Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2009] QPEC 86

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2009] QPEC 86 PARTIES: Cairns Aquarius Body Corporate Committee First Appellant And Raewyn Stobbs Second Appellant V Cairns City Council Respondent And RSL Australia Cairns Sub Branch Co-Respondent FILE NO/S: Cairns 30/2009 DIVISION: Planning and Environment PROCEEDING: Application for determination of preliminary points ORIGINATING COURT: Planning and Environment Court of Queensland, at Cairns DELIVERED ON: 29 September 2009 DELIVERED AT: Brisbane HEARING DATE: 22 June 2009; written submissions received up to 9 July 2009 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Declare that the Notice of Appeal herein does not in its terms only relate to those parts of the development application which required impact assessment 2 Strike out paragraphs 9, 10, 11, 16 and 17 of the Notice of Appeal 3 Declare that the Co-respondent has not failed, in respect of public notification, to comply with s 3.4.4 of the Integrated Planning Act 1997 4 Dismiss the Co-respondent’s application for costs -- 1 of 10 -- 2 CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – where application for determination of preliminary point – where approved development application contains both impact and code assessable development – whether appeal may extend to code assessable aspects of the development application, despite s 4.1.28 Integrated Planning Act 1997 – whether notice of appeal attacks parts of the development application which may not be appealed – whether public notification of the development application complied with s 3.4.4 of the Integrated Planning Act 1997 Integrated Planning Act 1997 s 1.3.2, s 1.3.5, s 3.4.4, s 3.5.14, s 4.1.23(2)(b), s 4.1.28, s 4.1.5A, s 4.1.52(2)(b), s 4.2.1, s 4.1.2A Uniform Civil Procedure Rules r171 Cases Cited: Bell v Brisbane City Council [2005] QPELR 117 Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31 Eschenko v Cummins [2000] QPELR 386 Fox v Brisbane City Council (2003) 127 LGERA 390 Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2009] QPELR 123 Halfback Pty Ltd v Logan City Council [2003] QPELR 552 Hamill v Brisbane City Council [2004] QPEC 030 Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 Morgan-Phoenix v Gold Coast City Council [2007] QPEC 031 Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] QPELR 333 State of Queensland v Ipswich City Council [2002] QPELR 559 S & L Developments Pty Ltd v Maroochy Shire Council [2008] QCA 296 COUNSEL: D P Morzone for the first and second Appellants W L Cochrane for the respondent Council T Fantin for the Co-Respondent SOLICITORS: Miller Bou-Samra Solicitors for the first and second Appellants King and Company Solicitors for the respondent Council MacDonnells Law for the Co-Respondent -- 2 of 10 -- 3 [1] The Cairns RSL has a lowset club building at the corner of The Esplanade and 1-3 Florence Street, in Cairns City 1 . Last year a development application was made to Council for a new development on the site involving an overbuilding of the existing structure, incorporating a tavern and facilities for indoor sport and entertainment; and multi-unit housing and holiday accommodation comprised of 69 apartments located in two towers of 10 and 15 storeys. The tavern and indoor sport and entertainment facility would be located up to level 3, and the accommodation in levels 4-15. [2] Council approved the development application. The first and second appellants had made submissions about it and, when it was accepted, appealed against Council’s decision. The RSL complains that the notice of appeal wrongly purports to attack parts of the development approval which are not, in truth, appellable because they are designated, under the planning scheme and with reference to the Integrated Planning Act 1997 (IPA), code and not impact assessable. That question has been brought before the court for determination as a preliminary point2 . [3] Another preliminary point has also arisen: the appellants assert that some aspects of RSL’s public notification of the development application (a process required under IPA) failed to comply with s 3.4.4 of that Act 3 . [4] At the hearing evidence was adduced from RSL’s architect Mr Amerio, and Mr Gleeson, an architect engaged by the appellants. Their evidence was primarily directed towards aspects of the structure of the proposed new development and, in particular, the degree of interconnection between the tavern and the indoor sport and recreation part of the structure on the one hand, and the multi-unit housing and holiday accommodation on the other. [5] Under Council’s planning scheme the land is in the CBD North Cairns Planning District, and the tourist and residential planning area. In that area, tavern and indoor sport and entertainment are impact assessable uses, but multi-unit housing and holiday accommodation are code assessable. [6] Because the appellants’ case hinges on the proposition that the impact and code assessable uses are inextricably linked and integrated with each other, it is appropriate to make some findings of fact about the development proposal arising out of the evidence of Mr Amerio and Mr Gleeson; and from the unchallenged affidavit evidence of Mr Peter Turner, an officer of the RSL Club. [7] As Mr Amerio said, and existing plans illustrate, the two proposed uses were effectively designed as separate entities with separate entrances, lift access and car parking to enable them to operate separately without interference from each other. They share facilities limited to vehicle access driveways, fire escapes, and possible cross-utilised parking but, as Mr Gleeson appropriately conceded, the links between the two are minor in the overall scheme of the building. The uses are largely separate and discrete and do not rely upon each other to function effectively as individual uses. The club will be regulated by the requirements of its members and guests, but the accommodation towers will be managed by a separate body corporate. The club lifts will not extend beyond level 3. The structure of the 1 Described as lots 1, 2 and 3 on RP 701185; lot 39 on C 1983; and, lot 21 on C 198158. 2 Notification of Preliminary Issues filed 1 May 2009. 3 Ibid. -- 3 of 10 -- 4 accommodation towers will continue through the podium into its own sub-structure and will not rely upon the club structure. The club could be relocated or modified without interruption to the structure for the accommodation towers. [8] All of this arises, of course in the context (as Mr Gleeson conceded) of approved schematic drawings which are, however, only preliminary in nature. Structural design is to be undertaken at a later stage. It was also apparent, during Mr Gleeson’s evidence, that the appellants’ primary concern is the height of the building and its effect on their views and amenity in the immediately adjoining building, Cairns Aquarius, to the south. [9] The argument about the appellants’ claimed right to attack, in the appeal, those parts of the development approval which appear to relate to a code assessable use is not without complexity. That complexity springs from the respective meaning of certain words in IPA, and a decision of the Court of Appeal (Fox v Brisbane City Council (2003) 127 LGERA 3904 ) which has been criticised by several legal commentators. [10] The argument starts with IPA s 4.1.28, which provides that ‘submitter’ appellants (the appellants here) may only appeal to the court against that part of the approval relating to the assessment manager’s decision under (relevantly) IPA s 3.5.14. That section refers only to applications for development requiring impact assessment. [11] Development is defined in s 1.3.2 as, relevantly, carrying out building work; and, making a material change of use of premises. Building work is defined in s 1.3.5 to include building, underpinning, moving or demolishing a building or other structure. Material change of use is defined in s 1.3.5 to mean the start of a new use of premises, or the re-establishment on the premises of a use that has been abandoned, or a material change in the intensity or scale of the use of premises. [12] Use, in relation to premises, is defined in IPA schedule 10 to include any use incidental to and necessarily associated with the use of the premises. Premises means a building or other structure or land. It will be noted that the extended definition of use applies only to any use (but not building work) incidental to and necessarily associated with the use of premises. [13] The question whether, in cases involving approvals encompassing a development with both impact and code assessable aspects the appeal may, despite s 4.1.28, legitimately extend to the latter has been touched upon in decisions of this court. [14] In Halfback Pty Ltd v Logan City Council [2003] QPELR 552 the application involved development also attracting both varieties of assessment. The appellant argued that the entire application was before the court for determination and as there had been, in truth, only one application to Council the court was seized of it in its entirety, and all contentious aspects of it had to be considered. The appeal related to an application for a material change of use seeking approval for a retail showroom and commercial premises. While most of the subject land was zoned commercial there was a strip at the rear of it which was differently zoned. The uses for which approval was sought were code assessable in the commercial zone, but impact assessable in that other zone. 4 Jerrard JA and White J, de Jersey CJ dissenting. -- 4 of 10 -- 5 [15] The appellants here have seized upon something which fell from Brabazon QC, DCJ in Halfback when he was considering the extent of the appellants’ rights of appeal, and said: [17] In this case the ‘decision being appealed’ is confined to part of the Council’s decision dealing with 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, a decision of the local authority would be replaced by act of the court. (emphasis added). [16] The issue also arose in Bell v Brisbane City Council [2005] QPELR 117 in which it was alleged that code assessable demolition work of old dwellings on a site which was also the subject of an impact assessable application for a material change of use was so integrally connected with the latter (or was incidental to and necessarily associated with the material change of use) that the appellants might, in their appeal, obtain adjunctive relief preventing the demolition proceeding. As in Halfback, however, it was accepted that there was no ‘inextricable link’ and the relief should be refused. [17] Here, as I understood the appellants’ submissions (and it is appropriate to quote from them) 5 , a ‘significant issue in this appeal relates to the impact of the size, bulk and height of the building contemplated in the development.’ It is said that those issues are not related to the code assessable uses or the height of the proposed use but the height of the ‘development’ and in particular the ‘building accommodating the impact assessable uses which has a podium and tower with a maximum height of 47.8 m above the ground floor level’. The primary question, it is said, is whether the ‘… building is incidental to and necessarily associated with the impact assessable parts of the development’. [18] The proposition is advanced in other terms but, I think, to essentially the same effect. It is said that the high rise accommodation building is ‘… as a whole … inextricably linked and integrated with the material change of uses of indoor sport and recreation and extension of tavern’. It is also said the question is not whether uses, or premises are incidental to or necessarily associated with each other but rather, as was remarked in Halfback that this is a case where the ‘… decision of the court necessarily involves some consequential issue, so that there is an inextricable link between the two issues’. It is said, too, that the premises which would house the new uses are ‘structurally indivisible’ and that the ‘whole building’ is unavoidably involved in the impact assessable uses so the court must consider the ‘built form’ as part of the impact assessment. The question for the court, it is suggested, is: ‘how much of the building is relevant to impact assessment?’ [19] For reasons which will shortly be explored these arguments involve a misapprehension of terms used in IPA and referred to earlier – in particular, development, use, and building work. It is also appropriate to observe, however, that even if this was a case in which there appeared to be an ‘inextricable link’ between issues of the kind touched upon by Brabazon QC, DCJ in Halfback at paragraph [17] (and I do not think it is), the evidence already adduced from the 5 Outline of argument 18 June 2009; supplementary submissions 29 June 2009; and, reply submissions 6 July 2009. -- 5 of 10 -- 6 architects is sufficient for the court to make a decision on the nature and extent of any link now. [20] If it was necessary to decide that question, the evidence compels the answer that there is not, in truth, any inextricable connecting issue between the code assessable, and impact assessable parts of the development application. While there is a degree of tangible interconnection between the structures, that does not extend to any material overlapping of the uses to which each is intended to be put – and, in particular, the uses identified in the development application which were properly the subject of assessment by the assessment manager. [21] The appellants’ contention is that, following the reasoning of Brabazon QC DCJ in Halfback and, also in Fox v Brisbane at first instance 6 , the ‘… building forms and integral part of the development as a whole’ and is ‘… incidental to and necessarily associated with the impact assessable uses.’ The phrase ‘incidental to and necessarily associated with the use of the premises’ relates, however, to a use and, here, the code assessable part of the development application relates to the demolition of existing structures, and the construction of a new building. Both, under IPA, are not uses but building work. [22] The scheme of IPA, it seems to me, involves an acknowledgement that the carrying out of development may involve a number of different categories of development. As de Jersey CJ observed in Fox v Brisbane7 , the statutory regime breaks ‘development’ into its constituent parts and contemplates different applications for different approvals leading to particular assessments with respect to those various categories of development. [23] The meaning of the phrase ‘incidental to…(etc)’ was also considered by the Court of Appeal in Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31 in which it was said to mean that the use must be ‘unavoidably’ or ‘inevitably’ involved, connected or associated with the principal use8 . The phrase has also, generally speaking, been given a narrow interpretation so that it is necessary to establish some inevitable or unavoidable connection between the new or different activity, and the primary or original use 9 . [24] It does not sensibly apply to the circumstances arising here. The impact assessable use of tavern and indoor sport and recreation, and the code assessable use of multi- unit housing and holiday accommodation are plainly designed as separate and distinct uses, able to operate without interference from each other. Indeed, if the code assessable towers were not built the impact assessable use could proceed to construction and operate unaffected; and, vice versa. Nor is either economically dependent upon the other. Both are significant in their own right and neither can properly be seen as simply a minor aspect of, or adjunctive to, the other. [25] As I understood the appellants’ arguments, because the two elements of the development application will be contained in structures which are interconnected those parts of the application must themselves, therefore, be inextricably linked and integrated. That approach ignores, however, the distinctions IPA makes between 6 Fox v Brisbane City Council [2002] QPEC 049. 7 Supra, at para [28]. 8 This approach was accepted in Fox v Brisbane City Council (supra). 9 Morgan-Phoenix v Gold Coast City Council [2007] QPEC 031. -- 6 of 10 -- 7 building works on the one hand, and a use on the other and is contrary to the approach adopted in the cases just mentioned about the proper meaning of the phrase ‘incidental to and necessarily associated with’ the use of the premises. [26] As remarked earlier, Fox v Brisbane is a decision which has excited some adverse commentary. There, the appellants made two applications to develop adjacent land. The first involved a development approval to reconfigure a lot and a preliminary approval for operational works including excavation and filling. The second was for a preliminary approval for a material change of use, a development permit to reconfigure the lot, and a preliminary approval for carrying out operational work. The assessing authority, Brisbane City Council, determined that the first was code assessable and did not require public notification, but the second was impact assessable. At first instance this court held that the first approval was invalid and that the application should have been treated as one for building work and a material change of use, which therefore required impact assessment. The Court of Appeal, by a majority decision (de Jersey CJ dissenting) upheld that decision. [27] Professor Fogg has argued that this court’s conclusion that the earthworks in stage 1 constituted building work which was ‘incidental to’ the construction of buildings in the second stage was premature, and speculative 10 . Dr Phillipa England says, in the second edition of her text Integrated Planning in Queensland, at 105: The decision increases uncertainty as to the role of … the planning scheme in supplementing and building upon the generic definitions of development in the IPA. The effect of the decision is that any type of development may, despite its classification in the planning scheme, be held to amount to a material change of use taking into account ‘the purpose of the work, in scale and other questions of fact and degree’. [28] Mr Fynes-Clinton, in his commentary on the Integrated Planning Act 11 says that the decision fails to appreciate the essential distinction in IPA between development and use; and: With respect to the court, use is an ongoing concept and describes what happens after development has occurred. Earthworks have nothing to do with the commencement or ongoing operation of an industrial use as such. The schedule 10 definition is relevant to the scope of use which is lawful after development has occurred, but it is not a definition relevant to development, except possibly for the purpose of determining whether new activities which are incidental to a current use in fact constitute a new use. In the author’s respectful view, the earthworks in that case were operational works which formed one component of the development which would ultimately have led to commencement of the new industrial use of land – a use which would not commence until after that development had been carried out, and a use which patently did not include earthworks as an ancillary component. [29] Here, the appellants’ 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 necessary associated with each other, but whether uses have that feature. 10 Fogg, Meurling & Hodgetts, Planning & Development Queensland, commentary at paras [1325], [1357] and [1385]. 11 Integrated Planning Act and Commentary, Local Government Association of Queensland Inc., p 9. -- 7 of 10 -- 8 [30] It will be observed, too, that all the cases considering the phrase are about the connection between uses, not the connections between uses and a building, or the uses and the land. In any event, as already observed, the impact and code assessable uses here are separated, functionally and physically, within the building. They are not inextricably linked and integrated with each other, nor incidental to and necessarily associated with each other. [31] In supplementary submissions, it was said for Cairns Aquarius that the appellants contend that the building as a whole is inexplicably linked, and integrated with, and therefore an essential component of the impact assessable uses of indoor sport & entertainment, and extension of tavern. Against this it is said the respondent and co- respondent wrongly contend that only the podium and below it should be considered. Cairns Aquarius says the proper approach is for the court to assess the new building as an aspect of the use. [32] For the reasons already explored both the developments and the uses are discrete and assessable in different ways under the planning scheme. The appellants’ arguments that because the different uses are part of one planned structure and one is impact assessable, that basis of assessment should also be applied to the other, co- assessable development is unsustainable. It might have been possible for the appellants to challenge Council’s decision by way of proceedings for declarations pursuant to IPA s 4.2.1, which is analogous to judicial review proceedings12 but that has not occurred. It should also be observed, for the sake of completeness, that this is not a case where there is any suggestion that the code assessable uses have a double character or a double effect13 . [33] For these reasons, the appellants’ attack upon the code assessable parts of the application for development and the approval of them offend s 4.1.2A. The question then is whether or not certain particular paragraphs in the notice of appeal ought to be struck out. Striking out parts of the Notice of Appeal [34] This court has accepted that an application to strike out part of a notice of appeal is analogous to an application to strike out a pleading under the Uniform Civil Procedure Rules, r171 for ‘disclosing no reasonable cause of action’ 14 . [35] Paragraphs 9, 10, 11, 16 and 17 of the Notice of Appeal offend IPA s 4.1.28 and disclose no reasonable cause of action. In paragraph 9 the appellants assert that the proposed development is in conflict with provision 4.7.16 of the Planning Scheme’s Multi-Unit Housing and Holiday Accommodation Code but admit that that code is the proper basis for assessment for the use on the land. On its face the code applies to development that is assessable and to a material change of use of premises for multi-unit housing or holiday accommodation – exactly what occurs here. The plain applicability of the code, and that this part of the proposed use is code assessable, places paragraph 9 in plain contradiction to the provisions of s 4.1.28 and it should be struck out. 12 For example, Eschenko v Cummins [2000] QPELR 386. 13 As considered and explained by Robin QC, DCJ in State of Queensland v Ipswich City Council [2002] QPELR 559. 14 Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2009] QPELR 123 at 125; and, Hamill v Brisbane City Council [2004] QPEC 030. -- 8 of 10 -- 9 [36] The same conclusions apply to paragraph 10 with its reference to the Shopping and Business Facilities Code; paragraph 11, and the Residential Planning Area Code; paragraph 16, and provision 4.6.5 of the Height and Impact of Buildings Code; and, paragraph 17 and provision 4.6.7 of the operational aspects of the Cairns International Airport Code. [37] In the premises, each of the offending paragraphs should be struck out. Public notification [38] Cairns Aquarius initially asserted that by omitting a specific reference to ‘defence credit union offices’ and/or ‘business facilities’ from its public notification, RSL had failed to comply with IPA s3.4.4. The public notification on its face referred only to ‘ancillary office facilities’. [39] Evidence adduced for the purposes of the hearing establish, however, that defence credit union offices were never intended to be included and, so, were also never required to be included in the public notification. In its supplementary submissions Cairns Aquarius acknowledged this but asserted that RSL should delete references to ‘defence union offices’ by changing its application and the appeal could then proceed pursuant to IPA s 4.1.52(2)(b). [40] As the current President of the RSL, Mr Turner, and its architect, Mr Amerio explained, however, a reference to ‘Defence CU’ was only included in two plans and was conceptual or theoretical only. Other plans simply referred to office facilities. The plans show proposed office space which is ancillary to the principal use of the RSL sub-branch and club facility. All of this is not disputed. [41] The public notice on the development application properly describe the material change of use for a tavern, two function rooms, ancillary office facilities, and multi- unit housing/holiday accommodation. The supporting information lodged with the application also referred, only, to ancillary office facility. [42] The purpose of public notification under IPA is to give the public the opportunity to make submissions, including objections and, later, secure right of appeal about the assessment manager’s decision. Unlike its predecessors IPA does not require that the notice set out the particulars of the application and, as the Court of Appeal explained in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476, the Notice applies the basic information to interested persons about where the identified developments take place, how to obtain details of the proposal, and the time for making submissions. It is, as Jones J said15 : …little more than a broad record of the parties, property and type of development 16 [43] Elsewhere it has been acknowledged that the question whether the notice was in fact misleading is a question of fact 17 . Here, I am satisfied, the notice was clearly sufficient to delineate the nature of the proposal so that an interested person would 15 At para [19]. 16 And, see, more recently S & L Developments Pty Ltd v Maroochy Shire Council [2008] QCA 296. 17 S & L Developments at [20]. -- 9 of 10 -- 10 be put on notice and moved to search the Council’s file. It is impossible to see how anyone would have been misled by the reference to ‘Defence CU’. [44] Even if a different view had been reached this is an instance where IPA s 4.1.5A could be applied if necessary (and I do not think it is) to excuse any breach. Costs [45] Having succeeded, RSL seeks costs under IPA s 4.1.23(2)(b) which allows the court to depart from the usual rule (that each party would bear its own costs) where proceedings or part of them can be categorised as frivolous or vexatious. RSL points to the fact that after Cairns Aquarius’ Notice of Appeal was filed on 6 February 2009 it promptly raised, on 17 March, the contention that challenges to code assessable parts of the development in Cairns Aquarius Notice of Appeal were unsustainable and should be withdrawn and, if not, costs would be sought. [46] While RSL has succeeded it cannot be said that Cairns Aquarius position was unarguable. Certainly, it cannot be described frivolous or vexatious in the sense of being obviously untenable, manifestly groundless or utterly hopeless 18 . [47] In Bell v Brisbane City Council 19 arguments having some similarity to those raised here were also advanced, and rejected; but, no costs order was made because the arguments, while unsuccessful, could be sourced to the difficult decision of the Court of Appeal in Fox. That circumstance also applies here and, again, it can be said that the issue of the submitters appeal rights about impact assessable uses vis-à- vis code assessable uses in connected structures has not been the subject of extensive judicial attention. [48] Cairns Aquarius relied, essentially, on a short passage in the decision in Halfback Pty Ltd v Logan City Council 20 and the analogous discussion in Fox. Really, the position has not improved, in terms of judicial guidance, and guidance, since Fox. Once that is appreciated it can be said that here, as in Bell, the arguments advanced were adventurous but, on no view, untenable, hopeless or unsustainable. In those circumstances I see no reason to depart from the usual rule that each party bear their own costs. 18 Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] QPELR 333. 19 Supra. 20 Supra. -- 10 of 10 --