Ahern v Rockhampton Regional Council
[2010] QPEC 74
•27 August 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ahern & Anor v Rockhampton Regional Council & Anor [2010] QPEC 74
PARTIES:
Michael Francis Ahern and Lynette Valerie Ahern
(Appellants)
and
Rockhampton Regional Council
(Respondent)
and
S K Drafting
(Co-Respondent)
FILE NO:
132 of 2008
PROCEEDING:
Preliminary determination
ORIGINATING COURT:
Planning and Environment Court, Rockhampton
DELIVERED ON:
27 August 2010
DELIVERED AT:
Rockhampton
HEARING DATE:
11 June 2010
JUDGE:
Newton DCJ
ORDER:
The questions contained in the order of Britton DCJ dated 26 March 2010 be answered as follows:
(1) Yes
(2) No
(3) No
(4) Yes.
CATCHWORDS:
COUNSEL:
Mr P Favell for the appellant
Mr S Ure for the respondent
Mr J Houston for the co-respondent
SOLICITORS:
Robert Harris & Co for the appellant
King & Company for the respondent
McInnes Wilson for the co-respondent
A development application was lodged by the co-respondent (S K Drafting) on 12 October 2007 for a development permit with respect to a material change of use and the development of 14 units (the development application). The respondent council issued a decision notice on or about 31 October 2008 approving the development application (the decision notice). On 26 March 2010 Britton DCJ ordered that the following questions be the subject of preliminary determination:
(1) whether the development application was properly made pursuant to the requirements of section 3.2.1 of the Integrated Planning Act 1997 (IPA);
(2) whether the respondent’s decision is void as it does not extend to apply to all the land for which the co-respondent is seeking a development permit;
(3) whether the co-respondent has complied with the requirements for public notification of the development application; and
(4) whether the respondent council’s decision lacks finality and is void for uncertainty.
The Court has been assisted in this matter by both oral and written submissions on behalf of the appellants and the co-respondent and also by the receipt of written submissions on behalf of the respondent council, the latter adopting a neutral position in these proceedings.
The subject land comprises three properties being 45, 47 and 49 Todd Avenue, Yeppoon. The details of the subject land are as follows:
45 Todd Avenue
(i) Lot details – Common Property of Todd Avenue Villas Community Title Scheme 27191, Title Reference 50278330 (the Common Property); Lot 1 on SP 121346, Title Reference 50278331 (Lot 1); Lot 2 on SP 121346, Title Reference 50278332 (Lot 2).
(ii) The property comprises 1,062 m2.
(iii) The Body Corporate for Todd Avenue Villas Community Title Scheme 27191 (the Body Corporate) is the registered owner of the Common Property.
(iv) Tara Park CQ Pty Ltd ACN 064 498 791 as trustee of Tara Park CQ Unit Trust (Tara Park) is the registered owner of Lot 1 and Lot 2.
47 Todd Avenue
(v) Lot details – Lot 24 on RP 911249, Title Reference 50207074 (Lot 24).
(vi) The property comprises 700 m2.
(vii) The registered owner of Lot 24 is Tara Park.
49 Todd Avenue
(viii) Lot details – Lot 25 on RP 911249, Title Reference 540207075 (Lot 25).
(ix) The property comprises 1,547 m2.
(x) Thomas Stanton Callaghan and Marie Elaine Callaghan as joint tenants (the Callaghans) are the owners of Lot 25.
Relevantly, the Common Property is encumbered by a Right of Way easement (Easement C) that benefits Lot 25.
“Properly Made Application”
The appellants submit that the Development Application was not a properly made application because it did not contain the written consent of each owner of the Subject Land as required by section 3.2.1(3) of the IPA. That section provides:
“Section 3.2.1(3)
Subject to subsections (12) and (13), each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for … a material change of use of premises or a reconfiguration of a lot …”
In order to comply with section 3.2.1(3) of the IPA the Development Application should, the appellants submit, include written consent which:
(1) separately identified each of the Owners and contained the signature or execution of each Owner;
(2) identified the specific lots details of the Subject Land; and
(3) in the case of the owner’s consent by the Body Corporate for Todd Avenue Villas Community Title Scheme 27191 for the Common Property of Todd Avenue Villas Community Title Scheme 27191, complied with section 100 of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (BCCM (Small Schemes) Regulation).
Section 100 of the BCCM (Small Schemes) Regulation provides as follows:
“100Body Corporate’s seal
(1) The body corporate’s seal must be kept in the custody directed by the body corporate by ordinary resolution.
(2) The body corporate’s seal may be used only as directed or authorised by ordinary resolution.
(3) However, if the body corporate has not resolved how the seal is to be used, the seal may be attached to a document in the present of the secretary or treasurer and at least one other person.
(4) The other person mentioned in subjection (3) must be a member, or the representative of a member, of the body corporate.
(5) If other members, or representatives of members, of the body corporate are present when the seal is used, the other members or representatives must sign the document as witnesses to the sealing of the document.”
Accordingly, it may be accepted that if the Body Corporate has not resolved how the seal is to be used, the seal may be attached to a document in the presence of the secretary or treasurer and at least one other person who must be a member or a representative of a member of the Body Corporate. However, I accept the submission of counsel for the co-respondent that there is no specific requirement under the BCCMA or under the BCCM (Small Schemes) Regulation for the seal to be applied to a particular document or form of document. Furthermore, there is no requirement under the IPA for the owner’s consent given by the Body Corporate to be given under seal.[1]
[1] See Wilhelm v Ipswich City Council & Parmac Investments Pty Ltd [2009] QPEC 127 at page 3, where Robin QC DCJ observed when referring to a situation where a consent had been signed by a single director of a company “I don’t think the formality required for an agreement or a contract (which notoriously in the real world is thousands of times every day entered into without formality) applies to the granting of relevant consent for the purposes of a development application under the IPA.”
The respondent council apparently purported to rectify the lack of owner’s consent by seeking clarification that the Callaghans were able to sign on behalf of Tara Park. In the affidavit of Roy Charles Ware sworn 7 May 2010, Exhibit RCW 04, p89 the council officer comments with respect to this issue appear as follows.
| Issue | Officer Comment |
| Application not properly made. The application covers land owned by Thomas and Marie Callaghan, Tara Park CQ Pty Ltd and Body Corporate for Todd Avenue Villas Community Titles. Only Thomas and Marie Callaghan provided owner’s consent. | The applicant was asked to clarify that correct owner’s consent had been provided. On 29 October 2007 a signed statement confirmed that Thomas and Marie Callaghan were directors of Tara Park CQ Pty Ltd (the company which also owned Todd Avenue Villas Community Titles). With this clarification satisfied the responsible officer took the application to be properly made on 12 October 2007. |
Notwithstanding the clarification in the committee meeting report dated 13 October 2008 the appellants submit that this did not rectify the fact that the Body Corporate had not been mentioned as an owner, nor had its consent been evidenced.
It is necessary to set out the configuration of the corporate identities involved in this matter. Mr and Mrs Callaghan are the sole directors and shareholders of Tara Park CQ Pty Ltd, the owner of Lots 1 and 2 on SP 121346 (that is, the two existing units at 45 Todd Avenue) and Lot 24 on RP 911249 (47 Todd Avenue), as trustee of the Tara Park CQ Unit Trust.[2] All units in the Unit Trust are held by T & M Callaghan Pty Ltd of which Mr and Mrs Callaghan are, again, the sole directors and shareholders.[3]
[2]Affidavit of Thomas Stanton Callaghan and Marie Elaine Callaghan filed 21 May 2010, paragraph 8.
[3]Ibid, paragraph 10.
By letter dated 25 October 2007, on a letter headed “Tara Park CQ Pty Ltd As trustee for Tara Park CQ Unit Trust ABN 86-697-226-833”, Mr and Mrs Callaghan advised the respondent council that they were able to sign as Directors for the lots on an attached plan.[4] That plan specifically identified:
[4]Affidavit of Brett Christopher Bacon filed 26 May 2010, Exhibit BCB 6, page 37.
(a) “(lots) 1& 2 (on) SP121346” – “Tara Park CQ Pty Ltd as Tte”
(b) “(lot) 0 (on) SP121346” – “Body Corp for Todd Avenue Villas Community Title”;
(c) “CRP911249” (which is Easement C);
(d) “(lot) 24 (on) RP911249” – “Tara Park CQ Pty Ltd as Tte”
(e) “(lot) 25 (on) RP911249” – “Thomas Callaghan and Marie E Callaghan”
This letter seems to accurately set out the history of the Callaghans’ involvement with the subject land as reflected in their affidavit filed 21 May 2010. Thus, paragraphs 11 to 15 of that affidavit state that:
“
11. In or about October/November 2004:-
Tara Park CQ Pty Ltd, as trustee for the Unit Trust, purchased Todd Avenue Villas, a “duplex” at 45 Todd Avenue, Yeppoon (Lots 1 and 2 on SP 121346) (See Exhibit A, document 6, pp 33 – 41); and
we purchased, as trustees for the TS & ME Callaghan Superannuation Fund, the vacant lot at 47 Todd Avenue (immediately in front of 45 Todd Avenue), described as Lot 24 on RP 911249. (See Exhibit A, document 8, pp 95 – 96).
12. We moved into the duplex at 45 Todd Avenue soon after we purchased it. Initially we occupied both Lot 1 and Lot 2, but more recently we have let out the smaller unit (Lot 2).
13. When we moved in we were not provided with minutes of any meetings of the Body Corporate and we understood that no such records existed. In fact, Special Condition 1 of the Contract of Sale for the purchase of the units provided, in part, that the buyer agreed to take no objection as to the availability and/or state of the records for the Body Corporate for Todd Avenue Villas.
14. We have not maintained any Body Corporate minutes since we commenced living at No. 45. Any decisions relevant to the “common property” are simply made by us jointly (as directors of Tara Park CQ Pty Ltd). No formal record of these decisions has been maintained.
15. In early 2006:-
(i) we sold 47 Todd Avenue (Lot 24) to Tara Park CQ Pty Ltd on behalf of the Unit Trust; and
we purchased, in our own names, as joint tenants, the house at 49 Todd Avenue (Lot 25 on RP 911249), immediately to the north of 45 and 47 Todd Avenue.”
In my view the letter of 25 October 2007 comprised a clear resolution by the directors of Tara Park to advise the respondent of their authority to sign on behalf of the company as owner. As such the formalities required by section 100 of the BCCM (Small Schemes) Regulation have not been observed. Nevertheless, the letter would seem to have complied with section 127 of the Corporations Act 2001 (Cth) which provides as follows:
“127(1) [Execution without common seal] A company may execute a document without using a common seal if the document is signed by:
(1) two directors of the company; or
(2) a director and a company secretary of the company; or
(3) for a proprietary company that has a sole director who is also the sole company secretary – that director.
Note: If a company executes a document a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.”
Section 129(5) of the Corporations Act 2001 (Cth) provides:
“129(5) Document duly executed without seal A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.”
Clause 77(1) of the Regulations adopted by the Articles of Association of Tara Park (formerly Pacific Breeze Holdings Pty Ltd) provides:
“If all the directors have signed a document containing a statement that they are in favour of a resolution of the directors in terms set out in the document, a resolution in those terms shall be deemed to have been passed at a meeting of the directors held on the day on which the document was signed and at the time in which the document was last signed by a director, or, if the directors signed the document on different days, on the day on which, and at the time at which, the document was last signed by a director.”
As Tara Park has the sole voting rights for the Body Corporate, I accept that it had the power to provide the consent of the Body Corporate as owner of the common property. Mr and Mrs Callaghan at paragraph 23 of their affidavit say that the letter of 25 October 2007 was intended to confirm the consent of all owners of land the subject of the development application. I can see no reason not to accept that asserted intention. The respondent council having received that letter would have been reassured as to the owner’s consent so far as the common property is concerned. In these circumstances I am of the view that the submission of the appellants contained in paragraph 14 of the written submissions of Mr Favell that there was no evidence before the respondent that would suggest that the Body Corporate had consented to the development application should be rejected. On a proper construction of the letter of 25 October 2007 and the accompanying plan the intention of Tara Park to provide the necessary consent of the Body Corporate as owner of the common property was adequately communicated.
I am satisfied therefore, that the application was a properly made application for the purposes of section 3.2.1(3) of the IPA and as such the power of the Court under section 4.1.5A of IPA to excuse non-compliance with this section does not fall for consideration. The first question contained in the order of Britton DCJ should be answered “yes”.
Decision void (failure to apply to all of Subject Land)
The appellants complain that despite the Development Application seeking an approval with respect to the Subject Land, the Decision Notice to which approval is purported to be given:
(a) only describes the street address as “45 Todd Avenue” and fails to mention 47 and 49 Todd Avenue;[5] and
(b) fails to include the Common Property as part of the real property description.[6]
The appellants submit that on any reading of the Decision Notice, the suggestion is that the Common Property will not form part of the proposed development and which possibly will only include 45 Todd Avenue.
[5] Affidavit of Roy Charles Ware sworn 7 May 2010, Exhibit RCW 04, p104.
[6] Ibid.
There can be no doubt that the Subject Land was not correctly described in the IDAS form. It should be noted, however, that Mr Matveyeff emailed the relevant council officer (Mr Macintosh) with the correct real property description.[7] That letter relevantly stated “… I would like to confirm the RPD at proposed development being Lots 24 and 25 on RP911249, Easement C on RP911249 and Lot 0, 1 & 2 on SP121346, Parish of Yeppoon, County of Livingstone.” It does not appear to be in contention that “Lot 0” is a convention used to describe the Common Property on an SP.
[7] Exhibit BCB-5, affidavit of Brett Christopher Bacon, filed 26 May 2010.
The plan which was attached to Exhibit BCB6 to Mr Bacon’s affidavit[8] describes with particularity all of the land subject of the application including the Common Property. This plan and the attached letter to the respondent dated 25 October 2007 was obtained by Mrs Ahern who attended at the respondent council’s Yeppoon Office on a number of occasions to view the Development Application. In her affidavit Mrs Ahern states that she attended that office on a number of occasions and obtained copies of documents including the letter of 25 October 2007 and the attached plan.[9]
[8] Ibid, p38.
[9] Affidavit of Michael Francis Ahern and Lynette Valerie Ahern, filed 7 May 2010, paragraphs 9 and 10.
I am not persuaded that the decision notice must be understood as not including the common property and only including the land comprising the street address of 45 Todd Avenue. Undoubtedly, confusion existed as to the identification of the subject land in the newspaper advertisement and the notice placed on the land. However, the decision notice can be understood as applying to all of the subject land having regard to the confirmatory email to Mr McIntosh. I therefore reject the submissions made on behalf of the appellants in this regard. The second question contained in the order of Britton DCJ should be answered “no”.
Public notification
The appellants submit that the Development Application was not properly publicly notified as required by section 3.4.4 of the IPA. That section provides:
“3.4.4 Public notice of applications to be given
(1) The applicant (or with the applicant’s written agreement, the assessment manager) must–
(a) publish a notice at least once in a newspaper circulating generally in the locality of the land; and
(b) place a notice on the land in the way prescribed under a regulation; and
(c) give a notice to the owners of all land adjoining the land.”
It is contended by the appellants that S K Drafting failed to comply with section 3.4.4 of the IPA because
(a) the newspaper notice published in the Capricorn Coast Mirror on 4 June 2008 refers only to the street address of 45 Todd Avenue;[10]
[10] Affidavit of the appellants filed 7 May 2010, paragraph 7; affidavit of Roy Charles Ware filed 7 May 2010; Exhibit RCW04, p76.
(b) the notice placed on the Subject Land and the notice given to adjoining owners were both deficient as in those notices:
(i) Lot 24 was incorrectly described as being “Lot 24 on RP911249” when in fact the correct description is “Lot 24 on RP911248”;
(ii) no reference was made to the Common Property;
(iii) it was incorrectly stated that Easement C was part of Lot 1 and Lot 2.[11]
[11] Affidavit of Roy Charles Ware filed 7 May 2010, Exhibit RCW04 pp66-68.
(c) the plan accompanying the notice to adjoining owners (and lodged with the Development Application);
(i) referred to a proposed 14 unit development at 45 Todd Avenue only;
(ii) contained a real property description of Lots 23 and 24 on RP911249 and Easement C on RP911249 with an area of 3,496m2. Notably, Lot 23 on RP911249 is in no way relevant to the Development Application.[12]
[12] Affidavit of the appellants filed 7 May 2010; paragraph 3 Exhibit 01, p3.
It is submitted by the appellants that the non-compliance with section 3.4.4 of the IPA is of a type that is likely to mislead members of the public as to the Subject Land of the proposed development and effectively take away the opportunities that section 3.4.1 aims to provide. Accordingly, it is suggested that a fair reading of the newspaper notice and the plan sent to adjoining owners would suggest that the development was to be built on 45 Todd Avenue only, when in fact the proposal would encompass 45, 47 and 49 Todd Avenue. This, it is submitted, offends the fundamental purpose of public notification.
The Court of Appeal in Rathera Pty Ltd v Gold Coast City Council & Ors[13] stated that:
“For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification – be it by newspaper advertisement or by notice board – but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.”
[13] [2000] QCA 506 at [21].
In this case, however, there is evidence from the appellants that they remained uncertain as to the land on which the development was to occur in relation to their house and the possible impacts upon them after having inspected the council file. Their confusion commenced from as early as 4 June 2008 when they received from the co-respondent a letter dated 3 June 2008 notifying them of the Development Application for a development permit for a material change of use for Multiple Dwelling Units (14 units) at 45-49 Todd Avenue. That letter comprised–
(a) a covering letter from S K Drafting to the appellants (covering letter);
(b) an attached Public Notification of Development Application statement (public notice);
(c) an attached site plan depicting the development (site plan);[14]
[14] Affidavit of Michael Francis Ahern and Lynette Valerie Ahern filed 7 May 2010, paragraph 3.
On perusing the letter the appellants state that they noticed a number of discrepancies–
(i) the covering letter states the street address of the development as being at 45-49 Todd Avenue, Yeppoon but the only address stated in the public notice and the site plan is 45 Todd Avenue, Yeppoon.
(ii) the covering letter refers to four parcels of land, namely Lot 1 on SP121346 (including Easement C in RP911249), Lot 2 on SP121346 (including Easement C in RP911249), Lot 24 on RP911248 [sic] and Lot 25 on RP911249, Parish Yeppon. However, the site plan refers to only two parcels of land, namely Lots 23 [sic] and 24 on RP911249 and Easement C on RP911249, Parish Yeppoon.[15]
[15] Ibid, paragraph 4.
Subsequently, the appellants became aware that the reference in the covering letter to Lot 24 on RP911248 should be to Lot 24 on RP911249, and that the reference to the two parcels of land on the site plan, namely Lots 23 [sic] and 24 on RP911249, should probably correctly have been to Lots 24 and 25 on RP911249.[16]
[16] Ibid, paragraph 5.
Although the site plan appeared to show a house next to the development, it did not show a street address. The appellants state that they remained uncertain as to the land on which the development was to occur in relation to their house and the possible impacts upon them. This was because of the discrepancies in the street address and the property description. It was not clear to the appellants whether the development was proposed three doors away on the land at 45 Todd Avenue only or was to extend over all the land from 45-49 Todd Avenue and be immediately next door to them.[17]
[17] Ibid, paragraph 6.
In relation to the newspaper advertisement in the local Capricorn Coast Mirror published on 4 June 2008 the appellants state that the advertisement referred only to the postal address of the land as 45 Todd Avenue, Yeppoon. The appellants further state that the sign erected on the land referred to the street address of the land as 45-59 Todd Avenue Yeppoon but that the sign was erected on the southern side of the land at 45 Todd Avenue.
Mrs Ahern states that she attended on the respondent’s Yeppoon office on a number of occasions to view the development application file in order to seek to clarify their confusion. She obtained copies of documents–
(a) Part A of the Form 1 Development Application dated 12 October 2007 (Form 1);
(b) letter from Tara Park CQ Pty Ltd dated 25 October 2007 with attached plan (Tara Park letter);
(c) file note from the Senior Planning Officer dated 1 November 2007 (file note); and
(d) Concurrence Agency Response by Environmental Protection Agency dated 27 May 2008 (EPA Response).
On perusing these documents the appellants claim that further discrepancies were noticed–
(i) the street address of the land on which the development is proposed is stated as 45 Todd Avenue, Yeppoon;
(ii) the description of the land on which the development is proposed in Item 3 of the Form 1 had been altered and appeared to now specify two parcels of land – Lot 1 and Lot 2 on SP121346 and Easement C on RP911249. A line had been drawn through the reference to Lots 23 [sic] and 24 on RP911249;
(iii) the Form 1 stated the existing use of the land as existing dwelling, when the appellants observed that one parcel of land (which they now know to be Lot 24) was vacant land;
(iv) the plan attached to the Tara Park letter identified five parcels of land (Lot 24 on RP911249, Lot 0 on SP121346, Lots 1 and 2 on SP121346 and Lot 25 on RP911249) and Easement C on RP911249);
(v) the file note acknowledged it was not clear on the Form 1 which allotments were subject to the application but asserted it was clear on the plans in the supporting material; and
(vi) the EPA Response identified the land as being at 45 Todd Avenue and comprising four parcels of land, namely Lot 1 on SP121346 (including Easement C in RP911249), Lot 2 on SP121346 (including Easement C in RP911249), Lot 24 on RP911249 and Lot 25 on RP911249.[18]
[18] Ibid, paragraph 11.
The appellants state that having inspected the council file, they remained uncertain as to where the land on which the development was to occur in relation to their house and the possible impacts on them.
I accept the evidence of the appellants as contained in their affidavit. It is apparent that the confusion generated by the imprecise details of the newspaper notice published on 4 June 2008 and the incorrect description of the Subject Land on the notice placed on the southern side of the land at 45 Todd Avenue continued and was compounded by the so-called “discrepancies” noticed by the appellants when they attended upon the respondent’s office to view the Development Application file. In my view it was not appropriate for the respondent to exercise their discretion contained in section 3.4.8 of the IPA to waive the non-compliance by the co-respondent with the public notification requirements. That section provides:
“Section 3.4.8 Circumstances when applications may be assessed and decided without certain requirements.
Despite section 3.4.7, the assessment manager may assess and decide an application even if some of the requirements of this division have not been complied with, if the assessment manager is satisfied that any non-compliance has not:
(a) adversely affected the awareness of the public of the existence and nature of the application; or
(b) restricted the opportunity of the public to make properly made submissions.”
I am satisfied that as a result of the failure by the co-respondent to comply with section 3.4.4 of the IPA, Mr and Mrs Ahern were unaware of and confused as to the true size, nature and complexity of the development that the Development Application proposed.[19] When the appellants attempted to clarify the ambiguity of the Development Application by viewing the appropriate file at the respondent’s office they remained uncertain as to the proposal and the impacts thereof.[20]
[19] Ibid, paragraph 6.
[20] Ibid, paragraph 12.
It should be noted that the respondent council itself was confused by the Development Application[21] and was obliged to seek clarification from the co-respondent. Even that clarification failed to achieve an accurate description of the Subject Land in the Decision Notice. Furthermore, the Environmental Protection Agency (EPA), which was a Concurrence Agency with respect to the Development Application, also failed to recognise the omission of the Common Property (part of the Subject Land) in the Development Application. As counsel for the appellants in his written submissions rhetorically asks, “If the respondent and the EPA cannot make sense of the Development Application then how can one expect members of the public to?”[22]
[21] Ibid, paragraph 11(e), Exhibit 01, p8.
[22] Submissions of the appellants, paragraph 31, p9.
It was not just the appellants who claimed to have been confused by the improper public notification. The owners of 53 Todd Avenue, Kenneth and Anthea Baker also made submissions to the respondent referring to this matter in a letter dated 23 June 2008. Mr and Mrs Baker stated:
“The public notice as published in the Capricorn Mirror on 4 June 2008 identifies the land as at 45 Todd Avenue, Yeppoon. The lands have street addresses of 45, 47 and 49 Avenue, Yeppoon. This error is compounded in the application form itself and the Acknowledgement Notice, which refers only to 45 Todd Avenue, Yeppoon.”[23]
[23] Affidavit of Elizabeth Rachel Roubin, exhibit ERR 01, pp6-7.
I am not prepared in the circumstances of this case to adopt the suggestion contained in the written submissions on behalf of the co-respondent that non-compliance with the requirement to provide a postal address for each Lot to which the application relates should be excused. The evidence of Mr and Mrs Ahern, which I have accepted, makes it clear that the council file failed to dispel their confusion and uncertainty as to the proposed development which had been engendered by the deficient public notices. In the circumstances I am satisfied that the respondent’s exercise of the discretion contained in section 3.4.8 of the IPA was invalid. The third question contained in the order of Britton DCJ should be answered “no”.
Decision “lacks finality and is void for uncertainty”
In assessing and deciding the Development Application, the respondent stated:
“… However, whilst in principle the development is considered appropriate for the site the proposed design of the new units in Blocks A and B is at best mediocre and if approved in the current form, will not result in the best possible outcome for the subject site or the adjoining properties. It is therefore concluded that Council approve the proposed development but requiring significant re-design of proposed Blocks A and B as well as addressing amenity aspects of existing Block C.”[24]
[24] Affidavit of Roy Charles Ware, filed 7 May 2010; Exhibit RCW 01 p91; affidavit of Brett Christopher Bacon filed 26 May 2010 Exhibit BCB 19, p 151.
In order to give effect to the above statement, the respondent assessed and included conditions:
“8.0Building
8.1 Prior to the submission of any application for a Development Permit for Operational Works or Building Works, revised plans must be submitted to Council for both Block A and Block B demonstrating compliance with the following changes:
8.1.1 Block B must be redesigned to consist of two separate blocks with separate roof structures and entry areas to break the homogenous [sic] northern wall. Block B in its revised form must be positioned in such a manner to maximise possible views over the ocean.
8.1.2 Block A must be repositioned so that the individual Units and their respective balconies utilise potential ocean views.
8.1.3 The roof structures of proposed Blocks A and B must be redesigned to reduce the overall roof height to a maximum height of 10.5 metres above natural ground level.
8.1.4 All building must be set back a minimum of three (3) metres from the side boundaries.
8.1.5 All proposed units, including the rooms, bathrooms and storage rooms must be provided with access to natural light and cross ventilation.
8.1.6 All the units must be provided with adequately screened rear windows, patios and balconies, using a combinations [sic] of awnings, screens and wooden slat screens to minimise and prevent overlooking adjacent properties and to provide visual interest.
8.1.7 Each unit must be provided with adequately screened and positioned clothes drying facilities, which are not visible from Todd Avenue.
8.1.8 Provide centrally located garbage bin storage areas with adequate washdown facilities as required by the conditions of this approval.
8.1.9 A Stormwater Plan must be provided which reflects the various building and design changes to [sic] required by the above conditions.”
The appellants complain that a number of these conditions lack certainty as to what the respondent has approved and have the effect of significantly altering the development. In Caloundra City Council v Pelican Links Pty Ltd & Anor [2004] QPEC 052 Robertson DCJ identified the relevant test as follows:
“… Firstly, if a condition imposed … by Council has the effect of significantly altering the development in which the development application is made, then the proposed approval is no approval at all. Secondly, where a condition leaves for later decision an important aspect of the development, and the decision on that aspect could alter the proposed development in a fundamental way then the approval with that condition cannot be regarded as final.”[25]
[25] At [51].
The difficulty in this case lies in ascertaining the level of significance of the required alterations. This is because the conditions assessed and required by the respondent are expressed in relatively wide and general terms. Depending upon, for example, how Block B is re-designed to consist of two separate blocks with separate roof structures and entry areas rather than a single block as proposed by the co-respondent, there may be a significant alteration of the development. Again, depending upon how Block A is re-positioned to enhance the potential ocean views of individual units and their respective balconies, the proposed development may be altered in a fundamental way. The same comments may apply equally to the required re-positioning of the redesigned Block B. It is no answer to simply say that any re-positioning and re-designing of Block B and re-positioning of Block A can only occur within the constraints of the Subject Land as the limits of such re-positioning have not yet been identified. Furthermore, it seems clear that the changes to the design of the proposed development must depend upon the exercise of further discretion by the respondent. This may or may not alter the proposed development in any fundamental respect but the potential for that to occur must be acknowledged. In other words, the respondent council may exercise a further discretion in a way that could alter the proposed development in a fundamental respect, and to that extent the decision contained in the condition 8 lacks finality and is void for uncertainty. The fourth question contained in the order of Britton DCJ should be answered “yes”.
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