Clayton v Miriam Vale Shire Council [2000] QPEC 27

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Clayton v Miriam Vale Shire Council & Anor [2000] QPE 027 PARTIES: JOHN CLAYTON (Applicant) And COUNCIL OF THE SHIRE OF MIRIAM VALE (First Respondent And CARL WEBB (Second Respondent) FILE NO/S: 2129 of 1999 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: 5 May 2000 DELIVERED AT: Brisbane HEARING DATE: 29 February 2000 JUDGE: McLauchlan Q.C. DCJ ORDER: CATCHWORDS: COUNSEL: A. Heyworth-Smith (Applicant) M. Rackeman (Respondent) R. Needham (Co-Respondent) SOLICITORS: Cranston McEachern (Applicant) McCullough Robertson Hancock (Respondent) Anne Murray & Co (Co-Respondent) [1] This is an application for a declaration that the development of land situated at the corner of Captain Cook Drive and Ocean Drive in the Town of 1770 in the Miriam Vale Shire, being the land described as Lot 1, Crown Plan S85613, Parish of Eurimbula, is unlawful. The development complained of is a dwelling house erected by the second respondent. The applicant is the resident owner of a dwelling at 5 Captain Cook Drive, approximately opposite the subject site. The site has an -- 1 of 27 -- 2 area of 675 square metres. It is about 35 metres deep and has a width varying from 14 metres to about 20 metres at the high point of the land closest to Captain Cook Drive. Its long axis runs parallel to Ocean Drive. The site is at a low point at the northern end of Captain Cook Drive, the main access road, which rises in a general south-easterly direction. The site also falls away from the road quite markedly in an easterly direction. It is not a level site but a “sloping” site. The site is at the northern extremity of an isolated subdivision of about 50 lots located on the ridge immediately behind Round Hill Head, which subdivision is entirely surrounded by the Joseph Banks Conservation Park. There is no potential for any further subdivisional development in the area. About half of the lots have been built on. The main access road within the estate broadly follows the ridgeline with short connections to secondary streets which tend to follow the contour. The area is traversed by the road to the Round Hill Head Lookout and monuments, which road passes the subject site. [2] The house itself is of masonry construction, on three levels. The bottom level comprises the garage and a water tank; the next level consists of a laundry, bathroom, shower and toilet facilities; and the third level comprises the living area. [3] Current residential development in the area displays a wide range of styles, standard and quality. Generally speaking it is true to say that the houses in the estate do not contain more than two storeys. The mix of styles appears to reflect the fact that a number of the buildings are in an older traditional holiday style, and some of the newer dwellings reflect more contemporary suburban features. -- 2 of 27 -- 3 [4] The Planning Scheme for the Miriam Vale Shire was gazetted on 20 June 1997. The subject site and land in the general vicinity are zoned Urban. Within this Zone, development for the purposes of a dwelling house is generally self assessable. That is, no development application is required to be lodged in respect of the material change of use component of that development. Nevertheless any such development must comply with such of the requirements of the Planning Scheme as are applicable to it. Section 2.3.4(j) of the Planning Scheme requires that: “Development for the purposes of a dwelling house with a height exceeding nine (9) metres above natural ground level at any point shall be deemed to be development for which a submission shall be made to and determined by Council as required by sub-section 7.1.1.” [5] Initially the respondent Council regarded the application for development as one not requiring any submission to it, but it became apparent that the proposed dwelling house at its highest point exceeded nine metres above natural ground level so that a submission was required. Although a dwelling house is permitted development within column 3(a) of the table of zones, where the height restriction of nine metres is exceeded the effect is to categorise the development as permitted development under column 3(b) of the table of zones, because of the requirement that a submission be made to Council. Under s 7.2.4 of the Planning Scheme the Council is restricted to four decisions concerning an application for development for which a submission is made. It may:- “(a) deem the development to be a permitted development within column 3(b) of the relevant table of zones; (b) confirm that the development constitutes minor works associated with existing premises and as such it is a permitted development within column 3(c) of the relevant table of zones; (c) deem the development to be a permissible development within column 4 of the relevant table of zones; or -- 3 of 27 -- 4 (d) confirm that the development is a prohibited development within column 5(b) of the relevant table of zones.” [6] Under s.7.2.5 the Council may “impose conditions on its determination”. [7] Section 7.3.1 of the Planning Scheme provides that where Council determines that the development is a permitted development pursuant to sub-s. 7.2.4(a) or sub-s. 7.2.4(b) then the submission for development shall be deemed to be the application for notification of conditions. In the present case the first respondent deemed the development to be a permitted development within column 3(b) of the table of zones, and imposed conditions. The applicant says, in effect, that it was unlawful for the first respondent to have done so. This is principally because of the provisions of s.7.2.5 of the Planning Scheme which (relevantly) provides in paragraph (d) that “without limiting Council’s discretion in determining the submission pursuant to subsection 7.2.4”, the Council shall not deem the development to be a permitted development within column 3(b) of the relevant table of zones if: (i) ... (ii) the development is not clearly in accordance with the provisions of the Strategic Plan; (iii) the anticipated impact of the development on the amenity of the locality is unclear and/or may, in the opinion of Council, cause detrimental impact to the amenity of the locality; (iv) the development is not clearly in accordance with relevant development requirements; or -- 4 of 27 -- 5 (v) the development is not clearly within the reasonable expectations of the occupiers and/or owners of premises in the immediate vicinity of the proposed development and, where appropriate, of the broader community within the plan area. [8] The applicant’s argument is that the Council could not consistently with the above provisions deem the development to be a permitted development within column 3(b) of the table of zones, and because it could not be a column 3(c) development (which relates to minor works associated with existing premises) or a column 4 development (a permissible development which includes a dwelling house but involving subdivision, which the present development did not) then it must be a prohibited development, that is to say a column 5 development. [9] For the purposes of the Integrated Planning Act 1997, (“the Act”) the first respondent’s Planning Scheme is a transitional planning scheme, ss.6.1.2, 6.1.3. Under s.6.1.2(8) all development applications for assessable development made after the commencement of that section to which a transitional planning scheme applies must be made and processed under the Act. The section commenced on 30 March 1998, and the development application was lodged with Council on 9 March 1999. Since, if it were an application under the Local Government (Planning and Environment) Act 1990 (“the repealed Act”) it would not have required public notification, (since it is for a permitted, not a permissible use), the application is to be processed as if it were a development application requiring code assessment rather than impact assessment: s.6.1.28(3). “‘Code assessment’ is defined to mean the assessment of development by the assessment manager only against the -- 5 of 27 -- 6 common material and applicable codes (other than codes, or parts of codes, a concurrence agency is required to assess an application against).” “‘Impact assessment’ means the assessment (other than code assessment) of – (a) the environmental effects of proposed development; and (b) the ways of dealing with the effects.” [10] However sections 3.5.4 and 3.5.5 of the Act which deal with code assessment and impact assessment do not apply in assessing an application for development to which a transitional planning scheme applies. Instead, provision is made in s.6.1.29 that various stated matters, to the extent that they are relevant to the application apply for assessing the application. Relevantly, these include the common material for the application, the transitional planning scheme, and any transitional planning scheme policies. The “common material” is, broadly, all the material about the application the assessment manager has received in the first three stages of IDAS Section 6.1.30(4) goes on to provide that if a development application is made under a transitional planning scheme for the setting of conditions, which was the present case, the assessment manager may not refuse the application, “despite s.3.5.11(1)(c) but a concurrence agency may still direct the assessment manager to refuse the application." For present purposes it is sufficient to say that the Act required that the development application be assessed against the transitional planning scheme. By virtue of Section 6.1.2(3) of the Act a prohibited use in a transitional planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. [11] In determining the application for a declaration now before it, the function of the Court is not the same as if it were hearing an appeal. On the hearing of an appeal -- 6 of 27 -- 7 the Court exercises its own discretion and its decision is substituted for that of the relevant local government, or other assessment manager. (Section 4.1.52(1) provides that an appeal is by way of “hearing anew”). In the present matter the Court has no such power. In order to succeed in his application the applicant must show that the development complained of is unlawful, and the applicant bears the onus of proof in that respect. It is also not a question of the Court deciding whether or not the respondent Council made a factually wrong decision, unless the error related to a matter of “jurisdictional fact”. Short of that, it is plain from the transitional planning scheme that the Council was invested with a discretion to determine the development application made by the second respondent. The question whether the determination of the first respondent to approve the development should be set aside as being unlawful is to be determined upon the applicable principles of administrative law, which in part cover the same ground as the principles which apply in the ordinary courts where there is an appeal against the exercise of a discretion. [12] In applying the relevant principles of administrative law there is a distinction between a decision which is unlawful because of want of jurisdiction, or excess of jurisdiction, and a decision which should be set aside because of an error of law committed within the jurisdiction reposed in the body in question. If, for example, the second respondent had lacked jurisdiction altogether to enter upon a consideration of the development application, because the land in question was in fact included in a neighbouring shire and not in the Miriam Vale Shire, then the decision of the second respondent approving the application would be void for want of jurisdiction and development carried out pursuant to that decision would be unlawful. If, on the other hand, the second respondent acted within jurisdiction in -- 7 of 27 -- 8 embarking upon a consideration of the matter, but committed an error of law in reaching its determination then the proceedings and the decision would not be a nullity but would be liable to be set aside for error. In the first case the development permit, which is the expression of the decision upon the relevant application would be void, whereas in the second case it would be merely voidable and would have effect so long as it stood. [13] The Act provides, in s.3.1.5(3) that a development permit authorises development to occur to the extent stated in the permit, and subject to the conditions in the permit. In my view the reference to a development permit in that section does not include a reference to a development permit that is a nullity, so that in the case where a development approval is given without jurisdiction because, for example, of error in the finding of a relevant jurisdictional fact, the provisions of s.3.1.5(3) would not prevent proof of an offence under s.4.3.1, which makes it an offence to start assessable development without a development permit. (In a case like that an innocent permit holder would, no doubt, have the benefit of the provisions of s. 24 of the Criminal Code). In my view, however, a development permit which is not a nullity, that is, one that has not been vitiated by jurisdictional error, does, in accordance with s.3.1.5(3) authorize the development to occur, so that development conforming with the requirements of that section cannot be unlawful. Quite apart from the provisions of that section, in a case where the decision leading to the development permit is voidable for error so that the development permit itself is also voidable, this will not affect the lawfulness of a development which has occurred in terms of the permit before it is challenged. If the decision is in fact set aside because the discretion of the Council is shown to have miscarried, then the development permit, which is the expression of the Council’s decision will also be -- 8 of 27 -- 9 set aside, but until set aside it is valid and effective, and the avoidance of the permit is not retrospective. The law on this topic is admittedly complex. Important authorities include Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147, Calvin v. Carr [1980] A.C. 574, Re Racal Communications Ltd [1981] AC 374 and R v. Bjelke-Petersen; Ex parte Plunkett [1978] Qld R.305. [14] Section 4.1.21 of the Act confers upon the Court jurisdiction to hear and decide a proceeding for a declaration about (inter alia) the lawfulness of land use or development. Section 4.1.22 also confers power upon the Court to make an order about such a declaration. The section goes on to provide, however, that if such an 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. In a case where the development approval is a nullity for jurisdictional error, there is no occasion for an order amending or cancelling the development approval, which is inherently null and void. Where the development approval is merely voidable, however, the provisions of s.4.1.22 will have effect, and mean that the development approval cannot be avoided or cancelled in the absence of fraud on the part of the applicant for that approval. Even, then, if it can be shown that the decision of the first respondent should be set aside for miscarriage of the discretion entrusted to it, the development permit will stand for the benefit of the second respondent unless the Court is satisfied that the approval was obtained by fraud on his part. There is no evidence of any such fraud on the part of the second respondent and no such allegation is made against him by the applicant. The result, in my opinion, is that even if the Council’s discretion in determining the second respondent’s development application has miscarried, so that in the absence of s.4.1.22 the decision and the development permit would normally be set aside, the -- 9 of 27 -- 10 provisions of s.4.1.22 operate to prevent the Court from doing so in the circumstances of this case. [15] The applicant originally sought an order about the declaration which it seeks but no longer does so. The question then arises whether the Court should make a declaration, even if the grounds for it are made out, since no consequential relief is sought. Where there is jurisdiction to make a declaration a Court enjoys a wide discretion to make the declaration in an appropriate case, provided that there is a real question to be decided as opposed to a theoretical one. The person raising it must have a real interest in raising it, and there must be another person who has a true interest in opposing it: Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation (1977) 1 NSWLR 43, where a declaration was refused because it could not in the circumstances of the case have affected the applicant’s legal rights. Where a superior court is given the power to make declarations by an Act, or Rules it has not been questioned that there exists an extensive jurisdiction to grant declaratory relief unaccompanied by consequential relief: Johnco Nominees Pty Ltd; Salmar Holdings Pty Ltd v Hornsby Shire Council (1971) 1 NSWLR 192, at 201. I see no reason to suppose that the power of the Court under the Act is any more limited. Moreover the section itself contemplates the making of a declaration without consequential relief. If the development constituted by the erection of a dwelling house on the block in question can be shown to be unlawful, then, I think the applicant is entitled to a declaration to that effect although no consequential orders are sought in the proceedings. [16] It is necessary to determine, therefore, whether, if the respondent Council has committed an error in the determination which is in question in these proceedings, that error was a jurisdictional error so that the determination, and the development -- 10 of 27 -- 11 permit in which it was expressed are simply nullities. It is clear in my view that Part 7 of the Planning Scheme, which has the force of law, confers upon the Council a discretion to deem the development to be a permitted development within column 3(b) of the relevant table of zones: s.7.2.4. That the Council has that discretion is confirmed by the wording of s.7.2.5 which enables the Council to do certain things in determining a submission and also prohibits the Council from doing certain other things in determining that submission, but expressly without limiting the Council’s discretion in that regard. The subject of s.7.2.5 is not the Council’s jurisdiction to entertain the submission. The Council has jurisdiction to entertain a submission for any development which is properly the subject of determination by it in terms of the Planning Scheme. And in making a determination in respect of such a submission, it is limited to the decisions enumerated in s.7.2.4: any other decision would be beyond jurisdiction. Section 7.2.5 is not concerned with matters of jurisdiction but with matters which the Council may incorporate in its determination and, for present purposes, matters which must be established if the Council is to deem a development to be a permitted development within Column 3(b). The Council, in my view, would commit an error of law if the requirements of s.7.2.5(d)(ii),(iii), (iv) and (v) were not met. These however would be errors committed in the exercise of the discretion conferred upon the Council, and not errors which would have the effect that the Council had exceeded its jurisdiction, which would deprive the decision of any legal effect. The reason for this is that the matters in question are not matters of objective fact where it may be demonstrated that jurisdictional error has occurred, but matters of evaluation, judgment and opinion, the decision of which has been entrusted to the Council itself. In The Australian Heritage Commission v Mt Isa -- 11 of 27 -- 12 Mines Ltd (1996-1997) 187 CLR 297, the question at issue was whether or not a decision of the appellant Commission to record a place in the Register of the National Estate was open to judicial review under the Administrative Decisions (Judicial Review) Act 1977 for want of jurisdictional fact. The Court approved the reasons of Black CJ who gave a dissenting judgment in the Full Court of the Federal Court. His Honour had stated:- “In determining, according to law, whether or not a place is part of the National Estate, the Commission will of course need to make a proper assessment to determine whether a place is, in fact, within the definition of the National Estate in section 4. In doing so it will need to make assessments and value judgments but its ultimate task is to determine whether, in fact, a place is within the definition. The final determination of that question is however one that is committed by the Act to the Commission. It is not, in my view, a jurisdictional fact.” In my opinion the respondent Council in these proceedings is in a similar position to that of the Australian Heritage Commission in the above case. Reference may also usefully be made to remarks of Gibbs J, as he then was, in Buck v Bavone (1975-1976) 135 CLR 110 at 118-119. His Honour said:- “It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. ... Where the authority -- 12 of 27 -- 13 is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.” See also Lyons v Misty Morn Developments Pty. Ltd. (1998) QPELR 268, at 272 and House v The King (1936) 55 CLR 499 at 504-505 dealing with the cognate principles applicable in an appeal from a discretionary judgment of a court. [17] In the present case the concern is with matters of opinion or judgment not with matters of objective fact. Whether or not a development is, or is “clearly” in accordance with the provisions of the Strategic Plan is essentially a matter of opinion, as is the anticipated impact of the development on the amenity of the locality. The position is the same with respect to the question whether the development is, or is “clearly” in accordance with relevant development requirements, and whether it is, or is “clearly” within the reasonable expectations of the occupiers and/or owners of premises or of other persons mentioned. The use of the adverb “clearly”, does not convert the condition from a matter of opinion to one of objective fact, although it raises the goalposts when it comes to assessing whether or not the Council could reasonably have formed the relevant opinion. There is no evidence that the Council has acted in bad faith or arbitrarily or that it has taken into account irrelevant matters or failed to take into account relevant matters in exercising its discretion or that it misunderstood or misapplied any of the relevant provisions of the Planning Scheme. -- 13 of 27 -- 14 [18] The remaining question is therefore whether or not the determination of the Council is such that no reasonable Council could have reached it, having regard to the relevant matters mentioned in s.7.2.5(d) of the Planning Scheme. [19] The first of these concerns the provisions of the Strategic Plan. The aims of the Strategic Plan include s.1.2.1.3(g):- “To promote high levels of amenity as a significant resource for both residents and visitors and to ensure that development does not adversely affect the scenic and environmental amenity.” [20] Among the statements of implementation criteria the following objectives can be found – s.1.10.2.2(b):- “Development shall be such as to ensure minimal or no adverse visual impacts on visually sensitive streetscapes and landscapes, in particular the coastline and the crests and slopes of ridgelines. The predominantly natural, rural and village qualities of the Plan Area shall be maintained in all areas.” - s.1.10.2.2C (with specific reference to Agnes Water/1770) “The predominant natural character of this area shall be maintained and enhanced by appropriate urban form, architectural style and tradition and extensive open space and landscape components to integrate the built and natural environments.” [21] Reference can also be made to ss 1.12.4, 1.12.5(a) and 1.12.5(b), concerning “Preferred Land Use Structure – General” which provide respectively:- “A diversity of residential development types shall be encouraged to meet the varied needs of the population.” “A range of housing and accommodation types and styles may be developed under the Scheme.” “Development shall be compatible with existing and anticipated development in the locality. The requirements of the Building Code and Model Code, as defined in s.8.3, may be adopted as a guide to appropriate standards.” -- 14 of 27 -- 15 [22] Part D of the Strategic Plan is devoted to the preferred land use structure for Agnes Water/1770. There is however little in this part of the Strategic Plan of relevance to the present matter. A general provision which may be noted is s.1.27.2(c) which states as follows:- “Inappropriate development includes any development which: (i) Is not in accordance with the intent of the area; (ii) Does not contribute to a desirable local character; (iii) Is likely to affect detrimentally the local residential amenity; or (iv) Is likely to have a significant adverse impact on the environment.” [23] The second relevant matter, namely impact upon amenity, is generally dealt with in the Strategic Plan, in provisions such as those stated above. [24] For present purposes the most relevant part of the Planning Scheme is Part 4, headed – “Special Requirements in Relation to Development.” Relevant objectives include:- “To ensure that the built form maintains and enhances an appropriate character.” – s.4.11.1(a); and:- “To support and encourage the evolution of innovative, contemporary expressions of Queensland vernacular building traditions, where these buildings relate to their context or promote a defined character for an area.” – s.4.1.11(e). [25] Section 4.11.3 provides that:- “New structures shall be designed to complement traditional structures and maintain the urban form and continuity of the streetscape of a locality. New structures shall be designed to the scale and form and include components of traditional building styles within the Plan area.” -- 15 of 27 -- 16 [26] The provisions relating to development requirements upon which most of the argument was focussed are contained in s.4.11.5A, dealing with the height, scale and bulk of buildings. This section provides as follows:- “(a) Building treatments and elements of new buildings and extensions and/or renovations shall be compatible and complementary in character, scale and height, with that of nearby buildings and any development shall make a positive contribution to the built form of the local area. The built form shall express a horizontal rather than a vertical form. (b) The general maximum height of buildings shall be two storeys above existing ground level to ensure that the height, scale and bulk of buildings are consistent with those of the neighbourhood and are of a ‘human scale’. The Council may waive the above requirements where a building, structure or other built element is:- (i) sited and designed to be an attractive character component (such as a land mark or node) in the landscape; (ii) treated so as to be inconspicuous, by the use of non-reflective appropriate building elements; (iii) landscaped in a manner which breaks up strong forms of any building; (iv) sensitively sited within the existing landscape; (v) a visual centrepiece of a group of buildings; or (vi) sited within an area of existing vegetation in areas where such vegetation is likely to continue to provide an effective visual buffer.” [27] There was debate as to whether the expression “built form” in the last sentence of paragraph (a) above was a reference to the form of the development in question or a reference to the form of the local area. The directory language employed in the sentence suggests that it is directed to the particular development being considered, but planning schemes are not to be construed with the strictness with which, for example, one would approach the construction of legislation. It appears to me to be -- 16 of 27 -- 17 of little importance precisely how one construes that expression. If it refers to the built form of the local area then the requirement is that the development make a positive contribution to that form, being a form which is horizontal rather than vertical. If it is a reference to the built form of the development then there is a more direct requirement that a horizontal form be expressed. I am inclined to think that, following the provision that the development should make a positive contribution to the built form of the local area, the following sentence is intended to indicate what, in the view of the Council is a significant aspect of the built form of the local area. The requirement that a development “make a positive contribution” to the built form of the local area is a little less specific than a requirement that the built form of a development “shall express” a horizontal rather than a vertical form. The significance of any such difference is diminished by the power to waive the requirement, for example in cases where the building is “landscaped in a manner which breaks up strong forms of any building” or “sensitively sited within the existing landscape”. [28] The development in the present case has pronounced vertical aspects arising from a combination of the height of the building at some positions on the site, the use of tall columns, and the relative narrowness of the building compared to its length. From other aspects, in particular its frontage to Captain Cook Drive the building presents a reasonably horizontal form. In my opinion, it would not be correct, generally, to say that the development expresses a horizontal rather than a vertical form. The predominant characteristic of the building in terms of “horizontal” or “vertical” is that it is vertical in form, an impression that flows from the relative narrowness of the building which tends to accentuate its vertical aspect at the expense of its horizontal aspect. -- 17 of 27 -- 18 [29] The other matter exciting controversy is the question of whether or not the building exceeds “two storeys above existing ground level”. According to one view it presents an appearance of three storeys above ground level at various aspects of the building and four storeys above ground level at the north eastern aspect. The other view is that generally it presents as a two storey building but possibly as a three storey building on the north eastern corner. As a preliminary observation it is worth pointing out that while s.4.11.5A(b) imposes a general maximum height restriction of two storeys above existing ground level, (whether in respect of residential or other buildings), s.2.3.4(j) contemplates dwellings of a height of nine metres or more above natural ground level. Obviously “natural” ground level will in many cases be also “existing” ground level. The Planning Scheme therefore contemplates that a height of two storeys may be up to nine metres above ground level, particularly in view of the fact that a dwelling house is self-assessable and “permitted” under the Planning Scheme, unless it exceeds a height of nine metres above natural ground level at any point, in which case a submission must be made to Council and conditions may be imposed. [30] There was much contention in the case about the depth of fill on the land, a question which is relevant to the issue of the height of the building above natural ground level, for the purposes of s.2.3.4(j) of the Planning Scheme and the height of the building above “existing” ground level for the purposes of s.4.11.5A(b) of the Planning Scheme. The evidence advanced by the applicant in support of the assertion that the dwelling was constructed on fill, which had raised the level of the land above natural ground level, was essentially imprecise, and based upon judgments which in turn depended upon various assumptions. The evidence called for the second respondent satisfied me that the building was erected at natural -- 18 of 27 -- 19 ground level or below. There was no substance, in my opinion, in the contention that the house stands at a greater height above ground level than would otherwise be the case, because of fill deposited on the land. It is not possible, on the evidence, to calculate precisely the height of the house above natural ground level or “existing” ground level, but as a matter of probability it is a little over nine metres at its highest point, that is at the apex of the roof. Otherwise it appears that the house is less than nine metres from the natural or existing ground level. [31] It is important to appreciate that s.4.11.5A(b) of the Planning Scheme does not restrict a building to one containing two storeys. The provision is concerned with the maximum height of buildings, not the number of storeys in that building. It is suggested on behalf of the respondents that reference can usefully be made to the definition of “storey” in the Building Code of Australia, which is a relevant code for the purposes of assessing development under the Act (see Standard Building Regulations ss. 2 and 8), and is specifically referred to in s. 1.12.5(b) of the Planning Scheme as a document which “may be adopted as a guide to appropriate standards”. “Storey” is defined to mean a space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but not – (a) a space that contains only – (i) a lift shaft, stairway or metre room; or (ii) a bathroom, shower room, laundry, water closet, or other sanitary compartments; or (iii) accommodation intended for not more than three vehicles; or (iv) a combination of above; or (b) a mezzanine. -- 19 of 27 -- 20 Applying this definition to the subject development produces the result, as is submitted, that the subject building is a one storey building, since the space below the main living level comprises a combination of accommodation intended for not more than three vehicles, and an area to be used as a bathroom, shower room, laundry and water closet. However, in my opinion, the question is not whether the building is a one storey building or a two storey building but whether it exceeds the height of two storeys above existing ground level. The expression “storey” is not defined in the Planning Scheme, but the Planning Scheme does indicate, as remarked earlier, that a building nine metres or more above natural ground level may be regarded as having a height of two storeys. On that basis the building does not contravene the requirement, particularly in view of the fact that the requirement is only a “general” requirement and therefore not one that applies strictly in every case. This requirement too is subject to waiver as is the requirement in relation to the building having or making a positive contribution to a horizontal rather than a vertical form. It is also necessary to take into account the fact that the building is built on a block of land which slopes quite steeply towards the east. In applying a general criterion of height such as that stipulated in paragraph (b) it is reasonable to take into account the topography of the site and to accept that at some parts of the site a height greater than the height of a two storey building may be acceptable because of the slope of the land, and because of other provisions of the Planning Scheme which call for minimal topographical interference, such as s.4.12.2(a)(iv) which provides inter alia that the design of developments shall minimise impacts on the local environment and amenity, through earthworks minimisation. -- 20 of 27 -- 21 [32] Having regard to these various considerations, although in ordinary parlance from at least one aspect the building presents as having a height greater than two storeys, I do not think it is possible for the applicant to establish a breach of this requirement. [33] Similarly since the provision calling for a horizontal rather than vertical form is subject to the waiver provisions already noted, which direct attention to the situation, design construction and landscaping of the proposed building, and which in turn invite attention to the power of the Council to impose conditions, and having regard to the conditions actually imposed, I do not consider that the applicant can establish a breach of this requirement either. [34] In other words I consider, upon the material before me, that the respondent Council, acting reasonably, could have been satisfied that the development was clearly in accordance with the development requirements mentioned. [35] The next question concerns the reasonable expectations of the occupiers and/or owners of premises in the immediate vicinity of the proposed development and, where appropriate, of the broader community within the plan area, with respect to the development. Essentially the argument for the applicant is that the land on the eastern side of Captain Cook Drive, where the development has taken place, is generally lower than the land on the western side of the street, where the applicant’s house is situated. Houses on the western side enjoy a panoramic view of the Bay to the north west and also enjoy views of the ocean to the east. Houses on the eastern side of the road enjoy the ocean views but presumably have less access to Bay views than their neighbours on the western side of the street. This feature of the -- 21 of 27 -- 22 topography is said to justify an expectation on the part of occupiers of properties on the western side that they should be able to enjoy better views in this way than the occupiers of properties on the eastern side, and, in particular, it is said that the occupiers on the western side of the street have a reasonable expectation that houses constructed on the other side of the road will not significantly impede their views of the ocean. (A site inspection showed that the applicant’s ocean views were obstructed not only by the development in question but also to some extent by a house situated a little further up the street, so that some obstruction of views of the ocean is within the experience of people on the western side of the street.) [36] The reasonable expectations of people in the vicinity must be founded not only upon the local topography, but on the provisions of the Planning Scheme. These provisions make it clear, amongst other things, that a house of nine metres in height above natural ground level is a permitted development within the Shire. Above this height it may still be a permitted development, subject to such conditions as the Council may decide to impose after considering the submission which the Planning Scheme then requires to be made. A structure which reaches a height of nine metres at a high point on the level of land on the eastern side of the road may clearly cause obstruction to views, as the present case demonstrates. If the occupiers on the other side of the road had expectations to the contrary then, in the circumstances, those expectations were not reasonable. [37] With reference to the requirement stipulated in s. 7.2.5(d)(iii), the evidence does not satisfy me that the Council, properly exercising its discretion, would necessarily have reached the view that the anticipated impact of the development on the amenity of the locality was unclear, or that it might cause detrimental impact to the -- 22 of 27 -- 23 amenity of the locality. The way in which the Council approached the question of impact upon amenity, and the way in which it applied the requirements of the Development provisions contained in s.4.11.5A are to be found in the conditions imposed by the Council in deeming the development to be a permitted development within Column 3(b). [38] The conditions imposed were the following:- “(a) The roof of the proposed building shall be at a pitch of 18 degrees, shall be of customorb or similar profile and should be of an appropriate, neutral colour; (b) The external walls shall be rendered masonry and shall be of appropriate, inconspicuous, earthy and/or vegetation colours. (c) Screening shall be provided to the piers supporting the verandah on the north western elevation. Such screening shall be of the nature of battens, open lattice, or similar, shall be centrally located within each pier and shall extend for a distance (vertically) of one third of the pier height. (d) A balcony shall be provided along the north eastern elevation of the building outside of the main bedroom and dining room. The balcony shall have a minimum width of 1.5 metres, shall be designed to match the balcony on the north western elevation and shall be provided with an awning (matching the roof pitch) and verandah posts and railings. (e) Awnings shall be provided over all windows at the upper level on the south western and south eastern elevations. Such awnings shall have a minimum width of one metre and shall match the roof pitch. (f) Similar awnings shall be provided to the front and back door. (g) A small timber bridge shall be provided from Captain Cook Drive to the single garage. (h) A detailed landscaping plan shall be submitted for the approval of Council. Such plan shall incorporate: • Substantial landscaping under the verandah support pier; • Significant planting to all boundaries, incorporating ground covers, shrubs and shading/screening trees having a minimum height at maturity of not less than the roof ridgeline. Such trees are to frame and screen the building from close views and from distant views. -- 23 of 27 -- 24 (i) All conditions shall be completed prior to occupation of the building and shall be maintained at all times while the use of the building continues. [39] Apart from the matters referred in s.7.2.5, the Council was required to consider, to the extent that they were relevant to the development, the matters mentioned in s.7.2.1. In my view no issue arises out of the matters particularised in that sub- section. There is reference in paragraph (k) to the level of support for the development within the community, in particular within the locality surrounding the premises. There was evidence before the Council of opposition within the local community surrounding the premises, but there is no reason to suppose that the Council did not take that matter duly into account in arriving at its decision. [40] In the Applicant’s Points of Contention the following further propositions relevant to the development requirements of the Planning Scheme are stated:- 1. that the development conflicts with the development requirements in Cl. 4.11.5B which provides that the built form of any development particularly in urban areas shall minimise the use of visually “heavy” mass construction, favouring instead a lighter open framed appearance, responsive to the local climate and the Queensland vernacular building traditions; 2. that the development conflicts with the development requirements of Cl. 4.12.3(a)(iii), (iv) and (v) which provide that all built elements and earthworks within a proposed development shall be such as to ensure that: (iii) the local character and amenity is retained and enhance; (iv) the amenity and use of adjoining premises is not prejudiced; -- 24 of 27 -- 25 (v) such development is appropriately integrated in locations which are of high scenic value or sensitive to development. [41] There are aspects of the development that merit criticism in terms of these matters, and others already referred to. The development seems to me to carry the features of tall and “heavy” mass construction further than any other residential development in the town of 1770, and it is certainly in a location of high scenic value and sensitive to development, so that its integration in that location is a matter of importance. If I were exercising the discretion reposed in the Council I would regard these matters as requiring anxious consideration, but of course I am not in that position. The terms in which the discretion is reposed in the Council, and the subject matter of that discretion, are such that it is very difficult to successfully attack the exercise of the discretion. In this case the applicant has not succeeded in doing so. [42] The onus lay on the applicant to show that the respondent Council failed in some particular respect to exercise its discretion properly or that, acting reasonably it could not have been satisfied of the matters of which it was required to be satisfied, including that the requirements referred to in s.7.2.5 were “clearly” established. In my view it was open to the Council to be so satisfied with the consequence that the applicant is unable to point to error on the part of the Council in the exercise of its discretion. [43] In summary:- -- 25 of 27 -- 26 1. The Court cannot declare the development unlawful, because there is no jurisdictional error rendering the development permit null and void, and in that situation the making of such a declaration would be contrary to s.3.1.5.(3) of the Act. 2. If that is wrong, for either of the reasons stated, then the Court has jurisdiction to make the declaration sought pursuant to s.4.1.21. 3. The applicant nevertheless fails to show an error on the part of the First Respondent in exercising the discretion conferred upon it by the Planning Scheme, such that its determination may be set aside. 4. The application is therefore dismissed. -- 26 of 27 -- 27 -- 27 of 27 --