Brisbane City Council v Mamczur & Anor [2010] QPEC 71

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Brisbane City Council v Mamczur & Anor [2010] QPEC 71 PARTIES: BRISBANE CITY COUNCIL (Appellant) v STEPHEN MAMCZUR (First Respondent) And ALLIED BUILDING CERTIFICATION PTY LTD (Second Respondent) FILE NO/S: 3303/09 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 25 August 2010 DELIVERED AT: Brisbane HEARING DATE: 26 May 2010 JUDGE: Searles DCJ ORDERS: 1. Appeal allowed; 2. The decision of the Building and Development Tribunal in Appeal number 03-09-064, made on 26 October 2009, be set aside; and 3. The first respondent’s appeal to the Building Tribunal be struck out. COUNSEL: T. Trotter and J. Lyons – Appellant W. Drost – Second Respondent (Self Represented) No appearance for the first respondent. SOLICITORS: Brisbane City Legal Practice – Appellant [1] This is an appeal against the decision of the Building and Development Tribunal (Tribunal) constituted under Part 2 of the Integrated Planning Act 1997 (IPA) which Act was repealed on 18 December 2009 on the introduction of the -- 1 of 13 -- 2 Sustainable Planning Act 2009 (SPA). The operation of section 819 of SPA means that this appeal must be heard and determined under the provisions of IPA as if SPA had not commenced. [2] The appeal was commenced pursuant to section 4.1.37 of IPA which gives a party to a Tribunal proceeding the limited right of appealing to this court on the ground:- (a) of an error or mistake of law on the part of the Tribunal; or (b) that the Tribunal had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision. [3] The appellant (Council) relies upon both of those grounds in asserting that, firstly, the Tribunal lacked jurisdiction to make the decision it made and, secondly, that if, contrary to that ground, the Tribunal had jurisdiction, its decision involved an error or mistake of law in that it failed to provide proper and adequate reasons for its decision. Background matters [4] The first respondent made a Development Application (Application) for building works for the construction of a new two storey home at 30 Clayton Street Sandgate, being Lot 8 on RP74840, containing an area of 610 square metres. He took no part in this appeal. [5] The second respondent, Allied Building Certification Pty Ltd (Allied), was the assessment manager for that Application. 1 [6] The work the subject of the Application did not comply with features of the Queensland Development Code (QDC) in that the proposed dwelling was to be 9 metres high whereas the QDC, relevantly, speaks of height not exceeding 8.5 metres. Consequently, the Council was required to assess that aspect of the Application as a concurrence agency. 2 [7] The Council notified the first respondent that it did not intend to provide a concurrence agency response but rather would leave the Application in abeyance 1 Exhibits to Affidavit KR Johnstone 28.04.10, court document 8 (CD8) pp 25-31, 105, 204 (description of proposed construction). 2 CD8, pp 53, 180-181. -- 2 of 13 -- 3 because it took the view that a further development application for approval of a material change of use under IPA was required.3 That was premised on the proposed building height of 9 metres not being in conformity with City Plan 2000 (City Plan), specifically the Housing Code.4 [8] As a result of the Council’s position, Allied, as assessment manager, refused the Application on the ground that the Council’s action in failing to provide a response constituted a deemed refusal under IPA section 3.3.16(4).5 The question of whether the Council’s conduct constituted a deemed refusal is one of the issues in dispute. [9] Relying upon that deemed refusal, on 13 August 2009 the first respondent instituted an appeal to the Tribunal under IPA section 4.2.15. Allied and the Council elected to be co-respondents to that appeal. [10] The appeal was heard on 15 September 2009 and its decision delivered on 26 October 2009.6 The Tribunal set aside the decision of the assessment manager and directed the assessment manager to decide the Application as if the Council had assessed it and had no concurrence requirements. That decision is expressly said to rely upon IPA section 3.3.16(4) (deemed refusal) whereas the wording of the decision referring to the concurrence agency having no requirements seems to better accord with Section 3.3.16(3). 7 Whatever the basis, however, the Council says that the Tribunal at all times lacked jurisdiction to make the decision. [11] The Council appealed to this court on 19 November 2009. Did the Tribunal have Jurisdiction? Argument of the Council [12] The Council says the Tribunal misconstrued the relevant provisions of IPA, the Building Act 1975 (BA) and City Plan. It argues that the proposed development involves both the carrying out of both building work and, importantly, the making of a material change of use of the subject premises, under IPA sections 1.3.2(a) and (e) respectively. 3 CD8, pp 96-98. 4 CD8 P 180 5 CD8, p 105. 6 CD8, p 203. 7 CD8, pp 203 and 206. -- 3 of 13 -- 4 [13] It is common ground that the land is within the Low Density Residential Area under City Plan. Pursuant to section 5.2.3 of chapter 3 of City Plan, the level of assessment table for the Low Density Residential Area sets the level of assessment for: (i) a material change of use; and/or (ii) building work (associated with a use or structure specified in the level of assessment table). [14] Section 2.2 of chapter 3 provides that the building work referred to in section 5.2.3 is building work other than building work that only requires assessment against the Building Regulation enacted pursuant to the Building Act 1975 (Building Regulation). [15] The Council’s position is that the proposed work is not work that only requires assessment against the Building Regulation because the proposed house exceeds 8.5 metres in height which denies it compliance with the Acceptable Solution 2 of the House Code in City Plan. [16] It follows, it is said, that the level of assessment table in section 5.2.3 requires that the level of assessment for the proposed house is “code assessment – notifiable” under section 2.5.1 of chapter 3 of City Plan. Any development the subject of code assessment requires an application and development permit before development can start and the assessment manager for such an application is the Council. 8 [17] No such development application was made to the Council so that, according to the Council, sections 83(1)(a) and (b) of the BA become operative. They relevantly provide:- “83 General restrictions on granting development approval (1) The private certifier must not grant the building development approval applied for:- (a) if the building development application includes development other than building work – until, or -- 4 of 13 -- 5 under IPA, all necessary development permits are effective for the other development; and (b) until all necessary preliminary approvals under IPA are effective for other assessable parts of the development; (c) … ” [18] It follows, according to the Council, that the second respondent as building certifier could not grant approval for the Application until the first respondent had obtained from the Council the necessary development permits and approvals for the material change of use and building work assessable under the House Code in City Plan. [19] The Council says there was a further consequence under Section 83(3) of the BA resulting from the first respondent not obtaining those permits and approvals. Section 83(3) provides:- “83 General restrictions on granting building development approval (1) … (2) … (3) If the private certifier receives the application before all other assessments for permits and approvals mentioned in subsection (1) are completed, for timings under IDAS the application is taken not to have been received until the day all other assessments under IDAS have been completed.” Accordingly, the Council argues as the application is deemed not to have been received, the application stage, not having even started, could not have ended. 9 [20] Under IPA section 4.2.9 any appeal to a tribunal by an applicant for a development application must be started within 20 business days after the decision notice or negotiated decision notice is given to the applicant as part of the IDAS decision or, 8 IPA section 3.1.3, 3.1.34, 3.1.7(a) and schedule 8A, item 1. 9 IPA section 3.2.15(b). -- 5 of 13 -- 6 in the case of a deemed refusal of the application, at any time after the last day a decision on the matter should have been made. 10 [21] As neither of those points in time ever arrived, the Council argues that no right of appeal to the Tribunal ever accrued to the first respondent who, as a consequence, could not institute the original appeal to the Tribunal. Hence, the Tribunal did not have jurisdiction to hear and decide the purported appeal lodged by the first respondent. As a consequence, the Council argues that the appeal to the Tribunal should be struck out. Argument of Allied [22] Allied supported the Tribunal’s assumption of jurisdiction, rejecting the argument that it was without jurisdiction. [23] I confess I have not found it easy to understand Allied’s argument in this matter. Written submissions were first delivered by it on 21 May 2010. After spending a considerable number of hours reading them I was not confident that I understood them. I accordingly sought further written submissions asking that Allied address the issues raised by the appellant by reference to its submissions. Further submissions were delivered by Allied on 9 July 2010. Council also gave me further written submissions. Doing the best I can with Allied’s new submissions, it seems to me that the following is the kernel of its argument. [24] As outlined above, the regulation of the height of houses is dealt with both in the House Code under City Plan and by the QDC through operation of Building Act and Building Regulation. I shall deal with the operation of the latter first. [25] Allied says that the height of buildings is “building work” within the definition of that term in IPA s 1.3.5 which, relevantly, defines building work as: “Work regulated under the Assessment Provisions under the Building Act 1975 other than IDAS”.11 [26] The Building assessment provisions under the Building Act are set forth in BA s 30 which, relevantly, provides: 10 IPA section 4.2.9(2),(3). 11 IPA s 1.3.5(1)(b) -- 6 of 13 -- 7 “30 Relevant Laws and Other Documents for Assessment of Building Works (1) Building assessment work and self assessable building work must be carried out under the following laws and documents (the building assessment provisions) - (a) IDAS (b) Chapter 3 and this chapter; (c) …; (d) Any provision of a regulation made under this Act relating to building assessment work or self- assessable building work; (e) Any relevant local law, planning scheme provision or resolution made under s 32 or 33; (f) …; (g) Subject to s 33, the QDC 12 ” [27] From the above (g), Allied argues that in the assessment of the subject development application QDC Part 1.2 - P4 and A4 are the relevant criteria (QDC provisions). They provide: “Performance Criteria Acceptable Solutions P4 The height of a building is not to unduly – (a) overshadow adjoining houses; and (b) obstruct the outlook from adjoining lots A4 For lot slopes – (a) up to 15%, the building height is not more than 8.5m; and (b) of 15% or more, the building height is not more than 10m. [28] It is unclear to me whether Allied argues that the relevant sections of City Plan are planning scheme provisions under s 30(1)(e) above but, in any event, they are not because the City Plan was enacted under IPA and not under the BA.13 12 Queensland Development Code. 13 City Plan Ch 1 p 5. -- 7 of 13 -- 8 [29] Allied says that, insofar as there is non-compliance with the QDC provisions, the Integrated Planning Regulation 1998 (IPR) Schedule 2 paragraph 17 applies. It provides: DESIGN AND SITING Application Involving Referral Agency and Type Referral Jurisdiction 17. If – (a) The Queensland Development Code, Part 1.1 or 1.2 applies for building works; and (b) Under the Part, the proposed building or structure does not include an acceptable solution for a relevant performance criteria under the Part. The local government – as a concurrence agency. Whether the proposed building or structure complies with the performance criteria. [30] As the proposed height of the building is 9 metres and no acceptable solution is to be found within the relevant sections of the QDC, the Council, as concurrence agency, must determine whether the proposed building or structure complies with the performance criteria. That is the decision it is to make qua concurrence agency. [31] As I have outlined above, when the Council received the application for relaxation of the height requirement in the QDC it notified Allied that it was deferring decision as concurrence agency until the application had been made for approval for a material change of use. [32] To this point in Allied’s argument there is nothing controversial. But the argument is then developed to assert that the Council’s actions in deferring a decision as concurrence agency and seeking an application for a material change of use permit, in effect, meant that the Council had unjustifiably heightened its role from that of a concurrence agency to that of an assessment manager. -- 8 of 13 -- 9 [33] It appears to me that this argument proceeds on a misconception of the dual roles of the Council as assessment manager under IPA for a material change of use permit, and as the concurrence agency under the subject Application. [34] The Council in advising of its decision to defer consideration and decision upon the subject application was acting as a concurrence agency. Its request for an application for approval for a material change of use was made in a quite different role, namely as assessment manager under IPA. That latter request was triggered by the fact that the proposed construction height of 9 metres was to exceed the acceptable solution of 8.5 metres in the House Code City Plan. [35] For Allied to maintain that the Council was without power to act in its capacity as assessment manager under IPA would involve an interpretation of the BA giving it exclusive control in all situations over the height of buildings the subject of the relevant application. There is nothing in the BA or in Allied’s argument which would support that interpretation. [36] There is nothing remarkable about two different schemes dealing with the same subject matter for different purposes.14 That is borne out when one looks to the purpose of each Act. [37] The purpose of BA is said to be: “An Act to regulate building development approvals, building work, building classification and building certifiers, and for other purposes.” [38] The equivalent purpose of IPA15 is expressed as:- “The purpose of this Act is to seek to achieve ecological sustainability by:- (a) Co-ordinating and integrating planning at the local, regional and State levels; and (b) Managing the process by which development occurs; and 14 See State of South Australia v Tanner & Ors (1989) 166 CLR at 161 at 170 per Wilson, Dawson, Toohey and Gaudron JJ; Walker v Noosa Shire Council [1983] 2 Qd R 86 at 90 per Thomas J. 15 Section 1.2.1. -- 9 of 13 -- 10 (c) Managing the effects of development on the environment (including managing the use of premises).” [39] Further, when one turns to performance criteria P4 of the QDC above, it reads: “The height of a building is not to unduly: (a) Overshadow adjoining houses; and (b) Obstruct the outlook from adjoining lots.” [40] When one then turns to the House Code, its purposes are set as:- 16 • To ensure that houses and ancillary development are compatible with surrounding developments; • To ensure the height of a house allows for reasonable access to daylight and sunlight for neighbouring houses and their open space; • Ensure houses over 8.5 m above ground level do not adversely affect outlook or views; • To ensure that houses do not impact adversely on amenity; natural features or flooding; • To ensure that houses are located where impacts on the natural environment and water supply catchment values are minimised; • To ensure that houses are not subject to unreasonable hazards or noise because of their location; • To ensure that house design along the Brisbane River corridor and other waterways is compatible with the landscape character and values of the waterway.” [41] In the Housing Code the relevant height requirement in the performance Criteria P2 and acceptable solutions A2 are in these words: 16 City Plan Vol 1 Ch 5 p 99. -- 10 of 13 -- 11 “Performance Criteria Acceptable Solutions P2 Building height must not create overbearing development dwellings and open space on neighbouring properties. A2 No part of the house is more than 8.5 m above ground level. Non-load bearing aerials, antennas, flues, roof ventilators and chimneys are not considered part of the house for the purpose of determining building height.” Building height must be consistent with those houses prevailing in the immediate area [42] It can be seen from the above that the considerations relevant to the issue of height in the Housing Code are more extensive and have a different genesis. Decision on Jurisdiction of Tribunal [43] There is nothing in the arguments put forward by Allied to dislodge the basis of the Council’s argument that the Tribunal did not have the relevant jurisdiction. I find, consistent with the Council’s argument, that no such jurisdiction had accrued to the Tribunal with the result that its decision should be struck out. Adequacy of Reasons Given by Tribunal [44] The second ground of appeal is that the Tribunal was in error of law in failing to give adequate and proper reasons for its decision. Whilst it is not strictly necessary for me to decide this given the decision I have made on the jurisdiction of the Tribunal, I intend to do so. [45] As to the Council’s argument, I can do no better than to set out its submissions on the issue:- 17 17 Council’s Outline of Submissions, paragraphs 29 – 32. -- 11 of 13 -- 12 29. A tribunal or a court has a duty to give reasons. 18 Such a duty extends to the Building and Development Tribunal given that a right of appeal to the Planning and Environment Court exists. 19 Where there is a right of appeal only on a question of law it may be that the reasons need not canvass the facts as extensively as would be appropriate where an appeal lies on questions of fact and law.20 The reasons must be proper and adequate and inadequacy of reasons constitutes an error of law.21 30. The Tribunal’s decision under the heading “Findings of Fact” extracts passages from the written submissions made by the Building Certifier.22 Under the heading “Reason for the Decision” in the Tribunal’s decision “the Tribunal refers to and adopts the Submissions of the Assessment Manager, summarised in item 5 of the Findings of Fact in this decision.” 23 Nowhere in the Tribunal’s decision does it refer to the arguments set out in the written submissions made by the Council. There is no attempt to come to grips with the legal issues raised by the Council in its written submissions. 31. Those written submissions were material purportedly considered by the Tribunal. 24 They deal squarely with the requirement of Mr Mamczur to obtain a development approval from the Council as assessment manager before the Building Works Application could be decided by the Building Certifier. 32. The Tribunal, by failing to deal with the submissions made by the Council, has erred in law by failing to give proper or adequate reasons. The obvious inference to be drawn from the Tribunal’s decision is that it did not consider or properly consider the written submissions of the Council. Nowhere in the Tribunal’s decision does it address the requirement for Mr Mamczur to first obtain a development approval from the Council.” 18 Camden v. McKenzie [2008] 1 Qd R 39 at [29] per Keane JA citing Bawden v. ACI Operations Pty Ltd [2003] QCA 293 at [29]; Crystal Dawn Pty Ltd v. Redruth Pty Ltd [1998] QCA 373; see also RES 1 v. Medical Board of Queensland [2008] QCA 152 at paragraph 14 per Muir JA citing Cypress Vale Pty Ltd v. Retail Shop Lease Tribunal [1996] 2 Qd R 262 at 476-477; 488-484; Attorney- General and Minister for Justice v. Keogh [2001] 2 Qd R 350 and Martin v. Rowling & Anor [2005] QCA 128. 19 Camden v. McKenzie [2008] 1 Qd R 39 at [31] per Keane JA. 20 RES 1 v. Medical Board of Queensland [2008] QCA 152 paragraph 73 per Muir JA citing Soulemezis v. Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 280-281. 21 Camden v. McKenzie [2008] 1 Qd R 39 at [29] per Keane JA citing Bawden v. ACI Operations Pty Ltd [2003] QCA 293 at [29]; Crystal Dawn Pty Ltd v. Redruth Pty Ltd [1998] QCA 373; see also RES 1 v. Medical Board of Queensland [2008] QCA 152 at paragraph 70 per Muir JA citing Sasterawan v. Morris [2008] NSWCA 70 at [47]; Murray v. Legal Services Commissioner (1999) 46 NSWLR 234; Bawden v. ACI Operations Pty Ltd [2003] QCA 293 at [29]; Camden and Anor v. McKenzie & Ors [2008] 1 Qd R 39. 22 See paragraph 5 on p 205 of CD8. 23 See paragraph 1 at p 205 of CD8. 24 See item 4 under the heading “Material Considered in the Tribunal’s Decision” on p 204 of CD8. -- 12 of 13 -- 13 [46] In response, Allied submits that the Tribunal made no direct reference to the Council’s submission as a direct result of the fact that the Council failed, and continues to fail, to raise any relevant counter argument to the Allied’s submission to the Tribunal. 25 [47] But I cannot for a moment see that that is the case given the detailed arguments put before the Tribunal by the Council. I, therefore, reject Allied’s argument. [48] I agree with the Council’s submissions that the Tribunal did not, in its decision, address the Council’s case. It is not sufficient for the Tribunal to simply acknowledge consideration of the Council’s argument and deal with it no further. It is implicit in its decision that it did not accept the Council argument but it was duty bound to give reasons for that implicit rejection. In my view, the Tribunal’s failure to address the Council argument amounted to an error of law so as to result in the Tribunal’s decision miscarrying. [49] I accordingly find that the tribunal’s decision involved an error or mistake of law on its part in that inadequate reasons for its decision were given. Orders [50] I accordingly order that:- (a) the appeal be allowed; (b) the decision of the Building and Development Tribunal in Appeal number 03-09-064, made on 26 October 2009, be set aside set aside; and (c) the first respondent’s appeal to the Building Tribunal be struck out. 25 Allied’s First Outline of Submissions, paragraph 102. -- 13 of 13 --