Queensland Planning and Environment Court Updates – September 2015

(Bowskill QC DCJ - 4 September 2015)
Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 40

Planning and environment – application – preliminary determination of issues raised in notice of appeal concerning construction of preliminary approval granted under s 242 of the Sustainable Planning Act 2009

Planning and environment – application – application for order under s 440 of the Sustainable Planning Act 2009 excusing partial non-compliance with public notification requirements

Facts: This was an application for determination of preliminary points in an appeal.

On 29 March 2007, the Court approved Stockland’s development application for a preliminary approval for a material change of use for a master planned community comprising residential, commercial and open space areas known as “North Shore”.

The 2007 approval was subject to a plan of development (“North Shore Plan of Development”) which varied the effect of the relevant planning scheme by stating the assessment categories for various kinds of development within the relevant area and identifying codes for development.

On 20 March 2015, Council notified Stockland of its decision to grant a preliminary approval for a material change of use in respect of a proposed development at Main Street, Burdell, within the “North Shore” master planned area.

The appellant was the owner of adjoining land. The appellant appealed against Council’s decision to grant the 2015 approval. Paragraphs 8 – 11 of the Notice of Appeal raised a number of issues in relation to the correct construction of the development application and the conditions of approval.

Stockland filed an application seeking to have the following matters dealt with as preliminary issues:

1. Whether the appeal could continue notwithstanding partial non-compliance with public notification requirements;
2. Whether the issues identified in any of paragraphs 8 – 11 of the Notice of Appeal warranted refusal of the development application.

In relation to the public notification issue, Stockland identified two issues with the public notification of the development application which gave rise to the 2015 preliminary approval.

The first was a failure to place a notice on one of the road frontages to the relevant land. The second related to the content of the public notice, arising from a reference in it to the proposed development being in respect of “preliminary approval for material change of use pursuant to section 242 of SPA to override part of the North Shore Plan of Development to allow development in accordance with the Mixed Use Planning Area Plan of Development”. Stockland sought excusal of the non-compliance under section 440 of the Sustainable Planning Act 2009 (SPA).

In relation to the remaining issues, Stockland sought orders that the relevant paragraphs be struck out of the Notice of Appeal.

Decision: The Court held:

1. It was appropriate to deal with the matters set out in paragraphs 8 – 11 of the Notice of Appeal on a preliminary basis.
2. The matters identified in paragraphs 8 – 11 of the Notice of Appeal did not warrant refusal of the application.
3. In relation to the failure to place a notice on one of the road frontages, it was appropriate under s 440 of the SAP to excuse that non-compliance.
4. In relation to the description of the application in the notices, it would not be expected that a person would decide whether or not to make a submission or to formulate the content of any such submissions simply on the basis of the information contained in the public notice.
5. The information provided in the notice was sufficient to inform and motivate an interested person to then take the step of viewing the full application if they were concerned about the proposal. A reasonable person, reading the notice, would not form a different view about that based on the reference to overriding the North Shore Plan of Development, rather than overriding or varying the effect of the planning scheme.
6. The erroneous reference in the notice to overriding the North Shore Plan of Development was such as to lead to the conclusion that the notice did not strictly comply with the requirements for content of the notice. However, on the basis that the error could not be said to have substantially restricted a person’s rights under the legislation, it was appropriate to excuse the non-compliance and to make an order that the appeal continue notwithstanding any particular non-compliance with the requirements for public notification.

(Rackemann DCJ - 19 August 2015)
Urban Potentials Pty Ltd v Southern Downs Regional Council & Anor [2015] QPEC 42

Planning and environment – extended definition of applicant – whether owner has to give consent to change in identification of the applicant – whether material showed that the new ‘applicant’ was a person in whom the benefit of the application had vested.

Facts: This matter involved an application seeking declarations that Muirlawn Pty Ltd was the ‘Applicant’ for a development application and an order that it be substituted for the named Appellant, Urban Potentials Pty Ltd. Urban Potentials Pty Ltd was a town planning consultant and the entity that lodged the development application with Council on behalf of Muirlawn Pty Ltd.

The Appellant submitted that Muirlawn Pty Ltd was the person in whom the benefit of the application vested, so as to fall within the meaning of the word ‘Applicant’ in schedule 3 of the Sustainable Planning Act 2009.

The Co-Respondent submitted that, due to a change in ownership of the subject land, Muirlawn Pty Ltd required consent of the new owners to proceed with the development application.

Decision: The Court held, in dismissing the application:

1. Owner’s consent was not required as a precondition to Muirlawn becoming the person in whom the benefit of the application vests.
2. While Muirlawn always intended to ultimately develop and operate the development on the subject site, this did not necessarily mean that it was the entity in which the benefit of the development application vested.
3. An entity’s intention to be the one who ultimately acts on an approval does not necessarily mean that is the entity in which the benefit of a development application vests.
4. The fact that Muirlawn was prepared to pay consultant’s fees in the application itself did not go far enough to establish that it was the entity in which the benefit of the application vested.
5. The provided material just fell short of establishing that Muirlawn fell within the extended definition of ‘Applicant’.

(Long SC DCJ - 10 September 2015)
Solac No. 14 Pty Ltd v Sunshine Coast Regional Council [2015] QPEC 44

Planning law – application – application to make changes to previous development approval in relation to the proposed construction of self-storage facilities – where the proposed changes are to allow the height of one part of one of the proposed buildings to exceed 8.5m above natural ground level and to delay the dedication of land as a reserve for park and to vary the stormwater management methods – whether proposed changes are permissible changes in accordance with s 367 of the Sustainable Planning Act 2009 – whether because of the proposed changes the result is not a substantially different development – whether it is established that no proposed change would be likely to cause a person to make a properly made submission objecting to the change, if the circumstances permitted that.

Facts: This was an application for a request to make changes to a development approval, granted by the Court on 20 May 2011, in the appeal 244/09 (Maroochydore). The order related to the proposed construction of self-storage facilitates located at Lots 1 and 3 on RP233903 and situated at Coral Street, Maleny.

The application proposed the following changes to the existing approval to:

1. allow the height of part of one of the proposed buildings to exceed 8.5 metres above natural ground level;
2. delay the dedication of land as a reserve for park; and
3. vary the stormwater management methods.

The changes were to be assessed against section 374 (a) and (c) of the Sustainable Planning Act 2009.

As the Respondent consented to the order and the concurrence agency provided a pre-request response notice stating there were no objection, the issues for the Court were:

1. whether because of the changes, the result was not a substantially different development; and
2. the proposed change was not likely to cause a person to make a properly made submission objecting to the change, if the circumstances allowed.

Decision: The Court held:

1. Although applicants and assessment managers are permitted to have regard to the ministerial guideline No. 06/09 (issued under s 759(1)(c) of SPA) to determine whether proposed changes are substantially different development, the guideline is neither exhaustive in terms, or prescriptive in terms of what will be a substantially different development.
2. What is ultimately required is the application of the statutory language, to matters of fact and degree, to the combined as well as individual effect of the proposed changes.
3. The proposed changes, both individually and collectively, would not result in a substantially different development.
4. In consideration of the issues as to likelihood of the changes causing a properly made submission, if circumstances allowed, the contemplation of the Court must necessarily be with putative submitters who may act reasonably in that regard.
5. The word “likely” may take on varied meaning, depending on the context of use. The predominant, but not necessarily settled view, is that it is the meaning in the sense of “a substantial chance, a real, not remote chance, regardless of whether it is more or less than 50 percent”, rather than “probably” in the sense of “more likely than not”, that is intended.
6. As it is not easy to rule out the possibility that any change might provoke an objection, the Court must necessarily consider the prospect on a hypothetical premise and having regard to the prospect of a reasonable decision to make a submission, rather than the mere prospect of that occurring.
7. The concern is related to previously impact assessable development and with the effect of the proposed changes and not, with the prospect of opportunity being taken to simply remake submissions that have already been considered in respect of the development.
8. In the circumstances, it was more likely than not that the proposed changes did not give rise to any real or substantial chance or possibility of causing any reasonable decision to make a submission objecting to any proposed change, if the circumstances allowed.
9. The proposed changes were permissible changes.

(Bowskill QC DCJ - 11 September 2015)
Marriott v Brisbane City Council [2015] QPEC 45

Environment and planning – development control – demolition – building subject to traditional building character overlay and traditional building character (demolition) overlay code – whether the demolition code performance and acceptable outcomes are satisfied – whether demolition will result in the loss of traditional building character – whether the subject house is in a street that has no traditional character – whether the subject house is a building which does not contribute positively to the visual character of the street

Facts: This was an appeal against the refusal by Council of an application to demolish a pre-1946 house in Sydney Street, Kedron. The subject land was located within the ‘Character residential zone’ under Brisbane City Plan 2014, covered by the ‘Traditional building character overlay’ and subject to the ‘Traditional building character (demolition) overlay code’ (demolition code).

Council refused the application for a preliminary approval to demolish the house on the grounds that the proposed demolition did not comply with various parts of the demolition code.

Following the joint expert process, the issues in dispute in the Appeal were narrowed to the following:

1. Whether the subject house is a building which, if demolished, will not result in the loss of traditional building character (AO5(c) of the demolition code);
2. Whether the subject house is in a street that has no traditional character (AO5(d) of the demolition code); and
3. Whether the subject house is a building which does not contribute positively to the visual character of the street (PO5(c) of the demolition code).

If any of these provisions of the demolition code could be complied with, the appeal should be upheld.

Decision: The Court held, in allowing the appeal:

1. As a matter of general principle, the demolition code is to be construed broadly and in a common sense way which best achieves its purpose and objects and whether or not a conflict exists is to be determined by a consideration of the relevant provisions of the scheme in light of all the relevant facts.
2. When considered as a whole, the appropriate way to approach assessment of PO5(c) and AO5(c) and (d) is to consider the house in the context of the whole of the relevant street and not just that part of the street which is within the ‘Traditional building character overlay’.
3. In relation to AO5(c), the loss of traditional building character contemplated is not absolute but ought to be read as referring to loss that is ‘significant, concerning or unacceptable rather than any loss at all’ (Lynch v Brisbane City Council [2010] QPELR 314).

4. Traditional character was not a significant, overwhelming or defining part of the character of Sydney Street. In this respect, weight was given to the fact that Sydney Street contained predominantly post-1946 houses, even though some of those houses were of ‘post-war style’.

5. The contribution of the subject house to the traditional character in the street was also diluted, because of its present appearance as a result of unsympathetic alterations to it.
6. Having regard to the character of the street as a whole, and to the representation of traditional building character offered by the subject house to the street, the demolition of the house would not result in significant, concerning or unacceptable loss of tradition building character. Therefore AO5(c) was complied with.
7. AO5(d) does not posit an absolute but rather refers to a street that does not have sufficient character to be reasonably described as traditional character. ‘Traditional’ in this context refers to houses constructed in 1946 or earlier. AO5(d) was not complied with as it was difficult to conclude that Sydney Street had no traditional character. It has some, not insignificant traditional character, represented by a number of pre-1946 houses.
8. The test for whether a building contributes positively to the visual character of the street (in PO5(c)) is intended to mean that there is a contribution which is favourable – that is, it adds to the visual character of the street, as opposed to being neutral or detracting from it.
9. What needs to be shown for PO5(c) to be met is that the house contributes positively to (or adds to) the visual character of the street which is protected by the code and the planning scheme. It is not enough to say that because the house represents traditional building character, and is situated within a group of such houses covered by the overlay, it therefore makes a positive contribution to the visual character of the street.
10. It cannot be said that the subject house contributes positively to any distinctive (traditional) character in Sydney Street. Therefore, PO5(c) was complied with.

(Rackemann DCJ - 14 September 2015)
Brisbane City Council v Erlbaum [2015] QPEC 46

Enforcement notice – where show cause procedure not followed – Building and Development Dispute Resolution Committee – whether error of law – whether subject matter of enforcement notice of “dangerous” nature – whether building was dangerous by reason of inadequate fire separation – relevance of Queensland Building Work Enforcement Guidelines – where Committee relied on smoke alarms to conclude that the building was not dangerous – where Committee erred by making assumptions that a smoke alarm system sufficiently mitigated risk in the absence of fire separation measures

Facts: This was an appeal against a decision of the Building and Development Dispute Resolution Committee (Committee) to set aside an enforcement notice (fourth enforcement notice) issued by the appellant pursuant to s 248 of the Building Act 1975 without first going through a show cause procedure.

Under s 248(4) of the Building Act 1975, a local government is not required to follow a show cause procedure prior to issuing an enforcement notice if the subject matter of the enforcement notice is of a dangerous or minor nature. The subject of the fourth enforcement notice was fire safety. In particular, it was alleged that there were inadequate fire separation measures in the relevant building such that there was a danger of potential harm to occupants in the event of a fire. The respondents appealed the issue of the fourth enforcement notice to the Committee, which was required to decide whether the subject of the notice was of a “dangerous” nature so as to justify its issue in the absence of a show cause procedure.

The Committee, having reference to the Queensland Building Work Enforcement Guidelines 2002 (Guidelines) and other matters, decided that the degree of risk did not represent an immediate hazard such as to find the building “dangerous” and set aside the enforcement notice. The appellant contended that in so deciding, the Committee had erred in law and that its decision was manifestly unreasonable.

Decision: The Court held, in allowing the appeal:

1. The Committee approached the issue on the basis that it was required to determine the question of whether the building was dangerous, rather than whether the Council could have lawfully and reasonably, in fact, believed the building to be dangerous. That was the correct approach.
2. There was no need to depart from the plain ordinary meaning of the term “dangerous”.
3. The risk of constituting danger had to be current and more than trivial but, beyond that, no particular level of danger was required in order to justify the issue of an enforcement notice without a show cause process.
4. The Committee’s reference to the Guidelines was unnecessary for interpretation because the Committee had already correctly concluded that the expression “dangerous” should be given its ordinary meaning.
5. The Guidelines were not permissible extrinsic material within the meaning of s 14B of the Acts Interpretation Act 1954, even had recourse to extrinsic material been permitted in the circumstances.
6. Use of extrinsic material may be permitted to confirm meaning, but must be elemental to the legislative function, rather than the subsequent administration of the enactment. The proper role of the Guidelines did not extend to the former.
7. The Guidelines could not inform, let alone alter, the meaning of “dangerous” for the purpose of the Act, or more particularly, change the scope of what can be said to fall within the ordinary meaning of that expression. It was for the Committee to decide whether the facts fell within the ordinary meaning of that term.
8. The Committee appeared to have proceeded on the basis that the risk was of a kind which could potentially support a finding of dangerous but was insufficient to support a finding of dangerous in this case, referring to the presence of smoke alarms in each sole occupation unit. It might be that an alarm system is very important, but it does not follow that a building with such a system, but inadequate fire separation, is not dangerous. The issue for the Committee was whether the building was dangerous, rather than whether it was less dangerous than if it did not have any smoke alarms.
9. The Committee was influenced by the fact there was an outstanding application for a further approval, but the question of “dangerous” was for the Committee to decide. It was not an issue to be deferred to the certifier.
10. If the Committee was to rely upon the smoke alarm system as sufficiently mitigating the otherwise obvious risk, so as to conclude that the building ought not be found to be dangerous, then it should have satisfied itself not only that the alarm system was in place and functioning, but also that the warning given by the smoke alarms would afford an adequate opportunity for escape in the absence of the extent of time afforded by fire separation measures. That ought to have been (but was not) the subject of express consideration and finding, rather than assumption or presumption. The Committee’s fact finding exercise was, as a consequence, materially influenced by an error of approach which bespeaks an error of law.

(Fraser and Morrison JJA and Flanagan J - 22 September 2015)
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175

Application for leave to appeal – where applicant Council issued development permit to respondent developer for reconfiguration of land with conditions requiring payment of infrastructure charges – where respondent made subsequent development application for reconfiguration of same land – where subsequent application refused on ground that proposed development inconsistent with conditions of existing development permit – where primary judge held that this case involved merely the substitution of a development permit with a more advantageous one – whether errors of law – whether the primary judge gave adequate reasons

Facts: his was an application for leave to appeal against a decision of the Planning and Environment Court to allow the Respondent’s appeal against refusal of its development application. It proceeded in accordance with the usual practice that the Court would dispose of the appeal if leave was granted.

In 2010, the Respondent was issued by the Applicant (Council) a development permit for a material change of use and reconfiguration of land at Calliope (2010 reconfiguration approval) subject to conditions which included a requirement to pay infrastructure charges exceeding $2,000,000.

In 2014, the Respondent applied for an approval for reconfiguration of the same land (2014 application). Following amendments made to the Sustainable Planning Act 2009 in the intervening period, the infrastructure charges payable in relation to approval of that application would amount to about $1,500,000.

The Council refused the 2014 application on the ground that the proposed development was inconsistent with the conditions of an existing development permit. The Planning and Environment Court allowed the Respondent’s appeal against the refusal. The Council sought leave to appeal the Planning and Environment Court’s decision on grounds of errors of law.

Decision: The Court held, in granting leave but dismissing the appeal:

1. An approval of the 2014 application would not bring the previous approval to an end. Section 245(2) of the Sustainable Planning Act 2009 is consistent with decisions that, under that Act, different development approvals for the same land may co-exist.
2. The 2010 reconfiguration approval had not been cancelled, made the subject of a request for permissible change or lapsed, but it was not inevitable that it would remain in force when the land was subdivided under an approval of the 2014 application. If the 2010 approval had not lapsed, the Council would be obliged to cancel it before such development occurs upon a request for cancellation by the Respondent.
3. There may be a “substitution” of the 2010 reconfiguration approval, not in the sense that it would cease to have legal effect upon the issue of an approval of the 2014 application, but in the sense that from that time the Respondent would pursue only the development authorised by the later approval and the Respondent could bring about cancellation of the earlier approval.
4. The Council’s arguments incorrectly assumed that something less than registration of a plan of subdivision amounted to assessable development authorised by the 2010 reconfiguration approval. As no plan of subdivision of the land had been registered, no development authorised by that approval had occurred.
5. The grant of the operational works permit and the completion of the works authorised by it did not amount to assessable development authorised by the 2010 reconfiguration approval. That fact that the works satisfied conditions of the 2010 reconfiguration approval did not suggest that assessable development authorised by that approval occurred.
6. The condition which the Council seeks to enforce is attached to an approval for a reconfiguration which has not occurred, and which might lapse or be cancelled before there is any development, and the Respondent applies for approval of a different reconfiguration which will not contain that condition.
7. It was not necessary to consider the questions about legislative policy raised in the grounds of appeal.
8. The 2010 reconfiguration approval might lapse or be cancelled before the Respondent submits a plan of reconfiguration for compliance assessment under an approval of the 2014 application. It cannot be assumed that the latter approval would contain any condition requiring the Council to assess compliance with the operational works permit in a way which would require reference to the 2010 reconfiguration approval.
9. When the Planning and Environment Court is standing in the shoes of the original decision-maker, the matters which may be taken into account are those which are identified by the relevant provisions of the Act. No doubt the assessment manager must have regard to the matters identified in s 313(3), but that must occur in the course of an assessment against the planning provisions identified in s 323(2). Something which has no potential bearing upon the application of any relevant planning provision cannot be a relevant consideration in that decision.
10. It is not the case that a purpose, in seeking a new approval, of reducing the amount of the infrastructure charges payable, has any potential relevance in an assessment against the planning provisions specified in s 313(3).