Connolly v Brisbane City Council and Ken Drew Town Planning Pty Ltd [2015] QPEC 16 (2015) QPELR 578

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Connolly v Brisbane City Council and Ken Drew Town Planning Pty Ltd [2015] QPEC 16 PARTIES: TREVOR JOHN CONNOLLY (Applicant) v BRISBANE CITY COUNCIL (First Respondent) AND KEN DREW TOWN PLANNING PTY LTD (Second Respondent) FILE NO/S: BD957/15 DIVISION Planning and Environment Court PROCEEDING: Application DELIVERED ON: 28 April 2015 DELIVERED AT: Brisbane HEARING DATE: 23 April 2015 JUDGE: Bowskill QC DCJ ORDER: Application dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – Validity of owner’s consent to the making of a development application, for the purposes of s 263(1)(a) and s 260(1)(e) of the Sustainable Planning Act 2009 – owner trustee of deed of grant in trust under the Land Act 1994 – whether consent to the whole of the development - whether declarations sought as to lawfulness of consent, on the basis of alleged breach of s 52(2)(a) of the Land Act 1994, within the jurisdiction of the Planning and Environment Court, under s 456(1)(a) of the Sustainable Planning Act 2009. -- 1 of 8 -- 2 Land Act 1994 (Qld) Sustainable Planning Act 2009 (Qld) Cornerstone Properties Pty Ltd v Caloundra City Council (No.2) [2005] QPELR 96 MacAdam and Hawse v Caboolture Shire Council & Ors (2007) QPELR 556 Mofo Group Pty Ltd v Brisbane City Council [2010] QPEC 79 Petrie v Burnett Shire Council [2001] QPELR 510 Read v Duncanson (1987) 64 LGRA 1 Walker v Noosa Shire Council [1983] 2 Qd R 86 COUNSEL: D Favell for the Applicant T Trotter for the First Respondent N Kefford for the Second Respondent SOLICITORS: Colwell Wright Solicitors for the Applicant Brisbane City Legal Practice for the First Respondent HWS Lawyers for the Second Respondent Introduction [1] The applicant, Mr Connolly, asks the Court to make the following declarations under s 456 of the Sustainable Planning Act 2009 (Qld) (SPA): “(a) a declaration that the Respondent’s letter of 22 October 2013 was not a valid consent for the purposes of s 260(1)(e)(i) of SPA to the development application that was made on or about 20 December 2013 in that: (i) it did not contain the Respondent’s consent to the whole of the development; (ii) the Respondent could not lawfully provide consent to the whole of the development as proposed in the development application. (b) a declaration that the Respondent cannot lawfully consent to the whole of the development as proposed in the development application.” [2] Those declarations are sought in the following context. [3] The first respondent, Brisbane City Council (Council) is the trustee of certain land granted to it in 1971, by deed of grant in trust under s 343 of the Land Act 1962 (Qld). The purpose for which the grant was made was “for Local Government (Swimming Pool) purposes”. [4] The relevant land is described as Lot 307 on Crown Plan SL6504, title reference 14592170, located at 231 Flinders Parade, Sandgate (the land). The land is adjacent to the foreshore at Sandgate, bounded to the east by Bramble Bay. -- 2 of 8 -- 3 [5] The land is currently the subject of a trustee lease granted by the Council to Australian Crawl Pty Ltd under s 57 of the Land Act 1994 (Qld). The lease commenced on 28 June 2013, and is for a term of 20 years. The “permitted use” under the lease is for “private residence” and “public swimming pool and baths including lap swimming facility as required by the Manager and such other lawful use or uses first approved by the Manager”. The Sandgate Aquatic Centre is located on the land. [6] In November 2013, the second respondent, Ken Drew Town Planning Pty Ltd (KDTP), lodged a development application with the Council in relation to the land. The application sought a development permit for a material change of use, and preliminary approval for building work, in respect of extensions to the Sandgate Aquatic Centre. The proposed development involves changes to the existing works on the land, both in terms of constructing new structures (including a gymnasium, kiosk, and pools) as well as rearrangement of the existing uses and structures. [7] In August 2014, the applicant lodged a submission in relation to the development application. [8] On 24 October 2014, the applicant received notice from the Council that the development application had been approved, with conditions. [9] In separate proceedings in this Court (BD 4510/14), commenced on 19 November 2014, the applicant appeals against that decision of the Council. Owner’s consent [10] As the development application sought an approval for a material change of use, the application was required to either: (a) contain or be accompanied by the owner’s written consent; or (b) include a declaration by the applicant that the owner has given written consent to the making of the application. [11] This is the combined effect of ss 263(1)(a) and 260(1)(e) of the SPA, which provide as follows: (a) 263(1)(a): “The consent of the owner of the land the subject of the application is required for its making if the application is for… a material change of use of premises or reconfiguring a lot…”. (b) 260(1)(e): “Each application must … if, under section 263, the consent of the owner of the land the subject of the application is required for the making of the application: (i) contain or be accompanied by the owner’s written consent; or -- 3 of 8 -- 4 (ii) include a declaration by the applicant that the owner has given written consent to the making of the application”.1 [12] It is not disputed in this proceeding that the Council is the “owner” of the land for the purpose of those provisions, having regard to the definition of owner in schedule 3 to the SPA.2 [13] In this case, both the alternatives in s 260(1)(e) were met. That is, the application was accompanied by a letter from the Council consenting to the making of the application and the application also contained a declaration in terms of s 260(1)(e)(ii). [14] The consent, contained in the letter from the Council dated 22 October 2013, is in terms that the Council: “Hereby consents to a Development Application being made to the Brisbane City Council that includes the above mentioned Council owned land for the purpose of building a new swimming pool and facilities within the leased area of the Sandgate Swimming Pool”3 [15] In his application, the applicant makes two points: (a) First, that the Council’s letter of consent does not comply with s 260(1)(e)(i) of the SPA because it only evidences the Council having consented to a development application “for the purpose of building a new swimming pool and facilities”, but does not evidence the Council having consented to a development that involved a new gymnasium. This is the basis for the first declaration sought, that the letter “did not contain the Respondent’s consent to the whole of the development”. (b) Second, that in giving the consent, the Council breached s 52(2)(a) of the Land Act 1994 by taking action that was not consistent with the purpose for which the land was granted in trust; that use of the land for the purposes of a gymnasium is inconsistent with the purpose for which the land was granted contrary to s 35(1) of the Land Act, and therefore the Council/owner’s consent was unlawful. This is the basis for the second and third declarations sought, that the Council could not lawfully provide consent to the whole of the development, or, if the existing consent is found to be flawed in the first respect alleged, that the Council cannot lawfully consent to the whole of the development. Jurisdiction [16] The jurisdiction of this Court to make the second and third declarations sought by the applicant is challenged by each of the first and second respondents. 1 Underlining added. 2 See also BMG Resources Ltd v Pine Rivers Shire Council [1989] 2 Qd R 1 at 5. 3 Underlining added. -- 4 of 8 -- 5 [17] Jurisdiction is conferred on this Court, by s 456(1)(a), to make a declaration about “a matter done, or to be done or that should have been done for this Act…”.4 [18] The applicant submits that there is jurisdiction under s 456(1)(a) to make the declarations, including in so far as that extends to a declaration that there has been a breach of the Land Act 1994. The applicant submits that the subject-matter of the declarations sought is a matter done (the consent given) or to be done or that should have been done (if a further consent is required to be given) for the purposes of the SPA (ss 260 and 263), notwithstanding that it involves consideration of the actions of the Council under the Land Act 1994.5 [19] The Council submits that, whilst on the face of the application, it may appear the declarations concern matters “done, to be done or that should have been done for this Act…”, in reality, having regard to the grounds of the application,6 the applicant is seeking a declaration that the gymnasium component of the application is beyond the purpose of the deed of grant, which is a matter that cannot be determined by this Court. [20] KDTP more broadly submits that the declarations are not within the jurisdiction conferred by s 456(1)(a), because they are not about “questions an applicant and an assessment manager would have to address”,7 since: (a) compliance with s 260(1)(e)(i) was not necessary, given the declaration made as required by s 260(1)(e)(ii); and (b) even if the consent was given in breach of the Council’s obligations as trustee, that does not render the consent void; rather it exposes the Council to potential consequences under the Land Act with respect to breach of trust. It submits this is not a matter of direct relevance to the IDAS process under the SPA. [21] In my view, in so far as the declaratory relief sought by the applicant in substance involves consideration of the lawfulness (or otherwise) of use of the land by reference to the provisions of the Land Act 1994 which govern land held under a deed of grant in trust, that is not a matter within the jurisdiction of this Court under s 456(1)(a). [22] The “matter done, to be done, or that should have been done” for the SPA is the obtaining of the owner’s consent to the making of the application (s 263(1)(a)) and either providing that with the application, or including in the application a declaration that it has been obtained (s 260(1)(e)). [23] If, as a matter of fact, the owner of the land has given its consent to the making of the application, and s 260(1)(e)(i) or (ii) is complied with, that is the end of the enquiry. Section 456 does not confer jurisdiction on this court to look behind the consent given, 4 Underlining added. 5 Referring to Cornerstone Properties Pty Ltd v Caloundra City Council (No 2) [2005] QPELR 96 (Cornerstone Properties) at [46]. 6 See Mofo Group Pty Ltd v Brisbane City Council [2010] QPEC 79 at 1-11 per Robin QC DCJ. 7 Cornerstone Properties at [33]. -- 5 of 8 -- 6 where, as here, that would involve considerations of matters arising under the Land Act 1994, and not the SPA. [24] The analysis undertaken by Rackemann DCJ in Cornerstone Properties supports this conclusion. [25] In Cornerstone Properties three declarations were sought (at [24]), in summary form: (a) first, a declaration that certain works proposed to be undertaken “are lawful and do not constitute the destruction of vegetation, or excavation, in a ‘watercourse’ requiring a permit under s 266 of the Water Act 2000”; (b) second, a declaration that a particular application for a development permit is “properly made”, without a particular entity’s consent; and (c) third, a declaration that a particular application for a development permit does not need to be referred, under relevant provisions of the (then) Integrated Planning Regulation 1998, as it does not involve operational work that allows taking, or interfering with, water under s 206 of the Water Act 2000. [26] As to the second declaration sought, that was said to fall within the jurisdiction of the court under the equivalent of what is now s 456(1)(a). As Rackemann DCJ said at [43], “[a] matter which properly confronts an applicant, the assessment manager and the Court from time to time is whether an application has been properly made”. [27] As to the third declaration sought, that too was found to fall within the jurisdiction of the equivalent of s 456(1)(a), as involving “questions which must be determined for the purposes of identifying whether the facts are such as to fall within the provisions which trigger the referral provisions of the IPA8”, which are “questions which an applicant and the assessment manager would have to address” (at [33]). [28] However, the first declaration was said to be in a different category, since it was focussed upon the lawfulness of the relevant works in terms of the Water Act, rather than the IPA. Rackemann DCJ held that the declaration did not fall within the equivalent of s 456(1)(a), saying that “[w]hile the declaration may relate to a further approval which might be required for the development to proceed, that falls short of establishing that it is a matter ‘for’ the IPA”(at [49]). His Honour also noted, by referring with apparent approval to submissions made to him, the absence of a “relevant link” between the Water Act and the IPA in this regard, and that the relevant provisions of the Water Act “stand separately” to the IPA (at [50]). [29] The same analysis applies here. To the extent that the substantive subject matter of the declarations sought in paragraphs (a)(ii) and (b) of the application is the lawfulness of the proposed use of the land under the development application, for the purposes of the Land Act 1994 (in particular, s 52(2)(a) and 35(1) of that Act), that is not a matter which is within the jurisdiction of this Court under s 456(1)(a). The relevant provisions of 8 Integrated Planning Act 1997 (Qld)p . -- 6 of 8 -- 7 the Land Act 1994 which define the rights and interests of a trustee of land granted in trust, and regulate the functions and powers of the trustee, stand separately to the provisions of the SPA concerning approval of proposed development. [30] The focus of the application is, however, on the act of the Council in providing its consent. Within the limits of the Court’s jurisdiction under s 456(a), I turn now to address the declarations sought. Consent to the whole development? [31] For the purposes of ss 263(1)(a) and s 260(1)(e) of the SPA, the consent required is consent to the making of the application. [32] The rationale for requiring consent of the “owner” of the land was explained by Skoien SJDC in Petrie v Burnett Shire Council [2001] QPELR 510 at 511 [9], on the basis that the non-owner making the application should have the actual consent of the owner so that the Council (assessing authority) has the assurance that the proposed development is realistically proposed and that the application is not just an academic exercise which could put the Council to considerable wasted effort and expense. [33] Here, the Council, as the “owner” of the land, has given its consent in writing to the making of the development application. The wording of the consent is apt to cover the application that was made. That is all that is required.9 [34] The letter of consent refers to the purpose being to build a new swimming pool and facilities within the leased area of the Sandgate Swimming Pool. As a matter of substance, that is what the application seeks approval to do. [35] There is in evidence the email in which the request for the Council’s consent was made. Attached to that email were “drawings for the proposed extension of the Sandgate Aquatic Centre” which show, among other things, the new swimming pools, and the “new gym and amenities”. The drawing is one of the drawings that then formed part of the development application itself. [36] In my view, there is no basis to impugn the “consent” given, on the basis that it did not contain the Council’s consent to the “whole of the development”. Can the Council consent to the making of the development application? [37] In so far as the second and third declarations which are sought are concerned, for the reasons already given, it is not within this Court’s jurisdiction to deal in substance with any argument about the lawfulness of use of the land under the relevant provisions of the Land Act 1994. [38] However, more generally, in relation to the act of the Council in giving its consent, I make the following points. 9 Cf MacAdam and Hawse v Caboolture Shire Council & Ors (2007) QPELR 556 at 559-560. -- 7 of 8 -- 8 [39] The Council wears two hats in a matter such as this: one, as “owner” of the land subject of a development application; and another, as the assessing authority under the SPA. [40] There is no suggestion on this application of any improper conduct on the part of the Council. [41] In my view, it is within the power of the Council, as “owner” of the land, to give its consent to the making of the development application, regardless of whether there may be other issues arising under the Land Act 1994, having regard to the limitations on the use of the land as trust land. The giving of that consent to the making of the application does not bear, in substance, upon the assessment and decision making stages of the development application, including any conditions that may be attached to any approval granted. It is simply consent to the making of a development application. [42] Even if there is in substance, a conflict between the proposed development, and the purpose of the deed of grant in trust (a matter which it is not for this Court to decide), the act of the Council, as trustee, in consenting to the making of an application, is not, in my view, invalid and of no effect, for the purposes of ss 260 and 263 of the SPA.10 It is nonetheless “consent” to the making of the application. [43] As in Read v Duncanson (1987) 64 LGRA 1 at 5, even if that consent was later withdrawn, that would not affect the validity of the application itself, or the duty of the Council, wearing its other hat, to decide the application. [44] If there is in substance a conflict between the proposed development, and the purpose of the deed of grant in trust, that is a matter to be addressed as between the Minister administering the Land Act 1994 and the Council, in another place.11 There are a number of matters to be considered in that regard, including whether there is in fact any inconsistency between the proposed development, and the purpose of the trust, within the meaning of the relevant provisions of the Land Act 1994; if so whether any such inconsistency is overcome by conditions agreed or imposed on the development; or whether there are other avenues open to the Council under the Land Act 1994 (including to obtain Ministerial approval for inconsistent action under s 52(3)). [45] For those reasons, it is not appropriate to look behind the consent given by the undisputed owner of the land, in the context of the declaratory relief sought on this application. Even in the context of the assessment and decision-making phase, or on an appeal from such a decision, it would not be appropriate to prejudge such matters, unless they were shown to be clearly futile or tainted with illegality.12 [46] The application is therefore dismissed. I will hear the parties as to costs. 10 Cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-390. 11 As was the case, for example, in MacAdam and Hawse v Caboolture Shire Council & Ors (2007) QPELR 556 at 558G (in the context of an allegation that two of the owners, in consenting to the making of the development application, had acted in a manner inconsistent with prior contractual arrangements); see also Mofo Group Pty Ltd v Brisbane City Council [2010] QPEC 79 at 1-9 per Robin QC DCJ. 12 Walker v Noosa Shire Council [1983] 2 Qd R 86 at 89. -- 8 of 8 --