Queensland Planning and Environment Court Updates – August 2015

(Morzone QC DCJ - 6 August 2015)
Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council [2015] QPEC 37

Planning and environment – application – declaratory and consequential relief pursuant to s 456 Sustainable Planning Act 2009 (Qld) – characterisation of use approved by the original development approval and whether modified – whether applications for a material change of use to “Multiple Dwelling/Holiday Accommodation” code assessable or impact assessable – whether applications properly made in the absence of body corporate consent – whether applications properly assessed.

Facts: This was an application about the lawfulness of the use of 24 of the total 39 units in a strata titled unit complex in Cairns.

The applicants disputed two decisions made by the Cairns Regional Council to grant development approvals in favour of unit owners for a material change of use of their 24 units to “Holiday Accommodation” and “Multiple Dwellings”. The applications were the subject of code assessment.

The unit block contained 38 one bedroom units and one two bedroom unit. The original development permit was issued on 8 February 1994 under a 1971 planning scheme and granted approval for “Accommodation Units”. By a letter dated 22 April 1994, the developer’s architects wrote to the Council about a car parking condition imposed on the approval in the context of the proposed market of “Holiday Accommodation” as defined in the newly commenced planning scheme. The Council considered the correspondence and affirmed the minimum car parking requirement by letter dated 18 May 1994.

The applicant owned the two bedroom unit in the complex and was the director of the second applicant and was licensed to conduct a letting business in relation to the unit block.

The one bedroom units had been predominantly used for holiday accommodation, whether as part of the managed letting pool or otherwise.

The questions for determination for the court were:

1. What was the use approved by the original approval?
2. Were the two material change of use applications for “Multiple Dwelling / Holiday Accommodation” code assessable or impact assessable?
3. Was the consent of the body corporate required for the applications?
4. Were the applications properly assessed and decided?

The applicants asserted that the use rights granted under the 1994 consent permit for “accommodation units” were modified by the letter dated 22 April 1994 to “holiday apartments” to be used for short term accommodation by tourists and travellers.

Council said that the approved use was not so modified, limited or confined in any way to short term holiday accommodation.

In relation to the development applications, the applicants argued that the description of the proposed use as “Multiple Dwellings and Holiday Units” was an undefined use which was impact assessable.

Decision: The Court held:

1. The rights to use land deriving from a development approval are to be determined from the terms of the approval itself, construed in context but having regard to its enduring function, which may include expressly or by necessary implication, other material.
2. The subjective intention of the Council or developer was irrelevant. It was irrelevant that the Council officers issued show cause notices based on a characterisation of the use. Similarly, nothing turned on the unit owner’s subjective characterisation of “holiday accommodation” as the pre-existing use in their recent development applications.
3. Any limitations or restrictions should appear plainly in the approval itself, and an overly technical approach was not called for, unlike construing legislation.
4. Extrinsic material may be used in construing an approval in limited circumstances, for example, to understand context, resolve ambiguity, construe technical terms, and identify the particular purpose to meet particular site characteristics and impacts. If the approval is ambiguous it should be construed in a manner which places the least burden on the landowner.
5. The original approval did not discriminate between the one and two-bedroom units. It made no distinction between permanent residential accommodation and short term holiday accommodation. It did not restrict the mode of accommodation to short term holiday accommodation. Therefore, the original approval was for “Accommodation Units (High Density)” as defined in the 1971 planning scheme, which included both permanent and holiday accommodation.
6. The architect’s letter did not seek any variation or modification of the condition either in form or substance. The architects merely sought to rationalise the car park calculation to justify the already conditioned minimum of 39 spaces. Their reliance on the virtues of holiday style accommodation, rather than permanent living, was of no consequence because the promoted holiday use fell within the approved use of “accommodation units” in any event.
7. It was trite law that two uses may be carried out upon the same premises and that the owners may exercise those rights at the same time or not at all.
8. The material change of use applications were for two distinct uses, being “Multiple Dwelling” and “Holiday Accommodation”. Both of those uses were code assessable.
9. The consent of the Il Centro body corporate was only required if the proposal involved the use of the common property for particular purposes other than the ordinary right of access to and from the lots. The use of the common property for its established function of providing access did not require its inclusion as part of the land.
10. The proposals in the applications only involved the use of common property for access purposes and therefore the consent of the Body Corporate as owner of the common property was not required.

(Rackemann DCJ - 21 August 2015)
WAW Developments Pty Ltd v Brisbane City Council [2015] QPEC 38

Planning and environment – applicant appeal – regularisation of unlawful outdoor dining area into footpath – where appellant put forward a revised proposal and the council put forward an alternative proposal – urban designs and visual amenity – appropriate width and length of structure

Facts: This was an appeal against the respondent’s decision to refuse an application for a development permit for a material change of use for a restaurant.

The application was made for the purposes of regularising an unlawful extension of an existing restaurant on the ground level of a building.

The development application was made when Brisbane City Plan 2000 was in effect. Since lodging the application, the planning scheme was subsequently amended in January 2011 and then superseded by the City Plan 2014.

The key issues in the appeal related to visual amenity, conflict with the planning scheme, public uses and pedestrian and footpath use issues.

During the hearing it became clear that although there was a potential benefit in having an appropriate structure in the area, the existing structure was unacceptable. The appellants introduced a revised proposal which was still opposed by the Council (the revised proposal). The Council was not opposed to an approval subject to conditions that the structure be in accordance with an alternative proposal prepared by its architect (the alternative proposal).

Decision: The Court held, in allowing the appeal:

1. As the application was for land within the footpath, the application needed to be supported by a State Resource Entitlement. The Court of Appeal held that a letter provided by the Department of Environment and Resource Management was sufficient to satisfy the requirement.
2. The fact the structure was constructed had little significance in terms of whether it ought to be approved. The Court was required to assess the application on its merits. The Court could not seek to punish the appellant for unlawfully constructing the structure or presume the structure should be allowed to stay in its current form.
3. The Court was required to assess the application against the provisions of the planning scheme in effect at the time the development application was lodged, however could give such weight as it considered fit, to later laws and policies.
4. The Court attached significant weight to the more recent planning documents as amendments demonstrated a relevant change in the planning strategy for the area. This involved a transformation from an industrial area to a medium to high density urban community.
5. There was some merit, from visual amenity and urban design perspectives, in having a deck extension in the location to facilitate outdoor dining. However, the deck which had been constructed was not appropriate, as although it provided some activation to the streetscape, there was still room for improvement.
6. The revised proposal represented undue intrusion into the footpath area, in terms of width. Some intrusion was justified, but it should not be to a greater extent than is reasonably necessary to achieve an appropriate level of activation.
7. Whilst the length of the revised proposal achieved a greater length of activation which, considered in isolation, could be seen to be of some benefit, the extent of that benefit was mitigated by the effects of the topography and balanced with the increased mass which resulted at the northern end of the structure. However, in the circumstances the Court was not persuaded that the structure was acceptable in the circumstances.
8. The appellant failed to satisfy the Court that the appeal should be upheld and that the revised proposal be approved. The Court instead granted an approval which was subject to conditions which required development to be in accordance with the alternative proposal.

(Dorney QC DCJ - 21 August 2015)
Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors (No. 2) [2015] QPEC 39

Costs – whether exception to each party paying its owns costs established

Facts: This was an application for costs arising out of an applicant appeal against Council’s refusal of a development application for a quarry in the Mackay area.

The Court had handed down a Judgment allowing the appeal and approving the development application on 26 December 2013 (Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57).

At the time the development application was lodged, the Integrated Planning Act 1997 (IPA) was in force. Therefore, the provisions of IPA applied in determining the costs application.

Under the IPA, the general rule was that each party must bear its own costs. However, the IPA gave the Court a discretion to make an order in relation to costs in certain circumstances.

The Appellant sought to rely on s 4.1.23(2)(b) of the IPA in arguing that two aspects of the Council’s case had been “frivolous or vexatious”. The first aspect was the giving of evidence in relation to the issue of amenity, including air quality, noise and vibration. The second was the giving of evidence in relation to the issue of sediment and erosion control.

The Appellant argued that Council had failed to abandon the giving of evidence on those two issues despite the agreement between the relevant experts in those fields expressed by the conclusions in their reports, and despite the reference in correspondence written to the Respondent’s solicitors on behalf of the Appellant’s solicitors drawing attention to the “agreement”.

Decision: The Court held:

1. The references to both “the proceeding” and “a part of the proceeding” in s 4.1.23 of the IPA could include a Respondent’s defence or opposition to the proceeding brought by the Appellant and, necessarily, “part” of a Respondent’s defence or opposition to such a proceeding.
2. The term “vexatious” had been stated to apply to a proceeding which was “productive of serious and unjustified trouble and harassment”. It did not mean that merely because a successful party was frustrated at being put to the expense of responding to the proceeding or because the proceeding showed a “lack of success, or the prospect of it”, the proceeding ought to be characterised as “frivolous or vexatious”.
3. The original hearing did involve a legitimate contest between the relevant experts about the potential impacts concerning noise and dust. In addition, there were other parties to the proceeding, including submitter Co-Respondents, who raised their own issues and challenged some of the matters agreed between the experts.
4. Insofar as there was continued agitation of the “amenity” and the “sediment and erosion control” issues, such agitation was not unjustified and did serve substantive forensic purposes.
5. The way in which the Respondent conducted the leading of evidence at the initial hearing in respect of water, erosion and sediment control issues was pursuant to the proper exercise of the role of a litigant in the circumstances in which it found itself.
6. The circumstances did not arise for the ordering of costs since no part of the proceeding was conducted in any frivolous or vexatious way.

(Rackemann DCJ - 31 July 2015 (delivered ex tempore))
Cuthbert v Moreton Bay Regional Council [2015] QPEC 41

Planning and environment – practice and procedure – particulars – whether particulars required where expert reports already provided – whether appropriate for particulars to incorporate, by reference, paragraphs of expert reports

Facts: This was an application for the delivery of particulars which were originally ordered by the court to be provided on 3 July 2015. On 3 July 2015 the respondent filed and served affidavit material from consultants which it had engaged to address the issues in the proceeding. They did not however, provide the particulars in accordance with the order. Rather they asserted that, given the delivery of the affidavit material, there was now no utility in providing the particulars and sought the agreement of the appellant to vary the court order so as not to require particulars. That request was refused and the appellant continued to request particulars.

By way of letter dated 21 July 2015, the respondent attempted to provide some particulars in a way which incorporated aspects of the affidavit material by reference. The issue with this approach was that reference to parts of the affidavits were preceded by the words ‘for example’ which left the solicitors for the appellant to speculate upon whether there were any other parts of the affidavits which were relevant to the particulars. Another difficulty with the letter of 21 July 2015 was that it objected to providing particulars which the respondents had already been ordered to provide.

On the day before the hearing of this application, the respondent provided an amended version of the letter of 21 July 2015 which removed the words ‘for example’ and gave comprehensive references to those passages of the various affidavits which were incorporated by reference into the response to the request for particulars. Further details on how the affidavits addressed the request for particulars were given in court at the hearing of the application.

Decision: The Court held:

1. The need for and desirability of the provision of lengthy particulars and lengthy disputes about the scope of particulars is perhaps diminished in these days where a party is required to provide its evidence in advance of trial.
2. This is not to say, however, that a party who has been ordered to provide both particulars and evidence can simply ignore the court order to provide particulars.
3. It was neither compliant with the order nor appropriate simply to provide the affidavits with nothing more.
4. Having regard to what has happened since the application for particulars was made, no further order for particulars need be made.
5. However, given the deficiencies in the earlier response, the respondent should pay the appellant’s costs.