Barnes v Southern Downs Regional Council

[2010] QPEC 111

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barnes v Southern Downs Regional Council  [2010] QPEC 111

PARTIES:

JOHN EDWARD MYTTON BARNES and

GEOFFREY FREDRICK COOK

(appellants)

v

SOUTHERN DOWNS REGIONAL COUNCIL

(respondent)

and

THE CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

(first co-respondent)

and

THE MCCONAGHY GROUP PTY LTD ACN 108 353 199

(second co-respondents)

FILE NO/S:

313/10

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

4 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2010

JUDGE:

Judge Rackemann

ORDER:

Order that it be taken that the decision notice included the conditional approval of the demolition of the house at 82, subject to the conditions in the concurrence agency response.

COUNSEL:

Dr McGrath for the appellants

Mr Connor for the respondents

Mr Barclay for the first co-respondent

Mr Sheridan for the second co-respondent

SOLICITORS:

Cook and Associates for the appellants

Connor O’Meara for the respondents

Gadens for the second co-respondents

HIS HONOUR:  This is a submitter appeal against an approval of an application for preliminary approval for building work, and, in particular, demolition work.

The application as made, on its face, related to the demolition of two buildings, being at 82 and 84 Fitzroy Street Warwick.  Those buildings are both included within the Heritage Register under the State Legislation, but only one of them, namely 84, is included within the Register of Cultural Heritage Places for the purposes of the respondent's planning scheme.

The fact that only one of the buildings was included under the Council's planning scheme is something which evidently eluded people at the outset.  The application, on its face, related to both of the buildings and, initially, the Council dealt with the matter on the basis that the demolition of both buildings was assessable under the planning scheme.  It appears that shortly before the decision was made their error was realised. The Council made its decision at a meeting on the 25th of November 2009 and issued a decision notice the next day. 

In its grounds of appeal the appellants contended that:

"Contrary to section 3.5.11 of the Integrated Planning Act (1997), the respondent failed to decide that part of the development application concerning demolition of 82 Fitzroy Street, being the land described as lot 1 on RP5801, and there was no valid decision for that part of the development application."

The solicitor for the respondent subsequently, by letter dated the 23rd of September 2010, effectively raised the same issue and that issue was set down for preliminary determination today. 

Of course, if the approval was indeed an approval in part only of the development application, then it would appear to follow from section 3.5.11(6)(c) of the Integrated Planning Act (1997) the balance of the application was taken to be refused.  The matter proceeded today, to argument, on the basis of whether the decision notice should be construed as extending to an approval of 82 or whether it related to 84 only. 

Reference to the Council minutes of the 25th of November 2009 suggests that the Council intentionally limited its approval to 84 because it took the view that it had no jurisdiction over 82 Fitzroy Street, that not being listed under the Council's planning scheme. 

Counsel for the developer, however, relied on that line of cases which establishes that a development approval, being a public document, ought ordinarily be construed on its own face and without recourse to extrinsic material (see for example Brisville Pty Ltd v Brisbane City Council [2007] QPELR 637 at 639-640).

He pointed to provisions in the conditions attaching to the approval which assumes that 82 Fitzroy Street is also to be demolished.  He also pointed to the fact that the decision notice appended schedule 2, which were the conditions attached to the concurrence agency's response.

The Department of Environment and Resource Management, as concurrence agency, initially required refusal of the application, but subsequently issued an amended notice in which they recommended approval subject to conditions.  On its face, their response extends to both properties.

On the other hand, however, the decision notice expressly refers to the preliminary approval of building works as relating to the property address of 84 Fitzroy Street Warwick.  Further, it refers only to the Real Property description relating to that property.  It also describes the proposal which was approved as, "Preliminary approval for building work (partial demolition of building on the Register of Cultural Heritage Places)."  That description can only relate to the number 84, since number 82 was not included within that Register.

Whilst the matter is not free from argument, I would, on balance, favour the construction of the approval as only relating to the building at 84 Fitzroy Street.  The Council's decision to limit its approval to 84 Fitzroy Street proceeded on an erroneous assumption that it had no power to issue an approval in respect of number 82, since the demolition of that property was not assessable under the planning scheme. 

Under the Integrated Planning Act (1997), which applied to the subject application, schedule 8A(1)(a) nominates the Local Government as the assessment manager.  Relevantly, "if the application is for - development...and – (i) any aspect of the development is assessable against the planning scheme."

The fact that a development application seeks an approval, part of which is not assessable under the planning scheme, does not mean that the local government is not an assessment manager, or is not required to deliver a decision notice with respect to that application.  It may mean, however, that the Council, as assessment manager, is not charged with the assessment of that part of the application.

Section 3.1.7(1) of the Integrated Planning Act (1997) provided, that:

"(1) The assessment manager –

(a) for an application mentioned in schedule 8A - is the entity stated for the application; and

(b) administers and decides an application, but may not always assess all aspects of the development for the application."

The Act includes a footnote to subsection (1)(b) which, in turn, refers to section 3.5.3A which provides as follows:

"3.5.3A When an assessment manager must not assess part of an application

(1) This section applies to the part of the application (the coordinated part) for which, were it a separate development application, there would be a different assessment manager.

(2) Despite sections 3.5.4 and 3.5.5, the assessment manager must not assess the development, the subject of the coordinated part."

The scheme of the legislation is that, in such circumstances, it is the referral agency which carries out the assessment pursuant to that agency's responsibilities, under section 3.5.15 and it is that assessment which is then reflected in the decision notice, which is given by the Council, as assessment manager. 

So much so is reinforced by the explanatory notes to section 3.5.3A which provides in part as follows:

“Subsection 1 states the section applies to any part of a development application for which, were it the subject of a separate application, there would be a different assessment manager.  This part of an application is called the "coordinated part" because it will be the subject of a concurrence agency response for a matter that is not within the assessment manager's assessment jurisdiction.  The response will therefore be included in the assessment manager's decision, but the assessment manager will not be required to tailor its consideration to achieve an integrated outcome. 

Subsection 2 confirms that the assessment manager has no jurisdiction to assess the coordinated part. This is consistent with the replaced section 3.1.7(1)(a) which states the assessment manager "administers and decides an application, but may not always assess all aspects of the development for the application.”

Accordingly, in this case it was the Council, as the assessment manager, which had the responsibility to administer and to decide the application, albeit that it was not able to assess that part of the application which was not assessable against the planning scheme.  That fell to the concurrence agency.

Given the terms of the concurrence agency assessment in response, therefore, it behove the Council to issue a decision notice which included an approval of the demolition of the house at 82.  That it did not do so means that it failed to comply with a relevant provision of the Act. 

As has already been noted, this would ordinarily lead, perhaps, to a deemed refusal of that part of the application, leaving the developer to have to seek leave to appeal that out of time.  However, it seems to me that there is a more appropriate way of dealing with the matter in the circumstances. 

Although the application was one which was made under the Integrated Planning Act (1997), the appeal was made after commencement of the Sustainable Planning Act (2009). This appeal is one to which section 819(4) applies. As a consequence, the broader excusal power, in section 820 of the Sustainable Planning Act (2009), applies. 

In my view the appropriate way to deal with this matter is to order that it be taken that the decision notice included the conditional approval of the demolition of the house at 82, subject to the conditions in the concurrence agency's response.  No party to these proceedings suggested that that was not an appropriate way to deal with the matter.