Alati & Protettore Pty Ltd v Brisbane City Council & Anor [1993] QPEC 100 (1994) QPLR 112

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Before Quirk DCJ [Alati v. B.C.C.] BETWEEN: P & E Appeal No. 296 of 1992 ANGELINA MAREE ALATI AND PROTETTORE PTY. LTD. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): - and - BRISBANE CITY COUNCIL - and - CRAIG FREIER Appellant Respondent Respondent by Election REASONS FOR JUDGMENT 01/10/1993 J Haydon for the Appellant M Rackemann for the Respondent C Freier for the Respondent by Election Power and Power for the Appellant King & Co for the Respondent 31st March, 1, 2, 4 April 1993 -- 1 of 14 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: ANGELINA MAREE ALATI AND PROTETTORE PTY. LTD. AHQ: Appellants BRISBANE CITY COUNCIL Respondent CRAIG FREIER Respondent by Election REASONS FOR JUDGMENT - QUIRK D.C.J. This appeal is against the respondent's refusal of an application for town planning consent to the establishment of a restaurant on land at Paddington. The site is on the southern side of Latrobe Terrace and occupies an area of 769 square metres. To the west it has frontage to Alma Street, to the south to Long Street and to the east it has a common boundary with land upon which there is a multiple unit dwelling of three stories over carparking. The land falls fairly sharply away from Latrobe Terrace and the slope continues to the south into the established residential area on the opposite side of Long street. A structure of fairly obscure origins stands on the land. over the years it has been used for a variety of business purposes combined at times with residential use. It was contended that it has been used for non-residential purposes for at least 70 years. In more recent times it has served as a fruit -- 2 of 14 -- 2 shop and a hairdressing salon before being modified for restaurant use. It presents as an attractive and well kept building with some paving and landscaping which, while not extensive, certainly enhances an appearance which is in character with the type of development encountered in the Paddington area. The subject land (as is most of the land to its east and south) is included in the Residential B Zone. A restaurant is a discretionary use in that zone and the proposed site fronts a road of a category to which Latrobe Terrace belongs. The major argument advanced by the respondent in the appeal was that the proposed use of the subject land was contrary to the provisions of the draft "Latrobe and Given Terraces Development Control Plan" (the D.C.P.) which, at the time of the hearing of evidence, had been placed on public exhibition. Objection to it had been received and considered and the draft plan had been forwarded on to the Department. The O.C.P. is somewhat unusual in that it is based on a "site by site" analysis of properties in the study area and involves an allocation of a particular designation to each property ( or group of properties where this was considered appropriate). In the o.c.P., the subject land found itself with an "R4" designation. The only adjoining land (that to the east) was designated "RS". The o.c.P. does not permit the use of land designated Residential for restaurant purposes. Generally, the basis upon which the relevant studies were conducted and the plan was compiled cannot be faulted nor can the town planning principles upon which the plan is founded. But the method of the plan is such that any consequences of changes to -- 3 of 14 -- 3 the planning controls which it embodies in respect of particular properties can be readily identified and examined. A good deal of evidence was directed to the appropriateness of the D.C.P's designations and the likelihood of its being gazetted in its draft form. A consideration of these matters is no longer called for in that, since the completion of evidence, the plan has been gazetted and the consequence of this will have to be considered in more detail later in this judgment. AT the conclusion of evidence and the making of initial submissions, the view of the matter which I took was that although considerable weight should be given to the draft D.C.P., the proposal was one which ought to be approved because it did not offend the town planning principles upon which the D.C.P. was based and its approval would not, in any substantial way, make the implementation of the D.C.P. in a wider sense more difficult for the planning authority. The "non-derogation" principle is well understood and a wealth of authority has followed the decisions of Coty (England) Pty. Ltd. v. Sydney City Council 2 L.G.R.A. 117 and Colonial Sugar Refining Co. Ltd. v. Sydney City Council 4 L.G.R.A. 1. It was however pointed out by the Full Court in Security Projects Ltd. v. Hollingsworth (1975) 62 L.G.R.A. 319 by D.M. Campbell J. at 322 that: "The significance of this case (Coty) should not be overstated. It does not lay down a hard and fast rule about withholding consent to a development which is contrary to the provisions of a draft planning scheme. What was emphasised in that case was that approval (for the relevant proposal) would cut across "to a substantial degree" the Council's planning proposal." In the same case Hoare J. said (at p.324): -- 4 of 14 -- 4 "While some more precise principles relating to town planning may be deduced from the Coty case, it seems to me that that case was broadly illustrative of a principle of common sense, namely that in considering an application for a particular use or for rezoning of an area of land forming part of a larger area, care must be taken to ensure that any determination as to the part will not adversely affect any wider planning scheme affecting the larger area." Mr. Coutts (the respondent's town planning officer) in a careful and competent assessment of the matter agreed that the D.C.P's justification for excluding restaurants from residentially designated areas related to the potential for such a use having an adverse effect upon the amenity of nearby residential properties. This was the context in which he saw the proposal as being likely to offend the town planning principles upon which the D.C.P. was based. These matters were capable of and were subject to close examination in the evidence. It might be suggested that the examination made in this appeal is far closer than could have been possible when the o.c.P. was drafted and the details of a particular proposal could not have been known. A very careful examination of this proposal was made by Mr. I Kumskov, a town planning consultant called by the appellant. Because of the topography of the area it is fair to say that visually, and in relation to the effects of activity on site, any impact that the proposal will have on residents across Alma street or Long street would be insubstantial. on land adjoining to the east there stands a large apartment building comprising 8 units in three stories above carparking. However, the building is orientated towards the north and there are few openings in the western wall which is closest to the restaurant. While it is possible to overlook the site from the -- 5 of 14 -- 5 rear balcony, there are a number of quite large and well foliaged trees along the eastern boundary of the subject land. In view of the level of traffic along Latrobe Terrace and general activity in the area, I accept that the proposal would not have any unacceptable impact on the adjoining property. Reference was made to a planning policy of the respondent (non-residential uses in proximity to existing and future residential areas) but as the proposal involves the retention of an existing building, the requirements of this policy would appear to have limited applicability. Screen fencing in the area of the north-east corner and landscaping to the southern and eastern boundaries to provide a visual screen to residents opposite is intended. I accept Mr. Kumskov's evidence that these arrangements are adequate in the circumstances and that the solid screen fence advocated by Mr. Coutts would be likely to detract from rather than enhance the visual amenity of the locality. Such problems as might occur in regard to nearby residential amenity would be more likely attributable to the inadequacy of carparking on site and the resultant introduction of restaurant traffic into nearby residential streets. The matter was examined in detail by two experienced traffic engineering consultants, Mr. Viney and Mr. Holland. It seems that, if Mr. Kumskov's landscaping arrangements are accepted, 12 carparking spaces can be provided on site and Mr. Holland appeared to concede this. Mr. Viney was of the opinion that such provision was satisfactory in the circumstances of this proposal and added that if, on occasions, the car park became full, there was an opportunity for -- 6 of 14 -- 6 vehicles to park in Latrobe Terrace in a way that would not threaten nearby residential amenity. Mr. Holland had some reservations about the safety at times of restaurant patrons attempting a crossing of Latrobe Terrace and while I understand his concerns, I am prepared to accept Mr. Viney's assessment of the matter. I am prepared to find that any difficulties for the amenity of surrounding residents associated with restaurant traffic is not such as to warrant the proposal's rejection. As a consequence of this, it seems that the fears for that amenity which supported the D.C.P's designation of the subject land would not, in relation to this particular proposal, appear to be justified. I am quite unable to see that an approval in this case would cause the planning authority any real difficulty in the future implementation of the O.C.P. In view of its recent gazettal, the "precedent" argument has no applicability. As I see it, apart from any effect that it might have on the amenity of adjoining land, the proposed development will have little consequence in regard to other areas covered by the D.C.P. This appeal, which was reasonably straightforward initially, has been extraordinarily complicated by circumstances which have intervened since the evidence was heard and by problems of interpretation of relevant provisions of the Local Government {Planning and Environment) Act. By Order in council on 3rd June 1993,the D.C.P. became part of the Town Plan for the city of Brisbane. As a consequence, the town planning consultants were invited to offer for any further -- 7 of 14 -- 7 comment which they considered appropriate and this they have done. I have marked Mr. Kumskov's further comments, Exhibit 2A, and those of Mr. Coutts, Exhibit 17B. By reason of the gazettal of the D.C.P. a proposal of the kind here being considered, is one to which town planning consent may not now be given. An examination of the effect of this amendment to the Town Plan upon this case must now be made. Difficulties that followed amendments to town planning schemes after the submission of an application for town planning consent (or the institution of an appeal against a decision of a planning authority thereon) such as were raised and considered in R.V. Lukin ex parte Sunshine Pty. Ltd. (1966) 13 L.G.R.A. 99 and Behrens v. Caboolture Shire Council (1979) 39 L.G.R.A. 138 were very carefully and comprehensively dealt with in legislation that preceded the present Act ((s.22B) of the City of Brisbane Town Planning Act and s.33(18D) of the Local Government Act.) The heart of these provisions was that where, subsequent to the submission of an application for town planning consent, an amendment to the relevant Town Planning Scheme had intervened, an appeal in respect of the matter should be determined by the Court "as though the superseded Town Plan had not been superseded, but the Court may give such weight as it thinks fit to the provisions of the Plan". (e.g. s.22B(3) (a) and (6)(a). Such careful and detailed attention to this difficult area is inexplicably lacking in the present Act. The only apparent reference to the matter appears in Section 3.4(1) of the Act which provides: "Where a Local Authority has not decided an application prior to the date (in this section called "the prescribed -- 8 of 14 -- 8 date") of the coming into force of a Planning Scheme or an amendment thereof {in this section called the "new Planning Scheme") the Local Authority, in deciding the application in accordance with the Planning Scheme in force at the time the application was lodged, is to give such weight as it considers appropriate to the new Planning Scheme". Just how this Court should deal with an appeal from a decision of the Local Authority made pursuant to s.3.4(1) (or from a decision made prior to an amendment where such amendment occurs before the determination of the appeal) is something which the Act has chosen to ignore completely. Indeed, on reading the words "in deciding the application in accordance with the Planning Scheme in force at the time the application was lodged" one's first reaction is to look elsewhere for a provision whereby the Local Authority is required to decide the application in that manner. such a search will however prove to be fruitless. There is no point in dwelling on drafting inadequacies. The task is to determine, as a matter of interpretation, the approach the Court must take in dealing with matters where important amendments to a Town Planning Scheme have occurred since the application was lodged. Understandably, the respondent argued that the Act has driven us back to the position which existed prior to the legislative amendments which set out to overcome the difficulties raised in such cases as Lukin and Behrens and that, as a matter of law, the court has no alternative but to apply the D.C.P. and refuse the application. counsel for the appellant pointed out that the decision in Lukin appeared to recognise that in that case (notwithstanding amendments which made the proposed use one to which consent could not be given) the delegate was not deprived "of the right to -- 9 of 14 -- 9 exercise an effective discretion and, if he thought fit, to determine that permission should be granted for the use of the land contrary to the Town Plan". (per Gibbs J. at 105). That passage must however be read with the understanding that, in the circumstances of that case, the amending Act contained a provision that enabled the applicant "to exercise his right of appeal as if permission to use the land and erect a building could still be granted". (The proviso to s.2 of the City of Brisbane Town Planning Act of 1964). What Lukin did decide was that the delegate (though not bound by it in the circumstances) was correct in having regard to the Town Planning Scheme as it existed at the time when his decision was made. Counsel for the appellant turned to s. 20 of the Acts Interpretation Act which, after a series of amendments, now reads: 11 20. (1) The repeal, amendment or expiry of an Act or a provision (a) (b) (c) (d) (e) of an Act does not- revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or affect the previous operation of the Act or provision or anything suffered, done or begun under the Act or provision; or affect a right, privilege or liability acquired, accrued or incurred under the Act or provision; or affect a penalty incurred in relation to an offence arising under the Act or provision; or affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) and (d). (2) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the Act or provision had not been repealed or amended or had not expired. " . . . . . . . .. . . . . . . . . . . . . . . .. .. . -- 10 of 14 -- 10 He drew attention to the judgment of the High court in Esber v. The Commonwealth 174 C.L.R. 430 and submitted that, applying the principles found in that judgment, s.20(1) (b), read together with s. 20 (2) requires that the appeal to the Planning and Environment Court should be continued and determined as if the D.C.P. had not been gazetted. I am not persuaded that s.20(1)(b) applies to this case. It appears to relate to rights which have accrued (or liabilities which have been incurred) by reason of the operation of legislation prior to its "repeal, amendment or expiry". We are not dealing here with an amendment which has taken away a right to any review of a decision such as occurred in ( and which appears to have been important to) the decision in Esber. Furthermore, it does not appear to me that s. 2 o ( 2) has any direct relationship to s.20(1) (b). It appears to refer to the matters dealt with in s.20(1) (c) (d) and (e) and that takes us back to the principles found in such cases as The Director of Public Works v. Ho Po Sang (1961) A.C. 901 and Robertson v. city of Nunawading (1973) V.R. 819 which were applied in Behrens where it was held that the opportunity to make an application for town planning approval was not a "right" such as protected by s.20(1) (c) of the Acts Interpretation Act. In Esber the "right" which the High Court found to be worthy of protection (by comparable Acts Interpretation Act provisions) was not merely "a power to take advantage of an enactment" but a right to a review of a decision already made which right was given under a statute subsequently repealed. That right was held to be a "conditional" right in that the applicant had "a right -- 11 of 14 -- 11 to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim". (Esber at p. 440). This case is not comparable. The relevant amendment here does not purport to take away any right to a review or to alter the manner in which such a review should be conducted. I do not believe that s.20 of the Acts Interpretation Act provides me with any assistance in dealing with this appeal. What then is the solution, if any exists, to this unsatisfactory situation? How is the Court to deal with appeals not only of the kind that has arisen here, but also those against dee is ions made by a Local Authority pursuant to s. 3. 4 of the Act. Perhaps the clue is to be found in s.7.1A(4) which provides: "Where a determination of the Court amends or alters a decision of the Local Authority, the determination of the Court is to be the decision of the Local Authority superseding the previous decision (or part of the previous decision, as the case may be) of the Local Authority". It appears very arguable that the scheme of the Act is that the Court, in dealing with an appeal is to "stand in the Local Authority's shoes" and its decision on any matter is to be "that of the Local Authority" on that matter. It is noteworthy that in specifying those considerations which are to be relevant in respect of particular matters (e.g. ss.4.4, 4.13 and 6.1 etc.) the Act has not sought to make any reference at all to the Court but, as far as I am aware, it has never been seriously suggested that in dealing with these matters, the court should act in any way other than in conformity with those provisions. It is my opinion that, given that s.3.4 obviously attaches importance to the consideration of an application "in accordance -- 12 of 14 -- 12 with the Planning Scheme in force at the time the application was lodged" and that a Court's decision on appeal is to be that of the Local Authority, to suggest that the Court should consider the matter on a basis entirely different to that upon which a Local Authority is required to consider it would bring about a result which is not only unjust to the applicant but plainly absurd. I am well aware that, in construing a statute, a Court should be very careful before departing from the grammatical and ordinary sense of the words used in an attempt to overcome some perceived "absurdity or some repugnance or inconsistency with the rest of the instrument" (Grey v Pearson (1857) 6 HLC 61) and that "it is no power of the judicial function to fill gaps disclosed in legislation" (Marshall v Watson (1972) 124 CLR 640 at 649). It seems to me however that to read s.3.4 as giving to both the Local Authority and the Court (in its appellate role) the power to deal appropriately and uniformly with amendments to town planning schemes which occur after an application has been lodged is consistent with the "purpose of the act" which is set out in s. 1. 3 (b) as; "to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for appropriate appeal rights in respect thereof." If, upon the determination of "appropriate appeal rights" the court's decision is to be seen sensibly as that of the Local Authority, the construction which I favour would seem to be justified. -- 13 of 14 -- 13 Section 14A(l) of the Acts Interpretation Act provides that: "In the interpretation of a provision of an Act the inte~pretation that will best achieve the purpose of the Act is to be preferred to any other interpretation". I have concluded that the purposes of this difficult Act would be best achieved by construing it in a way that requires the Court to deal with any appeal, on the same basis as that in which s. 3. 4 requires the Local Authority to deal with any "undecided application" namely in accordance with the Planning Scheme in force at the time the application was lodged, but giving such weight as is considered appropriate to any amendment to the Planning Scheme. It remains for me to consider whether the subsequent gazettal of the D. C. P. has any determinative effect on the weight it should be given in the appeal. I have concluded that it does not. It does of course remove any uncertainty as to the form which the o.c.P. has taken but, as already mentioned, this has not been a matter of any relevance to this judgment. My principal reasons for favouring the proposal to which I have earlier referred, namely that it was not offensive to the town planning principles upon which the land's residential designation appears to be based and that its approval was unlikely to impair the planning authority's ability to implement the D.C.P. in a wider sense remains unaltered. For these reasons I find that the onus of showing that the application should be approved has been discharged. The appeal is accordingly allowed. -- 14 of 14 --