Douglas & Douglas v Brisbane City Council [1992] QPEC 43

)i IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Appeal No. 169 of 1991 BETWEEN: CARMEL MICHELE DOUGLAS and WILLIAM LEONARD DOUGLAS as trustees for the W.L. & C.M. DOUGLAS FAMILY TRUST and WILLIAM LEONARD DOUGLAS Appellants BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT - O'SULLIVAN, D.C.J. Delivered the 17th day of July, 1992 ..._ The Appellants appeal against the deemed refusal of the Brisbane City Council of a claim for compensation for injurious affection relating to land situated at 26 and 30 Ellis Street, Kangaroo Point described as Lots 22 and 23 on RP 11328 and Lot 1 on RP SL 1 0695 Parish of South Brisbane ( "the land"). The nett area of the land following a 4.25 metre road widening along the Ellis Street frontage is 2047 square metres. The land was at all material times in the Residential "B" Zone under the Respondent's Town Plan. Under the Respondent's 1978 Town Plan (" the 1978 Plan") the land was "Undeclared" on the Respondent's Undeclared RDA Maps for the area. According to the Council's unpublished maps, the permissible density for this designation in this area was TS. The Undeclared RDA Map for the land has notations 7 and 9 on it. Attachment A to Mr. Hanisch' s report is a Schedule entitled "For -- 1 of 19 -- 2 the purposes of advising the public the notations on the map series indicate recommended maximum development. potential and special considerations based on precedents with prior approvals and on detailed investigations". It includes: "Reasons for being left unallocated - not for public release", and lists thirteen reasons by numbers. Numbers 7 and 9 are "access problems" and "areas considered suitable for higher density development" respectively. In his report Mr. Hanisch opined that the Undeclared RDA Maps had no legal status and simply served as an indication of density which Council may accept in the event of an application for consent. He said that in practice the contents of these maps were readily available to the public, although he conceded that the public could not obtain copies of the maps. He opined that in practice these Maps assumed the ~ame status as the Declared RDA Maps. Mr. Zahnlei ter disagreed as to the public availability of the contents of the Undeclared RDA Maps. It was clear that the Appellants were given information contained on the Maps. The land is included in the "Medium-High Density Residential" designation on the Respondent's City Frame Structure Plan. Under the 1978 Plan an Apartment Building on the land was a purpose "for which development may be carried out only with the consent of the Council." -- 2 of 19 -- 3 The Statement of Intent of the Residential "B" Zone in the 1978 Plan included the following: "The Residential "B" Zone is intended to constitute the part of the City's residential area in which apartment buildings may be permitted. It is distinguished from the Residential "A" Zone in which such buildings are not permitted ..... Consistent with the philosophy referred to above, it is intended that apartment buildings, attached housing and semi-detached housing should be permissible only with the consent of the Council ... In exercising its discretion .. the Council will take into account all relevant issues, including the effects of the building on sun-penetration and shadows, air circulation, views and aspect for existing and future residents of the area, topography, the character and residential amenity of the locality and the nature and capacity of the road system and public utilities in the area and the susceptibility of the area to flooding ... " By the publication of the Town Plan in the Government Gazette on 13 June 1987 ( "the 1987 Plan") the Residential Development Area ("ROA") for the land became R3. The Statement of Intent for the Residential "B" Zone is as follows: "Land included in the "Residential B" Zone is intended to provide for a variety of residential uses ranging from a relatively low intensity to a quite high intensity. This zone includes the only land in the residential zones where apartment buildings are allowed. The "Residential B" Zone is divided into a number of Residential Development Areas from RDA 2 to RDA 7. Each RDA determines the intensity of development allowed in that part of the "Residential B" Zone. To ensure that an adequate level of amenity is achieved, permissible building type, site cover and site area is prescribed for each RDA." The statement of Intent for ROA R3 is as follows: "In Residential Development Area R3 any duplex house or attached house complying with the requirements of -- 3 of 19 -- 4 ROA R2 or ROA R3 will be allowed without requiring the c~nsent of Council. Such development will require a si. te of not less than 800 square metres with a frontage of 20 metres or more. The height of the buildings will be limited to no more than two storeys. This will minimize any overshadowing of adjacent housing". Clause 7. 6 in the 1987 Town Plan deals with "Special Requirements of Residential Buildings". Clause 7. 6. 1 is as follows: "The provisions of paragraphs 7.6.2 to 7.6.12 of this clause are development standards applicable to development for the purpose of a duplex house, attached house or apartment building generally or in the circumstances indicated in the particular development standard, as the case may be" "Development standards" are defined in Clause 30.3 of the 1987 Plan, as "provisions of the Plan". Clause 7.6.5 is headed "Where the site is in a Residential Development Area R3". In summary, sub-clauses (a) to (h) cover the following matters: area of the site, length of frontage, site cover, storeys, gross floor area, number of dwelling units, and distance from side and rear boundaries of the site. Under the 1987 Plan an apartment building is prohibited whereas it was permissible under the 1978 Plan. The result of the 1987 Plan was to restrict the use of the land to attached housing. -- 4 of 19 -- 5 History: By letter dated 26 June, 1985 an Application was made to the Respondent for consideration in principle for the development of the land for the purpose of an apartment building, to T6 density. By letter dated 2 August, 1985 the Council responded by saying that it would oppose the application "as it would require a change in the RDA from R4 to Undeclared or a higher ROA and such amendment was considered to be unwarranted." The Appellant's Architects replied by letter dated 5 August 1985. They stated that the RDA was Undeclared and the Council's Policy Supplementary Maps had a designation RDA RS, and asked the Council for RDA R6. By letter dated September 9, 1985, the Council advised that it would oppose a proposal to a higher density than T5 after road widening and development to TS or less on the site area after road widening would have reasonable prospects of approval, subject to certain matters which were listed in the letter. In September 1986 a new Town Plan was put on public exhibition. On 5 September 1986 the Appellants lodged an Object- ion to the RDA Designation of R3. By letter dated 1 December, 1986 a letter from Brisbane City Council indicated that the Objection had not been upheld, and stated: -- 5 of 19 -- 6 "Tha~ the Residential Development Type R3 be maintained, J?rovided an accept_able development can be formulated taking into account the limitations of the site consideration can be given to a higher Residential Develdpment Area at that time". City of Brisbane Town Planning Act (1964): Section 13: Claims for compensation are dealt with under section 13 of the City of Brisbane Town Planning Act 1964 (as amended)("the Queensland Act"). Sub-section (1)(a) is as follows: "(1) Subject to this Act any person- (a) who has an estate or interest in land in the City of Brisbane and such estate or interest is injuriously affected- ( i ) (ii) by the coming into operation of any provision contained in the Plan; or by any prohibition or restriction imposed by under the Plan ... " or Counsel for the Appellants submitted that the claim is made pursuant to sub-section 13 (1) (a) (ii) only, not sub-section 13 (1) (a) (i).He further submitted that it follows that only sub- section 14 (1) (d) is applicable and that the claim is outside sub-section 14 (1) (c). because an apartment building is prohibited. Section 14: section 14 of the Queensland Act provides that compensation is not payable in certain cases, including the following relevant provisions: -- 6 of 19 -- 7 "(1)(c) h w ere an estate or interest in land is aff~cted by any provision of the Plan or an ordinance of_ t~e Council which prescribes the space about buildings or other structures or limits the size of allotments or the number of buildings or other structures to be erected or prescribes the height, floor space, design, external appearance or character of buildings or other structures ..... ( d) where an estate or interest in land is affected by any provision of the Plan which prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that he had a legal right immediately before the provision in question of the Plan came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is prohibited or restricted as aforesaid ... " (2) For the purpose of construing paragraph (d) of subsection (1) it shall not be held that an applicant had not a legal right such as is referred to in that paragraph by reason only of the fact that his right depended upon an exercise of discretion by Brisbane City Council or its delegate in his favour (whether or not he has in fact sought such an exercise) if the applicant shows that it is reasonable to expect that such exercise of discretion would have been in his favour had he sought such exercise immediately before the provision in question of the Plan came into force. Subject to the preceding paragraph, the proving that compensation is not payable in by virtue of the provisions of subsection (1) upon the Council." onus of any case shall be Counsel for the Applicants submitted, and I accept, that one of the appropriate principles of construction of sub-section 14 ( 1 ) ( c) is to be found in Re Ellis v Ruislip Northwood Urban District Court (1920) 1 KB 343 at 375, as follows: " .. it must be borne in mind that we are here considering an Act which expressly and in terms recognizes the right to compensation in respect of property injuriously affected by the schem~ and that, in examining these parts of the Act which create exceptions, the canon of construction applicable is that they must not be deemed to take away or extinguish the right unless it appear by express words or by plain implication that it was the intention of -- 7 of 19 -- 8 the ~egislature so to do: Western Counties Railway Co. v. Windsor & Annapolis Railway Co (1882) 7 App Cas 178, 188" • Sub-section 14 (1) (c): In the context of the statutory interpretation of sub- section 14 (1) (c), Senior Counsel for the Respondent referred to section 14A of the Acts Interpretation Act (1954), which is as follows: 11 (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) applies whether or not the purpose is expressly stated in the Act." He submitted that" the evident purpose of section 14 (1) ( c) is to enable the Council, without fear or risk of being deterred by individual ( or multiple) compensation claims, to introduce provisions which control building development, by reference to such characteristics as plot ratio, height, gross floor area, design and purpose and which are considered by it to be desirable in the public interest." Senior Counsel for the Respondent referred to, and relied on, the judgment of the Land and Valuation Court of New South Wales in Baker v. Cumberland County Council (1956) 1 L.G.R.A. 321. In Baker, since the relevant provisions of the scheme had come into operation they had been an effective bar to subdivision of the subject land and to separate sale of any of the blocks into which it could be sub-divided, or of the two blocks into -- 8 of 19 -- 9 which it had been subdivided. The blocks in the subdivision would not have been of sufficient size to constitute the curtilage required by the definition and would therefore, in a practical sense, be unsaleable, since they could not lawfully be used as building blocks. At pages 328-9, Sugerman J. said: "The general purpose of the Part (XIIA of the Local Government Act) is town and country planning with a view to securing ends conceived of as desirable in the interests of the public generally or of particular neighbourhoods. The means by which this planning is to be brought about include regulations, controls, prohibitions and restrictions to be imposed upon the use of land by individuals, and the legislation makes incidental provision ancillary to, or consequential upon, the attainment of the desired ends. Measures of this character are likely to carry with them the consequence that there will be some who will suffer loss or damage to their individual interests by reason, for example, of restrictions upon the use or enjoyment of their lands imposed in the general or neighbourhood interest, and that there may be others who reap unearned benefits, it may also be suggested that, to some extent, such loss or damage suffered by individuals may be offset by their participation in the benefits conferred upon the public generally, or upon the neighbourhood, through the imposition upon others of restrictions of a similar character. 11 He further said, at pages 330-331: "Section 432AC ( 2) ( c) speaks of, inter alia, any provision of the prescribed scheme which 'prescribes' certain matters, those here relevant being 'the space about buildings' , the 'use of buildings' and the 'character of buildings'. In the sense in which the word 'prescribe' is here used, more particularly when it is considered in conjunction with s. 342G as the source of authority for every provision of a prescribed scheme, it refers to, or includes, in.my opinion, prescriptions of the purposes for which buildings may or may not be used, or of the character of the buildings which may be erected or of those which may not. . ........... A prescription of the 'character' of buildings is, then, one which -- 9 of 19 -- 10 prescribes the nature, or sort, of buildings, in respects other than those of 'height', etc. which are specifically enumerated." Sugerman J. concluded ( at page 334) that the relevant provision, in so far as it dealt with the erection of buildings in "Green Belt Area" Zones and prescribed the purposes for which they may have been erected with consent, with a residuary prescription that they may not have been erected of any other purpose was, "in substance and on the face of it, a provision which prescribed the 'character' of buildings." In assessing the applicability of Baker, it is necessary to compare the relevant New South Wales and Queensland legislative provisions. Under the N.S.W. Act there is no equivalent in section 342 AC (1)(a) to section 13(1)(a)(ii) in the Queensland Act which refers to "prohibition". A comparison of sub-section 14(1)(c) of the Queensland Act and sub-section 342AC(2)(c) of the NSW Act reveals the following differences: Sub-section 342AC (2) (c) has the word "use" between "floor space" and "design", and also includes "bulk". The Queensland provision includes "size of allotments" which the NSW provision does not. I consider that the first of these differ- ences is of some importance. In Williams v Claremont Town Council (1975) LGRA 155 the supreme court of western Australia referred to Baker (supra). -- 10 of 19 -- 11 Williams concerned an amendment to a scheme whereby an area, including the plaintiff's land, was rezoned to single resfdential zone SR3 (group houses). The effect of this was to limit use to duplex houses, dwellings, patio houses and terrace houses, each subject to certain development conditions as defined. As a result of the amendment, flats were prohibited. Sub-section 12 (2) of the Town Planning and Development Act (1928-1973) (WA) provided: "Land or property shall not be deemed to be injuriously affected by reason of the making of any provisions inserted in a town planning scheme which, with a view to securing the amenity, health, or convenience of the area included in the scheme, or any part thereof, prescribe .... the purpose, dimensions, or general character of buildings ... " Wickham J. said, at page 156: "For myself I think it is plain that the scheme and its amendment, so far as it relates to the plaintiff's land, prescribes in relation to it the general character of buildings and that, in that respect, his land is by the force of this section deemed not to be injuriously affected by reason of the making of that provision. This was the interpretation placed upon s. 342AC (2)(c) of the Local Government Act, 1919 (NSW) by Sugerman J. in the case of Baker v Cumberland County Council .... If this decision is correct, and I have no reason to think that it is not, it disposes of the plaintiff's case at the threshold." counsel for the Applicants urged me, in construing sub- section 14 ( 1 } ( c), to adopt the approach followed In Re Ellis (supra) at page 375, and thus to look carefully at the legislative provisions in the Queensland Act. He submitted, and I accept, that this is particularly important because of the following passages: -- 11 of 19 -- 12 Baker at page 332: "In order . that a provision of a prescribed scheme should satisfy one of the descriptions contained ins. 342 Act _(2_) (<?) it must, in my opinion, appear from the provision itself that it fulfils that description, for example, that it is a provision which "prescribes the space about buildings. " It is not sufficient that is to ~ay, that it is a provision which bring~ about, or is capable of bringing about, the same result by other means". Jones v Gosford Shire Council (1975) 33 L.G.R.A. 368, at 371: "It is sufficient to say that for a provision to come within this paragraph it must be one which, by its terms, imposes one or more of the restrictions mentioned in the paragraph. It is not sufficient that the provision brings about, or is capable of bringing about, the same result by other means." Jones concerned an amendment to the Shire of Gosford Planning Scheme Ordinance whereby reserved land was designated as reserved for the purpose of open space - parks and recreation. The restrictions imposed on the reserved land by the Ordinance were, in effect, to prohibit the erection or alteration of a building or the carrying out or alteration of a work of a permanent character or the making or alteration of a permanent excavation except one required for or incidental to the purpose for which the land is reserved. This restriction was subject to a power on the part of the Council to consent to such things being done if it appeared to it that the purpose for which the land was reserved cannot be carried into effect within a reasonable time after the commencement of the scheme. Use of the reserved land for any purpose other than its existing use was prohibited without the consent of the Council. -- 12 of 19 -- 13 The Court found (at page 371): "In the present case the restrictions relating to reserved land to which I have referred cannot be described as limiting the number of buildings to be erected or prescribing the character of buildings. All that can be said is that the restrictions are such that, as a consequence of their application to the land, the number of buildings on the land may be limited and the character of any buildings on the land may be prescribed as a consequence of a decision of the Council. Accordingly, the restrictions do not come within para. (c)." I consider, (applying Baker, Jones and Williams), that the provisions of the 1987 Town Plan relevant to the land are not provisions which by their terms include the prescriptions nominated in sub-section 14 (1) (c) of the Queensland Act. I consider that there is a significant difference in the statutory provisions in that sub-section 14(1)(c) does not refer to "prohibits" while sub-section 14(1)(d) does. I agree with Counsel for the Appellants that a prohibition is not a prescription. There are no prescriptions for an apartment building on the subject land. I find that sub-section 14(1 )(c) of the Queensland Act does not deny compensation to the Appellants. Sub-section 14 (1) (d): rt now becomes necessary to decide whether sub-section 14 (1) (d) denies compensation to the Appellants. -- 13 of 19 -- 14 Counsel for the Appellants submitted that the "prohibition" part of sub-section 14 (1) (d) is relevant. The prohibition {of an apartment building) is in the Table of Development. That Table does not deal with the matters listed in sub-section 14 (1) (c) and recourse should not be had to other provisions of the 1987 Plan. Senior Counsel for the Respondent submitted that in dealing with a claim for injurious affection, the Court needs to go beyond the prohibition, and look further into the Plan to ascertain if there are restrictions in order to assess whether there has been a diminution in value. He submitted that the matters dealt with in Clause 7.6.5 of the 1987 Plan are relevant. He submitted that the words "any provision of the Plan which prohibits or restricts the use of land" should not be limited to the Table of Development, and recourse should be had to the whole of the Plan. He cited Walton Properties Pty. Ltd. v Brisbane City Council 14 LGRA 379 at 381, which in turn cited Bingham v Cumberland County Council (1954) 20 LGR (NSW) 1, at pp. 5 and 12 as calling for a wide import to be given to "provision contained in the prescribed scheme". I consider that Clauses 7.3.2 and 7.6.5, and the ROA Map for the area, are "provisions contained in the Plan" (sub-sections 13 (1) (a) (i) and 14 (1) (d) of the Queensland Act). The Table of Development, to which I have already referred, refers to RDA R3. In order to determine whether the land is in -- 14 of 19 -- 15 ROA R3, recourse must be had to other provisions of the 1987 Plan, specifically the ROA Maps. RDA scheme maps are defined as "S h M II • c eme aps in Clause 30.3 of the 1987 Plan. I consider that the Appellants' claim falls within the first P art of sub-section 14 (1) (d) 1 " • • f th , name y, any provision o e Plan which prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose ... ". Thus it becomes necessary to decide whether the Appellants have discharged the onus cast on them by sub-section 14 (2). Mr. Zahnlei ter, Town Planning Consultant engaged by the Appellants, and Mr. Hanisch, a Town Planner in the employ of the Respondent, gave evidence concerning the likely exercise of the discretion to permit an apartment building to T6 density. Mr. Zahnlei ter undertook a detailed investigation of an application under the 1978 Plan for an apartment building, based on the T6 Drawings prepared by the Appellants' Architects. He concluded that "a properly made application proposing a carefully designed T6 type building could be approved on the land because the effects of that development would have little or no effect on adjoining land", and that such an application "would stand a reasonable chance of success". He considered that relevant factors included development trends in the locality, road network, public transport network, presence of major attractors -- 15 of 19 -- 16 and existing land uses. He noted that the lot size of the land is within the 1500 square metres specified for T6 density. Mr. Zahnleiter considered it appropriate to give more weight to the published Statement of Intent for the zone rather than the Respondent's unpublished internal ROA policy which was subject to change. I accept this evidence. Mr. Hanisch did not assess the Architects' T6 Drawings. In reaching his opinion on the TS/T6 issue, he referred to a number of matters, including the refusal of the consideration in principle (to which I have already referred) the unofficial RDA Maps (which he said were used as if they were Declared RDA Maps) and policy, the small number of T6 approvals given by the Respondent, the small size of the land and the Respondent's letter of 1 December 1986 (to which I have already referred). Taking into account all the matters referred to by Messrs. Zahnleiter and Hanisch, I am satisfied that it is reasonable to expect that the Council would have exercised its discretion (to permit an apartment building to T6 density) in their favour had they sought such exercise immediately before the RDA designation provisions of the Plan came into force. The Applicants have accordingly discharged their onus. I therefore find that Sub-section 14 ( 1) (d) does not preclude compensation being payable to the Appellants. -- 16 of 19 -- 17 Valuations: Evidence concerning the unaffected ("before") and affected ("after") values of the land was given by Mr. Rowland, a Valuer in the employ of the Respondent, and Mr. Walsh, a Valuer engaged by the Appellants. Both are experienced Valuers who gave their evidence in a professional way. They used different bases for the unaffected values. Mr. Rowland preferred a rate ( $175) per square metre for a T6 development, while Mr. Walsh preferred a rate ($17,500) per unit. This led to a considerable variation in figures, namely, $362,000 (Rowland) and $650,000 (Walsh). Mr. Beedell, an Architect and Developer who gave evidence on behalf of the Appellants, also supported a per unit rate. Mr. Rowland acknowledged the relevance of what occurs in the market place, and the number of units actually achieved on land used for comparative sales purposes. However, he considered that a rate per unit method is only a "rule of thumb" rate used by developers for a preliminary site investigation. It can be used as a check method for valuation purposes. He considered that the method had validity for land under the 1987 Plan but not the 1978 Plan. Mr. Rowland considered that his approach was reinforced by the report of Mr. Matovic, an Architect and Developer who prepared a report for the Respondent, which Mr. Rowland -- 17 of 19 -- 18 considered pointed to the inferiority of the site and development constraints. I consider Mr. Walsh allowed too much for the influence of Expo 88 in his assessment. While there may be validity in the methods used by both Valuers, I agree with Mr. Rowland that there is no real basis for comparison between any proposed units for the subject land and the unit sales in the Schedules prepared by both Valuers. Any valuation on a per unit basis suffers because it does not address the number of bedrooms, quality of finish, physical constraints of the site, orientation and location of the unit within a particular building, views, amenities available such as tennis courts etc. , proximity to the CBD and other factors. Consequently, I prefer a valuation on a per square metre basis. I accept the evidence of Mr. Rowland that a valuation based on a per unit basis is too broad in the context of the different variables for units being compared. A per metre valuation also incorporates any effect of the influence of Expo 1988 as any increase in value would be reflected in sales 3 and 4 of Schedule "A" in Mr. Rowland's report. I assess the "before" value of the land at $362,000. There was little difference between the figures of Mr. Rowland ($190,000) and Mr. Walsh ($195,000) for the affected -- 18 of 19 -- value of the land. $195,000. 19 I assess the "after" value of the land at The difference between the unaffected value ($362,000) and the affected value ($195,000) is therefore $167,000. I find that the estate or interest of the Appellants in the land has been injuriously affected. I assess the amount of compensation at $167,000. -- 19 of 19 --