Auspacific Engineers Pty Ltd v Brisbane City Council [2008] QPEC 56

1 [2008] QPEC 56 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 495 of 2008 AUSPACIFIC ENGINEERS PTY LTD Appellant and BRISBANE CITY COUNCIL Respondent BRISBANE ..DATE 08/08/2008 ORDER CATCHWORDS: Integrated Planning Act 1997 s 3.2.7, s 4.1.52(2)(b) - extent to which court should take into account effects of code assessable development on persons affected who have no right to make submissions or participate in an appeal - circumstances in which additional information included in plans did not constitute change, minor or otherwise -- 1 of 7 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court has made an order in terms of an initialled draft. This is an appeal against deemed refusal by the Council in respect of development applications for three aspects of operational works in connection with a residential sub-division. The appellant was anxious that the Court be aware that there's an ongoing common law dispute involving it and the owners of other land in the locality, which has been described as Lot 2; their name appears to be McAllister. The development applications being code assessable, the McAllister interests had no entitlement to be heard in the assessment process and have none to be heard in the Court. Unsurprisingly, the Court hears that the Council has a large file of communications with those interests which the Council has taken some trouble to accommodate. Material before the Court in Mr Spence's affidavit corroborates this. It hasn't been possible, it seems, to arrive at common ground. At least one particular proposal about access to Lot 2 encapsulated in drawings, exhibited by Mr Spence, came to nothing. It's one of the features of the categorisation of many kinds of development application as code assessable that persons concerned about the proposal, neighbours in particular, are deprived of the entitlement to have their views taken into account and to participate in appeals like this. In many instances, that is doubtless productive of dissatisfaction. -- 2 of 7 -- 3 ORDER 1 10 20 30 40 50 60 It's unsurprising that those so excluded may wish to communicate views to decision makers and I think it's well known that there are many instances in the planning field in Brisbane in which such persons are invited to communicate views to the Council - typically, with a warning that this is a matter of indulgence rather than one of right which may carry with it the right to participate in an appeal. I was interested to be supplied by Mr Gore QC, appearing with Mr Houston for the appellant, to a reference to D'Arcy v Municipal Council of Inverell (1925) 25 SR (NSW) 102, in which Street CJ said at 107: "When in the course of kerbing or guttering a road, access to the property of adjoining owners is interfered with, provision for this is generally a matter of arrangement between the landowner and the constructing authority, but there is no rule of law which provides that a local governing body, in exercising its statutory power of making or draining roads, is bound, as a matter of duty, not to interfere with the means of access to adjoining properties. To hold that such a duty existed would, in my opinion, be contrary to principle, and would impose an excessive and intolerable burden on such bodies. The precise point was raised, and decided adversely to the plaintiff's contention, in East Fremantle Corporation -v- Annois [1902] AC 213. There the municipality in the exercise of its statutory authority, in order to improve a street, reduced the gradient opposite to the respondent's house so that it was left on the edge of a cutting with a drop -- 3 of 7 -- 07082008 T(3)04/SKH(BNE) M/T BRIS26 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 of about 6 or 8 feet to the road. She brought her action complaining that she had been deprived of access to her house, but it was held that she was without remedy, as none was given by statute and as the municipality had not exceeded its powers. Lord Macnaghten said (at p. 217): 'The law has been settled for the last 200 years. If persons in the position of the appellants, acting in the execution of a public trust and for the public benefit, do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual the individual injured cannot maintain an action. He is without remedy unless a remedy is provided by Statute.'" In Queensland, relevantly, control of roads in an area is vested in the local Government by section 901 of the Local Government Act 1993. The following sections deal with matters such as re-alignment and the possibilities of compensation which may be there for land-owners adversely affected. There are particular provisions in sections 917 and 918 in relation to the fixing of road levels and compensation possibilities if fixed levels are changed. I had occasion to consider those provisions in Berry v. Caboolture Shire Council [2001] QPEC 060 in which the disadvantages which arguably followed a change in road levels appear to be very similar to those which concern the McAllisters. On the information the Court has, their concerns are simply about continuing to enjoy one possibility of access to paddocks in their rural property which has the advantage of access to other roads. There's -- 4 of 7 -- 07082008 T(3)04/SKH(BNE) M/T BRIS26 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 been no suggestion that any development potential their property may have is jeopardised or anything along those lines. What I said to make it clear that the Court is well aware of their concerns. Although the three development applications of present concern were all code assessable, it is accepted by the appellant on the basis of Macquarie Leisure Operations Limited and Gold Coast City Council [2007] QPELR 418 that there is still scope for the application of section 3.2.7 of the Integrated Planning Act 1997 which, perhaps unnecessarily in the view of commentators, makes it clear that an assessment manager may seek comment about a proposal in the assessment process from any quarter. Judge Wilson SC was clearly of the view that the effect of the legislation was that the proponent of the development proposal may not, the legislature intends, circumvent due consideration by all parties interested under the IDAS process by making anything other than minor changes after the matter appeared before the Court; see paragraph 23. That consideration was important in code assessable applications as well as impact assessable ones. That the Council on its own initiative by reference to section 3.2.7 or in consequence of uninvited approaches from persons such as the McAllisters may have given them a hearing in practice does not give them any relevant rights. They have none in this appeal. -- 5 of 7 -- 07082008 T(3)05/JIR(BNE) M/T BRIS26 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 For what it's worth, in the absence of anything emanating from them, there's nothing to show any sound basis for the Court adjusting the outcome of the appeal to accommodate any supposed interests of the McAllisters. The possibility that change in the application might be identified and contended on some future occasion to be other than a minor change, which a Court may permit under section 4.1.52(2)(b), has been averted to. It's the case that comparison of plans may reveal certain changes. Those are the product of communications between the Council and the appellant. I might observe that the large residential development, which the development application is now designed to facilitate, requires the construction of a bridge over a water course in Canvey Road Upper Kedron. If that's to provide reliable access in conditions when the watercourse might be flowing at a high level, it's essential for road levels in the approaches to be raised. At page 59 of the book of exhibits, Mr Spence has updated his correspondence in relation to the external functional road layout with which the plans are associated. That followed an email exchange we found at pages 63 and 64. There are similar communications in relation to external road works and stormwater drainage at page 121 and in respect of external water mains at page 152. Perusal of those documents indicates that there are really no changes at all. There's been a process embarked upon of improving the plans by the addition of additional engineering information and specifications in -- 6 of 7 -- 07082008 T(3)05/JIR(BNE) M/T BRIS26 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 the course of what appears to be a careful process directed towards producing the best engineering outcome. In the circumstances, there's no occasion for the Court's order to include any declaration of changes being assessed as minor. ... HIS HONOUR: At Mr Gore's suggestion, reference can be made to another of the exhibited documents at page 123, and in particular the plan which follows at page 125, being Mr Spence's proposal for access arrangements that led nowhere, as I've observed. What's important for the Court purposes today is that there's been no change from the proposal as originally presented to Council by the appellant and the one which has given effect to in the approvals now incorporated in the Court's order. ... ----- -- 7 of 7 --