Bon Accord Pty Ltd v Brisbane City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Bon Accord Pty Ltd & v Brisbane City Council & Ors [2008] QPEC 119
PARTIES:	BON ACCORD PTY LTD (Applicant) v BRISBANE CITY COUNCIL (First Respondent) and BERKELEY BURNS PTY LTD (Second Respondent) and IBIS CENTRAL (Third Respondent) and CONSTRUCTIONS PTY LTD (Fourth Respondent)
FILE NO/S:	1962 of 2008
DIVISION:	Planning and environment
PROCEEDING:	Originating application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	16 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 and 30 September 2008, 1, 2, 3, 6, 17, 27 and 29 October 2008, and 8, 10 December 2008
JUDGE:	Rackemann DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	Application for declarations and orders – stop work orders sought for partially completed shopping centre. Validity of MCU approval – whether application properly made – misdescription of the land – whether piecemeal – misdescription of approval – absence of resource allocation / entitlement – whether application which is not properly made is invalid – whether MCU application ought to have been impact assessed – whether on site of heritage place – whether in excess of GFA – whether approval so unreasonable that it could not have been made – adequacy of carparking, traffic layout and design of north and north-western facades – whether building permit invalid – discretion to withhold relief
COUNSEL:	G Gibson QC with E Morzone for the applicant M Hinson SC with T Trotter for the respondent N Kefford for the second respondent P Lyons QC with J Houston for the third respondent J Chapple for the fourth respondent
SOLICITORS:	p & e law for the applicant Brisbane City Legal Practice for the respondent MDRN solicitors for the second respondent Corrs Chambers Westgarth for the third respondent Holding Redlich for the fourth respondent

INTRODUCTION
New Lagoon Street
The MCU approval

Was the MCU application properly made

Misdescription of the Land
The Public Carpark
The Access Strip
The Flood Immunity Works
Other parts of Bowser Parade and Lagoon Street
Misdescription of Approval
Resource Allocation / Entitlement

Was the MCU Application Impact Assessable

Heritage Place
GFA

Unreasonableness

Inadequate On-Site Carparking Spaces
Layout
The North and North West Facades

The Building Works Permit

Discretion

CONCLUSION

INTRODUCTION

The third respondent[1] is developing a new shopping centre in the Sandgate town centre, on the western side of Bowser Parade. The shopping centre is to be anchored by a full-line Woolworths Supermarket and will also provide for six speciality shops. Construction is being carried out by the fourth respondent. The works, which commenced in March 2008, have progressed substantially, at great cost, and the shopping centre is due to open in February 2009. The applicant, which owns an older style existing adjoining shopping centre at the corner of Lagoon Street and Hancock Street, seeks declarations and orders, including an order that the third and fourth respondents stop work on the development.
[1]Ibis Central is a business name registered to Havenfleet Pty Ltd and Martin Gregory Cross and Dianne Cross as trustees for the Cross Family Trust.

The development is being carried out pursuant to development approvals namely:

(a) a development permit for a material change of use (centre activity within a centre) and a preliminary approval for building work, which was the subject of a negotiated decision notice forwarded to the third co-respondent under cover of a letter dated 7 March 2008[2]

(b) a development permit for building work, granted by the second respondent, by a decision notice dated 26 March 2008.[3]

[2]See exhibit 1, vol 2, tab 25.

[3]Ex 1 vol 3 tab 60.

The subject site has been formed by successive sub-divisions and amalgamations, including amalgamation with part of what was once Lagoon Street. Part of Lagoon Street has been relocated to the north. By a decision notice dated 13 April 2006, the Council purported to grant approval for operational work (signs and line marking, storm water drainage and road works) in relation to the diversion of Lagoon Street.[4] A public carpark is situated between the new alignment of Lagoon Street (New Lagoon Street) and the shopping centre site.
[4]Ex 1 vol 3 tab 46.

The applicant contends that:

(a) the Lagoon Street approval was invalid and of no effect because the development approved by it:

(i) was assessable development.

(ii) involved operational work on a heritage place.

(iii) was a material change of use.

(iv) required, but was not subjected to, impact assessment.

(b) the 2008 approval granted by the Council (described as the MCU permit) was invalid and of no effect because:

(i) the application was not properly made, by reason of misdescribing or not including all the relevant land and not being supported by evidence of a resource allocation or entitlement, and could not have been accepted by the Council.

(ii) the application was processed and decided as a code assessable application when, in truth, it required impact assessment by reason of:

· Involving building work on the site of a heritage place
· Non-compliance with the acceptable solution for gross floor area (GFA) in the Centre Design Code.

(iii) the proposal was in conflict with applicable codes and no reasonable decision maker could have approved the application.

(c) the 2008 permit granted by the second respondent (the building works permit) was invalid and of no effect because:

(i) The building permit could not be granted in the absence of an effective development permit for a material change of use and an effective preliminary approval (for assessment under City Plan) for the building work.

(ii) The application was not properly made, because it failed to include all of the land the subject of the building works and was not supported by evidence of the necessary resource allocation or entitlement.

New Lagoon Street

Prior to its diversion, Lagoon Street formed the northern boundary of that part of the subject site which was previously known as the “Drill Hall Site”. It also formed the southern boundary of the Einbunpin Lagoon Reserve and public carpark.

The Brisbane City Plan 2000 includes a Sandgate District Local Plan. That local plan, as amended, includes the following statement:[5]

“The Drill Hall Site is considered to be suitable for amalgamation with adjoining lands in order to create a development site for a shopping centre. Consideration will be given to the diversion of Lagoon Street and the closure of part of the existing surface level carpark adjoining Brighton Road, to facilitate the development site referred to above.”

[5]The local plan also contains a figure showing the area considered suitable for amalgamation. An overlay of that figure with the land described in the application appears at pg 15 of Ex 10.

The developer approached the Council in relation to the construction of the diversion of Lagoon Street. On 16 December 2005 the Council advised that such development was exempt development, not requiring a development permit, but that the council would check the design drawings.[6] A drawing was lodged by the developer’s consulting engineer, under cover of a letter dated 4 January 2006, which referred to the project’s status as “exempt development”.[7] That was followed however, by a letter of 20 March 2006 which made a development application for operational works.[8] The council granted an approval in April 2006.[9] The diversion was subsequently constructed by the developer at a cost of about $600,000.00.[10] This facilitated a road closure, so as to achieve an amalgamation with the Drill Hall site.
[6]Ex 1 vol 3 tab 40.
[7]Ex 1 vol 3 tab 41.
[8]Ex 1 vol 3 tab 42.
[9]Ex 1 vol 3 tab 46. The approved plans show a “future carpark” but note the “limit of works stage 1” as at the entrance to the carpark.
[10]See Forbes Ex 7 para 50.

The applicant contends that the Lagoon Street diversion involved assessable development, because it involved operational work on the site of a heritage place and was for a material change of use, from carparking to road.

The surface on which “New Lagoon Street” was constructed forms part of a larger area of land dedicated as a road for public use.[11] The works simply realigned the carriageway within the area dedicated for that purpose, with the consequence that part of the road which was previously used for parking activities is now carriageway.
[11]See Caldwell, exhibit BAC29 at p 27.

A road may be used by the public for the passage of vehicles, cyclists and pedestrians and for parking.[12] The use of land dedicated and opened as a road involves those activities. Characterisation of the use of land should be undertaken by reference to the activities characterising that purpose regarded as an entity, rather than as piecemeal or incidental activities.[13] While the activity in part of the dedicated road changed from parking to carriageway, the use was, and remained, for road purposes.
[12]Section 901 of the Local Government Act 1993 gives a local government control over roads and capacity to regulate the use of roads within its area. Sub-section 101 of the Transport Operations (Road Use) Management Act 1995 gives a local government power to regulate parking on roads.
[13]See Wright v Brisbane City Council [2008] QPELR 10 at 14.

The contention with respect to works on heritage place is dealt with later, in the context of the MCU approval.

Even if the diversion otherwise involved assessable development, the development was rendered exempt by virtue of s 2.3 of ch3 of City Plan. That section provides that “certain development is exempt despite anything to the contrary in the plan.” At the relevant time, exempt development included development for a “utility installation”.[14] Subject to exceptions (which are not relevant for present purposes), a “utility installation” was, at that time, defined to mean a use of premises for, amongst other things, “provision or maintenance of roads or traffic controls.”[15] The diversion of Lagoon Street falls within that description, and was exempt.
[14]Subject to certain exceptions not presently relevant – Ex 2 tab 1 chapter 3 pg 5.
[15]Ex 2 tab 1 chapter 3 page 74-75.

Even if the applicant’s contentions were otherwise accepted, I would have exercised my discretion against granting relief in this respect. The diversion of this part of Lagoon Street is contemplated by the Local Area Plan. It has been carried out in good faith and with the expenditure of considerable funds and has now been in place for some time. Mr Gibson QC, for the applicant conceded that:

“If your Honour were of the view that the (New Lagoon Street) approval was invalid, we do not contend and have not contended the road should be torn up and the place reinstated. That would be foolish. There would be no utility in making such an order.”[16]

While Mr Gibson QC contended that I should still exercise my discretion to make a declaration, that would seem to serve no useful purpose. There would appear to be no benefit in casting a pall upon the works, by making any declaratory orders.

[16]T8-137.

The MCU approval

The applicant contends that the application for a development permit for a material change of use and a preliminary approval for building work:

1. was not a properly made application.
2.ought to have been the subject of impact assessment, rather than code assessment; and
3.conflicted with applicable codes and could not reasonably have been approved.

(a) Was the MCU application properly made

The applicant contends that the application was not properly made, and could not have supported a valid approval, because it did not include all of the land the subject of the development and was not supported by an appropriate resource allocation or entitlement.

Misdescription of the Land

Section 3.2.1 of the Integrated Planning Act (IPA) requires each application to be made in the approved form. By reason of sub-section 2, the approved form must contain a mandatory requirements part, including a requirement for an accurate description of the land. The “land” is that which is the subject of the application.[17] The mandatory requirements part of the approved form must be correctly completed if the application is to be a properly made application, in accordance with subsection 3.2.1(7). Sub-section (9) however, provides that if the assessment manager receives, and, after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
[17]S 1.3.8(5).

The development application for the MCU was made in the approved form, including form 1. Items 1 to 9 of the approved form deal with the description of the land. Item 1 requires a street address while item 3 requires a lot on plan description. In item 3 the following description was given[18]:

“Lot 8 on SP 165118, easement C in SP 165118 and road as per metes and bounds description attached.”

The metes and bounds description was duly attached.[19] That land constituted part of Lagoon Street and Bowser Parade proposed to be amalgamated with the Drill Hall site (the metes and bounds land).

[18]Ex 1 vol 1 tab 1.

[19]See pg 30.

The applicant contends that the description of the land ought to have included other land and, in particular:

(a) the public carpark to the immediate north.

(b) the access strip from Lagoon Street to the underground carpark, through the public carpark

(c) an area of the public carpark which would provide flood protection for the site

(d) part of Old Lagoon Street, adjacent to the north western frontage, where “stairs to the basement” and a market square extend beyond the area described in the application; and

(e) Other parts of Bowser Parade where shop / building awnings would extend over the footpath, beyond the boundary of the land described in the application.

The applicant’s pleading also alleged that New Lagoon Street ought to have been included, but that contention was abandoned.[20] Similarly, the applicant (correctly) abandoned the contention that the land ought to have been described by reference to certain lot on plan descriptions set out in sub-paragraphs 14(i) and (ii) of the pleading.[21]

[20]Para 2 of the applicant’s further submissions.

[21]T 10-6 T 10-8.

In contending that the description of the land ought to have included other land, Counsel for the applicant relied upon Edwards v Douglas Shire Council & Ors[22] in which Robin QC DCJ said:

“Reading s 3.2.1 as a whole, in my opinion, the “land” referred to which must be accurately described and also the subject of appropriate written consent from the owner is not limited to the applicant’s land, but includes any other land affected by a “development application” or to which the development application relates.”

[22][2000] QPELR 375.

Reliance was placed on what is commonly referred to as the “Pioneer principle”, after the well-known decision of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors[23]. That case concerned whether an application for town planning consent for a quarry needed to include, in the description of the land to which “the application relates or applies”[24], land in private ownership which would be used for access by quarry vehicles. In holding that it did, Stephen J said that, where land is proposed to be used for the one purpose at the one time, consent for that use must be applied for in the one application[25] and the identification of the land to which the application relates or applies will be dictated by the extent of the active integer ie the use.[26]
[23](1980) 145 CLR 485.
[24]That being the description in s 22(1A)(a) of the City of Brisbane Town Planning Act.
[25]At 505.
[26]At 501.

There are a number of matters to bear in mind, in relation to Pioneer, including:

(a) the requirements for a development application and the consequences of non-compliance with those requirements is subject to the terms of the applicable legislation. It is the terms of the IPA which are the source of what is now required in relation to a development application.

(b) Pioneer was concerned with the competency of an application for a particular use and, in that regard, the identification of the land to which that use would relate or apply. It does not require an applicant to apply, at the one time, for all approvals which might be necessary to facilitate a proposal. For example, an applicant under the IPA will not uncommonly apply for approval for development, being a material change of use, in advance of applying for approval for other development, being operational works. Similarly it does not require an applicant for approval for a particular use to apply, at the same time, for other separate and distinct uses which might be contemplated in the future[27], or for future stages of an intended development. It is concerned with whether an application for a particular use is relevantly self contained or impermissibly piecemeal.
[27]Brisbane City Council v Cunningham (2001) 145 LGERA 326.

(c) The question is what land is to be put to the use applied for. It is not whether the use would have some nexus with or impact upon or provide some benefit to or derive advantage from, some other land. So, for example, in Pioneer there was no defect in the application arising from a failure to include, in the application, a buffer area which was required as a condition of approval[28]. Pioneer is also not authority for the proposition that the land, the subject of an application for a particular use, extends to all land which might be the subject of external works as a consequence of the use, approval for which is sought.

(d) Pioneer concerned the use of a private access over private land, for a particular purpose. It is not authority for the proposition that the use of land which is a public road, by those making their way to or from the use, means that the road is part of the use.

[28]At 509.

What then does the IPA require? Section 3.2.1 contains requirements for applications for development approvals. It is the section which provides the context for the application of Pioneer to a development application made under the IPA. What subsection 3.2.1(2)(a)[29] requires is an accurate description of the land the subject of the application. Pursuant to s 3.2.1 applications are made with respect to assessable development and, in this case, for building work and the start of a new use. Consistently with Pioneer, the land the subject of the application is the land the subject of the assessable development for which approval is sought by the application – in this case the land the subject of the proposed building work and the new use for which approval was sought. The IPA does not require the application to include all land which, although not part of the assessable development for which approval is sought would, in some way, have a nexus with, or be affected in some way by, the development, or be the subject of external works as a consequence of the development.
[29]Read with s 1.3.8(j).

Counsel for the applicant also pointed to s 3.2.1(10)(a), which refers to the written consent of the owner to any land “to which the application applies”. Consistently with Pioneer, the application “applies” to the land as described above. I note, in any event, that the requirement for the owner’s consent is, in this case, displaced by sub-section (5), because the development involves a State resource (a local government road). The issue as to whether sub-section 5 has been satisfied is dealt with later.

(A) The Public Carpark

There is a public carpark to the immediate north of the subject site. The metes and bounds land in the application extends, to a relatively modest extent, into the public carpark.[30] The conditions of the MCU approval require external works to be carried out in that carpark. Those works will include altering the surface level, line marking and landscaping.
[30]See ex 3 pg 86.

Neither the Council nor the third respondent contends that the application or approval for the MCU (including building work) extended to the public carpark, beyond the metes and bounds land, or the “access strip” through it. The approved plans bear a red cross over the carpark with the handwritten words “not part of this approval”.[31] It was contended, for the first and second respondents, that there was no need to include that land in the application or approval.
[31]Ex 1 vol 2 tab 25 – last two plans.

The application contemplates that this area will be used as a public carpark, rather than as part of the use (or the subject of building work) for which approval was sought. So much is apparent from the town planning[32] and traffic reports which accompanied the application and from the proposal plans (which identified the area as a public carpark).
[32]Eg Ex 1 vol 1 tab 2 pg 8 where it is said “The proposal does not seek approvals in the public carpark area”.

The public carpark is a public road and will be used, consistently with its dedication, as such. It will be available for use by any member of the public, just as is the case for the substantial area of public carparking which otherwise exists on the western side of Brighton Road and which, as the Local Plan acknowledges,[33] provides for the parking needs of the Sandgate Town Centre and the Einbunpin Lagoon Reserve generally. No doubt some, and perhaps many, of those using the public carpark will shop at the third respondent’s shopping centre, which will relieve some of the demand for onsite carparking spaces. That is not surprising in the context of Sandgate, which has a significant reliance on public carparking spaces, rather than on site provision by individual developments.
[33]See s 3.3 of the local plan.

The nexus between the public carpark and the development is reflected in condition 33 of the approval, which requires the developer, as part of the external works, to construct the adjacent public carpark, generally in accordance with certain engineering plans. By virtue of condition 10, the cost of construction of the improvements to the adjoining carpark are to be offset, to an agreed amount, against the infrastructure contributions otherwise required. That does not, however, lead to the conclusion that the development for which approval was sought would itself extend to the public carpark, beyond the metes and bounds land.

It is by no means uncommon for the parking demand associated with a particular development to be satisfied, at least in part, by adjacent or nearby public carparking facilities, as is already the case in Sandgate. It is also common for a developer to be required to undertake work, external to the site, in an adjoining road, or to provide a monetary contribution towards such works. That the construction of a new shopping centre may have a sufficient nexus to justify a condition requiring external works does not lead to the conclusion that the land on which the works are to be carried out is the subject of the material change of use or building work for which approval is sought.[34] The application was not required to include that land.

(B) The Access Strip

[34]See also Stradbroke Island Management Organisation & Ors v Redland Shire Council & Ors [2002] QPELR 121.

It was contended that the description of the land ought to have at least included the “access strip”, which would provide a means of access between the carriageway of Lagoon Street and the ramp to/from the basement carpark of the shopping centre.

The “access strip” is part of the land dedicated as a road for public use. The access will be used by members of the public parking their vehicles in the public carpark. It will be available for that use to any member of the public who is visiting any part of the Sandgate Town Centre. It will also be used by those driving to/from the basement carpark of the shopping centre, an entrance to which is adjacent to the public carpark. In doing so however, they will be exercising their rights, as any member of the public, to drive over that land, just as they also will have exercised the rights available to any member of the public in driving along the carriageway of Lagoon Street itself. That does not mean that any of the carriageway of Lagoon Street, the public carpark or the accessway became part of the use for which approval was sought. It did not.

It was further submitted that the application ought to have extended at least to that part of the public carpark which will be the subject of flood immunity works.

The outlet pipe drainage from Einbunpin Lagoon is inadequate, which results in relatively frequent overtopping events.[35] Part of the carpark will be constructed to a finished level which provides flood protection for the subject site. The hydraulic engineers (Dr Johnson and Mr Collins) agree that provision of a “bund”, to level a 3.3 m AHD would protect the basement carpark from flooding and is good design practice[36]. What is proposed is not a separate “bund”, as one might ordinarily describe it. What is intended is that, in the course of the carpark improvement works, the surface level of the carpark will, at some locations, be raised to RL 3.3.[37] The pre-existing (pre-development) levels of the public carpark area vary from 2.85 m to 3.25 m AHD. The engineers agree that, from an engineering perspective, the differences in level between the pre- and post-development conditions is not major[38]. That is, during the construction of the public carpark, the surface levels will be altered, to a minor extent, in a way which will afford flood protection for the subject site, in accordance with good design practice.
[35]Ex 41 para 1.
[36]Ex 41 para 4.
[37]See spot levels on plan B0730-02 – Ex 1 vol 2 tab 21.
[38]Ex 41 para 6.

That does not mean that the relevant part of the public carpark ought to have been included in the description of the land the subject of the MCU application. That application sought approval for particular kinds of assessable development, relevantly a material change of use and building work[39]. The land to the immediate north of the subject site is a dedicated road, which is to be the subject of operational works[40] in a public carpark which will thereafter be used consistently with its dedication. That the works will be carried out in such a way as to afford flood protection to adjoining land does not mean that part of the public carpark becomes part of whatever use occurs on the adjacent land. It will not be part of the particular development for which approval was sought and granted, even though there may be a sufficient nexus to justify the imposition of an external works condition. If those operational works were assessable (rather than exempt) development, then another development approval may be required, but that would not mean that the MCU approval was invalid.

(D) Other parts of Bowser Parade and Lagoon Street

[39]See amended acknowledgement notice – Ex 1 vol 2 tab 5 – the reference to reconfiguration of a lot is not presently relevant.

[40]See IPA s 1.3.2.

The applicant also contended that parts of the shopping centre, as approved, would extend beyond the boundary of the site, as described in the development application. That was said to be so at the eastern and north western ends of the building.[41]
[41]The allegation that the northern walkway also extended beyond the metes and bounds land was abandoned.

The surface of the land between the edge of the shopping centre adjacent to the north-west facing wall and the kerb of Lagoon Street is proposed to be treated. That is a footpath area. Mr Venn suggested that it straddles the boundary of the site as described. It should be noted, as the third respondent pointed out, that the treatment is similar to that shown elsewhere, in respect of which no such point is taken. The construction of improvements of footpaths, external to the site, is something commonly required of developers for commercial developments. It is simply part of external works.

There are however, parts of the shopping centre, as approved, which do extend beyond the boundary of the site, as described in the application. In particular, there are stairs and an awning which protrude beyond the north western boundary and awnings, which extend beyond the Bowser Parade boundary.

As the third respondent pointed out, it was abundantly apparent from the application, viewed as whole, that approval was sought for the whole of the shopping centre. Part of that development, as applied for, would extend beyond the site as described in Part A of Form 1. The description in the approved form ought to have included some additional land. A failure to do so meant that the mandatory requirements part of the approved form was not correctly completed. That is not however, necessarily fatal.

The consequence of incorrectly completing the mandatory requirements part of the approved form is that the application was not a “properly made application” pursuant to s 3.2.1(7). Accordingly, the Council, as assessment manager, had the option of refusing to receive it.[42] By virtue of sub-section (9) however, the application was taken to be a properly made application once it was received and, after consideration, accepted by the Council. The operation of subsection (9) does not depend upon the Council adverting to each respect in which an application may arguably not be a properly made application.[43] The development approval is not invalidated by the applicant’s failure to have properly completed the mandatory requirements part of the approved form.
[42]Section 3.2.1(8).
[43]Stockland v Thuringowa City Council & Anor (2007) 157 LGERA 49 at 71.

It should be noted, in relation to discretionary considerations, that any mis-description does not appear to have had any adverse effect upon any person. The Council does not appear to have been misled as to what it was asked to approve. Because the application was subject to code assessment, no issue arises with respect to misleading public notification.

(E) Misdescription of Approval

Some point was made about the fact that the negotiated decision notice for the MCU approval did not, in recording the real property description, include the metes and bounds land. That was an obvious mistake. The approval, construed as whole, evidently extended to that land. The covering letter to the same negotiated decision notice stated the address of the site as including part of Lagoon Street. The conditions of the approval required the development to be carried out generally in accordance with the approved drawings and / or documents. Reference to those plans reveals that the scope of the approval related to the whole of the shopping centre, but excluded the public carpark, the subject of external works. The misdescription does not invalidate the decision notice, nor constrict its operation to only that part of the development which is to occur on lot 8 on SP165118 and easement C.

Resource Allocation / Entitlement

It was also contended, on behalf of the applicant, that the application was not properly made, and could not have been taken to be properly made, because it did not contain evidence required by s 3.2.1(5) which provides:

(5)“To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development –
(a)evidence of an allocation of, or an entitlement to, the resource;
(b)evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;
(c)evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.”

Pursuant to s 12 and Schedule 10 of the Integrated Planning Regulation, land that is a road (other than a state controlled road) is a State resource administered by the Department which administers the Land Act. The required evidence is evidence that the chief executive of that department is satisfied that the development is consistent with an allocation of, or an entitlement to, the resource or that the application may proceed in the absence of an allocation or entitlement.

The MCU application did contain a copy of a letter dated 13 March 2007, from the Chief Executive’s delegate, evidencing satisfaction that the development is consistent with an allocation of, or an entitlement to, the resource. That letter, on its face, related to a development application for a proposed development on land described as lot 8 on RP 126505 and part of Lagoon Street and Bowser Parade, Sandgate. That description is broad enough to encompass all of the land to which the shopping centre proposal extends.

It was pointed out, on behalf of the applicant, that the latter was responsive to an earlier request in which it was said “we require an owners consent letter from DNR as over the portion of road reserve (as marked in Drawing number 06/PS7671/18B being 1720 sq. mtrs.) to accompany our application.” The nominated plan, a copy of which was attached, showed the 1720m² area of road to be closed which was ultimately described by a metes and bounds description in the application. It was submitted that, even though the request also included a copy of the plan of the development for the shopping centre, the subsequent letter of 13 March 2007 should be interpreted as only referring to the metes and bounds land. I accept that is so.

In addition to the letter of 13 March 2007, the chief executive had published a “general authority” to support applications for a particular type of development. Such authorities are recognised by s 12 of the Integrated Planning Regulation. The relevant general authority authorises uses which are:

“… Traditionally associated with the use of a road –
·For road purposes;
·a use consistent with a road; or
·a use which may be regulated by a local government under a local law; or
·a shop/building awning: -

-providing a public service only i.e. not used for commercial benefit; and
-constructed and maintained in accordance with local government requirements, but excluding a hotel veranda, a balcony or part of a roof, a façade or architectural designs.”

Footnotes to the general authority provide that development for “road purposes” includes development for streetscape, kerb and channelling and public infrastructure. Development which is “consistent with a road” includes crossovers/driveways for access across a road to adjoining land. Uses which may be regulated by local law include advertising signs. It also provides that uses traditionally associated with a use of a road include a shop/building awning providing the public with protection from the elements.

I have already concluded that the land the subject of the development for which approval was sought in the MCU application did not extend to the public carpark. Had it done so, then the general authority would apply, because that area is to be used for road purposes or, at the least, for a use consistent with a road.

I have also concluded that the area of the proposed footpath treatment, external to the site, is not required to be included in the application. If it did, the general authority would apply, since the treatment is for road purposes or at least is consistent with a road.

The parts of the development which intrude into Bowser Parade beyond the metes and bounds land comprise awnings which provide those using the footpath with protection from the elements.[44] They would appear to be consistent with a road (ie, consistent with the use of part of the road for a footpath) and to fit within the description of a shop/building awning. The same may be said of the awning on the north western façade.
[44]Mr Venn thought that there was a greater intrusion into Bowser Parade and also that the northern walkway intruded into old Lagoon Street. Ex 24 shows that is not so, at least in relation to the construction drawings. The applicant’s further submissions (paras 6, 7) concede that this should be approached on the basis that the working plans are not inconsistent with the approved plans in this respect.

The applicant pointed to the intention for there to be advertising portals on the awnings which face Bowser Parade.[45] It was submitted that this meant that the awnings did not provide a “public service only”, but were to be used for “commercial benefit”. It is unlikely that the reference to “commercial benefit” was intended to exclude signs advertising the tenancies within the centre. It is common for shop / building awnings over footpaths to bear a sign relating to the business carried on in the shop / building. That is so in Sandgate, as the photos in Mr Chenoweth’s report illustrate[46]. The presence of such signs does not make the awnings to which they are attached inconsistent with the use of the road or, more particularly, the footpath.[47] Mr Morzone pointed out that the gables over the signage portals are supported by posts, but that too, is not uncommon.
[45]That does not appear to apply to the awning on the north western façade, although a Woolworths sign is shown on the gable.
[46]Ex 11 – see eg plate 5.
[47]I note that the general authority also extends to a use which may be regulated by a local government under a local law, and the footnotes expressly contemplate advertising signs other than free standing (fixed) signs.

The express exclusions in the general authority include a balcony or a hotel verandah. While providing protection from the elements for those underneath, such things also provide an area which can be actively used. The awnings here are not of that kind. The exclusions also extend to a “roof, façade or architectural designs”. Part of the awnings extend from an entrance tower at the front of the shopping centre, but the tower itself is within the area covered by the specific authority of 13 March 2007.

While cross-over/driveways for access are specifically referred to in the general authority, stairs providing access from a basement to the footpath do not form part of the non-exhaustive list of examples of uses traditionally associated with the use of a road. While the evidence does not establish that such stairs would cause any difficulty for the use of this particular footpath, it is more difficult to regard this feature as falling within the scope of the general authority.

The consequence of an application not being supported by evidence required under s 3.2.1(5) is that it is not a properly made application, in accordance with sub-section (7) and the assessment manager may refuse to accept it. While sub-section (9) ordinarily deems an application to have been properly made once it is received and, after consideration, accepted, sub-section (10) provides that sub-section (9) does not apply “unless the application contains any evidence required under sub-section (5).” To the extent that the development extended beyond that to which the resource entitlement of 13 March 2007 applied, the application was not a properly made application and could not be taken to be one.

In this case the application was not properly made even if the general authority would otherwise have applied, because the application was not supported by evidence of that general authority[48] and did not “contain” such evidence.[49] In that regard, subsection 12(4) of the Integrated Planning Regulation provides that:

“If the evidence required to support an application is a general authority, a copy of the general authority must be attached to the application.”

While the general authority had been published, it was not, in this case, attached to the application, nor did the application otherwise contain evidence of that general authority.

[48]See s 3.2.1(7)(e).

[49]Section 3.2.1(10).

The applicant relied upon Chang & Anor v Laidley Shire Council[50] and Gold Coast City Council v Fawkes Pty Ltd[51] in support of the proposition that an application which cannot be taken to be a properly made application, is invalid and cannot support an approval. The third respondent relied on the earlier Court of Appeal decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council[52] to contend to the contrary.
[50][2006] 146 LGERA 283.
[51][2007] 156 LGERA 322.
[52][2003] 2 Qd R 539.

Oakden Investments Pty Ltd v Pine Rivers Shire Council concerned a submitter appeal against an approval of an application for a development permit for a material change of use. One of the grounds of the appeal was that the development application was not properly made, because access to the land was proposed to be obtained through the appellant’s land, and the appellant’s written consent had not been obtained. At first instance, the court proceeded on the basis that it could exercise the excusal powers, then contained in s 4.1.53 of the Act, in the event that the development application was deficient. Mullins J (with whom McPherson and Jerrard JJA agreed) said, at p 542:

“Sub-section (9) of s 3.2.1 does not prevent receipt of an application which is not a properly made application, and does not prevent acceptance of an application. Sub-section (9) strikes down the operative portion of sub-section (8) of s 3.2.1, thereby preventing the deeming of an application as a properly made application in circumstances where the written consent of the owner of any land to which the application applies does not form part of that application.
There is no prohibition in s 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application under sub-section (8) of s 3.2.1.”

Chang v Laidley Shire Council concerned an application for approval for a reconfiguration (sub-division). The application purported to be a development application (superseded planning scheme). The Council declined to accept it. As Keane JA observed:[53]

“the Council was taking the position that the application was not one which engaged the Council’s functions of assessment at all because it was not a “properly made application”. On that basis, the Council refused to receive the application.”

[53]At 292.

The case also proceeded on the basis that it was common ground that subsection 5.4.2(b) of the IPA, in speaking of a development application (superseded planning scheme), was taken to refer to a properly made application.[54]
[54]At p 295.

Keane JA said, at para [44] that:

“If the application is not a “properly made application”, or deemed to be a “properly made application”, the assessment process cannot proceed.”

In this regard, his Honour noted that the provisions of s 3.2.3, concerning an acknowledgement notice, refer to a certain period after the receipt of a properly made application. In the context of a development application (superseded planning scheme), the acknowledgement notice stage is important because, as Keane JA observed, it is the stage at which the Council is required to elect whether to assess the application under the existing planning scheme or the superseded planning scheme. His Honour went on, at para 77, to observe that the excusal provisions, (now contained in s 4.1.5A) do not assist because:

“The general provisions of s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and s 3.2.1(10)(b), which are directly concerned to ensure that an application for a development permit for a development which is contrary to the DRP should not even be received by the assessment manager.”

The reasons do not refer to Oakden Investments Pty Ltd v Pine Rivers Shire Council.

Gold Coast City Council v Fawkes Pty Ltd & Anors concerned an applicant appeal against the Council’s failure to decide an application for a development permit. The Council contended that the application was not a properly made application. The judge at first instance purported to exercise the excusal powers, in respect of areas of non-compliance, which related to a failure to include an accurate description of the land and the written consent of the owner.

The Court of Appeal was referred to each of the earlier decisions of Oakden Investments Pty Ltd v Pine Rivers Shire Council and Chang v Laidley Shire Council. Jerrard JA distinguished Chang v Laidley Shire Council, but he was in dissent.

Holmes JA, who agreed with the Chief Justice’s reasons, added[55]:

“The reasoning in Chang v Laidley Shire Council as to the unavailability of the discretion provision (whether it be s 4.1.53 or 4.1.5A) to overcome the effect of specific provisions seems to me equally relevant here. Section 3.2.1(9) of the legislation manifests a legislative intent that without the written consent of the owner of any land to which it applies, the application cannot be deemed properly made. That want of consent cannot be overcome by an exercise of discretion under s 4.1.53 or s 4.1.5A, as the case might be, so as to make the redeeming effect of s 3.2.1(9) available.”

[55]At 335.

The Chief Justice distinguished Oakden Invesments Pty Ltd v Pine Rivers Shire Council as follows[56]:

“As to the earlier decision of Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539, the tension between the applicable general discretionary provision on the one hand, and the other provisions dealing specifically with the treatment of the application, was apparently not raised. Further, that Council had not refused to receive the application: its assessment manager elected to receive and accept an application which was not “properly made”. I would not regard Oakden as determining the outcome of this case.”

[56]At 326.

The Court of Appeal did not, either in Chang v Laidley Shire Council or in Gold Coast City Council v FawkesPty Ltd, expressly overrule the earlier decision in Oakden Investments Pty Ltdv Pine Rivers Shire Council. Each of those later cases was concerned with a situation in which the Council had refused to deal with an application which was not a properly made application. The subject facts are more similar to those which applied in Oakden, where the Council had given an approval, notwithstanding that the application was not properly made.

It is arguable that the passage in Oakden Investments where it was said that “there is no prohibition in s 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application …” still represents the law, in circumstances such as these. It is difficult however, to reconcile that with the reasoning in the later cases. If it is right to say, as Keane JA did in Chang v Laidley Shire Council, that subsections 3.2.1(7)(f) and 3.2.1(10)(b) applied “to prevent the assessment by the local authority of such an application”[57] and that the assessment process “cannot proceed” in respect of an application which is not a properly made application or one which is deemed to be properly made[58], then it is difficult to see why a different conclusion should follow in relation to subsections 3.2.1(7)(e) and (10)(a)(ii), even where the Council has purported to accept and deal with an application.
[57]Para 75.
[58]Par 44.

Similarly, if, in relation to a case to which subsection (10)(a)(i) applies it is correct to say, as was held in Gold Coast City Council v Fawkes, that no valid acknowledgment notice could be given and that, as Holmes JA said, “without a valid acknowledgment notice, the assessment process could go no further”, then it is difficult to see why the same conclusion would not apply with respect to an application to which subsections 3.2.1(7)(e) and (10)(a)(ii) apply, even where the council has purported to accept and deal with an application.

In short, if it is right to say that the legislative intention is not to permit the assessment process to proceed with respect to an application which does not contain the written consent of the owner or would be contrary to a State planning regulatory provision, then the same conclusion would seem to follow in relation to applications which do not contain the evidence required by sub-section (5). It would also appear to follow that the legislative intention extends to applications which are purportedly accepted and decided by the council. In light of the more recent decisions, an application which is not properly made, or which is not deemed to be properly made, should be regarded as incapable of supporting a valid approval.

There is, however, in proceedings of this kind, a residual discretion as to whether to grant the relief sought. In that regard, it is relevant to note that the person charged with the responsibility for granting or withholding resource entitlements or authorising applications to proceed without them, is the chief executive of the Department administering the Land Act. That Department was provided with a plan of the proposal, as part of the request for the resource entitlement/allocation. Even construing the letter of 13 March 2007 as only relating to the land within the metes and bounds description, it is evident that no point or objection was taken to the proposal otherwise and no proceedings have been commenced by the chief executive challenging the approval, or the construction of the development pursuant to that approval.

To the extent that the development extended beyond the metes and bounds land by reason of shop / building awnings which provide the public with protection from the elements, those parts of the development fell within, or were, at the very least, akin to, things covered by a general authority, which was current, although no copy thereof was attached to the application. While the stairs at the north western part of the development also extended beyond the boundary of the metes and bounds land, stairs at that location are not a feature of the plans approved by the Building permit, pursuant to which the construction is actually occurring.[59]

(b)Was the MCU Application Impact Assessable

[59]The stairs in the plans approved by the Building permit are within the metes and bounds land at the western end of the northern boundary.

The applicant contends that the application was impact assessable because it:

(a)involved building work on the site of a heritage place, namely Einbunpin Lagoon[60];
[60]A similar allegation was pleaded in relation to the Post Office but (rightly) abandoned – see para 12 of the applicant’s further submissions.

(b)did not comply with the acceptable solution in the Centre Design code for gross floor area.

Heritage Place

Building work on the site of a heritage place is impact assessable development within multi-purpose centres. The level of assessment table identifies the Heritage Place Code as an applicable code and also provides that “this code contains full details of when development is impact assessable”. The Heritage Place Code, in turn, provides that building work on the site of a heritage place is subject to impact assessment where it involves, amongst other things, assessable building work comprising “erecting a new or separate building on a heritage place site. …”[61] That potentially catches the shopping centre building.
[61]See City Plan, ch 5, p 8, cl 1.2.

The level of assessment table also provides that operational work on the site of a heritage place is impact assessable, but the Heritage Place code states that such development is only impact assessable where it comprises, relevantly, alterations to a heritage place (unless considered to be code assessable). Insofar as the Lagoon Street diversion and improvements in the public carpark are concerned, however:

(a) the Lagoon Street diversion was exempt development in any event

(b) The applicant’s contention that the public carpark is part of the material change of use for the shopping centre, is irrelevant to a provision which relates to operational work.

(c) The operational work might be on the site of the heritage place constituted by Einbunpin Lagoon (an issue discussed below) but is not alterations “to” the lagoon.

A heritage place is defined, in City Plan, as, relevantly, “a premises identified in the Heritage Register of the Heritage Register Planning Scheme Policy”. There is no express definition of the “site” of a heritage place or of a “heritage place site”.

When the application was made, Schedule 1 of the Heritage Register Planning Scheme Policy provided, in part, as follows:

Heritage Place Address Lot Plan Date of Entry

Einbunpin Lagoon 70 Brighton Road Sandgate 241 and 293 SL 8164 1 January 2004

The lot on plan description was subsequently altered to delete reference to Lot 241 on SL 8164. Lot 293 on SL 8164 is now an outdated real property description, although it remains the description on the face of the Register.

The land described in the lot on plan description in Schedule 1 of the policy includes the lagoon, parkland areas around the lagoon and public carparking areas, including the area where New Lagoon Street is now constructed. The proposed new shopping centre building encroaches, to a relatively modest extent, into that part of what was the southern extremity of the carpark on lot 293 on SL 8164. The argument was whether the “site” of the heritage place should be regarded as the whole of the land which was included within the lot on plan description in the Schedule to the policy (as the applicant contends), or only a smaller area which could, as a matter of fact, be identified as the site of the lagoon (as the first and third respondents contend).

A heritage place does not necessarily extend to everything within land described by way of a lot on plan description. It has already been noted that a heritage place, as defined, relates to “premises”. Premises, in turn, means a building or structure or land.[62] The identification of a heritage place involves the identification of the building or structure or the land which constitutes the place. As Robin QC DCJ concluded in Calvisi v Brisbane City Council [2008] QPEC 45, an examination of the Register in the Schedule to the Policy suggests that it is that which is described in the left hand column of the register which constitutes the heritage place. That is consistent with the heading to that column. As counsel for the third respondent pointed out, there are sometimes multiple entries in the Register which relate to different heritage places at the same address or within the same lot. For example, Lot 5 on SP 128808 at 413 Ipswich Road Annerley contains both a train substation and a fig tree, which are separately entered on the Register. Similarly, there are separate entries for the Brisbane General Post Office and the Queensland Postal Honour Board for WW1 (within the GPO building), both of which are described by the same address and lot on plan description. There are listings which obviously relate to a particular feature, within a broader area such as the “Bus Shelter” at Stuartholme, which is described as having an address at “Stuartholme Road Bardon” and a lot on plan description as “Road Reserve”. Similarly, there is an entry for the retaining walls with the road reserve at William Street in the city.
[62]See Schedule 10 of IPA.

The land described in the subject entry included at least three identifiable elements namely the lagoon, an area of parkland around the lagoon and an area of carparking used by those visiting the Sandgate Town Centre and the lagoon reserve more generally. The carparking areas are plainly of a different character to the lagoon and its immediate surrounds and were identified in the conservation study, which preceded the listing, as having a compromising effect on the lagoon. In that regard the study said:

“Now only approximately a quarter of its earlier size, Einbunpin Lagoon has been diminished by encroaching urban fabric, particularly of the expanding carparking areas which compromise the lagoon and are a blight in the streetscape.”

The evidence of Mr Gall was that:

“The public carparks, particularly to the south east of the lagoon, have low archaeological potential and no recognised cultural heritage value. The boundary of the Einbunpin Lagoon should reflect the area of the lagoon and associated parkland only.”

Mr Gall conceded, in cross-examination, that he is not an expert on aboriginal cultural matters, but the conservation study does not suggest that such matters were influential in the listing of the lagoon as a heritage place.

City Plan requires impact assessment of certain development on the “site of a heritage place”. It was submitted, on behalf of the applicant, that even if the whole of the land included in Lot 293 on SL8164 is not itself a heritage place, then it at least constitutes the “site” of the heritage place. The identification of the “site” of a heritage place was not the issue discussed by Robin QC DCJ in Calvisi (at para [32]). His Honour was instead concerned with acceptable solutions in the New Farm and Teneriffe Hill Local Plan Code which applied to proposals which include “removal or demolition of a heritage place”. His Honour concluded that, subject to certain exceptions, a “site” is not to be regarded as a “heritage place”. The issue in this case is what the City Plan means in referring to the site of a heritage place.

The expressions “site of a heritage place” or “heritage place site” are not expressly defined in City Plan. The identification of a “site” of something usually involves a factual determination in each case.[63]
[63]DEM (Aust) v Pittwater Council (2004) 138 LGERA 114 at 118.

The lagoon once formed part of a park and recreation reserve, which included the carpark area. In April 2003, the Council requested the carparking area to be excised from the reserve, on the basis that it supported the shops in the town centre and was inconsistent with the reserve’s purpose of park and recreation. On 2 September 2003 the Council resolved to include additional sites on the Heritage Register, including Einbumpin Lagoon. In October 2005 plan SP 159020 was registered. It cancelled lot 293 on plan SL 8164 and created lot 293 on SP 159020. The carparking areas were excised from the park and recreation reserve. The lot on plan description in the Register became outdated. The parking areas were opened as a road. In November 2005 they were included in a Multi-Purpose Centre Area under City Plan. On 1 January 2008 the entry for Einbunpin Lagoon in the Heritage Register was amended by deleting a reference to Lot 241 on SL8164. This was done on the basis that Lot 241 was incorrectly entered.[64] There was however, no correction to the reference to Lot 293 at that time.
[64]See affidavit of Caldwell pg 70.

When the entry was made in the Heritage Register, the land within Lot 293 on SL 8164 was located north of Lagoon Street. By the time the development application was made, Lagoon Street had been diverted to the north, as contemplated by the local plan.[65] Consequently, that part of what was previously lot 293 on SL 8164 and which was included in the site for the development application was, by the time the application was made, separated from the lagoon by the carriageway of Lagoon Street. It is difficult to see why one would, as at the time the application was made, find, as a matter of fact, that any part of the subject site remained within the site of the Lagoon from which it had become physically separated.
[65]As has already been noted, City Plan otherwise (through the local plan) expressly contemplated the diversion of Lagoon Street and the amalgamation of part of the road with the former Drill Hall site, to form the site for a shopping centre. That amalgamation has subsequently occurred.

On 9 September 2008 the Council resolved to propose to amend the lot on plan description in the policy, by replacing the now outdated reference to lot 293 on SL 8164 with the current lot on plan description of lot 293 on SP 159020, which contains the lagoon as associated parkland, but not the carparking areas.

It was submitted for the applicant, however, that the lot on plan description in the Heritage Register, although outdated, is determinative of the extent of the Heritage Place or the site of the Heritage Place for the purposes of City Plan. There is some support for that proposition in the Heritage Place Code which, on more than one occasion, refers to a site or sites, by reference to the Heritage Register in the policy. Section 1 of the Code refers to:

“inclusion of sites in the Heritage Register”

“a site listed in the Heritage Register”

“the site is not worthy of retention in the Heritage Register”

“remove the site from the Heritage Register”

“The register of heritage place sites … in the Heritage Register planning scheme policy”

If one were to regard the Register as definitive of the site of heritage places, the lot on plan description would be used to identify the limits of the site, although a factual inquiry would still be required in relation to those entries which refer to “part” of a certain lot or lots.

Counsel for the first and third respondents were understandably critical of the drafting of the Code. It was pointed out that, while it described the Heritage Register as a register of “sites”, parts one and two of the policy which contains the Heritage Register states that it is “places and precincts” which are identified in the Register, rather than sites. Similarly the criteria in the policy for entry in the Heritage Register relate to places or precincts. Further, the performance criteria and acceptable solutions in the code appear under the heading “development of or in a heritage place…” The code, in section 1, states that it applies in assessing building work “on a premises that includes a heritage place” but that expression is not carried forward. I was urged not to be distracted from a factual determination of the site of the lagoon.

While it is true that the code exhibits poor drafting, which tends to confuse the concepts of heritage place and the site of a heritage place, such confusion is not confined to the Code. Section 3 of the policy, in describing the process for entry in the Heritage Register, also speaks of “a site listed in the Heritage Register” and the prospect that a report may demonstrate that a “site is not worthy of retention on the Heritage Register”.[66]
[66]I note that the Council resolution which led to the listing of Einbumpin Lagoon, spoke of listing “additional sites”. See affidavit of Caldwell pg 81.

Mr Gibson QC, for the applicant, cautioned against the uncertainty which would follow from an interpretation which required a case by case factual determination of the “site” of a heritage place. He also pointed out that the entry in the Register is consistent with the conservation study which, while being critical of the impact of the carparking areas, described the “extent of significance” of the Einbunpin Lagoon as “whole of site as defined by Real Property description” and the “present use” of that site as “lagoon and carpark”. On the other hand, I note that the “statement of significance” in the conservation study spoke of the lagoon as “a distinctive natural landscape feature” which “has been diminished by and remains threatened by encroaching urban fabric”. I was urged not to pre-empt the outcome of the council’s proposed change to the lot on plan description in the Heritage Register.

The construction issue is not easy to resolve. Ultimately I find it difficult to conclude that, in referring to the site of a Heritage Place, the city plan is not directing attention to the land, described in the Heritage Register, relating to the particular heritage place. There are however, discretionary considerations, which bear on the grant or withholding of relief on this basis. They include:

(i) the limited extent to which the development would intrude into what was once part of Lot 293 on SL8164;

(ii) the limited intrusion would be in an area, the use of which has been recognised as having compromised the lagoon;

(iii) the shopping centre is now separated from the lagoon by Lagoon Street and, as a matter of fact, is not part of the site of the lagoon;

(iv) the local plan, which is part of the same planning scheme which contains the heritage provisions, expressly contemplated the diversion of Lagoon Street and the amalgamation of land, which was once part of Lot 293 on SL8164, with the Drill Hall site, to form the site of a shopping centre; and

(v) the lot on plan description in the Heritage Register is outdated and the council has proposed an amendment to the Heritage Register, to refer to the current lot on plan description which excludes the carpark areas.

In their submissions at the conclusion of the case, counsel for the applicant drew attention to the fact that building work on a lot adjoining a heritage place is code assessable, to suggest that the Heritage code was an applicable code, even if the application were code assessable. As Mr Morzone ultimately conceded however[67], the applicant did not plead a case that the Council’s approval was invalid by reason of having failed to consider that code or on the basis that no reasonable decision maker could have approved the application if that were an applicable code.

GFA
[67]T 11-4.

The development constitutes a centre activity. Unsurprisingly, centre activities are generally either self assessable or code assessable in a multi-purpose (MP3) centre. Where development does not comply with the acceptable solution for gross floor area in the applicable code, however, they are impact assessable.

The applicable maximum gross floor area, specified in the relevant acceptable solution, is 0.75 x the site area. The area of the site, as constituted by the land described in the approved form, is 6,432 m², which gives a maximum gross floor area of 4,824 m². That is, however, an underestimate, because it excludes other parts of Lagoon Street and Bowser Parade into which the development intrudes (discussed earlier). The applicant has not established the maximum gross floor area of the site, because it has not calculated the area of site, beyond that described in the application.

One might expect that the gross floor area of any particular development would be easily determined by a process of measurement. Experience shows that is often not the case. Indeed, in this case, the evidence and argument about gross floor area extended, in aggregate, over some days and resulted in a plethora of different figures being pleaded or suggested. The experts who had been engaged by the respective parties came up with different figures, and the barristers, for each of the parties, contended for different figures again. For the reasons which follow, I have reached yet another conclusion.

None of that is particularly surprising. It is not uncommon for there to be confusion about the correct calculation of gross floor area. The causes of that confusion often include the following.

(i)The expression, although commonly used in planning schemes, has no standard definition. Definitions vary from one planning scheme to another.
(ii)The definition in any particular scheme is not always comprehensively or clearly expressed, leading to uncertainties as to how it should be applied.
(iii)The plans accompanying a development application, for assessment against the planning scheme, are usually not detailed construction drawings. There can be scope for differing interpretations of the plans in relation to matters of relevance to the calculation.
(iv)The measurement and calculation of gross floor area often falls to architects, which can have their own practices in relation to the measurement of GFA.

Those factors appear to have played some role in muddying the waters in this case. There is much to be said for the proposition that terms such as gross floor area, as well as others which are commonly used in planning schemes, should have standard (and carefully drafted) definitions.

The development application and the approved plans described the gross floor area of the development as 4,630 m². It was submitted, for the first and third respondents, that the application and approval could be taken to have applied and received approval for, a building with the nominated GFA, so that the development of anything in excess of that would not invalidate the approval, but simply be beyond what it authorised. The application and approval however, related to a development as proposed in the relevant plans. To the extent the plans clearly show a proposal which is at odds with the GFA calculation (by, for example, showing components which are proposed, but erroneously excluded from the GFA schedule) and in excess of the maximum for code assessable development, then the application ought to have been subject to impact assessment.

By the end of the hearing, the competing calculations of GFA were as follows:

Item	Area	Applicant’s Submission	Applicant’s Expert (Venn)	3^rd Respondent’s Submission	3^rd Respondent’s Expert (Sheehan)
Supermarket
1	Supermarket	3340	3340	3290.1	3290.1
2	Refuse store - loading dock	0	0	0	0
3	Mezzanine	384.3	226.3	209.2	165.4
4, 5	Fire Escapes	0	0	0	0
6	Bin Storage	6.5	6.5	0	0
Ground floor Lettable
7/8	Speciality Shops	1010	1010	999.5	999.5
9	Baker (Licensed Area)	21.2	21.2	0	35.1
10	Kiosk	0	0	0	0
Basement
11	Trolley Store	89	89	0 (or 58.5)	58.5
12	Tenant Store	0	0	0	0
13	Open trolley storage bays	19.4	19.4	0	0
14	Stairs to southern wall	0	0	0	0
15	Stairs to NW corner	4.8	4.8	0	0
16	Cleaner/Change/Store room	21.2	21.2	17.8	17.8
17, 24	Ramps	109.2	109.2	0	0
18	Stairs to/from Carpark-Plaza	6.9	6.9	0	0
19	Foyer to Cleaner room etc	16.1	16.1	0	0
Ground Floor Amenities
20	Toilets	45	45	44.1	44.1
21	Passage	35	35	35	35.0
22	External ramps to northern wall	154	154	0	0
23	Fire escape to SE corner	0	0	0	0
25	Walkway to basement / large tiled podium	89.7	40.5	0	0
26	Stairs in Plaza	27.2	12	0	0
TOTAL (m²)	5379.5	5157.1	4595.7(or 4654.20)	4645.5

As can be seen from that table, the debate descended into a plethora of technical disputes about whether particular parts of the development should be included or excluded for the purposes of GFA. In the end, however, if one ignores a possible inclusion (relating to the mezzanine) arising by reason of a failure to carry forward a relevant note on the approved plan, the GFA is exceeded, on any view, by less than 10%, because of the inclusion, within the count, of areas which are at basement level or components such as ramps, walkways, stairs and plaza areas, external to the supermarket and special shops, which, in the main, are beneficial and do not result in substantially bulkier buildings. This is not, on any view, a case where what is being built is an order of magnitude greater than what the provisions contemplate.

A determination of which, if any, of those calculations is correct turns upon the proper interpretation and application of the definition of gross floor area in the planning scheme, as well as on an interpretation of the plans. It was common ground that the plans of relevance are those which were the subject of the MCU application. It was the approved plans which were the focus of the argument.

City Plan defines gross floor area, relevantly, as follows:

“Gross floor area: the total area of all floor levels in the building on the site to which the development relates, measured to the inside of the external walls, including:
● All internal walls, windows, columns and elevator shafts.
●All internal and external stairs, landings, ramps, escalators or other means of access between levels; but
●excluding the area of:
●Any lift, plant, motor room or air-conditioning or other mechanical/electrical plant and equipment room.
●Any private balcony, where not used as a restaurant, shop, club, hotel or nightclub, whether roofed or not. A balcony includes any outdoor space in or on the building that is a projection from a building, whether or not it is cantilevered or supported partially by posts, braces or columns.
●Any roof deck, where not used as a restaurant, shop, club, hotel or nightclub. A roof deck includes any outdoor space in or on the building that is situated wholly or immediately above an enclosed storey or a storey used for carparking.
●Any lobby at ground storey level.
●…
●Areas used or intended for the parking of motor vehicles, where the parking is incidental to, and necessarily associated with, the use of some premises.
…”

Gross floor area is not a measurement of everything which is on a development site. Primarily, as the expression itself indicates, it is a measure of floor area. The measurement is, under City Plan, to the inside of the external walls. Accordingly, the exercise is primarily one of identifying the building or buildings on site, identifying the external walls of that building or those buildings and then measuring the area of floor levels to the inside of those external walls. The definition in City Plan however, expressly includes “external stairs, landings, ramps, escalators or other means of access between levels”. In context, the “levels” referred to are levels in the building.

The definition also has a number of specified exclusions. Two of those exclusions relate to private balconies or roof decks, where they are not used as a restaurant, shop, club, hotel or nightclub. There is some tension between those exclusions and the definition otherwise, because open balconies (projecting from the external wall of a building) and perhaps[68] open roof decks (located on top of a building) may not fall within the definition of gross floor area otherwise. Further, the meaning given to a balcony includes something “on” the building, whereas the definition of GFA otherwise refers to floor levels “in” a building.
[68]Although it might be that a roof deck which is bounded by the projection of the external walls of a building does fit within the definition otherwise.

Debate ensued as to how that tension should be resolved. Counsel for the applicant relied upon those two exclusions to contend that balconies are otherwise to be counted and to support a more liberal interpretation of the definition otherwise, particularly as to what might be considered to be “in” a building and what would be regarded as an “external wall”. Counsel for the third respondent submitted that the definition otherwise should be given its ordinary meaning and that any tension, created by those two exclusions, should be resolved in the interpretation of the two qualified exclusions, by construing them as if they were implied inclusions of certain roof decks and balconies.

I was referred to the history[69] of definitions of gross floor area in planning schemes in Brisbane. Under the previous town plan, as it existed at the time of Porter v Brisbane City Council,[70] balconies were express inclusions, but were the subject of a qualified exclusion for private balconies. Subsequently, the exclusion for private balconies became unconditional and the express inclusion of “balconies” was removed. The definition in City Plan again qualifies the exclusion of private balconies, but fails to reinsert balconies as an express inclusion otherwise. This might simply be a drafting error.
[69]Planning Schemes of Statutory Instruments.
[70][1994] QPELR 93.

It was also pointed out that previous definitions referred to the sum of the plan areas of all floor levels inclusive of the plan area of “all walls”. The City Plan definition is different, in requiring the measurement to be “to the inside of the external walls”. As Mr Lyons QC submitted, this is a quite specific direction in relation to the mode of measurement, which strongly suggests that, subject to any express inclusions or exclusions, what is to be measured is the floor levels within the building, to the inside of the bounding external walls, rather than the external walls themselves or anything beyond the external walls, as that expression would ordinarily be understood. The construction contended for by Mr Lyons QC ought be accepted.

Mr Lyons QC also pointed out that the express inclusion of “all internal and external stairs, landings, ramps, escalators or other means of access between levels” has its origin in changes that were made to the previous town plan, following this court’s decision in Porter v Brisbane City Council.[71] The inclusion then read “all internal and external stairs, landings, ramps, escalators, or other means of access between levels, at or between each level”. That inclusion appeared within brackets following the words “all floor levels” and before the words “in the building” in the opening paragraph of the definition. That perhaps made it clearer that the inclusion relates to the means of access between levels within the building. City Plan adopts a different format, by listing the inclusions in bullet points after the words “measured to the inside of the external walls” and does not carry forward the words “at or between each level”, but this appears to be more a matter of drafting style than an indication of any intention to include all means of access between points at different heights. All stairs do that. If the “levels” referred to were just any height differential on the site, then stairs in a terraced yard would be part of the GFA of the house or other building on the property. It is unlikely that that was the statutory intention. I accept that the means of access referred to are those which provide a means of access between levels in the building. That is the construction which I would have favoured in any event, on the face of the City Plan definition
[71]Supra.

As to the specific areas of dispute:

Item 1 – Supermarket
The debate relates to whether an area at the entrance of the supermarket qualifies to be excluded by reason of being a “lobby at ground storey level”.
It was submitted, on behalf of the applicant, that the supermarket lobby was not at “ground storey level” for the purposes of City Plan. City Plan defines ground storey as that which is closest to ground level, measured at the face of the front wall of the building. The front wall of the building faces the Bowser Parade frontage. It was submitted that the specialty shops, the floor level of which is close to the existing level in Bowser Parade, are likely to be at ground storey level. It was then submitted that the supermarket, which is one metre higher than the area of the specialty shops, is another storey. This contention first arose in submissions at the end of the hearing.
Ground level is defined by reference to the level of the land at the time of original sub-division, as determined by a licensed cadastral surveyor using best evidence. Such evidence was not called. As Mr Lyons QC rightly pointed out, the onus, in these proceedings, is on the applicant. It is for the applicant to establish its contention that the gross floor area exceeds the specified maximum. It is for the applicant to demonstrate that areas which it says should be included do not fall within one of the specified exclusions.

There was debate as to whether the applicant had unreasonably delayed in commencing these proceedings on 21 July 2008. The applicant was first put on notice that construction was about to commence by a letter dated 4 March 2008. It had however, been well aware of the development proposal for some time. The historical background may be briefly summarised as follows:

(a) In 1999 both the developer and the applicant registered the interest in purchasing the Drill Hall site although the applicant did not proceed to tender for it and the developer was successful. The purchase was completed in June 2000.

(b) By February 2001, Bon Accord was aware of an intention to develop a supermarket, with some speciality stores and carparking, including north of the alignment of Lagoon Street.

(c) From at least 2001 Bon Accord had engaged a traffic consultant to review the proposal.

(d) On 21 May 2001 Bon Accord lodged an objection to the application for closure of part of Lagoon Street. This included an assessment of a proposed development plan.

(e) During 2002 and through to 2004, there were negotiations between Bon Accord and the developer, in relation to the proposed development. Bon Accord prepared two plans showing development that would be acceptable to it. One of those was submitted to the developer.

(f) By letter dated 8 September 2003, Bon Accord detailed its objection to the proposal and provided copies of the letter to, amongst others, the Council and the Department of Natural Resources and Mines.

(g) Since at least January 2004 Bon Accord has searched the Council’s planning records, by personal attendance at Council’s offices and by on-line search, in respect of development applications.

(h) In September 2006, following the realignment of Lagoon Street, Bon Accord lodged a further objection to the partial closure of Lagoon Street.

(i) In November 2007 Bon Accord lodged an objection to the MCU application. The objection attached an “interim report” from Holland Traffic Consulting.

(j) Immediately after receiving the letter of 4 March 2008, advising that works were about to commence, Bon Accord conducted an on-line search of Council’s file, which provided access to the development application and plans.

There was delay in seeking relief in relation to the relocation of Lagoon Street. It was submitted, on behalf of the third respondent, that there was also unreasonable delay prior to commencing the proceedings in relation to the MCU and Building approvals. Bon Accord explains the delay, between March and July of this year, by reference to steps which it took, in that time, to obtain (through FOI applications) and examine copies of relevant documents. The commencement of proceedings was foreshadowed by a letter dated 26 June 2008.

It was pointed out, on behalf of the third respondent, that Bon Accord’s objection of November 2007 included specific grounds about:

(a)         misleading plans.
(b)         inadequacy of parking provisions.
(c)         unacceptable access arrangements.
(d)        inadequate provision for service vehicles; and
(e)         inadequate site layout.

It was submitted that Bon Accord had access to the application and supporting material, for the purposes of formulating its objection, and could have commenced proceedings, or given notice of its intention to do so, prior to completing the FOI process. Whilst there is some scope for that submission, the court should be slow to be critical of Bon Accord, which was not a party to the application, for first wishing to examine and properly consider the material relating to the approval, before commencing proceedings. I do not consider that Bon Accord acted with such unreasonable delay as would have persuaded me to withhold relief on that basis.

An important consideration, in the exercise of the discretion, is that the proceedings challenge a development involving the construction of a new shopping centre which has substantially progressed, at great cost, towards completion. As Kirby P acknowledged in Waringah Shire Council v Sedevcic:

“Where the relief is sought against a “static” development (that is, the erection of a building) which, once having occurred can be only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law. …”

The developer has been working on the proposal since 1999, when it lodged an expression of interest to purchase the Drill Hall Site. It is the only project in which members of the developer have been involved during that period. To date, the project has involved:

(a)         purchasing the Drill Hall Site.
(b)         purchasing part of the adjoining Telstra land.
(c)         purchasing the Australia Post land.
(d)reconfiguration applications to consolidate the Drill Hall site with the Telstra land and the Post Office land.
(e)carrying out the diversion of Lagoon Street.
(f)applying for the closure of part of Lagoon Street and the purchase of that part which was closed (at a cost of $1.46 M).
(g)seeking and obtaining the development approvals which are challenged in these proceedings; and
(h)entering into a building contract with the fourth respondent, for almost $12 M.

Development costs for the project relating to the acquisition of the land for the shopping centre have been approximately $5.5 M. As at 17 September 2008, claims for completed work under the Building Contract had been paid to the value of almost $6 M. The value of contracts entered into by the builder, under the building contract, were estimated to be approximately $8.7 M.[108] Work is ongoing, in the absence of any application for interim orders.
[108]See para 75 of affidavit of Forbes.

Making the declarations and orders sought by the applicant would at least delay the development, causing the developer to incur holding costs of about $200,000 per month[109] without the benefit of offsetting income from the completed development as well as potential costs and claims arising from the suspension of construction. Mr Forbes, the sole director of the developer, deposed that the developer’s ability to continue to meet its obligations is dependent on the shopping centre commencing to trade and earn rental income.[110] Making the orders sought would also imperil the investment which has gone into the construction to date, because while it would be open to a reasonable decision maker to approve the development, in response to a further application, even if subject to impact assessment, the outcome of such an application could never be guaranteed.
[109]See para 75(c) of affidavit of Forbes.
[110]Para 81.

The applicant points out that it does not seek, by these proceedings, to prevent the development of the subject site for a shopping centre but rather “seeks only that the necessary approvals be obtained, albeit that such approvals will require impact assessment of the development application”. The applicant seeks “stop work” orders, but no order requiring demolition is presently sought.

It might be that a further (impact assessable) application would ultimately be approved such that only delay resulted from the making of the orders sought. It is evident however, that the applicant does not wish simply to postpone completion of the development. It is opposed to a shopping centre in the form that is being built. The development would have to be in a significantly different form, in order to satisfy the applicant. Indeed it contends, in these proceedings, that no reasonable decision maker could have approved the development. It is very likely that, if an impact assessable development application were made, the applicant would oppose the application and use that process as a vehicle by which to continue to pursue its opposition.

Bon Accord has shown no lack of resolve in its opposition to the developer’s proposal. As early as 2002, Bon Accord was threatening to do “whatever it takes” to defeat the then version of the plan. This provoked changes, to address Bon Accord’s concerns. Further correspondence, in 2003 however, again foreshadowed court proceedings (referring to the likely outcome of an appeal to this Court) and encouraged the developer to adopt a different proposal. Bon Accord objected to the partial road closure. Subsequently, this year, it commenced proceedings in the Supreme Court for judicial review of the decision to close part of the road and unsuccessfully sought an order under s 29 of the Judicial Review Act, with the intention of preventing anything further happening to effect the closure of the road pending a final hearing.[111] It also challenges the planning approvals in this proceeding. I do not mean to imply any criticism of Bon Accord in this respect. It is perfectly entitled to exercise its rights, but it is unlikely that any further applications would go unchallenged. Bon Accord’s intentions do not appear to be limited to achieving delay.
[111]Bon Accord Pty Ltd v Minister for Natural Resources and Water and anor, McMurdo J, 26 September 2008.

Making declarations and orders to require work to stop and further applications to be made begs the question as to what is to happen if further approvals are not forthcoming. It would be futile to stop construction and require the developer to re-apply for approval if the discretion against granting relief would likely be exercised even if the applicant were ultimately successful in defeating that further development application. In Thorne v Doug Wade Constructions Pty Ltd O’Bryan J said[112]:

“…it would be futile to grant the declaration sought and stand over for the future the question of injunctive relief. The plaintiffs might eventually satisfy an appropriate person that a planning permit cannot or should not be granted. But that might only be achieved after many months’ delay and at great cost. This dispute should be brought to an end as soon as it reasonably can be”

Although that was a case in which mandatory orders for demolition were sought, somewhat similar considerations apply.

[112]At 473.

It was also submitted that the third respondent should not be permitted to rely upon its own conduct, in continuing building work, as affording a discretionary reason for refusing relief. The court was cautioned against effectively giving developers an immunity, so long as they act quickly enough in constructing unlawful development.

The court would, of course, be most unlikely to exercise the discretion in favour of a developer who had carried on an activity, which was clearly and demonstrably contrary to law, or who knowingly or recklessly “jumped the gun” by, for example, proceeding without obtaining any development approval, in circumstances where one was clearly required. Similarly, a developer would obtain no advantage, in terms of the exercise of discretion, where building work was continued and completed simply in order to achieve a fait accompli, for the purpose of strengthening its position in the litigation. That is not however, the case here.

The development which is being carried out is of a nature (ie, a shopping centre) which is expressly contemplated and, indeed, supported by the planning scheme. Further, there is no basis for concluding that the developer, in proceeding with construction, has acted otherwise than in good faith in reliance upon specific approvals, for which it had applied with the assistance of appropriately qualified consultants and which were granted by the appropriate decision makers, whose good faith has not been questioned.

Whilst it is true that construction work has continued in the face of these proceedings, the developer had, by that stage, already committed itself to construction, in accordance with a contract entered into with the fourth respondent. There is no basis to conclude that the works were continued with a view to achieving a “fait accompli”.

Mr Lyons QC, for the third respondent, referred to the decision of the Full Court of the Supreme Court of Victoria in Thorne & Ors v Doug Wade Consultants Pty Ltd (1985) VR 433. That concerned extensions to a terrace house which, it was accepted, resulted in a significant loss of amenity for some of the plaintiffs. The successful plaintiffs sought a declaration that a permit, which was relied upon to construct the additions, was null and void. They also sought a mandatory injunction requiring removal of a least the second storey of the extension. O’Bryan J, at first instance, said, at p 7 at 473:

“In my opinion, in light of the findings I have made, I would never contemplate granting a mandatory injunction against the Wades in relation to the additions and alterations … I am perfectly satisfied that the Wades acted in good faith at all material times and proceeded with the additions and alterations in the reasonable belief that they were legally entitled to do so. The mere fact that the plaintiffs’ contended otherwise and issued a writ does not mean that the Wades acted unwisely or took a calculated risk in refusing to desist from completing the works. The Wades had engaged a reputable, independent contractor … to advise them as to building matters and to apply for all necessary permits. They could not be expected to know that the relevant authority would grant an invalid planning permit.
Whilst it cannot be gainsaid that some of the plaintiffs have suffered substantial detriment as a result of the erection of the two storey structure, and were deprived of the opportunity to object against the grant of the permit, they may well have failed, in any event, to stop the additions, had s 18B been complied with in the first place. The structure may still have been permitted by the responsible authority or by the Planning Appeals Board. Because the Wades were not responsible for the grant of a void permit, in my judgment, it can never be equitable to grant injunctive relief of the kind claimed by the plaintiffs. The Wades might yet persuade the responsible authority to grant a valid permit. …
On the other hand, should they fail to obtain the necessary planning permit to validate the alterations and additions, I would still decline to order the demolition of building works which were approved under relevant building regulations and carried out by the building owners in good faith. It would be most unjust in my opinion to do so.”

In the Full Court, Kaye and Marks JJ, in dismissing the appeal said:

“We do not accept a further complaint made on behalf of the appellants that the learned trial judge failed to give any weight to the consideration that only by granting the relief claimed against the Wades and the City of Melbourne could the wrong done to the plaintiffs and the public interest be acknowledged and remedied. The circumstances that a breach of the town planning statute and detriments to the amenity of the applicants had been proved did not ipso facto compel the making of a declaration of illegality of the permit and enjoinder of the parties by a mandatory injunction to restore the status quo. The learned trial judge’s task involved doing equity between the parties, by making a comparison between the detriment and damage suffered by the appellants, including any harm to the public resulting from an invalid permit and extensions illegally made, with the hardship and damage which would be suffered by the Wades if the declaration and injunctive orders sought were made.”

It was submitted that, in this case, the third respondent is the author of its own misfortune. That is true to an extent, in that the issues arise by reason of alleged defects with its application and the failure of the Council to detect those defects. It is not a case however, of wilful or reckless disobedience with the Act’s requirements.

Declaring the approvals to be invalid and ordering work to stop would have consequences for the community. There would be at least a delay in the provision, to the community, of the facilities which are proposed to be provided, including a modern full line supermarket, at the Sandgate town centre. The existing Woolworths in the town centre is smaller, does not include an in house bakery, and was described by Ms Johnston, the regional property manager for Woolworths, as not a full line supermarket. It is constrained by age and the difficulty in effecting extensions and has an inefficient configuration. Other modern full line supermarkets are in locations distant from the town centre. Further, the site would be, and would, for some extended time, present itself within the amenity of the Sandgate town centre as, an inactive building site for a partially completed development at the gateway of the town centre. That position could subsist for many months indeed, particularly if further applications were impact assessed and the subject of appeals to the court.

These matters must, of course, be balanced with the community interest in the proper application and approval process being followed (including public objection and appeal rights where applications are properly subject to impact assessment).

Third parties would also be affected by the grant of the relief sought. Woolworths, which is to be the anchor tenant, currently operates a smaller, older, supermarket within the town centre from premises which provide 56 on-site carparking spaces. Woolworths has traded at that site since August 1966. Woolworths has been planning to relocate to the subject site since 2001, and does not have continuing security of tenure at its current premises. There is at least the risk that it would have to depart the Sandgate Town Centre pending resumption and completion of development.

In anticipation of commencing business in the subject shopping centre, Woolworths has employed additional staff, which it is training. It has also acquired plant and equipment for the store.

Ms Johnston estimated potential losses, should the supermarket proposal not proceed, at $690,000. It was submitted, on behalf of the applicant, that the estimate should be revised, to an amount of approximately $233,000.00, to reflect the likely financial loss which Woolworths would incur were the date of commencement to be deferred by say, 12 months. That assumes the only consequence of the orders would be a deferral of the opening of the shopping centre when, as has already been noted, it is plain that the applicant’s concern is to defeat the proposal, which it opposes and would presumably seek to oppose, were another application made. In any event, exposing a third party, even one of the size of Woolworths, to losses of in excess of $200,000 is not insignificant.

There was also reference to prospective speciality tenants. In some cases, the matter is still in the negotiation process. Those which have committed have done so in relatively recent times, in knowledge of these proceedings.[113] The extent of any (if any) loss for specialty tenancies has not been established.
[113]See further affidavit of Forbes – Ex 7A.

Any person may bring proceedings of this kind, but it has been acknowledged that a court may be less likely to deny relief which is sought by a Council.[114] That is not the case here. The Council is a respondent to the proceedings and resists the relief sought, although it adopted a neutral position in relation to the exercise of discretion.
[114]See Warringah Shire Council v Sedevcic at 340.

The applicant is the owner of an adjoining shopping centre. It has an obvious commercial interest. No doubt it would regard a differently designed shopping centre proposal, with more carparks and greater focus on the northern and north-western frontages as more advantageous to it. The evidence does not however, permit any specific finding about the extent of any (if any) financial detriment which the applicant would suffer as a result of the development proceeding or, indeed, the extent of relative financial benefit which might accrue from a differently designed centre.

As was observed in Warringah Shire Council v Sedevic (supra), it is relevant to have regard to the extent to which the issues raised are technical. Those which relate to the Wednesbury unreasonableness ground of challenge are substantive, but I am not persuaded that a decision to approve the application, was not reasonably open. The other grounds focussed more on technicality than substantive merit. In that regard:

(i)While the applicant challenges the process whereby the Lagoon Street diversion was carried out, it expressly disavows any contention that the work should be undone.
(ii)While the applicant contends that the work in the public carpark, between New Lagoon Street and the subject site, ought to have been included in the MCU application:
(a)There was and will remain, a public carpark in that area.
(b)The evidence does not establish that there is any undue traffic problem which would be posed by the works in the public carpark (leaving aside the allegation of inadequate carparking on the subject site).
(c)The hydrologists saw merit in constructing part of the carpark to a height which will provide flood protection to the subject site.

(iii)While the shopping centre itself extends somewhat beyond the boundaries of the land, as described in the application:

(a) The Council was not misled as to what it was asked to approve and, since the application was processed as one requiring code assessment, there is no question of misleading public advertisement.

(b) It does so, mainly by reason of awnings which are encouraged by the planning scheme and either fall within, or are akin to, things covered in a general authority which had been issued by the chief executive. The stairs at the north-western frontage are not being constructed.

(c) The relevant department had been provided with a copy of the proposal, before granting its authority, and took no issue with respect to it. The chief executive has not commenced proceedings or otherwise taken issue with the construction of the development, notwithstanding its intrusion, to some degree, into Lagoon Street and Bowser Parade.

(iv)While the building application did not include an authority for the metes and bounds land, such an authority had been granted, with respect to the same land, for the MCU application, and it is most unlikely to have been withdrawn or withheld for the later application. Further, the metes and bounds land has now been amalgamated with the developer’s land, so that no such evidence would be required for that land in any further application.
(v)While the applicant alleges that the proposal exceeded the permitted gross floor area, for a code assessable application:
(a)The calculation of GFA is far from straightforward.

(b)To the extent there is any exceedance, it is to a limited degree and arises from a failure to carry forward a note about the location of the plant room and/or from areas in the basement and the inclusion of things external to the supermarket and specialty shops, such as stairs, ramps, plaza areas and other things which are generally beneficial and which do not result in a substantially bulkier building.

(vi)To the extent that part of the development site fell within the site of the heritage place, being the site of Einbunpin Lagoon:

(i) The shopping centre is substantially outside the land which formerly fell within the lot on plan description which still appears in the Register. The incursion into that area is relatively small.

(ii) It falls, in part, within that “site” only if the real property description in the planning policy is conclusive. It is not, in fact, part of the site of Einbunpin Lagoon. Further the description in the Register is outdated, as the Council seems to have acknowledged by proposing amendments to the policy.

(iii) It lies within what was the carpark area which, as the conservation study acknowledged, detracted from the significance of the lagoon, rather than supported it.

(iv) The local plan specifically envisaged the relocation of Lagoon Street and the inclusion of land, formerly within the lot on plan description in the policy, within the site of a new shopping centre at this location , rather than it remaining as part of the site of Einbunpin Lagoon (if it ever was part of that site).

The case for exercising the discretion in favour of the third respondent is stronger in relation to those grounds acceptance of which would only result in the need for further code assessable applications. There would appear to be little to be gained by forcing the third respondent to make a further application of that kind for the same proposal, to the same decision makers, in circumstances where there would be no public notification, objection or appeal rights.

The case for withholding relief is weaker with respect to those grounds which would result in the need for an impact assessable application, because, to the extent those grounds are justified, the community, including the applicant, have lost objection and appeal rights. As was pointed out in Thorne v Doug Wade Consultants Pty Ltd however, that is not necessarily determinative. It must be weighed with the countervailing considerations.

I am, on balance, persuaded to decline to grant relief, in the exercise of my discretion. While I have not found in favour of the applicant in relation to all of the “technical” points, I would have exercised my discretion, in favour of the third respondent, even had each of them been made out.

It was submitted that the Court should, in any event, make declarations of invalidity, if the applicant made out its case. That would appear to lack utility and would cast an unnecessary pall on the development. Mr Lyons QC pointed out that declarations operate as judgments in rem and may simply provoke other litigation in relation to the development. It would also place the third and fourth respondents in a difficult position in deciding whether to continue with development, in the face of declarations that they do not have effective development permits. Carrying out assessable development without a permit is a development offence. Further, the conditions attaching to the approvals would fall with the approvals themselves.[115]
[115]S 4.3.1 of IPA.

Mr Gibson QC relied on the public interest nature of the issues raised. He urged me to crystallise my reasons by making declarations which, he contended, would be of considerable “assistance and information” in relation to the application of the Act and planning scheme to circumstances such as have arisen here. I do not think that is persuasive. The court has, on other occasions, declined to make declaratory orders as a matter of discretion.[116]
[116]See Greatlife Pty Ltd v Brisbane City Council & anor [2001] QPELR 42 at 46 G, where the court held that no declaration should be made in the exercise of the court’s discretion, even if the approval were invalid.

CONCLUSION

The construction of a new full line supermarket based centre is substantially progressed at the Sandgate Town Centre on a site where development of a new shopping centre is contemplated and encouraged by the planning scheme. Its development was commenced and is being proceeded with in good faith in reliance on development approvals granted in good faith by the relevant assessment managers under the Act. I am satisfied that the decision by the Council, to grant the MCU approval was not unreasonable, in the Wednesbury sense. Although the applicant raises other grounds, there are discretionary grounds which, in my view, sufficiently weigh against the granting of relief.

Heritage Place	Address	Lot	Plan	Date of Entry
Einbunpin Lagoon	70 Brighton Road Sandgate	241 and 293	SL 8164	1 January 2004

[2008] QPEC 119

16 December 2008