Collard v Brisbane City Council [2009] QPEC 62 [2010] QPELR 6

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Collard v Brisbane City Council [2009] QPEC 062 PARTIES: CHRIS JOHN COLLARD (Appellant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 1487 of 2009 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court DELIVERED ON: 15 July 2009 DELIVERED AT: Brisbane HEARING DATE: 10 July 2009 JUDGE: Robin QC DCJ ORDER: (made 10 July 2009) Development conditions set by court order changed CATCHWORDS: Integrated Planning Act 1997 s 3.5.33 – Planning and Environment Court Rules 2008 r 3(2) – Uniform Civil Procedure Rules r 668 – after impact assessment, Council approved material change of use for small lot house to 9.5 metres above ground level – a neighbour’s submitter appeal was compromised on basis height was limited to 9.2 metres – new owner of site sought change of conditions to reinstate Council approval at 9.5 metres – according to a Show Cause notice issued by Council on the eve of the making of the order effecting the compromise, parts of the submitter’s residence with views and amenity said to be affected were constructed without approval – submitter not made a party, but had been ordered to be served – she could not be located, and whether service by post to her premises (her sole address for all known purposes) brought the application to her notice was uncertain – conditions changed – provision made to protect non-appearing submitter’s position COUNSEL: Appellant was self represented T Trotter for the Respondent SOLICITORS: Brisbane City Legal Practice for the Respondent -- 1 of 9 -- 2 [1] Mr Collard has recently purchased a small vacant block (under 450m2 ) at 127 Denman Street, Greenslopes on which he hopes to build a family home. He is frustrated by the provisions of an order made in this court in appeal BD2222 of 2008 on 22 January 2009 embodying certain plans, which he says (among other things) incorporate an inappropriately low ceiling height for the ground floor. The approval in the court’s order was for a development permit for a material change of use for a house over 8.5metres above ground level on a lot less than 450m2 and for a preliminary approval for building work. The approval package concludes with advice that it “does not include assessment against the Building Code of Australia and does not permit building work to occur. Prior to the commencement of any building work, development permit(s) for Carrying Out Building Work will be required.” Such a Development Permit will lack features important to Mr Collard unless conditions set by the court which control what it may allow are changed. The conditions effectively limit the house to the levels shown in the plans. [2] Section 3.5.33 of the Integrated Planning Act 1997 (IPA) provides: “3.5.33 Request to change or cancel conditions (1) This section applies if— (a) a person wants to change or cancel a condition; and (b) no assessable development would arise from the change or cancellation. (2) The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition. … (7) To the extent relevant, the entity must assess and decide the request having regard to— (a) the matters the entity would have regard to if the request were a development application; and (b) if submissions were made about the application under which the condition was originally imposed—the submissions.” [3] The respondent Council is broadly supportive of the application to change conditions but, in the interests of the integrity and proper functioning of the planning system, through Mr Trotter of Counsel raises various matters for consideration by the court. [4] The first matter concerns whether “assessable development would arise from the change”. Essentially, the change would increase the height of all vertical elements of the building above the floor at ground level by 300mm. The effect of that would be to reinstate the plans approved by the Council in July 2008. The Council became involved because the height of the house proposed meant that impact assessment was required, the proposal coming within the following category for Low Density Residential Area in Brisbane City Plan 2000: see Volume 1 Chapter 3, page 32 (amended 1 July 2007): -- 2 of 9 -- 3 Impact Assessment Relevant Codes … Generally Inappropriate … 2. House: • where on a lot less than 450m2 or with an average width less than 15m, or on a rear lot less than 600m2 • where not complying with the Acceptable Solutions in Part 1 of Residential Design—Small Lot Code House Code and Residential Design–Small Lot Code [5] In the Small Lot Code (Volume 1 Chapter 5 pg 155 (Amended 12 January 2007)), Section 4 Performance Criteria and Acceptable Solutions provides: Performance Criteria Acceptable Solutions Building Envelope … P2 Building height is consistent with those buildings prevailing in the locality Building height must minimise amenity impacts on other dwellings and their open space in terms of access to sunlight and daylight A2 Building heights are as specified in Table 1 Building Envelope Requirements. and as to building height in the following Table 1 Building Envelope Requirements: “Maximum of 7.5m above ground level at the side and rear walls, increasing at no more than 30 degrees to a maximum of 8.5m above ground level.” [6] The court hears that the Council rejected approaches for approval of a greater height (which preceded the lodging of the formal development application to it), but was satisfied (and issued an approval accordingly) that 9.5metres was acceptable in the circumstances. [7] Pursuant to the public notification associated with the impact assessment process, Nga Vu lodged a submission dated 26 May 2008. She is an uphill owner, whose street address is 106 Peach Street, Greenslopes. A copy of her submission is exhibited to Mr Collard’s affidavit: it objected to the blocking of views “on that side” of her house. The submission concluded: “I strongly object to any new building, seeking permission exceeding the legal standards and affecting the living conditions of my family.” -- 3 of 9 -- 4 [8] The submission was the foundation for Nga Vu’s appealing to this court in BD2222 of 2008 against the Council’s decision. The Notice of Appeal, lodged by solicitors, lists as grounds of appeal (in order) adverse effect on outlook and views, overshadowing, privacy issues, access to sunlight and daylight, a building height exceeding 8.5 metres above ground level, failure to minimise amenity impacts (“an overbearing development for the Appellant and her open space”), conflict with the planning scheme. [9] Nga Vu’s appeal was compromised on the basis that building height be restricted to 9.2 metres, as opposed to 9.5 metres. It appears that the parties were content to implement this by the relatively blunt expedient of reducing RL levels shown on the plans the Council had already approved by 300mm. As Mr Trotter observed, it is not possible to feel much confidence about the geometry or calculations involved in the exercise. Probably nothing turns on this. [10] Adherence to the approach taken in Dimensions Property Group Pty Ltd v Brisbane City Council [2009] QPEC 041 leads me to the view that for purposes of s 3.5.33(1), it should not be determined that assessable development would arise from the change Mr Collard seeks. I am conscious that the “purposive” approach I was persuaded to adopt (so as to preserve the utility s 3.5.33 seemed designed to have) could be seen as inconsistent with a strict, literal approach which had been indicated in a recent decision in this court; older decisions had taken a more accommodating line from the viewpoint of developers desirous of changing conditions. [11] Mr Collard is no more able than was the developer in Dimensions Property Group to proceed to actual development without a further authority. His case may be seen as stronger on the merits in that everything involved in the change has already been assessed with a favourable outcome by the Council. Mr Trotter is no doubt technically correct that while there was an approval briefly extant in respect of the bulkier proposal from the Council (albeit not one authorising actual work), that approval lost its potency when the Court became assessment manager in place of the Council upon appeal BD2222 of 2008 being commenced. [12] It is a comfort to be able to invoke Dimensions Property Group rather than have to yield to what strikes me as an excessively technical approach in the present circumstances which would commit Mr Collard to an entirely new development application, an entirely new impact assessment process including public notification – all at considerable cost, and yet, for all that appears, with little likelihood of a different outcome. [13] The next matter concerns the situation of Nga Vu, who is not a party to the present proceeding. Indeed, only the Council, of the parties in BD2222 of 2008, is before the court now. In the earlier proceeding, the co-respondent developer (presumably then the owner of the site or the owner’s agent) was AAD Design Pty Ltd. It is unclear whether Mr Collard would have had any ability to become a party in Nga Vu’s appeal. It is far from unprecedented for developers in his situation to commence a separate proceeding seeking to have development conditions set by the court in an earlier one changed (even if they were parties in it). Where persons with an interest established by their participation in the earlier proceeding are not joined in the new one, the court ought to be seriously concerned about whether their participation in the new one should be invited. See Habitat Development Group Pty Ltd [2009] QPEC 37. -- 4 of 9 -- 5 [14] The case for such an invitation being extended to Nga Vu is compelling. The purpose and effect of the application by Mr Collard is to deprive her of everything she gained from her own appeal. Her interest is clear. [15] Indeed, on 17 June 2009, when the originating application filed on 26 May 2009 was returnable, the court acknowledged that interest by ordering (according to the Associate’s endorsement on the Court Order Sheet): “That the applicant serve on Nga Vu a copy of the Originating Application under cover of a letter which also gives that person notice that the matter has been adjourned on 10 July 2009, and if she wishes to become a party to proceedings, she attend that review. Service is to be effective on or before 25 June 2009. Adjournment for review 10 July 2009.” [16] When the matter came on, on 10 July 2009, the lady was called, but did not appear. [17] The next matter Mr Trotter properly drew to the court’s attention (perhaps unnecessarily) that serious consideration ought to be given to is the possibility that Nga Vu remained unaware of this proceeding and its relevant history to date; the court would be concerned about this in any event. [18] Mr Collard gave oral evidence of his (and of his wife’s) attempts to serve Nga Vu with the Originating Application filed 28 May 2009 as directed under cover of a letter of his in terms apt to satisfy the direction dated 17 June 2009. A copy of the letter happens to appear on the court file bearing the court seal and stapled to Mr Collard’s “Application in pending proceeding” filed on 26 June 2009. [19] It is uncertain whether the Judge on 17 June 2009 intended to indicate that service by post was sufficient. I am satisfied that “service” in that way did occur of the Originating Application, which happens to include as “grounds” a full statement of relevant facts including the following: “5. After the Court decision was made, it was brought to my attention on the 16 th April 2009 by ‘The Planning Place’, that VU does not have development approval for the Eastern facing decking areas or other modifications she has undertaken to the third and fourth levels of her dwelling and a Show Cause Notice has been issued to VU by Brisbane City Council (please see attached Show Cause letter). The fact that VU used as grounds in her submission the loss of enjoyment of these decks is invalid as they are only usable to any great degree due to comfort afforded by the unapproved modifications. 6. At the time the decision was made by the Court in relation to 127 Denman St, I believe the Court was not aware that the Eastern facing decks of VU’s residence were unapproved additions to the property. The basis of VU’s objection to our development is centred on the restriction of suburban views from an unlawful decking area at her own property 106 Peach St. -- 5 of 9 -- 6 7. On the 15 th of May 2009 I had conversations with VU in which she stated that the main objection to the height was due to her not wanting to set a precedent for possible development of her northern neighbours on Peach Street thus restricting her city views. Further, during an attempt at reaching a compromise VU verbally agreed to removing her objection to the 9.5m height of 127 Denman Street if our submission in relation to her application was withdrawn. However, on attempting to get the agreement in writing, VU withdrew her support citing the reason being that they had spent considerable funds opposing the development height. 8. I would like the Court to consider the new evidence: VU’s primary objection concerning Eastern views are from unlawful decking areas; VU’s residence is 12.63 metres in height compared to our requested development of 9.5 metres; VU’s residence sites at a natural ground level above 127 Denman St; and she has uninterrupted panoramic views from the top two levels of her property regardless of our development.” [20] As Mr Trotter says, and as Mr Collard acknowledges, the relevant letter may well not have been received. It was sent on 17 June 2009 and has not been returned by Australia Post to Mr Collard. The posting of it came on top of multiple attempts to serve the addressee personally at 106 Peach Street and an attempt to get it (and contents) to her via her solicitors in appeal BD2222 of 2008; they declined to offer assistance relevant to preserving their erstwhile client’s gains; they may have been in no position to provide assistance in that regard anyway. [21] In the context of attempting to identify some useful address for service of a copy of the order which the court made on 10 July 2009 on Nga Vu, reasonably extensive enquiries were made in a quest to unearth any address other than 106 Peach Street, Greenslopes. Nothing was found. Council records indicate that the address for rates (which presumably are duly paid) was 106 Peach Street. Nga Vu is on the electoral roll at that address. In her Notice of Appeal in BD2222 of 2008 filed 19 August 2008 one reads that she owns and resides at 106 Peach Street, Greenslopes. She has made a development application relating to that address to the Council in April 2009 (perhaps to deal with matters raised in the Show Cause Notice referred to elsewhere) in which that is given as her only address; her agent for purposes of that recent development application (the court hears) advised that he has no contact address other than 106 Peach Street, that he sent an account there in the middle of April 2009 which was paid on 29 April. [22] That no other address can be identified does not mean that documents sent to it have come to Nga Vu’s notice. Mr Collard, who is not living at Greenslopes, can point to no signs of current occupation observed on his frequent visits there; he has not checked whether there are any vehicles in the garages; he has not noticed mail overflowing the letterbox to bespeak absence of the householder without making arrangements to clear it. -- 6 of 9 -- 7 [23] In the circumstances, there seems to be absolutely no point in adjourning the matter for hearing on another date in the hope that Nga Vu might turn up then. I consider it preferable to proceed in her absence on the basis (which I am satisfied Mr Collard understands) that she will have the right of every litigant in whose absence orders are made to approach the court to seek changes to them if some arguable case on the merits supporting a change can be demonstrated. [24] It is a matter of speculation whether matters to do with Mr Collard’s Ground 8 have anything to do with Ms Vu’s non-appearance. She and a gentleman have been issued with a Show Cause Notice from the Council dated 21 January 2009 (i.e. the day before making of the Consent Order in BD2222 of 2008). The Show Cause Notice is said to be based on an inspection on 28 November 2008 and subsequent searches of Council records revealing a development application made on 2 April 2002 for an extension to a house in excess of 8.5 metres in height and that no development approval for extension and alterations has been granted. The Show Cause Notice asserts a reasonable belief that a development offence has occurred and continues because assessable development has been carried out without an effective development permit for it. The allegations appear to be serious: “5. The inspection revealed the following has been constructed: (a) An extension to the second floor in the form of a roofed patio. (b) An Additional storey has been added. (c) Modifications to an existing roof faced. (d) A new roof over existing terrace. (e) An existing sunroom has been extended. (f) A new roof over the existing terrace.” [25] In the absence of submissions on the point, I proceed on the basis that there is no relevance, as regards Ms Vu’s standing to pursue her interests in BD2222 of 2008 or in this proceeding or generally, arising from unlawfulness of the structures from which she may enjoy the views or other aspects of amenity she refers to. If the allegations against her are correct, it is apparently a case of the pot calling the kettle black to invoke P2 (building height is consistent with those buildings prevailing in the locality) as her own house dwarfs Mr Collard’s proposal. What is significant is that it is well established that in our system there is no such thing as a general right to a view. See authorities collected in Calvisi v Brisbane City Council [2008] QPEC 45 at [13] and [14]. Greenslopes is not one of those areas in which City Plan contains special provisions calculated to preserve or protect views in some special way. This observation is pertinent to the court’s obligation under s 3.5.33(7) to consider Nga Vu’s submission The “view” aspect may be discounted. In suburbia one can hardly complain at having constructed next door something resembling one’s own structures, as a general principle. Views looking downhill (except from Nga Vu’s top (third) level) may be blocked, but it is patent exaggeration to complain of overshadowing, lack of privacy, shutting out light, etc. Nothing about the submission dissuades me from granting the relief Mr Collard seeks. [26] Nothing in this regard appears from the endorsements, but the court accepts from Mr Collard and Ms Johnston (Mr Trotter’s instructor), who was there on 17 June 2009, that the court, very likely having in mind difficulties about an application under s 3.5.33 if -- 7 of 9 -- 8 the change were one by which assessable development would arise, as on a strict interpretation would appear to be the case given a 300mm increase in height, notwithstanding the Council’s endorsement on development of that height, raised the possibility that a more suitable basis for the application might be r.668 of the Uniform Civil Procedure Rules: “668 Matters arising after order (1) This rule applies if— (a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or (b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order. (2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief. (3) Without limiting subrule (2), the court may do one or more of the following— (a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just; (b) set aside or vary the order; (c) make an order directing entry of satisfaction of the judgment to be made.” It may be that r 3(2) of the Planning and Environment Court Rules supports recourse to r 668. [27] This accounts for Mr Collard’s having filed on 26 June 2009 his application in pending proceeding in terms based on that rule. It does not appear that any attempt at service of this new application on Nga Vu was made. In those circumstances, I do not think the court ought to proceed to make an order adverse to her interests based on the detailed statement of grounds in the r 668 application. I will note that the court received as Exhibit 1 an irregular “affidavit” (it had come to the registry in facsimile form) of Mr Vause, apparently as principal of AAD Designs, deposing that had he known of the “Show Cause Notice for unapproved extensions including the fourth level of her house” he would not have agreed to the height reduction but would have proceeded with the court hearing “asking for 9.5m height as approved by Council”; he opines that he would have had the Council’s support, in particular if Council turned attention to the Show Cause Notice. [28] Assuming, for the sake of argument, that the conditions for recourse to r.668 are made out, I would require some persuasion that the UCPR provisions standing alone could be used to change development conditions set by a court order in light of the legislature having made specific provision for the court being asked to change the condition. The IPA establishes rules that apply in that situation which I think the court must respect and comply with. -- 8 of 9 -- 9 [29] As indicated above, my view of the way in which s 3.5.33 works in the circumstances of the present case is that, applying the purposive approach (see Dimensions Property Group at [15]), “no assessable development would arise from the change” asked for. [30] It is significant that Mr Trotter, while reminding the court of the difficulty raised by Hayday Pty Ltd v Brisbane City Council [2006] QPELR 40 at [7]-[8], otherwise raised no obstacle to the court proceeding in the way that it did. (That observation is subject to the Council’s concern (which the court shares) for Nga Vu’s situation.) [31] The orders made on 10 July 2009 at the conclusion of the hearing (when it was foreshadowed that reasons would be given in due course) were: 1. The conditions of the development approval granted by the order of Judge Searles in appeal no. 2222 of 2008 (Nga Vu v Brisbane City Council and AAD Design Pty Ltd) of 22 January 2009 be changed by disregarding all amendments made in red and dated 21 November 2008 on the approved plans Sheet 7 of 9 and Sheet 8 of 9 included in the order (the effect of which is to reinstate the plans approved by the Council on 18 July 2008); 2. Subject to further order of the Court, the change be effective 14 days after service of a copy of this order on Nga Vu, by posting prepaid to 106 Peach Street, Greenslopes; 3. Such service is to be deemed effective the second business day after posting and is to be established by the filing of an affidavit deposing to it; 4. Alternatively, service may be effected by personal service on Nga Vu at the above address or elsewhere, which service shall be deemed effective immediately; 5. Liberty to apply is reserved to the parties, also to Nga Vu. -- 9 of 9 --