Bhat v Brisbane City Council

[2002] QPEC 44

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bhat v Brisbane City Council & Anor [2002] QPEC 044

PARTIES:

KRISHNA MURTHY BHAT
Appellant
v
BRISBANE CITY COUNCIL
Respondent
v
HILLREACH PTY LTD, ACN 081327728
Co-Respondent

FILE NO:

1436 of 2002

PROCEEDING:

Appeal

DELIVERED ON:

9 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 and 6 August 2002

JUDGE:

Judge Brabazon Q.C.

ORDER:

Appeal allowed.  Order that the Decision Notice be set aside.

CATCHWORDS:

TOWN PLANNING – where appeal against Council’s approval of development appln – where appln was for subdivision and construction of 2 new houses – where Council approval was for “multi-unit dwelling” – where different codes apply for different forms of development – whether definition of “multi-unit dwelling” includes separate houses on subdivided land – whether purpose of appln and approval would be clear to persons reading public notice – whether appln could later be amended as a “minor change” – Council decision held to be invalid.

ADMINISTRATIVE LAW – where jurisdictional fact existed – where local authority considered a different development approval from the one applied for – where necessary to look at purpose of legislation – where Council’s decision was invalid, and void

Integrated Planning Act (Qld) 1997

City of Keilor v Suraco (1981) 45 LGRA277
Labrac Pty Ltd v City of Brighton (1982) 57 LGRA 189

Project Blue Sky v ABA (1998) 72 ALJR 841 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

COUNSEL:

The Appellant in person
Mr M Rackemann for the Respondent
Mr A Heyworth-Smith for the Co-Respondent

SOLICITORS:

Brisbane City Legal Practice for Respondent
Georgeson & Company, Solicitors for the Co-Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment is about the validity of the application process, which resulted in a decision notice approving a development application.  Hillreach’s first witness has not yet completed his evidence.  The question of invalidity, which arose during the hearing, should be decided before the evidence goes any further.

1. Section 4.1.50(2) of IPA says that it is for Hillreach to establish that this appeal against Council’s approval should be disallowed, and that its proposal should be approved.  The appeal is by way of hearing anew.  That is, the Court makes a fresh decision on the merits of the case.  Here, as in many appeals, the Court (potentially) has the benefit of more extensive evidence compared to that before Council.  It also has the benefit of legal argument, which may illuminate aspects or difficulties with the town planning process that might not be readily apparent to an officer of a local authority.  The Court’s duty is the traditional one, to give an impartial and reasoned decision on the evidence.  The Court is not a town planning authority, as is the Council.  The Court’s task is to accept the statutory provisions, (in this case, those of the Integrated Planning Act1997) and the town planning documents, in the light of any binding Court decisions about how those documents should be applied.  The Court has then to apply those provisions in this particular case.

The Land

1. The land is at the corner of Denham Street and Ensign Avenue, Annerley, Brisbane.  It is 789m² in area.  It is Lot 4 on RP 43685.  There is an existing house, many years old, near the south-east corner of the land.

1. The land is in a residential area.  According to the City Plan, it is in the Low-Medium Density residential area.  It is also in a Development Control Precinct.  The Stephens District Local Plan applies to the land, but it is not suggested that any of its provisions have an impact here.  Dr K M Bhat, the appellant, lives next door at 5 Ensign Avenue.

The Application

1. The development application was lodged by Hillreach on 15 October 2001.  Part A of the application correctly said that the existing use of the land was residential. It then described the proposal as “2 new houses retain existing (house) – subdivide 1 lot into 3.”

1. Part D asked for a material change of use of the premises.  It asked for a preliminary approval for the change of use, and a development permit.  It accurately described the Low-Medium Density area.  It indicated that the proposal involved works that would result in a site cover of 35%, a GFA of 352m², 7 on-site car parking spaces, with buildings of two storeys, and no employees as the use would be residential.

1. Part F was an application to reconfigure the existing lot.  The nature of the application was said to be “subdivision (1 lot into 3)”.  The proposal was that the single detached house would remain on one lot, with two additional residential lots.

1. The application was accompanied by an architect’s report.  It briefly described the proposal, and the design, before enclosing copies of the relevant parts of codes which were said to apply to the assessment of the proposal. In the report, the proposal is described this way:

“The proposal involves the construction of 2 new houses on a large site already containing a detached house.  The site is then to be reconfigured.

Because of its size, its location on a corner and the location of the existing house, the site lends itself to be reconfigured into fairly standard urban house lots.  These have easy access to all services.  The new lots are approximately 10m in width, which is typical in the area.

The existing house is to be retained.”

1. In the next paragraph, the author deals with the design of the two new buildings.  The “new dwellings” are described as “House 1” and “House 2”.  A brief description is given about the design elements of each building.  The author concludes:

“House 2 is a more traditional approach to a small lot in the area with a form similar to many of the houses nearby.

The more specific requirements of the various codes in the City Plan are dealt with later in this report.”

The Acknowledgement Notice

1. On 25 October 2001 the Council sent an Acknowledgement Notice to the principal of Hillreach, Mr Percival.  It pointed out that public notification was required, because it intended to assess the application using impact assessment procedures.  The notice included the following details, of present significance:

“APPLICATION:
Aspects of development and development approvals sought:
Material Change of Use – Development Permit
Reconfiguring a Lot – Development Permit

Description of Proposal:
Multi-unit Dwelling (3 dwelling units) and reconfiguring a Lot –1 into 3 Lots … (emphasis added)

APPLICABLE CODES
In accordance with section 3.2.3(2)(c) of the Integrated Planning Act1997, Council advises that the following codes may be applicable to your application:

·     Residential Design – Character Code (primary code)

·     Residential Design – Low Density, Character and Low Medium Density Code (primary code) (emphasis added)

·     Services, Works and Infrastructure Code

·     Stormwater Management Code

·     Subdivision Code (primary code)

·     Transport, Access, Parking and Servicing Code.”

The City Plan

1. The developer’s proposal was to build two new houses, retain the existing house, and subdivide 1 lot into 3.  The Acknowledgement Notice described the proposal as a “multi-unit dwelling (3 dwelling units)”.  To understand the significance of those different terms, it is necessary to turn to the provisions of the City Plan.  Each has a different definition (Ch 3, pp 69 and 71):

“House:  A use of premises principally for residential occupation by a domestic group or individual/s.”

“Multi-Unit Dwelling:  A use of premises as the principal place of longer term residence by several discrete households, domestic groups or individuals, eg townhouse, boarding house, duplex, apartment, retirement village, nursing home, orphanage or children’s home, aged care accommodation, residential development for people with special needs, hostel, institution (primarily residential in nature) or community dwelling (where unrelated people maintain a common discipline, religion or similar).”

1. The assessment processes for houses and multi-unit dwellings are different.  A house on a lot less than 450m², in the Demolition Control Precinct, has to be assessed against several codes - the Character Code, Small Lot Code, and the House Code.  (See Ch 3 p 33 para 5.4.3 and Ch 3 p 30).  The Small Lot Code is the most significant, for present purposes.

1. On the other hand, a multi-unit dwelling has to be assessed against the provisions of the Character Code and the Residential Design – Low Density, Character and Low-Medium Density Code.  (See Ch 5 p 165 para 1 and the code provisions from para 4.3 on p 167).  That code includes some illustrations of different multi-unit developments – see pp 174-176.

Notification

1. Hillreach placed an advertisement in the local paper, and put up the usual signs on the land.  The relevant parts of the notices are these:

“Integrated Planning Act 1997

PUBLIC NOTICE OF
DEVELOPMENT APPLICATION

Planning Scheme for City of Brisbane

Proposal:

Multi-Unit Dwellings (3 dwellings)
and Reconfiguring a lot (1 into 3)
Existing house to be retained.

… The applications can be viewed at Customer Service Area, Brisbane Administration Centre …”

The Development Approval

1. On 18 March 2002 the Council issued a Decision Notice, approving the development application.  The Notice recited details of the application, as in the Acknowledgement Notice.  There is a development permit for a material change of use and reconfiguring a lot.  The developer’s proposal is again described as:  “Multi-Unit Dwelling (3 dwelling units) and Reconfiguring a Lot (1 into 3 lots).”

1. Para 5 of the Conditions requires the owner of the land to “construct and maintain the multi-unit dwelling to include the following …”.  That is a reference to the plans, which include the existing house and the two new houses.

1. Condition 30 says this:

“The survey plan for the proposed development will not be endorsed by Council until it can be demonstrated that each of the dwelling units included in section 1 of this approval have been substantially constructed.

Guideline

This condition is imposed as the reconfiguration is to be subject to the approved buildings being substantially constructed prior to survey plan endorsement.  “Substantially constructed” for the purposes of this approval means that the buildings are to be completed to “lock up” stage. …”

The Subdivision Code

1. Hillreach and the Council submitted that aspects of the Subdivision Code of the City Plan are important.  At Ch 5, p 227, the following appears, in the introduction to the Subdivision Code::

“This code applies to applications for reconfiguring a lot.

This code will be used in assessing all types of subdivisions…

The key principle of this code is that if buildings are approved or existing, they can be separately titled.  Therefore minimum areas and frontages apply only to reconfiguration proposals for the creation of new vacant lots and where a building design has not been approved for the lots. …

Any subdivision … of existing or approved buildings requires code assessment against section 5.2.2.

Where reconfiguration is proposed for a use or uses that require assessment, the reconfiguration application will not be approved until the use application has been determined.

Where the development permit for reconfiguration relies on the construction of approved buildings, Council will only seal the Plan of Subdivision under this section when the buildings have been substantially completed.” (emphasis added)

1. Para 5.1.7, dealing with the performance criteria for lot layout, contains acceptable solutions 8.1.1 or 8.1.2:

“8.1.1 Large tracts of smaller lots all of a minimum size and frontage are avoided and a mix of lots sizes is provided.

Area and frontage are in accordance with table 2

or

8.1.2The reconfiguration relates to the titling of existing or approved buildings.”  (emphasis added)

1. See also the reference to “existing or approved buildings” in Table 2, on p 240.

The Submissions for Hillreach and the Council

1. First, it was submitted that the development application should be understood as one for multi-unit dwellings.  It was pointed out that, in addition to the references to “2 houses” the attached report went on to include the Low Density, Character, and Low-Medium Density Codes, dealing with multi-unit dwellings in character residential areas.  Indeed, that is so, and there is no mention in the list of codes of the Small Lot Code, or the House Code.  It was submitted that, while the description of the proposal was admittedly not ideal, a reading of all the material, including the report and its reference to codes dealing with multi-unit dwellings, made the application sufficiently clear.  That being so, it was submitted, the following acknowledgement notice, notification, and approval were appropriate responses to the application.

1. Secondly, it was submitted that the application really was for a “multi-unit dwelling (3 dwelling units)”.  That was because the definition of a multi-unit dwelling, in referring to “premises”, referred to the whole of the existing land which would have built on it two additional buildings.  Those buildings were intended for long term residence by “several discrete households, or domestic groups of individuals.”  That was so, it was submitted, otherwise more than one house could not be built on the land, before subdivision (referring to Ch 5, p 99, P1 and A1.1 to A1.3).

1. Thirdly, it was submitted, Hillreach was quite properly following the Subdivision Code, in seeking to have those buildings approved, and then asking for a reconfiguration of the lots (subdivision) in its proposal.  It was said that the subdivision code provided a way for land to be titled, and that Hillreach had followed that way, in which the first step  was an approved building, or buildings.

1. Fourthly, it was submitted that in any case the court might permit a change to the application so that it asked for approval of a multi-unit dwelling.  The court’s power is to allow a “minor change” (s 4.1.52(2)(b) of IPA).  By analogy, reference was made to the definition of “minor change” in the schedule to IPA. That intimation of an application to change the development application was made on the basis that the proposed development is capable of being lawfully achieved by an application for a multi-unit dwelling.

Dealing with the Submissions

1. The application forms, and the attached report, made it plain that the purpose was to subdivide the land into three lots, retain the existing house on one of them, and erect two new houses.  The reference to “houses” was appropriate – it reflected ordinary usage, and also used a term which is defined in City Plan.  The report conveys the idea that all three houses are to be just that.  There is no mention of any facts which would make them multi-unit dwellings.  The reference to reconfiguration into new lots points to their being ordinary houses, to be sold to individual owners.

1. It is true that parts of the attachments do refer to codes appropriate for multi-unit dwellings, and there is no mention of the House Code, or the Small Lot Code.  As the report says (para 4(d)) the attached codes are addressed “as requested at the pre-lodgement meeting – “minutes attached”.  That is a reference to the Code and Planning Scheme Policy List – South Region attached to the pre-lodgement record.  The handwritten notes do not seem to mention the codes, but the above form does so.  The Character Code and the Low-Medium Density Code are ticked while the House Code and the Small Lot Code are not.

1. It is asking too much of a reader, either a lay person or one skilled in these matters, to construe the application as anything other than an application about three ordinary houses, each on a separate lot.  There is no suggestion in the application forms or in the report that they are to be used as, or designed for, the purpose of multi-unit dwellings.  The addition of the (apparently) inappropriate codes is not enough to give a contrary impression.  It is true that a court dealing with such an application should not subject it to an unduly critical examination.  As it was put in Labrac Pty Ltd v City of Brighton (1982) 57 LGRA 189:

“It is proper to say that it is desirable, of course, that the requirements of the law be satisfied in the various proceedings and the procedures by the several Acts dealing with town or country planning; but when one comes to the making of a microscopic examination of a document where an inelegant phrase has crept in, which does not go in any way to the heart of the matter, I think good commonsense should prevail, and the substance of the matter which is before the Tribunal should be considered, rather than an unduly critical examination and exploitation of a phrase which is quite inept has been written on the form of application and where no merit attaches to the point which has been taken.”

1. That is not this case.  It follows that the acknowledgement notice, the notification, and the decision notice were all unresponsive to the application.  Anyone who read the public notice and then went to inspect the application at the Council was likely to be confused about what was really being proposed, and which codes should be used to assess the application.  The decision notice purported to approve something that had not been requested. 

1. The significance of the application is apparent from the IPA provisions dealing with the contents of the acknowledgement notice, which must name all the codes that appear to the assessment manager to be applicable codes for the development -

   
   

   s 3.2.3(2)(c). The application and supporting material must be kept available for inspection (s 3.2.8(1)). It might only be changed by giving written notice of the change to the assessment manager (s 3.2.9(1)). It may be given to referral agencies (s 3.3.3) and the notification stage itself depends upon the contents of the application (s 3.4.2). When there is impact assessment, the application is considered by Council (s 3.5.5) and “the assessment manager must decide the application within 20 business days …” (s 3.5.7). In deciding the application, the assessment manager must “approve all or part of the application …” (s 3.5.11). The decision notice itself must state whether or not the application is approved, etc –

   
   

   s 3.5.15(2). In short, the contents of the application are the critical first step in the approval process.  The Council has power to approve an application.

1. The Council decided this application on the basis of an assessment against the multi-unit dwelling provisions of the Low-Medium Density residential code.  Was it possible to describe (at least before any subdivision was effected) these three ordinary houses on one block of land as “Multi-Unit Dwelling – 3 Dwelling Units”?  That depends on the definitions of “house” and “multi-unit dwelling” above.

1. It must be remembered that these town planning documents are largely the work of town planners.  They are not the work of parliamentary counsel who have to consider a piece of legislation.  If there are any ambiguities or inconsistencies, it is necessary to read the documents as a whole to discover their planning intent.  They should be read and applied in a practical common sense way, and not in an overly technical way. They should be interpreted in a way which will best achieve any evident purpose.

1. These features and definitions, and the City Plan as a whole, can be taken into account:

(a)        The purpose of the definitions is to distinguish a “house" from a “multi-unit dwelling”.  They are different concepts.

(b)        The expression “multi-unit dwelling”, and the examples which follow, are all in the singular.  So, a retirement village, which would ordinarily contain a number of separate buildings, can still be a multi-unit dwelling.  In other cases, it is apparent that a single building constitutes such a dwelling.

(c)        Many of the definitions use the word “premises”. It is apparent that, depending on its context, that word may refer to buildings, or to land, or to land and buildings.

(d)        The word “house”, while defined, appears to be used elsewhere in the sense of a building which looks like a house.  For example, see Ch 5 p 174 figure a, where the reference is to “houses” which form part of a multi-unit development.  In figure b, reference is made to “multi-unit housing”.  See also p2 and A2.1, Ch 5 p 166.

(e) “Dwelling” can also mean a unit – see Ch 5 p 169 P10.

1. Bearing in mind the expansive nature of the definition, it should be accepted that the expression used by the Council would be appropriate to include three separate house buildings, used by different households, domestic groups or individuals, as long as the three houses are on the one block of land, or at least constitute the one “premises”.  When the phrase “three dwelling units” is added in this case, that makes the present position clearer, and is consistent with the usage in City Plan.  If townhouses can be multi-unit dwellings, then it is difficult to see why these three houses would be outside the definition.  So, the definition is not an obstacle to Hillreach, before subdivision.  Three houses could constitute a multi-unit dwelling.

1. However, when the Council came to consider the application, the true purpose of the application was clear.  That is, although the Council said it was considering an application for a multi-unit dwelling, it knew that the purpose was to achieve a subdivision, and separate titles for the lots, as soon as the houses were substantially complete.  They could then be sold to members of the public as ordinary houses – that is, they would become three separate premises, on different titles.  That was the declared intention.  The end result is defended, on the basis that the City Plan envisaged that as a permissible route to separate titling of the houses – see the above references to the Subdivision Code.

1. Here, the Council assessed the proposal against the Multi-Unit Dwelling Code knowing that the purpose of the development was to sell the individual houses which otherwise would have been assessed against the Small Lot Code.

1. No thought seems to have been given to s 3.5.28 of IPA, which provides that a development approval attaches to land:

“1.The development approval attaches to the land, the subject of the application, and binds the owner, the owner’s successors in title and any occupiers of the land.

2.To remove any doubt, it is declared that sub-section 1 applies even if later development (including reconfiguring a lot is approved for the land (or the land as reconfigured).”

1. Purchasers of these houses, and their successors would be bound to maintain and observe an approval for multi-unit dwellings.

1. As the Council was considering a combined application, including approval of the subdivision, it was apparent that, either certainly or in all probability, separate titles would issue about the same time as the new houses were completed.  On any view of the facts, it is impossible to see how the Council could have been persuaded that the development was one which involved, at any time, a multi-unit dwelling.  The result is that the Council considered the wrong code.  Instead of applying the multi-use dwelling provisions of the Low-Medium Density Code, it should have been applying the Small Lot Code.  Those codes are substantially different.  For example –  a multi-unit dwelling may be up to three storeys, while a house can be two storeys (Ch 5 p 167).  If it is a multi-unit dwelling, then the GFA must not exceed .5 of the site (Ch 5, p 167).  If it is a house, on a small lot, the building footprint (i.e. including all projections) must not exceed 60% of the site.  Houses will have boundaries and (usually) fences between them, while the multi-dwelling buildings will be within a boundary.

1. A local authority’s power is to consider an application for development approval.  If it does not consider that application, but something different, then its decision will usually be void.  For example, see the decision of Gobbo J of the Supreme Court of Victoria, in City of Keilor v Suraco (1981) 45 LGRA 277. There, the applicant applied to the local planning authority for a permit to use premises for purposes of “coffee lounge and takeaway food”. That authority granted a permit for an “amusement parlour”. That was not a use that had been applied for. As the court put it:

“Assuming for the moment that the Tribunal’s decision involved the grant of a permit for a use that had never been applied for, then there is first to be considered whether such decision was a valid one.  There is no express power to depart from the statutory requirements as to applications for permits set out in section 18 of the Town and Country Planning Act and the regulations thereunder.  Apart from a possible power to assume a permit differing from that applied for by the imposition of conditions, there is, in my opinion, no power to grant a permit for a different use to that applied for. …

In the present case, a use of the premises that includes an amusement parlour was, in my opinion, a radically different use from that applied for.’

1. There is no reason to think, in this case, that any different conclusion should be reached.  The principles to be now followed are those laid down by the High Court of Australia in Project Blue Sky Ink v ABA (1998) 72 ALJR 841 at 859-861. As the majority judgment put it:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purposes ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. … a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.  This has been the preferred approach of courts in this country in recent years … in determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute.”

1. The relevant provisions here are summarised above.  The making of an application and the giving of a decision notice are significant steps.  The Council considered something which was substantially different to that applied for.  It had no power to do that.  Its decision is invalid, and void.  The power of a planning authority to decide an application will often depend on a jurisdictional fact. A comprehensive discussion of the issues can be found in a decision of the NSW Court of Appeal – see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, especially from p64.

Overview

1. The task of this court is not to review the Council’s decision, but to re-assess the application on its merits, in hearing this appeal.  It is not possible to conclude the appeal without deciding the present questions.  That is, the appeal was proceeding on the basis that the Multi-Dwelling Code provisions were those that applied to the application. Reports were written on that assumption. It is impossible for this court to continue to consider the appeal on a demonstrably false basis.  No point would be served by continuing to hear the evidence.

1. It may well be that an appropriate approval can be given for a building, to lay the foundations for an application for subdivision.  Whether it can be done in a combined application for that approval and for subdivision itself, has to await resolution on another occasion.  In the present case, it is sufficient to summarise the essential findings:

(a)        Hillreach made an appropriate application to develop houses and for reconfiguration (subdivision).

(b)        Council mistakenly thought the application was for something  different – a multi-unit dwelling.  The Acknowledgement Notice was inaccurate.

(c)        The public notices were inappropriate and confusing;

(d)        Council’s consideration of a multi-use dwelling proposal, knowing that the purpose of the application was to produce three ordinary houses on separate lots, was the final step in a mistaken exercise.

(e)        Council’s decision was beyond its power, and void.

(f)        There is no possibility of changing the application, at this stage.  The application process will have to start again, as it will mean assessment on a different basis, by Council (and this court if there is an appeal).

(g)        These reasons do not depend on any view about the actual merits of the application, when it is properly assessed.  It is not rejected.

1. The orders are that the appeal be allowed, and that the decision notice of 8 March 2002, approving the application, be set aside.