Queensland Planning and Environment Court Updates – July 2015

Publication July 2015


29/15 STANKOVIC v BRISBANE CITY COUNCIL (NO 2) [2015] QPEC 27

(Jones DCJ - 1 July 2015)
Stankovic v Brisbane City Council (No. 2) [2015] QPEC 27

Application for costs – where appellant / applicant and respondent / applicant both made an application for costs in respect of a proceeding dealt with on 30 April 2015 – where substantive proceeding concerned with an appeal against certain conditions imposed by the respondent Council – where appellant maintained his position notwithstanding material compromises by his expert witness – where material aspects of appellant’s evidence unsatisfactory - where unlawful works of appellant caused nuisance to adjoining land.

Facts: This matter concerned applications for costs by both the appellant and the respondent.

The appeal related to an Enforcement Notice issued in relation to works for the development of a house, swimming pool and tennis court on land located at Morningside.

The issues for the Court at the initial hearing had been:

  1. whether the appellant had carried out filling in breach of the development conditions and the relevant planning schemes;
  2. whether the works had caused ponding impacting on neighbouring properties; and
  3. if so, whether remedial works proposed by the respondent’s engineer were reasonably necessary to rectify the problems resulting from the introduction of the fill.

The respondent’s engineer had identified a number of remedial works, including the removal of fill from the surface of an access easement.

The appeal had been allowed subject to the appellant being required to comply with the conditions package of the respondent as modified by the drainage relief works identified by the respondent’s engineer, save for the requirement to lower the surface level of the access easement.

The respondent contended for a favourable costs order on the basis that the appellant had systematically filled the site in breach of the conditions of approval, had falsely denied placing the fill on the site and had modified his position to best suit his case.

The appellant also sought costs and argued that he was the innocent victim of unlawful uses on his land and that the respondent’s conduct lacked “justification and common sense”.

Decision: The Court held:

  1. The appellant’s submissions on costs were without merit and accordingly his application for costs should be dismissed.
  2. This was not a case of unintended unlawful works occurring. It was a deliberate and systematic course of conduct which resulted in a nuisance being caused to neighbouring properties. Issues raised in the proceeding went beyond the personal rights and interests of the parties.
  3. There was no doubt that the respondent was largely successful in the appeal. The only success achieved by the appellant was not being required to carry out the excavation works associated with the easement. That issue occupied little time in the conduct of the appeal and the appellant’s success was largely the result of an unprompted concession on the part of the respondent’s expert.
  4. The history of the matter revealed a course of conduct on the part of the appellant which made avoidable litigation necessary.
  5. Given the level of success enjoyed by the respondent and the limited impact the easement issue had in the overall conduct of the appeal, it was appropriate to order the appellant to pay 85% of the respondent’s costs.

30/15 ALLEN & ANOR v CAIRNS REGIONAL COUNCIL & ANOR [2015] QPEC 28

(Andrews SC DCJ - 3 July 2015)
Allen & Anor v Cairns Regional Council & Anor [2015] QPEC 28

Planning and environment – whether a wholesale nursery use was an existing use on 29 November 1996 – whether the use was then lawful “Agriculture” or unlawful “Rural Industry” – whether the use was abandoned – whether there was a material change of use by intensification since 30 March 1998 – whether a shade house used for the wholesale nursery was unlawful – whether use of an unlawful shade house was a public policy basis to refuse declarations

Facts: This was a proceeding about the lawfulness of a wholesale nursery being operated on land outside Cairns by the applicant (Edgewill).

The proceeding arose from a Show Cause Notice issued by Council in relation to the nursery use.

After receiving the Show Cause Notice, an application was made for a development permit. The application was approved and was the subject of an appeal by a submitter (Barnes). Council subsequently advised the applicant that it did not believe the development application was required because Edgewill had the benefit of existing lawful use rights.

Dracaena plant stock were first grown on the land in 1990. The evidence showed that palms were also propagated and sold from the site in 1991. Potted dracaenas propagated on the land were first sold at the end of 1993. Palms ceased being sold from the site from 1994. In 1994 or 1995, a business partner joined the operation. This continued until the end of 1996, at which time the business was mainly the sale of dracaenas.

From about 1998 a truck began to call at the site to collect stock once per week. In about August 2002 a new shade house was built on the eastern boundary to replace a shade house on the western boundary. No approval had been obtained for that shade house.

The first question for the Court was whether the wholesale nursery use began before 29 November 1996. If it commenced after that date, various planning schemes would have prohibited its commencement and it would now be unlawful without development approval.

If it commenced before that date, the second question was whether it was either lawful “Agriculture” or unlawful “Rural Industry” under the relevant planning scheme at the time. The Barnes submitted that the dominant use was the propagation process after dracaena canes were cut from the motherstock. They submitted that propagating canes cut from dracaenas was not incidential to or necessarily associated with growing mother stock because the canes could be imported from elsewhere. The applicants submitted that the principal use was the growth of the mother stock draecana.

If it was lawful “Agriculture”, the third question was whether it had been temporarily abandoned so as to lose its lawful status.

If it had not been abandoned, the fourth question was whether it had materially changed since 30 March 1998 (the date from which the notion of “material change of use” was introduced by the Integrated Planning Act 1997).

The last question was whether the applicants were precluded from obtaining a declaration as a matter of public policy because their use of the premises had included activity in a shade house which may not have had building approval.

Council supported the application for declarations. Edgewill submitted that this was significant.

If Edgewill failed to obtain the declarations sought, it had the benefit of the approval that had been issued and the Barnes would be at liberty to continue their appeal.

Decision: The Court held:

  1. The lawfulness or otherwise of the use was not affected by Council’s support for the application.
  2. The plan for a wholesale nursery on the site was the basis for numerous activities up to 29 November 1996. Those activities were satisfactory to show that the wholesale nursery use had begun before 29 November 1996.
  3. The fact that crops grown on a farm were eventually cut on the farm when harvested and handled or processed on the farm to a small extent necessary to prepare the crops for transport would not ordinarily suggest that the use of the land is industrial as opposed to agricultural. This was primarily because the major component of the process of producing the crop was sowing and growing.
  4. On the proper construction of the relevant scheme, the primary use of the land was for growing in ground stock for its canes and potted canes for marketable dracaenas. That use was “Agriculture”. Thus the use was lawful in November 1996.
  5. There had been no material intensification of the use.
  6. The evidence was inconsistent with the use having been abandoned.
  7. The past use of a shade house built without approval was not a sufficient reason to refuse declarations in this case.
  8. The applicants were entitled to the declarations they sought.
  9. In respect of costs it was appropriate to give liberty to each party to apply.

31/15 NEILSENS QUALITY GRAVELS PTY LTD v BRISBANE CITY COUNCIL [2015] QPEC 29

(Rackemann DCJ - 17 June 2015)
Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2015] QPEC 29

Planning and environment – request to change a development approval – proposed change to water treatment train for proposed quarry – where changes to configuration and operation of ponds, but with no new or increased impacts – whether substantially different development –whether changes would be likely to provoke a properly made submission.

Facts: This was an application, pursuant to section 369 of the Sustainable Planning Act 2009 (SPA), for a permissible change to a development approval granted by the Court on 14 May 2014 for a material change of use (MCU) for an extractive industry, MCU for environmentally relevant activity and operational works at land located at Brendale and Bald Hills.

The proposed changes related to the way water on the land was to be dealt with.

The relevant provisions of SPA were:

  1. the proposed changes must not result in substantially different development (s367(a)); and
  2. the proposed changes must not be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed changes if the circumstances allowed (s367(c)).

As approved, the proposal included a series of ponds. The proposed changes involved:

  1. the introduction of flocculent to the wastewater as part of normal pond operations to accelerate the settlement of fines, instead of a free-settlement process and instead of flocculation only being added as a contingency measure in the event of non-compliant water;
  2. consequential changes to the pond arrangement to resolve safety problems caused by the on-site geotechnical conditions; and
  3. a consequential diversion of stormwater that originates from the external industrial estate land to pond 3 instead of diversion to ponds 4 and 5.

Decision: The Court held, in allowing the application:

The changes would not result in substantially different development because:

  1. the proposed changes were limited to the water management circuit and did not have any effect on the nature or extent of the extractive industry; and
  2. the changes would not result in any significant new flooding impacts than those of the approved design.

The changes would not be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change if the circumstances allowed because:

  1. whilst water quality and water quality management was raised in some of the submissions for the original approval, none raised a comment or an objection about the particular water treatment system used to deliver the outcomes or effects;
  2. what the applicant proposed to do with the ponds or even the use of the pond was not commonly acknowledged in the submissions; and
  3. the mechanism to deal with water is similar to that which was approved and was designed to achieve the same outcomes in impact mitigation.

32/15 MANTLE v SUNSHINE COAST REGIONAL COUNCIL [2015] QPEC 30

(Rackemann DCJ -17 July 2015)
Mantle v Sunshine Coast Regional Council [2015] QPEC 30

Planning and environment – appeal against refusal of request to extend a development approval – where approval was dated, but had recently been changed to achieve consistency with current laws and policies – where changes in ownership of properties in locality – weight to be given to likelihood of further submission rights being exercised if a further application was required

Facts: This was an appeal against Council’s refusal of a request to extend the relevant period of a development approval for a tourist accommodation facility at Tidswell Road, Lake Weyba.

The approved site plan showed 24 accommodation units scattered across the eastern portion of the land, a reception building incorporating a restaurant and spa, a manager’s residence and other ancillary facilities.

The development approval was granted on 16 August 2004 by order of the court as a consequence of the resolution of two submitter appeals. Its life had previously been extended by reason of an order of the Court on 17 June 2010.

At the time of the request the Maroochy Plan 2000 was in force.

The request was refused by Council. The grounds for refusal centred about compliance with the SEQ Koala Conservation State Planning Regulatory Provisions, compliance with the codes in Maroochy Plan 2000, the precinct intent in Maroochy Plan 2000, the existence of acid sulphate soils and the community’s current awareness of the proposal.

Negotiations between the parties resulted in the approval being changed by order of the Court on 22 August 2014. The change saw the replacement of one condition and the addition of others relating to the grounds of refusal. The effect of the changes was to impose further obligations to address contemporary standards and controls.

During the course of the appeal, the Sunshine Coast Planning Scheme 2014 had come into effect. The evidence addressed the provisions of both schemes. A further development application had also been made over the site in December 2012. The public scrutiny material for that development application contained references to the existing approval.

Council was satisfied that the approval, as changed, was consistent with its current laws and policies and no longer opposed the extension.

The Court was required to consider the approval’s consistency with the current laws and policies, the community’s awareness of the development approval, whether a similar development application would afford submission rights and the likely extent of which those rights may be exercised.

Decision: The Court held, in allowing the appeal:

  1. As changed the development approval addressed the issue of consistency with current laws and policies.
  2. The likelihood of public submission rights being exercised to some extent, were the proposal to be the subject of a fresh development application, could not be discounted.
  3. It was accepted, however, that current community awareness of the development approval, the potential availability of public submission rights and the likelihood of their exercise may become weightier considerations where there was also significant inconsistency between the approval and the planning documents, being the primary source of reasonable expectations.
  4. Given the recent changes to the approval, there was an inclination not to give the considerations in s 388(1), (b) or (c) decisive weight.
  5. That was not to say that a developer could endlessly luxuriate in an approval without acting upon it, on the assumption that it would be extended subject only to the updating of conditions. The present case for an extension was towards the margins of acceptability. However, on balance it was appropriate to allow the appeal and to grant the requested extension.

33/15 ASPINALL & ORS v BRISBANE CITY COUNCIL [2015] QPEC 31

(Horneman-Wren SC DCJ - 25 June 2015)
Aspinall & Ors v Brisbane City Council [2015] QPEC 31

Environment and Planning – environmental planning – planning schemes and instruments – Queensland – generally – where proposed refurbishment of disused aged care facility to construct a multi-unit residential dwelling – where neighbouring residents oppose the proposed developments – where appeal against decision of City Council to approve proposed developments – whether proposed development conflicts with the planning scheme set out in Brisbane City Plan 2000 so as to disallow approval – where Brisbane City Plan 2000 classifies particular area as Low Density Residential Area – whether the proposed development is generally appropriate or inappropriate impact assessable development under the Plan due to classification – where conflict with aspects of planning scheme – where sufficient grounds for approval of development with conditions

Environment and Planning – environmental planning – matters of consideration from consent authority – matters to be considered – consideration of planning schemes – whether the council intended the site be returned to low density residential development requiring significant demolition of existing building – where within reasonable expectation that a building of the same shape and dimensions remain for use as multi-unit dwelling in accordance with City Plan – whether the building is not consistent with the existing local character – where the building is consistent with the local character by virtue of 40 year existence in the locality – whether building is consistent with the limits for bulk, scale and density of Low Density Residential Area – where planning scheme contemplating future development cannot be said to contemplate present buildings not continuing – whether ‘existing non-conforming development’ which should be phased to discourage extension or entrenchment of non-complying development – where alteration or removal of structurally sound buildings cannot be required by a planning instrument requires consideration of appropriateness of proposed reuse of the building

Facts: This was a submitter appeal against the Council’s decision to approve an application to construct a multi-unit dwelling development for 35 units at 6 Southerden Avenue and 4a Gawler Street, Grange. The proposed development involved the redevelopment of an existing, disused aged care facility.

The town planning issues raised in the appeal related to the scale of the overall development and whether the retention of the existing buildings and their conversion, together with the additional carpark structure was appropriate development. The parties also disputed a number of traffic and engineering issues.

The categorisation of the development as generally appropriate or generally inappropriate development under the City Plan 2000, was disputed between the parties and further the extent of any conflict with the City Plan 2000.

The appellants argued that the development was generally inappropriate impact assessable as it failed to comply with the relevant code and further that the development conflicted with the character, bulk, scale and density of the buildings and with the traffic generation.

The Council argued that the development was generally appropriate impact assessable and complied with the code.

A key issue in the case regarded the existing character of the area and the planned character of the area.

Decision: The Court held, in refusing the appeal:

  1. The reasonableness of the expectations of the appellants as to future development in the area, is to be judged by reference to the planning scheme, but not exclusively so.
  2. Statements of intent regarding scale and density should not be applied as an inflexible standard, or read literally in such a way that any exceedance of the stated gross floor area requirement cannot be approved.
  3. The court is not permitted to approach the application by consideration of more preferable development than that proposed for the site.
  4. The principle against entrenching existing non-conforming uses is not absolute and inflexible, and will yield in an appropriate case. However, there was no evidence to suggest that the existing building were previously a non-conforming development.
  5. The achievement of the DEO that low density living environments predominately comprise separate houses of no more than two storeys would not be compromised if the development was approved. As predominately does not mean exclusively, the integrity of the DEO was not considered to be endangered.
  6. The proposed development was required to comply with the performance criteria, not the acceptable solutions as the latter do not as such impose requirements on the development.
  7. The development was not considered to be consistent with the local character because of other similar buildings in the locality, instead the development was said to be consistent with the local character because of its own existence within the locality for 40 years.
  8. It was appropriate to examine the nature and extent of any conflict with the planning scheme and determine if there were planning grounds in favour of the application which were, on balance, sufficient to justify approving the application notwithstanding the conflict.
  9. The character, location, sighting, bulk, scale, shape, size, height, density, design and external appearance of the development did accord with the reasonable expectations and DEOs for the area and would have a positive impact on the landscape, scenic quality and streetscape of the locality.
  10. In considering whether there were sufficient grounds to approve the particular development proposal, one ought not be distracted into considering whether there may be other developments which, if proposed, would also achieve the outcomes identified as grounds justifying approval, but without the conflict with the planning scheme.
  11. There were sufficient planning grounds to justify the approval of the application, notwithstanding the conflict with the Planning Scheme.

34/15 MACKAY RESOURCE DEVELOPMENTS PTY LTD v MACKAY REGIONAL COUNCIL [2015] QPEC 32

(Dorney QC DCJ - 23 July 2015)
Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2015] QPEC 32

Appeal – subsequent, separate hearing of determination of conditions – quarry in rural area

Facts: This was a hearing about the conditions to be imposed on a development approval for a quarry, following a successful appeal by the Appellant (MRD) against Council’s refusal of its development application.

The development application had sought a material change of use to enable land in the Mackay area to be used as a quarry. The proposed quarry was to be located on Barrie Lane which, at its eastern end, adjoins Homebush Road (which is a State controlled road) and, at its western end, adjoins the Peak Downs Highway (which was, also, a State controlled road).

On 26 December 2013, Robin QC DCJ allowed the appeal but adjourned it to enable “suitable” conditions to be worked out (Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 57).

At the time the development application was made, the Integrated Planning Act 1997 (IPA) was in force. The issue for the Court at this hearing were whether the conditions sought to be imposed by Council and the Department of Transport and Main Roads (DTMR) were reasonable and relevant for the purposes of s. 3.5.30 of the IPA.

Following the merits hearing, Council and the DTMR had provided draft conditions. A draft judgment containing the final versions of all conditions sought by the respondents had been tendered at the conditions hearing.

The dispute by MRD centred around:

  1. the DTMR’s requirement that it upgrade the intersection of Barrie Lane and Homebush Road (Condition 3 of the DTMR’s amended response);
  2. the Council’s requirement that it upgrade Barrie Lane (in Condition 12);
  3. the 6 year currency relevant period imposed by Council;
  4. whether the word “grid” could be included after the words “wheel shaker” in Council conditions 7 and 13;
  5. the Council’s requirement for geotechnical certification of slope stability; and
  6. Council’s requirement for acoustic certification of plant and equipment.

Condition 3 of the DTMR’s amended response required the installation of a “central splitter island”, directed at ensuring haulage trucks did not cut the corner when turning right and the provision of a “swept path assessment” in order to demonstrate to the DTMR’s satisfaction that the agreed design vehicle could safely manoeuvre through the intersection without compromising the safety of other road users.

The applicant wished Conditions 7 and 13 to require the installation of a “wheel shaker grid” rather than merely a “wheel shaker”, so that a cattle grid could be incorporated.

In relation to Condition 12, Council’s traffic expert gave evidence in favour of the view that Barrie Lane was presently unsuitable as a haul route for the proposed quarry traffic.

In relation to the relevant period, MRD sought 8 years so as to be “in line with other developments”.

The arguments presented by MRD did not expressly assert that any of the disputed conditions were not relevant, any of the disputed conditions were an unreasonable imposition or any of the disputed conditions were not reasonably required. Nor was it argued that the conditions were unlawful. The evidence was at least principally to the effect that MRD was being treated differently from other developers.

Decision: The Court held:

  1. The character of a condition of a development approval is the “community price” a developer must pay for a development approval and is a “vehicle for minimising adverse effects” of permitted development.
  2. Traffic safety was an important matter which the Court does not disregard lightly and, in dealing with matters of traffic safety, it may well be that a conservative approach is warranted.
  3. In dealing with the issue of financial cost, it had long been held that the economics of any development were immaterial.
  4. The DTMR’s Condition 3 was a condition which was reasonably required. It was also relevant and not an unreasonable imposition because it was necessary for safety reasons, ensured that an appropriate level of traffic safety was maintained, would result in a traffic safety benefit for the safety of all road users and the condition had not been disputed by MRD’s own traffic expert at the merits hearing.
  5. It was preferable to have the reference to a “wheel shaker” accompanied by the additional qualifier “(which may include an incorporated grid)”.
  6. There was no basis for concluding that the evidence of Council’s geotechnical expert should be rejected. The certification condition was relevant to, and not an unreasonable imposition on, the proposed quarry and its use and was also reasonably required in respect of the proposed development.
  7. The requirement for acoustic certification of plant and equipment were both relevant to, and not an unreasonable imposition on, the proposed quarry and its use. It was reasonable to require it in respect of the proposed development.
  8. A period of 6 years was both relevant to, and not an unreasonable imposition on, the proposed quarry, particularly in circumstances where the Site was rural land, containing good quality agricultural land in respect of which rural uses were performed. It was important that existing planning for the general area, as well as future planning for it, were not prejudiced by a particularly long period before there was an actual start.
  9. All of the respondent’s proposed conditions satisfy at least one of the tests of the lawfulness, applicability and “suitability” as set out in s. 3.5.30 of the IPA. Accordingly, MRD had not discharged its onus in establishing to the relevant satisfaction the exclusions and modifications that it had sought to the proposed conditions.
  10. Considering the outcome, it was appropriate that there be no order as to costs. Nevertheless, particularly since MRD was no longer represented by solicitors or counsel, because of the principle of procedural fairness, a short period for any costs submissions to be made should be allowed.

35/15 WALKER & ANOR v WESTERN DOWNS REGIONAL COUNCIL [2015] QPEC 33

(Dorney QC DCJ - 30 July 2015)
Walker & Anor v Western Downs Regional Council [2015] QPEC 33

Appeal – whether conflict – what additional or alternative conditions (if any) to be imposed

Facts: This was a conditions appeal in respect of a development application for reconfiguration of a lot over land located at Watt Street, Dalby.

The development application sought to subdivide the site into two front lots with road access and two rear lots with two access driveways provided by reciprocal easements, which would run along the central boundaries of the two proposed front lots.

The development application required assessment against the Wambo Shire Planning Scheme, under which the site was contained in the “Rural” zone. Council’s draft scheme, the Western Downs Planning Scheme, had been publically notified and was under review.

The conditions of Council’s decision notice which were originally disputed were Conditions 1, 18, 24 and 28.

Condition 1.1(ii) required provision of a 20 metre road for access to the proposed rear lots. Condition 18.0 set out the basis for the new road with a provision for sealing. Condition 24 set out the requirements for the design and installation of street lighting. Condition 28 required the applicant to dedicate the road at no cost to Council.

A new schedule of conditions had been proposed by Council during the appeal and Council no longer contended that a road was required to provide access to the proposed rear lots. At the hearing, Council submitted that conditions should be imposed requiring that all lots be reoriented to run lengthwise, that access be provided to the “rear” lots by way of a 10 metre wide easement running along the northern boundary of the development and that provision be made for the potential dedication of a 10m wide portion of land to include the proposed easement area.

The applicant gave evidence at the hearing of the appeal which purported to show that battleaxe type access roads had been approved in a nearby area.

Decision: The Court held:

  1. There were severe limitations which should be placed on Mr Walker’s evidence about the battleaxe access easements. In the end, the evidence should be given little weight. It was simply evidence that in a rural residential area it may be possible to have such an access.
  2. There was strong, continuing authority for the proposition that each development application was to be assessed on its own individual merits and that any other approval, even if proved to be an approval within the same scheme, did not act as a precedent.
  3. Based on the evidence, the new Council conditions were clearly preferable. They were relevant and did not place an unreasonable imposition on the development.
  4. There was undoubted conflict with the size of the lots under the current scheme, whichever proposal was preferred. However, there were sufficient grounds to justify the decision to approve the development application despite such conflict. This was because of the significance of the weight that was given to the new draft scheme, taken in conjunction with the proposed new Council conditions.
  5. Council’s proposed access arrangements had a greater consistency with the requirements of the various codes in the draft scheme, which was the scheme underlying the reason why approval was at all possible. The Appellants had not discharged their onus in proving that the Council’s conditions should not be imposed if the approval was to stand.
  6. The development application should be approved despite some identified conflicts. To alleviate the conflict it needed to be governed by conditions which were relevant to the development and were not an unreasonable imposition on the development. Only the Council’s conditions met that standard.

36/15 GERHARDT v BRISBANE CITY COUNCIL [2015] QPEC 34

(Searles DCJ - 31 July 2015)
Gerhardt v Brisbane City Council [2015] QPEC 34

Planning and environment – building work – existing residential dwelling – Applicant a private certifier who received a building development application from homeowners for alterations to an existing residential dwelling – alterations require assessment against Dwelling House code and Traditional Building Character (Design) Code – where development permit required before alterations can go ahead – where Applicant applied to Respondent for amenity and aesthetic assessment for purposes of obtaining approval – whether Respondent is a ‘concurrence agency’ – whether Applicant must make separate application to Respondent for development permit or preliminary approval.

Facts: This was an application for declarations in relation to a development application for building work on a dwelling located at Lodge Road, Wooloowin.

The development application sought a development permit for a carport, entry, alterations and changes to the external walls façade. The dwelling was a pre-1946 house within the Character Residential zone, the Traditional Building Character overlay and the Clayfield-Wooloowin District Neighbourhood plan of City Plan 2014.

The owners lodged the development application to a private certifier. The development application was code assessable. The proposal did not comply with the relevant acceptable solutions, therefore the operation of the Building Act 1975, City Plan 2014 and Schedule 7 of the Sustainable Planning Regulation 2009 operated to make the private certifier the assessment manager for the development application and Council a concurrence agency for the purposes of the development application. Council’s role as concurrence agency was to assess the amenity and aesthetic impact of the development application against the Traditional Building Character (Design) Code and Dwelling House Code under City Plan 2014.

Council’s assessment period for the development application was 10 business days beginning on 12 December 2014. The applicant wrote to Council four times requesting its response. On 4 February 2015, Council advised the applicant that the request was premature and that a preliminary approval was necessary before the development application could proceed.

The certifier sought declarations that the Brisbane City Council was a concurrence agency for the development application for assessing the amenity and aesthetic impact of the proposed building work and that no application for a development approval for building work was required to be made to or approved by the respondent for the proposed building work.

In relation to the first declaration sought, Council conceded that it was a concurrence agency and argued that, therefore, the declaration did not need to be made.

In relation to the second declaration, Council argued that the applicant misconceived the limited role he played in the assessment process and that the relevant provisions of the Building Act 1975 did not oust its role as assessment manager for the purposes of assessment against the planning scheme.

The applicant said that there was no need to apply for a development approval from Council because he alone was the “assessment manager” charged with the authority to decide the application. Because Council did not respond within the required timeframe, the applicant must, as assessment manager, decide the application as if Council had imposed no concurrence agency requirements.

Decision: The Court held:

  1. There must be “sufficient utility” to justify making a declaration. As Council had wholly accepted that it was a concurrence agency there was no utility in granting the first declaration.
  2. The applicant was entitled to the second declaration. No further application for a development permit or preliminary approval was required before the applicant could approve the application.
  3. Council had correctly pointed out that, under s 241(1) of the SPA, it may issue a preliminary approval. But that was only in the event that an application for such an approval was made, which was not the case. Further, s 241(2) plainly stated that the applicant was not required to obtain preliminary approval before the application could be approved.
  4. Council failed to exercise its concurrence agency jurisdiction by assessing the application against the relevant codes under City Plan 2014 and imposing conditions or refusing the application. It was not the applicant’s place to do such assessments. The applicant now had to decide the application as if the Council had no concurrence agency requirements.
  5. There was nothing in either the Building Act 1977 or the Sustainable Planning Act 2009 which indicated that there may be more than one assessment manager concurrently.

37/15 THURECHT & ANOR v BRISBANE CITY COUNCIL (NO 2) [2015] QPEC 35

(Searles DCJ - 31 July 2015)
Thurecht & Anor v Brisbane City Council (No 2) [2015] QPEC 35

Procedure – costs – where, prior to the appeal, Appellants made numerous attempts at agitating application to have the matter heard and determined by the ADR Registrar – whether the application had been dismissed – whether discretion should be exercised for costs order – conduct of Appellants in persisting with application.

Facts: This matter concerned an application for costs, following the decision of His Honour Judge Searles, dismissing the appeal and reserving costs on the basis that the parties provide written submissions to the Court.

The Council sought costs incurred in responding to the Appellants’ attempts to re-agitate an application to have the appeal heard by the ADR Registrar. The Council did not seek costs for resisting the appeal.

Council argued the Court should exercise its discretion under s 457 and award costs in its favour on the grounds that the Council was put to unnecessary and considerable effort and expense in responding to the Appellants’ requests to have the appeal heard by the ADR Registrar. The Appellants persisted, despite the decision by His Honour Judge Everson to dismiss the Appellants’ application, to agitate for the appeal being heard and determined by the ADR Registrar.

The Appellants argued that s 457 should not be applied because His Honour Judge Everson did not specifically dismiss the ADR application, and they were therefore entitled to re-agitate the application.

The Appellants also argued that given the power under s 491B to refer matters to the ADR Registrar is in its infancy, it would be inappropriate for the Appellants to pay the Council’s cost where the boundaries of the provision is yet to be tested.

Decision: The Court held, in making orders in favour of the Council:

  1. The Appellants should have appreciated that their application did not have reasonable prospects of success following the decision of His Honour Judge Everson to dismiss the application.
  2. The Appellants’ repeated attempts to have the matter heard and determined by the ADR Registrar constituted unreasonable conduct in the proceedings.
  3. It was appropriate in the circumstances to exercise the Court’s discretion under section 457.

38/15 CUTHBERT v MORETON BAY REGIONAL COUNCIL [2015] QPEC 36

Searles DCJ - 31 July 2015)
Cuthbert v Moreton Bay Regional Council [2015] QPEC 36

Procedure – pleadings – strike out application – impugned paragraphs in Notice of Appeal pertain to historical matters in previous but related proceedings – whether impugned paragraphs are irrelevant to the issues in dispute – whether impugned paragraphs should be struck out.

Procedure – stay of proceedings – where, in the substantive appeal, Appellant seeks orders varying or setting aside Environmental Protection Order issued by Council – EPO pertains to Appellant’s boat maintaining and repairing facility – where Council’s position is that Appellant has failed to comply with requirements of an Environmental Authority permitting carrying out of facility – whether refusal to grant a stay would impact on the ultimate effectiveness of any orders made in the appeal – whether grant of stay will threaten the integrity of appeal decision – whether any threat of irreparable prejudice to the Appellant if proceeding not stayed.

Facts: This was a judgment about two applications in the substantive appeal.

The first application was made by the Appellant and sought an order that the decision of Council to issue an Environment Protection Order (EPO) on 31 March 2015 be stayed pending the final determination of the appeal.

The second, made by Council on 16 June 2015 and amended on 18 June 2015 sought the strike out of parts of the Appellant’s Notice of Appeal on the grounds that they were unnecessary because they were irrelevant to the determination of the issues in dispute in the appeal.

In the appeal, the Appellant was seeking orders that the EPO be set aside or varied.

The EPO related to the conduct of the Appellant of a boat maintenance and repair facility on two lots located at Bishop Parade, Toorbul. The subject business had been conducted on the lots since 1962.

Since the introduction of the Environmental Protection Act 1994 (EPA), the use had been identified as an environmentally relevant activity (ERA).

The Appellant took over operation of the facility in April 2002. An environmental authority was issued by Caboolture Shire Council on 9 April 2002.

The issues in dispute in the appeal were:

  1. Whether the appellant had failed to comply with the general environmental duty in the conduct of the ERA;
  2. Whether the Appellant had failed to comply with the conditions of the environmental authority;
  3. Whether the requirements of the EPO were needed to secure the Appellant’s compliance with the general environmental duty in the conduct of the ERA;
  4. Whether the requirements of the EPO were needed to secure the appellant’s compliance with conditions of the environmental authority;
  5. Whether the exercise of the discretion under s 358 of the EPA should result in the issue of EPO.

Decision: The Court held:

Strike out application:

  1. The power to strike out pleadings wholly or in part should be sparingly exercised and only in clear cases where the grounds have been made out.
  2. Where it is clear a pleading should be struck out, the Court should strike it out to ensure that the case to be answered by the Applicant is clearly articulated. To do otherwise can lead to unnecessary costs being incurred by a party in answering allegations not germane to the issues in dispute.
  3. Nothing advanced by the Appellant persuaded the Court that any of the paragraphs under attack in the Notice of Appeal were relevant to the issues to be determined in this Appeal. The paragraphs in issue related to the site history and historical use and were not relevant to this Appeal. To allow the paragraphs to stand would involve the parties in unnecessary expense including disclosure on issues of historical interest only.

Stay application:

  1. The principles governing the granting of a stay were summarised as:
    a. It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of the stay.
    b.  The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the Court are fully effective.
    c.  While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not arguable, the Court will generally not descend into a detailed assessment of the prospects of the appeal.
    d.  Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.
  2. A stay should be granted for the provisions of the EPO that related to ‘physical works and/or upgrades to the facility’ – this was conceded by Council. These works included an upgrade of the slipway and upgrades to equipment used in the business. It was accepted that these provisions carried with them financial implications such that if a stay was not granted the Appeal decision may be rendered nugatory. Staying these provisions ensured the effectiveness of any decision on Appeal in favour of the Appellant.
  3. A stay of the EPO provisions that related to ‘procedural and operational requirements’ should not be granted. These provisions related to such things as general operational issues, waste disposal / management and hours of operation.
  4. The historical use of the site was of no relevance to the consideration of granting a stay.
  5. While there was insufficient evidence that environmental harm had occurred, by not granting the stay of these provisions it was likely that environmental harm would occur.
  6. Compliance with the ‘procedural and operational’ provisions of the EPO would not threaten the integrity of any Appeal decision.
  7. The Appellant had not established any threat of irreparable prejudice if the stay of the ‘procedural and operational’ provisions is not granted.

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