Body Corporate for Surfers International v Gold Coast City Council & Anor [2016] QPEC 29 (2016) QPELR 502

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Body Corporate for Surfers International Community Titles Scheme 12247 & Anor v Gold Coast City Council & Anor [2016] QPEC 29 PARTIES: BODY CORPORATE FOR SURFERS INTERNATIONAL COMMUNITY TITLES SCHEME 12247 (First Applicant) And TONY JOHN ROBERTS (Second Applicant) v GOLD COAST CITY COUNCIL (First Respondent) And FORISE INVESTMENT AUSTRALIA PTY LTD (ACN 169 275 861) (Second Respondent) FILE NO/S: 4987/2015 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Planning & Environment of Queensland DELIVERED ON: 9 June 2016 DELIVERED AT: Brisbane HEARING DATE: 31 March, 1 April, 4 April, 5 April 2016 JUDGE: Searles DCJ ORDER: 1. Declare that the First Respondent’s Decision Notice dated 24 September 2015 approving, subject to conditions, a Development Application for a Material Change of Use for Apartments (693 units), Café, Restaurant, Shop and Tourist Shop (‘Decision Notice”) for land situated at 3 Trickett Street, Surfers Paradise more formally described as Lot 1 on -- 1 of 41 -- 2 SP211927 and Lot 2 on RP104902 (“the Land”) is invalid and of no effect. 2. An order that the Decision Notice be set aside. 3. The Development Application be remitted to the First Respondent to be determined according to law. 4. I will hear the parties on costs. CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – OBJECTIONS – where the respondent Council approved a development application for a material change of use for apartments – where the development application was approved by way of Code Assessment under the relevant planning scheme – where the applicant appealed to the Planning & Environment Court for a declaration that the Council’s Decision Notice approving the development was invalid and of no effect – whether the decision maker of the Council fell into jurisdictional error – whether the decision maker failed to establish a jurisdictional fact – whether the subject building consisted of an apartment use above or within podium level – whether level 4 of the subject building was above or within the building podium – whether level 4 was characterised as apartment use – whether the Council failed to properly assess the development application. Judicial Review Act 1991 (Qld) s33, Sustainable Planning Act 2009 (Qld) s294, s440 Gold Coast Planning Scheme 2003 Surfers Paradise Local Area Plan Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 Craig v South Australia [1995] 184 CLR 163 Endfield City Corp v Development Assessment Commission (2000) 199 CLR 135. -- 2 of 41 -- 3 Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10. Foodbarn Pty Ltd v Solicitor-General (1975) 32 LDRA 157 Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Walker v Noosa Shire Council [1985] 1 Qd R 387 Warringah Shire Council v Raffles [1979] 2 NSWLR 299 Wheldon & Anor v Logan City Council & Anor [2015] QPELR 640 COUNSEL: SOLICITORS: D Gore QC, with MA Williamson for the Applicants M Hinson QC for the First Respondent C Hughes QC, with J Lyons for the Second Respondent Connor O’Meara for the Applicants Norton Rose Fulbright for the First Respondent Hickey Lawyers for the Second Respondent [1] The Applicants seek a declaration that Council’s Decision Notice of 24 September 2015 approving, subject to conditions, a Development Application (DA) dated 3 July 2015 for a material change of use for apartments (693 units), café, restaurant, shop and tourist shop on land situated at 3 Trickett Street, Surfers Paradise, is invalid and of no affect and an order that the Decision Notice be set aside. [2] The First Applicant is the body corporate of the adjoining property, Surfers International, at 7-9 Trickett Street, Surfers Paradise. The Second Applicant is the chairperson of the First Applicant and the registered owner of three units in Surfers International, two of which are held jointly with his wife. The Second Respondent (Developer) is the Applicant for the DA. -- 3 of 41 -- 4 Nature of Application [3] It is common ground that the nature of the proceedings is analogous to judicial review proceedings, not a merits or quasi-merits review. Morzone QC DCJ in Wheldon & Anor v Logan City Council & Anor1 recently reviewed the relevant authorities and said:- “[17] The relief sought by the applicants is for a declaration and consequential orders under s. 456 of SPA. [18] Unlike appeal proceedings, the court is not concerned with the merits of the approval as in a hearing anew. Proceedings of this type are analogous to judicial review proceedings having regard to the material before the council. [19] Of judicial review proceedings, the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002: “[114] Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re- evaluation of findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision making power.” 1 [2015] QPELR 640. -- 4 of 41 -- 5 [20] By analogy, in Chan v Minister for Immigration & Ethnic Affairs, Mason CJ said: “In exercising its function of judicial review under the AD(JR) Act, the Full Court was not entitled to go beyond the material before the delegate. By introducing its own view of the state of affairs in China the Full Court seems to have trespassed into the forbidden field of review on the merits.” [21] The inquiry must be strictly limited to ensure that the court is not drawn into a quasi-merits review. Care must be taken to ensure that the court does not exceed its supervisory role whilst undertaking the review. The decision ought not be “construed minutely and finely with an eye keenly attuned to the perception of error.” [22] In Cox v Maroochy Shire Council, at [63] Skoien SJDC explained the rationale this way: “The rationale behind the principles applying to the approach adopted by courts to the decisions of administrative authorities, as it seems to me, depends not just on the fact that the legislature reposed in the administrative authority the power and the duty to make the decision. It must also have been, at least in part, based on pragmatism. These administrative decisions are made on many occasions. It would be intolerable if each of them could be reversed by litigation after microscopic examination by experts and advice by lawyers. The orderly progression of a Council’s duties could grind to a halt if each administrative decision were delayed whilst each possible error was considered minutely before the next step was -- 5 of 41 -- 6 undertaken. Some authorities might decline to make, or defer making, a decision which had any possibility of a challenge, perhaps fearing the cost and inconvenience of that challenge. So, to paraphrase, perhaps inexactly, the approach adopted by the law, so long as the authority’s decision was legally and factually defensible the courts decided that it should stand.” 2 Planning Scheme [4] Under the 2003 Gold Coast Planning Scheme (Planning Scheme) the DA is subject to the Surfers Paradise Local Area Plan (LAP). The land is included in Precinct 1 – Entertainment and Sub-precinct 2 – Beachfront Resort under the LAP. Establishing Levels of Assessment [5] Paragraph 7.2 of the Planning Scheme deals with the use of Local Area Plans and, relevantly, provides:- “7.2 Establishing Levels of Assessment To establish the assessment status of any individual development proposal, the entire Table of Development must be used, as the triggers in the consecutive sections of the Table are intended to be cumulative. If a proposed development is identified as having exceeded more than one of the triggers identified in any relevant section of the Table of Development, then the highest assessment category applies, as follows:  Self-assessable prevails over exempt; 2 Ibid at [17]-[22]. -- 6 of 41 -- 7  Code assessable prevails over self-assessable or exempt; and  Impact assessable prevails over self or code assessable or exempt.”3 Surfers Paradise Local Area Plan Table of Development [6] Following is an extract from the Surfers Paradise Local Area Plan Table of Development relating to a Material Change of Use application within Precinct 1 – Entertainment:- A: Material Change of Use Exempt Self- Assessable Code Assessable Impact Assessable Precinct 1 - Entertainment Home Office Low-Impact Telecommunications Facility Minor Change in the scale or intensity of an existing lawful use Park Private Recreation Public Utility Café Caretakers Residence Commercial Services Convenience Shop Laundromat Office above ground floor Restaurant Service Industry Shop Take-away Food Premises Amusement Parlour Apartment when located above podium level Bed and Breakfast Car Park Child Care Centre Fast Food Premises Hostel Accommodation Market Medical Centre Minor Tourist Facility Motel Attached Dwellings and Medium Density Detached Dwellings Apartment n.e.i* Cinema Community Care Centre Educational Establishment Indoor Recreation Facility Nightclub Resort Hotel 3 Exhibit 4, p 50. -- 7 of 41 -- 8 Temporary Use Tourist Office n.e.i. Reception Room Telecommunications Facility n.e.i. Tourist Facility Vehicle Hire Offices Vehicle Hire Premises Veterinary Clinic Shopping Centre Development Tavern Theatre Transit Centre *n.e.i. – not elsewhere indicated4 (emphasis added) [7] It is not in issue that the level of assessment for the DA was either ‘Code Assessable’ or ‘Impact Assessable’. Development Application 3 July 2015 [8] The DA described the proposed uses as:- a) Apartments (693 units); b) Restaurants; c) Café; d) Tourist Shop; and 4 Exhibit 4, p 26, Dictionary of Terms used in the Planning Scheme -- 8 of 41 -- 9 e) Shop.5 Of the two possible levels of assessment, Impact or Code, the Developer identified Code Assessment as the appropriate level of assessment.6 [9] Mr Jason McGrath is the principal of Urban Planning Solutions (UPS), the author of the DA and the firm which lodged it on behalf of the Developer. Consistent with the DA he gave evidence that:- “It was very straightforward that it was code assessable, in, in our opinion. There was no confusion over that, so we didn’t- didn’t bother writing a detailed paragraph or section on that.”7 [10] Consistent with that expressed opinion of the Developer that Code Assessment was the appropriate level of assessment, Council, through its Assessment Manager, (Assessor) assessed the DA accordingly. Statement of Reasons provided by Council [11] Pursuant to s 33 of the Judicial Review Act 1991 (Qld), Council provided reasons for its decision (Reasons) to approve the DA and issue a development permit under the Sustainable Planning Act 2009 (Qld) (SPA). [12] The opening paragraph 1.4 of those Reasons provided – ‘the Proposal is code assessable development’.8 In paragraph 4, reference is made only to the relevant provisions of SPA covering Code Assessable applications. The Reasons do not evidence any discussion or consideration as to whether the DA should be Code or Impact Assessable or the basis of the decision that it was appropriately Code 5 Exhibit 2(1), p 5 at paragraph 1(c). 6 Exhibit 2(1), p 5 at paragraph 1(d). 7 T3-32, 37-39. 8 Exhibit 2(5), p 1953. -- 9 of 41 -- 10 Assessable. The findings on material questions of fact contained in the Reasons are founded on the Assessor’s decision of Code Assessability. Applicants’ Grounds for present Relief [13] The Applicants rely upon four grounds for the relief sought:- “(1) The Council’s officer and the Council’s delegate misinterpreted the term “podium” in the 2003 PS, and they misinterpreted how it should in fact be described on the basis of the application material, because: (a) they interpreted it as applying only to the top of the ceiling of Level 3 of the proposed development, to a height of 14.5m, and as being 4 storeys as defined by the 2003 PS; whereas: (b) they ought to have interpreted the term as applying to the top of the ceiling of Level 4, with a height of 20.5m, and as being 6 storeys as defined by the 2003 PS; (“the podium issue”) (2) The Council’s officer and the Council’s delegate failed to properly assess the development application against the 2003 PS, particularly the SPLAP, because: (a) they asked themselves the question whether there was compliance or non- compliance with the 2003 PS on the footing that the podium in the proposed development only extended to the top of the ceiling of Level 3, with a height of 14.5m, and as being 4 storeys as defined by the 2003 PS; whereas: -- 10 of 41 -- 11 (b) they ought to have asked themselves the question whether there was compliance or non-compliance on the footing that the podium extended to the top of the ceiling of Level 4, with a height of 20.5m, and as being 6 storeys as defined by the 2003 PS; (“the improper assessment issue”) (3) The Council’s decision was a decision that no properly informed assessment manager could have made, having regard to: (a) the proper interpretation of the term “podium”, and its proper application to the proposed development, in an assessment of compliance or non-compliance against the 2003 PS; (b) the nature of and impacts caused by the western façade podium of the proposed development; (“the Wednesbury issue”) (4) The Council wrongly regarded the application as only triggering code assessment rather than impact assessment, because: (a) under the 2003 PS, a material change of use proposal for an “apartment” is only code assessable “when located above podium level”, but otherwise is impact assessable; (b) Level 4 of the proposed development is intended to be used for “apartment” purposes, and is within, not above, podium level; (“the level of assessment issue”)”9 9 Applicant’s Outline of Argument, Exhibit 11, p 8. -- 11 of 41 -- 12 Appropriate Level of Assessment [14] The determination of the appropriate level of assessment necessarily involves determining whether or not the Apartment component of uses sought is above the podium level in terms of the above Table. If it is, the DA is Code Assessable. If not, the further question arises as to whether the Assessor fell into jurisdictional error in determining that the development application was Code rather than Impact Assessable. Before moving to that issue, it is instructive to consider the concept of jurisdictional error. Jurisdictional Error – General Principles [15] In Craig v South Australia,10 the High Court considered the concept of jurisdictional error, drawing a distinction between inferior courts exercising judicial power and tribunals (or other similar bodies) exercising governmental powers. The Court said:- “…the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure.”11 [16] As to decisions of administrative tribunals, the Court further said:- 10 Craig v South Australia [1995] 184 CLR 163 at 179. 11 Ibid, p 176. -- 12 of 41 -- 13 “…If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”12 This was recently followed by the Court of Appeal decision in Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89. [17] In Endfield City Corp v Development Assessment Commission,13 Gaudron J said: “Of course, other considerations apply with respect to non- jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is an issue is not a jurisdictional fact, but the decision maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision maker to form the opinion in question.” [18] The inherent jurisdiction of superior courts to quash a decision of a tribunal infected by jurisdictional error includes the power to consider whether there was an absence of jurisdiction because the tribunal made a wrong finding of fact on a preliminary 12 Ibid, p 179. 13 Corporation of the City of Endfield v Development Assessment Commission (2000) 199 CLR 135 at [59]. See also Wheldon & Armview Pty Ltd v Logan City Council & RG Property Three Pty Ltd [2015] QPEC 022. -- 13 of 41 -- 14 question or essential condition necessarily required for the tribunal to exercise such jurisdiction.14 This is such a case. Jurisdictional Fact [19] The Applicants, correctly in my view, submitted, by reference to the decision in Kirk v Industrial Court of NSW,15 that the concept of jurisdictional error possesses a particular nexus to the doctrine of jurisdictional fact at common law. The general test for determining what constitutes a jurisdictional fact is to enquire whether a particular state of affairs is an essential preliminary to the existence of the decision-maker’s power to decide the matter.16 [20] In Endfield,17 their Honours Gleeson CJ, Gummow Gaudron Kirby and Hayne JJ stated:- “The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.” [21] More recently in Plaintiff M70/2011 v Minister for Immigration and Citizenship,18 French CJ said at [57]: “The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be ‘a complex of elements’. When a criterion conditioning 14 See for example; Corporation of the City of Endfield v Development Assessment Committee (2000) 199 CLR 135; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393. 15 (2010) 239 CLR 531, 570. 16 See for example, Corporation of the City of Endfield v Development Assessment Commission (2000) 199 CLR 135, Westfield Management Ltd v BCC [2003] QPELR 520. 17 Corporation of the City of Endfield v Development Assessment Committee (2000) 199 CLR 135, 148. 18 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144. -- 14 of 41 -- 15 the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact…” (emphasis added) [22] In Corporation of the City of Endfield v Development Assessment Commission19, Gaudron J said at [60]: “Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or factual situation does or does not exist” [23] Recently, in Ferreyra & Ors v Brisbane City Council & Anor,20 Bowskill QC DCJ held, in respect of the authority of a decision maker to approve a “permissible change” to a development approval, that it was the decision-maker’s assessment or evaluation 19 (2000) 199 CLR 135. 20 Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10. -- 15 of 41 -- 16 of whether the proposed change was in fact a “permissible change” that was the criterion upon which the power to approve the change depended. [24] At [72] it was said: “In a case such as this, where the “jurisdictional fact” is the opinion or belief held by the decision maker about a particular matter, as opposed to the existence of the particular matter itself, the basis on which such a decision may be judicially reviewed was explained by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119: “In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.” Jurisdictional Fact in the Present Application [25] As earlier identified, the DA sought approval for the following five land uses: a) Apartment (693 units); -- 16 of 41 -- 17 b) Restaurants; c) Cafe; d) Tourist Shop; and e) Shop. [26] It is clear from the Surfers Paradise Local Area Plan Table of Development in paragraph [6] above, that in relation to a Material Change of Use application relating to an Apartment, such an application will only be Code Assessable where the Apartment use is located ‘above podium level’. It follows that, where an Apartment use, properly so characterised, is located within the podium rather than above it, the application will be Impact Assessable by reference to that Table. [27] Put another way, the Council only has jurisdiction to decide the application as Code Assessable if the apartment use was ‘located above podium level’. That is the relevant jurisdictional fact which pre-conditions the Assessor’s exercise of jurisdiction to Code Assess the application. [28] As in Plaintiff M70/2011 21 , this identified jurisdictional fact encompasses a ‘complex of elements’ calling upon the following questions to be addressed: a) Which levels constitute the podium? b) Is Level 4 a part of, or located above, that podium? c) If it is located within the podium, what is the correct land use categorisation of Level 4? 21 (2011) 244 CLR 144. -- 17 of 41 -- 18 What is a Podium? [29] Whilst the term ‘podium’ is not defined in the Planning Scheme, it is used in the LAP in the following relevant provisions (emphasis added): “Section 5.1.1, Sub-precinct 1 Main Entertainment Retail and tourist activities commercial services, entertainment, restaurants and eateries are encouraged at ground floor level and within podium level to create a vibrant commercial core, with high rise towers permitted above. Section 8.3, Development Requirements Precinct 1, PC5 Building Bulk within this precinct should be greatest at ground and within podium levels, graduating to towers above, to ensure efficient utilisation of site area and promotion of an urban character for central Surfers Paradise” [30] Part 4, Division 1, Chapter 1 of the Gold Coast Planning Scheme 2003 provides: “Any undefined terms used in this Planning Scheme are intended to have the meaning assigned to them in common usage, unless the context otherwise indicates or requires. For undefined terms, a common reference that will be used by the City of Gold Coast is the latest edition of the Macquarie Australian Dictionary.”22 [31] The Council correctly submitted, which is not disputed, that the ordinary meaning of ‘podium’ is a question of fact for the Court to determine.23 22 Exhibit 4, p 1. 23 NSW Associate Blue Metal Quarries Ltd v FCT (1956) 94 CLR 509 at 512. -- 18 of 41 -- 19 [32] Whilst the question to be ultimately determined is what the podium for this particular development application is, it is helpful to consider the meaning and nature of a podium generally. The Macquarie Dictionary ascribes the following meaning to the term:-24 “(a) a continuous projecting base of a building forming a front of the basement of the foundation behind it; (b) a low continuous structure serving as a base or terrace wall;” The equivalent definition in the shorter Oxford English Dictionary 6th edition is:- “(c) a projecting lower structure around the base of a tower block;” These definitions are of assistance but are not, of themselves, determinative of the issue. Is Level 4 a Part of, or Located Above, the Podium? [33] Level 4 is the controversial level, the categorisation and position of which will ultimately be an important part of the determination of this application. As will be seen, the evidence shows the podium both including and excluding Level 4. [34] It is appropriate to first consider whether Level 4 could reasonably be characterised as located within the podium, and if so, what is its properly categorised use. 24 Exhibit 5(1), p 65 at para 7.3. -- 19 of 41 -- 20 Inconsistencies in Material as to the Number of Podium Levels Development Application [35] The DA was accompanied by a UPS Report of July 2015 (July Report). In its Introductory section, the proposed development was described as a Material Change of Use Code Assessable Development involving a 96 Storey (88 level) mixed use high rise building comprising 693 apartments and a retail component comprising of (sic) café, restaurant, shop and tourist shop land uses ‘within a 3 story podium’25. Other specific references to a ‘3 storey podium’ within that July Report include: a) “A summary of the key points for the development are as follows…Provide 3 podium levels of high end, 5 star retail and food & beverage opportunities”26 b) “Proposed Land Uses….A 96 storey (88 level) mixed use high rise building comprising of 693 apartments and a retail component comprising of café, restaurant, shop and tourist shop land uses within a 3 storey podium”27 c) “6. Proposal…. a 96 storey (88 level) mixed use high rise building comprising of 693 apartments and a retail component comprising of café, restaurant, shop and tourist shop land uses within a 3 storey podium”28 d) “South East Queensland Regional Plan (2009-2031)… The development provides for a 96 storey mixed use high rise building comprising of 693 apartments and a retail and food and beverage 25 Exhibit 2(1), p 99. 26 Exhibit 2(1), p 99. 27 Exhibit 2(1), p 101. 28 Exhibit 2(1), p120. -- 20 of 41 -- 21 component comprising of café, restaurant, shop and tourist shop land uses within a 3 storey podium”29 e) “Table 5 – Regional Plan Policies … The site is located within the core of one of the City’s highest order Centres (Major Regional Activity Centre) and will include a 96 storey mixed use high rise building comprising of 693 apartments and a retail component comprising of café, restaurant, shop and tourist shop land uses within a 3 storey podium..”30 f) “9. Town Planning Scheme Parameters…The Development results in an increase in residential density and commercial uses over the site that will see a 96 storey mixed use high rise building comprising of 693 apartments and a retail component comprising of café, restaurant and shop land uses within a 3 storey podium”31 g) “13 Conclusion …This Material Change of Use Code Assessable Development Application seeks a Gold Coast City Council approval for a Development Permit for making a Material Change of Use for a a 96 storey (88 level) mixed use high rise building comprising of 693 apartments and a retail component of café, restaurant, shop and tourist shop land uses within a 3 storey podium”.32 [36] As to site coverage, the July Report describes the podium as ‘technically being defined as 4 storeys, whilst being three levels’33. Table 4 of that report sets out the main development parameters of the podium, including:- 29 Exhibit 2(1), p 132. 30 Exhibit 2(1), p 133 31 Exhibit 2(1), p 143 32 Exhibit 2(1), p 188. 33 Exhibit 2(1), p 163. -- 21 of 41 -- 22 “Podium Height 14.5m – Overall Podium Height (Podium Ground Level to Top of Ceiling of Podium Level 3) 3 Levels 4 Storeys as defined “Podium Land Uses The 3 Levels of Podium include Café, Restaurant, Shop, Tourist Shop land uses and ancillary Apartment uses as described below…”34 Code Template Document Accompanying Development Application [37] The above references to a “3 storey podium” are to be contrasted with the Code Template Document35 (Template) also produced by UPS to accompany the July Report. This Template identifies and applies the Performance Criteria (PC) and Acceptable Solutions (AS) said to be relevant to the DA. It contains responses from the Developer as to compliance by asking ‘How does the proposal comply with the Acceptable Solution or Performance Criteria?’.36 [38] Performance Criteria (PC) 4 in the Template relevantly provides:- “The site coverage of development will be in accordance with the function of the precinct and its relationship with surrounding precincts. The site coverage of all buildings must not result in a built form that is bulky and visually intrusive.” [39] Acceptable Solution (AS) 4.1.1 in the Template relevantly provides: “The site coverage does not exceed 90% for the first three storeys and 40% site coverage thereafter.” 34 Exhibit 2(1), p 122. 35 Exhibit 2(1), p189. 36 Exhibit 2(1), p 189. -- 22 of 41 -- 23 [40] The Developer’s response in the Template dealing with Site Coverage reveals a treatment of the podium and fourth level at odds with the above July Report references. It includes the statement that:- “The site coverage does not exceed 90% for the first three storeys however due to the podium being four levels, this results in one podium level considerably exceeding the referenced AS (40%) being that it is approximately 77.20%.”37 (emphasis added) [41] In another section of the Template, dealing with building appearance, the Developer’s response reads: “The development comprises a base (4 level podium), main body and coronation (or top) articulated by architectural elements…”38 [42] It can be seen then that the July Report and Template contain inconsistencies with respect to whether Level 4 is within or above the podium. In relation to those inconsistencies, in his cross-examination Mr McGrath, the town planner responsible for the July Report said:- “MR GORE QC: Mr McGrath, the simple point is that page 191 says that level 4 is part of the podium whereas the first page that I took you to, the introductory paragraph, basically says that it’s not. That’s true, isn’t it? MR MCGRATH: That’s right. That is correct. 37 Exhibit 2(1), p 191. 38 Exhibit 2(1), p 196. -- 23 of 41 -- 24 MR GORE QC: And there is a direct inconsistency in the report in the characterisation of level 4, correct? MR MCGRATH: There is inconsistencies. That’s right.”39 Architectural Plans [43] Importantly, the above inconsistencies as to Level 4 and its relationship to the podium are not present in the architectural plans in support of the DA. The table below summarises the relevant references to a four level podium within those plans:-40 Plan Number Plan Title Reference indicating a Four-Level Podium 1838 Level 1 – Ground Floor Reference to ‘Podium Services’ in legend. 1839 Level 2 Reference to ‘Podium Services’ in legend. 1840 Level 3 Reference to ‘Podium Services’ in legend. 1841 Level 4 Reference to ‘Podium Services’ in legend. 1893 Level 4 Podium – Concept Plan Specific reference to Level 4 Podium 1894 Level 4 Podium – Detailed Study Specific reference to Level 4 Podium 1895 Level 4 Podium – Conceptual Imagery Specific reference to Level 4 Podium 1896 Level 4 Podium – Conceptual Imagery Specific reference to Level 4 Podium 1905 Level 4, 52 & 88 – Hardscape Plan Specific reference to Level 4 Podium 1907 Level 4, 52 & 88 – Softscape Plan Specific reference to Level 4 Podium 1910 Level 4 Podium – Recreation Capacity Plan Specific reference to Level 4 Podium In addition, architectural plans 1865, 1866, 1867 and 1875 depict a four level podium consistent with the above references. 39 T3-36, 15-20. 40 Contained within Exhibit 6 – ‘Book of Plans’. -- 24 of 41 -- 25 [44] The alphanumeric grid reference system adopted throughout the architectural plans is illustrative of a four level podium. The first four levels shown in the plans utilise gridlines labelled ‘PA’, ‘PB’, and ‘PC’ on the North-South orientation on each level and gridlines labelled ‘P1’, ‘P2’, ‘P3’ up to ’P9’ on the East-West orientation on each level. The numbers used in these grid references do not correspond to building levels but are simply coordinates used to identify locations on each level in two dimensions. [45] Significantly, on Level 5 and above, the prefix to the gridlines changes from being labelled with the prefix ‘P’ to simply being labelled as ‘A’, ‘B’ and ‘C’ on the North- South orientation and ‘T1’, ‘T2’, ‘T3’ up to ‘T9’ on the East-West orientation. This pattern continues for every level of the structure apart from Levels 1 to 4. In cross- examination, the Developer’s architect, Mr Anderson agreed that the grid references on plan 1841 (Level 4) where prefix the ‘P’ is used refers to podium and that the letter ‘T’ used on plan 1842 (Level 5) is intended as a reference to the tower. This was the exchange: “MR GORE QC: And we can see at the top of the page that there are what I’ll call grid references, PA, PB and PC; correct? MR ANDERSON: Yep. Yes. MR GORE QC: And if we go back to page 1841 we find those PA, PB and PC references to the left of that sheet? Correct? MR ANDERSON: Correct. MR GORE QC: And the P is an acronym for podium? MR ANDERSON: Yes MR GORE QC: An abbreviation for podium? -- 25 of 41 -- 26 MR ANDERSON: Yes. MR GORE QC: And across the top of page there are other grid references, this time with numbers 1 to 9? MR ANDERSON: Yes. MR GORE QC: And again the P in those grid references is a reference to podium? MR ANDERSON: Yes. …. MR GORE QC: Okay. Now if – I’m sorry, I should ask you one more question. If you go back to page 1841, that’s the level 4 plan, you’ve accepted that it has the grid references that refer to the podium. Do you see that? MR ANDERSON: Yes. MR GORE QC: And in the legend to the left hand side there’s a reference to podium services as well? Mr ANDERSON: Correct. MR GORE QC: If we go to the next plan at page 1842, that’s the level 5 plan, it has grid references that begin with the letter T? MR ANDERSON: Yes. MR GORE QC: And that’s intended to be a reference to the tower? MR ANDERSON: Yes. MR GORE QC: And there’s no reference to podium services on that plan?” -- 26 of 41 -- 27 MR ANDERSON: Correct.” 41 [46] For completeness, I mention three plans that contain wording which, on its face, is inconsistent with the overall use of the word ‘podium’ within the architectural plans. Plan 1911 contains the Recreational Capacity Plans for the other two recreation levels 52 and 88 in the tower. The Level 52 plan is described as ‘Level 52 Podium – Recreation Capacity Plan’.42 Similarly, podium is used in relation in Level 52 in plan 1905 (Hardscape Plan)43 and plan 1907 (Softscape Plan).44 It is not suggested by any party that level 52 is part of the podium. Expert Evidence Regarding the Podium [47] Various experts gave evidence as to the categorisation and composition of the podium. That expert evidence may be summarised as follows:- a) Ms Morrissey, a town planner called by the Applicants considered the podium to include Level 4 on the basis that ‘by way of title, notation on plan or inclusion in podium related and described elevations, the approved plans generally indicate that Level 4 (recreation level) is part of the proposed building’s podium.’45. In her Further Statement of Evidence, Ms Morrissey concludes ‘it appears through the assessment report, that the actual height of the podium was either not identified or misinterpreted, which raises the question of whether the proposal (and its impacts) have been properly assessed.’46Under cross-examination, Ms Morrissey said, “I view the building to read as 41 T3.59-60, T3.66.12-21. 42 See, for example, Exhibit 6, p 1898. 43 Exhibit 6. 44 Exhibit 6. 45 Exhibit 5(1), p 26 46 Exhibit 5(1), p 137 -- 27 of 41 -- 28 having a base which consists of four levels….its my interpretation of the building that the first four levels are the bulkier levels. They have site coverage which is substantially more than the tower component.”47 Further, when referring to the use associated with Level 4, she stated “…its non-residential – well, sorry. I think that the level 4 is ancillary and associated with the apartment component of the building, which isn’t residential use, but its not commercial or retail.”48 b) Mr Peabody, an architect called by the Applicants gave evidence to the effect that the podium consisted of four levels. He said; “4.1.6 On the basis of the podium illustrated in the elevations prepared by DBI Architecture, it is my opinion the podium extends to Level 5 – Low Rise Res. (27000 SSL). 4.1.7 Level 5 – Low Rise Res. (27000 SSL) is the first residential level of the building and, in my opinion, the first level of the tower element with form, architectural features and materials consistent with the balance of the tower element.” In his Supplementary Expert Report, Mr Peabody said, ‘In my opinion, the extent of the podium is four levels and is inclusive of all the built form which encroaches above the 12.5m podium height and 6m setbacks as envisaged by the Acceptable Solutions of the Surfers Paradise LAP for Precinct 1.’49 c) Mr McGrath, the town planner from UPS responsible for the team at UPS which prepared the DA says, ‘Floor levels 1 to 3 of the proposal above ground level were described in the Application (and 47 T2.32.31-36. 48 T2.27.27-34. 49 Exhibit 5(1), p 141. -- 28 of 41 -- 29 the Town Planning Report) as ‘podium’ and level 4 was described as 1 of 3 ‘resident recreation levels (along with levels 52 and 88)’….The built form of the podium (levels 1 to 3) is distinct from the built form of the resident recreation (level 4), in that most of the enclosed area of the recreation deck steps in from the podium, sits under the high rise tower and is a more continuous projection of the outline of the tower, rather than the base, bulky outline of the podium.’50Under cross-examination, Mr McGrath maintained, “I’ve always had the view that level 4 was the resident recreation area and is part of the tower”51 d) Mr Anderson, the architect engaged by the Developer for the proposed development gave evidence that: i. ‘The 3 level podium is a separate architectural element’52 ii. ‘The built form of the podium (levels 1 to 3) is distinct from the built form of the recreation deck (level 4).’53 iii. ‘The level 4 recreation deck is not a continuous projection of the podium (levels 1 to 3).’54 iv. ‘The 3 levels within the podium contain non-residential uses which are accessible to the public. The level 4 recreation deck is not open to the public and is exclusively for the use of the residents of the tower’55 50 Exhibit 5(2), p 392. 51 T3.34.15-17. 52 Exhibit 5(2), p 409 53 Exhibit 5(2), p 409 54 Exhibit 5(2), p 409. 55 Exhibit 5(2), p 409. -- 29 of 41 -- 30 e) Mr Schomburgk, a town planner also called by the Developer, gave evidence that: ‘34. Above ground level, the development consists of a number of useable levels, effectively in two blocks: i) A podium within which are three useable levels; ii) A tower above the podium including, immediately above the podium, one level of uses clearly ancillary to the apartments, and multiple levels of apartment buildings. 35. As stated the fourth level above ground level comprises amenities (toilets and change rooms) mechanical equipment (lifts, store kitchen exhaust, intake duct, etc) a gymnasium as well as pools and open seating and sun deck areas, some of which are included under the footprint of the tower. 40. Whatever the height of the podium is determined to be, whether in metres, storeys or levels, the Council in it assessment was well appraised of just what it was being asked to assess. From the ground up: i) there are 3 levels of non-residential uses (Levels 1 to 3) ii) a recreation / amenities / facilities deck (Level 4) and a series of residential levels above that. In my opinion, the Council could have been under no illusions about exactly what was being sought and what it ultimately approved. 43. In the event, it is my opinion that it was open to the assessment manager to conclude the podium comprised 3 levels.’56 56 Exhibit 5(2), p 426. -- 30 of 41 -- 31 In his evidence-in-chief, Mr Schomburgk stated, in reference to the level 4 uses, “In my view, and I’ve said this in my individual statement, they are clearly uses that sit on top of the podium”.57 f) Mr Curtis, an architect and urban designer called by the Developer gave evidence that: ‘3.2 Architectural Drawings 3.2.1 The approved DBI drawings indicated the first four (4) levels to consist of three (3) levels within the podium and the roof terrace recreation area on top of the podium.’58 Under cross-examination, Mr Curtis maintained ‘The height of the podium, yes, I believe its three levels, yes.”59 g) Mr Damant, an architect called by the Developer gave evidence that: ‘6.7 The podium provides 3 levels of publically accessible retail and food and beverage venues increasing the level of activity through the podium and therefore also contributing to the economy of the City, particularly in this locality.’60 Conclusion Regarding Constitution of Podium [48] It is apparent there is a significance divergence of expert opinion with respect to whether, in the present application, Level 4 is located within or above the podium. I found the evidence of the experts as to the meaning of podium of little assistance to the extent that it is discordant with what I perceive the plans to clearly evidence, 57 T3.71.22-24. 58 Exhibit 5(2), p 452. 59 T3.13.18-19. 60 Exhibit 5(2), p 488. -- 31 of 41 -- 32 namely a four level podium. I accept the evidence of Ms Morrissey and Mr Peabody in that respect. [49] Those plans leave me in little, if any, doubt that Level 4 was intended to be part of the podium. This is consistent with references in the Template which again indicate that, when assessed against the Planning Scheme, Level 4 was being treated as located within, and not above the podium. Further, more generally, this finding sits comfortably with both the Macquarie Dictionary definition of podium as a low continuous structure serving as a base to the tower and that of the Oxford English Dictionary as a projecting lower structure around the base of the tower. Finally, this conclusion is, in my view consonant with the visual presentation of the plans. Level 4 is part of the podium. [50] I do not consider it was reasonably open to the assessor to proceed to assessment on the basis that the podium comprised only three levels thus leading to Code Assessment. As I have earlier said, it is not apparent from the Reasons provided whether the assessor focused on the relevant composition of the podium. The irresistible conclusion one is drawn to is that the assessor simply adopted the statement in the DA that it was a three level podium without any real consideration of the issue. Any reasonable assessment of the DA would not have reached the conclusion that the podium was three level rather than four level. What Use Characterises Level 4? [51] Having determined Level 4 is within the podium, I turn now to consider the correct land use characterising Level 4. [52] At the risk of more repetition, as I have earlier said, the DA sought approval for the following five land uses: -- 32 of 41 -- 33 a) Apartment; b) Restaurants; c) Cafe; d) Tourist Shop; and e) Shop [53] Level 4 is described in the DA61 as one of three ‘residential recreation levels’, the others being levels 52 and 88. Level 4 relevantly comprises the following:- a) Two lap pools; b) Spa; c) Outdoor pool; d) Gym; e) Gym terrace; f) Male and female change rooms and toilets; g) Sauna; h) Steam room; and i) Sundeck [54] Both Council and the Developer rely on the Planning Scheme definitions of Apartment62 and Dwelling to argue that Level 4 is not part of the Apartment use sought. They are:- “Apartment A dwelling that has another dwelling immediately above or below it. it also includes dwellings contained in mixed use buildings located 61 Exhibit 2(1), p 124. 62 Exhibit 4, p 2. -- 33 of 41 -- 34 immediately above, below or abutting non-residential uses. The term does not include an attached dwelling.” [55] A Dwelling is defined as:- “Dwelling Any building or part of a building comprising a self-contained unit used by, or intended for the exclusive residential use of, one household. The term includes outbuildings normal to a dwelling. The term includes the keeping of domestic animals as pets.” [56] As against that, the Applicants’ argue that Level 4 is an Apartment level and rely on Walker v Noosa Shire Council.63 In that case, the issue before the Court was whether a vehicular ramp was a structure erected for a purpose permitted by a town planning scheme. The central question was whether the ramp possessed a separate and severable purpose from the dwelling house the subject of construction approval under the town planning scheme. McPherson J (with whom Andrews SPJ and Shepherdson J agreed) said:- “It is not possible to regard the ramp as having as a separate and severable purpose the function of providing vehicular access which, it was accurately submitted, is not a purpose under the town planning scheme. The dominant if not the sole purpose of the ramp is to serve the dwelling house, and that purpose is therefore determinative of the purpose of the ramp…”64 63 [1985] 1 Qd R 387. 64 Walker v Noosa Shire Council [1985] 1 Qd R 387 at 394. -- 34 of 41 -- 35 [57] In arriving at this conclusion, the Court relied on Warringah Shire Council v Raffles65 where Waddell J cited with approval the Court of Appeal decision in Foodbarn Pty Ltd v Solicitor-General66 where Glass JA, with whom other members of the Court agreed, said:- “…where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used…”67 [58] The decision in Foodbarn Pty Ltd concerned warehouses which had substantial ancillary ‘shop’ uses and were thereby in breach of the relevant town planning scheme which prevented specific retail uses. On the other hand, the decision in Warringah concerned a doctor who owned a light helicopter, which he operated from a helipad on the land in question, in the conduct of his profession and for social purposes, without having first obtained development consent from the council for such use of the land. It was held that there was no reason to treat the use of a helicopter as being, for the town planning purposes, different in principle from the use of a motor car. Both uses, it was held, could be regarded as being for the dominant purpose of a dwelling-house on the land. [59] Relevantly, the Planning Scheme stipulates that all terms used within the Planning Scheme are to be read as consistent with the correlative definitions in the relevant planning legislation.68 The above reasoning adopted to ascertain the appropriate land use characterisation of Level 4 by way of ancillary and subordinate uses is wholly 65 [1979] 2 NSWLR 299. 66 (1975) 32 LGRA 157. 67 Ibid at 302. 68 Exhibit 4, page 1 – Application of Definitions. -- 35 of 41 -- 36 consistent with the identical definitions of ‘use’ contained within both the repealed Integrated Planning Act 1997 (Qld) (IPA) and the current SPA. [60] The term ‘use’ is defined in both IPA and SPA as: ‘Use, in relation to premises, includes any use incidental to and necessarily associated with the use of the premises’69 [61] The Applicant, correctly in my view, submits that the use of Level 4 is incidental and necessarily associated with the Apartment use of the premises, and accordingly does not possess any nexus to the non-residential uses contained within the first three levels of the podium which contain the remaining four uses for which approval was sought in the DA, namely, Restaurant, Shop, Café and Tourist Shop. [62] The Developer also submits that whereas the recreational facilities on level 4 are for the sole use by occupants of the apartments, so too are the resident carparking spaces in the basement of the proposed building. Both of the recreational car parking facilities are ancillary parts of the apartment use.70 Council also concedes Level 4 consists of ‘lawful ancillary uses’.71 [63] I consider the dominant purpose of Level 4 is to exclusively serve the apartment levels above by providing recreational facilities only to those occupants of the Apartments. It is part of the Apartment use consistent with Walker v Noosa Shire Council and the statutory definition of ‘use’. Further, Level 4 cannot satisfy any other of the remaining uses sought by the Developer, namely café, restaurant, shop or tourist shop. 69 Sustainable Planning Act 1999 (Qld) Sch 3. 70 Exhibit 12, paragraph 66. 71 Exhibit 13, paragraph 188(b). -- 36 of 41 -- 37 [64] The Developer raised an issue with Level 4 carrying an Apartment characterisation as an ancillary use to the apartments. It was said that this would result in the basement car parking, clearly not above podium level but ancillary to the Apartment use also automatically triggering Impact Assessment. [65] Although it is unnecessary to decide in this application, I am not convinced that, in appropriate circumstances, that outcome will achieve other than a sound result. The land use of ‘Car Park’ in the Table of Development in paragraph [6] is Code Assessable. However, the definition of Car Park within the Scheme provides:- “Any premises used or intended to be used for the parking of motor vehicles where such parking is not ancillary to some other development on the same site.”72 (emphasis added) [66] This definition clearly does not capture the type of resident car parking proposed in the present DA. Rather, it is intended to render car parks, such as commercial free standing car parks Code Assessable. This leaves car parking facilities ancillary to other purposes (such as Apartments) to be assessable in accordance with the particular dominant purpose under consideration. [67] Another argument advanced by the Developer is that Level 4, in any event, would be categorised as private recreation within the definition of that term in the land use definitions.73 But, as the Applicants submitted, there is no evidence, expert or otherwise, before the Court supporting the suggestion that, at the time the application was made, Level 4 was to be treated as private recreation and therefore exempt from assessment. 72 Exhibit 4, p 2. 73 Exhibit 4, p 9. -- 37 of 41 -- 38 Conclusion re: Categorisation of Level 4 [68] I am satisfied, Level 4 is correctly categorised as part of the Apartment use. That is consistent with Levels 52 and 88 with similar recreation facilities in the tower being part of the Apartment use. Although again unnecessary to decide, the closest defined use to the actual Level 4 use appears to be that of ‘indoor recreation facility’ which attracts Impact Assessment under the relevant Table of Development. Correct Level of Assessment [69] Given my findings that the podium is constituted by the first four levels, and that Level 4 is an Apartment level, it follows that the Apartments are not ‘above the podium’ thus rendering the Assessor’s Code Assessment as the incorrect mode of assessment. The DA should have therefore been Impact Assessed. Given this error by the Assessor in wrongly determining the identified jurisdictional fact that the Apartment component was above the podium rather than part of it, to the extent of Level 4, the Assessor fell into jurisdictional error in proceeding to assess the application as Code Assessable rather than Impact Assessable. Her jurisdiction to Code Assess was never enlivened and her decision, is as a result, a nullity. I so declare. Discretion to waive non-compliance within the Sustainable Planning Act 1999 (Qld) [70] Section 440 of the Sustainable Planning Act 1999 (Qld) provides:- 440 How court may deal with matters involving noncompliance (1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with. -- 38 of 41 -- 39 (2) The court may deal with the matter in the way the court considers appropriate. (3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application [71] The Developer has submitted that should a legal error be found to have occurred, section 440 of SPA can and should be relied upon to excuse any non-compliance with the Planning Scheme given the factual matrix of the present case. The Developer submits that such an exercise of discretion is ‘very broad and untrammelled’.74 [72] But the legal error which has occurred here, being a jurisdictional error, is no mere technicality or of little significance. The determination of the appropriate level of assessment, Code or Impact Assessable, is an issue which goes to the very heart of the matter for reasons following. [73] Section 294 of SPA sets out the purpose of the notification process of the Integrated Development Assessment System (IDAS) in these words: 294 Purpose of notification stage The notification stage gives a person— (a) the opportunity to make submissions, including objections, that must be taken into account before an application is decided; and (b) the opportunity to secure the right to appeal to the court about the assessment manager's decision. 74 Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113 at [30]. -- 39 of 41 -- 40 [74] It can be seen then, to exercise discretion to waive non-compliance constituted by the failure to Impact Assess the DA would be to lock out any interested submitter and to deny that person a right to appeal against the Assessor’s decision. As was said in Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 in considering the now repealed Integrated Planning Act 1997 (Qld) (IPA): “While it may be acknowledged that the discretion conferred by s 4.1.5A is a judicial discretion, which can be expected to be exercised fairly, there is no indication at all in the provisions of the IPA that rights of ownership and stewardship of the kind on which s 3.2.1(3), s 3.2.1(5) and s 3.2.1(10) are predicated could even possibly be the subject of override by judicial discretion.”75 [75] Although Barro concerned a different factual scenario, namely an application not properly made under IPA, and despite the different wording of s 4.1.5A of IPA and s 440 of SPA, conferring discretion on the Court to relieve a party from non- compliance, I consider the principle to be the same. I have not had referred to me in SPA any indication that a submitter’s right of appeal against an Assessor’s decision could even possibly be the subject of ‘override’76 by judicial discretion to pick up the words of Keane JA (as he then was) in Barro. [76] The public interest in allowing opportunities for community involvement in the decision making process77 by properly assessing the DA as Impact Assessable outweighs any public interest resting on the economic grounds articulated by the Developer.78 75 Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 at [65]. 76 Ibid. 77 Sustainable Planning Act 2009 (Qld) s 5(1)(g). 78 Exhibit 13, paragraph 207. -- 40 of 41 -- 41 [77] Accordingly, I decline to exercise the discretion under s 440 of SPA to waive non- compliance with the correct manner of assessment. Orders [78] I make the following orders: 1. Declare that the First Respondent’s Decision Notice dated 24 September 2015 approving, subject to conditions, a Development Application for a Material Change of Use for Apartments (693 units), Café, Restaurant, Shop and Tourist Shop (‘Decision Notice”) for land situated at 3 Trickett Street, Surfers Paradise more formally described as Lot 1 on SP211927 and Lot 2 on RP104902 (“the Land”) is invalid and of no effect. 2. An order that the Decision Notice be set aside. 3. The Development Application be remitted to the First Respondent to be determined according to law. 4. I will hear the parties on costs. -- 41 of 41 --