Ferreyra v Brisbane City Council [2016] QPEC 10 [2016] QPELR 334

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10 PARTIES: ARTURO FERREYRA AND STELLA FERRYRA; BEN ANDERSON; GLENN SIM; SAMANTHA JENSEN; BRIDGET BARKER; MARCO FARAONE; JONATHAN COOK; CHRISTINE JENSEN (Applicants) v BRISBANE CITY COUNCIL (First Respondent) & BRIAN E FITZGIBBONS FAMILY TRUST (Second Respondent) FILE NO/S: 1149/15 DIVISION: Planning and Environment Court PROCEEDING: Hearing DELIVERED ON: 3 March 2016 DELIVERED AT: Brisbane HEARING DATE: 22, 23 and 24 February 2016 JUDGE: Bowskill QC DCJ ORDER: 1. The application is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – Application for declaratory relief in relation to the first respondent’s decision to approve the second respondent’s request to change an existing approval as a “permissible change” – Where the applicants are owners of residential units adjacent to second respondent’s hotel – Where the requested change included construction of acoustic wall near to the boundary - Where the decision was challenged on the basis of jurisdictional error – Whether first respondent failed to take into account relevant considerations in considering whether the requested change resulted in a “substantially different development” under s 367(1)(a) of SPA, namely, the impact of the acoustic wall on availability of natural light, air ventilation and visual amenity -- 1 of 32 -- 2 – Whether the first respondent’s opinion, for the purposes of s 367(1)(c) of the SPA, that the change was not likely to cause a person to make a properly made submission, was legally unreasonable Sustainable Planning Act 2009 (Qld), ss 367, 369, 374, 375 and 456 Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 Buck v Bavone (1976) 135 CLR 110 Di Marco v Brisbane City Council [2006] QPELR 731 Eschenko v Cummins [2000] QPELR 386 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 Wheldon & Anor v Logan City Council & Anor [2015] QPELR 640 COUNSEL: D Purcell for the Applicants T Trotter for the First Respondent C Hughes QC, with M Williamson, for the Second Respondent SOLICITORS: Mills Oakley for the Applicants Brisbane City Legal Practice for the First Respondent Dibbs Barker for the Second Respondent -- 2 of 32 -- 3 Introduction [1] This is an application under s 456 of the Sustainable Planning Act 2009 (Qld) (SPA) seeking declaratory relief and consequential orders in relation to the first respondent Council’s decision, under s 376 of the SPA, to approve the second respondent’s request to change an existing development approval. [2] The second respondent is the owner of land in Fortitude Valley, on which there is a hotel called the “Fringe Bar”. The applicants are the owners of some of the residential units in the building next door, the Freedman Building. In April 2011, the second respondent obtained a development approval for alterations and extensions to the Fringe Bar, including the introduction of a new outdoor bar area. In March 2014, the second respondent requested, and later obtained approval for, a change to that original approval, the controversial part of which (for the purposes of this proceeding) is an “acoustic wall”, about 10m high and 40m long, constructed about 1.2 metres from the boundary with the Freedman Building. The complaint of the unit owners/applicants is that the acoustic wall results in a loss of natural light, ventilation and visual amenity to their units. [3] The declarations sought in the originating application are that: (a) the change approved by the Council is not a “permissible change” within the meaning of s 367 of the SPA; (b) the decision of the Council to grant the changed approval is of no force or effect; and (c) any development permit for building works issued in reliance upon the changed approval is of no force or effect. [4] The consequential relief sought was not specified in the originating application, but in opening the applicants’ case,1 it was said that an order that the acoustic wall be removed would be sought. [5] It is well-established that the function of the court in proceedings which seek declaratory relief of this kind are analogous to judicial review proceedings.2 Consequently, the same constraints apply. As recently observed by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at [23]: “These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision. In particular, 1 Applicants’ written opening at [82(c)]. 2 Eschenko v Cummins [2000] QPELR 386 at [20]; Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 at [55]-[57]; Di Marco v Brisbane City Council & Ors [2006] QPELR 731 at [14]; Wheldon & Anor v Logan City Council & Anor [2015] QPELR 640 at [18]; Birkdale Flowers Pty Ltd v Redlands City Council & Anor [2016] QPEC 4 at [47]. -- 3 of 32 -- 4 judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:3 ‘an appellate procedure enabling either a general review of the … decision… or a substitution of the … decision which the … court thinks should have been made.’” [6] The burden is on the applicants to demonstrate that the Council’s decision was affected by jurisdictional error. Although the basis(es) on which this was contended was not entirely clear in the originating application (cf paragraph 40 of that document), as clarified during the course of the hearing, the applicants contend that the Council’s delegate erred in the following ways: (a) firstly, failing to take into account relevant considerations: “Contrary to section 367(1)(a) of the SPA, in making its decision, the [Council], by its delegate, failed to take into consideration: a. The new impacts or the severity of known impacts introduced as a result of the change. Particulars i. On the face of the record of the decision, the Report and Recommendation does not address potential amenity impacts associated with loss [of] natural light and visual amenity introduced as a result of the change as identified by Callan Bennett, Council’s Senior Architect, Urban Designer.”4 (b) secondly, unreasonableness: “Contrary to section 367(1)(c) of the SPA, the decision of the [Council], by its delegate, was not formed reasonably on the material before it or was so unreasonable … [that no] reasonable person could have arrived at the decision. Particulars a. The delegate assessed the question against the wrong statutory test, namely section 374(1)(c). 3 Referring to Craig v South Australia (1995) 184 CLR 163 at 175; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. 4 Paragraph 1 of the applicants’ summary of position; see also paragraph 40(b) of the originating application and paragraph 6(a) of the applicants’ written opening. Although in opening the applicants’ case, reliance was also placed on a contention of failure to take into account the “dramatic change to the built form in terms of scale, bulk and appearance” (see paragraph 59(b) of the applicants’ written opening), that was not ultimately pressed by the applicants (see T 3-24.37-.44). -- 4 of 32 -- 5 b. The delegate [k]new or ought to have known, that the change would cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed.”5 Relevant material [7] Because the scope of judicial review is confined to the legality of the decision, rather than the merits of it, ordinarily, material which was not before the decision-maker at the time of making the decision will not be admissible in a proceeding such as this.6 [8] Where, as here, the actual “decision” comprises a decision notice, with no statement of reasons, it is necessary to have regard to the process leading up to the making of that decision, and the various letters, reports, and other documents either provided to the Council, or generated by officers of the Council, which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis for the ultimate decision.7 In this case, the court also heard evidence from the delegate who made the decision, Mr Stephen Warner.8 [9] However, there is authority which supports the proposition that, in an application for judicial review that is based in part upon legal unreasonableness, expert evidence relied upon to rebut that contention (and therefore, also to support it) may be admissible, particularly where the subject matter of the impugned decision concerns specialised or technical matters, in respect of which expert evidence may assist the court.9 [10] In this matter there was tendered, by agreement, a bundle comprising (mostly) the documents that were before the decision-maker (exhibit 11). That bundle also included some material, dating back to 1997, in relation to the conversion of the Freedman Building to residential units, which it was accepted was not before the decision-maker (but which was said to be relevant to the court’s broader discretion under s 456 of the SPA). [11] There were also tendered a number of reports from experts, including town planners (Mr Buckley, Mr Kay and Mr Lyons) (exhibits 1, 3 and 8), acoustic engineers (Mr Brown and Mr King) (exhibits 2, 4 and 9) and an architect (Mr Barr) (exhibit 10). 5 Paragraph 5 of the applicants’ summary of position; see also paragraph 40(a) of the originating application and paragraph 6(b) of the applicants’ written opening. 6 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391; Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at [454]-[456]. 7 Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 at [60]-[62]. 8 Cf Birkdale Flowers Pty Ltd v Redlands City Council & Anor [2016] QPEC 4 at [57]. 9 Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at [376], [457]-[460] and [471] per Weinberg J. -- 5 of 32 -- 6 [12] The applicants also tendered statements from three of them, being the owners of units 8 (Mr Anderson), 12 (Mr Faraone) and 13 (Mr Cook) (exhibits 5, 6 and 7). [13] The second respondent also tendered affidavits from Mr Fitzgibbons, the operator of the hotel (exhibit 13), Mr Finlayson, the financial manager (exhibit 14) and Ms Moller, of RPS Group, the second respondent’s planning consultants (exhibit 15). [14] In so far as the “relevancy” ground is concerned, the relevant part of this material is the contents of exhibit 11 (other than the 1997 material), together with the relevant parts of the planning scheme (tendered as exhibit 12), Ms Moller’s evidence about the pre-lodgement meeting and Mr Warner’s evidence. [15] In so far as the “reasonableness” ground is concerned, in addition to this material, I accept that it is appropriate to have regard to the evidence of the town planning experts, at least in so far as it concerns the issue the subject of the applicants’ “reasonableness ground”. This material also – in the context of more broadly considering the overall “reasonableness” of the decision (as opposed to the one aspect of the decision challenged under this ground, being that raised by s 367(1)(c)) – strays well and truly into the merits of the decision, which is not for this court to consider on this application. [16] I do not consider that the relevance of the evidence from the acoustic engineers on any of the issues was established. Although Mr Brown suggested, in his report, that the issue of reflected noise10 was something the Council ought to have considered, that formed no part of the applicants’ case, in terms of its contentions of jurisdictional error. [17] Otherwise, the remaining material was said to be relevant to the exercise of the Court’s discretion under s 456 of the SPA, in terms of the relief to be granted, should it find either or both of the applicants’ grounds to be made out. [18] I record also that, in order to understand the material, the court had the benefit of a view of the hotel site, the acoustic wall, and the inside of some of the apartments. Legislative context [19] Chapter 6, part 8, division 2 of the SPA contains provisions dealing with changes to approvals which have been granted. [20] The changes that can be made are “permissible changes”, a concept which is defined in s 367 of the SPA, relevantly, as follows: 10 That is, noise from within the apartments in the Freedman building, reflecting off the acoustic wall, back into that building. -- 6 of 32 -- 7 “367 What is a permissible change for a development approval (1) A permissible change, for a development approval, is a change to the approval that would not, because of the change – (a) result in substantially different development; or … (c) for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; …” [21] As Morzone QC DCJ observed in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [52], the permissible change process enables an applicant to request a change to a development approval without the need for the complexity and delay of a new development application and public notification. [22] Section 369 of the SPA requires a person who wants to make a “permissible change” to a development approval to, by written notice, ask the “responsible entity”, in this case the Council, for approval to make the change (s 369(1)(e)). [23] Section 374 then provides: “(1) To the extent relevant, the responsible entity must assess the request having regard to – (a) the information the person making the request included with the request; and (b) the matters the responsible entity would have regard to if the request were a development application; and (c) if submissions were made about the original application – the submissions; and (d) any notice about the request given under section 373 to the entity; and (e) any pre-request response notice about the request given to the entity.11 (2) For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers 11 It was not controversial that sub-s 374(1)(d) and (e) are not relevant, as the original application for approval did not require referral to any referral agencies. -- 7 of 32 -- 8 appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made.” [24] Following that assessment, the responsible entity must decide to approve the request, with or without conditions, or refuse the request (s 375(1)). Substantially different development [25] The assessment of whether the effect of a proposed change would, or would not, result in a “substantially different development” has been said to involve matters of fact and degree, considered broadly and fairly.12 [26] The phrase “substantially different development” is not defined in the SPA. However, a ministerial guideline has been made, as contemplated by s 759(1)(c) of the SPA, about the matters to be considered in deciding whether or not a change to a development application or a development approval would result in a “substantially different development”.13 [27] Although the guideline is not binding,14 in the sense of mandating particular matters to be taken into account, or conclusions to be reached,15 it is nonetheless something which it is appropriate for the decision-maker in respect of a permissible change request to have regard to.16 [28] The guideline includes the following: “Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development, and would therefore not be a minor change or a permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants determine whether a change would result in a substantially different development and is not intended to be exhaustive. A change may result in a substantially different development if the proposed change:  involves a new use with different or additional impacts … 12 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512E; Emaas Pty Ltd v Brisbane City Council [2014] QPELR 579 at [18]; Orchard (Oxenford) Developments Pty Ltd v GCCC [2015] QPELR 462 at [54]. 13 Statutory Guideline 06/09 “Substantially different development when changing applications and approvals” (the guideline). 14 Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [55] 15 See Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512C, where Rackemann DCJ observed that “the list provided in the guideline is a list of those changes which ‘may’ result in a substantially different development. It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different”. 16 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 511J. -- 8 of 32 -- 9  dramatically changes the built form in terms of scale, bulk and appearance …  introduces new impacts or increases the severity of known impacts …”17 Likelihood of submission [29] I gratefully adopt the following summary of relevant principles, in relation to s 367(1)(c), by Morzone QC DCJ in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [75]: “(1) The words ‘because of the change’ … require a causal connection between the permissible change and a likely submission. The question is whether the proposed change would provoke an adverse submission that was not provoked by the pre-existing approval as amended from time to time. (2) ‘Likely’ in this context conveys a notion of something substantial, and ought to be construed as a ‘real’ or ‘not remote’ chance or possibility regardless of whether it is less or more than 50 per cent. In relation to causing a person to make a submission, the word is synonymous with ‘prone’, ‘with a propensity’ or ‘liable’. (3) Consideration must be given to the likelihood of submissions ‘objecting to the proposed change’ being made ‘on a relevant basis at least’. The question here is whether the submission raises a new objection about the change itself and not about the pre-existing approval as amended from time to time. (4) The potential submitter must be assumed to be objective and rational, and to be acting reasonably. …”18 The factual context [30] The land the subject of the request to change an existing approval is at 766 Ann Street, Fortitude Valley, on the corner of Constance Street and Ann Street (the land). [31] The hotel on the land, now known as the “Fringe Bar”, has a lengthy history. It was formerly known as the Osbourne Hotel, and was described as “locally significant predominantly for its continuity of a hotel use on this site since the 1860’s (it’s the Valley’s second oldest pub)”.19 [32] The applicants are each registered owners of lots in the Lautrec Lofts Community Titles Scheme 24463,20 which is located in the Freedman Building, at 758 Ann Street, 17 Emphasis added. 18 Footnotes omitted. 19 Exhibit 11, tab 26, p 247 (email from Malcolm Elliot to Helen Robson dated 29 May 2014). 20 Exhibit 11, tab 41. -- 9 of 32 -- 10 directly adjacent to the land, on its south–western boundary. Three of the applicants are also residents in the Lautrec Lofts. [33] The Freedman Building was built in the late 1940s, and was originally a factory used for the manufacture and warehousing of clothing.21 It was converted in 1997 for the mixed uses of “business premises, restaurants, shops and tenement building”.22 The building occupies the whole of its lot, apart from a laneway/driveway on the south- western side of that land. That is, it is “built to boundary” on all but one side of the land.23 Relevantly, that includes the north-eastern side of the building, which is directly adjacent to the land. Planning scheme [34] It is appropriate to have regard to the planning scheme which applied when the original application for approval was made, as well as when the request was made,24 which in both respects is Brisbane City Plan 2000. [35] Under Brisbane City Plan 2000 the land was covered by the Fortitude Valley Neighbourhood Plan.25 The land is within the Special Context Area of the Valley Heart Precinct.26 Relevantly, one of the applicable development principles is said to be: “2.5 Focus entertainment activities within the Special Entertainment Precinct Core Areas … that provide for and encourage a variety of live music, nightclub and other music venues into Fortitude Valley. Noise attenuation to reduce the intrusion of amplified music from both existing and future venues will be required in all new residential development, and noise attenuation requirements must be satisfied when designing new entertainment venues. In these areas, residents will expect ambient noise levels to be relatively higher both inside and outside of residences, due to their proximity to entertainment values.”27 [36] In so far as the Special Context Area is concerned, section 3.2.1 includes: “… The Ann Street streetscape consists mainly of buildings that are two storeys in height and of a smaller scale, which make a finer grained contribution to the area. Development in the Special Context Area is to enhance the cultural heritage of the area. In particular, development must preserve the fine grain character of 21 Exhibit 11, tab 37 at p 352 (report from Kevin Hayes Architects dated 21 March 1997). 22 1997 approval at exhibit 11, tabs 36 and 37. 23 Exhibit 11, tab 37, p 348 (report and recommendation on planning application, 22 April 1997, at point 3); see also exhibit 11, tab 5, p 55 and tab 15, p 219 (aerial diagrams). 24 Section 374(2) of the SPA. 25 Exhibit 12, pp 68-93. 26 Exhibit 12, p 90 (map A). 27 Exhibit 12, p 68. -- 10 of 32 -- 11 the area and respond to the established rhythm in the streetscape… Development will contribute to stitching together a human scale streetscape, with buildings set well back at upper levels. … Innovative redevelopment on smaller sites is encouraged. The challenge of accommodating development and growth within this precinct’s significant heritage and cultural values necessitates a design response different to the balance of the Neighbourhood Plan area. …”28 [37] The Fortitude Valley Neighbourhood Plan Code contains provisions to ensure development in the plan area is consistent with the development principles. As with other codes forming part of the planning scheme, there are performance criteria and acceptable solutions set out in the Code; and the acceptable solutions “represent the preferred way of complying with the performance criteria”.29 [38] In so far as “built form” is concerned, there are two relevant parts of the Code: P3 (under “built form – overall”)30 and P18 (under “built form requirements within the Special Context Area”).31 P3 includes a criterion that “[b]uilding setbacks are sufficient to ensure the building … enables existing and future buildings to be appropriately separated from one each other to allow light penetration, air circulation, privacy and ensure windows are not built out by adjoining buildings”. However, apart from one reference to the situation where there is a side boundary with a Residential Area classification32 (which is not the case here), there is no reference, in any of the acceptable solutions for either P3 or P18, to any requirement for side boundary setbacks at the podium level. In contrast, above the podium level, there are requirements for front, rear and side setbacks (consistent with the “established rhythm in the streetscape”33). The maximum podium height provided for, in relation to the Special Context Area, is 3 storeys.34 [39] As explained by Mr Buckley, this reflects what is a “significant feature” of the relevant part of Fortitude Valley in which the land is located, being one of “continuity of streetscape” at the podium level, “maintaining the rhythm of the older buildings with the new”,35 with “low-profile buildings with no gaps”,36 and above the podium, “the towers are brought in and space is created around them”.37 [40] For completeness, it is noted that under Brisbane City Plan 2014 the land is included in the Valley Heart Precinct (Special Context Area) of the Fortitude Valley 28 Emphasis added. 29 Exhibit 12, p 66. 30 Exhibit 12, p 75. 31 Exhibit 12, p 81. 32 Exhibit 12, p 75 (acceptable solution A3.4). 33 Depicted in figure f, exhibit 12, p 89. 34 Exhibit 12, p 85; see also at p 74 (meaning of storey). 35 T 2-76.36-.40. 36 T 2-80.20-.37. 37 T 2-76.39-.40. -- 11 of 32 -- 12 Neighbourhood Plan,38 in respect of which entertainment uses such as the Fringe Bar are expressly encouraged39 and there is express reference both to the need to satisfy noise attenuation requirements and that residents in the area will expect ambient noise levels to be higher, inside and outside their residences, due to their proximity to entertainment venues.40 Material before the Council’s delegate, for the purposes of making the decision Original approval [41] In December 2009, the second respondent made a development application, seeking approval for proposed development: “… to alter and extend the existing Hotel known as the ‘Fringe Bar’ to include new service arrangements and an outdoor bar area. The new service arrangements primarily relate [to] the closure of the internal driveway circulation system and relocation of loading/unloading and waste removal to the northern corner of the site…”41 [42] The plans depicting what was proposed are exhibit 16. [43] The application was approved by the Council in April 2011 following an impact assessment process (the original approval).42 [44] There was one submission received, objecting to this application, dated 28 March 2010, in the following terms:43 “Lautrec Lofts has been an established residential apartment complex since 1997, well before the Valley became a heavily promoted entertainment precent (sic). Unlike the Sun Apartments scenario, this apartment complex was well- established prior to the establishment of the Fringe Bar. As an owner of one of the apartments, that is directly affected by this submission, I strongly object to this development for the following reasons: 1. The application clearly states that it is the apartment owners responsibility and personal financial costs to sound proof their apartment. Prior to this application, this was clearly not an issue but the application wording highlights that if this development is approved, sound will be definitely a major issue to apartment residents. 38 JER of the town planning experts (exhibit 1) at [15]. 39 Exhibit 12, pp 94-95, s 7.2.6.4.2(3)(d), (h) and 5(f). 40 Exhibit 12, p 94, s 7.2.6.4.2(3)(i). 41 Exhibit 11, tab 11, p 99. 42 Decision notice dated 14 April 2011, exhibit 11, tabs 1 and 2. 43 Exhibit 11, tab 8. -- 12 of 32 -- 13 2. The unit currently contains a significant outdoor area; this is one of the main features of this apartment that attracts tenants. By placing a beer garden and nightclub next door to the outside area, it will greatly hinder the use of the apartment’s outdoor area, rendering this space useless. 3. The proposed development is two storeys high, this will be the same level as the Lautrec Lofts. Privacy and safety of apartment residents will be compromised due to potential break-ins, urination, and throwing of objects at and into the apartments. 4. The ability to obtain and maintain a tenant will also be compromised by the continual noise of patrons, music and entertainment. The extra lighting that will be required in this venue will also shine into the apartment causing disturbances to residents. 5. The future financial performance of all apartments will be affected by greatly reduced market value and rental income of the property. If the application is approved, I strongly believe that financial compensation should be paid by the owners of the development to the property owners to address the entire cost of all issues raised above, particularly sound proofing.”44 Permissible change request [45] After the 2011 approval was granted, but before any building work was commenced, the second respondent opened a “kerbside bar”, in the area where the driveway had been, nearest Constance Street, in order to test the market for a laneway bar of this kind. Complaints were received from residents of the Freedman Building, about the noise of patrons, which impacted on the second respondent’s trading activities.45 [46] Again, before any building work had been carried out pursuant to the original approval, on 19 March 2014 the second respondent made a request to the Council, under s 369 of the SPA, for changes to the original approval (the request).46 The changes sought to be made were: (a) “Introduction of a new acoustic wall as Stage 1 to facilitate acoustic separation between the proposed Laneway Bar uses and the residential uses at the adjacent Freedman Building”; and (b) “Make minor changes to the approved plans for the refurbishment of the existing hotel on the site”.47 44 Emphasis added. 45 Affidavit of Brian Fitzgibbons (exhibit 13) at [7]-[12]. Although this affidavit was not part of the material before the Council’s delegate, the relevant material does include reference to the Kerbside Bar, and subsequent noise complaints. 46 Letter from RPA, on behalf of the second respondent, to Council dated 19 March 2014 (exhibit 11, tab 12). 47 Exhibit 11, tab 12, p 150. -- 13 of 32 -- 14 [47] In relation to the “acoustic wall”, the request included the following by way of explanation: “Acoustic Wall While the site is located in the Special Entertainment Precinct, it is also located adjoining a residential building, and in the past there have been complaints from adjoining residents in relation to noise from the Fringe Bar to these adjoining residents. This resulted in an acoustic screen being erected for the existing Laneway Bar to improve the amenity for these residents. While these measures are not formally required, with the renovation of the Hotel and the proposed outdoor use of the land between the existing hotel and the adjoining Freedman Building, it is proposed to erect an acoustic wall to avoid any future issues as a result of the redevelopment. The photo below shows the balconies to be screened by the proposed acoustic wall. [Photo 1 – Freedman Building façade adjoining Fringe Bar] MWA Environmental have prepared a report… addressing the suitability of the proposed wall, which has been designed by Brand and Slater as an architectural feature. The wall is designed to be higher than the second level balcony roof but below the saw tooth roof frame. The wall has been offset from the boundary to allow for natural ventilation and light for these adjoining residents. This acoustic wall is proposed to be built as Stage 1 of the project, as it will provide an upgrade to the acoustic environment for the existing Fringe Bar uses as well as catering for the new redevelopment.48 The suitability for this wall to be considered as a permissible change was discussed with Council at a pre-lodgement meeting on 27 September 2013…”49 [48] The request goes on to address the relevant elements of the “permissible change” test, under s 367 of the SPA. The court’s attention was directed to the following: (a) in relation to the requirement that the change “would not result in a substantially different development”, the request states that “[t]he proposal still results in the refurbishment and expansion of the existing Fringe Bar, retaining the heritage values and creating a new semi outdoor laneway bar”;50 (b) in relation to the requirement that the change would not “be likely, in the Council’s opinion, to cause a person to make a submission objecting to the proposed change”, the comment in the request is that “[t]he previous application received one properly made submission. This submission was received from a 48 These comments reflect the contents of the Acoustic Wall Noise Impact Assessment report, dated 18 March 2014, which accompanied the request (exhibit 11, tab 12, pp 170-175). 49 Exhibit 11, tab 12, pp 150-151. Emphasis added. 50 Exhibit 11, tab 12, p 152. -- 14 of 32 -- 15 former owner (the unit has subsequently been sold) of a unit within the adjoining Freedman Building. The previous submission did relate to noise, safety and privacy from the proposed development. The installation of an acoustic wall will alleviate these concerns. It is considered the amenity and security benefits for residents outweigh the imposition of the proposed screen”;51 and (c) further, in relation to the reference in the guideline to whether the change “introduces new impacts or increases the severity of known impacts”, the comment in the request was that “[t]he proposal will not introduce any new impacts, in fact it will improve amenity and security for the adjoining residential building”.52 [49] The proposed changes are depicted on the plans which are exhibit 17. Pre-lodgement meeting [50] On 10 September 2013, Ms Moller, of RPS Group, on behalf of the second respondent wrote to the Council requesting a pre-lodgement meeting.53 In that letter, Ms Moller said: “…With respect to the implementation of the existing approval, the owner is concerned that this could lead to noise complaints from the adjoining residents in the Freedman and Co building. Some complaints from the adjoining owners did occur with the opening of Kerbside and an acoustic curtain has been erected on site to address these. With the planned implementation of the existing approval for redevelopment and extension of the Hotel on the site, it is considered permanent resolution of this issue is required as even though the noise conditions in this approval can be met, this does not necessarily stop complaints being made and investigated. It would be better to resolve the potential conflict now. The attached concept illustrates the proposed acoustic screen to alleviate the potential conflict. This shows an acoustic screen made of a patterned sheet product, located 1 metre off the adjoining building. This provides for a light well and landscape planter bed. We also seek to interpret the level of assessment with Council. It is our view that the proposal does not constitute a material change of use and does not involve any new GFA… It is also noted that our client is considering the future redevelopment of the site in line with the Fortitude Valley Neighbourhood Plan. In the event this occurs, the existing hotel would likely be retained but with the balance of the site likely to include a podium at a similar scale to the hotel building, with a tower element 51 Exhibit 11, tab 12, p 153. Emphasis added. 52 Exhibit 11, tab 12, p 154. 53 Affidavit of Ms Moller (exhibit 15), annexure EM-1. -- 15 of 32 -- 16 (all of which would be subject to future detailed design and evaluation). The proposed screening element has a similar scale to any future podium, which would provide a certain outcome for the client and adjoining owners about the interface moving forward between the two uses. …”54 [51] The pre-lodgement meeting was held on 27 September 2013. The Council’s record of that meeting55 stated, under the heading “city plan/strategic issues”: “Where the total area covered by the proposed acoustic screen exceeds 25m2 the proposed building works would not be considered to be ‘minor’ for the purposes of determining the level of assessment under the Heritage Place Code. As such an Impact Assessable Development Application would be triggered. Alternatively, because of the existing approval in place A002682602 it appears that a Permissible Change Request would be a more suitable way forward for the acoustic screening obtaining approval. The applicant will be responsible for determining in detail whether the building works on a Local Heritage Place would be considered permissible change under SPA; on first appearances and as mentioned in the meeting the works are likely to meet the SPA permissible change test(s). The biggest potential issue for the permissible change test would be whether it would cause a person to make a submission. Any previous submissions should be reviewed in addressing this criterion as part of any future application.” [52] The record also noted, under the heading “architectural”, that “[t]he proposed changes, incorporating the acoustic wall / landscape buffer indicated by the schematic perspectives submitted prior to the prelodgment (sic) meeting have not raised any significant architectural / heritage issues to be addressed”.56 [53] In the “outcome summary” it was said that “Council advised that the acoustic treatment could be considered a permissible change to the previous approval … with detailed review of SPA requirements to be done by the applicant to confirm”.57 Council officers’ consideration of the request [54] Ms Helen Robson was the assessment manager in relation to the request.58 [55] On 12 May 2014, Mr Callan Bennett, the Senior Architect/Urban Designer within the Council, sent a memorandum to the “Urban Planner” (I infer, Ms Robson) in relation to the permissible change request. In that memorandum, under the heading “issues & recommendations” Mr Bennett said: 54 Emphasis added. 55 Exhibit 11, tab 28, pp 254-256; see also Ms Moller’s affidavit (exhibit 15), annexure EM-1. 56 Exhibit 11, tab 28, p 255. 57 Exhibit 11, tab 28, p 256. 58 Exhibit 11, tab 23, p 243. -- 16 of 32 -- 17 “2.1 The proposed acoustic screen has potential to result in a loss of daylight and outlook from the existing balcony spaces located on the adjacent property. Accordingly, this may give rise to submissions from these neighbours. However, as the proposed screen is likely to provide visual and acoustic privacy for these residents, this may sufficiently offset concerns relating to the potential loss of daylight. 2.2 It is considered that the proposed works significantly changes the built form in terms of bulk, scale and appearance. Accordingly, the proposed new works may fall outside of what would be considered a permissible change. 2.3 The proposed new roof forms are attached [to] the existing Heritage Place façade. There is some concern that the proposed attached roof and adjacent new structures blur the line between old and new which was not the case with the approved set of drawings. This application has been forwarded to Malcolm Elliot in Heritage for comment. 2.4 The proposed modifications are considered to be outside of what would normally be considered a permissible change to an existing approval. The applicant is encouraged to resubmit as new development application or proceed with the current approval.”59 [56] Mr Elliott, the principal heritage officer, subsequently advised Ms Robson, in an email dated 29 May 2014, that there were no concerns from a heritage perspective.60 [57] On 3 June 2014, Ms Robson wrote to RPS, the agent of the second respondent for the purposes of the request, and advised that: “We have made a preliminary assessment of the application for a Modification however there are still some concerns. It is unclear as to whether the application meets the test for a substantially different development. Could you please provide further evidence (by way of more design detail of the screen, neighbouring property consent, photos of the noise curtain currently in place for example) so that we can determine whether or not the application proposed dramatically changes the built form in terms of scale, bulk and appearance and/or introduces new impacts.”61 [58] RPS responded to Ms Robson, by letter dated 24 June 2014, in the following terms: “As requested, we provide the following information. 1. The strategy to assess the proposal as a permissible change was at the recommendation of Council officers at the pre-lodgement meeting… [Reference is made to the record of that meeting]. The Acoustic Report 59 Exhibit 11, tab 24, p 245. Emphasis added. 60 Exhibit 11, tab 26, p 247. 61 Exhibit 11, tab 27, p 249. Italics in the original. -- 17 of 32 -- 18 submitted as part of our original request states that, ‘although not required to meet appropriate acoustic standards, it is proposed to erect an acoustic wall … the acoustic wall will provide a superior acoustic outcome with respect to operation of the hotel in respect of not causing adverse noise amenity impact on adjacent residents’. 2. The bulk and scale of the proposal (sic) acoustic wall needs to be considered in light of the proposal overall, and the purpose of the wall to mitigate existing and potential noise impacts. As Council is aware, there is an existing approval, although not constructed, to allow for an outdoor bar within the existing car park area. The permissible change seeks to provide for a similar development footprint and is anticipated to produce noise impacts similar to the already approved redevelopment. As stated previously, the acoustic wall is intended to provide additional acoustic mitigation to the adjoining residential buildings. We are advised by the Applicant that a similar acoustic curtain was installed along the boundary of the Kerbside Bar to reduce incidence of compliant (sic), and as such the Applicant feels it prudent to install a similar feature along the Freedman Building to ensure that acoustic impacts of the proposal are also suitably mitigated… 3. Under Fortitude Valley Neighbourhood Plan, if the Fringe Bar site was to be redeveloped in the future, such future development could be built to the boundary, completely blocking off the windows of the adjoining building. Cognisant that we are adjoining a residential use, albeit not in a residential area, the proposal seeks to provide a 1m offset to allow for natural light and ventilation. There are a limited number of situations as this one, and significant local research has undertaken to see if light and air easement existing within the surrounding area. There are some easements still in existence within the CBD, but at a lesser offset than proposed here. It is our opinion that the proposed development provides for a similar footprint to the already approved redevelopment of the car park for an outdoor bar area. The proposed acoustic fence is an additional mitigation measure to further minimise acoustic impacts on the adjoining property.”62 [59] On 4 July 2014, Stephen Warner, the Principal Planner, and delegate of the Council who ultimately made the decision to approve the requested change, sent an email to Ms Robson, advising that: “I have spent a little time reviewing the application to change the existing development permit for the hotel extension and considering your question about the changes to the proposed development tested against SPA requirements for permissible change. More particularly ‘substantially difference (sic) development’. 62 Exhibit 11, tab 28, pp 250-251. Emphasis added. -- 18 of 32 -- 19 On viewing the proposed plans for the changed development, the applicants response to your questions and the prelodgment meeting notes, I am satisfied that the applicant has demonstrated that the proposed development can be considered as a permissible change”.63 [60] Subsequently, on 15 July 2014, Ms Robson prepared a report and recommendation in relation to the request.64 Ms Robson recommended that the modifications be approved. [61] Relevantly, the report addresses ss 367 and 374 at pp 3-4:65 (a) In relation to s 367(1)(c) (likelihood of submissions), the report stated: “The original application did require advertising and 1 submission was received by an adjoining owner. The applicant report states that the owner has moved from the property. It is noted that the owners of the ‘Fringe Bar’ have erected a noise curtain in the position of the proposed permanent structure.” (b) Further, in relation to s 374(1)(c) (submissions about original application), it was said: “One submission was received for the original application raising issues of sound proofing, outdoor area, the height of the proposed development, the ability to obtain and maintain a tenant and future financial performance of their apartment. The applicant has advised that the submitter has now sold the apartment in the neighbouring property.” (c) In relation to the guidelines regarding “substantially different development”, in particular whether the change introduces new impacts or increases the severity of known impacts, it was said: “The proposal is not considered to introduce new impacts. The extension of the hotel activities into a laneway bar was on the original application as was the assessment of the noise impacts. The noise screen allows for the mitigation of any noise impacts on the adjoining property.” [62] The decision to approve the request was made on 17 July 2014, by Stephen Warner.66 [63] Mr Warner gave evidence at the hearing. His evidence confirmed that he had regard to the various material that has been referred to above,67 and ultimately adopted Ms Robson’s report in making the decision.68 [64] There is one proviso to that, as it seems Mr Warner did not recall seeing the memorandum from Callan Bennett.69 In his evidence in chief he was asked whether the two matters referred to in paragraph 2.1 of the memorandum (loss of daylight and outlook from existing balcony spaces) were matters to which he as the delegate 63 Exhibit 11, tab 29, p 266. 64 Exhibit 11, tab 32. 65 Exhibit 11, tab 32, p 304. 66 Exhibit 11, tab 33. 67 T 3-12 – 3-15. 68 T 3-19.40-.47. 69 Exhibit 11, tab 24, p 245. -- 19 of 32 -- 20 “should have regard and consideration”, to which he said yes.70 In cross-examination, when asked about Mr Bennett’s memorandum (referred to as an email), he said he did not recall it, “but as part of my normal role having regard to all of the matters, I considered all of the matters of impacts including light and the air, which had been ameliorated by the setback of the wall.”71 [65] Mr Warner was plainly aware of the guidelines, and considered them, as, in his words “they help to create the matters that I must give thought to in any considerations”.72 [66] In relation to the “submissions” issue, Mr Warner’s evidence was that “[e]xisting from the original approval and as identified in the submission” there were three impacts from the hotel: noise, potential of light emitting from the hotel uses, and privacy. He said that he considered the acoustic screen as “looking to reduce those known impacts”. In relation to light and ventilation, Mr Warner’s evidence in chief was: “… could you explain to her Honour, please, whether, for example, the issue of light and ventilation arose in your consideration, as it did in Mr Bennett’s, concerning the placement of this acoustic screen? --- Yes. It did. The reasonable expectation – having a look at the Fortitude Valley area and the growth in the Fortitude Valley area and the controls by the Neighbourhood Plan, which is part of the City Plan, the reasonable expectation of the redevelopment of that land would allow for an up to three-storey podium built right on the boundary. The screen wall, whilst that wasn’t a podium, it has a similar sort of form, had been set back one metre by the applicant to provide for light [to] penetrate and air circulation. And did you consider that, in the circumstances of this particular case, that the setback of one metre into the applicant’s own boundary was a satisfactory outcome with respect to light and ventilation? --- I did. In arriving at that decision, did you – were you aware, or did you know that the Lautrec Lofts or the Freedman and Company building was built to the boundary? --- Yes. I did know it was built to the boundary. And did that feature in your considerations at all? --- Again, yes. It was a warehouse that had been converted into a residential use. It was built to the boundary; therefore, there was no opportunity within that site to take its air and/or light. So, therefore, it was to some extent borrowing from the hotel land. The hotel land, the reasonable expectation of, as I just said, the Neighbourhood Plan or the City Plan allowed for a wall built right to that boundary to block out all of that light. So it had then been set back was a reasonable solution to doing that. Had there been a submission forthcoming concerning light and ventilation issues consequent upon the placement of this wall a metre back from the boundary, what 70 T 3-12.25. 71 T 3-17.26-.30 72 T 3-13.37-.38. -- 20 of 32 -- 21 views would you have formed as to whether that submission was a reasonable submission and the weight or account that should be given to it? --- I would have given it very little weight in the sense that the acceptable outcome of the Neighbourhood Plan allows for a building on the boundary line. So, therefore, whilst it may have been an emotive statement about light or air, the reasonable expectation was it could have been built out completely. …”73 Subsequent actions [67] Following the Council’s approval of the requested change, the acoustic wall was constructed. It is not clear exactly when this occurred, but it was certainly completed by October 2014. It appears that one of the residents, Mr Anderson, made a complaint to the Council about the wall at that time.74 This proceeding was commenced on 20 March 2015. Jurisdictional error [68] It is fair to say, as the second respondent submitted, that it was not clear from the originating application, and indeed upon the applicants’ opening of their case, whether it would be contended that the criterion in s 367(1)(a) (that the change would not result in a substantially different development) was a jurisdictional fact, in the sense of an objectively ascertainable criterion, upon which the authority of a responsible entity under s 375 to approve or refuse the request was contingent; as opposed to their authority depending upon the responsible entity’s assessment or evaluation of that matter.75 [69] As the applicants’ case was not ultimately advanced on the former basis, it is unnecessary to address this at any length. However, because it informs consideration of the “relevancy” and “unreasonableness” grounds expressly relied upon, it is appropriate to say something about this point. [70] The distinction was helpfully articulated by French CJ in the following passage from his Honour’s reasons in the Malaysian Declaration case76 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’.77 When a criterion conditioning 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 73 T 3-15.36 – 3-16.24. Emphasis added. 74 See [36]-[38] and Mr Fitzgibbons’ affidavit (exhibit 13), annexure BMF1-6. 75 Craig v South Australia (1995) 184 CLR 163 at 177; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] per French CJ. 76 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144. 77 Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 at 148 [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ. -- 21 of 32 -- 22 fact, the existence or non-existence of which may be reviewed by a court.78 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.79 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…”80 [71] In so far as the authority to approve a “permissible change” to a development approval is concerned, in my view the statutory framework referred to above supports the conclusion that it is the decision-maker’s assessment or evaluation of whether the proposed change is a “permissible change” that is the criterion upon which the power to approve the change depends. It is apparent from s 367(1)(a) to (d) that the assessment of “permissible change” is comprised of a “complex of elements”. Sub-s 367(1)(c) is expressly conditioned on the formation of an opinion. Sub-s 367(1)(a) is, in my opinion, by necessary implication conditioned on the formation of an opinion on the part of the decision-maker, given that: (a) the decision-maker’s task is one of “assessing the request” (ss 374 and 375); (b) the meaning of “substantially different development” is not fixed and definite, but involves matters of fact and degree, to be considered broadly and fairly, having regard to the individual circumstances of the development, and the particular planning scheme concerned; and (c) consequently, the task inevitably involves assessment and value judgments on the part of the decision-maker.81 [72] 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 78 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304. 79 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]- [137] per Gummow J; Graham v Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183] per Gummow and Hayne JJ. 80 Emphasis added. 81 Cf Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 at [33]-[34] per Gleeson CJ, Gummow, Kirby and Hayne JJ, in relation to s 35 of the Development Act 1993 (SA), which was found to “stipulate in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent”. -- 22 of 32 -- 23 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.”82 [73] Turning then to the particular grounds of jurisdictional error relied upon by the applicants Failing to take into account relevant considerations ground Relevant principles [74] As Weinberg J observed in Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at [522]: “The authorities make it clear that failure to take into account a relevant consideration can only be made out as a ground of review if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the construction of the statute conferring the discretion. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose …”83 [75] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41, Mason J emphasised the limited role of the court in reviewing the exercise of an administrative discretion. The function of the court “is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions”.84 As Mason J said at 41, “[i]t follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power”. [76] Reflecting this principle, in Australian Retailers Association at [525], Weinberg J adopted the following observation, made by Hely J in Elias v Commissioner of Taxation (Cth) (2002) 123 FCR 499 at [57]: 82 See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]- [137] per Gummow J. 83 Referring, inter alia, to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39- 40. Emphasis added. 84 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 per Deane J. See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [132]-[134] per Gummow J. -- 23 of 32 -- 24 “As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the complaint is that the decision-maker paid either too little or too much attention to a relevant factor…” [77] In considering this ground, it is necessary to understand precisely what it is that the applicants contend was not taken into account. In the applicants’ summary of position at [1], reference is made to a failure to take into consideration “[t]he new impacts or the severity of known impacts introduced as a result of the change”, more particularly, the loss of natural light and visual amenity, as identified by Mr Callan Bennett in the memorandum referred to above.85 [78] In the applicants’ written submissions, it is said that “nowhere on the record is the impact associated with visual amenity addressed”, although it is acknowledged that impacts associated with ventilation and access to light are referred to (although inadequately, it is said).86 [79] So the first question is, was the decision-maker bound to take such matters into consideration? The SPA does not expressly identify such impacts as matters to be taken into account in determining whether the change would result in a substantially different development (cf s 367(1)(a)). However, the SPA does expressly provide for the making of a guideline about matters to be considered in deciding that (s 759(1)(c)). Such a guideline having been made, it would be reasonable to imply, from the subject matter, scope and purpose of the SPA, including the purpose of the permissible change process, an obligation on a decision-maker to have regard to it.87 Plainly that is what occurred here. [80] But it is a very different proposition to then say that a responsible entity, in assessing a permissible change request, is bound to take into account any of the matters referred to in the bullet points in the guideline; or at an even more fine-grained level, bound to take into account particular things that might fall within one of those bullet points (for example, visual amenity, as a “new impact”) – such that a failure to do so could vitiate their decision for jurisdictional error. [81] In my view, having regard both to the status of the guideline, and also the language used in it, that is not the case. The guidelines are designed to assist both applicants and assessment managers to determine whether a proposed change is a permissible change, by providing a non-exhaustive list of possible considerations in that regard. The guidelines do not set out mandatory considerations conditioning the formation of 85 See also applicants’ written submissions at [37]. 86 Applicants’ written submissions at [38]. 87 See again paragraph [27] above. -- 24 of 32 -- 25 the opinion required to be reached by a responsible entity for the purposes of ss 369 and 375. [82] Moreover, the discretion so conferred on a responsible entity is a broad one, and even in a case where the introduction of new impacts is considered, by the decision-maker, to be relevant, the comparative importance of, or weight to be accorded to, any particular impact, is plainly one for the decision-maker; not amenable to review by the court, in an application such as this (as compared with an appeal on the merits). [83] In any event, the material does demonstrate that the impact of the acoustic wall on aspects of the adjoining residential neighbour’s amenity, such as natural light and air ventilation, were considered.88 It seems fair to say “visual amenity” is not expressly referred to.89 Nevertheless, it is evident from the material that, in so far as the potential impact of the acoustic wall on light and air (and, one might infer, general visual amenity) was concerned, the ameliorating effect of the wall on other impacts (including noise, light, privacy and security) was regarded as outweighing any such impacts, in circumstances where the Freedman Building was built to the boundary; there was considered to be a “reasonable development expectation” that the second respondent could itself build a 3 storey podium to the boundary; and the wall was set back by about 1 m. As already noted, the weight to be given to these factors was a matter for the Council’s delegate. [84] Accordingly, I am not satisfied that this ground of review has been made out by the applicants. Unreasonableness Relevant principles [85] The ambit of unreasonableness as a ground of review was recently considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, and it is appropriate to address the applicants’ second ground by reference to this decision.90 [86] What is apparent, from Li and subsequent analysis of that decision, particularly by the Full Court of the Federal Court,91 is that legal unreasonableness, as a ground of review, is not limited to the familiar formulation of Wednesbury unreasonableness; but nor is the language used by the plurality in Li, for example at [76] (referring to a result, on 88 See paragraphs [47], [48](b), [50], [55], [57], [59], [63], [64], [65] and [66] above. 89 As to the difficulty of drawing an inference that something has been ignored, from what has not been said, where there is no (and no requirement for a) statement of reasons, see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at [25] per French CJ, Bell, Keane and Gordon JJ. 90 See Flegg v Crime and Misconduct Commission [2014] QCA 42 at [17] per Gotterson JA. 91 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [43]-[50] per Allsop CJ, Robertson and Mortimer JJ; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [2]-[13] per Allsop CJ, at [52]-[62] per Griffiths J and at [91]-[92] per Wigney J. -- 25 of 32 -- 26 the facts, which “is unreasonable or plainly unjust”, or a “decision which lacks an evident and intelligible justification”) to be adopted as some kind of rigid or precise formulation of the boundaries of legal unreasonableness. The analysis is more subtle.92 [87] As explained by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4]-[6]: “4 In Minister for Immigration and Citizenship v Li … the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J). 5 These statements of general principle in the three judgments… variously drew upon and drew together a number of well-known expressions and bodies of principle including… [his Honour here set out a lengthy list of such expressions and principles, included among which is “the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064”]. 6 Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an ‘outcome focused’ conclusion without any specific jurisdictional error being identified: Singh at [44].” [88] It may be observed that, in so far as the second ground of complaint is concerned in this case, it is an “outcome-focused” application of the concept. In that regard, Allsop CJ went on to say: “7 … There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above. 92 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [62] per Griffiths J. -- 26 of 32 -- 27 8 The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].”93 [89] After noting that the “concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary” (at [10]), Allsop CJ said: “11 … The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, or going beyond the source of power. 12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.”94 [90] That last point was also emphasised by Wigney J at [92]: “The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]- 93 Emphasis added. 94 Emphasis added. See also at [52]-[57] per Griffiths J and at [91]-[92] per Wigney J. -- 27 of 32 -- 28 [45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.”95 [91] Justice Wigney’s observations in this regard are redolent of the following comment made by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137], after referring to the passage from Buck v Bavone referred to at paragraph [72] above: “… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.” Town planners’ evidence [92] The town planning experts (Mr Buckley, Mr Kay and Mr Lyons) identify, at [19] of their joint expert report (JER) (exhibit 1), that they have been asked to express an opinion “on the reasonableness of the decision, to issue the permissible change to the 2011 approval”. In the context of this proceeding, that puts the question too broadly. The ground of review relied upon, in so far as reasonableness is concerned is that the opinion formed by the decision-maker, for the purposes of s 367(1)(c), that the change would not be likely to cause a person to make a properly made submission objecting to the proposed change, was legally unreasonable. [93] In any event, it is possible to discern from the experts’ evidence their opinion about that narrower point. [94] The key point made by Mr Buckley and Mr Kay is that, in considering this issue, as part of the broader consideration of a permissible change request, context is crucial.96 In the JER, the relevant context, they said, includes: (a) the nature and type of the approval sought to be changed; (b) the physical location and land use context;97 95 Emphasis added. See also Bon Accord Pty Ltd v Brisbane City Council [2010] QPELR 23 at [112]- [113] per Rackemann J. 96 JER (exhibit 1) at [33] and [61]; Mr Buckley at T 2-62.40-.46; T 2-63.25-.40. 97 JER (exhibit 1) at [33]. -- 28 of 32 -- 29 (c) “[t]he development potential of the fringe bar land, in particular this ‘open’ bar area which we consider includes a clear ability to develop a podium structure up to 3 storeys. Such a podium could be built to any common boundary”;98 (d) “[t]he fact the fringe bar is subject to the Liquor Act which puts obligations on licensees to limit and control noise disturbance”.99 [95] Expanding on some of these points, Mr Buckley in his oral evidence also identified the following as relevant to the context: (a) the “cross boundary relationships” between buildings, and the need to manage the “quite fundamental incompatibility” between a semi-outdoor laneway bar and a residential use on the immediate boundary of that use;100 (b) that the Lautrec Lofts apartments were built to the boundary, which Mr Buckley said goes to “planning fairness”, in the sense that setbacks are intended to be shared between adjoining developments;101 (c) that the planning scheme facilitates redevelopment of the hotel land with a podium up to three storeys, which he described as “critical and crucial context” going to the “reasonable expectations as to what might happen around you”;102 and (d) that the laneway bar approved in 2011 would have significant impacts on the acoustic amenity of the residents of the adjacent apartments.103 [96] Mr Lyons took a different view, as to the relevant context, saying that he did not consider it necessary to take into account any “potential theoretical development outcomes”.104 However, he did agree that the provisions of the planning scheme ought to be considered “in the context of understanding the reasonable expectations of a potential submitter”.105 [97] In relation to s 367(1)(c) in particular it was Mr Buckley’s and Mr Kay’s opinion that: “In the event the opportunity existed to make a submission, the strength or reasonableness of any submission would be balanced against: 98 JER (exhibit 1) at [34], also [56]; Mr Kay’s oral evidence at T 2-39.38-.41; T 2-40.31 (“you wouldn’t have anything but clear expectation that the Fringe Bar could be built to the side boundary”); T 2-44.41. 99 JER (exhibit 1) at [34]. 100 T 2-62.44-.45; 2-63.1-.15. 101 T 2-63.25-.32. 102 T 2-63.36-.40. 103 T 2-67.35-.41. 104 Mr Lyons’ individual statement of evidence (exhibit 3) at [33] and [36]. 105 Mr Lyons (exhibit 3) at [43]. -- 29 of 32 -- 30 (a) The inevitability, at some stage, that a 3 storey fire-rated wall could be built on the boundary; and (b) The demands of the liquor licensing authorities to mitigate noise disturbance. Such demands are understood to operate outside the planning process.”106 [98] As elaborated in oral evidence, Mr Kay said that had a submission been made on the basis of the impact of the acoustic wall on light, visual amenity and ventilation,107 he would not regard such a submission as being reasonable, “given the expectations that the documents afford”.108 Mr Buckley made reference to what he called a “reasonableness filter”, through which it is necessary to consider any putative submission, with the filter including the contextual matters already referred to.109 [99] Mr Lyons expressed the contrary view, regarding the assessment of likelihood of a submission as a result of the proposed change, principally (but not only) on the basis of a different view as to the construction of the provisions of the planning scheme.110 Mr Lyons was of the view that the absence of express reference to an “acceptable solution” for a side boundary setback in the Fortitude Valley Neighbourhood Plan was intentional, to ensure that the assessment of a particular development could have regard to its context and setting.111 But he agreed with the proposition that there is a development entitlement on the hotel site to take up the use of the land between the hotel proper and boundary the land shares with the Freedman building, “subject to an assessment”.112 [100] Mr Lyons also agreed that whether the change in this case would cause a rational and reasonable person to lodge a reasonable submission is a matter about which reasonable minds may differ.113 Consideration [101] It may be observed that the approach taken in particular by Mr Buckley and Mr Kay – in terms of the importance of context to this issue – is consistent with the approach to framing the boundaries of the decision-maker’s “areas of decisional freedom”, as explained by Allsop CJ in the passage quoted at paragraph [88] above, which includes the nature and character of the decision, the terms of the relevant legislation, the factual and legal context of the decision, and principles of reasonableness. 106 JER of the town planning experts (exhibit 1) at [43]. 107 T 2-42.16-.17. 108 T 2-49.37-.38. 109 T 2-73.30 – 2-74.35. 110 JER (exhibit 1) at [71]; Mr Lyons (exhibit 3) at [44]-[47]. 111 T 2-14.27-29. 112 T 2-17.4-.6. 113 T 2-24.23. -- 30 of 32 -- 31 [102] The factual and legal context of the decision appropriately includes the matters identified by Mr Buckley and Mr Kay, referred to above. [103] In so far as whether, as a matter of construction, the relevant provisions of the Fortitude Valley Neighbourhood Plan contemplate, in absolute terms, an entitlement to build to the side boundary, I do not regard that as a matter that the court is required to express a concluded view about in the context of this proceeding. That is because what the court is here concerned with is whether the Council’s conclusion was unreasonable, as explained by Allsop CJ in the passage quoted at paragraph [89]. [104] However, in that context, in my view the construction of the Plan, advocated by the Council and the second respondent, that there is a reasonable development expectation, at the podium level, of development to the side boundaries, is plainly open. It is persuasively supported by the evidence of both Mr Kay and Mr Buckley. In particular, I accept Mr Buckley’s evidence that “built to boundary walls on side boundaries within a podium are clearly anticipated and a reasonable expectation”114 within the Fortitude Valley Neighbourhood Plan Area. I do not understand Mr Lyons to strongly contend to the contrary, his view rather being that in all cases the expectation is tempered by the need for individual assessment of any proposal on a case by case basis. [105] When regard is had, then, to: (a) the original approval, which enables the second respondent to alter and extend the hotel to operate a laneway bar outside, which will plainly have significant acoustic and other (security, lighting, privacy) impacts on residents of the Freedman building; (b) the issues raised by the one submission objecting to that original approval, being noise, security, lighting and privacy, and the significant ameliorating effects the acoustic wall would have on each of those; (c) the development expectation of the land, which as already noted I accept was both reasonable to have regard to, and was reasonably considered to contemplate a 3 storey podium built to the boundary of the land; (d) that the Freedman Building itself is built to the boundary, which in itself poses issues about the access to light and air from the adjoining land, without the benefit of any rights in that regard (such as an easement); (e) that, notwithstanding the reasonable development expectation referred to, the acoustic wall is set back 1.2 metres from the boundary; (f) the fact that, as both expressly acknowledged by Mr Lyons, and as is evident from the differing views expressed by Mr Buckley and Mr Kay, on the one hand, and Mr Lyons on the other, “reasonable minds might differ” about whether an 114 Mr Buckley’s statement of evidence (exhibit 8) at [11], [14], [21]-[24], [30] and [37]; see also T 2- 76.28-.40; and 2-79.32 – 2-81.2. -- 31 of 32 -- 32 objective and rational person, may make a reasonable submission, because of the change to the development approval by the introduction of the wall, I am not satisfied that no reasonable decision-maker could have reached the conclusion that the change would not be likely to cause an (objective and rational person) to make a (reasonable) properly made submission, objecting to the proposed change. [106] Acknowledging the caution against adopting definitional statements, in my view, the opinion reached by the Council’s delegate, about this matter, has not been shown to lack rational foundation, or an evident or intelligible justification. It is an opinion which falls within the range of legally and factually justifiable outcomes, having regard to the matters addressed above. Accordingly, I find that this ground is not made out either. Orders [107] The application is dismissed. [108] In the circumstances, it is unnecessary to address the submissions dealing with discretionary considerations. [109] I will hear the parties as to costs. -- 32 of 32 --