Fawkes Pty Ltd & Anor v Gold Coast City Council [2007] QPEC 32

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Fawkes Pty Ltd & Anor v Gold Coast City Council [2007] QPEC 032 PARTIES: FAWKES PTY LTD (ACN 099 591 081) AND RONBAR ENTERPRISES PTY LTD (ACN 000 733 219) Appellant V GOLD COAST CITY COUNCIL Respondent AND MAURICE DUDLEY WELDON, ROBERT WISEMAN, HARVEY RICHARD KELLAM AND BERNARD MICHAEL SEETO Co-Respondents FILE NO/S: 522/06 DIVISION: Planning and Environment PROCEEDING: Determination of preliminary issues ORIGINATING COURT: District Court, Southport DELIVERED ON: 20 April 2007 DELIVERED AT: District Court, Southport HEARING DATE: 26 February 2007 JUDGE: Kingham DCJ ORDER: Declare that the development application is a properly made application. CATCHWORDS: PLANNING – PLANNING LAW – CONSTRUCTION OF LEGISLATION – Construction of Integrated Planning Act 1997 – Whether application properly made – Description of land subject to the application – Consent of owners of land – Description of proposal – Whether lack of owner’s consent can be excused – Discretion of Court – Whether non- compliance should be excused. Integrated Planning Act 1997(Qld), ss 1.3.5, 3.2.1, 4.1.5A, 4.1.21(1) -- 1 of 10 -- 2 Bartlett v Brisbane City Council (2003) 133 LGERA 340 – applied Chang and Chen v Laidley Sire Council [2006] QCA 172 – distinguished Grant v Pine Rivers Shire Council & Ors [2005] QPELR 701 – cited Oakden Investments Pty Ltd v Pine Rivers Shire Council (2002) 125 LGERA 256 – applied Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 – applied COUNSEL: J. Houston for the appellant C. Hughes SC for the respondent M. Weldon (self-represented) for the co-respondents SOLICITORS: DLA Phillips Fox for the appellant McDonald Balanda & Associates for the respondent [1] A five storey multi residential building stands at 73 – 75 Albatross St, Mermaid Beach. Ronbar Enterprises Ltd, the owner of unit 9, authorised Fawkes Pty Ltd to seek approval for an “extension to an existing unit”. Numerous submitters opposed the application. The Gold Coast City Council refused it. Fawkes and Ronbar appealed the decision. Four of the submitters, all proprietors of units in an adjacent building, Foreshore, are co-respondents to the appeal. [2] The parties sought the preliminary determination of a number of issues. The Council allege the application was not a “properly made application” (s3.2.1. Integrated Planning Act 1997(Qld)(IPA)) because of asserted non-compliances with statutory requirements, which it argues the Court either cannot or should not excuse. The requirements the Council says were not complied with relate to the owner’s consent to the application and the description of the land and the development approval sought. [3] The co-respondents argue the application is precluded by the terms of settlement of previous proceedings relating to the construction of this building. Whilst the Council does not argue the terms of settlement preclude the application being made, it says they are relevant to whether discretion should be exercised to excuse any non-compliance. [4] The issues which need to be determined are: • Do the terms of settlement preclude this application? • Is the application properly made? • Can and should any non-compliance with statutory requirements be excused? -- 2 of 10 -- 3 1. Do the terms of settlement preclude this application? [5] Following a consent order of Newton DCJ in 1999, the building was constructed. A dispute about whether the building was constructed in accordance with that order led to other proceedings (No. 1543 of 2001). The parties, Ronbar Enterprises Pty Ltd, the Council and some of the co-respondents to this appeal, executed terms of settlement (2 May 2001) which included Ronbar’s agreement that it would not make an application to place a structure on the roof of the building (cl 20). The terms of settlement provided settlement was conditional upon a deed being executed by all the proprietors of units in Foreshore (cl 27). A deed was prepared and but not every proprietor executed it. The proceedings are apparently still on foot. [6] The co-respondents argue Fawkes and Ronbar are bound by clause 20 which provides that Ronbar“will not make any further application for a development approval for a structure to be placed on the roof of the multi-unit building…or cause such an application to be made on its behalf except as provided in these Terms of Settlement.” [7] In effect, the relief sought by the co-respondents is declaratory. This Court’s declaratory jurisdiction is confined to making declarations about: • A matter done, to be done or that should have been done for the IPA; • Construction of the IPA, or any planning instrument under the IPA; and • The lawfulness of land use or development (s4.1.21(1)). [8] A declaration that Fawkes and Ronbar is bound by the terms of settlement does not fall within those matters and this Court does not have the jurisdiction to grant the relief sought. That does not mean the co-respondents can not seek relief in another forum. Moreover, the terms of settlement may have relevance to whether the Court should exercise its discretion to excuse any non-compliance by Fawkes and Ronbar. I will return to that question, should that prove necessary. [9] Fawkes and Ronbar raised other arguments about the enforceability of the terms of settlement and whether the co-respondents are estopped from relying on them. Because of my conclusion as to this Court’s jurisdiction, it is unnecessary to deal further with those arguments. [10] I should note that the Council objected to the relevance of part of paragraph 4 of an affidavit of Mr Yates, one of the co-respondents, wherein he deposed that the body corporate of Foreshore Units was willing to sign the deed. The objection is well founded. The terms of settlement call for the unit proprietors not the body corporate manager to sign the deed. That part of the paragraph is inadmissible. -- 3 of 10 -- 4 2. Is the application properly made? [11] An application for development approval is a “properly made application” if it complies with requirements in s3.2.1(1)(2)(3)(a)(4) & (5)1 . The alleged non- compliances are: • The application did not include an accurate description of the land the subject of the application (s3.2.1(3)(a)(i). • The application did not include the written consent of the owner of the subject land (s3.2.1(3)(a)(ii)). • The application did not properly describe the development approval sought (s3.2.1(3)(a) & Form 1). [12] Underlying the specific non-compliances complained of lies competing views about the nature of the application being made. It is appropriate to first determine what approval was sought. That will assist in identifying what land is the subject of the application and, therefore, the owner or owners whose consent is required. [13] The proposal involves three elements: • to convert an existing storage area on the roof level to a games room; • to construct a bedroom on the terrace on the roof level; and • to construct a cabana above the new bedroom. [14] If allowed this will result in unit 9 being a penthouse on three levels. Currently unit 9 (lot 9) comprises one level, the roof top storage area and the roof terrace, i.e. it is two levels. The dispute centres on whether this proposal affects only lot 9 or also other lot owners and the body corporate as the owner of the common property within the building. Description of the land and the consent of the owner(s) [15] These two questions are inextricably linked. Who needs to consent follows from identifying the land the subject of the application. Fawkes and Ronbar argue this proposal has significance to lot 9 only, affects lot 9 only and therefore lot 9 is the land the subject of the application. They argue that, if the application is approved, each owner of every other lot in the community titles scheme will continue to have the same interest in the land constituted by the lot and the same interest in the common property as they have currently. Further, no common property is affected by the proposed work. [16] It is possible for a single lot in a community titles scheme to constitute the land the subject of an application. A lot under the Building Units and Group Titles Act 1980 (Qld) is land under the Land Title Act 1994 (Qld) (sch. 2) and under the IPA (sch. 10). 1 The appeal must be determined on the basis of the law applying when the application was made (s4.1.52(2)(a)). The application was made on 15 February 2002 and the applicable reprint of IPA is No. 4B. -- 4 of 10 -- 5 [17] In Bartlett v Brisbane City Council at [24] Jones J (with whom McPherson JA and Holmes J, as she then was, agreed) found: “The respondent’s proposal is very significant to the use of Lot 28 but has no significance whatsoever to the use of the other lots. Each owner of the other lots will continue to have the same interest in the land constituted by the lot, and the same interest in the common property as that owner had prior to the application. Any concern on the part of another lot owner about the change in amenity or aesthetics of the building are simply matters to be agitated in the decision process. They are not, in my view, factors of use which determine the identification of the land.” [18] The survey plan for this building (SP141086), the architects plan (Giarola SP2-2 Issue B Feb 2006) and the community management statements for the body corporate scheme all confirm that the proposed works are located within the existing footprint of lot 9. The additional storeys are proposed to be constructed in the airspace above that footprint. However I am not persuaded that this is determinative of the question. [19] The Council seeks to distinguish Bartlett’s case because of the scale of the development and its relevance to the previous development approval. It argues that, because the development approval specifically limited the building to five storeys and the proposed works involve the addition of two storeys, the material change of use is to the building as a whole and, accordingly, the land affected is the land the subject of the development approval. [20] The interconnection of the factors of use and land for a development approval was explored by Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council at p501: “In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application, have to specify these two integers, but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application. That is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent.” [21] In Bartlett’s case, the fact that the development approval attached to the land the subject of this community titles scheme, did not assist to identify what land was the subject of the application. That is not surprising given the change proposed was to enclose a balcony to lot 28. His Honour concluded that the proposal was very significant to the use of lot 28 but of no significance whatsoever to the use of the other lots. [22] When examining the interconnection of use and land for this application, however, the terms of the development approval assume greater significance than in Bartlett’s case, and, it follows, can assist in identifying the land the subject of the application. The development approval specifically limits the number of storeys in the building to five. The proposed works involve the addition of a further two storeys. -- 5 of 10 -- 6 [23] The scale and intensity of proposal also assists in identifying whether the material change of use relates only to lot 9 or also to the community titles scheme land as a whole (s1.3.5. IPA). In Bartlett’s case enclosing the balcony to lot 28 had the effect of increasing the gross floor area (GFA) of the building from 15,650sq.m by only 24sq.m. The Court accepted this did not constitute a material change of use to the whole building but rather to the individual lot only. [24] In this case, the increase GFA in will be in the order of 161sq.m. (142sq.m. for the new bedroom and 19sq.m. for the cabana above it). It is not clear what the existing GFA for the building is. That has been a matter of previous dispute between Fawkes and Ronbar and the Council about the construction of the existing building. For present purposes, the difference between the two assessments is probably not material and I will use the assessment by Humphrey Reynolds Perkins, that it does not exceed 1707.5sq.m. That assessment, however, excluded the storage area, which the authors noted was addressed by this application. Accordingly, in considering the change in the intensity or scale of the premises, the GFA of the storage area, 63sq.m. should be added to the estimate of 161sq.m.. That results in a proposed increase from 1707.5sq.m. by 224sq.m. (161 and 63) to 1931.5sq.m., a 13% increase in GFA. Such an increase is of an entirely different order to that considered in Bartlett’s case. [25] Further, in that case, Jones J noted that the changes in amenity or aesthetics of the building were not factors of use. The changes here proposed go well beyond amenity and aesthetics. They involve the addition of two storeys and a significant increase in the GFA of the building. In my view, Bartlett’s case is distinguishable on the facts and, for this application, the subject land is the land to which the community titles scheme relates. [26] This is consistent, also, with the approach taken to notification of this application. The “adjoining owners” that Fawkes and Ronbar served were not the owners of other lots in this building, including lot 10 which shares a common wall with lot 9, or its body corporate but the body corporates for the buildings on either side. [27] The description of the land the subject of the application in the development application is inaccurate. It flows from this that the application was not accompanied by the consent of the owners of the subject land. Description of the proposal [28] The requirement imposed by s3.2.1(3)(a) is for the application to contain a mandatory requirements part – in this case the Form 1 Development Application. Form 1 calls for a description of the proposal. In this application it was described as the “extension of an existing unit”. [29] The inadequacy of that description is evident from the architectural drawings which illustrated the nature and extent of the proposed work. The need to clearly specify what the proposal entailed is demonstrated by Council’s subsequent misdescription of the proposal as “Development Permit making a Material Change in Use for the erection of a sixth storey onto an existing five storey building”. That error was corrected by the applicant’s architects who confirmed the application was to add two storeys. The public notice for the application provides an accurate description: -- 6 of 10 -- 7 “development permit making a material change of use for the erection of a seventh storey upon existing building”. Can and should any non-compliance be excused? [30] Each of the non-compliances complained of has been made out. Fawkes and Ronbar ask the court to exercise its discretion to excuse them (s4.1.5A). Council argues the failure to provide the owners’ consent is fatal to the application and is beyond the curative scope of that general excusatory provision. It relies on a passage in the judgment of Keane JA in Chang and Chen v Laidley Sire Council at [77] in support of that proposition. [31] That passage involved the interpretation of s.3.2.1(7)(f) and (10)(b). It should be noted that a later iteration of s3.2.1 was under consideration in that case, but Council argues there is no material distinction, for the purposes of its submission. [32] The effect of s.3.2.1(7)(f) is that, to be properly made, the application must not relate to development that would be contrary to the regulatory provisions or draft regulatory provisions (of the South East Queensland Regional Plan). Whilst the Council, after consideration, may accept an application which is not a properly made application (s.3.2.1(9)), this does not apply if the development would be contrary to those regulatory provisions (s.3.2.1(10)(b)). [33] Keane JA, with whom other members of the Court of Appeal agreed, stated: “The general provisions of s.4.1.5A cannot prevail against the specific provisions of s.3.2.1(7)(f) and s.3.2.1(10)(b) which are directly concerned to ensure that an application for a development permit for development which is contrary to the DRP should not even be received by the assessment manager.” [34] By analogy, Council argues the same approach should be adopted in relation to the requirement for the application to be accompanied by the consent of the owner. As the provisions stood at the time of this application, s3.2.1(9) provided that s.3.2.1(8), which enabled the Council to accept an application not properly made, did not apply unless the application contains the written consent of the owner of any land to which the application applies. [35] Council’s reasoning has persuasive force but is contrary to another Court of Appeal decision on point. In Oakden Investments Pty Ltd v Pine Rivers Shire Council, the Court of Appeal decided non-compliance with the requirement for the owner’s consent could be excused by the Court, exercising the power conferred by the predecessor to s4.1.5A (s4.1.53). The effect of s3.2.1(9) on the Court’s power was considered. Mullins J, with whom the other members of the Court agreed, said: “Subsection 9 of s 3.2.1 does not prevent receipt of an application which is not a properly made application, and does not prevent acceptance of an application. Subsection 9 strikes down the operative portion of subs 8 of s 3.2.1, thereby preventing the deeming of an application as a properly made application in circumstances where the written consent of the owner of any land to which the application applies does not form part of that application…It was argued on behalf of Oakden that the learned primary judge erred in construing s 4.1.53 as covering the present matter…and...in not confining the application of s 4.1.53 to the case -- 7 of 10 -- 8 where there is a properly made application…It appears, however, that the expression “properly made application” is used in the Integrated Planning Act when it was intended to be used. The power given to the Court under s 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act” [36] Whilst the reasoning in those two decisions is at odds, the interaction of s4.1.5A with s 3.1.2(9), as it then was, in relation to the requirement for owner’s consent, was not directly considered in Chang. I am not convinced the Court of Appeal in that case intended to overrule the Court’s earlier decision in Oakden Investments. I accept the Court has the power to excuse non-compliance with the requirement for the application to be accompanied by the owners’ consent. [37] The question then is whether, in the circumstances of this case, each of the non- compliances should be excused. As Jones J observed in Bartlett’s case, the limited purpose of s3.2.1 of the IPA is to identify the requirements for the first stage of the IDAS process provided for by that Act. [38] It is not contentious that the Court has a wide discretion under s4.1.5A, if it is satisfied the non-compliances have not substantially restricted the opportunity for a person to exercise rights conferred on them by IPA or another Act2 . Fawkes and Ronbar submit I should be so satisfied because of the terms of the public notification, the material available at Council in relation to the application and the circumstances pertaining to the ownership of units within the subject building at the time of the application. The Council argues the Court’s discretion should not be exercised because of the compounding effect of the number of non-compliances, the lapse of three years before this appeal was lodged and the terms of settlement upon which the previous proceedings were compromised. [39] It is an unusual feature of this case that the public notice provides a more accurate description of the proposal than that provided in the mandatory requirements section of Form 1. Unfortunately, it still offered an erroneous description of the land. It described the subject land as “Unit 9, 73 – 75 Albatross Avenue, Mermaid Beach (Lot 9 on SP141086). The reference to unit 9, viewed in isolation, is misleading. Yet the effect of that is ameliorated by the description of the proposal. That is: “a Material Change in Use for the erection of a seventh storey upon an existing building”. That description, coupled with the street address of the building, adequately conveys the nature of the application. That would be confirmed by inspection of the material held by Council in relation to the application, particularly the plans. [40] It is another unusual feature of this case that notice was served on the bodies corporate of the adjoining buildings, rather than on the other lot owners and the body corporate for the subject building. That is consistent with the view I have taken as to what land is subject to the application and a matter of some consequence to my decision. The proprietors of one of those buildings, Foreshore, have historically shown an active interest in this building. The co-respondents are amongst their number. Service on the Foreshore body corporate and the involvement of the co-respondents in this appeal provides some assurance that this is an appropriate situation for the exercise of discretion. 2 Grant v Pine Rivers Shire Council & Ors at [25] – [35] -- 8 of 10 -- 9 [41] As to the failure to obtain the consent of all lot owners to the application, there is no evidence that the other lot owners were not aware of the proposed development or would have opposed it. At the time of the application, Ronbar owned eight of the 10 units in the subject building and held 80% of the voting rights for the body corporate. The first community management statement identified further work contemplated for lot 9, as did subsequent statements. At the relevant time, Ronbar held powers of attorney from the proprietors of the two lots it did not own in respect of further work in relation to lot 9. Those owners no longer have an interest in the building, having sold their lots. There is no evidence that they had any interest in complaining about any failure to seek their consent as owners or in making any submission with respect to the proposal. The failure to obtain the consent of other lot owners is not of significance to any other person exercising their rights in relation to the application. [42] Whilst there are a number of non-compliances, I do not regard their combination in any way exacerbates their effect in the light of the matters I have canvassed. I am satisfied that neither the owners of lots 1 or 2 nor any other person has had their opportunity to exercise rights in relation to this application substantially restricted. [43] As to the time taken to lodge the appeal, I am not persuaded there is any delay which should tell against Fawkes and Ronbar. The application was lodged on 15 February 2002. The notice of appeal in respect of a “deemed refusal” by the Council was lodged on 13 October 2006. In the interim, Fawkes and Ronbar responded to Council’s requests for further information and documentation. [44] During the same period Mr Weldon, one of the co-respondents, complained to the Ombudsman about the Council’s finding, in response to his earlier complaint, that the existing building was constructed “generally in accordance with” the approved plans. That appears to have delayed Council in processing this application. The Ombudsman’s report on its investigation was sent to Mr Weldon on 8 March 2006. [45] Over a period of years, Fawkes and Ronbar have provided information requested by Council and accepted the delay in processing its application pending the outcome of the Ombudsman’s proceedings in good faith. It is apparent that this was done in the not unreasonable expectation that, in time, the Council would make a decision on the application. [46] On 13 September 2006, some six months after the Ombudsman’s investigation was reported and after Fawkes and Ronbar had provided a number of further documents, Council informed them of legal advice that the application was not properly made. By letter dated 27 September 2006, Council advised a refund would be made of the application fee following “the cancellation” of the development application. This appeal was lodged shortly thereafter. There is no delay on the part of Fawkes and Ronbar that should now count against them. I see no significance in changes in the ownership of units within the building since the application was lodged, particularly in light of successive community management statements referring to further development of lot 9. [47] Finally, I should return to the terms of settlement of the previous proceedings. The co-respondents rely on that settlement to preclude an application to increase the building beyond five storeys. The height of this building has been at the core of the dispute between Ronbar and the co-respondents throughout the history of the -- 9 of 10 -- 10 approval and development of the building. Whether work should be allowed to increase its height from five to seven storeys is a live issue in this appeal. A decision on the preliminary issues will not restrict the scope of the appeal to that extent and the co-respondents will have the opportunity to argue their case on the merits of the proposal. [48] Council does not argue this Court has jurisdiction to make any declaration in relation to the draft deed arising from those terms of settlement. Yet it submits the Court’s discretion should not be granted because this would “further their attempts to circumvent obligations on the part of one of them (Ronbar) in that deed.” This begs the question of what, if any, obligations are imposed by the draft deed or the terms of settlement. I have decided that question is beyond the jurisdiction of the Court on this application. [49] Exercising discretion to excuse the identified non-compliances will not prevent the co-respondents and other parties to the previous proceedings seeking appropriate relief based on the terms of settlement in a proper forum. As such, any obligations that are imposed, whether on Ronbar or any other party, cannot be circumvented by this order. [50] I consider this is an appropriate case in which to exercise the Court’s discretion and I order this appeal proceed to hearing despite the identified non-compliances. -- 10 of 10 --