Cunningham v Brisbane City Council & Anor [2000] QPEC 57

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cunningham v Brisbane City Council & Anor [2000] QPE 057 PARTIES: CHRIS CUNNINGHAM (Appellant) v BRISBANE CITY COUNCIL (Respondent) and EASTS LEAGUES CLUB (Second Respondent) FILE NO/S: Appeal No. 2139 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Application for Declaratory Relief ORIGINATING COURT: Brisbane DELIVERED ON: 12 July 2000 (declaration made 22 June) DELIVERED AT: Brisbane HEARING DATE: 22 June 2000 JUDGE: Judge Robin QC ORDER: CATCHWORDS: Integrated Planning Act 1997s.4.1.21(1), s.4.1.22 – application for declaration Council’s decision approving a “new aquatic centre development” was ultra vires – developer’s application over Lot 295 and part of Lot 1 considered by Council required only “code assessment” and attracted no rights to submit or of appeal – applicant and others had lodged submissions against developer’s simultaneous application (still undecided) over Lot 295 and Lot 1 requiring impact assessment – developer’s application held piecemeal – the approval which fixed the location of a carparking area largely on Lot 295 and very close to the submitters’ residences had potential to compromise the Council’s determination of the other application, allowing use of the carparking area for patrons of a successful club’s sporting, bar, dining, entertainment and gaming activities – Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 applied. COUNSEL: Mr C. Cunningham on his own behalf -- 1 of 28 -- 2 Mr T. Trotter for the first respondent Mr R. Litster for the second respondent SOLICITORS: City Solicitor for the first respondent Deacons Graham & James for the second respondent [1] On 30 May 2000 Mr Christopher Cunningham, self-represented, of 124 Old Cleveland Road, Greenslopes filed an originating application seeking the following relief: “1. A declaration that the decision of the Brisbane City Council approving the new aquatic centre development for Eastern Suburbs Leagues Club is ultra vires the Town Plan on the following grounds: (a) that the said decision, because it involves a development for a carpark relating to the Eastern Suburbs Leagues Club, ought to have involved preliminary Impact Assessment; (b) Notwithstanding 1(a) above the Council ought not to have approved the development because of its adverse impact on the existence (sic) and future amenities of adjoining sites. 2. An interlocutory injunction restraining the Eastern Suburbs Leagues Club and/or Brisbane City Council from proceeding with the aforesaid development..” After a day long hearing on 22 June 2000, a declaration to the effect of that sought was made, which did not specify the abovementioned grounds and, indeed, was made on rather different grounds. These are the court’s reasons for making the declaration. It seemed unnecessary in the circumstances to grant injunctive relief, no reason appearing to think that the respondents would not respect the declaration. [2] It was never quite resolved whether Mr Cunningham represented others than himself. He had a small group of supporters in the back of the court, including Mrs Andrews. Mr Litster, who appeared for the second respondent, and began by inviting the court to correct its name to Eastern Suburbs Leagues Club Ltd (ACN -- 2 of 28 -- 3 009 928 518), which was done, indicated that his client, as it had advised Mr Cunningham by letter of 6 June 2000, was determined to seek costs against him if his application failed, and would seek similar relief against any others who became moving parties along with him. [3] As will appear, the declaration was made to give effect to the court’s view that the rule against piecemeal applications established by the majority in the High Court of Australia in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 applied in this case to vitiate the second respondent’s application (which the court was told was made on 4 January 2000) in respect of “part of lot 1 on RP 58986 and lot 295 on SL 1662, parish of Bulimba”, located at 31 Panitya Street, Greenslopes. The Council’s development approval package included the following: Aspects of Development and Type of Approval Carrying out Building Work (Preliminary Approval) Making a material change of use (development permit) Description of Proposal Refurbishment and upgrade of existing swimming pool – Eastern Suburbs Rugby League Club Purpose under the Town Plan Outdoor sport and recreation [4] The “material change of use” was identified as an intensification of an existing use. The land in question is in fact owned by the Council as trustee for certain sporting purposes and is the site of the Langlands Park Swimming Pool, which is presently of Olympic length. It is proposed to divide the existing pool into a 25 metre one and a shorter one about 17 metres long, and to construct a lagoon or wading pool with a beach and a new building to house change rooms, and other facilities associated with a swimming pool use. The club has become the lessee of the pool from the Council, replacing the former lessee, who has agreed to become its -- 3 of 28 -- 4 manager, under a short term lease, which has or may become a 30 year lease. The pool will remain, as it has been, open to the public. The Club’s involvement involves an expansion of its accustomed activities on lot 1, which extends in a northerly direction from the north side of Old Cleveland Road between Panitya Street and Main Avenue to Norman Creek, except that the frontage of Old Cleveland Road is occupied by residential properties on each side of Wilpunda Street, eight on either side of it. Mr Cunningham’s residence is lot 135, on the western side of Wilpunda Street. Immediately behind is lot 131, where Mrs Andrews resides, with a frontage to Wilpunda Street, the only one on the west before its “dead end”. On the eastern side are two residential properties with frontages to Wilpunda Street. Those, and lot 184, which backs on to one of them with a frontage to Main Avenue are now owned by the Club, along with five of the eight residences east of Wilpunda Street with frontages in Old Cleveland Road and lot 134, immediately to the west of Mr Cunningham. (These matters are mentioned because the Club’s affidavit material suggests that Mr Cunningham’s motivation may be to induce the Club to purchase his property at an inflated price. Such a motive might be a disqualifying factor in an applicant for declaratory relief. In the event, Mr Litster made no submissions based on any such demand or suggestion by Mr Cunningham.) The zoning of the residential properties is Residential A. [5] The only blocks of land yet to be mentioned are lot 183 which appears to be a residential allotment immediately to the north of lot 184 in Main Avenue, and, west of it, fronting Panitya Street, lot 295, larger at 627 square metres and extending back about half way to Wilpunda Street along the rear boundaries of lots 67 to 70 inclusive, which have frontages to Old Cleveland Road. Two lease areas have been carved out of lot 1, at the southern end, each being roughly L-shaped. A bowls club -- 4 of 28 -- 5 has the lease of the western area, which has a street frontage to Main Avenue and extends right across the head of Wilpunda Street, or virtually right across. It surrounds lot 183. To the west, surrounding lot 295, with a frontage to Panitya Street, is the land where the swimming pool has been constructed. There may be a small triangle excised from the south west corner of the bowls club property, to allow access from Wilpunda Street to the swimming pool. The court was informed from the bar table that, in fact, “chlorine trucks” enter the pool area in that way. [6] The large balance of lot 1 is leased by the Council to the Club, which has a ground where football matches are played and a clubhouse among its facilities. Mr Smith’s affidavit gives some of the Club’s history in the site, which goes back 34 years. In 1974 when the Club was incorporated, its only asset there was a small clubhouse which has been progressively extended. An auditorium, which permitted entertainment to be provided, was added in 1991, after earlier extensions to provide for a bar and dining facility. Poker machines were introduced in the refurbishment in 1992 and a major refurbishment three years later extended the dining and bar area as well as the gaming lounge. The last extensive refurbishment was in 1997 and led to the premises (“now an outstanding modern leagues club”, according to Mr Smith) winning “Club of the Year”. [7] The Club’s interest in the swimming pool site goes back to 1996, when discussions began with the Council. In 1998 it became clear that the Council’s lessee might be willing to yield to the Club, which put in a tender the following year to operate the pool and obtained a one year lease from July 1999. Mr Smith says: “It was intended that during the life of this initial lease redevelopment proposals would be put in place and that once these -- 5 of 28 -- 6 were approved and constructed, the Council would enter into the balance of a thirty (30) year Lease in favour of the Club.” [8] Mr Smith’s affidavit goes on: “23. The application to the Brisbane City Council, which is the subject of this Originating Application, was made to facilitate the redevelopment of the Langlands Park swimming pool complex (“the Pool Redevelopment”) as proposed by the Club in negotiations with the Council. 24. The Club has also made another application to the Brisbane City Council to add a food court, additional gaming space and bar areas (“the Club Redevelopment”). 25. At the time the application for the Pool Redevelopment was made: (1) it was not proposed to immediately develop a carparking area to the south of the new pool facilities (“the Carpark Area”) as part of the Pool Redevelopment; (2) it was proposed to develop the Carpark Area as part of the Club Redevelopment and, if the Club Redevelopment was approved and developed, to use the Carpark Area not only in association [with] the Club Redevelopment but also to accommodate parking for the Pool Redevelopment. 26. During the course of the consideration of the application for the Pool Redevelopment, the Council indicated that they would require the provision of the Carpark Area as a condition of approval of the Pool Redevelopment. 27. The Club is prepared to provide the Carpark Area as a condition of approval of the Pool Redevelopment but has requested approval be given to also use the Carpark Area for Club purposes, as part of the application for the Club Redevelopment. 28. The Club does not intend to use the carpark approved as part of the Pool Redevelopment for any purpose unassociated with the Pool Redevelopment, unless and until, the Council gives approval for such use.” [9] Mr Smith is Chief Executive Officer of the Club and swore his affidavit on 20 June 2000. It would be unfair to cast any aspersions, but it has to be said that it is not easy to square paragraph 28 with material submitted to the Council with the Club’s -- 6 of 28 -- 7 “Pool Redevelopment application”. The Club’s town planner is Mr Priddle, of Buckley Vann Town Planning Consultants, who wrote to the Council a letter of 23 December 1999 stating: “The proposal will be sought to be integrated with the overall expansion of the Leagues Club and has been carried out to create a more modern and aquatic based centre for use by the local community.” One must wonder what purposes the Club would consider “unassociated” with the Pool Redevelopment. [10] Mr Saunders is a Design Co-ordinator with Concept Constructions Pty Ltd, the Club’s project manager. Speaking of the time when the simultaneous applications for “Pool Redevelopment” and “Club Redevelopment” were made in paragraph 5 of his affidavit he deposes in identical terms to the sub-paragraphs of Mr Smith’s paragraph 25. He goes on: “6. Because it was proposed to eventually make the Carpark Area available for use by people using the Pool Redevelopment, I included reference to the land on which the Carpark Area is to be located (Lot 295 on Crown Plan SL 1662) as part of the land the subject of the application for the Pool Redevelopment. 7. If it was not intended to develop the Carpark Area as part of the Club Redevelopment to accommodate parking for both the Club Redevelopment the Pool Redevelopment, it would not have been necessary to include Lot 295 on Crown Plan SL 1662 as part of the land the subject of the application for the Pool Redevelopment as the rest of the Pool Redevelopment is within Lot 1 on Registered Plan 58986.” [11] Mr Saunders submitted to Council “as part of the application for the Pool Redevelopment”, plan DA01 (exhibit 3). This shows a carparking area (accommodating 40 cars and a “turning area”) along the southern boundary of the swimming pool area running the length of the rear boundaries of lots 67-70 -- 7 of 28 -- 8 inclusive and the full length of Mrs Andrews’ side boundary on the north. It covers the length of lot 295 and extends into the balance of lot 1 as far as the boundary of the bowls club. The Council’s approval package sets out conditions which, among other things, oblige the Club to develop in accordance with approved plans. The submitted drawing in approved form is plan DA01A, exhibit. 5. The earlier plan is dated December 1999 and was obviously prepared after negotiations with the Council, which prevailed on the Club, contrary to the Club’s inclinations, to include the carparking in the pool redevelopment application, rather than the Club Redevelopment application. The Club saw the carparking as an adjunct to the club operations, apart from the pool; one may guess that the Council was determined to provide offstreet carparking for patrons of the pool. [12] While the Club may have been reluctant to have such parking linked to the pool, that is what it decided to apply for. In my opinion, the conclusion is inevitable that it has at all relevant times regarded that parking as a facility for patrons of the football, dining, drinking, gaming and entertainment parts of the club operations. Exhibit 3 and exhibit 5 both show to the south east of the pool an “entry to club” from which the swimming pool proper appears to be fenced off by a “security fence & gates”; on the eastern side of the pool there is a “screen wall” which extends around the pool to its southern side, and is broken at the “entry-control” in the middle of the southern side. What is fenced off from the pool is identified as “pedestrian access” running along the eastern boundary of the pool lease site. At the southern end of this “pedestrian access” is the eastern end of the carparking area; it may also give access via the “triangle” mentioned, to Wilpunda Street. Notations on the plan clearly identify the “adjoining Eastern Suburbs Leagues Club” as what is referred to in “entry to club”. The court accepts from Mr Litster -- 8 of 28 -- 9 that the existing club buildings and their entrances are in fact at some distance from the “entry to club”. [13] Paragraph 8 of Mr Priddle’s affidavit is the same as paragraph 25 of Mr Smith’s. Mr Priddle goes on: “9. Because that intention was known to me, I considered it to be prudent to include the land on which the Carpark Area is located (Lot 295 on Crown Plan SL 1662) as part of the land the subject of the application for the Pool Redevelopment as to do so would mean that there would be an approval in place to use the Carpark Area for Outdoor Sport and Recreation purposes associated with the Pool Redevelopment if approval was forthcoming for the Carpark Area as part of the Club Redevelopment. 10. Were it not for that intention it would not have been necessary to include Lot 295 on Crown Plan SL 1662 as part of the land the subject of the application for the Pool Redevelopment as the rest of the Pool Redevelopment is within Lot 1 on Registered Plan 58986. 11. At about the same time as the application for the Pool Redevelopment was made, a separate application was lodged with the Council seeking approval for the Club Redevelopment. 12. The application for the Club Redevelopment includes a request that the Council approve use of the Carpark Area for parking in association with the Club and, unlike the Application for the Pool Redevelopment, requires impact assessment, and therefore is an application which required public notification as part of the IDAS process.” [14] There is some point in the emphasis on separate applications. This is because, in the respondents’ submission, the two applications have nothing to do with each other, but are completely independent – as would be any future application to the Council to permit use of the carparking area referred to in connection with the club redevelopment. The Club Redevelopment Application is one which is impact assessable under the Integrated Planning Act 1997, so that local residents like Mr -- 9 of 28 -- 10 Cunningham and Mrs Andrews (as they have done) may make submissions. If the pool redevelopment application is to be considered on its own, it involves only code-assessable development. The Council has no role to play other than to fix conditions under which code-assessable development may take place. No one has any right to make submissions. In setting conditions, as it has done, the Council, under s.24.3.7 of the Town Plan, does, in effect, consider impacts, which it may seek to alleviate by requiring buffering, limiting lighting and so forth. Documents before the court show that the Council has done this in the present case, insisting on changes to the turning area, for example. But it has been done without reference to the views of submitters, which the Council in fact had, but filed away with the Club Redevelopment Application, which would necessarily take longer to be determined, given it was impact assessable, whereas the Council was on a time limit in respect of the pool redevelopment application (considered separately); failure of the Council to nominate conditions would have the consequence that the application was deemed approved; Mr Trotter, for the Council, argued that the nature of the application was such that Mr Cunningham and his allies were not entitled to any say as to how the land expressly included in it (zoned Outdoor Sport and Recreation) is developed – their rights are now limited to appealing against any approval the Council may give for use of that land under the Club Redevelopment Application. In my opinion this (technically correct) argument points up the piecemeal nature of both applications. [15] From their lay perspective, Mr Cunningham, and those who think as he does, have had little difficulty in reaching an understanding that the Club’s twin applications (and, perhaps, the future one vaguely foreshadowed) ought to be considered as a package. Thus, Mrs Andrews’ submission (which, through an interesting accident -- 10 of 28 -- 11 of fate was prepared by a staff member of the Club’s solicitors who did not appreciate that the firm was retained by the Club) says: “I have particular concern with the carpark component of the proposed development which is to be located along the boundary of my property. A walkway is indicated on Concept Construction’s plan for the new aquatic centre facilities for Eastern Suburbs Leagues Club Drawing No. DA01, linking the Leagues Club to the carpark facility. As the Leagues Club and the associated restaurant currently operates until approximately 1:30-2am, it can be assumed that patrons from the Leagues Club, who may potentially be under the influence of alcohol that is served at the Leagues Club, may behave in a rowdy manner during the early hours of the morning. I am also of the opinion that the noise from the slamming of car doors and starting of engines in the carpark in the early hours of the morning will be excessive. The presence of patrons who are potentially under the influence of alcohol in the carpark during the early hours of the morning also causes safety concerns for residents such as myself living in the area. This is particularly so in my case because I am a widow and value my continued security and safety. The proposal indicates that an acoustic barrier fence is to be located along the boundary adjoining my property. However, I am not satisfied that the acoustic barrier that is proposed will sufficiently reduce the noise, visual amenity and safety impacts caused by the carpark. The height of the proposed acoustic fence barrier will not achieve the desired result with respect to my property because my home is a two storey dwelling that is located close to the fence line. 3. Moving Forward Please note that I do not object entirely to the proposed development. It is only with respect to the above issues, that relate to the carpark component of the development, that I object. All other alternatives for the positioning of the carpark should be considered by the Council before the development application is approved. If it is found that other alternatives are not feasible, I am of the opinion that any approval of the application should be conditional on: (1) the developer being required to take measures to ensure that excessive noise and air pollution will not be caused during the construction phase of the development; (2) the location of an acoustic barrier fence along the western boundary of the land adjoining the residential properties that is proven to negate any intolerable noise and visual amenity impacts caused by the development; -- 11 of 28 -- 12 (3) the developer being required to ensure that the car park facility is patrolled by a security enforcer, for the safety of local residents living on the adjoining properties and in the area generally. If this is not a viable option, the hours of operation for the Leagues Club should be limited to 10 am to 11 pm on weekdays and 10am to midnight on weekends.” [16] Mr Cunningham’s submission, expressed to be made for others as well as on his own account, was drawn without the same legal expertise; it contains the following:- “. Proposed carparking adjoining pool on the south side is unacceptable to the residents adjacent to the existing proposed plans – an alternative location within the proposed plan area could be acceptable to all residents and would be of more beneficial joint use within this change of use application, gaining the club’s complex extra parking numbers and concentration of vehicles/pedestrians in one location. ... . The homes which will adjoin the proposed car park and rear entry to the Leagues Gambling Emporium. This is a gross invasion of the privacy and right to peace and quiet of the current residents who will be subject to noise, exhaust fumes, cigarettes smoke and all the unsavoury elements associated with gambling and alcohol. We note no mention save in passing acknowledgment of the residential properties to the immediate south of the existing Langlands Pool, these properties front Old Cleveland Road and rely on the rear of said residences for the quiet and peaceful environment away from the noise and traffic associated with this busy road. . Particular concerns regarding adjoining residents, i.e. the homes which adjoin the proposed application: - The proposed car park is open to abuse by the loutish element, i.e. drug abuse, vandals, graffiti artists and other unsavoury characters. Stones Corner is well known by the local residents who have been left to deal with these problems on their doorstep, all hours day and night, this carpark will encourage. Another area of problems for residents to deal with especially during hours of peace and relaxation, as it s the existing car park of the Applicant’s (Eastern Suburbs Leagues Club) after hours, i.e. stolen cars -- 12 of 28 -- 13 being dumped and drink and drug abusers drifting through our residential area causing disturbance. An example of which residents adjoining the ‘Pool’ now have found needles and syringes thrown over their fence into their backyard. Concerns area very high regarding this issue and proposed empty void of the carpark. . It would appear Council’s town planners see nothing wrong in these character area houses as defined in the ‘Town Plan’. Having a car park to the rear as well as the front of said dwelling. Perhaps the BCC’s Town Planning Department would enjoy coming home to live in the middle of a huge car park, the residents in question would certainly not agree with this assumption. It certainly shows a huge lack of consideration for the ordinary rate paying public and their families. . We note that this application has been deliberately combined with the development application for the Leagues Club to confuse the issues in question. This is an ambiguous proposal made by the developers to confuse ratepayers of the local community. The hope that the local community will be so confused by the issue that they will give up any attempt to rally against the said development by the Easts Club. This is a huge development by any standard and certainly requires more local public investigation of the issues raised, than has happened so far.... ... The swimming pool complex as per White Pages phone book is 5 Panitya Street – has no noticeboard adjoining main road frontage as per IPA Form 7, nor is it described in any correspondence. In view of observations and points made by our residents’committee, we would move that this application be resubmitted addressing the points of issue being addressed correctly.” [17] Mr Cunningham would not be the only citizen who has failed to appreciate the changes wrought by the IPA. He made many complaints about the public notification not set out here, doubtless based on his understanding of the former regime, which led him to expect notification of what became the subject of the pool redevelopment application, given knowledge he had gathered of the Club’s proposal. I would think he did not realize that that application was made under -- 13 of 28 -- 14 s.6.1.28(3) of the IPA and could not be refused by the Council: s.6.1.30(4). He probably had no realization that under s.11.3 of the Transitional Planning Scheme (the Brisbane Town Plan) the application, considered on its own, required code- assessment only and that he had no right to put in any objection or submission. From his point of view, there have been some fortunate accidents, one being the simultaneous Club Redevelopment Application which did require impact assessment and public notification. Contrary to his expectations, this was the only public notification. He seems to have got hold of Mrs Andrews’ notice, she being an adjoining landowner (he was not) and, unsurprisingly, entitled his submission in accordance with it. It is less clear that Mrs Andrews’ former solicitor did the same; he did not reproduce the words “extension to an existing licensed club”. [18] The foregoing submissions, presumably, have not been considered by Council, which will regard them as directed to the impact assessable development application it has yet to determine. [19] Grounds (a) and (b) assigned to support the injunction Mr Cunningham sought are misconceived. For a code-assessable development application, the Council’s approval was never required; there did not have to be any impact assessment. This court has no jurisdiction to determine for itself the merits of the decision the Council has made and set out in its “approval” (or determination of conditions) dated 16 May 2000. This is not an appeal against that approval. If it had been an appeal, it might have faced difficulties under s.4.1.28.(1) of the IPA: “If an application involves both impact assessment and code assessment, appeal rights for submitters are available only for the part of the application involving impact assessment.” -- 14 of 28 -- 15 Mr Trotter, who referred to this provision, did not wish to go so far as to say that if there were an appeal involving impact assessment, it would be beyond the court’s competence in such an appeal to set different conditions from those established by the Council in respect of a code-assessable aspect. Although he has erroneously referred to himself as “appellant”, Mr Cunningham has proceeded by originating application for a declaration and there is no difficulty in recognizing his application as coming under s.4.1.21.(1)(c) and s.4.1.22.(1). Mr Cunningham, on what is made to appear to date, has no need for any “order about” the declaration he has obtained. In those circumstances there is no need to be troubled by s.4.1.22.(2) which provides that: “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 by the applicant.” The court has not amended or cancelled a development approval, in any event. It is simply declaring the Council’s decision ultra vires, as, in my opinion, it is invited to do by s.4.1.21. An example of this sort of thing is Malcolm v Newcastle City Council (1991) 73 LGRA 356. I understood counsel for the respondents to accept that such a declaration might be made if it could be established the Council approval offended the finality principle by leaving some important aspect of a condition to be decided later on. The basis on which, in this court’s opinion, the declaration has to be made is that the application which led to the approval was piecemeal, within Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485. As the headnote records, referring to the City of Brisbane Town Planning Act 1964-1976: “An applicant under the Act, and under the ordinances made under it, for consent to use land for a particular purpose must apply at the outset for the entire proposed use. Where a change of use is contemplated, the proposed use must be stated in appropriate detail -- 15 of 28 -- 16 in one application and all the land involved in the use must be the subject of the application. Hence the application (for approval of use of land as a quarry) was defective in failing to include the route of a proposed access road; it did not include all of the land to which it related or applied ...” Although decided in relation to superseded legislation, Pioneer Concrete expounds general principles. It is worth setting out passages in the judgment of Stephen J which tended to confirm this at 500-501: “Underlying the rival contentions argued on this appeal is a question of quite general importance in the field of town planning: it is whether an applicant for consent to use land for a particular purpose may make application piecemeal, or must he, on the contrary, apply at the outset for the entirety of the use in question and, consequently, in respect of the whole of the land devoted to that use. The terms in which I have posed this question, my reference to ‘the entirety of the use’ and to ‘the land devoted to that use’, necessarily lack precision. It will be from the resolution of some at least of that imprecision that an answer to the question will emerge. I may, at this stage, foreshadow the answer to which I have come: it is that where, as here, the use proposed is a single use, no piecemeal series of applications is permissible, at least under the City of Brisbane’s town planning measures; instead, that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application. ... ... The customary Australian scheme of town planning, which derives from English pre-war models and to which Brisbane’s town planning measures generally conform, involves the use, in combination, of two principal tools: a planning scheme map, by means of which the planned area is divided up into distinct zones, and a schedule specifying land uses in respect of each such zone, some uses being permitted as of right, others only with the planning authority’s consent or, sometimes, subject to specified conditions, and others again being wholly prohibited. Where use for a particular purpose requires consent, application must be made for that consent and details of the proposed use must be furnished with the application. 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 for consent, 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 -- 16 of 28 -- 17 application. This 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.” When it is the whole of a holding of land which is applied for as being intended to be devoted to a particular use this dominant role of the integer of use will be unlikely to be of significance. ... But where, as here, the application is restricted to only a relatively small portion of a much larger holding a question may arise whether in truth the proposed use is to be confined to that portion. An examination of the integer of use will provide the answer and may reveal that the use, properly understood, involves more than the land the subject of the application.” and at 504-505, in passages which outline the rationale for the rule that piecemeal applications are impermissible: “...What was, perhaps, not recognised was that the need for this condition arose because the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road. To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour’s judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application. -- 17 of 28 -- 18 Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first. Quite apart from such adverse practical consequences as may result from thus splitting into two or more applications the one proposal to use land for a particular purpose, I do not regard Brisbane’s town planning measures as permitting such a course. Brisbane’s Town Plan provides, by cl. 4(b), that purposes set forth in column IV of the Table of Zones are purposes for which land may be used only with the consent of the Council. Clause 2 of Pt 2 of Ch. 8 of the City of Brisbane Ordinances provides for applications for such consent. The application must contain a statement of “the use desired to be made of the land” and of “the full description of the land”. By s.22 of the Act there must be public advertising of the application and it must, by sub-s. (1A)(c), contain a quite full description of “the land to which the application relates or applies” and must particularize the “nature of the proposed use”. Neither of these provisions encourages the view that an application may be restricted to part only of a proposed entire use; they proceed rather on the footing that it is for “the use”, that is, for an entire use, that application must be made. ” ... It is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application.” [20] Mr Trotter, for the Council, relied much on the last sentence quoted, contending that there was a separation in time of the Club’s proposals as embodied in the two applications. I am unable to agree with his proposition. All of the Club’s documents indicate that both applications were part of a single grandiose proposal – -- 18 of 28 -- 19 notwithstanding that there may have been special features of aspects of it, for example that the pool was to be a public facility (for those who paid the entrance fee) whereas other club facilities might be more private. The Council’s “report and recommendation on development application” (by Jan Cilliers) contains the following: “THE PROPOSAL The purpose of the application is to refurbish the existing facilities. The 50 metre pool is to be replaced with two smaller pools as well as a recreational pool. the development will also include new amenities buildings with a kiosk/cafe. A new entrance and parking area will be provided to the south of the site. The development is intended to integrate with the total development of the Easts Leagues Club on the adjoining site to the north.” LAND USE AND ZONING IN THE LOCALITY The subject site is located east of Panitya Street to the north of Old Cleveland Road. It is part of the larger sport and recreation area which stretches north of the pool and is leased by the Easts Leagues Club. The clubhouse is situated directly adjacent tot he north of the subject site with a rugby field further north. The bowls club is located to the east of the subject site. ... Development Requirements According to Section 18 of the Town Plan, parking required for this development would be 15 spaces plus 1 per 100m² for the swimming pool area. The pool area and immediate surrounds is 2500m². A total of 40 parking spaces would be required for this. The proposal is consistent with this figure. This is opposed to the existing situation where no parking is provided for the pool facilities. It is proposed that the parking would be shared with the adjoining club facilities. This will be dealt with as part of the separate application on that site.” [21] Pioneer Concrete has been applied in Queensland, for example in Grasso v Mulgrave Shire Council (1993) QPLR 86 and Nashyvying Pty Ltd v Mulgrave Shire Council (1994) QPLR 392. Judge Brabazon QC found it applicable in a case decided under the Local Government (Planning and Environment) Act 1990, Kirk v Brisbane City Council (1998) QPELR 465. There was no real contest regarding its applicability (as a matter of law, as opposed to application to the facts) under the -- 19 of 28 -- 20 IPA in Michael Edwards v Douglas Shire Council (Cairns Appeal No. 3 of 2000, 7 June 2000). There has been a disposition in Queensland courts to find that phased applications should not be regarded as piecemeal, where it is possible to regard any particular one as comprehensive and self-contained. See Stubberfield v Redland Shire Council (1993) 81 LGERA 13 and Gibway Pty Ltd v Caboolture Shire Council (1987) 2 Qd R 65, where it was held no invalidity arose because of the omission to include as land subject to an application that part of a site which was to be dedicated as a public road and, accordingly, did not require to be rezoned. See also Burragate Pty Ltd v Albert Shire Council (1991) QPLR 173. In that matter, both of the developer’s applications came before the court in the same hearing. [22] In the Club’s applications, the descriptions of the land (in each case said to be at 31 Panitya Street, Greenslopes) overlap. The pool application is for “part of lot 1 on RP 58986 and lot 295”. See the Form 1A – IDAS Development Application. The other, according to the Form 7 sent to Mrs Andrews was in respect of “lot 1 on RP 58986, lot 1 on RP 86928, lot 1 on RP 86929, lot 295 on SL 1662 and lot 462 on SL 3558”. It is the overlap in respect of the land identified in the pool related application that is significant. Proceeding by separate applications exposed the Club to the risk identified by Stephen J that, in its application in respect of “part of lot 1” it was not identifying all of the land to be covered by the use of the land it did apply for. Use of the carparking facilities for the balance of lot 1 is both intended and positively encouraged by the proposal as designed; indeed, the strip marked “pedestrian access” is effectively annexed to the more northerly part of lot 1. In the present context, it is probably more to the point that omission from the pool redevelopment application of reference to the use of, carparking for club purposes carried out elsewhere on Lot 1 offends Stephen J’s more basic requirement that “the -- 20 of 28 -- 21 proposed use must be stated in appropriate detail in one application”. See the headnote, and Stephen J’s reference to the need to apply at once for “the entirety of the use” (p. 500). Mr Trotter argued (at p. 114 of the transcript) that the IPA restricts the full operation of Pioneer Concrete because it permits a developer whose proposal requires only code assessment to proceed separately on that aspect as to which there will be no submitter or appeal rights. I do not accept the argument, having been referred to nothing in the IPA which permits a simple proposal to be broken down into “aspects” or in any other way. [23] I should notice the argument based on the IPA s.2.3.1.(8) that the Assessment Manager can receive (and process) an application that is not a properly made one; however, this may be done only “after consideration” (of whether or not to accept that application); in my opinion some specific record ought to appear of the consideration being embarked upon and of the decision [24] I appreciate that if the 40 vehicle carparking facility is regarded as ancillary to the swimming pool use, there was no need of an application to permit the “use” of “carpark” which, in the planning scheme: “means a place used or intended for use for the parking of motor vehicles where – (a) that parking is not merely incidental to and necessarily associated with the use of the premises which includes that place for some purpose; and (b) that place is not a taxi-cab depot. “ Given that definition, and the zoning of all relevant land in the Sport and Recreation Zone, Mr Cunningham gains no advantage from the inclusion of -- 21 of 28 -- 22 “carpark” in column 3, permissible development. So far as the pool application is concerned, the application was for the use of “outdoor sport and recreation”, which includes “the public use of any swimming pool ordinarily open to the public”. Items such as shelters or other public conveniences and kiosks are specifically included in the definition of “outdoor sport and recreation”. Ancillary parking is not mentioned, but the judgments in Pioneer Concrete are high authority that ancillary parking need not be applied for as a separate use. As Mr Trotter pointed out, uses of land usually “take their category from the principal use”, so that the pool parking is outdoor sport and recreation use. He argued that the pool redevelopment application stands on its own, there is no call for an applicant developer to descend to the minutiae of ancillary uses: Shire of Perth v O’Keefe (1964) 110 CLR 529, 535 per Kitto J. In my opinion it is artificial to ignore the intended use of the “pool” carparking as “ancillary” to the club use(s) – something likely to happen in practice (whether or not there is a planning approval allowing it), and to be productive of the more concerning impacts on the amenity of the adjacent and nearby Residential A properties. Arguably, it may not be fair to fix the Club with the noise experts’ understanding of its proposal; however, their plan (Exhibit L to Mr Cunningham’s affidavit,) Site Layout and Noise Measurement Location (Palmer Associates Pty Ltd) is where the Club’s overall plans appear most clearly as a single proposal; it goes so far as to show the pool redevelopment site (including carparking area) as providing access between the Club and Wilpunda Street. However, there is nothing of substance before the Court to overcome the strong impression of an integrated overall plan, to understand which both applications must be consulted. -- 22 of 28 -- 23 [25] Mr Litster adopted the terminology of “discrete planning units” to characterise the swimming pool land, on the one hand, and the club land on the other, submitting that nothing about the application regarding the former went outside it, as a separate planning unit: the pool could be operated on its own parcel of land without any need to resort to other land. He argued his client Club had the right, by the IPA, to make applications when and as it saw fit, that the case was not one about “single use wherein the integer of the use requires the addition of extra land,” that it did not matter there may be some other application(s) on foot or proposed. He had to concede that if the Council dealt with his client’s applications in a different order, the conditions set might be very different. Along similar lines to Mr Trotter, he submitted that “all the land necessary for the pool has been included in one application, that is an application where nobody has the right to meddle, and which cannot be refused by Council” (p.159); he said the answer to Pioneer Concrete is that “there are two separate uses”, the club uses coming under a separate application. The central failure of this case, however, in the court’s view, is that it is a relevant purpose of the developer to provide parking for the club uses on the pool land – that the Council should have been asked to consider the parking question in that context, to satisfy the requirements of Pioneer Concrete. [26] It does not assist the respondents to insist that the pool application land and the club application land, although they overlap, may be regarded as separate “premises” or “planning units”. It may be accepted that there is no objection to the same premises being the subject of more than one approval, so long as those approvals are not inconsistent. However, I cannot understand how the “premises” can be permitted to overlap in this context. It seems to me that the carparking facility in question, while ancillary to the swimming pool, is on the swimming pool land, and amounts to a -- 23 of 28 -- 24 “car park” which would have to be applied for as permissible development in respect of the club land. Much about the history of the pool redevelopment application, in particular the incorporation of the carparking and the approved access to the club premises, could be thought to give rise to legitimate expectations by the Club in the other application, and compromise the Council’s consideration of it, and of relevant submissions. [27] If this were a town planning appeal (which it is not), the vice of separate applications and separate consideration of them would be that the location of the carpark, which is the real cause of concern to Mr Cunningham and his associates, fell to be considered as if its only function were to serve the swimming pool patrons. The quite different impacts which its serving patrons of the club’s other activities might generate was not considered. Those could be impacts which would create doubt as to the acceptability in planning terms of the parking arrangement: compare Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455. The Council’s consideration of the club redevelopment application has been compromised because the location of the carparking area has been fixed without reference to likely impacts by approving plan DA 01A, which provides for an entry to the club linked directly with the carpark; further, in the context of what it knows about the Club’s overall plans, the Council have got into a position where it would be extremely difficult to forbid or limit use of that carparking by club patrons. [28] Again, I emphasize that in a proceeding like this for a declaration under s.4.1.21. of the IPA the ground rules are very different from those in a planning appeal. As -- 24 of 28 -- 25 Judge Newton put it in Eschenko v Mary Elizabeth Cummins (Southport Appeal No. 359 of 1999, 13 June 2000): “This court is not directly concerned with the merits of the approval in question, but rather must consider whether the approval given by the second respondent ... was validly given. The onus of establishing invalidity falls upon the applicant (Parramatta City Council v Hale (1982) 47 LGRA 319 at 335, 393). The validity of the Council’s approval must be upheld if it was reasonably open to the Council to grant it. Whether the Council’s decision was sound or unsound is not a matter that properly falls for consideration by this Court. The relevant principle of law was correctly stated ... in Lyons v Misty Morn Developments Pty Ltd (1998) QPELR 268 at 272: ‘There have been many cases in which a court has been asked to review something done by a person or body under an Act of Parliament where the authority to do that thing is expressed by the Act to be dependent on that person reaching a specified state of satisfaction. This is such a case .... The law on this topic is clear. The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed or that it was based on irrelevant considerations, or that in some other way it was unjustifiable. If it is justifiable it stands whether or not others may disagree with it.’ Similarly, in Clayton v Council of the Shire of Miriamvale (2129 of 1999, 5 May 2000) Judge McLauchlan QC at pages 6 and following of his reasons emphasized the necessity, before the court can make a declaration, to find what he identified as “a jurisdictional error”. [29] In my opinion, that can be achieved here. The respondents placed before the court examples of self-contained applications determined not to be piecemeal because some future application might occur. In Comiskey v Pine Rivers Shire Council (1996) QPELR 158, 161, distinguishing Pioneer Concrete, Senior Judge Skoien said: “In this case the rezoning could occur and some commercial uses could be carried on within the site without any use of the adjoining -- 25 of 28 -- 26 land for car parking. So the use applied for is a single one. Or as Wilson J. said at p. 518 the application should include as part of the description of the proposed use, all significant incidental uses which are necessarily associated with the proposed use. While the use of extra land for car parking could be seen to be desirable and might lead one day to an application in that behalf, its use now is not necessarily associated with the commercial use of the subject land. Reference was also made to Ecovale Pty Ltd v Brisbane City Council (1999) QPELR 189, where Quirk DCJ said at 191: “It will be remembered that in Pioneer, part only of a larger allotment was identified as the ‘subject land’ and it emerged that the use for which consent was there sought involved necessarily the construction and use of an access road on an area of the larger allotment which did not form part of the subject land. No comparable situation exists in this matter. On the facts put before me, the application as made was entirely self-sufficient. Satisfactory access to and from the road system and adequate on-site parking was provided by the subject land. It could not be suggested that the intended use would not be able to function without the need for further approvals in respect of other land that was not subject to the application.” It seems to me that cases like Ecovale, which concern private carparking on contiguous sites jointly available to persons having business on any of the sites, which most in the community would consider both rational and convenient, are not of assistance here. Even so, such arrangements can cause embarrassment to developers, as in rendering an application technically deficient; see Perpetual Trustees Australia Limited v Toowoomba City Council (1998) QPELR 461. The Club’s difficulty in this case is that it is the owner, more correctly lessee, of all the land, for which it has devised what, in my opinion, has become an integrated redevelopment. The parking arrangements which are of concern are to be a facility available to users of the integrated development indiscriminately. It cannot help the Club that it might have been the Council which complicated matters by insisting -- 26 of 28 -- 27 that the parking facility be available to swimming pool patrons: Barrakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99, 102. [30] The respondents’ assertion that the pool redevelopment application was self- contained and had to be determined exclusively on its own merits by the Council, as if activities on other parts of lot 1 were completely irrelevant, and that no person had any entitlement to notice or to make submissions misses the point, because matters to do with the balance of lot 1 are integral to the whole proposal, in particular integral to the carparking facility in question. A piecemeal application was, in the circumstances, invalid. It may have been otherwise had the Club indicated it wished its applications to be considered together. It did not so indicate. [31] The submission made for the respondents that the location of the parking facility as presently approved is inevitable must be rejected. There is no evidence to this effect and mere scrutiny of exhibit 5 would appear to reveal space within the application area along the Panitya Street frontage within that site for accommodation of 40 parked vehicles. Practicalities dictate that the location of the 25 metre and 17 metre pools is fixed, but the lagoon/wading pool’s location is not, nor is that of the buildings, which are presently placed well forwards towards Panitya Street. If it matters, the local residents, whose own private facilities (such as Mr Smith’s swimming pool deck and Mrs Andrews’ house) are extremely close to the boundary, plainly prefer to be close up against the present buildings (proposed to be demolished) which, in places, are extremely close to the boundary, considering such a situation far preferable from the point of view of their amenity to carparking - and particularly so if that carparking, in accordance with the Club’s -- 27 of 28 -- 28 wishes, becomes available for use of its patrons generally, and is not restricted to pool patrons. -- 28 of 28 --