Ebrahim v Steffan Pty Ltd [2015] QCAT 375

CITATION: Ebrahim v Steffan Pty Ltd [2015] QCAT 375 PARTIES: Ismail Ebrahim (Applicant) v Steffan Pty Ltd (Respondent) APPLICATION NUMBER: MCDO46-15 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 7 August 2015 HEARD AT: Pine Rivers DECISION OF: Member Favell DELIVERED ON: 11 September 2015 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: Minor civil dispute – town planning application – where impact accessible – where application not supported – withdrawal of application – whether misleading conduct – whether misconduct, misstatement or misapplication - advertisement on website – whether application misconceived – section 268 of the Sustainable Planning Act 2009 (Qld). APPEARANCES and REPRESENTATION (if any): APPLICANT: Ismail Ebrahim RESPONDENT: Alexander Steffan REASONS FOR DECISION [1] Mr Ebrahim wished to reconfigure a lot at 674 Beams Road, Carseldine. For that purpose he approached Steffan Pty Ltd for a fee proposal and advice on whether the Brisbane City Council would allow the subdivision of the Beams Road lot. -- 1 of 6 -- 2 [2] Steffan Pty Ltd provided a fee proposal and was engaged to prepare an application for a reconfiguration of the lot. The fee proposal dated 23 July 2014 was a town planning fee proposal for the reconfiguring of the lot where the lot was in the low density residential area resulting in a lot less than 400m2. It provided for an impact assessable town planning application and preparation as well as provision for public notification and advertising. The professional fees in the proposal were $3,850.00 inclusive of GST with the council fees and charges being $3,200.00. [3] The proposal was provided to Majorca Investments Pty Ltd. The applicant was a director of that company and in the proposal identified as a person responsible for the payment of fees. [4] On 21 August 2014 the applicant accepted the proposal and gave consent for Steffan Town Planning to lodge a town planning application for the reconfiguration of the lot. [5] The terms of the engagement included a paragraph as follows: “Where the proposal includes an application to council than, you acknowledge and agree that Steffan Town Planning does not guarantee success of the application and Steffan Town Planning is not responsible for or take any liability for councils request, decisions, time frames, and actions.” [6] Initially the applicant made enquiries about whether a duplex was possible on the site. By an email of 25 June 2014 Alexander Steffan advised as follows: “Unfortunately a duplex isn’t possible but as you are (almost – 217m) within 200m walking distance of a centre zone more than 2000sqm in size you can do a subdivision down to 300sqm. This application will be impact accessible. Even though you aren’t exactly 200m from the centre zone your subdivision will also be greater than 300sqm each. The costs associated are: $3,500.00 (council fee – 13/14 financial year) and our fees would be approximate $3,500.00 plus GST with a 3 to 5 month turn around. Furthermore, council will still charge you for infrastructure contribution for approximately $27,000.00. Let me known if you would like me to send over a fee proposal.” [7] On the 27 June 2014 in response to further questions from the applicant Alexander Steffan advised: “it is only 17m from being acceptable to council so I would imagine we would have relatively good chances of approval. Maybe an 80 per cent chance of being successful. It will take approximately 4 months to turn around as it is impact assessable and requires public notification…etc. A subdivision usually costs between $50,000 to $80,000 in total from start to finish. It really depends on where all the infrastructure is…etc. We do not do project management so we couldn’t assist with the costings after the subdivision has been approved. The costs I have already mentioned will be applicable to get the planning approval. Usually council will let us know pretty quickly whether they are going to support an application or not, once we find out we can withdraw the applicant and get you (usually) a 50 per cent refund of the -- 2 of 6 -- 3 council fee. We would also not charge the additional 40 per cent of our fees either. We would find this out within the first month.” [8] When the applicant signed the project confirmation dated 21 August 2014 he acknowledged “by signing this document I acknowledge the scope of services, fees and terms as described in this proposal are acceptable and Steffan Town Planning is authorised to proceed. I have read understand and agreed to the fee proposal.” [9] As a result of that authorisation Mr Steffan prepared a report and application for the reconfiguration of the lot. Parts of the application are exhibits 3, 4 and 5. [10] On 2 October 2014 an Acknowledgment Notice was issued by the Brisbane City Council. It acknowledged that in accordance with s 268 of Sustainable Planning Act 2009 (Qld) the application would be assessed using impact assessment procedures and that public notification was to be carried out. [11] Exhibit 8 is a PD online property enquiry which shows the land as being contained in the low density residential zone. It has the property with an area of 695m2 and sets out the relevant neighbourhood plans and overlays. [12] Exhibit 9 is a site plan of the lot. [13] When the applicant received the quote he sent an email to Mr Steffan on 24 July 2014 in which he said, “I would just like to clarify that my understanding is that we have an 80 per cent chance of approval.” Mr Steffan replied that day, “Correct. I think 80 per cent chances would be fair.” [14] On 13 November 2014 Mr Steffan spoke with the assessment manager and advised the applicant by email as follows: “I also have just got off lengthy phone conversation with the assessment manager and although they have not to issue an information request they have notified me that they do not think they are going to support the application. The assessment manager recommended we withdraw the application and apply for a partial refund of the council application fee. The reason for the refusal is based on your property being 218m walking distance from a “centre zone” rather than 200m. It is idiotic to think that because you needed to walk an additional 18m that they won’t support the application but unfortunately it seems that is how they are assessing it. Please give me a call to discuss further when it is convenient.” [15] On 18 November Mr Steffan wrote in an email: “It seems that our only option is to withdraw the application and apply for a partial refund of the council fee. Council don’t seem to want to budge on the 200m walking distance and have basically told me that they are going to refuse it based on this non-compliance. Your only other option would be to continue with the application, receive the refusal and appeal it in court.” [16] The applicant responded saying “Our only option is to withdraw the application and apply for a partial refund of the council fee. The second -- 3 of 6 -- 4 option - we do not stand a chance in court. The costs will just escalate and the lot will not be viable.” Via email of 25 November Mr Steffan said “Unfortunately this is correct. I will withdraw the application now and apply for the largest refund possible.” [17] The applicant by an application made in his name seeks an order that the respondent pay him $7,270.00 for fees that he claims he has paid. In the application the reason for the claim is said to be “we put our trust in a professional and they let us down and we seek compensation for the loss we suffered.” [18] In support of his application the applicant said: “We consulted with Alexander Steffan of Steffan town Planners to know if Brisbane City Council would allow us to sub divide a block of land we have in Beams Road. According to his email he advised us that we stand an 80 per cent chance of approval for subdivision. He replied on 2 occasions that we had an 80 per cent chance of approval. We took it for granted that he is a qualified town planner and knows the rules and regulation of the council. We advised him to proceed with the application and paid all the fees and costs for the application. On submission of the application to Brisbane City Council planning department the application was rejected as non-compliant. Had he advised us that the application was non-compliant we would not have proceeded with the application. Due to his misleading conduct we suffered a loss.” [19] During the hearing the applicant was asked to identify the misleading conduct which he asserted. Apart from repeating that which he included with his application he was not able to specify any misleading conduct. [20] In part, in support of his application he relied on the following taken from the website of the respondent: “Need advice? Looking in the property market and want to know what you can/cannot do with a property? Have a look at our new service devqld which can provide you quick and hassle free advice on the move. Visit www.devqld.com.au for more information. If you propose to do any type of development (e.g. building work, start a business…etc.) it is highly recommended to consult a town planner to ensure you do not require any town planning approval. A simple five minute conversation with one of our planners can provide you with hassle free advice to set you in the right direction, whether that is straight to building approval or immediately into a town planning application. We are a small firm committed to deliver best practice in town planning. We value every client equally and strive to build positive relationships with all clients no matter the size of your project.” [21] There is no evidence to suggest that the respondent is not appropriately qualified. [22] There is no evidence to suggest that the respondent has not made the application in anything other than a professional manner. -- 4 of 6 -- 5 [23] Mr Steffan gave evidence that his estimate of 80 per cent chance of success was appropriate. He points to the correspondence and the fee proposal as indicating that there was no guarantee that it would be successful. He also points to the fact that the application was impact assessable. [24] The applicant in exhibit 6 told the tribunal that on 30 June 2015 he phoned a Urban Planning Development Assessment Officer at the Brisbane City Council to find out why the application was not supported. He says that he was told that the reason the application was not supported was because it did not comply with the code assessable of 2014 to have the property subdivided. He said that the assessment officer said that she told Mr Steffan that the distance was not 200m walking distance from the entrance of the shopping complex and that its walking distance from the block to the centre zone was not a straight line and it was closer to 300m measuring the way the council wanted it measure. He said that according to the assessment officer Mr Steffan had to first check with BCC to see if the application was compliant before he lodged the application for approval. [25] That assessment officer was not called to give evidence. I note that her advice to the applicant that the application was code accessible is on the councils own material not correct. Further her assertion that the town planner had to first check with the BCC to see if the application was complaint is not supported by any evidence. [26] The applicant relies upon a development assessment fact sheet 8 which in part draws the distinction between code assessable and impact assessable it also deals with how applications must be prepared and lodged. [27] In that document there is reference to selected zones and minimum lot sizes. It covers the zone “low density residential around centres” which has a reference to “subject to walking distance”. [28] That proviso has not been taken from the town plan. [29] The document also contains a statement concerning sub dividing around centre zones as follows: “in response to community feedback, the city plan permits smaller lots in the low density residential zone to potentially occur within 200m walking distance of a centre zone that is greater than 2000m2. Such lots are also subject to meeting specific requirements slope frontage and shape. This gives residents more opportunities to live close to local services and facilities in some areas of the city.” [30] The applicant contends that walking distance is not meant to be a straight line but rather following footpaths to the nearest centre zone of 200m2. He supports that contention with a statement from the document as follows: “walking distance is defined as a distance between two places measured from reasonable pedestrian access points and along roads with verges, off road pathways or other reasonable pedestrian connections. It cannot cross obstacles such as waterways, railway lines or private land.” -- 5 of 6 -- 6 [31] On any assessment of an application which is impact assessable it will be the town plan that is the relevant document rather than any fact sheet. The town plan is not a document which requires assessment against set rules but rather requires an assessment of performance criteria or acceptable solutions. In that assessment it is not simply a tick a box assessment. [32] I am not satisfied that there is any misconduct, misstatement or misapplication by the respondent. Further I am not satisfied that his assessment of the likelihood of success is inappropriate or a miss- assessment or misstatement. [33] Leaving aside any question of whether the applicant is the appropriate party given that the agreement was with Mahorca Investments Pty Ltd I was told that the council refunded the applicant $800.00 and that it paid the respondent $2,310.00 and the Brisbane City Council $3,200.00. That being the case I could not be satisfied that the amount of $7,270.00 claimed could be made out. [34] In my view the application is misconceived and there is no basis for the orders sought. [35] The application is dismissed. -- 6 of 6 --