Atkinson v Brisbane City Council & Habitare Developments Pty Ltd

[2008] QPEC 85

[2008] QPEC 85

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1422 of 2008

JOHN ATKINSON

Appellant

and

BRISBANE CITY COUNCIL

Respondent

and

HABITARE DEVELOPMENTS PTY LTD

Co-respondent

BRISBANE

..DATE 22/10/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s. 3.2.9, s 3.2.10, s 4.1.5A, s 4.1.52(2)(b) - where development application for three houses on site adjoining the adverse submitter appellant's was changed after public notification and Council
proceeded to approval without indicating its satisfaction in certain respects in order that IDAS process not stop and the notification stage not apply to the changes - relief granted to protect the approval

HIS HONOUR:  The court has made an order in terms of the initialled draft.

The circumstances are ones in which the Integrated Planning Act is working or bodes to work in what might be seen as an unduly complicated way. Mr Atkinson, who is representing himself, was an adverse submitter in respect of the co-respondent's development application which the Council ultimately approved. He has appealed but now joins with the other parties in a resolution of the matter.

He is concerned about the proposed erection by the co-respondent of three houses on a property in Hawthorne Road whose rear boundary adjoins his property.  The proposed two-storey residences are to be located at the front of the development site in Hawthorne Road, at the rear of the development site close to his boundary, and in the middle in a rough line.

In deference to Mr Atkinson's submission, some changes were made to the application and those appear in Exhibit 2 which is a letter of Jones Flint & Pike to the Council dated the 3rd of March 2008.  The original plans, which were the ones publicly notified, are in Exhibit 1.

The changes included relocation of the ground floor and first floor decks in the middle house.  Further changes were decided upon between the Council's officers and the co-respondent's representatives which appear in Exhibit 3, an e-mail communication sent from the co-respondent's Mr Talty to the Council on the 28th of April 2008.  Those include relocation of the first floor deck in what I will call the rear house.

The current proposals appear in plans exhibited to Mr Talty's affidavit filed yesterday.  There are changes summarised in paragraph 15 which will doubtless please Mr Atkinson if the development has to go ahead at all.  The three houses have been moved closer to Hawthorne Road so that he will have across his fence a rear setback larger by nearly a metre and within that a wider landscaped treatment adjacent to the boundary.  There has also been some change to the roofline of the rear residence.

The co-respondent, represented by Mr Quirk of counsel has, in the course of the matter being resolved, developed concerns that certain technical matters may involve some risk to its development proposal.

While, for obvious reasons the Council officers processed the application, letting in certain changes to improve the proposal, as if nothing portentous was occurring, it has been identified that there may be problems under section 3.2.9 and 3.2.10 of the Integrated Planning Act 1997, which I shall call IPA. By section 3.2.9(4)(b), the Council was invited to reach a state of satisfaction that a change to the development application would not adversely affect the ability of a person to assess the changes to the application. If the Council made that judgment, presumably signified it in some overt way, the IDAS process would not stop in accordance with the basic rule set out in subsection (3).

In similar vein, under section 3.2.10(c), the Council was invited to form a view that "the change to the application if the notification stage were to apply to the change would not be likely to attract a submission objecting to the thing comprising the change." If the Council made that judgment, and again no doubt it would have to signify that in some overt way, the notification stage would not apply to a changed application under section 3.2.10.

While, again for obvious reasons, given the circumstances of this development application, the matter was not adverted to, the risk that Mr Quirk is apprehensive about can be appreciated. He seeks to get some protection in the court's order against it compromising the development approval, and that is by use of section 4.1.5A of IPA.

There is not the slightest practical justification for returning this matter to some earlier stage of the IDAS process.  No-one would gain any advantage from that.  It would impose delay and cost on the co-respondent needlessly.

Judge Brabazon dealt with a similar situation involving section 3.2.9 in Canungra Commercial Pty Ltd v Beaudesert Shire Council [2007] QPEC 51. (See also his later decision in Wynne v Beaudesert Shire Council [2007] QPEC 131.)

The draft order proposed by Mr Quirk has things both ways as to whether the non-compliance with IPA by failure to go through the section 3.2.9 and section 3.2.10 hoops is a failure of the Council which might, and I think certainly would if alerted to the desirability of doing so, have reached the judgments mentioned or whether the failure is one of the co-respondent. It really does not matter.

The draft order contains a declaration of the court's satisfaction that the changes that have been made are minor within section 4.1.52(2)(b) of the Integrated Planning Act. Indeed, they are minor on any basis. It does not contain the customary provisions about notification of the appeal to those entitled to have such notification or public notification otherwise, which I understand were dealt with in an order of the court of the 10th of July 2008.

Is that right?

MR QUIRK:  Yes, yes, it's in the earlier order, your Honour.

HIS HONOUR:  But something about public - a potential problem about public notification wasn't noticed then.

MR QUIRK:  Your Honour, there was - no, that's correct.

HIS HONOUR:  All right.  It looked as though it was all plain sailing when that order was made.

MR QUIRK:  Yes.  The earlier order was that there'd been compliance with the provisions of Chapter 3 and it goes on for that into public notice and the second order was that there had been partial compliance with section 4.1.41 but that hadn't substantially restricted‑‑‑‑‑

HIS HONOUR: Okay. All right. Thank you for that. I was proposing adding to the declaration that goes from page 1 to 2 of the draft "within section 4.1.5A of the Act" because that's where the words come from, isn't it?

MR QUIRK:  Yes, your Honour.

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