Brisbane City Council v Micalizzi & Anor [2000] QPEC 29

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: Brisbane City Council v P & L Micalizzi BRISBANE CITY COUNCIL (Appellant) V. PETER MICALIZZI AND LYDIA MICALIZZI (Respondents) FILE NO/S: 1238 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Appeal DELIVERED ON: 12 April 2000 DELIVERED AT: Brisbane HEARING DATE: 12 April 2000 JUDGE: Judge Brabazon QC ORDER: Application Dismissed CATCHWORDS: REGULATION OF CONSTRUCTION - Whether respondent had commenced work under a building permit sufficiently to enable the permit to stay current - Definition of commencement of work - Differences under IPA and Local Government (Planning & Environment) Act COUNSEL: SOLICITORS: Mr M Hinson SC for the Appellant Mr R Litster for the Respondent Brisbane City Legal Practice for the Apellant Deacons Graham & James for the Respondents -- 1 of 11 -- ..._ '-'-· .t' '-' .. .., .......... b ......, ..... Jl. '--' ...... 11,..a. TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. PLANNING AND ENVIRONMENT COURT JUDGE BRABAZON QC Application No 1238 of 2000 BRISBANE CITY COUNCIL and PETER MICALIZZI and LYDIA MICALIZZI BRISBANE .. DATE 12/04/2000 JUDGMENT .L REVISED COPfE.S ISSLE:D State Reporting Bureau Date I I I o ~ I oo J:..ppellant Respondents -- 2 of 11 -- 12042000 T01/AW20 M/T CMS 39/2000 (Brabazon DCJ) HIS HONOUR: In this case the Court is concerned with the suggestion that a Town Planning Consent Permit has expired, because of the passing of time, without sufficient work being done to preserve it. On 24 January 1995 the Brisbane City Council issued Town Planning Consent Permit 412 of 1995. That authorised the erection and use of a building on land at 85 Stevenson Street, Ascot. Under the provisions of The Local Government (Planning and Environment Act) 1990 section 4.13(18) provided that a permit of that kind lapsed after four years of the date of issue if the use of the land or the use or erection of a building or other structure on the land, the subjecc of the approval, had not been commenced within that four years. In this case tise passed. Finally on 15 January 1999 the architects of the land's owners, Mr and Mrs Micalizzi, received the building approval and told their clients that it had been received. That approval had been preceded by the usual steps taken when architects and engineers are engaged on such a project. Those steps took place between 7 July 1998 and the final notification of building approval. Architects were retained, engineers were retained, soil tests were done, the report of the soils tests was provided, architectural and engineering drawings were provided and in due course 2 JUDGMENT 10 20 30 40 50 60 I -- 3 of 11 -- 12042000 T01/AW20 M/T CMS 39/2000 (Brabazon DCJ) they were all sent to the Council as part of the application for approval. The first question to be decided is whether or not the coming into force of The Integrated Planning Act on 30 March 1998 had an influence on the status of the Town Planning Consent Permit. it did. It is said by the Council that Attention has to be paid to section 6.1.23 of The Integrated Planning Act. That section deals with the continuing effect of approvals issued before 30 March 1998; that is under the former Planning and Environment Act. The general effect of subsection (2) is that a cont:~u:ng approval and a~y conditions attached tc that cont:~~1ng approval have effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit as the case may be. What that means (in the language which has been us to describe the processes of The Integrated Planning Act) is that the continuing approval has been transitioned into the framework of The Integrated Planning Act. Then subsection (3) of The Integrated Planning Act provides that: "Subsection (2) has effect only for the period the continuing approval would have had effect if the repealed Act had not been repealed." 3 JUDGMENT 10 20 30 40 50 60 -- 4 of 11 -- 12042000 T01/AW20 M/T CMS 39/2000 (Brabazon DCJ) It must also be noted that approvals under The Integrated Planning Act also lapse, according to the provisions in section 3.5.21. The life of such approvals is now called a currency period. The difference, it is said, between The Planning and Environment Act provisions and The Integrated Planning Act provisions are to be found in section 3.5.21(1) (c). A development application of this kind lapses at the end of the four year period. But there will be no lapse provided that "development under the approval substantially starts before the end of the currency period." (emphasis added) That use of the expression "substantially starts" can be contrasted with the less demanding hurdle found in section 4.13(18) of The ?lanning and Environment Act which o~ly requires that certain things "commence" within the four years of the issue of a permit. In this case it is submitted for the Council that the transition oft approval into The Integrated Planning Act has the effect of also picking up the more demanding hurdle in the new Act. It is then submitted, on the facts, that work here had not substantially started before the end of the currency period. Therefore, the approval is void. There are a ' numDer of considerations which point to the correct conclusion about the effect of the transitional arrangements. 4 JUDGMENT 10 20 30 40 50 60 -- 5 of 11 -- 12042000 T01/AW20 M/T CMS 39/2000 (Brabazon DCJ) The provisions are partly dealt with in a decision of this court, Friends of Stradbroke Island Association Inc v Kennedy and others, 1999 Queensland Planning and Environment Law Reports 117. There, it is pointed out that permits of this kind are "continuing approvals" within the meaning of section 6.1.23(1) (b) of The Integrated Planning Act. The effect of subsection (3) is that the transitional arrangements mean that the permit has effect only for the period the continuing approval would have had effect if The Planning and Environment Act had not been repealed. That is a perfectly correct statement about the immediate effect of subsection (3) of the IPA provisions. However, in my opinion, that subsection has a further effect. Not only does it have the effect of maintaining the four year time limit under the old statute - it also has the effect of keeping in force the conditions, both statutory ana otherwise, applying to the permit. In my opinion, the transitional arrangements do not go so far as to pick up the new provisions in The Integrated Planning Act about currency periods. Rather one has to continue to refer to the provisions about the lapse of such permits to be found in section 4.13(18) of The Planning and Environment Act. If there were doubt about the matter, reference should be made to the provisions of The Acts Interpretation Act to reach the same conclusion. That is, section 20 provides that the repeal of an Act does not affect: 5 JUDGMENT 10 20 30 40 50 60 -- 6 of 11 -- 12042000 T01/AW20 M/T CMS 39/2000 (Brabazon DCJ) "the previous operation of the Act or anything suffered, done or begun under the Act or (c) effect to right, privilege or liability acquired, accrued or incurred under the Act." If there were doubt about the matter, that provision would be decisive in presuming that the old statute continues to apply. The result is that it is only necessary that something described within subsection 18(a) must commence within the four years. In this case it can be seen that it is critical to see whether or not there has been such a commencement before the expiry of four years which took place at midnight on 24 January 1999. There are a numcer of considerations that mignc be kepc mind. First of all, as mentioned in The Friends of Stradbroke Island case subsection 4 .13 (18) (a) requires that. there be a complete absence of commencement of any activity authorised by a permit within four years before the permit lapses. Secondly, as one can see from the decision in the High Court of Australia in Owendale Pty Ltd v Anthony and another 117 CLR 539, there is no need for substantial work over a long period of time to have commenced. In that case, a few hours work done on the day before the expiration of a notice was sufficient where there was a requirement that a lessee had to "commence to erect" a 6 JUDGMENT 20 rn -- 7 of 11 -- 12042000 T2/PAF23 M/T CMS39/2000 (Brabazon DCJ) building within a prescribed period. considerations apply here. Similar Also to the same effect are the views of Professor Fogg of the University of Queensland, writing in his Study Guide number 7, at page 13. The situation here can be contrasted where there is a requirement that work "substantially starts". That was the position, in effect, under the former Local Government Act which required that "substantial progress" had to be made (see section 33 (16D) (b) (i) (A)) . With the adoption of that higher standard in the Integrated Planning Act the wheel has turned full circle, but that difference must be kept in mind in considering the provision under the Planning and Environment Act. Attention has to be paid to the decision of Connolly Jin Dackfield (1983) QR page 10. There, some general propositions were drawn from the established cases, but it should be kept in mind that they were dealing with a test of substantial commencement. In that case, Connolly J's fourth proposition was to the effect that: "Where a provision called for substantial commencement of the work within a specified time, the work concerned is that to which the approval itself refers and work would not be commenced when nothing more had been done than acts preparatory to the work the subject of the approval." 7 JUDGMENT 10 20 30 40 so 60 -- 8 of 11 -- 12042000 T2/PAF23 M/T CMS39/2000 (Brabazon DCJ) Connolly J relied on the decision of the High Court of Australia in Drummoyne Municipal Council and Lebnan (1974) 131 CLR 350 at 360 in deriving that fourth proposition. If one reads that decision of the High Court of Australia, it can be seen that the definition of "building work" led to a probable conclusion that preparatory demolition work was not included. However, Gibbs J at page 360 went on to say that excavation work would be included within the work allowed under the permit. It is interesting to take into account the definition which is relevant in this case in section 1.4 of the Planning and Environment Act. The word "erect" includes "(a) erect or commence or continue to erect; or (b) do or commence or continue to do any work in the course of or for the purpose of erecting." That definition with its inclusion of •,vork which is done for the purpose of erecting is wider than that considered by the High Court in Lebnan's case. In the present case, work was actually done on this land before the expiry of the four years. The soil testing by the engineers was actually done before the approval was issued. Then, after the approval was issued, some demolition work was carried out. The town planning consent approval itself had a condition that required all existing buildings and structures to be removed from the land before any building work was commenced. Some of that demolition was achieved before the expiry of the four years, that is, a laundry was demolished and a garage was demolished. Then 8 JUDGMENT 10 20 30 40 50 60 -- 9 of 11 -- 12042000 T2/PAF23 M/T CMS39/2000 (Brabazon DCJ) a trench about 5 metres long, half a metre wide and half a metre deep was excavated on the alignment of the rear footing of the project, as shown on the engineering drawings. That trench was excavated for the ultimate purpose of using it for the footings designed for the southern wall of the project. A safety fence was erected around the trench for the safety of the occupants of the house not then demolished. The trench was inspected by the consulting engineer to determine its adequacy in view of the soil conditions that had been earlier found. In my opinion, that work collectively amounts to a commencement before the expiry date. I should say that, in taking the view the demolition work is included within work done under the town planning consent, not only have I referred to the definition of the word "erect" but also the decision of the House of Lords in London County Council and Marks and Spencer Limited (1953) Appeal Cases at 535. There, in a statutory requirement which spoke of "the erection or alteration of a building has been begun but not completed before the appointed day", it was held that it was not necessary that work of a constructional nature was done before the expiry of the time. It was sufficient if demolition for the purpose to enabling construction to be done was carried out. The same considerations apply here. Therefore it follows that commencement of the erection of a building within the meaning of section 4.13(18) of the 9 JUDGMENT 10 20 30 40 50 60 -- 10 of 11 -- 12042000 T2/PAF23 M/T CMS39/2000 (Brabazon DCJ) Planning and Environment Act had been done. The consequence is that the permit did not expire at midnight on 24 January 1999. The formal order should be that the council's application is dismissed. 10 JUDGMENT 10 20 30 40 50 60 -- 11 of 11 --