Bartlett & Anor v Brisbane City Council

[2003] QPEC 1

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Bartlett & Anor v Brisbane City Council [2003] QPEC 001

PARTIES:

WILLIAM A BARTLETT and JANETTE R BARTLETT (Applicants)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

4880 of 2002

DELIVERED ON:

31 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 January 2003

JUDGE:

Judge Brabazon Q.C.

ORDER:

Declare that a development application to enclose the balcony of Lot 28 with a glass infill to attenuate excessive traffic noise from the south east freeway is a “properly made application”, with respect to the requirements of s.3.2.1(3)(a)(ii) of the Integrated Planning Act 1997 (Qld) if it is made with the written consent of the registered proprietors of lot 28.

CATCHWORDS:

LOCAL GOVERNMENT - town planning – development application – whether validly made - “owner’s consent” in multi lot building

Edwards v. Douglas Shire Council (2000) QPELR 375 - considered
Mitchell Ogilvie (Mitchell Ogilvie Menswear) v. BCCI (2000) QPELR 414 - considered
Rathera Pty Ltd v. Gold Coast City Council (2000) 115 LGERA 348 - considered

Integrated Planning Act 1997 (Qld) – s.3.2.1(3)(a)(ii)

Body Corporate and Community Management Act 1997 (Qld)

COUNSEL:

Mr. W.A. Bartlett in person
Mr. D. Gore Q.C. and Mr. Rackemann for the respondent

SOLICITORS:

The applicant in person
Brisbane City Legal Practice

Introduction

1. Mr and Mrs Bartlett own a home unit, which is Lot 28 in Riviera II at Kangaroo Point.  They want to enclose their balcony with glass, to reduce the traffic noise from the Captain Cook Bridge.

1. From their point of view, the Council keeps raising unnecessary procedural difficulties.  For its part, the Council says that they have to follow the procedures required by law, before their proposal can be considered. 

1. Their proposal has already been considered by this court. On 15 July 2002 the court held that Council was correct in saying that they had not made a proper application. They wanted to change the building approval, by enclosing their balcony thereby increasing the gross floor area of their lot. It was held that their proposal did not amount to a “minor change” within the meaning of that expression in Schedule 10 of the Integrated Planning Act 1997 (Qld). The result was that they had to make an application which would be subject to impact assessment. See the transcript of the judgment dated 15 July 2002.

1. Mr and Mrs Bartlett have now attempted to file a development application dated 10 December 2002.  In describing “all land subject to the application” the application says that it is “Lot 28 on SP100001”.  The proposal is described as “Glass infill to balcony to attenuate traffic noise”.  Mr and Mrs Bartlett are described as the applicants, and their signatures appear in that capacity and as the owners of the land consenting to the lodgement of the application.

1. The application includes an extract from the registered plans for Riviera II.  Lot 28 is on the edge of the building. That is, the balcony does not form part of any boundary with another lot.  An attached floor plan shows the gently curving balustrade to which the laminated glass would be fixed. Mr Bartlett asserted, without objection, that the glass would be fixed to the inside edge of the balustrade, as it was his understanding that the boundary of his lot extended to the middle of that structure. 

The Contentions

1. Council has taken the view that the application is not properly made.  It is helpful to mention the Council’s letter of 16 October 2002 to Mr and Mrs Bartlett.  It sets out its objection to the form of the application:

“I refer to your request for advice from the Council as to whether your proposal to enclose your balcony requires a planning approval.

I have reviewed the Council records for the development known as Riviera I and Riviera II.  The initial approval for multi-unit dwelling was issued in 1998 in respect of the site containing some 9296m².  That site was subsequently subdivided and developed in two stages.  Your lot 28 was created in stage 2 of the development by registration of a community title scheme.  That community title scheme applies to both Riviera I and Riviera II.

The Council considers that the proposed balcony enclosure amounts to an extension of a multi-unit dwelling and for the carrying out of building work for a multi-unit dwelling.  That proposed development requires an application for impact assessment under the Integrated Planning Act 1997 (“IPA”) and City Plan 2000.

An application under s.3.2.1 of IPA must describe the land, the subject of the application, and must contain written consent of the owner of the land to the making of the application.

The Council considers that the land to be included in the application is all the land in Riviera I and Riviera II and that the consent of the owners of all of the lots in Riviera I and Riviera II are required to the making of the application.

The above advice has been confirmed by the legal advice I have obtained.”

1. Mr Gore Q.C., who appeared for the Council, at first submitted (as the letter asserted) that the consent of the owners of all the lots in both Riviera I and Riviera II was required.  At the end of his submissions, he was inclined to concede that there would be no need to obtain the consent of the lot owners in Riviera I.

1. That concession may have been prompted by the realisation that the second paragraph of the letter contains a mistake.  It asserted that a community title scheme applied to both Riviera I and Riviera II.  The true position, as is made clear in Mr. Cronin’s affidavit, is that there are now two separate strata titled buildings in existence.  The Building Unit Plan for Riviera I was created in November 1997.  Riviera II has a Community Title Scheme created in December 1999.  It follows that there are separate bodies corporate, and that the owners of the lots in Riviera I have no connection with the ownership of the lots and common property in Riviera II. 

1. However, the letter is correct in asserting that the initial approval for a multi-unit dwelling was issued with respect to the whole site, before its subdivision.  The operative approval appears from p.101 of Exhibit KMC-1. 

1. Mr. Gore’s argument in support of the Council’s position can be summarised this way:

(a)         Under the strata title legislation, the owners of the individual lots are tenants in common of the common property, according to their lot entitlements.  A lot owner’s interest in the common property cannot be separated from ownership of the lot itself.  The body corporate is not the owner of the common property. 

(b)Riveria II is in the High Density Residential area of City Plan.  It falls within the South Brisbane Local Plan.  It is characterised as a “multi-unit dwelling”.  The site is included in the High Rise Residential Precinct, which provides for controls over gross floor areas.

(c)Mr and Mrs Bartlett have applied for a material change of use and the associated building work.  That triggers impact assessment under the local plan, as the proposal does not amount to “minor building work” as defined in Chapter 3 p.70. 

(d)This application will mean that the “balcony” will cease to be a balcony as defined, because it will no longer be an outdoor space (see the earlier judgment to that effect).  That will have the effect of increasing the floor area of Lot 28 and, indeed, the floor area of the whole of Riviera II. 

(f)The plan does not recognise a single lot, or apartment, such as Lot 28.  Rather, it speaks of a “multi-use dwelling” for planning purposes – the whole building. 

(g)The public notice provisions of IPA are inconsistent with the statutory intent that an individual lot is “land”, and might be the subject of an application for development approval. See IPA s.3.4.4(1)(b) and the Integrated Planning Regulation 1999 s.11. 

(h)Most importantly, attention has to be paid to the mandatory requirement that the written consent of the owner of “the land the subject of the application” be given.  See also a similar expression in s.3.2.1(9).

(i)Similarly, s.3.2.1 requires “an accurate description of the land the subject of the application”.

(j)The fact that a lot is legally inseparable from the complementary interests of other lot holders and cannot be physically separated with respect to the common area, is a powerful indicator as to what is the “land” to which the application must refer.  In the case of such a multi-unit dwelling, it must refer to the whole of the building. 

(k)By analogy, the decision of the Queensland Court of Appeal in Rathera Pty Ltd v. Gold Coast City Council (2000) 115 LGERA 348 is significant. The court held that the required description of the land was the whole of the parcel on which the proposed development was to occur, and not the smaller parts of the parcel which might be affected by actual development or ancillary services.

(l)Section 3.5.2(8) of IPA, dealing with the continuing impact of a planning approval, is a further indicator. A development approval attaches to the land, the subject of the application for such approval, and binds subsequent owners and occupiers of the land. That is so, even if later development results in a subdivision of the land (as happened in this case). As the previous judgment said, s.3.5.2(8) operates to bind Mr and Mrs Bartlett to observe at least those parts of the existing development approval which applied to their Lot 28 – that is, to maintain the lot and its balcony as approved.

Section 5.3.8 embraces the multiplicity of owners, simultaneously, of what had formerly been “the land the subject of the application”.  That will be so, as in this case, where there has been the creation of many fresh individual titles over the subdivided land. 

(m)In the result, it is only the entirety of the lot holders in the original scheme (or, at least, in Riviera II) who can represent “the land the subject of the application” mentioned in s.3.2.1. In short, the development proposed in this case is in respect of the multiple unit dwelling complex and requires the consent of each lot owner in Riviera II. That conclusion may be harsh, but it is compelled by the provisions of IPA and City Plan. While IPA gives some recognition to the realities of strata title developments (see, for example, the provisions of s.3.4.4(5), allowing notification of a proposed development to be given to a body corporate where adjoining land is subject to a strata title development) there is no provision which would give such a role to the body corporate in this case. Section 260 of the Body Corporate and Community Management Act 1997 (Qld) allows a body corporate to represent the lot owners “in a proceeding under the Planning Act” – but this is not such a proceeding.

Conclusions

1. It is clear that there are difficulties in the application of IPA to buildings which are strata titled. The court’s task is to interpret the meaning of s.3.2.1, in the knowledge that Parliament would have been entirely aware of the existence of many buildings which are strata titled. The public notification provisions in s.3.4.4, are a recognition of that.

1. Schedule 10 to IPA defines “land” to include:

(a)         Any estate in, on, over or under land;  and

(b)         The air space above the surface of land and any estate in the air space;  and

(c)         The subsoil of land in any estate in the subsoil.

1. That definition accommodates the usual understanding that a freehold title to part of a strata title building amounts to land.  Title to a lot amount to an estate “over land”.  The definition of “land” is said to include such a title so that other types of land may also be included. 

1. There should be no doubt that Lot 28 and its owners own as tenants in common the common property, in proportion to their lot entitlements.  An owner’s interest in a lot is inseparable from the owner’s interest in the common property – BC&CM Act s.37(3).  However, common property is not actually part of the lot, either physically or legally.  It is a different, though inseparable, interest in land.  An owner cannot deal separately with the interest in the lot, and the interest in the common property. 

1. It may also be accepted that s.3.2.1 in referring to “the land the subject of the application” can include any other land affected by the application, or to which the development application relates.  For example, if the development application necessarily means that some of the construction will be on a road reserve, then the written consent of the owner of the road reserve will be a pre-requisite to there being a “properly made application” – see the decision in Edwards v. Douglas Shire Council (2000) QPELR 375 at 378. It may also be the case that “issues of impacts of the proposed development outside the site itself are always part and parcel of planning determinations, and particularly impacts on adjacent streets and facilities in them such as taxi ranks. Identification of and establishing ways of managing those impacts should occur when a development application is made, in a single assessment”. See the decision in Mitchell Ogilvie (Mitchell Ogilvie Menswear) v. BCC (2000) QPELR 414.

1. Here, the installation of the glass windows would take place entirely within Lot 28. That is, none of the work is to take place on common property. That is so, if the boundary is at the mid-point of the balustrade, or at the outer edge of the balustrade, which would seem to be the limit of the freehold title in this case – see s.49C(4) of the Land Title Act 1994 (Qld) and para. 9.6 of the Registrar of Titles Directions for the Preparation of Plans.

1. It is true that the other lot owners may have some concern about the adjustment to the gross floor area and the possible impact of that upon themselves and the building as a whole. However, that is not an impact on any particular part of the multi-unit development.  Such an impact is not sufficient to make any other lot, or the common property, “the subject of the application”. 

1. The correct conclusion is the simplest. The only land which is the subject of this application is the balcony of Unit 28.  That conclusion avoids the harsh and unworkable result contended for by the Council. In practical terms, no change of approval could ever be made, as it can be predicted that not all of the owners would agree to it, certainly in the larger multi-use buildings, and often in the smaller ones. 

1. Once the application is made, then the views of the other owners can be taken into account in assessing the merits of the application. 

1. Difficulties with notification were mentioned.  However, as with the other matters raised by Mr and Mrs Bartlett in their application, such difficulties can be considered on another occasion, if they are brought back before the court. 

1. There should be a declaration that a development application to enclose the balcony of Unit 28 with a glass infill to attenuate excessive traffic noise from the South East Freeway is a “properly made application”, with respect to the requirements of s.3.2.1(3) of the Integrated Planning Act if it is made with the written consent of the registered proprietors of Lot 28.   

1. There should be a direction that all other issues, including those raised in the originating application, be reserved for further consideration.  The parties will have liberty to apply to the court.

1. If there are further differences between Mr and Mrs Bartlett and the Council, then they may be relisted before the court, without the filing of any further application.  In the usual way, it will probably be necessary for the parties to file affidavits setting out the facts on which they rely.