Catchpole v Rohde [2001] QPEC 29

S R ■ B (ft Queensland Government tat e e p Ort Ing Ure a U ~ DepJrtment oi lustlceand Ait~y~ral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING AND ENVIRONMENT COURT JUDGE BRABAZON QC No 1127 of 2Q01 MALCOLM CATCHPOLE and GLENN CAMERON ROHDE BRISBANE .. DATE 30/04/2001 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau . rDate 2 I j I l:J I V Applicant Respondent t Floor, The Law Courts, George Street, Brisbane, a. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 i 1 -- 1 of 12 -- 30042001 D.3 T26/SB23 M/T 4/2001 (Brabazon DCJ) HIS HONOUR: This matter has been the subject of careful and extensive argument and is not without its difficulties. However, as it is now late on the second day of the hearing, it would be convenient for the parties to give a judgment immediately even though some of the ancillary matters discussed by counsel may be overlooked. The controversy arises out of a development permit which was issued by the Certification Group of the Brisbane City Council. It was issued on 6 February 2001 and gave approval in relation to the renovation of a house at 23 Byrne Parade, Balmoral, Brisbane. It has now become common ground between the parties that such a development permit is limited to the building of the house. That is to say, the application was for a building permit in Form B. The agreement with the Brisbane Certification Group was to assess the application against the standard building by-laws. It is conceded on behalf of Mr Rohde that it is not a town planning approval by the Council. He made no application for such an approval and the Council did not purport to give it. Here, the question is whether or not such an application had to be made. In other words, does the renovation of the house in this case require an application for code assessment? 2 JUDGMENT 1 10 2 30 40 50 60 ..... -- 2 of 12 -- j 0 30042001 D.3 T26/SB23 M/T 4/2001 (Brabazon DCJ) Mr Catchpole, the applicant, has always maintained that the renovations to the house (which is beside his house) is code assessable. Mr Rohde (by his legal advisers) maintains that it is not. At first, the Council, after various representations by Mr Catchpole agreed that it was code assessable. The result was an enforcement notice which compelled work to stop. See the Notice to Cease Building Work given by the Council on 15 February 2001. The letter said that the building work should be stopped until such time as the relevant City Planning and Building approvals are issued. The notice said that Mr Rohde had commenced an assessable development without a development permit. The matter was then reconsidered within Council; that appears from the internal memorandum dated 20 February 2001. There, the view is expressed that renovations of this kind which included raising of the wooden house so that rooms could be built underneath it were exempt - that is, there was no need for an application for code assessment. The result was the cancellation of the stop work notice - see the Council's letter of 23 February 2001. The real question here is, was the Council right the first time or right in reconsidering its position? 3 JUDGMENT 1 10 20 30 40 so 60 -- 3 of 12 -- 30042001 D.3 T27/JMG6 M/T 4/2001 (Brabazon DCJ) It is clear that a key issue with regard to that question is to be found at chapter 5 page 155 of the City Plan. That deals with the Small Lot Code for residential design. The reader of the City Plan is directed to that code because code assessment of a notifiable kind is required for the building or material change of use to a house where there is an average lot width of less than 15 metres - see chapter 3 page 30. In this case it is common ground that the average width of Mr Rohde's property is slightly less than 15 metres. That being so the applicable code is the Small Lot Code (and, potentially, the House Code as well.) When one turns to the Small Lot Code it can be seen that it has no application if certain exceptions are satisfied. If the code does apply, then Mr Rohde should have made the appropriate town planning application to the Brisbane City Council. If the exceptions apply then, at least because of that code, there was no need to ask for code assessment. The exceptions are seen in paragraph 1. Their meaning has to be considered in the context of the code as a whole. Relevantly, the code applies when assessing building work on a small lot, but it goes on to say: T "This code does not apply to building work involving only the following renovations and extensions unless the total building footprint including the proposed extensions exceed 60 per cent of the site area: 4 JUDGMENT 1 10 2 30 50 60 -- 4 of 12 -- 0 iO 60 30042001 D.3 T27/JMG6 M/T 4/2001 (Brabazon DCJ) enclosing under the existing house and enclosed extensions otherwise not greater than 60 metres gross floor area ... Those renovations and extensions are not assessed as a small lot under this code, but must comply with the house code." In the present case, the plans as approved provided for the raising of the wooden building 1.2 metres above its original position. The question is whether or not that raising attracted the application of the Small Lot Code or fell 1 10 within the exception which allowed for the enclosing of the 20 area under the existing house. The correct meaning of the City Plan in that regard is a finely balanced one. It might be said that the exception is meant to apply to the area of the renovated house and that no attention is paid to an increase in its height. Therefore, it was submitted for Mr Rohde, a raising of the house which was incidental to a renovation enclosing the area under the house was within the exception. On the other hand it was submitted from Mr Catchpole that the purpose of the code is to effectively manage impacts of new development on neighbours while ensuring that new development is compatible in scale and design with neighbouring houses. Attention was paid to performance criteria Pl dealing with buildings being of a domestic scale in their building footprint and height, having certain minimum heights (see acceptable solutions 8.1.1), and also performance criteria Pll dealing with the undesirability of direct overlooking between buildings. 5 JUDGMENT 30 40 50 60 -- 5 of 12 -- 30042001 D.3 T28/RB28 M/T 4/2001 (Brabazon DCJ) On balance, it should be held that the use of the words "only" and "the existing house" taken in the context of the expressed purpose, means that a raising of an existing house is not within the exception. There is no limit as to how far a house might be raised - except, of course, that the end result must not be more than 8.5 metres above ground level overall in any event. As this case demonstrates, quite a lot of raising might be done while keeping the house within the overall height limit. The emphasis on height and the issue of privacy indicate that they are matters which, it is intended, should be assessed rather than included in the exception. The submission for the applicant should be accepted, that the proposed renovations were always code assessable because of the application of the Small Lot Code. It follows that the appropriate application has never been considered, and the appropriate notification has never been given to Mr Catchpole, and his comments have not been duly considered. Some other difficulties with the work were also mentioned at length during this hearing. It was asserted that the house as built is too high. One should look at Mr Buckle's affidavit and plan which shows that an area of about a third of a metre in height towards the highest end of the ridge line is, in his opinion, more than 8.5 metres above ground level. 6 JUDGMENT l 10 2 30 50 60 -- 6 of 12 -- ,0 50 30042001 D.3 T28/RB28 M/T 4/2001 (Brabazon DCJ) There has considerable debate as to whether or not Mr Buckle's conclusions are correct. First, attention has to be paid to the particular definition of "ground level" in the City plan. It is this: "Where documentary evidence is available, the level of the land at the time of registration of the plan of survey. Where such evidence is not available the ground level is the level shown on Council City of Brisbane orthophoto maps dated 1980 and 1981." In this case it became apparent from the evidence of Mr Buckle and the evidence of another surveyor, Mr McLeary, that no documentary evidence was available at the time of registration, which appears to have been 1925. Reference, therefore, has to be made to the orthophoto maps. According to Mr Buckle's evidence when he applied the contour maps to the house plans they revealed the exceedence of about .3 of a metre. On the other hand, he agreed that there would be some variation because of the uncertainty in the accuracy of the maps. Mr McLeary in particular stressed the likely, or possible, uncertainty in such maps of sloping built-up areas such as this. Attention was drawn to a notation on the orthophoto itself which says that there might be a tolerance of .5 of a metre with respect to the vertical accuracy of the contour line and a tolerance of 1.5 metres with respect to its horizontal accuracy. 7 JUDGMENT 1 10 20 30 40 50 60 -- 7 of 12 -- 30042001 T29/RAG2 M/T 4/2001 (Brabazon DCJ) It may be appreciated that the definition of "ground level" introduces an artificial standard compared to the concept of natural ground level. That, no doubt, is done for deliberate reasons, presumably to increase certainty where it is uncertain where the natural ground level was. In this case, bearing in mind the tolerances within the orthophoto itself, the somewhat lesser tolerances which even Mr Buckle will agree to and the small amount of the exceedence at the most, it should not be found on the balance of probabilities that the building does exceed the permissible height. In any event even Mr Catchpole, who maintained that the building was too high, does not ask for any partial demolition to lower it to what he says would be the correct height. It is an issue which need not be addressed further. There were some other issues which also were uncertain, so far as the evidences goes here. It is better, I think, to express no views about them because the matter must now return to Council. The other area of particular interest is the position and size of the car port at the front of the house. It has not yet been constructed. Since it is apparent that the Small Lot Code applies, there are particular provisions there which either have to be observed or dispensations (possibly) given. They are matters, in my view, for the Council to decide. 8 JUDGMENT l 10 2 30 50 60 -- 8 of 12 -- 0 ;o 30042001 T29/RAG2 M/T 4/2001 (Brabazon DCJ) Further issues relate to any interference with the flow of ground water across Mr Rohde's land, and the height of his back garden caused by the construction of a retaining wall and the introduction of some fill. They, likewise, are issues which may now be left to Council. There was some debate as to whether the permit issued by the Brisbane Certification Group was void, or voidable, or in some other way ineffective. Attention was paid to the provision in section 4.1.22(1) of IPA, which provides this: "However, if the order amends or cancels a development approval the Court may only make the order if the Court is satisfied the approval was obtained by fraud of the 1 10 20 applicant." 30 In this case, it being apparent that there is certainly no fraud on the part of anybody, it was said that no declaration should be made which cancels the development permit of 6 February 2001. Notice may be paid to other provisions which deal with the validity of a permit issued under circumstances such as these. Because a private certifier was involved (even though a branch of the Council), section 5.3.5(4) of IPA will apply - that is the private certifier must not decide the application until all necessary development permits are effective. In addition, section 3.1.5(1) speaks of the meaning of a preliminary approval and a development permit. A development permit, it is said, authorises assessable 40 50 60 60 9 JUDGMENT -- 9 of 12 -- 30042001 T30/IK29 M/T 4/2001 (Brabazon DCJ) development to occur subject to the conditions in the permit and any preliminary approval relating to the development the permit authorises. Therefore, it may be that the development permit here is not void but ineffective because the necessary preliminary approval has not yet issued. Because of those uncertainties and because of the prohibition in making a declaration about the matter (which is still a controversial part of IPA) it is desirable to say that the permit is not effective to allow building work to continue and, indeed, never was. The question, therefore, is what orders should be made now. Principally this is a proceeding for an enforcement notice, it being said that a development offence has occurred. Proceedings with regard to a development offence can be either in the nature of a prosecution or they can be civil proceedings brought in this Court. no need for a prosecution. In that case, there is It is apparent that any orders this Court might make will be made under section 4.3(25) and 4.3(26). It should be held, therefore, that the Court is satisfied that a development offence has taken place in that assessable development has been carried out without the approval of the Brisbane City Council. 10 JUDGMENT 1 10 2 30 50 60 -- 10 of 12 -- 0 so 60 30042001 T31/LF25 M/T 4/2001 (Brabazon DCJ) There has been argument as to whether or not work on site should be stopped. The authorities make it clear that there may be a difference in the Court's attitude to a stop work order if the applicant for the order is the Council or some other interested party. One may take into account, no doubt, a range of considerations including the amount of damage that might be suffered by the making of the order, whether or not the order otherwise will be futile, and whether or not the Court's reasons for issuing the enforcement notice can be dealt with without such an order. In this case it should be taken into account that this will be the second enforcement notice that has issued and that Mr Rohde did not say that any particular damage would be suffered, apart from the inconvenience of having the builder discontinue work. Now that there is no question of demolition the issues seem to relate to other measures that might yet be taken, depending on the views of the Brisbane City Council, to ameliorate the impact of the higher and larger building that has now appeared beside Mr Catchpole's house. It may be that some effective conditions can be imposed even though it seems the building work is approaching the lock up stage. Because the carport has not been built it is easy to see that an assessment about that can be made which will be 11 JUDGMENT 1 10 20 30 40 so 60 -- 11 of 12 -- 30042001 T31/LF25 M/T 4/2001 (Brabazon DCJ) effective. All things considered, in my view, there should be an order that work is stopped because otherwise the assessment process itself may be frustrated. 12 JUDGMENT 1 10 2 30 50 60 -- 12 of 12 --