Allen v Douglas Shire Council

[2003] QPEC 78

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Allen v Douglas Shire Council [2003] QPEC 078
PARTIES:	ROGER ALLEN (Appellant) v DOUGLAS SHIRE COUNCIL (Respondent)
FILE NO/S:	36 of 2001
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:
DELIVERED ON:	12 September 2003
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr P Lyons QC for the appellant Mr T Trotter for the respondent
SOLICITORS:	Morrow Petersen for the appellant Williams Graham & Carman for the respondent

1. The appeal land is described as:-

Lot 2 RP 724386 Parish of Salisbury County of Solander
Lot 516 on PTD 2094 Parish of Salisbury County of Solander

The two allotments are adjoining.  They are located at 69-73 Murphy Street, Port Douglas.  The respondent refused the appellant’s application for a material change for use as follows:-

(a)        A dwelling house with attached caretaker’s residence.

(b)        Three multiple dwelling (residential) units.

(c)        Reconfiguration of the existing allotments into two allotments having different dimensions so that the multiple dwelling units would be on one title and the dwelling house and caretaker’s residence on the other.

1. The two allotments have a combined area of 2,832 square metres.  They are located at the eastern end of Flagstaff Hill near the foot of its southern side.  The combined land is approximately rectangular in shape with dimensions of approximately 60 metres x 45 metres.  On its northern side the land has a 60 metre (approximately) frontage to the Murphy Street road reserve.  On the eastern side it has a frontage of approximately 45 metres to the Esplanade Road reserve.  The Murphy Street frontage is at approximately 34 metres elevation.  The opposite boundary is at approximately 17 metres elevation.  Just inside the Murphy Street frontage there is a steep cliff face approximately 10 to 12 metres in height.  There is then a flat bench at about 22 metres elevation.  The land then slopes down to the southern boundary.  The bench occupies about two thirds of the land area.  It is common ground that the cliff face and bench have resulted from quarrying some time prior to 1975. 

1. The plan of development lodged with the application shows the following:-

(a)        The three multiple dwelling (residential) units have three floors with the top of the roof approximately 13.7 metres above the level of the bench. 

(b)        The dwelling house also has three floors and will be of similar height above the bench. 

(c)        The plans show what purports to be the pre-excavation natural ground level.

1. The esplanade is not constructed along its frontage to the subject land.  To the east of the esplanade road reserve is Lot 141 on SR 530 which was gazetted as a Reserve for Recreation Purposes on 23 October 1971 with the respondent council named as trustee.  On the recreation reserve and just off the end of the constructed esplanade is a car park.  For many years access to Lot 2 has been obtained from the constructed esplanade, through the car park, and along an access track which runs across the recreation reserve, curves back across the esplanade road reserve and onto Lot 2. 

1. The respondent’s Planning Scheme includes provisions limiting the height and number of floors in buildings.  There is a dispute about the level from which the height of the proposed buildings is to be measured.  The appellant contends that the height should be measured from the pre-excavation natural ground level.  The respondent contends that the height should be measured from the existing bench.  I am satisfied that this dispute depends upon the proper construction of the relevant provisions of the Scheme and may appropriately be dealt with as a preliminary point. 

1. The application also proposed that the access to the dwelling and the caretaker’s residence would continue to be obtained via the access track across the recreation reserve.  It is common ground that the application was not accompanied by the written consent of the owner of the recreation reserve.  For this reason the respondent contends that the application did not cover the whole of the relevant land by not including the recreation reserve over which continuing access was required.  Further, the respondent contends that the applicant did not obtain the written consent of the owner of the recreation reserve.

1. The applicant applies for the following:-

1.          A declaration that in respect of the appellant’s development application (“the development application”) in relation to land described as Lot 2 on RP 724386 and Lot 516 on PTD 2094 Parish of Salisbury County of Solander (“the subject land”) lodged with the respondent on or about 29 May 2001 the height of any building erected on the subject land is determined by reference to the likely ground level prior to the excavation which has been carried out on the subject land.

2. A direction pursuant to s 4.1.5A of the Integrated Planning Act 1997 that the Court may proceed to determine and if it thinks fit, allow the appeal notwithstanding that the development application did not contain the written consent of the owner of part of the subject land to the making of the application, being the owner of the recreation reserve described as Lot 141 on Crown Plan SR 530.

1. The subject land is in the Residential B zone.  In Development Control Plan 2 – Port Douglas, it is designated as Residential Area – Low Density and Special Area 5.  Section 3.5.1.18 of DCP 2 provides:-

“Notwithstanding the general provisions of subsection 8.2.1. and 8.2.2., the permitted maximum building height in the High Density Area is 12.5 metres, with a maximum of 3 storeys above ground level; and the permitted maximum building height in the Low and Medium Density Areas is 9 metres, with a maximum of 2 storeys above ground level.  For the purposes of assessing the number of storeys above ground level, that part of a storey, the ceiling of which is not more than 1.0 metre above ground level, shall not be included.  Council may relax these limits in accordance with subsection 8.2.3.”

The application did request some relaxation of the limits but this is not relevant to this particular application.

1. The Planning Scheme contains the following relevant definitions:-

Ground level –

(a)        where the land has been excavated to facilitate development, the likely ground level had that excavation not been carried out.

(b)        where fill has been required or permitted to comply with subsection 8.5.1, or pursuant to provision 8.5.2(1), the level of the fill; or

(c)        in any other case the level of the ground at the appointed day.

Height – the distance measured vertically from ground level to the relevant point; the measurement of building height may, where council so determines, exclude the height of projections such as minor architectural features that in the opinion of the Council  contributes to the aesthetic qualities of the building, vent pipes and TV aerials.

Storey – that space within a building which is situated between one floor level and the floor level next above or if there is no floor above the ceiling or roof above including any level used for car parking.  That part of the ceiling which is not more than 1 metre above ground level shall not be included as a storey.

Development – the use of any land or the erection or use of any building or other structure or the carrying out of building, engineering, mining or other operations in, on or under the land or the making of any material change to the use of any premises; however the term does not include works carried out in the course of a subdivision that has been approved pursuant to s 12.8.

1. The applicant submits that the quarrying of the land prior to 1975 was excavation to facilitate development and therefore paragraph (a) of the definition of ground level applies.  The respondent argues that paragraph (c) applies because the quarrying was itself development and was not carried out to “facilitate development”.  In the Macquarie Dictionary “facilitate” means – to make easier or less difficult; help forward (an action, a process etc.).  According to the Macquarie Dictionary “excavation” means – 1. the act of excavating.  2. a hole or cavity made by excavating.

1. Whilst the meaning of defined terms and the ordinary meaning of undefined terms is of considerable importance, in my view, it is inappropriate to look at those meanings in isolation.  The definition of ‘development’ and the ordinary meaning of ‘excavation’ and ‘facilitate’ must be construed in the context of the Planning Scheme.  That is a statutory regime for regulating development taking place after the commencement of its operation (the appointed date).  There is no doubt that as a matter of ordinary fact the quarrying which was undertaken in the 1970s involved excavation, which I am prepared to accept as a matter of ordinary fact facilitated the development of the quarry.  However, the definition of development is descriptive only.  Section 13.3 of the Planning Scheme contains a definition of “extractive industry”.  There is no need to set it out but in my view there can be no doubt that the quarrying activities carried out in the 1970s fit the description of ‘extractive industry’ contained in the Scheme.  In the context of this Planning Scheme, in my view the word ‘excavation’ should be given a meaning consistent with the use of that word in s 8.5 of the Planning Scheme which deals with “minimum development levels, excavation and filling”.  In my view therefore what was carried on in the 1970s is more appropriately described as an extractive industry.  The excavation was in fact that use or “development” rather than incidental or ancillary to or “facilitating” the use or development.  In my view, what is intended by paragraph (a) of the definition of ground level is that the excavation is incidental or ancillary to the development and not the development itself.  I decline to make the first declaration sought.

1. It is common ground that the application to council was not accompanied by the written consent of the “owner” of the recreation reserve.  In my view the respondent council was the owner of the reserve (Schedule 10 IPA). Also in my view the relevant discretion to dispense with the requirement of the written consent is contained in the current s 4.1.5A of IPA which provides as follows:-

(1)   Subsection (2) applies if in a proceeding before the court, the court –

(a)        finds a requirement of this Act or another Act in its application to this Act has not been complied with or has not been fully complied with; but

(b)        is satisfied the non-compliance or partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act;

(2)   The Court may deal with the matter in the way the Court considers appropriate.

1. There is not doubt that the failure to provide the written consent of the owner with the original application may give rise to the exercise of the discretion provided for in s 4.1.5A e.g. Oakden Investments Pty Ltd v Pine River Shire Council 2002 QCA 47.  In my view subsection (1) provides for a condition precedent which enlivens the discretion.  If that condition is fulfilled it is then for the court to consider whether or not it should exercise its discretion.  In my view, the recreation reserve was land (or should have been) which was the subject of the application.  See Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council 1980 145 CLR 485. Neither the public notices nor the application which might have been examined by any interested member of the public make it clear that the application applies to the recreation reserve. In my view, the implied indication was that the existing access was confined to the esplanade road reserve. It is clear that that was what Mr Hunt thought when he prepared and lodged the application. Although there were some submitters who raised objection to the perpetuation of the access through the car park, in the absence of evidence to the contrary, I draw the inference that the objection was founded on the mistaken belief that the car park was constructed on the esplanade road reserve. I am not prepared to assume that if the true fact had been fully exposed that many more people would not have lodged submissions in opposition to the proposed development and/or that submitters or additional submitters would not have chosen to join as co-respondents to the appeal. I am therefore not satisfied that non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred by IPA. 

1. I have dealt with the subsection 4.1.5A(1) issue first, because of its nature as a condition precedent but I consider the factors which would be relevant to the exercise of the discretion (if it was enlivened) to be of equal significance.  The submission for the appellant is based upon the proposition that the respondent has in fact consented to the continued access to the subject site being gained over the recreation reserve.  The applicant relies upon on ex GH10 in which the Chief Executive Officer of the respondent wrote –

“In response to your request of Council 13 March 2001 and subsequent layout plans to secure the continued access to these lands from the road reserve identified as Esplanade and occupied by Jalun Park, I advise Council made the following resolution at its meeting on 17 May 2001.

Council agreed to maintain the Jalun Park access to Lot 2 on RP 724386 only in any redevelopment of the land limited to access to a single dwelling unit only.”

1. I am satisfied that the Council’s resolution and this notification was based on a mistaken belief that the existing access was entirely on the esplanade road reserve.  Such consent therefore was communicated on behalf of the council either – (a) as the authority having control of the esplanade road reserve or (b) as the Town Planning authority.  In my view the consent was not communicated as the owner of the recreation reserve.  Whilst the absence of formal written consent of the owner of relevant land may be excused, the absence of actual consent of the owner of land cannot be so readily overlooked.  If the applicant for development approval is not the owner of the subject land the consent, including the ongoing consent, of the owner of relevant land is of vital importance to the ongoing integrity of the proposed development if it is approved by the Council or the Court.  This applies equally importantly to land over which access is to be gained to the land upon which the proposed development is to be constructed.  It is difficult to imagine a case in which the form and security of access to a proposed development would not be of considerable significance in a Town Planning sense, relevant to whether or not the Council (or the Court) should approve a development application. 

1. If the owner of land over which access is proposed is free at anytime to withdraw access then the integrity of the whole development may well be called into doubt.  My present view is that the Council as trustee of the recreation reserve could withdraw its consent to the access to the subject land over the recreation reserve at any time.  Indeed, it is arguable that the Council would be in breach of its obligations as trustee, if it granted a purely private right of access over land which it holds as trustee for an essentially public purpose.  I do not suggest for a moment that the present access, which in my view is a licence terminable at will, is in conflict with the duties of the Council as trustee.  But a legally enforceable grant of access, virtually in perpetuity, might be a different matter.

1. I decline to make the second direction sought.