Brutone Pty Ltd v Townsville City Council
[2009] QPEC 143
•28 April 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Brutone Pty Ltd v Townsville City Council & ors [2009] QPEC 143
PARTIES:
BRUTONE PTY LTD
(ACN 102 720 105)
(Applicant)
v
TOWNSVILLE CITY COUNCIL
(First Respondent)
and
HONEYCOMBES PROPERTY GROUP PTY LTD
(ACN 087 914 789)
(Second Respondent)
and
CAROLYN JEAN PAINE
(Third Respondent)
and
GAVIN SPENCER SHORT
(Fourth Respondent)
and
MARK STEVEN SHORT
(Fifth Respondent)FILE NO/S:
D47 of 2007
DIVISION:
Planning & Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Townsville
DELIVERED ON:
28 April 2009
DELIVERED AT:
Townsville
HEARING DATE:
28 & 29 April 2008 and 07 May 2008 (final Submissions)
JUDGE:
Durward SC DCJ
ORDERS:
1. Application for declaration refused.
2. Application for orders to set aside Decision Notice of 15 October 2007 refused.
CATCHWORDS:
ENVIRONMENT AND PLANNING SCHEME – DEVELOPMENT APPLICATION – ASSESSMENT – application for Declaration that Council decision granting development application is invalid – orders sought to set aside Decision and Decision Notice – where conflict with applicable Codes alleged – whether compliance – whether Council granted approval which no rational decision-maker could have granted – whether reasonable exercise of discretion – whether sufficient grounds to justify decision.
PERFORMANCE-BASED PLANNING SCHEME – whether planning scheme properly construed – extent of discretion of Council in context of overall outcomes of planning scheme – whether any or any sufficient or proper enquiry as to alleged conflict by Council – whether discretion under s.3.15.13 Integrated Planning Act 1997 was properly exercised.
INTEREST OF APPLICANT – whether disclosed –whether relevant to exercise of court’s discretion
REASONS FOR DECISION – whether applicant’s non-request for Statement of Reasons relevant to exercise of discretion.
DECISION – whether review of no practical effect – whether relevant to court’s exercise of discretion.
DISCRETION – whether discretionary dismissal of application open even if finding for applicant
Integrated planning Act 1997 ss. 3.5.11, 3.5.13, 4.1.21, 4.1.22.
CASES:
Westfield Management Limited v Brisbane City Council (2003) QPELR 520
Eschenko v Cummins (2000) QPELR 386.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) QCA 277
Weightman v Gold Coast City Council (2002) QCA
Woolworths Ltd v Maryborough City Council (No2) (2006) 1 QdR 273
SOS Community Action Group & Anor v Reefco Resort Limited & Anor (2006) QPEC 069,
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Ballymont v Ipswich City Council (2002) QCA 233
ZW Pty Ltd v Peter R.Hughes & Partners (1992) 1 QdR 352
Puhlhofer v Hillingdon Londonborough Council (1986) 1 AC 484
Fitzgibbons Hotel Pty Ltd v Logan City Council
SDW Projects Pty Ltd v Gold Coast City Council (1997) QPELR 24
Central Equity Limited v Gold Coast City Council (1997) QPELR 356
Ashfield Municipal Council v Roads and Traffic Authorityof New South Wales(2001) 117 LGERA 203
Lyons v Misty Morn Developments Pty Ltd & Anor (1998) QPELR 268
Parramatta City Council v Pestrell (1972) 128 CLR 305
The Dairy Farmers Co-operative Milk Company Limited v Commonwealth(1946) 73 CLR 381
Kadian v Richards (2004) NSWSC 382
NRMCA (Qld) Ltd v Andrew (1993) 2QdR 706
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Pacific Seven Pty Ltd v City of Sandringham (1982) VR 157
Tickner v Chapman (1995) 57 FCR 451
Wacal Developments Pty Ltd v Realty developments Pty Ltd (1978) 140 CLR 503
Manly Council v Malouf (2004) 61 NSWLR 394
Queensland Cement limited v United Global cement Pty Ltd (1999) QPELR 167
Woolworths Ltd v Caboolture Shire Council (2004) QPELR 634
Woolworths Ltd v The Warehouse Group (Australia)Pty Ltd (2003) 123 QPELR 341COUNSEL:
Mr P J Lyons for the Applicant
Mr J Haydon for the First Respondent
Mr R S Litster for the Second RespondentSOLICITORS: Wilson Ryan & Grose for the Applicant
City Solicitor for the First Respondent
Clayton Utz for the Second Respondent
The applicant (“Brutone”) seeks a declaration that the approval granted by the TCC of an amended development application is invalid and seeks orders to set aside the Decision of 9 October 2007 to approve the application and to set aside the Decision Notice for the application dated 15 October 2007.
JURISDICTION
The declaration is sought pursuant to section 4.1.21 of the Integrated Planning Act1997 (“the Act”) and the consequential orders pursuant to section 4.1.22 of the Act, which provide as follows:
“4.1.21 Court may make declarations
(1) Any person may bring proceedings in the Court for a declaration about –
(a) a matter done, to be done or that should have been done for this Act other than a matter for Chapter 3, Part 6, Division 2; and
(b) the construction of this Act and planning instruments and master plans under this Act; and
(c) the lawfulness of land use or development.
……
(5) The Court has jurisdiction to hear and decide proceeding for a declaration about a matter mentioned in sub-section (1).
4.1.22 Court may make orders about declarations
The Court may also make an order about a declaration made under s 4.1.21.”
THE NATURE OF THE APPLICATION
The Court’s discretion in respect to making declarations or making orders about declarations is very broad.
The Court is required to consider whether, in the circumstances of this application, approval was validly made: Westfield Management Limited v Brisbane City Council (2003) QPELR 520; and Eschenko v Cummins (2000) QPELR 386.
In Westfield Management, Brabazon QC DCJ said (at para 57):
“This Court is not a planning authority. It has no power to set aside the decision of Council and replace it with its own opinion. It can only set aside a decision of Council if that is a result compelled by law. Usually, if a decision is set aside, the matter will be referred back to Council for further consideration, according to law. In very rare cases, where the end result is inevitable, there can be a direction to decide the application as the Court directs. See Aronson & Dyer, Judicial Review of Administrative Action (2nd ed 2000) at p. 134.”
This proceeding is by way of Originating Application. It is not an Appeal. Brutone seeks to have the Court investigate the decision making process of the TCC and to make declarations arising out of that, but without a consideration of the merits of the development proposal.
In Eschenko, the Court held:
“[20] … this Court is not in this proceeding hearing an appeal against a decision of the Council by way of hearing anew under s. 4.1.52(1) of the Integrated Planning Act, in which the onus of proof would fall upon the first respondent. The proceedings with respect to the relief claimed under ss 4.1.21 and 4.1.22 are analogous to judicial review proceedings under the Judicial Review Act 1991 (see s 5.8.4 of the Integrated Planning Act). This Court is not indirectly concerned with the merits of the approval in question, but rather must consider whether the approval given …was validly given. The onus of establishing invalidity falls upon the Applicant (Parramatta City Council v Hale) (1982) 47 LGRA 319 at 335, 393.
[21] The validity of the Council’s approval must be upheld if it was reasonably open to the Council to grant it. Whether the Council’s decision was sound or unsound is not a matter that properly falls for consideration by this Court. The relevant principle of law was correctly stated, in my respectful opinion, by Skoien SJDC in Lyons v Misty Morn Developments Pty Ltd & Anor (1998) QPELR 268 at 272:
‘There have been many cases in which a court has been asked to review something done by a person or body under an act of parliament with the authority to do that thing as expressed by the Act to be dependent on that person reaching a specified state of satisfaction. This is not such a case … the law on this topic is clear. The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed or that it was based on irrelevant considerations or that in some other way it was unjustifiable. If it is justifiable it stands whether or not others may disagree with it.’
[22] In these circumstances it is not open to this Court to substitute its own opinion for that of the second respondent unless its approval is shown to have been unjustifiable, based on irrelevant considerations or one that no reasonable Council could have granted: MLC Properties and Anor v Camden Council and Orsu (1997) 96 LGERA at 52 at 56 per Lloyd J. Thus, this Court is not entitled to disregard the fact that the legislature has vested the power to exercise discretion in the Council..”.
The role of the Court in reviewing the exercise for an administrative decision was considered by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 40-42:
“Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation (1948) 1 KB at p. 228.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which were required to be taken into account in exercising the statutory power … I say “generally” because both principle and authority indicate that in some circumstances a Court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, whereas given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. This ground of review was considered by Lord Green M.R. in Wednesbury Corporation (46), in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.”
THE DEVELOPMENT
On 10 April 2007 an application for a development permit for a material change of use and preliminary approval for building work (“development application”) was made by Brutone to the first respondent (“Council” or “TCC”) (the assessment manager) by the second respondent (“Honeycombes”), for a commercial/retail/residential building on a site situated at 42 Mitchell Street, North Ward in Townsville (“the site”). An amended development application was approved by TCC on 09 October 2007.
The third, fourth and fifth respondents are the owners of the site. Honeycombes are the prospective developers of the site in respect of the application. Brutone owns the North Ward Shopping Village which adjoins the site.
RELEVANT CHRONOLOGY
10.04.07 Development Application lodged on behalf of Honeycombes. 17.07.07 Submission made on behalf of Brutone (“the submission”). 18.07.07 The submission accepted by TCC. 18.07.07 – 26.07.07 Report prepared for TCC recommending the Development Application be approved subject to conditions (“the first report”).
26.07.07 – 03.09.07 Amendments to Development Application by Honeycombes (“ADA”). 15.08.07 – 23.08.07 Report prepared for TCC recommending that ADA be approved subject to conditions (“the second report”). 09.10.07 TCC resolved to approve ADA. 15.10.07 Decision Notice given to Honeycombes by TCC.
LEGISLATION
The DA was code assessable under Chapter 3, Part 5, Divisions 2 and 3 of the Act. Brutone maintained that the submission formed part of the “common material” (as defined in the Act in Schedule 10) for consideration by the TCC. The TCC submitted that the submission was “informal”, not part of the common material nor a relevant matter for consideration under the Act, but conceded that it nevertheless did inform Brutone that the submission would be taken into account. It was submitted that there is nothing in the material before the Court to indicate that the submission was not taken into account.
The purpose of the Act Section 1.2.1 is described as being to ‘seek to achieve ecological sustainability by’ –
“(a) co-ordinating and integrating planning at the local, regional and State levels; and
(b) managing the process by which development occurs; and
(c) managing the effects of development on the environment (including managing the use of premises).”
Ecological sustainability is defined in section 1.3.3 as ‘a balance that integrates’ –
“(a) protection of ecological processes and natural systems at local, regional, State and wider levels; and
(b) economic developments; and
(c) maintenance of the cultural, economic, physical and social well being of people and communities.”
As I have indicated, the DA (and the ADA) was code assessable: that is, the application was to be assessed against applicable codes.
Division 2 of Chapter 3 Part 5 of the Act contains the “assessment process”.
Code assessment is carried out in the following manner:
“3.5.4 Code Assessment
(1) This section applies to any part of the application requiring code assessment.
(2) The assessment manager must assess the part of the application only against –
(a) applicable codes (other than concurrence agency codes the assessment manager does not apply); and
(b) subject to paragraph (a) – common material; and
(c) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme –
(i) State planning policies (or parts of state planning policies); and
(ii) for the planning scheme of the local government in the relevant area for a State planning regulatory provision – the provision; and
(iii) for the planning scheme of the local government in a designated region – the region’s regional plan; and
(d) if the assessment manager is an infrastructure provider – the priority infrastructure plan.
(2A) …….
(3) …….
(4) …….”
In making a decision, the assessment manager must comply with section 3.5.11 and 3.5.13 of the Act:
“3.5.11 Decision generally
(1) In deciding the application, the assessment manager must –
(a) approve all or part of the application and attach to the approval, in the exact form given by the concurrence agency, any concurrency agency conditions; or
(b) approve all or part of the application subject to conditions decided by the assessment manager and attach to the approval, in the exact form given by the concurrence agency, any concurrence agency conditions; or
(c) refuse the application.
(2) The assessment manager’s decision must be based on the assessments made under division 2.”
“3.5.13 Decision if application requires code assessment
(1) This section applies to any part of the application requiring code assessment.
(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.
(3) Subject to subsection (2) the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to –
(a) the purpose of the code; and
(b) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme –
(i) State planning policies, or parts of State planning policies; and
(ii) for the planning scheme of the local government in the relevant area for a State planning regulatory provision – the provision; and
(iii) for the planning scheme of a local government in a designated region – the region’s regional plan.
(4) However, if the decision is made under subsection (3)(a) and the assessment is against a code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”
Hence in section 3.5.13 there are four principal considerations: Firstly, the application must be approved if the Council is satisfied that the application complies with all applicable codes; secondly, that the Council’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to: thirdly, the purpose of the code; and fourthly, the Council’s decision must not compromise the achievement of the desired environmental outcomes in the City Plan (my underlining).
THE CITY PLAN 2005
The relevant code principles in the City Plan 2005 are as follows:
“4.27 District Codes
Each of the district codes is comprised of –
· Overall outcomes for the district;
· Specific outcomes for each precinct in the district;
· Other specific outcomes and probable solutions for the district codes.
4.28 Compliance with the District Codes
Development that is consistent with the overall outcomes for the district and the specific outcomes for the relevant precinct, complies with the district code.
4.29 Consistent and inconsistent uses in precincts
(1) A defined use that is an inconsistent use in a precinct is noted under the specific outcomes for each precinct in the relevant district code in division5.
(2) If a defined use is not noted as an inconsistent use, it is a consistent use in the particular precinct.”
4.31District code 2 – Townsville inner suburbs - Overall Outcomes
The purpose of the code is to achieve a number of outcomes for this District, including in summary the following:
The district is predominantly residential – permanent and visitor; a variety of residential accommodation, commercial and retail land uses, low impact industrial activities, proximity of airport and defence facilities, a variety of residential densities and accommodation styles, orderly and quality design with minimal impact on adjoining properties, consolidated community, educational and special services, and preserved local areas. More specifically, the overall outcomes include the following;
(j) the diverse open space and recreational resources of the district are protected and maintained, and adjoining land uses respect the primary green space values of these and the role of green space in providing visual and spatial relief from areas of built form; and
(l) The Strand Local Area accommodates a high quality intensive residential sub-precinct catering for both tourist and residents of the North ward area.
The main disputed codes are, so far as is relevant, as follows: building height, set-backs and site coverage, residential density and landscaping/recreation /open space.
“(2) Building Height
SO2 The height of buildings and structures:
(i) Maintains the integrity of the skyline along the major ridge lines connecting Melton Hill to Stanton Hill and Castle Hill;
(ii) Is consistent with the preferred character and amenity of the precinct in which it is located; and
(iii) Incorporates terraced or stepped built-form to protect the ridge line.
PS2.1 Buildings are no higher than indicated in Table 1 below unless otherwise indicated on Figure 1.”
The maximum height for buildings in district 2 in the neighbourhood centre precinct is expressed as follows:
“Where not otherwise shown on Figure 1 – North Ward building heights, two storeys or 8.5m whichever is lesser, provided that where the site abuts land in a residential precinct, the maximum height of buildings within 2m of a side boundary and within 20 metres of the rear boundary is 1 storey.”
(3) Setbacks and Site Coverage
SO3 The scale, bulk and location of the building does not adversely impact on streetscape amenity.
PS3.1 The setbacks of buildings from street frontages and boundaries and their site coverage comply with Table 2 below.
In Table 2 the minimum setbacks and site coverage for the neighbourhood centre precinct are said to be 100 per cent site coverage and side or rear boundaries where the subject site abuts land included in a residential precinct, 2 metres or half the height of the proposed building whichever is the greater; and front setbacks to be in accordance with the setback of buildings on adjoining premises and the dominant setbacks in the street.
(5) Residential Densities
S07 Residential development is of a density consistent with the character intended for the locality and provides a high level of residential amenity.
PS7.1 The residential density of residential development other than detached houses and dual occupancies complies with Table 3 below.”
In Table 3 the maximum residential density (persons per hectare) in the district 2 neighbourhood centre precinct is 187 ppha.
Probable Solution 7.2 provides that where a multiple dwelling is located on land over 2000 square metres and where the site comprises two or more adjoining lots, an additional residential density above that set out in Table 3 may be allowed as specified in Table 4, subject to conditions set out in the Probable Solution. Brutone submits that the second report is not fully compliant with those codes and that there is an error in the calculation of the number of units pursuant to Table 3.
The other relevant codes are the multiple dwelling code: site size and density and site layout and building design; and the minor centres code: site layout and landscaping and landscaping.
It is common ground that both the Multiple Dwelling Code and the Minor Centre Codes apply to this development application.
6.9 Multiple Dwelling Code
The purpose of the Code is stated to be to achieve the following outcomes:
(a) Multiple dwellings occur at a density that is consistent with the desired character of the locality and are of sufficient size to meet user requirements.
(b) Multiple dwellings contribute positively to the streetscape and provide a high standard of amenity for residents and neighbours.
(c) Multiple dwellings located next to major roads and railway lines are designed and constructed in a manner that reduces the adverse impacts of traffic noise.
The relevant Specific Outcomes and Probable Solutions are site size and density (SO1 and SO2) and site layout and building design (SO3 to SO14).
(1) Site Size and Density
SO1. The site has an area and dimension which enable the siting and construction of accommodation and support facilities, the provision of open space and recreational facilities, and vehicle access and parking.
PS1.3 The gross floor area of all buildings does not exceed 5 percent of the area of the site, except in The Strand Village Centre Local Area …
SO2 The residential density is consistent with the environmental characteristics, character and infrastructure provision in the locality.
( No Probable Solution is provided).
(2) Site Layout and Building Design
SO3 Building siting and design takes into account the function of the building, the relationship to adjoining premises, as well as the contextual relationship with the street and locality.
SO6 Building bulk is reduced by a combination of:
· Balconies and recesses;
· Variation in colours, textures and materials;
· Variation in building form; AND
· Roof features
SO9 Easily assessable communal landscape and recreation areas provided for the benefit of residents.
PS9.1 A minimum area of 40 per cent of the site areas is provided as landscape and recreation area, except in The Strand Local Area and The Strand Village Centre Local Area where a minimum of 20 per cent is required.
SO10 Where a dwelling unit is an above the ground storey, adequate private open spaces provided
PS10.1 Each dwelling unit above the ground storey is provided with a balcony with a minimum dimension of 3m.
6.17 Minor Centres Code
The purpose of this code is to achieve the following overall outcomes:
(a) Centres and commercial activities do not adversely impact upon the amenity of the surrounding locality.
(b) Local and neighbourhood centres have a desirable streetscape character and a high level of amenity.
(c) The area and dimensions of sites are appropriate for the use, which they accommodate.
(d) Community safety is enhanced and crime and anti social behaviour is actively discouraged through the design of the centre.
The relevant Specific Outcomes and Probable Solutions are Site Layout and Landscaping (SO1 and SO17) and Landscaping (SO18)
(1) Site Layout and Landscaping
SO1 The site can accommodate all aspects of the proposal including buildings, car parking areas, servicing areas, and landscaping. (No probable solution is provided.)
SO17 Development is integrated with adjoining sites as far as possible, having regard to:
· Built form;
· Access and circulation;
· Car parking;
· Landscaping; AND
· Provision of services.
(No Probable Solution is provided).
(2) Landscaping
SO18 An adequate amount of landscaping is provided.
PS18.1 The landscape and recreation area is not less than 10 percent of the area of the site, AND.
PS18.2 A planted landscape strip is established and maintained along any side or rear boundary which adjoins a residential use or precinct, with such a strip having a minimum width of 2m, AND
PS18.3 A minimum 1.8m high fence is erected and maintained along the full length of any side or rear boundary which adjoins a residential use or precinct.
DISCUSSION
Brutone submitted in an informal submission to Council that there were those and other applicable codes.
The Informal Submission
The informal submission was contained in a letter dated 17 July 2007 from the lawyers for the applicant. The TCC was not obliged to consider the submission. However, in an exercise of discretion it did so and advised Brutone that ’The Council in its consideration of the application will take your letter into consideration’. There is no evidence to suggest that the Council did not do so in its decision-making process. In my view the presumption of regularity (see infra) applies. It cannot be said that the council did not investigate matters brought to its attention for consideration by Brutone.
The letter purports to put the TCC and its officers on notice that seven codes were applicable to the code assessable application, namely: district code 2 - inner suburbs, multiple dwelling code, minor centre code, landscape code, parking and access code, works code and airport and aviation code. The letter also purported to put the TCC and its officers on notice as to particular concerns of the applicant about the following: the height of the building, the scale and bulk of the proposed development, the open space and recreation facilities for the multiple dwelling, the short term visitor parking, the access ramp, the dimensions of the car park spaces, the visitor parking remaining assessable and usable and the operational air space under the airport and aviation facilities code. The TCC advised the solicitors for Brutone that “The council in its consideration of the application will take your letter into consideration.”
The First Report
The first report dated 18 July 2007 commenced with the following:
“Executive summary
A Development Application for Material Change of Use (Code Assessment) – multiple (6x2, 2x3 & 1x4 Bedroom Units) and Commercial/Retail Premises (Shop, Restaurant and Office) on Lot 1 on RP 718054 situated at 42 Mitchell Street, North Ward has been received from applicant: Honeycombes Property Group – MC 07-00940222061 and has been recommended for approval.
Recommendation
That Council approve the application for a development permit for Multiple Dwelling (6x2, 2x3 & 1x4 Bedroom Units) and Commercial/Retail Premises (Shop, Restaurant and Office) on Lot 1 on RP 718054 situated at 42 Mitchell Street, North Ward subject to the following conditions:
…(there followed a schedule of conditions).”
The Second Report
The second report dated 15 August 2007 provided as follows:
“Executive summary involved
A development application for material change of use (code assessment) – multiple (4x3 & 1x4 Bedroom Units) and Commercial/Retail Premises (Shop, Restaurant and Office) on Lot 1 on RP 718054 situated at 42 Mitchell Street, North Ward has been received from applicant: Honeycombes Property Group – MC 07-00940222061 and has been recommended for approval.
Recommendation
That Council approve the application for a development permit for Multiple Dwelling (4x3 & 1x4 Bedroom Units) and Commercial/Retail Premises (Shop, Restaurant and Office) on Lot 1 on RP 718054 situated at 42 Mitchell Street, North Ward subject to the following conditions:
…(there followed a schedule of conditions).”
Distinguishing the Reports
The difference between the two reports starts with the site layout where the planned date in the second report is 9 August 2007 in lieu of 3 July 2007. That follows, of course, from the reduction in the number of dwelling units. There are changes to the conditions with respect to amended plans, the refuse facilities condition with respect to access roads and driveways is deleted in the second report, there are changes to the conditions regarding car parking, there are no provisions regarding rock breaking or groundwater and de-watering management. There is the addition of a landscaping condition with respect to not to damaging landscaping within the adjoining property during construction. In the report information section, the information under “proposal” reflects the change in the number of residential units and the details of the multiple dwellings, under “Retail Tenancies” the parking spaces change is reflected and there is the addition of reference to a loading bay, under “Other comments” there is no reference to any objection from the environmental management department of TCC, and in so far as non-compliance with the City Plan 2005 is concerned, the following paragraphs appear respectively in the reports:
In the first Report:
”The areas of non-compliance…includes building height, residential density, gross floor area, site area and dedicated car wash bay.”
In the Second Report:
“The proposed development does not fully comply with the provisions of the City Plan. Areas of non-compliance and/or matters that require further examination are considered in this report. Beyond the matters raised it may be taken that the proposed development is consistent with the applicable City Plan codes noted above and no further comment is provided or reference made. This may require the imposition of conditions in some instances to ensure this is the case.”
The relevant codes for compliance assessment were identified in the reports as works code, parking access code and landscaping code.
In the Second Report the following observations, so far as is relevant, are made:
· “Building Heights in District Code 2 - Townsville inner suburbs: The height of the building while greater than anticipated with City Plan is considered to be in keeping with the existing scale and character prevailing within the locality. In addition, given the modern architectural design of the proposed building and the increasing desire for high density residential accommodation in the city area, the excess in height should be considered appropriate.
· Residential Densities in District Code 2 – Townsville inner suburbs: Furthermore, the development side is provided with adequate infrastructure, which includes both reticulated water and sewerage. Services such as public open space, shopping facilities and public transport are in close proximity to the proposed property that would adequately serve the needs of occupiers.
· Multiple Dwelling Code: In respect of non-compliance with the probable solutions of the multiple dwelling code, it was noted that the applicant had provided justification for this. In so far as the probable solution 1.1 to specific outcome 1 (which refers to a minimum site area of 1,000 square metres) it was noted that the subject site had a total land size area of 509 square metres. The report referred to the development being able to contain all the relevant provisions required by the planning scheme within the subject site and that the neighbourhood centres precinct promoted mixed use buildings to incorporate a residential component and that therefore the proposed development was acceptable as the design and layout of the development was appropriate for the site and made a positive contribution to the streetscape and complimented the built form and activities of the likely future development of the adjoining and surrounding area. In so far as the probable solution 1.3 (gross floor area) was concerned, it was noted that there was an assumption that the requirement that gross floor area of all buildings did not exceed 85 per cent of the area of the site was directed at unit design in the suburbs and was not meant to be imposed on an area where multiple storey developments are allowed to be erected and a floor area will naturally exceed the above percentage and that accordingly it was submitted that although the proposal did not comply with the specific provision the proposal met SR1 of the multiple dwelling code and therefore should be considered acceptable.
· In the conclusion, the report stated that “the site is within walking distance of the services and facilities located within The Strand and North Ward area as well as being relatively close to the CBD area and public transport hub.”
THE COUNCIL MEETING
The relevant meeting of the Neighbourhood and Strategic Planning Committee adopted by Motion the report in respect of this development application. The Decision Notice subsequently issued.
Submissions were made before me about the size of the meeting agenda and the time occupied by the meeting in considering it. The implication in Brutone’s submission was that the Committee did not spend much time at all in considering the subject item. Honeycombes' submission was that there was no evidence as to the time that was devoted to any particular item.
It does not seem to me that it is possible to quantify the issue of ‘consideration’ at the meeting to any particular agenda item by reference to the size of the agenda and the total meeting time. Committees in any organisation are comprised of individuals and Chairs who as a matter of human nature control the dynamics of a meeting and its course of business, to the extent that no general rule or even assumption about this issue could be made.
SUBMISSIONS BY BRUTONE
In the further amended application, Brutone says that the first report did not have regard to the following matters:
(i) The provision of community open space and recreational activities;
(ii) The submission;
(iii) Specific outcomes to 3 and 7 of district code 2;
(iv) Specific outcomes 1 and 9 of the multiple dwelling code;
(v) Specific outcomes 1 and 18 of the minor centres code;
(vi) The conclusion that the codes had been complied with; and
(vii) Did not consider “issues of conflict” with the applicable codes pursuant to section 3.5.13(3) of the Act.
In the further amended application Brutone says further that the second report did not have regard to the following (using the same roman numeral numbers):
(iv) Specific outcome 1 where the area it says is insufficient for open space or recreation and specific outcome 9 where the area is not easily accessible,
(v) Specific outcome 1 which could not accommodate community landscaping and recreational areas for the benefit of future residents and specific outcome 18 where there was no provision for landscaping.
(vi) The conclusion that the codes had been complied with; and
(vii) That the report did not consider the issue of “conflict” with the applicable codes pursuant to s 3.5.13(3) of the Act; and
(viii) It did not consider the issue of “compliance” in terms of s 3.5.13(2) of the Act.
Brutone says that the approval by the TCC was invalid because the decision-maker:
(a) failed to carry out the statutory processes identified in the Act;
(b) failed to take into account relevant considerations;
(c) took into account irrelevant considerations;
(d) erred in law;
(e) further or alternatively, granted an approval which no rational decision-maker could have granted.
Brutone says the approval decision is one that:
“(a) no reasonable Council could have made; or
(b) did not involve a proper exercise of discretion;
(c) is unreasonable in that it was made in reliance on the second report which was flawed; and
(d) involved those matters which it says the TCC did not have regard to (iv) to (viii) above; and
(e) is invalid in respect of a number of matters, namely:-
· Residential density (SO7 and PS7.1 of district code 2)
· Maximum number of units 3 (5) versus maximum number of persons 9 (12).
· Failure to take into account the purpose of the multiple dwelling code
· Misconstruction of PS1.1 of the multiple dwelling code.
· Misconstruction of PS1.3 of the multiple dwelling code – failure to assess against or take into account SO 9 and PS9.1 of the multiple dwelling code
· Failure to take into account SO 1 and SO 18 and PS 18.1 of the minor centres code.
In other words, Brutone says that the code assessment requirements of section 3.5.4(2)(a) of the Act have not been followed and that pursuant to s.3.5.13(3) the assessment manager’s decision does not have sufficient grounds to justify the conflict that the decision has with the relevant applicable codes.
Brutone submitted that the critical issue was the assessment of the ADA against applicable codes. The Agenda Report (ignoring the "Action Item", which was added subsequently to the Report), in the section dealing with "Report Information", stated that under the heading Multiple Dwelling Code, so far as site (PS 1.1) is concerned, "the proposed development is able to contain all the relevant provisions required by the planning scheme within the subject site"; that so far as gross floor area (PS 1.3) is concerned, the proposal does not comply but that the proposal met SO1 of the Multiple Dwelling Code "and therefore should be considered acceptable"; and in the conclusion that "at these instances the development does not achieve the relevant Probable Solutions however the development is considered to comply with the relevant Specific Outcomes and therefore the Overall Outcomes".
There is reference to the intent of the Neighbourhood Centre's Precinct. The Agenda report then concludes as follows:
"The proposed development has not fully complied with the provisions of the City Plan. Areas of non-compliance and/or matters that require further examination are considered in this Report. Beyond the matters raised it may be taken that the proposed development is consistent with the applicable City Plan Codes noted above and no further comment is provided or reference made. This may require the imposition of conditions in some instances to ensure this is the case."
Brutone submitted that the Agenda Report does not identify the failure to provide any open space. It was submitted that no reasonable assessment manager could conclude that, where a Specific Outcome calls for open space and none is provided, the development complies with the Planning Scheme.
Brutone submitted that reliance on the Report did not remove the need for Council to properly consider the content of the Report. In other words, the decision could not stand if there was a failure to refer to the "salient facts" and Council remained oblivious to them: Peko-Wallsend (supra) at pp 65-55; and Abebe v Commonwealth of Australia (1999) 197 CLR 510.
In Tickner v Chapman (1995) 57 FCR 451 (at 462 and 495), the dictionary meaning of the word “consider” was referred to by the Court, which stated that “consideration of a document such as a representation or a submission involves an active intellectual submission…involves an active intellectual process directed at that representation or submission” and that consultation requires one “to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward to appreciate who is making them.”
The statutory obligation in that case was expressed in very specific terms and directed to the Minister. In this case the Agenda Report included reference to the ADA and to the submission. The concerns of Brutone were made abundantly clear.
There was a debate between Brutone and Honeycombes about the meaning of the word “probable” as it is used in the city plan in the expression “probable solution”.
It was submitted by Honeycombes that one does not use the defined term itself to assist in interpreting or construing the definition of the term. The Court in Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 discussed a proposition such as that in the course of a statutory construction of the definition of an “instalment contract” in a conveyance. The Court construed the term in its natural sense with the emphasis on the meaning of “contract”. It was argued by Brutone that a different approach was taken by two members of the NSW Court of Appeal in Manly Council v Malouf (2004) 61 NSWLR 394 (at 396-7). In that case the meaning of the term “retail shop” was considered, the term essentially having its ordinary and natural meaning.
In my view it is difficult to extract the word “probable” from the defined term “probable solution”. The definition includes the word “possible”, which has a different connotation. The defined term is said to be “a possible means by which the applicable specific outcome in a city plan code can be met.” The use of the word “probable” is different from other planning schemes which use a different word for the same purpose. It is, an unfortunate misuse of the word in my view and apt to be misleading and to lead to unhelpful legal analysis. In my view “probable solution” may otherwise be expressed as a possible or alternative way by which the specific outcome can be achieved. In that sense the construction of the term equates with the common sense understanding of its use in the text of the city plan.
DISCUSSION
Is the identification of conflict a first and necessary step in the assessment process and one that was for Council to complete, in the context of this case?
In Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) QCA 277 a major issue for determination was whether the proposed development complied with the development plan. It did not meet a number of development standards. The Court of Appeal found that the court at first instance did not apply the appropriate test which in that planning scheme was to inquire whether the proposed development was a more sensitive and desirable solution than if it met each relevant development standard. It was held that in order for him to make an informed decision upon which to exercise the limited discretion conferred by the relevant legislation (The Local government Act) to approve the application His Honour had to be satisfied that the test was met. Hence, the discretion was wrongly exercised and constituted an error of law.
In Weightman v Gold Coast City Council (2002) QCA 234, the Court of Appeal held that when an exercise of discretion pursuant to the relevant provision in the Local Government (Planning & Environment) Act 1990 was being considered, the decision maker should desirably:
“(1) Examine the nature of the conflict;
(2) Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
(3) Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict.”
The Court held that it was only after all of those matters were considered that the decision maker was able properly to assess whether or not the planning grounds in favour of the application were on balance and viewed as a whole sufficient to justify approving the application notwithstanding the conflict.
In my view the Council in this case was provided with a report that on the face of things satisfied any relevant inquiries and it concluded, in the context of overall outcomes, that the ADA was compliant. That was sufficient to discharge the obligation that it had. The test propounded above is qualified by the word ‘desirably’. It has also been the subject of judicial comment (infra).
In Woolworths Ltd v Maryborough City Council (No2) (2006) 1 QdR 273 the process or test described in Weightman was considered and a submission that the exercise of discretion miscarried was rejected. The Court stated (at paragraph 55):
“[55] …it was implicit in His Honour’s reasons that he found a second discount department store was discouraged everywhere in the rail yards redevelopment area precinct except in sub-precinct (vii). The nature and extent of the conflict between this aspect of the City Plan and the decision for which (the appellant) contended as self-evident. It would have amounted to unnecessary formalism for His Honour to have postulated a separate question on the point. The purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case.”
In SOS Community Action Group & Anor v Reefco Resort Limited & Anor (2006) QPEC 069, the distinguishing feature of Weightman was referred to in the following terms:
“…the Court of Appeal in that case was considering the decision of a judge of this Court on a merits appeal. In other words, it was a judge of this Court and not the Council who is the decision maker under consideration. Secondly, the single conflict involved was a quantitative one in that it related to the height and number of storeys of a building. I can find nothing in the judgment of Atkinson J, or for that matter the other Justices who comprised the Court of Appeal requiring the passage in the judgment of Atkinson J to be observed as if it were some form of statutory imperative to apply in every case.”
Zhang v Canterbury City Council (2001) 51 NSWLR 589 was also relied on so far as the obligation to properly consider conflict was concerned. However, it seems to me that the planning provisions in Zhang were proscriptive rather than being matters for consideration. Whilst Zhang has been accepted as being generally relevant in the context of the relevant competing legislation between New South Wales and Queensland (in Ballymont v Ipswich City Council (2002) QCA 233 at paragraph 36), it was distinguished in the latter case on the specific facts in that case.
Brutone submitted that there is a flaw in the process because the Report did not return to the specific outcomes, having dealt with the probable solutions and acknowledged there had been non-compliance. It was submitted that the Council should itself have assessed the application against the Code to see if there was conflict, what that conflict was and what were the grounds to justify it. The failure of the Council to do so was fatal to the decision. I have made a finding about that (infra) and I do not agree that it was necessary for the council to return to the specific outcomes.
SUBMISSIONS BY TCC
TCC submitted that if there was no conflict with the Planning Scheme, then the declaration should not be made: if there was, then it may be made. The Planning Scheme was "performance based" rather than proscriptive. In ZW Pty Ltd v Peter R.Hughes & Partners (1992) 1 QdR 352, per Thomas J (at 360) the court dealt with the construction of definitions in a Planning Scheme. In that context his Honour said that:
"To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end Courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make most sense out of provisions which may be contradictory as well as obscure."
The TCC submission reflected this distinction: for example, it was submitted that even if the Probable Solution is not met, that is not the end of the matter; that is, the Probable Solution is not "proscriptive" (that is, providing a prohibition). Rather, a "performance-based" assessment on the Overall Outcomes may be sufficient, depending on the mode of assessment. It was submitted that in self-assessable development the probable solutions were mandatory; but in code-assessable development, they were subject to discretionary considerations. If a development was consistent with the Overall Outcomes for the district and the Specific Outcomes for the relevant precinct, it complied with the district code; that is, the Planning Scheme provided for outcomes that could be achieved by different methods.
Hence in construing the Scheme in the context of the Act it was a question for the council officer to determine, in an exercise of allowable discretion, whether a proposed development complied with the code-assessment.
Whilst balconies were not a Probable Solution because they were not itemised in the relevant list, they nevertheless contributed to the Specific Outcome and were sufficient to satisfy the Overall Outcome; whilst they also did not meet the requirement for "communal landscape and recreation area", SO9 was broader in concept than merely "site" (compared with SO1) and that admitted of the inclusion in the Overall Outcome of public open space in the near vicinity, without the need for specific provision of "communal open space on-site". Similarly, the building height, whilst higher than provided in the Planning Scheme was nevertheless compliant when assessed against the overall outcomes for the precinct. A similar argument was advanced in respect of residential density.
TCC submitted that it was “open to the respondent to approve the development with its large balconies (private open space) and take into account the existing public open space in the locality and that there was no conflict with the multiple dwelling code or the minor centre code”.
The TCC submits in its submission that there is a presumption of regularity of the resolution of the Council: and that there is nothing produced by Brutone to rebut the presumption: Ashfield Municipal Council v Roads and Traffic Authorityof New South Wales(2001) 117 LGERA 203 (at paragraphs 50 to 61).
TCC submitted that there was no conflict between the decision and the Planning Scheme and that the discretion of the council officer, in the context of overall outcomes, was sufficiently broad to accommodate the recommendation and the council decision.
DISCUSSION
In Puhlhofer v Hillingdon Londonborough Council (1986) 1 AC 484, the court dealt with an application for accommodation under relevant legislation pursuant to a Council’s (the housing Authority) duty to provide accommodation for homeless persons.
Lord Brightman (at 518) stated the following:
“My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority is satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy, but it is not, in my opinion, appropriate that that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the Courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of power, a procedural irregularity or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity…where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in case where it is obvious that the public body, consciously or unconsciously are acting perversely.”
See also Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 which dealt with the issue of the “intent”, in the context of that case, of the planning scheme; and SDW Projects Pty Ltd v Gold Coast City Council (1997) QPELR 24 which dealt with performance criteria. Rackemann DCJ (at paragraphs 46 to 48) stated that the “performance based” planning schemes commence with a statement of purpose, identify the development to which each code applies and then set out requirements. He continued:
“It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to council’s satisfaction. Where no acceptable solution is provided for a performance criterion in the code, the development must provide its own solution to meet that particular performance criterion.”
His Honour referred to statements to similar effect in other planning schemes which adopted performance based codes:
“The performance criteria are generally outcome focussed while the acceptable solutions (in this case, the probable solutions) indicate a ‘desirable’ way to ‘ensure’ compliance. The acceptable solutions, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.”
In Central Equity Limited v Gold Coast City Council (1997) QPELR 356 (infra), Wilson SC DCJ referred to SDW Projects and said that in the context of the case under his consideration, which dealt with communal open space, site cover and plot ratio, landscaping and setbacks, amongst other things, that where there was overlap between the numerous performance criteria and the Codes:
“It would be excessively mechanical to simply consider each discreetly and, in a case involving purported compliance in a way different from that proposed by the acceptable solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common modern principles of statutory construction.”
The jurisdiction of the Court is not a merit decision but rather one than is directed to ascertaining whether the decision of Council was one which it could have made in all the circumstances; in other words, whether the decision was open to the TCC to make, not if it was correct.
The affidavit evidence of the Council officer responsible for making the report is to the effect that all relevant matters were taken into account. She states that if the same application was made again she would make the same recommendation and refer to the same conditions, but in a “more fulsome report”. The latter reference seems to be a concession that the report did not specifically contain all that could have been contained in it. The officer swears that all relevant matters were taken into account although not all the matters were mentioned in the report.
The onus of proof in this proceeding is, as I have said, borne by Brutone. If it was to succeed in establishing that the decision was “unreasonable” it would have to show that there was an overwhelming case of unreasonableness, or that the decision was “indefensible” or “so absurd that no sensible person could ever dream that it lay within the powers of the authority”: Lord Greene in Associated Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223.
In Lyons v Misty Morn Developments Pty Ltd (1998) QPELR 268, Skoien SDCJ (at 272) stated that:
“The law on this topic is clear. The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed or that it was based on irrelevant considerations, or that in some other way it was unjustifiable. If it is justifiable, it stands whether or not others may disagree with it…”
His Honour continued by reference to Parramatta City Council v Pestrell (1972) 128 CLR 305(at 323), per Menzies J:
“There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter that is not merely defensible – it is right. The validity of a local rule does not depend upon the soundness of a Council’s opinion; it is sufficient if the opinion is expressed to be one reasonably open to the Council. Whether it is sound or not is not a question for decision for the Court.”
See also Peko-Wallsend Ltd (supra); and Lomas v Gold Coast City Council (2007) QPELR 539.
SUBMISSIONS BY HONEYCOMBES
Honeycombes submitted that no reasons were required and that non-conflict with the codes is the only inference available, in the absence of any statements about the issue of conflict. There was no requirement to provide reasons or state “sufficient grounds” in the Decision. Honeycombes submitted that Brutone did not make any request for a ‘statement of reasons’ (as it could pursuant to s 5.9.5(2)) from TCC. In the absence of such a request there was no evidence of what findings were made or the facts upon which they had been based and the reasons for non-conflict.
“5.9.5Application of Judicial Review Act 1991
(1) (The application of the Judicial Review Act is excluded in respect of “a decision”).
(2) A person who, but for sub section (1) could have made an application under that Act in relation to a matter mentioned in sub section (1), may apply under part 4 of that Act for a statement of reasons in relation to the matter.”
Honeycombes submitted that the basis upon which Brutone pleaded ‘invalidity’ was insupportable: It failed to place the “best evidence” before the court by not requiring a Statement of Reasons. In so far as the “reports” were influential in the Decision, it says that Brutone only and that it’s contention that the reports were relied on “in part” left an evidentiary gap that it had not discharged; that the multiple dwelling code and the minor centres code did not require consistency with the specific outcomes in order to comply; that there was no conflict between the decision and “overall outcomes” for the codes; that Specific Outcomes require the exercise of discretion in the assessment process; that the minor centres code does not refer to open space and recreational/communal facilities; that SO9 of the multiple dwelling code by the use of the words “easily assessable” does not require specific dimensions or location; that the use of balconies as landscape and recreation area is referred to in the context of “balconies, approximate public open space, services and facilities”; that there is no reference to specific dimension of landscaping, simply a reference to adequacy; that the condition with respect to landscaping was not in conflict with the landscaping codes; and that the proximity of The Strand local area (which had a higher residential density) was a factor which was relevant to the density in the development project. Whilst balconies were a private and not a communal facility on-site, there was in close proximity to the development a significant open public space.
NO STATEMENT OF REASONS
Honeycombes submitted that in the absence of a request for Statement of Reasons, Brutone cannot succeed in its allegation that the TCC has failed to give real and genuine consideration to the material issues; that the court is entitled to take into account, amongst other things and in the exercise of its discretion, the fact that the proceedings have been brought without any request for a Statement of Reasons being made, the relative insignificance of Brutone’s complaints and the lack of any evidence for the reasons for concern about those matters expressed on behalf of Brutone.
Further, the Council having determined that there was no conflict between the ADA and the Planning Scheme, there was in that circumstance no need to give reasons. .
It was submitted that Brutone the applicant had not availed itself of the option of seeking a statement of reasons. Should it have done so? Brutone referred to this issue in the context of remedial legislation, that is it was intended to confer benefits on the public. Mr Lyons QC said in the course of submissions that::
“It’s not intended to cut down their right to conduct litigation by some alternative method. It would be extraordinary if the result of the preservation of that right (that is, the right to seek a statement of reasons) in respect of Council decisions were said to cut down the right of a litigant to rely on some other evidence to establish a case that a Council has failed to act in accordance with the provisions of the Integrated Planning Act, and it would be a bad and public policy.” (T123)
I agree. I do not consider that the absence of a request for a statement of reasons is a critical issue in this application.
In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, Gibbs CJ said the following:
“There is no general rule for the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory decision and which may adversely affect the interest, or defeat the legitimate or reasonable expectations, of other persons.”
DISCRETIONARY DISMISSAL
It was submitted by Honeycombes that even if the Court found for Brutone in the application, there was nevertheless a basis upon which the Court could, in the exercise of its discretion, still dismiss the application.
Brutone’s response was to emphasise the function of the Court in the context of it not lightly exercising a discretion, when considering a statutory scheme, to allow an assessable development to occur without a development permit.
The Courts have expressed concern about the maintenance of the integrity of planning laws and the importance of the public interest in securing obedience to them: see Queensland Cement Limited v United Global Cement Pty Ltd & Ors (1999) QPELR 167; Woolworths Ltd v Caboolture Shire Council & Anor (2004) QPELR 634; and Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd (2003) 123 LGER 341.
I do not consider that it would be appropriate to exercise my discretion in dismissing the application, in the way suggested by Honeycombes, even if I were to find for Brutone.
However, the circumstances referred to in those authorities are quite different from those in this case. In those other cases there were highly significant departures from the planning laws. Any departure from the planning laws in this case, is in reality and in comparison with those cases, insignificant.
ERROR OF NO PRACTICAL EFFECT
TCC submitted that the applicant is really seeking a merit review under the guise of this application and that in any event even if there was a jurisdictional error, it would be of no practical effect because on any renewed application the same recommendation and conditions would ensue. Further, it submitted that “there is no evidence that the applicant will suffer any damage, hardship or prejudice if the declaration is not made and the current approval remains in place. The applicant has not lost any submitter rights if the approval remains.”
In so far as this submission is concerned, I was referred to the principles discussed in The Dairy Farmers Co-operative Milk Company Limited v Commonwealth(1946) 73 CLR 381 and Kadian v Richards (2004) NSWSC 382 at paragraphs 97 and 98. However, the application of those principles in the context of this case does not in my view sit comfortably with the point that the TCC has made in its submission. I do not agree with the submission on that basis, despite that prospect being advanced in the affidavit to which I have referred.
THE INTEREST OF THE APPLICANT
Honeycombes submitted that the “interest” of Brutone was unclear. Its status as a neighbouring commercial proprietor who owned a shopping centre and car park was all that was known. In NRMCA (Qld) Ltd v Andrew (1993) 2QdR 706 the issue of interest was considered in these terms:
“The failure to disclose the true character of the interest is a matter that may lend itself to an exercise of discretion against the person seeking the relief.”
Brutone submitted that this was not a case such as NRMCA where the very identity of the applicant was not known. That was a very unique feature in that case. The identity of the applicant (Brutone) in this case was known and the “interest” could be at least inferred from the very fact that it was a neighbour with a shopping centre, car park and landscaping. I agree. I do not think that the issue of “interest” is a relevant matter in the circumstances of this case.
CONCLUSION
I do not consider that the decision of Council is one that no reasonable Council could have formed. The recommendation n the Agenda Report was predicated on an assessment of the overall outcomes of the City Plan.
The ADA achieves the outcomes in the Planning Scheme by alternative or different means from the Specific Outcomes. I do not consider that there has been a failure to “return” to a consideration of Specific Outcomes. It is implicit in the report that the overall outcomes were met in the assessment process.
It was reasonably open to Council to have regard to the proximity of landscaping and recreation and communal open areas at the “doorstep” of the site and to regard strict non-compliance with building height and residential density as being consistent with the overall outcomes, in the context of the purpose of the relevant codes.
That assessment process reflects the nature of performance-based codes. The matter complained of by Brutone are, in relative terms, are minor.
The decision of Council has not been shown to have compromised the desired environmental outcomes of the code.
Whilst it is accepted that the Council was bound by the actions of its officers and has a duty to act according to its responsibility rather than to simply allow that responsibility to be delegated to another, I do not consider that there was a failure to discharge that duty. It does not seem to me that the decision of Council in all of the circumstances was unjustifiable on any of the bases upon by Brutone.
In my view the statement of Marks J in Pacific Seven Pty Ltd v City of Sandringham (1982) VR 157 (at 163) is apposite:
“Planning is a difficult exercise with flexibility as an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual nor community interest is served by recourse by exotic legalism.”
I do not consider that Council has based its decision on irrelevant considerations or that the decision was in any other way unjustifiable. It was within the proper discretion of Council to accept that any non-compliance of the city planned not give rise to conflict, was remedial by imposition of conditions and that – in the context of performance-based codes, other ways in which specific outcomes could be satisfied and the overall outcomes – the ADA was consistent with the city plan. It was appropriate for Council to give weight to the report recommendation and make the decision. It cannot be said that the decision was “manifestly unreasonable” in the sense referred to in Peko-Walsend.
The applicant bears the onus in this application. It has failed to discharge it. Accordingly, I find that the application must fail.
ORDERS
1. Application for declaration refused.
2. Application for orders to set aside Decision Notice of 15 October 2007 refused.
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