Council of the City of Gold Coast v McKean & Ors [2019] QPEC 28 [2019] QPELR 959

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: Council of the City of Gold Coast v McKean & Ors [2019] QPEC 28 COUNCIL OF THE CITY OF THE GOLD COAST (Applicant) v GLENN ROBERT MCKEAN (First Respondent) and MARLEY ELIZABETH MCKEAN as trustee for the HODGE FAMILY TRUST (Second Respondent) and ROBERT JAMES BRITTAIN (Third Respondent) D38 of 2019 Planning and Environment Court, Southport Application pursuant to s 11 of the Planning and Environment Court Act 2016 that a development permit for a material change of use ought to have been obtained prior to issue of a building permit; and consequentially a declaration that the building permit ought to be taken as void and of no effect. Planning and Environment Court of Queensland, Southport DELIVERED ON: 21 June 2019 DELIVERED AT: Southport HEARING DATE: 03 June 2019 JUDGE: Kent QC DCJ ORDER: 1. Pursuant to s 11(1)(a) and (c) of the Planning and Environment Court Act 2016 (P&E Act) it is declared that: (a) On 13 August 2018, the start of a new use on land located at 110 Valley Drive, Tullebudgera, described as lot 53 on SP130461 associated with the two storey dwelling described in a purported -- 1 of 7 -- 2 development approval given on 13 August 2018 by the third respondent (building approval) would comprise a material change of use (dwelling house), that is categorised as assessable development (code assessment) by the applicant’s Gold Coast City Plan (version 5), and for which a development permit is required; (b) the purported granting of the building approval by the third respondent contravenes s 83(1A) of the Building Act 1975 (Qld) (Building Act), because there was no effective development permit in place for the development described in sub-paragraph (a) above; and (c) as a consequence of the contravention described in sub-paragraph (b), the building approval is void and of no effect; and 2. In consequence of the above declarations, pursuant to s 11(4) of the P&E Court Act, it is ordered that the building approval is set aside. 3. The first respondent to pay the applicant’s costs on the standard basis. CATCHWORDS: ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – MATTERS FOR CONSIDERATION BY COUNCIL – FIRE AND SAFETY – Where there are no development permits for material changes of use of the land – where the first respondent has a building permit for a dwelling on the property – where the first respondent was unable to avoid the requirement of a code assessable development application – Whether there was a requirement at the time of the issue of the building permit for a development permit for a material change of use for a dwelling house under the Planning Act 2016. ENVIRONMENT AND PLANNING – OPERATION OF STATUTORY CONTROLS – ENFORCEMENT – OBJECTIONS TO COMPLIANCE – Where the applicant argues the respondent was granted a building permit despite non-compliance with s 83 of the Building Act 1975 – where the applicant argues this is amounts to a breach of a fundamental precondition – Whether the building permit was either void ab initio or voidable. PROCEDURE – CIVIL PROCEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – Where parties generally bear their own costs – whether the first respondent should be ordered to pay the applicant’s costs for having no reasonable prospects of success. LEGISLATION: Building Act 1975 (Qld), s 83 -- 2 of 7 -- 3 CASES: COUNSEL: SOLICITORS: Planning Act 2016 (Qld), s 260 Planning and Environment Court Act 2016 (Qld), s 59, s 60 Baevski v Gladstone Regional Council [2009] QPELR 533, followed Bundaberg Regional Council v Loeskow [2012] QPELR 27, followed Gerhardt v Brisbane City Council [2016] QPELR 900, followed Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2, followed Moramou2 Pty Ltd v Brisbane City Council (No. 2) [2019] QPEC 22, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied K Wylie for the applicant. The first respondent appeared on his own behalf and on behalf of the second respondent. No appearance for the third respondent. McInnes Wilson Lawyers for the applicant. The first respondent appeared on his own behalf and on behalf of the second respondent. No appearance for the third respondent. [1] In this matter the applicant applies for: 1. a declaration that a development permit for a material change of use ought to have been obtained prior to issue of a building permit; and 2. consequentially a declaration that the building permit ought to be taken as void and of no effect. [2] The only active party on the respondents’ side was the first respondent. Mr McKean was self represented. [3] Written outlines of argument were filed and the matter was heard on 3 June 2019. Judgment was reserved. Subsequently the first respondent, without any relevant orders, directions or permission from the applicant, filed a further outline which he presumably sought to rely on. The applicant indicated it did not consent to this and wished it to not be taken into account without an opportunity to respond. Consequently it has not been taken into account. Background -- 3 of 7 -- 4 [4] The relevant land at 110 Valley Drive, Tallebudgera (Lot 53 on SP130461) is owned by the second respondent. It is unimproved and falls within the applicant’s local government area. [5] There have been other proceedings in respect of the land in this court which are not immediately relevant, although they do provide a context for this matter coming to light.1 [6] The third respondent is the private certifier who approved the first respondent’s building application issuing a building permit for a dwelling, attached garage and attached balcony on the land. There are no development permits for any material changes of use over the land. The applicant points to s 83 of the Building Act 1975 (Qld) and in particular that a private certifier must not grant the building development approval applied for until all necessary development permits are in place under the Planning Act 2016. The applicant submits in essence that there was a requirement at the time of the issue of the building permit for a development permit for a material change of use for a dwelling house under the Planning Act 2016; second that the consequence was that the building permit was either void ab initio or voidable. Material Change of Use [7] At the time when the building permit was issued the relevant planning scheme was City Plan 2016, Version 5. The land is within the rural residential zone, and within that zone in the rural residential landscape and environment precinct.2 [8] The land was thus affected by the bushfire hazard overlay map, one part within the “very high potential bushfire hazard area”, and the balance within the “high potential bushfire hazard area”.3 [9] Any development for a material change of use for a dwelling house therefore required assessment against the bushfire hazard overlay code4 and if the proposed development did not meet the required outcomes of the bushfire hazard overlay code, the development is code assessable and thus a development permit for material change of use would be required.5 [10] The consequence is that the development is required to comply with an existing bushfire management plan referenced within an approved reconfiguration of a lot, as the development is not for a dwelling house on a lot smaller than 1000m².6 [11] The applicant points to the evidence of its bushfire expert, Mr Friend, who confirms that the City Plan mapping properly reflects the potential level of bushfire risk on the land and there is no bushfire management plan associated with an approved reconfiguration of a lot in existence.7 The site is much larger than 1000m², being 48,990m². 1 See the history set out in the applicant’s outline of submissions para 3. 2 See CEO Certificate, court document 3, exhibit p 70. 3 Ibid pp 72-73. 4 Ibid p 16. 5 Ibid p 9, para 5.3.3(2). 6 RO1, Ibid p 18. 7 CEO Certificate, para 4(d). -- 4 of 7 -- 5 [12] The consequence of RO1 not being complied with, is that under the code, compliance with RO1 to RO6 is required to avoid the requirement for a code assessable development application. The problem in this case is that RO3 requires, for sites such as this serviced with reticulated water, that the dwelling house must be serviced by an access driveway of no greater than 70m. The access driveway proposed here is over 500m.8 [13] Thus, so the applicant submits, the city plan bushfire hazard overlay code has not been complied with; the use of the building the subject of the building permit comprises a material change of use for a dwelling house (because of the failure to comply with RO3); and thus a development permit was required. Thus the third respondent did not comply with s 83(1)(a)(ii) of the Building Act 1975 when issuing the building permit.9 Consequence of non-compliance/ discretion to make declaration [14] The applicant further submits that the legislative context indicates that the requirement to comply with s 83 of the Building Act 1975 is fundamental and thus the building permit is invalid. It is not a situation where non-compliance with the statute is not such as to invalidate the permit. The situation is contrasted with the example in Project Blue Sky Inc v Australian Broadcasting Authority.10 [15] The applicant refers to Gerhardt v Brisbane City Council11 where Bowskill QC DCJ, as her Honour then was, concluded that the fundamental requirement for all development to be properly assessed had the effect that compliance with s 83 was essential to found a private certifier’s jurisdiction to issue a development permit.12 [16] The applicant further refers to Baevski v Gladstone Regional Council13 and Bundaberg Regional Council v Loeskow14 for examples of the same reasoning. [17] Thus the applicant submits that Mr Brittain’s non-compliance with s 83 of the Building Act 1975 has the inevitable consequence that the permit is void and of no effect, and the declaration should be made. In reaching this conclusion, the applicant refers to a number of features: (a) on public policy grounds, formal declaration of invalidity of a permit that is in fact void ab initio or otherwise issued in non-compliance with s 83 of the Building Act 1975 is a proper outcome; further, as the section contemplates, it represents informal censure of the private building certifier’s non-compliance with important provisions of the Act; (b) council commenced the proceeding expeditiously once it came to the council’s notice; (c) the fact that the proposed building has not yet been constructed, so there are no concerns for example as to the demolition of an existing structure; 8 See the building permit site plan at CEO Certificate, exhibit p 23. 9 It is noted that the third respondent did not take part in these proceedings, and indicated in email correspondence that he did not seek to contest the validity of the permit. 10 (1998) 194 CLR 355, particularly at [91]. 11 [2016] QPELR 900. 12 See particularly paras [84] to [87]. 13 [2009] QPELR 533. 14 [2012] QPELR 27. -- 5 of 7 -- 6 (d) the important fact that development permits run with the land, such that a subsequent land owner could rely upon a wrongly issued permit, or utilise a house constructed to it, without knowledge of its non- assessment against key city plan provisions, and indeed, key provisions directed to safety of residents; (e) the house is proposed to be constructed in an area of high or very high potential bushfire hazard, and the building permit was not assessed against the City Plan bushfire hazard overlay code, including requirements associated with access and egress; (f) the applicant’s expert, Mr Friend, has identified that the “emergency access” proposed by the respondent from the house to Westminster Boulevard (effectively, through 85m of bushland) is contrary to principles of good bushfire planning, places the residents in danger, and does not represent an acceptable approach to the management of bushfire.15 (g) Mr Brittain, the certifier, seems to accept the non-compliance with the Act and has requested Mr McKean to cancel the permit.16 Respondent’s submissions [18] Mr McKean submits that the City Plan only classifies “dwelling n.e.i.” as assessable development requiring an MCU code assessment. “N.e.i.” means “not elsewhere included”. Because the permit refers to the construction as a standard dwelling, not a dwelling “n.e.i.” the requirement for MCU code assessment is avoided. [19] The response of the applicant is that this particular descriptor, in the present context, is irrelevant. The relevant city plan table provides this distinction for building requirements but not for the bushfire hazard overlay requirements. [20] Next, the respondent contests the requirements for a development permit for a material change of use at the time of the issue of the building permit. The respondent submits that because under an earlier version of the City Plan the proposed dwelling may have been within the category of accepted development such that development approval was not required, and later amendments to the City Plan should not have altered this situation. In other words, the previously existing lawful use of premises was protected from the effect of amendments of the relevant planning instrument; see s 260 Planning Act 2016 (Qld). However the response of the applicant is that the respondent did not commence the building work, or obtain a development approval, under the previous version of the City Plan. In these circumstances, the protection in s 260 for existing lawful uses, works and approvals, is not operative. [21] Next, the respondent refers to an assessment apparently conducted by his expert, Mr Janssen in relation to the suitability of the proposed dwelling house as regards fire resistance, in the context of the bushfire management plan. However no affidavit from Mr Janssen was read on this application and I am not aware of any engagement by him in the propositions set out above in relation to non-compliance with RO3 as to access. As pointed out by the applicant, Mr Friend refers to the assessed difficulties in the emergency access to the proposed property. Mr Friend deposes to his conclusions that the emergency access is contrary to principles of good bushfire planning, places the house residence in an unnecessarily hazardous situation, and does 15 Mr Friend’s affidavit, court document 14, para 7. 16 Email correspondence in McCabe affidavit, exhibit pp 83-96. -- 6 of 7 -- 7 not represent an acceptable approach to the management of bushfires. Mr Janssen, it seems, has offered some opinions in relation to the construction of the dwelling, but there is no evidence that he contests the above conclusions by Mr Friend as to access. Thus in my conclusion, the references to Mr Janssen’s considerations, without any sworn evidence in support thereof, do not assist the respondent. [22] Next, the respondent submits that the applicant, as the holder of the adjoining undeveloped land covered by the bushfire management plan, is in breach of its own plan, in relation to various aspects of access and the like. The applicant’s response is that the applicant does not plan any development for the adjoining land which is a conservation estate, namely the Elenora Conservation Reserve. If there were a development on the land, it would have to comply. [23] Mr McKean also argues that the applicant has approved other building applications by private certifiers in similar circumstances without raising any objection. He refers to the evidence of Mr Sharpe, the executive co-ordinator of planning, on this point. However when he gave evidence, I did not understand Mr Sharpe to make any such concession. Mr McKean argues, in effect, that a successful outcome for the applicant would have a “floodgates” type effect whereby many existing houses would be affected. However I am not persuaded that the evidence points to any such conclusion, and in any case, this does not represent a compelling reason to refuse relief. [24] There will be orders for the declaration as submitted by the applicant. Costs [25] The starting point is that parties bear their own costs (s 59 of the Planning and Environment Court Act (Qld)) but there is a jurisdiction to grant costs to a successful party where a matter was conducted for an improper purpose, or frivolously or vexatiously, including for example where there was no reasonable prospect of success (s 60). The applicant submits this is such a case; it should have always been clear that resistance to the application was misconceived, particularly in view of Mr Brittain’s expressed attitude.17 It is also relevant that a Calderbank offer was made on 23 May, offering to conclude the matter with a concession that no costs would then be payable.18 No response was received. [26] In my view, the applicant is also correct on this issue. The resistance by Mr McKean was not reasonable and had no reasonable prospect of success; it was bound to fail. There will be an order that the respondent pay the applicant’s costs of the application on the standard basis. 17 The case is comparable to Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors (No. 2) [2019] QPEC 2; also see the analysis in Moramou2 Pty Ltd v Brisbane City Council (No. 2) [2019] QPEC 22 at [9]. 18 Exhibit 2. -- 7 of 7 --