Council of the City of Gold Coast v Taylor & Anor [2016] QPEC 54 (2016) QPELR 958

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Council of the City of Gold Coast v Taylor & another [2016] QPEC 54 PARTIES: COUNCIL OF THE CITY OF GOLD COAST (Applicant) v TAYLOR & another (Respondent) FILE NO/S: 3373/16 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 24 October 2016 DELIVERED AT: Brisbane HEARING DATE: 24 October 2016 JUDGE: Rackemann DCJ ORDER: The appeal is allowed, the committee’s decision set aside and a new decision made replacing that decision. CATCHWORDS: APPEAL – BUILDING – APPEAL FROM BUILDING AND DEVELOPMENT DISPUTE RESOLUTION COMMITTEE – where appeal unopposed whether error of law or want or excess of jurisdiction – where the applicant had, or concurrence agency required refusal of building application but the committee had allowed an appeal and given approval subject to a new condition – where the committee had failed to make a finding about compliance with the relevant performance requirements or had failed to give adequate reasons. COUNSEL: K W Wylie for the applicant SOLICITORS: McInnes Wilson Lawyers for the applicant Mrs Taylor (self-represented) for the respondents -- 1 of 7 -- 2 [1] This is an appeal against a decision of a Building and Development Dispute Resolution Committee on the 27th of July 2016 by which it upheld an appeal from Mr and Mrs Taylor against the refusal of their development application for building work to facilitate the construction of a dwelling house. The development application had been made to a building certifier. The certifier had referred the application to the council in its capacity as a sewerage service provider and had refused the application consistently with the council’s direction. The certifier had gone on to indicate the assessment of the application otherwise, which would obviously assist any appeal body in considering the form of an approval in the event that there was a successful appeal against the refusal. [2] The Taylor’s, as the respondents to this appeal, do not resist the appeal. It appears that they have been somewhat worn down by being the meat in the sandwich of the dispute in which the council and the committee took different views. Although this appeal is unopposed, this court only has jurisdiction to interfere with the decision below if error or mistake in law is established or a want or excess of jurisdiction is established. Accordingly, it is necessary to consider the committee’s decision and whether it erred in a relevant respect. [3] Pursuant to schedule 5 of the Sustainable Planning Regulation, the application for building work was code-assessable against, amongst other things, the Queensland Development Code. Part of the Queensland Development Code is MP1.4 – Building over or near relevant infrastructure. That part of the code applies to building work for a building or structure proposed to be carried out on a lot that contains, or is adjacent to a lot that contains, relevant infrastructure as indicated in table 1 of the -- 2 of 7 -- 3 code. Relevant infrastructure includes a sewer operated by or for a sewerage service provider. [4] A sewerage service provider is defined by reference to the Water Supply (Safety and Reliability) Act 2008, schedule 3. That Act, in turn, defines a sewerage service provider to mean an entity registered under that Act as a provider for a sewerage service. By reason of the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009, the Gold Coast City Council, as a “withdrawn council”, became a service provider for its local government area. The building work, the subject of the application, was proposed to be carried out on a lot traversed by relevant infrastructure, namely, a sewer. This attracted the application of MP1.4, the applicable performance requirements in respect of which were P1 and P2. It has never been disputed that the building work initially applied for departed from the acceptable solutions to those performance requirements. In that event, by reason of item 27A of table 1 of schedule 7, the council, as the relevant service provider, became a concurrence agency for the application. [5] In the course of the hearing of the appeal to the committee, the council placed some reliance upon a Network Modifications, Extensions and Connect Policy (NMEC), which states that: Residences are not permitted to be constructed over sewers (except in exceptional circumstances…). [6] On the hearing of this appeal, counsel for the council sensibly did not seek to place any reliance upon that policy or to suggest that it should have been applied in determining whether or not there was compliance with the relevant performance requirements. -- 3 of 7 -- 4 [7] It seems that the council took the attitude that P1 and P2 simply prohibit development above sewer lines. That is not correct. The relevant part of P1 provides that: A building or structure – … (c) is constructed and located so its integrity is unlikely to be affected as a result of the infrastructure – (i) being maintained or replaced; or (ii) failing to function properly. [8] As counsel for the council rightly acknowledged when pushed in the course of argument, that does not necessarily mean that in no circumstances could any part of any building be built over any part of a sewer line. [9] P2 is a stronger, in relation to the council’s position. It provides relevantly as follows: P2. When completed, a building or structure allows - (a) the relevant service provider the access above the infrastructure required for inspecting, maintaining or replacing the infrastructure. [10] As counsel for the council also, however, had to concede when pushed in the course of argument, that that too, does not necessarily mean that there could never be any building built over any part of the relevant infrastructure. It might be possible to build over a sewer to some extent whilst providing sufficient access above the infrastructure, for a sufficient length, so as to provide for that access required for inspection, maintenance and replacement of the infrastructure. [11] In its reasons, the committee quite rightly was concerned that the council had not sufficiently explored whether the performance requirements of the QDC were able to be satisfied. The difficulty with the committee’s reasoning, however, is that it, too, -- 4 of 7 -- 5 seems either to have distracted itself from that question or not to have given sufficient reasons for finding compliance if, indeed that is what it found. [12] The committee, in upholding the appeal, set aside the decision notice of the assessment manager and replaced it with a new decision. That new decision relevantly contained a new condition requiring the applicant to replace the section of the sewer under the proposed building to the satisfaction of the Gold Coast City Council and in accordance with the SEQ Water Supply and Sewerage Design and Construction Code (SEQ Code). [13] On the hearing of this appeal, it was contended, on behalf of the council, that the reference to the SEQ Code indicated that the committee had taken into account an irrelevant consideration. That was said to be so because section 313(5) of the Sustainable Planning Act required the assessment manager not to assess the application against, or having regard to anything other than a matter or thing mentioned in the section. Relevantly, the section referred to any applicable codes identified as a code for IDAS under the Sustainable Planning Act or another Act. The SEQ Code is not such a code, nor does it otherwise fall within the description of the documents referred to in section 313. The council’s submission in that regard appears to have some strength, but it seems to me that the committee’s reasoning process has otherwise miscarried in any event. [14] The central consideration was compliance or otherwise of the proposal with P1 and P2 of the Queensland Development Code. The reasons for decision of the committee do not expressly find that the proposal complied with those, nor do they find that compliance with the new condition, which references the SEQ Code, would achieve compliance with the QDC. -- 5 of 7 -- 6 [15] In the reasons, the committee said: Council does not appear to have considered other options provided in the SEQ Code which could be explored to satisfy the performance requirements of the QDC. [16] But it did not go on to expressly find that to replace the relevant section of the sewer in accordance with the SEQ Code would achieve compliance with P1 and P2. There was some reference to the fact that a new sewer constructed in accordance with those requirements would have an expected life of 100 years, but there was no finding that that, in itself, achieved compliance with P1 or P2 which relate to the construction and location of the building (P1) and access for required inspection, maintenance and replacement of infrastructure (P2), rather than the expected life of the infrastructure. It is not immediately obvious why the construction of new infrastructure with a life of 100 years means that, for example, there is no requirement for inspection or maintenance over that planned life. If it was the committee’s view that replacement of the relevant section of the sewer with a new one designed in accordance with the SEQ Code would achieve compliance, then it should have made a finding to that effect and should have given adequate reasons for that finding. Unfortunately, its reasons did neither of those two things. [17] The committee’s reasons, which were brief, also referred to the impact which the council’s preferred course (the relocation of the sewer) would have on the design of the dwelling and the useability of the subject site, but the reasoning did not go on to say how that was linked with any finding about compliance with the performance requirements or indeed to the ultimate decision. One could speculate that perhaps the committee thought it had a discretion to approve notwithstanding some conflict with the code and considered the consequences for the landowner to be relevant, but, if it -- 6 of 7 -- 7 thought that it had such a discretion and was purporting to exercise it, then, in its reasons should have made that clear and the reasons for the exercise of any discretion should have been stated in a much more comprehensive way. [18] For those reasons, the committee, although correctly criticising the council for not adequately considering compliance with P1 and P2, fell into error by failing, in its own reasons, to consider and make findings about compliance on the basis of the application before it or, indeed, on the basis of the approval as the committee purported to give, and in failing to give adequate reasons as to matters of compliance or as to the exercise of any discretion which it might have thought it had to approve in the event of non-compliance (the question of whether it had such a discretion was not fully argued before me). [19] For those reasons, the committee at least made an error or mistake in law and it is appropriate that the appeal be allowed and its decision set aside. [20] I would, in the circumstances, ordinarily have returned the matter to the committee to make a further decision according to law, but this court has the power to set aside the committee’s decision and make a decision replacing that decision. The parties are agreed that the preferred course, from their perspective, is for this court to make a decision which gives an approval subject to a different condition, namely, one which gives effect to the council’s preference that the sewer be moved so that it does not lie underneath the building, with the consequence that P1 and P2 are satisfied. That seems to be both an available and sensible course in the circumstances, which I am prepared to adopt. -- 7 of 7 --