Barnes & Anor v Southern Downs Regional Council & Ors [2010] QPEC 131 [2011] QPELR 290

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Barnes & Anor v Southern Downs Regional Council & Ors [2010] QPEC 131 PARTIES: JOHN EDWARD MYTTON BARNES AND JEFFREY FREDERICK COOK (appellants) V SOUTHERN DOWNS REGIONAL COUNCIL (respondent) And THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (first co-respondent) And McCONAGHY GROUP PTY LTD (second co-respondent) FILE NO/S: BD 313 of 2010 DIVISION: Planning and Environment PROCEEDING: Originating application ORIGINATING COURT: Brisbane DELIVERED ON: 14 December 2010 DELIVERED AT: Brisbane HEARING DATE: 4 October 2010, 11 October 2010 JUDGE: Rackemann DCJ ORDER: I find that the development, the subject of the development application, is not the making of an assessable material change of use. I also conclude that the appeal is properly limited to the partial demolition of 84 Fitzroy Street. CATCHWORDS: PLANNING AND ENVIRONMENT – Issues determined at a preliminary stage – whether proposal for demolition constitutes the making of a material change of use as well as building work – whether the code assessable demolition of -- 1 of 8 -- 2 one building so ‘inextricably linked’ to the impact assessable demolition of another so as to permit the appellants to raise issues about the code assessable development Fox & Anor v Brisbane City Council & Ors [2003] QCA 330 Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2009] QPEC 86 Half Back Pty Ltd v Logan City Council [2003] QPEC 9 COUNSEL: Dr McGrath for the appellants Mr Connor (solicitor) for the respondent Mr Sheridan for the second co-respondent SOLICITORS: Cook and Associates for the appellants Connor O’Meara for the respondent Department of Environment and Resource Management for the first co-respondent Gadens Lawyers for the second co-respondent [1] This appeal is by adverse submitters against the Council’s decision to grant a preliminary approval for building work, being the demolition of a building at 82 Fitzroy Street, Warwick, and the partial demolition of another at 84 Fitzroy Street. The buildings adjoin the Rose City Shopping centre. [2] Both buildings are listed in the Queensland Heritage Register, but only 84 Fitzroy Street is listed in the Council’s Register of Cultural Heritage Places. The proposed demolition works are assessable development but, on the face of it, only the partial demolition of the building at 84 Fitzroy Street was impact assessable. On that basis, the appellants’ appeal would only validly be against the approval of the partial demolition of 84 Fitzroy Street.1 [3] If the buildings are allowed to be demolished/partly demolished, the co-respondent intends to seek to use the land freed up by the demolition to extend its shopping centre. [4] In order to overcome the apparently limited permissible scope of the appeal, the appellants contend that: a. the proposed demolition work constitutes not only building work, but the making of an impact assessable material change of use, across both properties, for an extension of the shopping centre; and b. the demolition of 82 Fitzroy Street is so inextricably linked with the partial demolition of 84 Fitzroy Street that, the appellants ought be 1 Section 4.1.28 Integrated Planning Act (1997). -- 2 of 8 -- 3 permitted to raise, in their appeal, objection to the demolition of 82 Fitzroy Street as well. [5] It is those questions which now fall for determination at a preliminary stage.2 [6] In support of the first proposition, the appellants rely upon Fox & Anor v Brisbane City Council & Ors3 and on the extended definition of “use,” which extends to a use which is incidental to and necessarily associated with the use of premises.4 [7] The decision in Fox & Anor v Brisbane City Council & Ors is authority for the proposition that the making of a material change of use can (not must) include the process which leads to the actual use. Whether particular preparatory work itself involves the making of a material change of use is a question of fact and degree, viewed objectively, in each case. The decision in Fox & Anor v Brisbane City Council & Ors is therefore to be understood in light of the unusual facts to which it related. That might explain why the parties could not point me to any subsequent decision which has applied Fox & Anor v Brisbane City Council & Ors. [8] In Fox & Anor v Brisbane City Council & Ors it was proposed to create a new industrial subdivision on land which was variously included within the parkland, general industry, future industry, light industry and rural areas under City Plan. To achieve the ultimate intended industrial development it was necessary to carry out very extensive earthworks across the whole of the site, to remediate the contaminated site and to produce level, compacted, flood-free allotments for the ultimate industrial use. The judgment of Jerrard JA records that 210,000 cubic metres of soil was to be moved across a site in excess of 42 hectares. [9] What led to the controversy in Fox & Anor v Brisbane City Council & Ors, was the applicant’s decision to seek approval by two concurrent applications, said to relate to Stages 1 and 2 respectively. The “Stage 1” application sought to create new industrial lots in the industrial areas and so did not seek any approval to make a material change of use. The “Stage 2” application included the rural lands and did include an application for a material change of use for industrial purposes. [10] The Stage 1 application only sought a preliminary approval for carrying out operational work (being filling and excavation) as well as a development permit for a reconfiguration. The land the subject of the Stage 2 application was simply a balance lot, for the purposes of the Stage 1 application. The operational works and reconfiguration applied for in the Stage 1 application were, on the face of the relevant level of assessment tables, code assessable only. On that basis, there would have been no public objection or appeal rights. [11] It was held that the works to be carried out across the whole of the site, as part of the Stage 1 approval, formed part of the making of the impact assessable material change of use, which was to occur on the rural lands included in the Stage 2 application. Accordingly, the Stage 1 approval was said to be invalid, because it 2 Another question was also set down for determination, but was decided by me upon the hearing, when I gave ex tempore reasons. 3 [2003] QCA 330. 4 See the definition of ‘use’ in Schedule 10 of the Integrated Planning Act (1997). -- 3 of 8 -- 4 included impact assessable development which should have been publicly notified and assessed accordingly. [12] In Fox & Anor v Brisbane City Council & Ors the two applications were made, considered and decided at the same time and were supported by expert reports in essentially identical terms, which made it clear that the earthworks were essentially common to both stages. Indeed the rural land was required to be cut or filled as a condition of the approval of Stage 1. Accordingly, in order for Stage 1 to proceed, the rural lands in Stage 2 would be changed form grassland used for livestock grazing to level, partially compacted land, cut in to the slope by up to 14 metres. As Jerrard JA observed, the land was contaminated and the reports supporting the application pointed out that the only option was remediation by excavation and relocation of soil. Further, the redevelopment of the Stage 2 land for an industrial estate was said to be the only manner by which it would be practical to finance the ongoing treatment and containment of contaminated material. [13] As a matter of fact, the works involved in Fox & Anor v Brisbane City Council & Ors were very substantial and would have changed the physical character of the land in question. They were unequivocally related to the proposed industrial use. That was obvious on an objective analysis, quite apart from any subjective intention. The learned primary judge held that, as a matter of fact and degree, the rural land would undergo a material change of use by reason of the operational works. His finding was not disturbed on appeal. [14] Jerrard JA and White J (as she then was) formed the majority in the Court of Appeal. Neither of their reasons stand for the proposition that preparatory works must always be characterised as part of the making of a material change of use, nor do they dictate that development, carried out as a possible prelude to an intended different ultimate form of development, is itself necessarily, to be regarded as part of the making of that ultimate form of development. Indeed, it is not uncommon for one form of development to be carried out with something further or other within contemplation. [15] This issue involves questions of fact and degree to be considered in making a finding of fact on an objective basis. As White J pointed out: “His Honour’s approach was to look at the purpose of the work, its scale and other questions of fact and degree to see if, objectively, it amounted to a material change of use.” [16] Counsel for the appellant also relied on the extended definition of “use,” which was also referred to in Fox & Anor v Brisbane City Council & Ors. Some care, however, needs to be exercised in applying that definition. It does not speak of an ‘activity’ which is incidental to and necessarily associated with a ‘use’. Rather, it requires the identification of a use which itself is incidental to and necessarily associated with the use of premises. As Wilson DCJ (as he then was) pointed out in Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor5 (at 29): 5 [2009] QPEC 86. -- 4 of 8 -- 5 ‘Here, the appellant’s submissions appear to mistakenly conflate use with other activities including, in particular, building work. As Boral shows, the question is not whether structures are incidental to and necessarily associated with each other, but whether uses have that feature.” [17] In that case his Honour also pointed out that Fox & Anor v Brisbane City Council & Ors is a decision which has been much criticised. Published academic and professional criticisms are referred to in paragraphs 27 and 28 of his Honour’s reasons. The decision must, however, be respected until and unless it is overturned by a subsequent decision of the Court of Appeal. It is therefore necessary to consider whether, in this case, the proposed demolition work, viewed objectively, would not only be building work but also the making of a material change of use of the subject land. For the reasons which follow I find that it would not. [18] Physically, there is nothing about the proposed work itself which would suggest to an objective observer that the subject site is, by reason of the demolition, being used for the making of a material change of use for the extension of a shopping centre. [19] The scale of works proposed here is much less than in Fox & Anor v Brisbane City Council & Ors. [20] All that is proposed is demolition works. Unlike in Fox & Anor v Brisbane City Council & Ors, the subject land is not proposed, by reason of that development, to be physically changed by excavation so as to be readied for a specific further use. At the end of the demolition process there would simply be a greater area of vacant land, available for use for any lawful purpose. This is not a case where, following the demolition works, the land could only be used if a material change of use for the purposes of a shopping centre extension was granted. [21] The purpose of the demolition was to remove or partially remove the buildings. The fact that there was a subjective intention, on the part of the applicant, to subsequently extend the shopping centre onto the parts of the subject sites rendered vacant once the buildings are demolished, is not conclusive of the question which falls for determination. There is no sufficient basis to conclude that the demolition work proposed in the subject application relies physically or economically upon what happens with respect to the shopping centre. [22] Unlike in Fox & Anor v Brisbane City Council & Ors, the application for demolition was not made, processed and decided simultaneously with an application for the intended further development. The subject application was made on 5 October 2007. Subsequently, on 20 November 2007, an application was made for the extension of the shopping centre onto the site of these two buildings, with a proposed basement carpark and a vehicle turning area. The proposed demolition was also included in that application, but was subsequently removed, in light of this application being already on foot. The demolition application proceeded to decision, but the application for an extension of the shopping centre, stalled. It is common ground that application has now lapsed. 6 The demolition application was therefore made as a “stand alone” application, decided in the absence of any decision on the 6 It would also require impact assessment and hence public notification. -- 5 of 8 -- 6 shopping centre application and is being pursued in the context of this appeal, even though there is now no shopping centre application on foot. [23] It is entirely possible that the demolition work might be approved and carried out without any subsequent approval for the extension of the shopping centre being granted. In such circumstances, the land would not be sterile. It would be available for whatever use may be approved, subject to any necessary future application. [24] While the proposed partial demolition of 84 Fitzroy Street is to be done in a way which would suit a later expansion of the shopping centre, I do not accept the submission that the demolition only makes sense in the context of the proposed shopping centre extension. The material lodged in support of the application depicts the dilapidated state of the buildings. The supporting engineering report of Mr Farr says that the building at 82 Fitzroy Street “is unsafe in its current condition” and is “essentially at the end of its structural life and is little more than a demolition exercise.” The building at 84 Fitzroy Street is said to presently have two structural issues, including the instability of the external walls. He opined that: “We are now of the view that the structural integrity of the walls is seriously compromised and urgent measures need to be instituted to protect third parties from the effects of a possible collapse of the wall.” [25] The covering letter to the application stated, in part, as follows: “As council is aware McConaghy Group has been monitoring the structural integrity of the two buildings at 82 – 84 Fitzroy Street, Warwick. Both these buildings adjoin the Rose City Shoppingworld and since 2005 our client has been concerned that the current state of the structural integrity of the buildings. A recent visit by Farr engineers to monitor the buildings’ current structural state identified that the buildings’ structural integrity is continuing to deteriorate and our client now believed that they pose a significant public risk given: • Both buildings are in a dilapidated state; • Both buildings adjoin land to our clients site: - 84 Fitzroy Street is constructed to the boundary of Haig Avenue and as discussed in the attached reports the lower floor of the building is in a poor structural state, there is evidence of rising damp and that the wall along Haig Avenue contains a bow which has increased over the last couple of years; - The shopping centre is accessible (service vehicles and pedestrian access) from Haig Avenue and the current state of the wall is unsafe; and - 82 Fitzroy Street is identified as being at the end of its structural life given the lower floor framing is unsafe, the roof framing is water affected and rotten to a large degree and there is significant rising damp in the building. -- 6 of 8 -- 7 • Discussions with the current owners identifies that they do not have the financial ability to undertake works to secure or restore the buildings.” [26] While the co-respondent may have plans for a future shopping centre extension, there is no reason why it may not seek approval for demolition of the buildings, as a distinct form of development on its own merits. It may be that demolition will remove a potential obstacle to the intended, but yet to be approved, shopping centre expansion, but that does not mean that the demolition works are themselves the making of that material change of use. [27] Understandably, the appellants are concerned to ensure that any asserted need for the shopping centre to expand, not be used to justify the demolition, in circumstances where the shopping centre extension is not approved and is not the subject of this application or indeed, any extant application. While the development application is supported by evidence about structural and heritage issues, it is also true, as the appellants pointed out, that the asserted need to extend the shopping centre was also referred to. I do not consider that, of itself, converts the application into one for the making of a material change of use, but I agree that, in the circumstances, it is inappropriate to seek to justify the proposed demolition by reference to an asserted need for a shopping centre extension which is not approved nor the subject of this or any live development application. Having been applied for on a “stand alone” basis, the proposed demolition will, as things stand, need to be assessed on its own merits. [28] The final issue is whether there is some “inextricable link” which might permit the appellants to raise issues going beyond the demolition of the building at 84 Fitzroy Street. In this regard reliance was place on the following dicta of Brabazon QC DCJ in Half Back Pty Ltd v Logan City Council & Anor7 (at 17): “In this case the “decision being appealed” is confined to part of the Council’s decision dealing with the use of the buffer zone. The court has authority to deal only with that part of the application. There may be cases where the decision of the court necessarily involves some consequential issue, so that there is an inextricable link between the two issues. In that case, the decision of the local authority would be replaced by that of the court.” [29] In this case the decision being appealed is properly confined to the partial demolition of the building at 84 Fitzroy Street. It shares its heritage listing with the building at 82 Fitzroy Street, and both are intended, subject to a further approval, to be the subject of a future shopping centre extension. I do not consider, however, that there is any “inextricable link” of a kind which could (even if one accepted the dicta of Brabazon QC DCJ) properly permit a consideration of objections to the demolition of the building at 82 Fitzroy Street, in the context of this appeal. [30] The development application relates to demolition work to two separate buildings on separate lots. The demolition of the one is not inextricably linked to the other. 7 [2003] QPEC 9. -- 7 of 8 -- 8 The partial demolition of the building at 84 Fitzroy Street can be considered on its own merits and, subject to approval, carried out without resolution of any consequential issue of the kind referred to by Brabazon QC DCJ. It was submitted that the inextricable link relates to the fact that demolition needs to take place on both sites if the future expansion of the shopping centre is to proceed, as contemplated. That there is an intention to use both lots for a future form of development, subject to another approval is, in the circumstances, however, beside the point in terms of the permissible scope of this appeal. [31] I find that the development, the subject of the development application, is not the making of an assessable material change of use. I also conclude that the appeal is properly limited to the partial demolition of 84 Fitzroy Street. -- 8 of 8 --