Auspacific Engineers Pty Ltd v. Brisbane City Council

[2008] QPEC 56

[2008] QPEC 56

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 495 of 2008

AUSPACIFIC ENGINEERS PTY LTD	Appellant
and
BRISBANE CITY COUNCIL	Respondent
BRISBANE ..DATE 08/08/2008
ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.2.7,
s 4.1.52(2)(b) - extent to which court should take into
account effects of code assessable development on persons
affected who have no right to make submissions or participate
in an appeal - circumstances in which additional information
included in plans did not constitute change, minor or
otherwise
HIS HONOUR: The Court has made an order in terms of an

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initialled draft. This is an appeal against deemed refusal by
the Council in respect of development applications for three
aspects of operational works in connection with a residential

sub-division.

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The appellant was anxious that the Court be aware that there's
an ongoing common law dispute involving it and the owners of
other land in the locality, which has been described as Lot 2;
their name appears to be McAllister. The development

applications being code assessable, the McAllister interests	20
had no entitlement to be heard in the assessment process and have none to be heard in the Court.
Unsurprisingly, the Court hears that the Council has a large
file of communications with those interests which the Council	30
has taken some trouble to accommodate. Material before the
Court in Mr Spence's affidavit corroborates this. It hasn't
been possible, it seems, to arrive at common ground. At least
one particular proposal about access to Lot 2 encapsulated in
drawings, exhibited by Mr Spence, came to nothing. It's one	40
of the features of the categorisation of many kinds of
development application as code assessable that persons
concerned about the proposal, neighbours in particular, are
deprived of the entitlement to have their views taken into
account and to participate in appeals like this. In many	50

instances, that is doubtless productive of dissatisfaction.
It's unsurprising that those so excluded may wish to 2 ORDER 60

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communicate views to decision makers and I think it's well
known that there are many instances in the planning field in
Brisbane in which such persons are invited to communicate
views to the Council - typically, with a warning that this is

a matter of indulgence rather than one of right which may	10
carry with it the right to participate in an appeal.
I was interested to be supplied by Mr Gore QC, appearing with
Mr Houston for the appellant, to a reference to D'Arcy v
Municipal Council of Inverell (1925) 25 SR (NSW) 102, in which	20
Street CJ said at 107:
"When in the course of kerbing or guttering a road, access to
the property of adjoining owners is interfered with, provision
for this is generally a matter of arrangement between the	30
landowner and the constructing authority, but there is no rule
of law which provides that a local governing body, in
exercising its statutory power of making or draining roads, is bound, as a matter of duty, not to interfere with the means of access to adjoining properties. To hold that such a duty	40
existed would, in my opinion, be contrary to principle, and
would impose an excessive and intolerable burden on such
bodies. The precise point was raised, and decided adversely to the plaintiff's contention, in East Fremantle Corporation -v- Annois [1902] AC 213. There the municipality in the	50

exercise of its statutory authority, in order to improve a
street, reduced the gradient opposite to the respondent's
house so that it was left on the edge of a cutting with a drop
07082008 T(3)04/SKH(BNE) M/T BRIS26 (Robin DCJ) 3 ORDER 60

of about 6 or 8 feet to the road. She brought her action	1
complaining that she had been deprived of access to her house, but it was held that she was without remedy, as none was given by statute and as the municipality had not exceeded its
powers. Lord Macnaghten said (at p. 217): 'The law has been

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settled for the last 200 years. If persons in the position of
the appellants, acting in the execution of a public trust and
for the public benefit, do an act which they are authorised by
law to do, and do it in a proper manner, though the act so

done works a special injury to a particular individual the

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individual injured cannot maintain an action. He is without
remedy unless a remedy is provided by Statute.'"

In Queensland, relevantly, control of roads in an area is vested in the local Government by section 901 of the Local

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Government Act 1993. The following sections deal with matters such as re-alignment and the possibilities of compensation which may be there for land-owners adversely affected.

There are particular provisions in sections 917 and 918 in

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relation to the fixing of road levels and compensation
possibilities if fixed levels are changed. I had occasion to
consider those provisions in Berry v. Caboolture Shire Council
[2001] QPEC 060 in which the disadvantages which arguably

followed a change in road levels appear to be very similar to

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those which concern the McAllisters. On the information the one possibility of access to paddocks in their rural property which has the advantage of access to other roads. There's 07082008 T(3)04/SKH(BNE) M/T BRIS26 (Robin DCJ) 4 ORDER 60

been no suggestion that any development potential their	1
property may have is jeopardised or anything along those lines.
What I said to make it clear that the Court is well aware of

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their concerns. Although the three development applications there is still scope for the application of section 3.2.7 of
of present concern were all code assessable, it is accepted by
the appellant on the basis of Macquarie Leisure Operations

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the Integrated Planning Act 1997 which, perhaps unnecessarily
in the view of commentators, makes it clear that an assessment
manager may seek comment about a proposal in the assessment
process from any quarter. Judge Wilson SC was clearly of the

view that the effect of the legislation was that the proponent

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of the development proposal may not, the legislature intends,
circumvent due consideration by all parties interested under
the IDAS process by making anything other than minor changes

after the matter appeared before the Court; see paragraph 23.

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That consideration was important in code assessable applications as well as impact assessable ones. That the Council on its own initiative by reference to section 3.2.7 or in consequence of uninvited approaches from persons such as the McAllisters may have given them a hearing in practice does

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not give them any relevant rights. They have none in this
appeal.
07082008 T(3)05/JIR(BNE) M/T BRIS26 (Robin DCJ) 5 ORDER 60

For what it's worth, in the absence of anything emanating from	1
them, there's nothing to show any sound basis for the Court adjusting the outcome of the appeal to accommodate any supposed interests of the McAllisters.

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The possibility that change in the application might be identified and contended on some future occasion to be other than a minor change, which a Court may permit under section 4.1.52(2)(b), has been averted to. It's the case that comparison of plans may reveal certain changes. Those are the

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product of communications between the Council and the
appellant. I might observe that the large residential
development, which the development application is now designed
to facilitate, requires the construction of a bridge over a

water course in Canvey Road Upper Kedron. If that's to

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provide reliable access in conditions when the watercourse
might be flowing at a high level, it's essential for road

levels in the approaches to be raised.

At page 59 of the book of exhibits, Mr Spence has updated his

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correspondence in relation to the external functional road
layout with which the plans are associated. That followed an
email exchange we found at pages 63 and 64. There are similar
communications in relation to external road works and

stormwater drainage at page 121 and in respect of external

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water mains at page 152. Perusal of those documents indicates
that there are really no changes at all. There's been a
process embarked upon of improving the plans by the addition
of additional engineering information and specifications in
07082008 T(3)05/JIR(BNE) M/T BRIS26 (Robin DCJ) 6 ORDER 60

the course of what appears to be a careful process directed	1
towards producing the best engineering outcome.
In the circumstances, there's no occasion for the Court's order to include any declaration of changes being assessed as

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minor.

...

HIS HONOUR: At Mr Gore's suggestion, reference can be made to

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another of the exhibited documents at page 123, and in is that there's been no change from the proposal as originally
particular the plan which follows at page 125, being Mr
Spence's proposal for access arrangements that led nowhere, as

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presented to Council by the appellant and the one which has
given effect to in the approvals now incorporated in the

Court's order.

...

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7 ORDER 60