Copas v Brisbane City Council & Anor [2000] QPEC 9

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Copas v Brisbane City Council & Anor [2000] QPE 009 PARTIES: PETER COPAS (Applicant) And BRISBANE CITY COUNCIL (Respondent) And ALBERT DAHER DESIGN & KEOTONE PTY LTD (Co-Respondents) FILE NO/S: Application No 3 of 2000 DIVISION: PLANNING AND ENVIRONMENT COURT PROCEEDING: ORIGINATING COURT: DELIVERED ON: 28th. FEBRUARY, 2000 DELIVERED AT: BRISBANE HEARING DATE: JUDGE: QUIRK DCJ ORDER: CATCHWORDS: COUNSEL: SOLICITORS: [1] This matter relates to an application for a Development Permit and Preliminary Approval of Building Work on a parcel of land at Red Hill. The parcel comprises two allotments and has an area of 695m². In the Town Plan the land has a zoning of Residential B with an RDA classification of R3. [2] The proposal involved the erection of two detached houses and a duplex. An existing dwelling on the subject land will form part of the proposal although some minor structural alterations to it and relocation to a small extent will occur. -- 1 of 6 -- 2 [3] With some exceptions about which more will be said, detached and attached houses are permitted development in a Res. B R3 area. In respect of attached houses an application must be made for the imposition of appropriate conditions of approval (s.24.3 of the Town Plan). An application of this kind was made in this case and it is not one which requires public notification or in respect of which opportunities to make submissions exist. [4] Nevertheless Mr Copas, an adjoining owner, being aware of the application, made submissions in respect of it and the assessing officer Shane Hackett noted these in his report to council. It appears that, in consultation with the Co-Respondents (the applicants to the council) these concerns have been addressed to the satisfaction of the assessment manager. [5] This application has been brought by Mr Copas seeking declaratory relief the substance of which is that, for a number of reasons, the proposed development required impact rather than code assessment. The matters raised in support of the application fell into three categories and I will deal with each of these in turn. No separate application was made for waiver of s.7.3.6.1 of the Town Plan. [6] The relevant provisions appear to be: “7.3.6 Heritage and Character Buildings 7.3.6.1 Any development comprising or including the removal or demolition of a building on land:- (a) located inside the area bounded by a heavy line in figure 7.1.1 and in Residential Development Area R2 or R3 or R4; ... is permissible development. 7.3.6.2 The council may, on application made under sub-s.24.5, waive the application of sub-paragraph 7.3.6.1 with respect to a particular building where:- ... (a) the extent of demolition proposed is minor and:- -- 2 of 6 -- 3 ... (ii) in the case of a character building, unlikely to have any significant adverse effect on the visual appearance of the building; ...” [7] In the table of development for the Residential B zone, development for a detached house where removal or demolition of a building on the site has been approved pursuant to paragraph 7.3.6 is permissible development. [8] Attention must also be given to s.24.5 of the Town Plan dealing with “Relaxation Variation or Waiver of Development Standards”. The following subsection should be particularly noted: “24.5.1 Subsection 24.5 applies to those development standards for which provision is made elsewhere in the Plan for their relaxation, variation or waiver. 24.5.2 Application for Relaxation Variation or Waiver (a) Application shall be made to the Council for the relaxation, variation or waiver of one or more development standards pursuant to paragraph 24.5.1 in accordance with the requirements of subsection 24.1. (b) Where, as part of some application other than pursuant to subparagraph (a), a relaxation variation or waiver of one or more development standard is requested, in deciding that other application, consideration will be given to whether the one or more development standards should be relaxed, varied or waived, no separate application for relaxation, variation or waiver is required and:- (i) where the other application is refused, the development standard is taken not to have been relaxed or waived; (ii) otherwise, the notification of the Councils decision in relation to the other application shall state whether and, if so, the extent of which, the one or more development standards have been relaxed, varied or waived. 24.5.3 A Separate Application shall be Required Notwithstanding the provisions of subparagraph 24.5.2(b) where a development necessitates relaxation, variation or waiver of a development standard relating to:- (a) removal or demolition of any building:- (i) in the heritage and character building Area shown in figure 7.1.1 of the Plan; or -- 3 of 6 -- 4 ... any application for such relaxation, variation or waiver must be made pursuant to subparagraph 24.5.2(a) and not be requested as part of another application pursuant to subparagraph 24.5.2(b).” [9] The material placed before the court indicated clearly enough that some minor structural alterations to the existing dwelling (and a small degree of relocation on the site) were intended and that the assessing officer was aware of this. An existing stairway, a small porch and some other minor features of the structure were to be removed and replaced and this would appear to constitute “demolition” within the meaning of s.7.3.6.5 of the Town Plan. [10] A finding that the extent of the demolition proposed was minor and unlikely to have any significant adverse effect on the visual appearance of the building was inevitable in the circumstances. [11] Mr Hinson, senior counsel for the Respondent Brisbane City Council, submitted that the only reasonable inference to be drawn from the material was that a need for waiver was apparent on the face of the application and that the planning authority, in deciding to approve the application, was prepared to grant the necessary waiver. [12] However a separate application for this waiver such as is required by s.24.5.3 was not made and what has to be decided here is whether this omission should be taken to invalidate the council’s decision in the matter. [13] At one time the question often asked (in deciding whether a breach of a requirement relating to the exercise of a statutory power invalidated the exercise of that power) was whether the requirement was mandatory or directory. The law relating to questions of this kind was recently discussed in the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841. There the court appeared critical of: “The continued use of the elusive distinction between directory and mandatory requirements and the division of directory acts into those which have substantially complied with a statutory command and those which have not.” The court observed: -- 4 of 6 -- 5 “They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid” (at page 860). [14] At page 859 the court said: “An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.” [15] Mr Hinson pointed out that, while the requirements for a separate application for waiver might be based on concerns that assessing officers be made clearly aware that a waiver is required in any given case, the considerations relevant to the granting of a waiver remain the same whether it is sought separately or as part of an application (s.24.5.4). He emphasised that no third party rights could be seen to have been prejudiced by the absence of a separate application in this case. [16] I do not believe the legislature should be taken to have intended that, where a separate application for a waiver is required by the Town Plan and this is not done, a council’s decision on the matter should be invalidated. Of course, the council would have been entitled to decline to deal with the matter but that was not the case. In Project Blue Sky the court observed at page 861: “Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.” If the council decision was declared invalid in a case such as this little useful purpose would be served by having the relevant exercise repeated. Public moneys (in the shape of council resources) would be simply wasted and no third party rights would be advanced. [17] These considerations would appear to be relevant not only to the law as explained in Project Blue Sky but also to the court’s discretion to grant the declaratory relief sought. In the circumstances I am not prepared to declare that the council’s decision was invalid because of the absence of a separate application for waiver. -- 5 of 6 -- 6 Height of building [18] Considerable time was spent at the hearing of this application in an examination of schematic drawings which formed part of the application and which were approved by the council. Mr Copas sought to demonstrate that some of the dimensions indicated on the drawings showed that the height of certain of the structures would exceed the limit of 8.5 metres beyond which the proposal would require impact assessment. However other entries on the drawings make it clear that in all instances the prescribed limit of 8.5 metres was to be respected and the material before me suggests that there would be no difficulty in achieving this. [19] This is a matter that will, no doubt, receive closer attention when working drawings are submitted to council officers for approval at the relevant time. [20] I am not prepared to declare that the council’s decision was invalid on the ground that it purported to approve development going beyond the prescribed limit of 8.5 metres. Area of site [21] It became apparent that confusion arose here because of the respective areas of the two allotments that made up the parcel each of which was less than 400m². Mr Copas had drawn attention to a requirement (in planning policy 7.29) that: “New houses on a lot less than 400m² in established areas are to be impact assessed”. It became clear that there was nothing in this point. [22] There were no other matters raised by Mr Copas that would justify the granting of declaratory relief of any kind. Accordingly his application must be dismissed. -- 6 of 6 --