Birkdale Flowers Pty Ltd v Redlands City Council & Anor [2016] QPEC 4 [2016] QPELR 231

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Birkdale Flowers Pty Ltd v Redlands City Council & Anor [2016] QPEC 4 PARTIES: BIRKDALE FLOWERS PTY LTD (ACN 010 950 259) (first applicant) and TARSEM SINGH SIHOTA and HARBANS KAUR SIHOTA (second applicants) and WILSON FOUR PTY LTD (ACN 144 846 417) (first respondent) and REDLANDS CITY COUNCIL (second respondent) FILE NO/S: 4802 of 2014 DIVISION: Planning & Environment PROCEEDING: Hearing of an application ORIGINATING COURT: Planning & Environment Court of Queensland DELIVERED ON: 11 February 2016 DELIVERED AT: Brisbane HEARING DATE: 9, 10, 11, 12 and 13 November 2015 and 10 December 2015. JUDGE: RS Jones DCJ ORDER: The application is dismissed. CATCHWORDS: APPLICATION – where respondent council approved a reconfiguration of land for a residential development at Birkdale – where respondent council granted the first respondent a development permit for operational works - whether respondent council failed to assess the applications against the Excavation and Fill Code – whether approvals in conflict with the Excavation and Fill Code – whether -- 1 of 38 -- 2 respondent council failed to properly assess the applications WEDNESBURY PRINCIPLE –– whether a decision by the respondent council to grant approval to the first respondent was so unreasonable as to be fundamentally defective JONES V DUNKEL – where second respondent failed to call evidence from a council officer – whether the failure to call evidence allows an adverse inference to be drawn against the respondent council DISCRETIONARY GROUNDS – where declarations were sought pursuant to section 456 Sustainable Planning Act 2009 – whether proposed remedial works are proportional – whether proposed remedial works will result in a materially better outcome – where there was no bad faith on the part of any of the parties Sustainable Planning Act 2009 Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration v Li (2013) 249 CLR 332 Rossi v Westbrook & Anor [2013] QCA 102 Bon Accord Pty Ltd v Brisbane City Council & Ors [2010] QPELR 23 Holcim (Australia) Pty Ltd v Brisbane City Council [2012] LGERA 406 Lomas v Gold Coast City Council [2007] QPELR 539 Centro Properties Ltd v Hurstville City Council & Anor Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31 COUNSEL: Mr D Gore QC with Mr A Skoien for the applicant. Mr C Hughes QC with Ms N Kefford for the first respondent. Mr J Houston for the second respondent. SOLICITORS: Wilson Lawyers for the first and second applicants. MacFie Curlewis Spiro Lawyers for the first respondent. Redland City Legal Services Group for the second respondent. -- 2 of 38 -- 3 [1] This proceeding was concerned with an application brought by the first and second applicants seeking declarations and orders against the first and second respondents. For the reasons set out below the orders of the Court are: 1. The application is dismissed. 2. I will hear from the parties as to consequential orders if necessary. Background [2] On 8 December 2014 the first applicant filed an originating application seeking orders pursuant to s 604 of the Sustainable Planning Act 2009 (SPA). Some seven and a half months later, on 23 July 2015 an amended originating application was filed which, in addition to joining the second applicants in the proceedings, substantially amended the relief sought. Under the amended originating application primary reliance was placed on s 456 and not s 604 of the SPA. However, in the alternative, relief was sought pursuant to s 604. At the conclusion of the evidence the applicant sought what might be described as being more tempered relief, this will be discussed in detail below. [3] The first and second applicants are the owners and occupiers of land which adjoins that of the first respondent (the subject land). The second respondent is the relevant local authority. [4] On their land, the first and second applicants operate an extensive nursery business. More will be said about that business below. The land owned by the first respondent, as I understand it, had been used for many years for agricultural purposes. However, on 28 November 2011 the second respondent issued a decision notice to the first respondent which approved the reconfiguration of its land into 28 residential allotments. In the amended originating application that approval is referred to as the “ROL approval”. The ROL approval granted on 28 November 2011 was amended by a further decision notice dated 6 March 2014 (amended ROL approval). To facilitate the subdivision originally approved, on 4 July 2012 the second respondent issued a development permit for operational works (civil works and landscape works). This approval is referred to in the amended originating application as the “OPW approval”. On 24 January 2014 the second respondent issued an amended permit for operational works (amended OPW approval). -- 3 of 38 -- 4 [5] Acting on the original approvals the first respondent subdivided the land into 28 allotments.1 And, in particular, constructed a concrete panelled retaining wall to retain substantial imported fill and, on top of that retaining wall, a 2m high timber fence was constructed.2 The height and design of the timber fence was considered necessary to deal with reverse amenity issues emanating from the nursery, particularly noise. [6] As a consequence of these proceedings no lots adjacent to the retaining wall have been sold and, accordingly, apart from the fill, retaining wall and fence, no development has occurred south of the internal road constructed pursuant to the OPW approval issued on 4 July 2012. However, to the south and west of that road a significant number of substantial dwellings have been constructed for individual owners.3 [7] Both the land owned and occupied by the first and second applicants and the subject land front Birkdale Road. However, no access would be permitted from Birkdale Road. Access to the subject land is via Lynch Crescent, an existing internal subdivision road. There seems little doubt that in due course the nursery land will also be subdivided, probably in a manner similar to the subject land.4 However, at least until the foreseeable future it was envisaged that the nursery business would continue to operate. [8] The nursery business is a longstanding lawful nonconforming use which is surrounded by residential development.5 It is clear from the evidence that the owners and the operators of the nursery were concerned with a number of reverse amenity issues likely to be created by residential subdivision occurring along its southern boundary. More will be said about those reverse amenity issues below. Relief sought and likely physical consequences [9] The issues, at least so far as the applicants are concerned, were identified in their written submissions in the following terms:6 1 See for example Exhibit 4, Vol 2 at Tab 40 and Exhibit 12A. 2 See for example Exhibits 24 and 25 and Exhibit 1 at p 120. 3 See Exhibit 8. 4 Exhibit 3, p 206. The nursery, as is the subject land, is located within the Urban Residential Zone where the predominant use would be for low rise detached houses on individual lots of various sizes. 5 See Exhibit 4, Vol 1 at p 131 and Exhibit 8. 6 At paragraph [7]. -- 4 of 38 -- 5 “The basic issues are: (a) whether each (or either) of the decisions of the Council to grant the ROL approval and the OPW approval was bad in law, because, in each (or either) case: (i) the Council failed to assess the application against the EFC (“the improper assessment point”); or (ii) the Council failed to take into account a relevant consideration, namely, that the approval conflicted with the EFC (“the conflict point”); or (iii) the approval was so unreasonable that no reasonable Council could have granted it (“the Wednesbury point”); (b) if so, what relieve should be granted.”7 [10] The amended originating application sought declarations pursuant to s 456 of the SPA which, if made would see the ROL approval, the amended ROL approval, the OPW approval and the amended OPW approval all declared to be invalid. And further, a declaration that the retaining wall, together with the fence constructed on it, unlawfully encroaches onto the nursery land. [11] In addition to those declarations, orders were sought to set aside all of the above mentioned approvals and, in addition, require the second respondent to within 30 days issue fresh ROL and OPW approvals which would require the retaining wall to comply with “probable solution P1(1)(iii) of the Excavation and Fill Code under Redlands Planning Scheme version 7”.8 [12] In respect of references made during the course of the proceeding to “discretionary grounds,” including the impact on third parties raised by the respondents, the applicants tempered the relief sought as follows:9 “The relief sought in the Amended originating Application includes orders that all 4 approvals be set aside. This has prompted reference to discretionary considerations, and the impact that such orders may have on third parties. In response to such concerns, the Applicants propose more limited relief. First, the Applicants seek declarations under s.456(1) of SPA that: (a) the Council failed to assess the ROL application against the EFC; (b) in granting the ROL approval, the Council failed to take into account that the approval conflicted with the EFC; 7 The reference to the EFC is a reference to the Excavation and Fill Code under the second respondent’s planning scheme. 8 Amended OA, order 1.A. 9 Applicants’ written submissions at paras [81] to [87]. -- 5 of 38 -- 6 (c) the ROL approval was so unreasonable that no reasonable Council could have granted it; (d) the Council failed to assess the OPW application against the EFC; (e) in granting the OPW approval, the Council failed to take into account that the approval conflicted with the EFC; (f) the OPW approval was so unreasonable that no reasonable Council could have granted it. Having made such declarations (or any one of them), the Court’s power under s.456(7) is thereby engaged. That provision reads: ‘The court may also make an order about a declaration made by the court.’ It is well established that a grant of power to a Court should be given the most liberal construction, and should not be subject to a limitation not appearing in the words of grant. That is because powers conferred on a Court are powers which must be exercised judicially and in accordance with legal principle. In those circumstances, it is open to the Court to leave the 4 approvals intact, but to order that: (a) specific remedial works to the northern retaining structure be carried out by Wilson Four; (b) once those works are shown in specific drawings, any condition in any of the 4 approvals which refers to an approved drawing be amended by deleting reference to any drawing which reflect the current form of structure, and by substituting the new drawings which reflect the remedial works provided for in the Court’s order. It is also not immaterial that the Court is a specialist Court, and that that provides another reason for construing s.456(7) in a wide and beneficial way. As foreshadowed in the course of the hearing, the Applicants propose that the Court’s decision be given in a staged way – first, by making the declarations indicated above, and by foreshadowing that it proposes to make an order requiring remedial works, following the taking of further procedural steps; secondly, to indicate that it is persuaded that remedial works of the kind illustrated in ex. 13 are appropriate; thirdly, to give directions to the effect that the parties are to seek to reach agreement on the form of those works (and, failing agreement, for determination by the Court) and, finally, for the Court to make final orders after the remedial works are agreed (or determined).” (footnotes deleted - emphasis added) [13] It was quite apparent from the final relief sought that relief under ss 601 and 604 of the SPA was not being pressed. This was confirmed by Mr Gore QC, senior -- 6 of 38 -- 7 counsel for the applicants, in final addresses. It was also made clear that no specific findings or orders were being sought concerning the encroachment issue.10 [14] How the “remedial works” could be designed and constructed to satisfy the excavation and fill code, as the first and second applicants say is required, was represented in sketch form by Mr Gould, the engineer called on behalf of the applicants.11 The existing concrete retaining wall, depending on topography varies in height from 0.39m plus to 2.45m.12 The wall and the fence run along the entire 250m boundary between the subject land and the applicants’ land. [15] As I understood the evidence of Mr Gould, the existing concrete retaining wall would be reduced to a maximum of 1m in height tapering down, depending on topography, along the full length of the boundary.13 On top of that wall it would be necessary to construct a safety fence of some sort. I was not taken to any evidence that identified just how high and of what construction that fence might be. [16] What follows from the reduction in the height of the retaining wall to a maximum height of 1m is the necessity to excavate and remove a significant volume of the existing fill. In very broad terms that volume of fill would be in the order of 2m in width and, depending on topography, up to 1m plus in depth.14 Following the removal of the fill a new timber fence would have to be erected at or about the point where the southern boundary of the removal of fill meets the existing ground level. [17] The erection of the new fence is still necessary to avoid the reverse amenity impacts raised by the applicants with the second respondent and, in particular, to ameliorate as far as is practicable the noise impacts associated with the nursery operations. It seemed uncontroversial that because of the relocation of the acoustic fence 2m to the south, further acoustic modelling would be necessary to determine just how high the fence would have to be. [18] At the close of the evidence I am left in the situation where I do not know just how much fill will be required to be removed,15 nor do I know how high the new noise amelioration fencing might be, nor do I know what the total cost of the works 10 T6-26 ll 24-34: T6-57 ll 35-44. 11 Exhibit 13. See also appendix A to applicants’ written submissions. 12 See Exhibit 7. 13 T2-54 L 23 and T2-55 ll 15-25. 14 T2-68 ll 8-27. 15 Possibly in the order of 400m3 – Exhibit 1, p209 per Mr Gould. -- 7 of 38 -- 8 envisaged in Exhibit 13 might be. That said, it could be readily inferred that the amount of work required would be relatively expensive. [19] A further issue that arises in respect of the proposal put forward by Mr Gould is that within the newly created space between the northern most safety fence and the re- located acoustic fence some form of landscaping would be required. That in turn could require up to 13 lots to have some form of access through the acoustic fence and up to 13 sets of steps into the landscaped area. [20] While I have some genuine reservations, I am prepared to proceed on the basis that practical arrangements could be made to provide access through the fence and steps. However, while I am also prepared to accept that good and reasonable neighbours and community citizens might usually be expected to do the right thing, I do not consider it would occur in this case. [21] The landscaped area would not be able to be seen from anywhere south of the acoustic fence. And, even when one entered the landscaped area the access door would have to be closed behind for acoustic reasons, and the only thing to be seen to the north is the nursery. On balance I prefer the evidence of Messrs Buckley and Schomburgk, both very experienced town planners,16 and Mr McAnany a very experienced subdivisional engineer.17 Their evidence on this topic was not seriously shaken in cross-examination and it leads me to conclude that the area behind the acoustic wall would be likely to be largely ignored by a significant number of the owners of the 13 lots and would tend to become weed infested and overgrown until some relevant authority intervened. [22] Before proceeding further I should deal with the issue taken with the change in the type of retaining wall approved by the second respondent when compared to what was finally constructed. The approved drawings envisaged slightly articulated 30cm concrete sleepers being retained by concrete posts which would face towards the nursery.18 What was finally constructed was a concrete retaining wall where concrete slabs or sleepers were slotted into steel posts.19 All of the engineers agreed that the as built wall was either more “current technology” or otherwise the more 16 T5-26 ll 35-46 per Mr Schomburgk, relied on by the second respondent; T5-45 ll 25-40 per Mr Buckley, relied on by the first respondent. 17 T4-15 ll 28-33. 18 Exhibit 12A p 1. 19 Ibid p 2. See also sheets 2 of Exhibits 24 and 25. -- 8 of 38 -- 9 preferred form of construction. In particular, the evidence of Mr Fox, the engineer called on behalf of the first respondent, and Mr McAnany, satisfies me that this change in the forms of construction would not excite any interest within the relevant divisions of the second respondent. Nothing turns on this change in my view. [23] Before moving to the next topic, I am satisfied that, leaving aside the unknowns involved and the landscaping issues, the solution proposed by Mr Gould is a feasible solution from an engineering perspective. When taken to Exhibit 13 by Mr Gore QC, Mr Fox accepted it as a practical approach.20 Mr McAnany, the engineer relied on by the second respondent, clearly had serious reservations about the proposed solutions but I did not understand him to say it was an unachievable outcome. The background to the retaining wall and fence and the fill [24] Following the acknowledgement notice issued by the second respondent concerning the ROL on or about 4 January 2011, Wolter Consulting Group (WCG), on behalf of the second applicants, made a written submission on 11 February 2011 in respect of the ROL application. And, notwithstanding that it was considered to be a “not properly made submission” the matters raised were considered by the second respondent. The applicants contend that this matter, together with other matters, “distracted” the second respondent from “its legal obligation in relation to the (Excavation and Fill Code) and the northern boundary...”.21 [25] The WCG submission was intended to “make council aware of the potential impacts of this development on (the second applicants) livelihood”.22 In this context the submission identified that the applicants’ major concerns were “future reverse amenity impacts generated from the residential subdivision and its lack of mitigation measures to maintain the amenity of the area”.23 After identifying a number of activities carried out on the nursery land, including the use of tractors, rotary hoes and spray units etc., a number of reverse amenity issues were identified and, in particular, noise and drainage run off and, to a lesser extent, dust and spray drift. The submission concluded as follows: 20 T4-2 ll 15-38. 21 Applicants’ written submissions at para [53]. 22 Exhibit 4, Vol 1, p 283. 23 Ibid p 284. -- 9 of 38 -- 10 “Based on the issue outlined above the development application should demonstrate compliance with the codes by sufficiently addressing the applicable codes. It is proposed that the applicant carry out further environment assessments and to develop sufficient mitigation measures based on the recommendations made by further technical reports.”24 [26] By letter dated 8 July 2011 consultants for the first respondent responded to the information request issued by the second respondent on 27 January 2011. This response, in addition to addressing a number of issues already raised by the second respondent and the Department of Transport and Main Roads (DTMR), also addressed a number of the reverse amenities raised in the WCG submission. In particular it included an amended Lot reconfiguration25 and a revised noise impact assessment by NSA Acoustics.26 As a consequence of this report a timber acoustic fence 2m high and running the full length of the common boundary between the subject land and the nursery land was proposed.27 [27] As already identified, the OPW was approved on 4 July 2012.28 The best evidence is that the first respondents commenced constructing the retaining wall sometime in January 2013 and completed those works sometime in March 2013. However, by as early as 17 January 2013 the applicants still had concerns about a number of issues, including encroachments, inadequacy of drainage and the lack of aesthetics of the retaining wall.29 At the time of this correspondence the applicants concerns about the appearance of the structures was their unattractive appearance to visitors/customers of the Flower Farm and to future “occupants” if the site was ever developed. [28] While the issues of the encroachments and drainage matters are of genuine concern to the applicants, in the proceedings before me there was no doubt that the main issue was the negative visual amenity created by the wall and acoustic fence. In respect of the question of aesthetics the second applicants advised as follows:30 “(a) As noted above design and construction of the wall was undertaken without our consultation. Having now seen the height of the wall and noting the existence of the acoustic fence to be attached 24 Ibid p 284. 25 Ibid, Tab 39, p 344. 26 Ibid, Tab 38, pp 305-343. 27 Ibid, Tab 38, pp 320-321. 28 Ibid, Tab 11, pp 651-671. 29 See correspondence dated 18 March 2013, Exhibit 4, Vol 3, Tab 16. 30 Ibid at p 755 (see also at Tabs 23 and 24). -- 10 of 38 -- 11 to it, we are concerned that the overall appearance of the wall is not aesthetic from the point of view of invitees to the Flower Farm and occupants of future development (if any) of the Flower Farm. (b) There is also potential glare and reflection from the large bare concrete structure…” [29] Following that correspondence an onsite meeting was held on 27 March 2013. Neither that meeting nor subsequent meetings and/or communications resolved the tensions between the parties. On 31 May 2013 the applicants’ then solicitors wrote to the first respondent identifying the applicants’ concerns regarding encroachments, the excavation of soil, run off and trespassing but then went on to express a willingness to negotiate about matters, including that the encroachment issues be addressed and that:31 “the developer provide plans for landscaping near the entrance of the Flower Farm, along the eastern boundary of the development site and ensure that the landscaping must not reduce visibility to Birkdale Road. The developer provide plans and solutions for appropriate fence and retaining wall screening on the side of the wall adjacent to the boundary of the Flower Farm. … Please notify us whether the developer is willing to negotiate a resolution on those terms.” [30] Despite correspondence passing between the parties’ lawyers, and the involvement of the second respondent, the matters in dispute were not resolved leading to the Supreme Court proceedings referred to below. [31] As best as I can make out from the evidence, at the ROL approval stage at least in part as a consequence of the subject land being more elevated than the nursery land, what was proposed was a retaining wall with a two metre high fence on top of it. The maximum height of the wall as initially proposed would have been, at a point on the northern boundary of the proposed lot 22, about 1.2 metres in height. The original two metre high fence was, at this stage not of an acoustic barrier quality. Also, at this stage of design a significant number of the lots adjoining the common boundary drained from south to north. That is in the direction of the nursery land.32 [32] In what appears to have been the response to the applicants’ requirement that “all storm water runoff and sediment runoff must be detained on the development site 31 Ibid, Tab 29 at p 779. 32 Drawing number 2089 AKO1, Exhibit 4, volume 1, Tab 15; also evidence of Mr Ovenden T4-86 L1- T4-87 L30. -- 11 of 38 -- 12 and directed to a lawful point of discharge”,33 the first respondent’s agent, Ross Campbell and Associates (Qld) Pty Ltd wrote to the second respondent advising that:34 “After further discusses with our client regarding the drainage easements to the northern boundary of lots 19 to 28, it was agreed to lift the back of the lots up and grade towards the road. Therefore, catchment E will be flowing through the treatment area. Please note as catchment C is existing, we have not allowed for it in the treatable area for the basin. It will however flow through the basin.” (Emphasis added) [33] The reference to “lift the back of the lots up and grade towards the road” reflects the intention to introduce fill to the northern section of those lots so that they would no longer drain south to north but north to south towards the internal subdivisional road. The introduction of additional fill of course then introduced the need to increase the height of the retaining wall. [34] Accordingly, drawing 2089 AK01 was amended (2089 AK01A) to incorporate the following changes to the interface between the subject land and the nursery:35 (a) an increase in the height of the retaining wall from about one metre to two metres; (b) the introduction of additional fill; (c) the deletion of rear allotment drainage; (d) the retention of a two metre high timber fence on top of the retaining wall but now, as a consequence to the applicant’s concern about noise, at an acoustic barrier standard. [35] As the first respondent pointed out, the draft conditions included a condition 36 dealing with retaining structures which was in virtually identical terms to the Probable Solution P (1)(b)(ii) of the Excavation and Fill Code (EFC).36 However, to impose such a condition is one thing, to require compliance or at least an attempt of compliance is another. Further, as was pointed out on behalf of the applicants, to impose a condition that a Code be complied with does not mean that the application must have been assessed against the applicable Code as s 313 of the SPA requires. [36] On more than one occasion the first and second respondent pointed to the reference to the EFC during the approval stage as evidence in the fact that the second respondent in all material times, gave consideration to the EFC. 33 Ibid, Vol 5, Tab 9 P 1153. 34 Ibid, Vol 1, Tab 37 P 303. 35 Ibid, Vol 1, Tab 30, P 294. 36 Ibid, Vol 2, Tab 50, P409. -- 12 of 38 -- 13 [37] While I readily accept that the second respondent was aware of the relevance of PS1 of the EFC, for the reasons given below under the heading “Conflict”, while recognising its relevance there is little if any evidence that the second respondent sought to enforce any compliance with it. Indeed, nowhere does it appear that the second respondent had at any relevant time identified that there was conflict with the code let alone considered whether despite that conflict sufficient grounds to warrant approval existed. Conflict [38] In respect of the question of conflict, the engineers and the town planners who were called during the hearing of this application were consistently taken to the specific outcomes and probable solutions applicable to assessable development as prescribed in version 3 of the second respondent’s planning scheme.37 Those specific outcomes and probable solutions relevantly provided: Specific outcomes Probable solutions S1(1) excavation and fill- (a) does not reduce the amenity of adjoining properties through the- (i) loss of solar access or privacy (ii) intrusion of negative visual or overbearing impacts (iii) ensuring retaining structures (a) are constructed of materials that are of a high quality appearance (b) incorporate landscaping or other features to assist reducing their visual bulk and length… P1(1) excavation and fill- a) maintains the amenity of adjoining properties by- … (iii) ensuring retaining structures (a) are setback at least half the height of the wall from any boundary of the site (b) do not exceed 1m in height (c) are stepped or terraced to incorporate landscaping… [39] It is uncontroversial that the existing retaining wall is not stepped back from the boundary, is in excess of 1m in height and is not stepped or terraced to incorporate landscaping. It is also uncontroversial that while the retaining wall reflects current construction methodology, no attempt has been made to incorporate landscaping or any other meaningful features which might assist in reducing the wall’s visual bulk 37 Exhibit 6 at p 57. Version 6 can be found at p 428. -- 13 of 38 -- 14 and length. The bulk and length of the wall is such that it creates an intrusion of negative visual and overbearing impacts where it faces the nursery and does not maintain the amenity of the adjoining nursery land. That a similar wall and acoustic fence faces Birkdale Road along the subject land’s eastern boundary is of no relevance. Birkdale Road is not privately owned adjoining land but a busy arterial road. [40] The answers provided by Mr Schomburgk during his cross-examination made it tolerably clear that he accepted that the existing retaining wall was in conflict with the specific outcomes and probable solutions identified above. It also seemed implicit by the answers given by Mr Buckley during his cross-examination that he also accepted there was conflict with the probable solutions but, that on balance, the end result was a reasonable compromise between the interests of the applicants, the first respondent and the “future communities”.38 Mr Ovenden, the town planner relied on by the applicants, made it clear that he considered that the existing retaining wall was in conflict with the specific outcomes and probable solutions but accepted that the negative visual impacts associated with the retaining wall (and the fence on top of it) were primarily limited to the nursery and accepted that the retaining wall and the fence did not have any unacceptable impacts on the surrounding area.39 In this context it was not the retaining wall itself that Mr Ovenden considered the cause of the problem but the combination of the wall and the fence being on “one plane”.40 [41] I accept that the existing retaining wall with or without the associated acoustic fence conflicts in a material way with the relevant provisions of the second respondent’s planning scheme. That said, the negative impacts arising from the conflict is, at this point of time, primarily limited to bulk and scale issues and are confined to their impact on the applicants.41 There is no evidence that the current use of the land is to cease in the foreseeable future. Indeed, it has been described as the applicant’s “sole livelihood”.42 Further, it needs to be borne in mind that this is not a merits review where the extent of the conflict may have been sufficient to warrant stopping 38 T5-52 ll 17-47. 39 T4-83 ll 41-45: T4-84 ll 1-2. 40 T5-8 ll 15-20. 41 Refer to Exhibit 1, pp 142-143. 42 Exhibit 4, Vol 1, p 293. -- 14 of 38 -- 15 proposed works. Here the offending works have been in place since at or about March 2013. [42] Issues of conflict and whether there were sufficient grounds to approve development despite the conflict, should have been dealt with during the approval process.43 They were not. This matter is discussed below when considering whether the conduct of the second respondent was so deficient as to warrant the relief sought. Jurisdiction [43] The applicants’ case was that the second respondent failed to carry out any meaningful assessment of the wall and fence (the improper assessment point) and its decision to approve those works was so unreasonable as to be fundamentally defective (the Wednesbury point). According to the appellants these two points “overlap”. The improper assessment point [44] In their written submissions the applicants contended:44 “There are six considerations which strongly support the conclusion there was no assessment (in the sense just identified) of the ROL application against the EFC by the Council: (a) as the Council’s planner (Mr Schomburgk) observed, with reference to the EFC, the report which accompanied the ROL application noted that this would be dealt with at the OPW stage; (b) despite the extensive documentary disclosure, there is no documentary evidence that any council officer made an assessment of Wilson Four’s particular development against the EFC; (c) despite the clear notice that the applicants would rely upon the absence of such evidence, the Council made no attempt to call any evidence from any council officer involved with the Wilson Four application at any time to establish that there was any assessment against the EFC; (d) despite attempts by the Council and Wilson Four (and their witnesses) to suggest otherwise, the conclusion is inescapable that the development did conflict with the EFC, and that reinforces the conclusion that the general assessment was so deficient that the conflict was not detected at the time; 43 Section 326(1) of the SPA. 44 At paragraphs 47 and 62-64. -- 15 of 38 -- 16 (e) the later consideration by the Council of the development at the time of the Amended ROL approval reveals that an assessment of the particular retaining wall proposed had not earlier been made; (f) the northern retaining structure is such an abnormally striking piece of construction (due to its length, height and unattractive appearance) that any competent council officer could not fail to comment on that consideration if any proper assessment had ever been made. … It is also material that s 335 of SPA requires a decision notice to state whether the assessment manager considers the assessment manager’s decision conflicts with a relevant instrument and, if so, the reasons for the decision, including a statement of the sufficient grounds mentioned in s 326. The absence of such statements in the decision notice relating to the ROL approval is yet another indicator that a proper assessment was not carried out. Other indicators are: (a) the absence of any mention of the EFC in the team report, despite specific reference to other codes or specific overlays; (b) the fact that the plans showing the extent of fill and retaining structures were not provided to Council until after both the ROL approval and the OPW approval; (c) the fact that none of the documents provided by Wilson Four to the Council in respect of either the ROL application or the OPW application contain any clear statement of the extent of fill, or the height of the retaining wall, or the combined structure, on the boundary (thereby also explaining the failure of the Council to give proper, genuine and realistic consideration to the EFC); (d) the fact that the Council did give consideration to limits on the weight of the retaining wall and fence on the western boundary of the Wilson Four land (re Lots 1 to 4 and the detention basin), in the light of ‘Council’s policy… that all retaining walls must be a maximum 1m high’. Mr Schomburgk expressed the opinion that it was not uncommon to defer consideration of something like the EFC to the operational work stage. However, a common practice which does not comply with legal requirements provides no justification for the noncompliance.” (footnotes deleted) [45] That the works were code assessable was of particular significance according to the applicants. In that context I was referred to the decision of Brabazon QC DCJ in -- 16 of 38 -- 17 Westfield Management Ltd v Brisbane City Council & Anor45 where his Honour said: “In the case of code assessment, where there is no appeal, it is important that the statutory requirement on local authorities, to consider applications against the provisions of the codes, be strictly observed. If not, the expectations of all those who rely upon the provisions of IPA and planning schemes will be subverted in ways which they may well know nothing about.” The importance of “securing obedience to the planning laws” was a matter discussed in Woolworths Limited v The Warehouse Group (Australia) Pty Ltd.46 [46] After referring to decisions of this Court Lomas v Gold Coast City Council47 and Holcim (Aust) Pty Ltd v Brisbane City Council48 it was submitted by the applicants to the effect that the failure of the second respondent to assess the works against the EFC was so profound as to warrant both the ROL and the OPW approvals being set aside. Although, at least at this stage, the applicants are not seeking orders to that effect. [47] As observed earlier, it is important to bear in mind that this is not a merits review. In this context Brabazon QC DCJ in Westfield Management Ltd v Brisbane City Council & Anor said:49 “This is not an appeal. The Court has no power to consider the merits of the development proposal. Rather, the declarations sought require this Court to look at the effectiveness or otherwise of Council’s decision making process. It was accepted here that this Court’s declaratory powers could be used for that purpose. It has been done before. In Eshenko v Cummins [2000] QPELR 386, the Court had to consider an allegation that a house had been built in an unlawful way. In principle, it was held that: (a) Proceedings with respect to relief under the declaratory powers are analogous to judicial review proceedings. The Court is not directly concerned with the merits of the approval, but rather must consider whether the approval was validly given. (b) The onus of establishing invalidity rests with the applicant. (c) It is not open to the Court to substitute its own opinion for that of the Council unless the Council 45 [2003] QPELR 520 at [71]. 46 [2003] NSWLEC 31 at [20]. 47 [2007] QPELR 539 per Skoien SJDC. 48 [2012] LGERA 406 per Searles DCJ. 49 At [55] and [57]. -- 17 of 38 -- 18 approval is shown to have been (in that case) unjustifiable, based on irrelevant considerations or one that no reasonable Council could have granted. This Court is not a planning authority. It has no power to set aside the decision of the Council and replace it with its own opinion. It can only set aside the decision of the Council if that is as a result compelled by law. Usually if a decision is set aside, the matter will be referred back to the Council for further consideration, according to law, in very rare cases, where the end result is inevitable, there can be a direction to decide the application as a Court directs…” [48] As already observed, both respondents referred me to the numerous documents generated by them which were before the second respondent during the ROL and OPW approval process.50 After referring to all that documentation it was submitted, on behalf of the second respondent, that there could be no basis for concluding that those applications had not been assessed against the EFC. On behalf of the first respondent it was submitted:51 “When the decision of Council is considered in light of these matters, it is evident that Council had all the material necessary to properly assess the application, and was aware of the applicability of the Excavation and Fill Code.” On behalf of the second respondent it was submitted:52 “…It is correct that the planning report which accompanied the ROL application noted that the Excavation and Fill Code would be dealt with at OPW stage, but of itself that does not support a conclusion that Council did not consider the Excavation and Fill Code when assessing the ROL application. The Acknowledgement Notice clearly identified the Excavation and Fill Code as one of the codes against which the application was to be assessed. There was more than sufficient information available for an assessment of relevant matters under the Excavation and Fill Code and there is no reason to assume that such an assessment was not done.” [49] I am readily able to accept that the first respondent provided all necessary information and documentation to the second respondent. I also accept that both the first and second respondents were aware that the works had to be assessed against the EFC. However, as already observed, that is not to the point. The issue is whether there was in fact any proper assessment. 50 See for example, first respondent’s written submissions at paragraphs 51-65 and second respondent’s written submissions at paragraphs 77-96. 51 At para 58. 52 At para 99. -- 18 of 38 -- 19 [50] On the balance of probabilities I find that at the initial ROL and OPW approval stages the second respondent was sufficiently satisfied that the EFC had been materially complied with because the retaining wall was to be at or about 1 metre in height at its maximum.53 That is, the retaining wall would, to all intents and purposes, meet the second respondent’s general policy. According to Mr Fox, while a height of 1 metre was clearly not meant to be seen as a maximum, it was a “touch figure for a Council”.54 According to Mr McAnany the 1 metre height was a “basic policy”.55 [51] However, I am equally satisfied that once the reverse amenity issues were raised the focus of the second respondent was squarely directed towards solving those problems. And, notwithstanding repeated references to the EFC in the material, the proposed works were not assessed against that Code in any meaningful way, if at all. In this context the second respondent’s view about the revised retaining wall and acoustic fence was that the “substantial retaining wall and acoustic fence combination” was seen as assisting in resolving the “spray drift issue”.56 [52] During submissions Mr Houston referred me to the judgment of McClellan CJ in Centro Properties Ltd v Hurstville City Council & Anor57 where his Honour cited with approval the principles stated in Weal v Bathurst City Council:58 “In Weal v Bathurst City Council [2000] 111 LGERA 181, the Court of Appeal divided over a challenge to a development consent granted with respect to a proposed rail freight terminal. At issue was whether the Council had considered the impacts of noise from the proposal. Giles and Priestly JJA came to the view that the council’s discretion had miscarried. Mason P came to a contrary view. However, as Priestly JA makes plain, the principles which govern the approach that a Court should take in the event of a challenge with a subject of substantial agreement. A summary of those principles is useful and would include the following:  the onus falls on the challenger to satisfy a Court that the relevant discretion has miscarried;  when exercising its decision-making power, an administrative body must give ‘proper, genuine and realistic consideration’ to the merit of the matter… Mere advertence to a matter may not be sufficient…; 53 Probable Solution (1)(a)(iii)(b). 54 T3-80 ll 1-9 and T3-81 ll 15-34. 55 T4-38 ll 1-13. 56 Exhibit 4, Vol 5, Tab 13. 57 (2004) 135 LGERA 257 at [36] to [37]. 58 (2000) 111 LGERA 181. -- 19 of 38 -- 20  a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues…;  legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;  generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it;  when a challenge is based upon Wednesbury unreasonableness a stringent test is applied… the decision must be devoid of plausible justification…;  when it comes to a consideration of whether the decision-maker has properly weighed up relevant considerations which it has itself identified, a Court must proceed with caution ‘lest it exceed its supervisory role by reviewing the decision on its merits’…;  where there is no direct evidence of a consent authority’s consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration…;  although the decision-maker ‘can take account of a relevant consideration by reference to a previous decision… this does not mean that it does not have to address the issue itself’ and the previous decision must ‘be enlivened in the consideration of the application before it for decision’…” (citations deleted – particular emphasis was placed on the passage highlighted). [53] While I agree that in cases such as this, particularly where there is no direct evidence on the point, an adverse inference should only be drawn after very careful consideration. On the evidence before me I am satisfied that such an inference can be drawn against the second respondent. The retaining wall and acoustic fence combination is so starkly in conflict with the EFC that some indication that that issue had actually been given consideration ought to have become apparent during the course of the evidence. It did not. As Mr Schomburgk observed, there were a range of solutions available.59 No doubt one or more of those other solutions would be likely to be more compliant with the EFC than the subject works. 59 T5-34 L 11. -- 20 of 38 -- 21 Notwithstanding the existence of a range of possible solutions, it seems sufficiently clear to me that no other option to address the reverse amenity issues was considered. Jones v Dunkel [54] During his opening Mr Gore QC made it abundantly clear that in the event that the second respondent elected not to call evidence from an appropriate council officer, he would be inviting me to draw inferences, either adverse to the second respondent or in favour of the applicants. No such evidence was called thus the following submission was made:60 “It is at this point that the principle in Jones v Dunkel (1959) 101 CLR 298 comes into play. The principle is that any inference favourable to the applicants for which there is ground in the evidence may be more confidently drawn by this court when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the opposing party, and the evidence at the trial provides no sufficient explanation for that failure. That is the situation here. Particularly when challenged to do so, it would be such a simple matter for the Council to call a Council officer to give evidence that he/she carried out an assessment in the relevant sense against the EFC. It would be such a simple way of demolishing this part of the applicant’s case. Nor was there any suggestion that a relevant witness is no longer available to be called.” (footnotes deleted) [55] The application of the rule in Jones v Dunkel in the context of this proceeding was hotly disputed by both respondents. The onus is, of course, on the applicants and it would be an error to use the silence of the Council, in this regard, to absolve the applicants of that responsibility or to fill in any gaps in their case.61 [56] In Rossi v Westbrook & Anor62 Fryberg J (with Fraser and Gotterson JJA agreeing) gave careful consideration to the application of the rule in Jones v Dunkel. His Honour said: “[30] In Minister for Immigration and Multicultural Affairs v Jia Legeng, Callinan J wrote: ‘317. [T]he statement of principle in Jones v Dunkel is no more than a particular instance of the old rule stated by Lord Mansfield in Blatch v Archer [(1774) 1 Cowp 63 at p 65; 98 ER 969 at p 970] and cited recently by this Court in 60 Applicants’ written submissions para [51]. 61 White v Cabanas Pty Ltd (No 2) (1970) QR 395 at 405 per WB Campbell J: Jones v Dunkel per Menzies J. 62 [2013] QCA 102. -- 21 of 38 -- 22 Vetter v Lake Macquarie City Council [(2001) 202 CLR 439], that evidence has to be weighed according to the circumstances of, as well has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it.’ That was confirmed by the majority judgment in Australian Securities and Investments Commission v Hellicar. After referring to Lord Mansfield’s dictum in Blatch v Archer, the majority wrote: ‘167. This court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used.’ [31] The majority also wrote: ‘165. Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles ... .’ (Emphasis added) [32] The High Court held that the New South Wales Court of Appeal had wrongly applied Blatch v Archer in the circumstances of the case. The issue was whether a draft ASX announcement had been tabled and approved at a directors’ meeting. ASIC had tendered admissible evidence that, if accepted, showed that the draft announcement had been tabled and approved. The Court of Appeal had held that ASIC‘s failure to call a witness diminished the cogency of that evidence. The majority held: ‘170. The fact that ASIC did not call Mr Robb did not affect (in the sense of diminish) the cogency of the proof which ASIC advanced. Yet that is the conclusion the Court of Appeal reached: that the cogency of ASIC‘s proof was diminished because Mr Robb was not called to say no more than ‘I do not recall’.’ (Emphasis in original) As already observed, the quality of Mrs Rossi‘s evidence was quite different. In relation to the issues in question, it involved matters of hearsay and inference. [33] Some idea of the sorts of cases which, conformably with Hellicar, may attract the general principle in Blatch v Archer can be gained from the cases which the High Court distinguished: ‘169. … This was not a case where ASIC‘s case depended on inference, let alone on ‘uncertain inferences’, or where -- 22 of 38 -- 23 there was a question about whether ‘limited material is an appropriate basis on which to reach a reasonable decision’. It was not a case where ‘the missing witness would be expected to be called by one party rather than the other’ or where it was known that ‘his evidence would elucidate a particular matter’.’ (Emphasis in original) [34] In my judgment this was a case where, in accordance with accepted principles, Mrs Rossi’s failure to call Mr Rossi could ‘properly [have been] taken into account in determining whether [Mrs Rossi had] proved [her] case to the requisite standard’. It was a case where there was a genuine question about whether her testimony standing alone was an appropriate basis on which to reach a reasonable decision and it was a case where she would be the party expected to call him. [35] There are in my judgment at least three results which flow from the application of the general principle in Blatch v Archer. First, as is said in Cross On Evidence, the rule: ‘permits an inference that the untendered evidence would not have helped the party who failed to tender it. It entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken.’ McMurdo J quoted that passage and seems to have used the evidence in that way. It is uncontroversial. [36] Second, inferences available on the evidence which has been given against the party not tendering the other evidence, or which favours that party‘s opponent, may more confidently be drawn. Again I apprehend that proposition to be uncontroversial. [37] Third, it seems to follow from Hellicar that inferences proposed by the party not tendering the other evidence may more readily be rejected.” (footnotes deleted) [57] There can be little room for doubt that, as Mr Gore QC pointed out, had the second respondent called an appropriate officer who was able to give direct affirmative evidence about the approval process, the applicants’ case would have been made that much more difficult. On balance, while I do not consider it in any way decisive, the absence of such evidence is a matter I am entitled to take into account as a circumstance in favour of drawing the inference, otherwise based on the evidence presented during the course of this proceeding, that the second respondent had not assessed the subject works against the EFC. To adopt the terminology of Fryberg J in Rossi the absence of such evidence gives me more confidence in -- 23 of 38 -- 24 deciding this issue in favour of the applicants.63 Therefore, on balance, I find that the Council failed to properly assess the ROL and OPW applications against the EFC, insofar as the retaining wall and fence are concerned, in granting these approvals. [58] Before moving to consider the Wednesbury point I should note that I reject the submission made on behalf of the first respondent that it was not open for me to grant relief limited to the retaining and the acoustic fence. That is, if I were to set aside the ROL and/or the OPW approvals I could not isolate the subject works but would have to make declarations declaring the whole of the application/approval process invalid. As discussed with Mr Hughes QC during final submissions, such an approach could lead to absurd consequences. That is particularly so in the circumstances of this case, where substantial infrastructure is in place and a number of dwellings have been constructed and are now occupied.64 [59] I also reject the submissions made on behalf of the first respondent that:65 “Finally, it should be observed that the constant reference by the applicants to requirements of both the Probable Solutions and the Specific Outcomes in the Council’s Excavation and Fill Code ignore: (a) the proposition that such requirements address only ‘retaining walls’ and not the combined effect of a retaining wall and a fence which were so obviously required for different purposes in this case (albeit both related to the continued flower farm operations)…” [60] When assessing impacts on amenity of adjoining properties, an issue such as “intrusion of negative visual or overbearing impacts” would make it necessary to consider the retaining wall in its context, including what was going to be constructed on top of it. To isolate the retaining wall and ignore what was to occur above could lead to absurd consequences. The Wednesbury point [61] On behalf of the applicants it was submitted that this was one of those “rare cases” that satisfied the Wednesbury test.66 Reference was made to the Minister for Immigration v Li67 where Hayne, Keifel and Bell JJ said: 63 Rossi v Westbrook & Anor [2013] QCA 102 at [36]. 64 See generally, T6-40. 65 At paragraphs 22(a), 47(a) and 99(a). 66 Applicant’s written submissions at para [72]. 67 (2013) 249 CLR 332 at 68. -- 24 of 38 -- 25 “Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury as being criticised for ‘circularity and vagueness’, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of judicial discretion, which may be observed was settled in Australia by House v The King before Wednesbury was decided.” (footnotes deleted) [62] Often to succeed in a review of a judicial discretion the applicant would need to identify an error in the reasoning of the court below such as acting upon a wrong principle, taking into account extraneous or irrelevant matters, failing to take into account material matters and acting upon mistakes as to fact. However, in House v The King68 the plurality stated: “It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [63] After citing the above passage from Li it was submitted on behalf of the applicants:69 “All-in-all the approval of the Northern Retaining Structure is a decision that is so unreasonable that no reasonable assessment manager could have made the decision. Consequently, the ROL Approval and the OPW Approval are defective on this ground also.” [64] Notwithstanding my findings concerned with the “improper assessment point” I cannot accept that submission. It is true that the second respondent failed to act reasonably in failing to assess the approval against the EFC. However, in my opinion, it could not be said that the decision was an irrational one, or one “devoid 68 (1936) 55 CLR 499 at 505. 69 At para [80]. -- 25 of 38 -- 26 of plausible justification”.70 The subject works were the consequence of the respondents and, in particular, the second respondent, responding to the genuine reverse amenity issues raised by the applicants. [65] Save for some reservations discussed below, I consider the evidence of Mr Schomburgk and Mr Buckley accurately reflects the situation. During cross- examination by Mr Gore QC, Mr Schomburgk gave the following evidence:71 “MR GORE QC: But what I’ll be suggesting to his Honour is that the problem that’s been created hasn’t been created by my clients, it’s been created by your client and the Council, and as a result, one can’t be too sympathetic, I’m suggesting to you, that there might be some difficulties in resolving the problem that your client and the Council have created? MR SCHOMBURGK: I’m not sure that’s right because from the material that I’ve seen, what the Council sought to do was deal with the issues raised by your client with respect to reverse amenity in a way that they thought appropriate. This is the solution – the one we see in front of us when we drive out there – is the solution that was arrived at. And in my opinion, that is a – a reasonable conclusion – a decision – that could be arrived at. I certainly agree that there could be a range of other solutions that could have been arrived at. This was one that was put forward through an iteration – an iterative process by the parties – all the parties – and ultimately arrived at as one that sought to deal with all the issues from both sides, from the Wilson Four land and from the Birkdale Flowers land. MR GORE QC: But, Mr Schomburgk, to get now to what this case is really all about in terms of judicial review, you can’t point to any evidence that any council officer, in fact assessed the very issues that I’m raising with you now. There is not a skerrick of evidence that any officer sat down and said to himself, ‘gee, it’s going to be a big structure. It’s going to be 250 metres long. It’s going to be up to four and a 70 McClellin CJ in Centro Properties at [37] citing with approval Minister for Immigration and Ethnic Affairs v Toteoh (1995) 183 CLR 273 at 290 and Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd (1996) 91 LGERA 31. 71 T5-34 ll 1-33. -- 26 of 38 -- 27 half metres high. It’s going to be in a single plane. It’s not going to be stepped or terraced. It has got no landscaping in front of it. It has got no relief on its face. Gee. There’s no alternative solution put forward. It’s a dreadful looking thing but I think it’s okay?’ MR SCHOMBURGK: There is nothing that goes as far as what you’re saying. It does have relief along its face. There is a solid face on the bottom half and a different face on the northern half – on the top half. Sorry. It seems to me, though, that a Council – a reasonable Council assessment of what it said we need to take into consideration the issues raised by the Birkdale Flowers land. This is the proposal that has been put forward by Wilson Four land. How do we marry these two together? There’re now going to drain it away from the Birkdale Flowers land. That means it goes a bit higher but that would seem to solve the problem with the reverse amenity effects. It should be okay. I can see how a council officer could reasonably have come to that view.” [66] Again, under cross-examination by Mr Gore QC, Mr Buckley gave the following evidence:72 “MR GORE QC: But it’s a material element in the landscape which has been imposed by the neighbour on the development of the flower farm land. It’s not something the flower farm owner has done to itself? MR BUCKLEY: No. But it – as I understand the file, the existence of fill to drain the land and the need for a consideration of addressing reverse amenity complaints to enable that use to operate in the way that it’s been operating for however long it’s been there with things that it flagged with the Council itself, and I think it’s a planning conundrum about addressing a short-term issue, and having an eye to the future. And the call – the judgment call that was made here with that fence I think is a fair one, having regard to the importance (1) of not blighting a local industry that employs people, well known – people get their flowers there on Mother’s Day. All that sort of stuff. 72 T5-52 ll 32-44. -- 27 of 38 -- 28 They’ve got to keep an eye – they don’t want to do the wrong thing by it; nor do they want to do the wrong thing by future communities in terms of residential amenity and ability to develop the site.” [67] While the response to the reverse amenity issues may have been a well-intended one, I am unable to agree that it was a “fair one”. As I have already stated, one of the range of other solutions referred to by Mr Schomburgk, if any assessment against the EFC had been carried out, would have likely resulted in a less overbearing and visually intrusive combination of the retaining wall and fence. For the reasons given, I am not sufficiently satisfied that the subject approvals were so unreasonable that no reasonable assessment manager could have reached those decisions. Accordingly, the Wednesbury point fails. In the event that I am wrong about this and the conduct of the second respondent was so unreasonable as to warrant relief in accordance with the “Wednesbury principle”, for the reasons given below it would not have affected the outcome of this proceeding in any event. The encroachment [68] While the final relief sought did not require me to make any orders concerning the encroachment issue, I consider it appropriate nonetheless to record my views on this matter. [69] The evidence of Mr Gould together with the surveyors called by the parties in this case shows that the encroachments are relatively minor and largely confined to ground level or below.73 [70] I was not taken to any evidence that showed that these encroachments in any way had any significant negative impact on the day to day operation or profitability of the nursery. The bulk, if not all, of the encroachments lay between the southern side of an access road that runs east-west the entire 250m length of the nursery property and immediately to the north of the retaining wall. That of course does not excuse the encroachments but their extent and impact are relevant considerations. [71] At the end of the day though it is not the extent of and the impact caused by the encroachments that has led me to conclude that it would be inappropriate for me to 73 T2-53 ll 30-44; T2-59 per Mr Gould; T4-69 ll 27-40; T4-73 ll 5-34 per Mr Worrell, the surveyor relied on by the first respondent. -- 28 of 38 -- 29 make any specific orders concerning them. The relief sought in the applicants’ amended application pursuant to s 456 of the SPA was that the first respondent be required to identify and remove the encroachment.74 The relief sought pursuant to s 604 was in identical terms.75 [72] The very same encroachments are the subject of proceedings in the Supreme Court. During the course of the opening of Mr Gore QC the following exchange took place:76 “His Honour: And so with the encroachment, what was the consequence of Justice Jackson’s conclusions and orders, if indeed his Honour made any? Mr Gore: His Honour ordered that the encroachments be removed. That’s what Wilson Four (the first respondent) had in effect applied for; they fell on their sword, in that respect. Your Honour, some of that material is in volume five… if your Honour goes to volume five of Exhibit four, if you go to tab six, there’s a copy of the order at page 1143. His Honour: Right. And have any of those works started? Mr Gore: Not that I’m aware of, your Honour. Mr Skoien reminds me that they’ve made efforts to identify the encroachment and some of the material from Mr Worrell and Mr Mundy that I’ve taken your Honour to are obviously pertinent to that; they need to know themselves precisely what needs to be removed. But the process is incomplete at this stage.” [73] The orders by Jackson J were made, by consent, on 24 April 2014.77 More than six months later the application in these proceedings was filed on 8 December 2014 to include essentially the same relief in respect of the same encroachments. The relief for further orders and declarations was made by the filing of an amended pleading on 23 July 2015. While I have no direct evidence on the point a likely inference is that the orders made by Jackson J were the consequence of Supreme Court proceedings commenced by the first respondent on 15 October 2013 seeking, among other things, the granting of easements in respect of the encroachments.78 74 At para 1A(g)(i)(A). 75 At para 2(a)(i). 76 T1-42 ll 6-26. 77 See Exhibit 4, Vol 5 at p 1143. 78 See Exhibit 4, Vol 4, Tab 12. -- 29 of 38 -- 30 [74] What has occurred is that pursuant to the orders made by Jackson J in the Supreme Court proceedings, not only was the same relief sought, but steps were taken pursuant to that order to remedy the situation as far as practicable. I not only consider it inappropriate to make specific orders of the type sought concerning the encroachment given the extant orders made in the Supreme Court but, put bluntly, any orders that I make would be redundant and/or superfluous. It is not as if the Supreme Court lacks the power to deal with noncompliance with its orders. That said, it is contended on behalf of the applicants that the encroachments are still a relevant consideration to the exercising of the Court’s discretion, on the basis that if I grant the relief sought the encroachment would be rectified when the other remedial work was carried out.79 Consideration of relief and discretionary grounds [75] As Mr Hughes QC seemed to predict, ultimately this case turned on discretionary matters. [76] The clear failure to assess the approvals against the EFC could, in the light of cases such as Lomas80 and Holcim81 have resulted in the approvals being set aside. However, that is not what the applicants want at this stage and it is, of course, necessary to consider all the relevant matters that might influence the exercising of the discretion under s 456 of the SPA which relevantly provides: “Court may make declarations and orders (1) Any person may bring a proceeding in the court for a declaration about any of the following- (a) a matter done, to be done or that should have been done for this Act … (e) the lawfulness of land use or development … (6) The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1). (7) The court may also make an order about a declaration made by the court. …” [77] To enliven the orders powers in s 456(7) of the SPA and grant the relief sought by the applicants, I would first need to make declarations. In considering whether to 79 Written submissions; para [89]. 80 Lomas v Gold Coast City Council [2007] QPELR 53. 81 Holcim (Aust) Pty Ltd v Brisbane City Council [2012] LGERA 406. -- 30 of 38 -- 31 exercise my discretion and make declarations based on my findings above about the conflict point and the improper assessment point, it is appropriate to take into consideration whether I am prepared to exercise a further discretion and grant the relief sought by the applicants, or make any other orders. Declarations without subsequent orders would be of little use and may result in uncertainty for the parties. [78] While the facts in this case are poles apart from the facts the Court was concerned with in Bon Accord Pty Ltd v Brisbane City Council & Ors, I respectfully agree with the following observations of Rackemann DCJ:82 “The remedies which the applicant seeks are discretionary. The court is not compelled to grant the relief, even if the applicant is successful in establishing that one or other of the approvals was not validly given. This is a case in which discretionary considerations loom large. Where work has been performed without necessary approvals, the court’s function in determining what is to be done, in response to proceedings of this kind, is to perform a balancing exercise with a view to matters of both private and public interest. The power is discretionary. Certain ‘guidelines’ for the exercise of the discretion were formulated by Kirby P in Warringa Shire Council v Sedevic but, as those guidelines recognise, the discretion is both wide and unfettered. It is not limited to particular classes of cases or to special cases and it is undesirable to endeavour, by drawing upon decisions in differing fact situations, to catalogue or classify all the circumstances which would enliven the exercise of the discretion. Of undoubted significance, as counsel for the applicant emphasised, is the importance of what Kirby P referred to as the ‘legislative purpose of upholding, in the normal case, the integrated and coordinated nature of planning law’. As Kirby P said: ‘The obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124 the equal and orderly enforcement of the Act would be undermined…’” (footnotes deleted) [79] Not surprisingly, his Honour noted the relevance of a party who acts in good faith when compared to another who knowingly, or with careless indifference, acts contrary to the law or “jump the gun” ahead of the approval process.83 The discretionary factors 82 [2010] QPELR 23 at [173]-[175]. 83 Ibid at [190] and [191]. -- 31 of 38 -- 32 [80] The applicants submitted that there are discretionary grounds favouring the grant of relief in the event that I make the declarations sought.84 Firstly, they submitted that the retaining wall and fence creates existing amenity and engineering impacts upon the neighbouring nursery land, and would continue to create such impacts on the expected and planned residential use of the land.85 [81] The evidence is clear that there are existing visual amenity impacts on the nursery land related primarily to bulk and scale issues. It is relevant that the impact of the conflict with the EFC is limited only to the applicants, and not the surrounding area. The applicants do not live on site and there was no evidence of any impacts on the day-to-day operations of the nursery or on its profitability. [82] Mr Houston submitted on behalf of the second respondent that the “impacts of the aesthetics of the existing wall ought to be seen in the context of the existing agricultural use.”86 With respect to future impacts, it is uncontroversial that the nursery is likely to be developed for residential use at some point in the future, although on the evidence, this is not planned to occur in the foreseeable future. When it is developed, this would obviously result in a greater number of people being impacted by the retaining wall and fence. Mr Buckley gave evidence that, over time, as the nursery land is subdivided and developed for residential use, the visual impact of the retaining wall and fence and the ability to see it will be reduced as houses and dividing fences are built and people’s backyards are filled with gazebos etc.87 This evidence was not shaken in cross-examination.88 Also, if the retaining wall and fence were thought to be a negative by the developer, it is very likely that they would take steps to offset this by, as an example, carrying out landscaping, albeit at a cost. I accept that the overall visual impact of the wall will diminish over time when developed for residential use, albeit a greater number of people will be impacted. [83] The applicants further submitted that the retaining wall and fence has likely conferred benefits upon the first respondent in respect of the cost of construction 84 See applicants' written submissions paragraphs 88-93. 85 Ibid at para 76. 86 Written submissions at para 127(i). 87 T5-40 ll 27-47. 88 T5-51 ll 7-38. -- 32 of 38 -- 33 and the extent of land available for residential development. However, there is insufficient evidence to warrant such findings to be made. [84] The applicants also submitted that the second respondent’s failure to consider certain matters in the assessment process may well have been caused, or contributed to, by the failure of the first respondent to provide clear and accurate documentation in relation to the extent of fill and retaining structures. Again, there is insufficient evidence to warrant a finding of fact to that effect. Furthermore, the information request stage of the assessment process provides assessment managers with an opportunity to seek further information, or clarify information already provided by applicants. [85] The applicants also submitted that the retaining wall and fence contrasts with approved retaining structures along the western boundary of the Wilson Four (where the height of both the retaining wall and fence above were limited). Whilst I am prepared to make such a finding based on the evidence before me, as I have already stated, I do not think anything turns on this. [86] The applicants also submitted that the respondents have not adduced any evidence to suggest that modification of the retaining wall and fence to comply with the EFC is not practical. However, the onus is on the applicants to prove that it is practical. As discussed above, I am prepared to find that the proposed remedial works sketched by Mr Gould in Exhibit 13 are feasible from an engineering perspective. However, on balance, I am not satisfied that the proposed remedial works in Exhibit 13 would be the most appropriate solution (as defined in the applicants written submissions). During the course of the evidence, another alternative solution was raised by Mr Ovenden in cross-examination: “MR HUGHES: All right. So that’s what you envisage, 15 doors in the acoustic fence and with – in an area it would be – entering into a small area at the back of the allotments a couple of metres wide that would be on the private property of the land owner but the landscaping wouldn’t be seen him, her or it? MR OVENDEN: Look, I think that’s one solution. I think an alternative solution potentially is the acoustic barrier above the one metre high section of retaining wall. I mentioned a couple of times -- 33 of 38 -- 34 now in evidence that my reading of the acoustic report was that – that the proposed Wilson Four site was one metre above the – the Birkdale Flowers land and the – when you look at figure 2 in the acoustic report, the acoustic barrier had to be two metres above ground level. So potentially you could actually have that at the lower – the lower level as acoustic barrier as an alternative." [87] During examination-in-chief, Mr Shomburgk had the following to say about both proposals: “MR HOUSTON: In the context of the exhibit 24 and 25 that you just looked at, what do you say about the difference of the – in amenity that might be brought about that option including, firstly, the acoustic fence at the front on top of the one metre retaining wall, another two metres. So a three metre high structure there in place of what’s presently constructed is the first option and the second one, if the acoustic fence were moved back, then one would require then a safety fence of some construction along the top of the one metre wall, the two metre terrace up a metre and then extending up another two metres or whatever might be required for acoustic purposes? MR SHOMBURGK: Dealing with the first option first, it seems to me that the debate here then becomes whether a three metre fence and wall has any better outcome – or the extent to which it’s a better outcome than a four metre high fence and wall. We would be debating about the one metre difference. Going back to your second option, where the acoustic wall is placed up on the higher part, that creates a greater problem, in my opinion, because it would mean that access down to the terrace for maintenance of the landscaped area – if it is to be landscaped – is problematic. Again, 13 people would have to go down there. How would they get down there? They would have to construct their own individual steps and it would be behind – it would be basically out of sight for each of those 13 property owners. The potential for that landscape area to be maintained, I would -- 34 of 38 -- 35 have thought, would be negligible and it would be unlawful for the flower farm owner to go into that area to seek to maintain it when he would – sorry, he or they – would be the only ones who would get the benefit of that landscaping in that case. So they would be confronted with a one metre high retaining wall, some sort of safety fence, some probably weed-infested area – a poorly maintained area, in my opinion – behind that and then a wall and then another two metre high fence. I think that would be a poorer outcome for all parties than what’s currently being proposed – what exists.” [88] In this context it is of some significance, but by no means decisive, that a more straightforward and less extensive solution may have been acceptable to the applicants. As of late March 2013 it appears that an acceptable solution may have been for the first respondent to landscape its eastern boundary near the entrance to the Flower Farm and to provide “appropriate screening” of the wall and fence along its southern boundary.89 [89] To put it bluntly, I am neither satisfied that the proposed remedial works are a proportional response to the mischief caused by the existing structures nor that they would, at the end of the day, result in a materially better outcome for the applicants or future occupants of the land when subdivided. [90] The applicants also submitted that the existence of the encroachments and the Supreme Court orders further justified the making of orders for rectification works to the retaining wall to comply with the EFC since substantial works are required to carry out the Supreme Court orders. It was submitted that the works could be done at the same time, and in reliance on evidence from Mr Gould, that remediation works could potentially allow the encroachments to be removed without such substantial works.90 It was also noted by the applicants that the respondents were silent on this matter. Whilst these submissions need to be considered the evidence is such that, in the scheme of things, this matter does not weigh heavily in the balancing of discretionary factors. 89 Exhibit 4, Vol 3, PP 758 and 779. 90 Applicants’ written submissions para [88]. -- 35 of 38 -- 36 [91] On the other hand, there are a number of discretionary factors that weigh heavily against the grant of relief sought by the applicants. [92] This is not a case where the relevant approvals were not sought. Consultants were engaged by the first respondent to attend to the applications and requests for information. I agree that this is a relevant factor to take into account. This is not a bad faith case on the part of any of the parties. [93] The approvals have been extant for a considerable period of time, in excess of four years with respect to the ROL approval. The ROL and OPW approvals have been already acted upon by the first respondent, and have been done so in good faith, and at significant cost. Money in the order of $2.6 million has been spent in reliance on the approvals.91 It is clear on the evidence that the applicants were aware that the first respondent had acted in reliance on the approvals. In my view, these are important considerations that must be given weight. Further, despite the wall and fence being an issue since January 2013 no proceedings were commenced in this court until 8 December 2014, and even then the only relief sought was in respect of the encroachment. It was not until 23 July 2015 an amended originating application was filed dealing with the amenity issues, effectively resulting in a delay in the order of two and a half years. The first respondent submitted that this delay and lack of explanation for it is a relevant factor to consider. I agree. [94] Third parties would also be affected by the grant of the relief sought. As raised in the course of the proceedings, the potential impacts on third party landowners, who have already bought and developed on lots in the Wilson Four development, must be considered. It is not just the new landowners, but also the registered mortgagees who must be considered.92 If I were to make any orders, I would need to consider the protection of third party interests in doing so. [95] The applicants have rightly tempered the relief sought as a way of protecting these third party interests. However, in doing so, there is now considerable uncertainty surrounding the nature of the relief sought. . 91 First respondent’s written submissions, paragraph 91(d) and Exhibit 2, Affidavit of David Rees Spiro Exhibit DRS1 – DRS8. 92 Ibid at para 91(f). -- 36 of 38 -- 37 [96] In relation to this uncertainty and the changing nature of the relief sought, the second respondents made submissions as follows:93 “In the present case, the following circumstances militate against granting of the relief sought:- (a) the retaining wall was constructed in or about January to March 2013; (b) when the Applicants initially raised their concerns, both personally, and through appointed legal representatives, they did not identify or suggest the extreme impacts now alleged to result from the construction of the wall; (c) when proceedings were commenced in December 2014, the relief now claimed was not sought; (d) the claims of unlawfulness of the Council’s decision and orders for rebuilding of the wall were not made until August 2015; (e) there were clear practical difficulties with the process sought by the orders in the AOA (including impacts on third parties), and those claims have now virtually all been abandoned; (f) despite the amendments that resulted in the AOA being made in August 2015, the Applicants’ material provided no design or explanation of how the relief it sought (implementation of the Probable Solution), would operate in practice; (g) as set out above, the proposed orders are based on a roughly drawn section, produced by one of the Applicants’ witness on the second day of the hearing, the orders now sought lack certainty, will cause delay, may require further litigation (in respect of issues not yet able to be identified) and may require ongoing involvement, and possibly supervision, of the Court; (h) the proposed terrace gives rise to questions, and potential problems, in respect of maintenance and also privacy/overlooking); (i) alleged impacts of the aesthetics of the existing wall ought to be seen in the context of the existing agricultural use; (j) potential impacts on possible future residential development will be reduced as a result of division of allotments into subdivisions (with fencing) and measures likely to be taken by subsequent purchasers to integrate the wall structure with likely backyard activity.” (footnotes deleted) [97] I agree with the general thrust of those submissions highlighted. The relief sought envisages a number of steps. First, the making of the declarations sought and “foreshadowing” the making of orders requiring remedial works to be carried out. Second, for the Court to “indicate” that it considers works of the type envisaged in 93 At para 127. -- 37 of 38 -- 38 Exhibit 13 are appropriate. Third, to make directions designed to encourage/force the parties to agree on the works to be carried out. Fourth, in the absence of agreement hear evidence, decide the matter and make appropriate orders. [98] Given the stance taken by the applicants and first respondent since June/July 2013, I have little faith in them reaching any form of agreement. Further litigation is very likely if not inevitable. Even with the best efforts of the parties and the Court, final orders as to the nature and extent of the remedial works would be unlikely to be made much before June/July of 2016. To leave the first respondent in its present situation concerning the future development of its balance lands is not warranted in the circumstances of this case. [99] As already discussed, as presently envisaged the proposed remedial works would require up to 13 individual lot owners to carry out landscaping maintenance behind the re-located acoustic fence for no perceptible personal benefit. Or, as is more likely, the area between that wall and the boundary with the nursery farm will, in effect, become an abandoned no man’s land. [100] Finally, for the reasons given, I am not satisfied that the proposed remedial works are a proportional response nor would they result in a materially better outcome. [101] In my opinion, there are considerable discretionary grounds that weigh against granting the relief sought by the applicants. [102] For the reasons given the orders of the Court are: 1. The application is dismissed. 2. I will hear from the parties as to consequential orders if necessary. -- 38 of 38 --