Collier & Collier v Brisbane City Council & Horne [2005] QPEC 108

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Collier & Collier v Brisbane City Council & Horne [2005] QPEC 108 Sexton & Sexton v Brisbane City Council & Horne PARTIES: ALAN COLLIER and BERNA COLLIER Appellant BRISBANE CITY COUNCIL Respondent MAXINE HORNE Co-Respondent and WILLIAM JOHN SEXTON and PAMELA MOORE SEXTON Appellant BRISBANE CITY COUNCIL Respondent MAXINE HORNE Co-Respondent FILE NO/S: BD 2438 of 2005 and BD 2439 of 2005 DIVISION: Planning and Environment PROCEEDING: Preliminary Hearing ORIGINATING COURT: Brisbane DELIVERED ON: 18 November 2005 DELIVERED AT: Brisbane HEARING DATE: 26 September 2005 JUDGE: Rackemann DCJ ORDER: CATCHWORDS: PLANNING AND ENVIRONMENT – Preliminary points – appeal against approval of extension to a house subject to conditions Certainty and finality of condition -- 1 of 17 -- 2 Boundary clearance – failure so far to consider issues related to compliance with Standard Building Regulation of no consequence Public notification – no requirement in statute or prescribed form that public notification contain a description of the basis upon which proposal is assessable – required to have a short hand description of the proposal sufficient to alert the reader as to the overall nature of the development S4.1.5A – no substantial restriction of the opportunity to exercise the right to have made a submission Legislation Integrated Planning Act 1997 Standard Building Regulation 1993 Cases Curran & Ors v Brisbane City Council & Anor (2002) QPELR 58 Edwards & Jenner v Douglas Shire Council [1999] QPELR 335 Livingston Shire Council v Brian Hooper and M3 Architecture (2004) QPELR 308 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Rathera Pty Ltd v Gold Coast City Council 115 LGERA 348 Scurr v Brisbane City Council (1973) 133 CLR 242 Walker v Noosa Shire Council (1983) 2 Qd R 86 COUNSEL: Mr Gore QC for the Appellants Mr Job for the Respondent Mr Lyons QC for the Co-Respondent SOLICITORS: Connor O’Meara for Appellants Brisbane City Legal Practice for Respondent Deacons for Co-Respondent -- 2 of 17 -- 3 INTRODUCTION [1] On 24 December 2004 the Co-Respondent made an Impact Assessable development application for approval of extensions to a substantial house at 66 Markwell Street, Hamilton. [2] The subject land is a large irregularly shaped parcel on what is commonly referred to as the Hamilton Hill. The land includes a tongue, which extends in a northerly direction, into which the proposed extension would intrude. The land falls within the Character Residential area under the Brisbane City Plan. [3] Public notification was carried out between 10 February and 4 March 2005 and resulted in a number of submissions, including from the Appellants. [4] The tongue of land, into which the building is proposed to be extended, is adjoined to the west by the rear of the residence of Mr and Mrs Sexton, which is situated at 52 Markwell Street. The tongue is adjoined to the east by the rear boundary of the Collier residence at 45 Killara Avenue. The tongue is adjoined, to the north, by a property at 50A Markwell Street. The land within the tongue falls generally from west to east. [5] The application was ultimately approved subject to conditions. Those conditions included the following: - TIMING 1)Carry out and maintain the approved development generally in accordance with the approved drawing(s) and /or documents(s), and any relevant Council engineering or other approval required by the conditions. GUIDELINE This condition refers to the approved plans, drawings and documents to which the approval relates and is the primary means of defining the extent of the approval. Approved plans, drawings and documents are stamped PLANS and DOCUMENTS referred to While development is occurring on site and then to be maintained -- 3 of 17 -- 4 in the APPROVAL and are dated to reflect the date of approval of the application by Council’s Delegate. The extent to which plans can be modified is constrained by the definition of ‘minor change’ in schedule 10 and the requirements of section 3.5.24 of the “Integrated Planning Act 1997”. It will be necessary to make a new application if the change is not a minor change. For any enquires about this condition, please contact the Assessment Manager. 4) The overall height of the proposed building is not to exceed 8.5 metres in height above natural ground level at any point. In order to ensure that this condition is achieved, the following must be undertaken: a) Certification is to be obtained from a Licensed Surveyor that the as constructed height is in accordance with this condition; b) A copy of the Certification is to be provided to the Building Certifier responsible for issuing the Development Permit for the proposed building works; and c) Upon request, provide a copy of Certification to the Senior Town Planner, Development Assessment Team. GUIDELINE This condition is imposed when a House is proposed to be constructed over 8.5m and the height has been negotiated during the assessment period. This condition overrides any conflicting information found on the approved plans. Prior to the commencement of the use [6] On 4 August 2005 the Court made orders directing that there be a hearing in respect of preliminary points. The issues raised by the Appellants can be summarised as follows 1 : - 1. A substantial portion of the roof structure, as shown in the approved plans, exceeds 8.5 metres above ground level (as defined in the City Plan) in conflict with condition 4 and acceptable solution A2 in the House Code. 2. Condition 4 is uncertain in meaning and otherwise defective, or cannot be complied with without major changes to the approved plans. 3. That the development approval is invalid because the proposal conflicts with the boundary clearance requirements in the Standard 1 see Exhibit 1 for the full terms of the issues raised -- 4 of 17 -- 5 Building Regulation and it is impermissible to defer a decision on a siting variation application. 4. That the proposal was insufficiently described in the public notification. THE HEIGHT OF THE EXTENSION [7] This was not controversial. It was conceded, on the preliminary hearing, that, if built precisely in accordance with the approved plans, the extensions would exceed 8.5 metres in height above the relevant level. That is consistent with the material before the court. It is unnecessary to consider that issue further. CONDITION 4 [8] The Appellants’ statement of issues asserted that the meaning of condition 4 was uncertain as to whether certification is required before or after construction. The reference to the “as constructed” height makes it sufficiently clear that the condition refers to a requirement for the height of the extensions to be certified by a licensed surveyor, after construction. That was not a matter of controversy in the oral argument. [9] The Appellants’ issues also asserted that, upon that construction, condition 4 conflicts with the approved drawings, could not be complied with, is impractical and unworkable and lacks certainty and finality. [10] In his written outline, Senior Counsel for the Appellants criticised condition 4 as offending the principle of finality in decision making. It was said that the condition leaves the form the building will take uncertain, and that it addresses the need for compliance at the wrong time, in that the Council should be satisfied that the approved plans comply with the height requirement before construction commences. -- 5 of 17 -- 6 [11] It appears that, at the time the application was approved, the Council was not aware that development precisely in accordance with the approved plans would exceed the nominated height limit. The Appellants contend that, in order to comply with condition 4, the building would need to be substantially changed. [12] Condition 4, considered by itself, appears to be a lawful condition, which does not suffer from a lack of certainty or finality. It is concerned with the maximum height of the building. It does not leave a decision on that for later determination. It identifies the maximum height by nominating a specific height in metres relative to a certain level. The requirement for certification, from a licensed surveyor, in relation to the “as constructed” height is directed towards giving the Council a means to later check compliance with the condition. It does not defer decision in relation to the appropriate height limit. [13] It was contended, on behalf of the Appellants, that compliance with condition 4 would require a substantial change to the development, which would offend condition 1. In that sense, conditions 1 and 4, when read together were, it was contended, inconsistent and left the final form of development uncertain. [14] It has already been noted that development, carried out precisely in accordance with the approved plans, would exceed the height limit. Condition 1 however, does not require development precisely in accordance with the approved plans. It requires the approved development to be carried out and maintained “generally in accordance with” those plans. Read together, conditions 1 and 4 require development generally in accordance with the approved plans but to a height not exceeding that nominated. That, it was contended by the Appellants, is impossible to achieve, and the Court should so find at this stage. -- 6 of 17 -- 7 [15] Senior Counsel for the Appellants persuasively argued that a plan produced by the Co-Respondents architect, showing an amended proposal which would comply with the 8.5 metre height limit, would not be generally in accordance with the approved plans and would constitute more than a minor change to the proposal2 . Those plans were however, presented as simply one example of a solution. They were not adopted by the Co-Respondent as the plans which would be relied upon in the appeal and I do not propose to make a final determination, at this stage, with respect to those plans. [16] The question is not one which requires determination at this stage. The proceedings before the Court do not seek declaratory orders with respect to a development approval which has taken effect. The Council’s decision is subject to two appeals. The decision cannot take effect as a development approval while an appeal is on foot 3 . In deciding an appeal, the Court can change the decision4 . The Court’s decision is then taken to be that of the Council5 . Senior Counsel for the Appellant conceded that the issue is not one which would affect this court’s jurisdiction to entertain the appeals. Further, the Co-Respondent is not bound, in the appeal, to rely upon the plans approved by the Council. The Court might consider a change to the application, so long as it is minor6 . [17] It would seem unnecessary and somewhat premature, to grapple further, at this stage, with the suggested conflict between conditions 1 and 4 in the context of the plans approved by the Council. The better course is to make directions requiring the Co-Respondent to give notice of the plans upon which it will rely in the hearing 2 the Court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change (s 4.1.52(2)(b)) 3 see s 3.5.19(1)(c) 4 see s 4.1.54 (2) 5 s 4.1.54(3) 6 s 4.1.52(2) -- 7 of 17 -- 8 of the appeal. Any issues arising in the context of those plans can then be identified and, if appropriate, determined in a preliminary way. THE BOUNDARY CLEARANCE [18] It was common ground that the proposal does not adopt the acceptable solutions for boundary clearance in the relevant code for the purposes of the Standard Building Regulations 1993 (SBR). That is not a matter however, which affects this court’s jurisdiction to consider the appeals, nor does it dictate that the appeals must be allowed. Senior Counsel for the appellants frankly conceded that this was his worst point. [19] An applicant for development approval under the Integrated Planning Act 1997 (IPA), is not required to seek all approvals at the one time. The application process may be staged. Applicants will often wish to have proposed building works assessed against the planning scheme before proceeding with the more detailed design work which is commonly associated with an application for assessment against the SBR. The staging of the application process is facilitated by the provisions of the IPA which permit an application for a preliminary approval to be made in advance of an application for a development permit7 . [20] In this case, the applicant has applied only for preliminary approval with respect to carrying out building work. The application has been assessed against the City Plan, but not against the SBR. The City Plan itself acknowledges this staging process by stating that: - “Assessment of building work against the planning scheme results in preliminary approval for building work. A subsequent development 7 see explanatory notes to clause 3.1.5 of the Bill -- 8 of 17 -- 9 permit for building work will be issued only when the building has been assessed against the Standard Building Regulation.”8 [21] Condition 16 of the Council’s approval package confirms that, in this case, the approval did not include assessment against the siting requirements of the SBR. The condition went on to note that the approval “does not commit Council’s Building Officer to approving any setbacks shown on the approved plans”. [22] The IPA establishes separate regimes for assessment of development against the Planning Scheme and against the SBR. It makes separate provision for the determination of the level assessment9 . The Planning Scheme cannot alter the level of assessment for assessment of development against the SBR10 . For assessment against City Plan, the Council is the assessment manager 11 . For assessment against the SBR, while there is provision made for assessment by the local government, the IPA provides that the assessment may also be carried out by private certifier. The IPA requires that all other assessments be carried out before the private certifier decides an application which is to be assessed by reference to the SBR12 . There is nothing in the scheme of the legislation which required that assessment against the SBR be carried out in deciding the subject development application. [23] It has long been recognised that, where multiple applications are made, the court should not prejudge the outcome of the subsequent application, save where an application is a clear futility or is tainted with illegality13. This is not a case of clear futility or illegality. The SBR makes the Queensland Development Code (QDC) 8 chapter 3 s 2.6 p 7 9 for assessment against City Plan 2000, the level of assessment is determined by the scheme itself; for assessment SBR, the level of assessment is determined by the IPA and the IPR 10 see s 3.1.3 of IPA 11 see s 3.1.7(1)(a) and Schedule 8, table 1, item 1 12 s 5.3.5(4) 13 Walker v Noosa Shire Council (1983) 2 Qd R 86, Livingston Shire Council v Brian Hooper and -- 9 of 17 -- 10 applicable. That code adopts what is known as a “performance based” approach. The code does not simply provide a list of prescriptive standards, as was common in earlier times. Instead, it sets out performance criteria and acceptable solutions. An application will comply with the relevant standard if the performance criteria are satisfied. Compliance with the performance criteria can be achieved by adopting the acceptable solution or by formulating an alternative solution or a combination of both. [24] In this case, the performance criteria relevantly require that buildings and structures allow adequate daylight and ventilation to habitable rooms and to habitable rooms of buildings on adjoining lots. The material does not establish that it will be impossible for the applicant to demonstrate that the performance criteria would be met. PUBLIC NOTIFICATION [25] This application was one which required public notification. That notification was required to be in the approved form14 . The approved form contains a space for the applicant to insert a description of the “proposal”. Neither the Act nor Regulations make any provision about the required level of particularity in the description. [26] In this case, the proposal was described as “Development permit for material change of use for extensions to a heritage place”. That description is accurate, so far as it goes. The Appellant’s contended that it did not go far enough 15 . M3 Architecture (2004) QPELR 308 14 s 3.4.4(2) 15 the IPA no longer contains an express prohibition on the Court deciding an appeal unless satisfied that there has been compliance with the public notification requirements (compare s 4.1.53 of IPA as originally enacted) but the Court has continued to concern itself with compliance and no submission was made that it should not do so -- 10 of 17 -- 11 [27] The description of the proposal put readers on notice that it was proposed to carry out extensions16 . Those extensions were assessable, in accordance with City Plan, because they would involve building work (of the kind described in s 1.2 of the Heritage Place Code17 ) on the site of a Heritage Place and also because they would involve development for a house which did not conform to one of the acceptable solutions in the House Code, in that the height would exceed 8.5 metres above ground level. The Appellants contended that the public notification was deficient in failing to refer to the second basis upon which the extensions were assessable. It was contended that the public notification should either have referred to the fact that the extensions would exceed 8.5 metres in height above ground level or, at least, that they did not comply with the acceptable solutions in the House Code18 . [28] The Appellant’s statement of issues also suggested that the notice ought to have contained information concerning the setback issue in relation to the SBR. That proposition was not pursued in oral argument. For the reasons stated earlier, the subject application did not request or receive assessment against the SBR and did not need to. There was no requirement to refer to it. [29] The statute does not require the public notice to contain precise details of the proposed development, far less identification of the provisions of the planning scheme with which the proposal conflicts. The public notification simply gives notice of the fact of the proposal, the identity of the applicant and the subject land, together with information as to where the application can be viewed and as to the right to make a written submission within a specified time. The assumption is that 16 no point was taken about the reference to the “material change of use” but not “building work” in the notice 17 1.2 refers to alterations, additions or extensions to a heritage place unless considered to be code assessable. It was not suggested that the building work in this case would only be code assessable 18 the later suggestion was made in response to a submission that a requirement to notify every respect in which a proposal departed from the acceptable solutions of a code, so as to make the proposal assessable, -- 11 of 17 -- 12 those who might potentially be interested in a proposal, of the type described, on the subject land, will investigate the matter, primarily by inspection of the application, in order to decide whether to exercise the right to make a submission and, if so, what the content of that submission will be. That appears to have been done by the authors of the submissions which were received, which display a knowledge of the details of the proposal and make particular reference to the height of the proposal and that it would exceed 8.5 metres. [30] In Rathera Pty Ltd v Gold Coast City Council 115 LGERA 348 Jones J (with whom McPherson JA and White J agreed) said at 353: - “This notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which the submissions about the proposal must be made” and “for members of the public or the adjoining land owners the place at which the precise details of the development is to be obtained is not the public notification – be it by newspaper advertisement or by notice board – but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made” and, at 354-355: “it would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising nor indeed what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any to intending objector.” [31] In Curran & Ors v Brisbane City Council & Anor19 , this Court was concerned with the description of a proposal as “swimming pool” and whether it was deficient because it failed to refer to the matter which made the swimming pool assessable, namely that it would be located within 20 metres of the Brisbane River (within the Riparian Amenity Zone). The Appellants in that case, relied upon the judgement of might prove impractical, at least in some circumstances -- 12 of 17 -- 13 Stephen J in Scurr v BCC20, which emphasised the necessity for the advertisement to be sufficient to convey to the public a proper understanding of the proposed development. Skoien SJDC, in dismissing the Appellant’s submission, said: - “14. Scurr was decided under the provisions the City of Brisbane Town Planning Act 1964-1971. Those provisions were different from the provisions of IPA and in my view those differences are material. First, the section of the TP Act required that the notice “shall set out particulars of the application”, and it was the phrase “particulars of the application” to which his Honour directed his attention. No such requirement is contained in IPA or the approved form of notice. 15. The next point of distinction is that IPA’s notice requires the identification of the place at which the application itself can be viewed. The TP Act notice did not. A person who inspects the actual application will, of course, have access to the detailed information made available to the Council. The virtue of this is that the drafter of the notice will not have to risk either leaving important particulars out, or putting in so many details so that the notice becomes a maze. In Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 of 486 Stephen J refers to that very problem. 16. Finally, under the TP Act (as reported in Scurr at 250-1), objectors were given a very brief time to decide whether to object, and then to do so, because the signs were erected for a mere 7 days prior to the closing date for objections. Under IPA the relevant period is a minimum of thirty days. So where there is now ample time to attend at the Council office and to read the application, under the TP there may have not been the opportunity to do so. 17. The legislative scheme is clear. IPA requires a short hand description of the proposed development, sufficient to alert a person who has an interest in that land in particular or the area in general, as to the overall nature of the development and the description of the land on which it is to occur. Here, without a question, that was the construction of a swimming pool. 18. IPA then assumes, that, having been made aware of the nature of the proposal, the citizen will turn his/her attention to the question of public or private interests which might be affected (favourably or unfavourably) by the proposal. If such possible interests are foreseen, IPA assumes that the citizen will investigate the matter, primarily by inspection of the application, and then decide whether to make a submission. I see nothing in IPA requiring the notification to spell out particular difficulties facing the application, such as, here, by including reference to the Riparian Amenity Zone. Such details are left to be discovered by a search of the application.” 19 (2002) QPELR 58 20 (1973) 133 CLR 242 at 252 -- 13 of 17 -- 14 [32] I respectfully agree with the above passages21 . [33] Senior Counsel for the Appellants contended that Curran was wrongly decided. It was submitted that where, as here, non-conformity with a part of the planning scheme is the trigger, or one of the triggers, for development being assessable, then it is more than simply one of the “particular difficulties facing the application” and forms a necessary part of the description of the proposal itself. I respectfully disagree. [34] The public notification in this case informs the public of the overall nature of the development, i.e. the carrying out of extensions. The reference to the fact that those extensions were to a heritage place is a statement of fact which is of relevance to one of the bases upon which the proposed extensions were assessable. Had the description also contained the words “which exceed 8.5 metres in height above ground level” or “which do not conform to the acceptable solutions in the House Code” then the reader would have been made aware of facts relevant to the other basis upon which the proposal was assessable. Neither the statute nor the prescribed form however, contains a requirement that public notification contain a description of the basis upon which a proposal is assessable. It might be, consistently with the submissions of Senior Counsel for the Appellants, that such a requirement would be desirable, but the statutory requirements do not extend that far. [35] What is required is a description of the proposal. I respectfully agree with Skoien SJDCJ that, given the legislative scheme, what is required is a short-hand description of the proposed development, sufficient to alert the reader as to the 21 subject to observing, in relation to paragraph 16 from Curran’s case, that the notification provided for in s 3.4.5 is 15 business days, where there is no referral coordination -- 14 of 17 -- 15 overall nature of the development. I am satisfied that the description in this case was sufficient. [36] Senior Counsel for the Appellants drew attention to the provisions of s3.4.2 which provide that the notification stage applies to an application if any part of the application requires impact assessment, even if code assessment is required for another part of the application. [37] In this case the fact that the extensions were to a heritage place made the application subject to impact assessment. That the extensions would not comply with the acceptable solutions of the House Code, as to height, triggered only code assessment. Senior Counsel for the Appellants pointed out that the public notification requirements applied to the whole of the application. [38] This is not a case however, where only part of the proposed development was notified. The circumstances are unlike Edwards & Jenner v Douglas Shire Council [1999] QPELR 335 to which Senior Counsel for the Appellants referred. In that case the notice to adjoining owners referred to the proposal to build a sixty four unit Multiple Dwelling (tourist) Complex, comprising dwelling units with associated reception area, administrative office and signage and ancillary place of assembly (conference room), which were impact assessable, but did not refer to the proposal to also develop shops and a restaurant/bar (which were subject only to code assessment). In this case it is the extensions which trigger both code and impact assessment. The proposal for extensions was referred to in the public notice. [39] Even if the public notification was deficient for the reasons contended by the Appellants, I would have exercised the court’s discretion, pursuant to s4.1.5A, to allow the appeal to proceed. That section requires the Court to be satisfied that non- -- 15 of 17 -- 16 compliance or partial compliance has not “substantially restricted the opportunity for a person to exercise the rights conferred on the person by this Act.”22 [40] The relevant right, in this case, is the right to have made a submission23 and, in particular, a submission in relation to the height of the proposal. The failure of the public notice to refer to building height exceeding 8.5m above ground level or a departure from the acceptable solutions of the House Code, did not remove the legal right of submission. That right was exercised by a number of persons, including the Appellants (which reflects a level of local interest) and the Council determined to limit height by Condition 4. The question is whether any deficiency in the public notification had the effect of substantially reducing the opportunity for any other person to exercise the right to make a submission. I am satisfied that it did not. [41] I accept the submission of Senior Counsel for the Co-Respondent that, in the circumstances, it is difficult to see that a person who might have been sufficiently concerned about the height of the building24 would not, upon becoming aware (by reason of the public notice) of the proposal to carry out unspecified extensions to an unspecified height, have been sufficiently concerned to ascertain details of the application by inspection at the Council offices25 . Such inspection would have readily revealed that the then proposal exceeded 8.5 metres. If that person was so minded to then make a submission, they could have done so. 22 it may be noted that, unlike s 4.1.53 as enacted, there is no requirement for the Court to be satisfied that non-compliance has not “adversely affected the awareness of the public of the existence and nature of the application”, although non-compliance which has that effect might also, in a particular case, have the effect now referred to in s 4.1.5A. Further, the requirement in s 4.1.5A(1)(b) that the Court is satisfied that the non-compliance has not “substantially” restricted the opportunity for a ‘person’ to exercise rights may be contrasted with the language of s 4.1.53(2)(b) of IPA as enacted 23 and any consequent rights 24 whether for amenity, heritage or other relevant reasons 25 it might be noted that one of the formulations suggested by Senior Counsel for the Appellants, namely that the proposal departed from the acceptable solutions of the House Code, would not have alerted the reader to anything about height in particular -- 16 of 17 -- 17 CONCLUSION [42] I conclude, in relation to the preliminary issues as follows: 1. The proposed development, if carried out precisely in accordance with the approved plans would exceed 8.5 metres in height above the relevant level. 2. Condition 4 determines the maximum height of the development, as approved, and requires certification of the height of development, once constructed. It is unnecessary to determine, at this time, the issue concerning the alleged inconsistency between condition 4 and condition 1 and its effects, including whether compliance with condition 4 would result in a materially different development to that shown in the plans referred to in condition 1. It is appropriate at this stage, for directions to be made requiring the co-respondent to give notice of the plans upon which it will rely in the appeal. 3. The development approval is not invalid and the appeals are not required to be allowed by reason of matters related to compliance with the SBR. 4. The proposal was sufficiently described in the public notification. Had I concluded to the contrary, then I would have been prepared to exercise the court’s discretion under s 4.1.5A to allow the appeal to proceed. -- 17 of 17 --