t regularise the development application.
  4. It was appropriate to exercise discretion under section 820 of the Sustainable Planning Act 2009 and excuse the non-compliance.
  5. The proposed changes to the development application were matters of detail, and were considered “minor”.

21/12 AAD DESIGN PTY LTD V BRISBANE CITY COUNCIL [2012] QCA 44

(Court of Appeal - Chesterman JA, Margaret Wilson AJA, Philippides J - 9 March 2012)

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Environment and Planning – Development control – application for material change of use to “residence not complying with the house code” – appeal to the Building and Development dispute Resolution Committee – application not properly made – whether student accommodation falls within the definition of house or multi-unit development under the Brisbane City Plan 2000 (as amended) – s. 498 of the Sustainable Planning Act 2009

Facts: This was an application by AAD Design Pty Ltd for leave to appeal to the Court of Appeal. The applicant applied to the respondent for three development permits in respect of separate parcels of land at Annerley, Greenslopes and Woolloongabba, for a material change of use of the land for a “residence not complying with house code”. The structures on each parcel would have multiple bedrooms namely 9, 10 and 11 bedrooms, which the applicant intended to rent out as student accommodation.  

The respondent would not proceed with the applications advising that they were not a ‘properly made application’ as, according to the respondent, the proposal applied for was defined as a Multi-unit Dwelling (Boarding House – 10 Units) consistent with the definition of a Multi-unit Dwelling (Boarding House) in Chapter 3 of the Brisbane City Plan 2000 (Plan) and the level of assessment would be impact assessment.

The applicant appealed to the Building and Development Dispute Resolution Committee. On 24 August 2010 the Committee concluded that the proposal should be defined as a ‘multi-unit dwelling’, not a house, and dismissed the appeal.

The applicant appealed to the Planning and Environment Court against the Committee’s decision. The appeal was dismissed on 6 April 2011.

The Applicant sought leave to appeal to the Court of Appeal pursuant to section 498 of the Sustainable Planning Act 2009 pursuant to which an appeal may only be brought with the leave of the Court of Appeal and then on a point of law only.

The question before the Court of Appeal was whether the proposed uses fell within the definitions of “House” or “Multi-unit Dwelling” in section 10.2 of the Plan.

“House” is defined as:

“a use of premises principally for residential occupation by a domestic group or individual/s, …, but does not include a single unit dwelling”.

A “Multi-unit Dwelling is defined as:

“a use of premises as the principal place of longer term residence by several discrete households, domestic groups or individuals irrespective of the building form. … The term multi-unit dwelling does not include a house or single unit dwelling as defined elsewhere”.

In the P & E Court the respondent argued that the proposed development fell under both the definition of “House” and “Multi-unit Dwelling” and where two or more definitions cover the proposal the ‘best fit’ approach must be adopted. The respondent argued that the best fit for the proposed use, would be the definition for ‘Multi-unit dwelling’.

The P & E Court in dismissing the appeal to it relied on the statement of Rackemann DCJ in Yu [and] Leung v Brisbane City Council & Anor, that:

“… where there are two or more defined purposes which are apt to cover a particular proposal, a ‘best fit’ approach is appropriate…”

The applicant submitted that the decision of the P&E Court was wrong in two respects:-

  1. in failing to give the words of the last sentence of the definition of “multi-unit dwelling” contained in s 10.2 of the Plan their ordinary meaning;
  2. in applying the so called “best fit” test to determine that the relevant use of the premises met that definition.

The applicant did not dispute that the proposals were for multi-unit dwellings however it relied on the final sentence of the definition “The term multi-unit dwelling does not include a house… defined elsewhere”.

The applicant submitted that:-

  1. The effect of the final sentence is that where a development satisfies both definitions then by operation of the definition itself the development is a house and not a multi-unit dwelling. Primacy is given to the definition of “House”.
  2. The “best fit” test is appropriate where there are two or more defined uses, each of which is apt to cover the proposal, however this is not such a case as only one definition was satisfied.
  3. The proposal could not be a multi-unit dwelling because it was also a house.

The respondent argued that:-

  1. When properly understood the development did not satisfy the definition of “House”.
  2. The Court should approach the task of construction as described by Thomas J in Z W Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352: “… courts endeavour … to adopt a commonsense approach, or the approach which seems to make the most sense out of the provisions which may be contradictory as well as obscure…
  3. The “best fit” test did not apply because the application is not for a “House” but for a “Multi-unit Dwelling”.
  4. There are three differences between a house and a multi-unit dwelling:-
    1. The description of the use – “principally for residential occupation” (house) and “as the principal place of longer term residence” (multi-unit dwelling);
    2. The description of the user – “a domestic group or individual/s” (house) and “several discrete households, domestic groups or individuals (multi-unit dwelling); and
    3. The extent of the premises in which the relevant user or users carries on the relevant use.

The third distinction was based on the premise that the development permit for making a material change of use was sought for the whole of the premises. Each bedroom in that dwelling would be a separate tenancy. The essential difference is said to be that the use of a house involves occupation of the whole of the premises, while the occupation of a multi-unit dwelling may be a part of the premises.

Decision: Philippides J and Margaret Wilson AJA held, in dismissing the appeal, that:

  1. There was sufficient substance in the grounds advanced to grant leave to appeal.
  2. The validity of the “best fit” test as a canon of construction was in doubt.
  3. The established principles and canons of statutory construction should be applied. Their Honours relied upon the approach enunciated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]: “Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve a result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
  4. In considering the respondents three distinctions between house and multi-unit dwelling it was held that:
    1. the term “Residence” or “longer term residence” is identical to residential occupation.
    2. there is nothing in the express words of the definition of “house” that requires that each individual residing at the premises occupy the whole of the premises.
    3. the words “several discrete” qualify the words “households, domestic groups or individuals”; they inform the meaning to be given to the word “individuals” in that definition. The critical distinction that arises between the definitions is whether the individuals can be characterised as being several “discrete” individuals in respect of their residential occupation.
  5. The term “house” is not intended to encompass several individuals residing “discretely” in the same dwelling.
  6. Whether the extent and nature of the sharing of accommodation renders the use within that of “house” or “multi-unit dwelling” may be a matter of degree.
  7. The proposed use involves individuals under separate tenancy agreements renting a particular room (albeit with some common areas). In those circumstances, they must be characterised as several “discrete” individuals and not as “individuals” meeting the house description.

Chesterman JA in dissent held that:

  1. There is no real distinction between “individuals” and “several discrete individuals”.
  2. The use of premises for a house includes the use of part of a building for that purpose.
  3. The respondent’s reasons for contending that the proposed use will not constitute a house should not be accepted.

22/12 SUNLAND GROUP LIMITED V TOWNSVILLE CITY COUNCIL & ANOR [2012] QCA 72

(Court of Appeal - Muir and Fraser JJA and Margaret Wilson AJA - 27 March 2012)

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Order made by the Court of Appeal as to costs, application for an indemnity certificate made under section 15 of the Appeal Costs Fund Act 1973 - failure of primary judge to give adequate reasons

Facts: Originally, this matter concerned a decision by the Townsville City Council to approve a development application made by Sunland Group Limited.

Bushland Grove Pty Ltd trading as Mt Low Developments had exercised its right to appeal the Council’s decision, and had been successful in its appeal at first instance. Sunland Group Limited sought leave to appeal that decision to the Court of Appeal. Leave was granted and the appeal was allowed by the Court of Appeal, which also ordered (amongst other things) that Bushland Grove pay the costs of Sunland Group and the Council.

These proceedings were an application by Bushland Grove for an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973. The granting of such a certificate would entitle Bushland Grove to payment from the ‘appeal costs fund’ of an amount equal to Sunland Groups costs of the appeal, and its own costs of the appeal (subject to a cap). The costs incurred by the Council would still need to be covered wholly by Bushland Grove.

In granting the indemnity certificate, the Court of Appeal held:

  1. There had been a failure by the primary judge to give adequate reasons for two of the matters in dispute, with respect to which Bushland Grove had made extensive written submissions; and
  2. The failure by the primary judge to give adequate reasons was not attributable to the conduct of Bushland Grove, or either of the other parties, such that it was an appropriate case in which to grant an indemnity certificate.

23/12 RAFTOPOULOS v. BRISBANE CITY COUNCIL [2012] QCA 84

(Court of Appeal – Muir and Chesterman JJA and P Lyons J – 5 April 2012)

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Application for leave to appeal - compensation under section 5.45 o the Integrated Planning Act 1997 for an alleged error in a planning and development certificate - nature and function of planning and development certificates as opposed to development approvals

Facts: The applicant in this case had obtained (in August 2007) a development permit for a material change of use (under the Integrated Planning Act 1997 (IPA), for multi-unit dwellings. He did not seek to challenge the conditions of approval via written representations for a negotiated decision notice, or otherwise via a request to have the conditions changed.

Instead (and it is noted that the applicant did not pursue the development approval), the applicant wrote to the Council in 2009 claiming that certain of the conditions were unlawful. Council investigated the claim and replied by letter that they did not believe them to be unlawful.

In July 2009, the applicant by email, claimed in reliance upon section 5.4.5 of the IPA compensation in the amount of $2.2 million dollars. Council replied that it would not accept the claim – as no issue had arisen based on the reliance on a planning and development certificate containing an error.

Further and various communications ensued, until July 2011 – when the applicant filed an appeal in the Planning and Environment Court against the decision by the Council in denying his claim of entitlement for loss, and seeking orders that the Court uphold his entitlement of loss (being the amount of $2.2 million dollars plus interest since the development approval was issued in August 2007).

The applicant’s primary argument was that the development approval effectively constituted a ‘certificate’ of the like (i.e. they are identical in terms of form and function) described in section 5.4.5 of the IPA, and because it contained errors (one being the wrong identification of a particular tree species), it contained an error thereby qualifying him to make a claim under that section.

The Planning and Environment Court at first instance dismissed the appeal on the basis that there was no right here which qualified the applicant to make a claim for compensation. In particular, no planning and development certificate had ever been sought by the applicant.

Decision: The Court held in disallowing the appeal and making orders as to costs, that the decision notices and planning certificates are quite separate documents, which perform ‘entirely separate functions and give rise to different rights’.