Chapman v Brisbane City Council and Mount St Michael's College

[2007] QPEC 40

[2007] QPEC 040

PLANNING AND ENVIRONMENT COURT

JUDGE BRABAZON QC

P & E Appeal No BD2979 of 2006

MICHAEL and PATRICIA CHAPMAN  Appellants

and

BRISBANE CITY COUNCIL  Respondent

and

MOUNT ST MICHAEL'S COLLEGE  Co-Respondent

BRISBANE

..DATE 22/01/2007

JUDGMENT

HIS HONOUR:  There has been conflict between St Michael's College Ashgrove and local residents.  The school wishes to expand because of increasing numbers.

There is a preliminary issue to be dealt with here. Is the Brisbane City Council approval which the school presently has invalid because of a failure to notify to the public changes to its plans before the approval was given? If so, there is a second question. Should that failure be excused and a hearing on the merits proceed in any case? The two sections of the Integrated Planning Act which are important here are 3.2.10 and 4.1.5A.

In September 2005 the school lodged its application and plans for expansion.  The plans showed some new multi-purpose courts, the demolition of an old house at 20 Aloomba Road, Ashgrove, and car parks under the courts.

An information request from Council followed.  The school, by way of response, amended the plans to add a large classroom building.  The acknowledgment notice following that said that there would be no further information request.

In late November and early December 2005 public notification of those plans took place, including the additional classroom block.  The response from the residents included 56 submitters who were against the proposals.

Following that, there was an unusually high degree of contact between the school, the Council and the submitters.  For example, a meeting was held between the Council and the submitters and good contact was established between those two groups.  There were discussions between the school and the Council about changes to the plans.

On 6th June last year some changes to the plan were made by the school.  A floor was taken off the proposed classroom block, the structure of the courts was changed, and the number of car parks under the courts was reduced from 39 to 20.  Then on 19th June some further relocation of the courts was proposed.

By August last year it seems from the papers here that the Council's officers were still resisting the school's proposals.  On 22nd of August the school wrote to the Council including further amended plans.  It is those plans which have been approved and have led to the present application.  In its letter of 22nd August the school said:

"As you may be aware, a large number of submitters have opposed the application that comprised the demolition of the existing dwelling at 20 Aloomba Road, Ashgrove.  To meet the requests of many of the submitters and in an effort to resolve the current impasse on the current development application, the proposal now retains the existing house at 20 Aloomba Road, Ashgrove and proposes to reuse it for school purposes."

The letter went on to outline those purposes and then mentioned an amendment to the playing courts:

"As a result of the retention of the house the proposal has to relocate the playing courts to different locations on the site.  The change is also required as per your information request dated 21st August 2006.  The new location and layout reflects a less desirable orientation of the courts and limits the use of the courts given they cannot be used together..."

Then followed an e-mail from a Council officer to a number of the submitters.  It seemed that e-mail addresses for only a small number of the submitters was held by Council.  This is what the e-mail said of importance here:

"Dear Submitter,  This e-mail is a courtesy e-mail only and is only going to a limited number of the submitters who we have e-mails for.  The applicant for Mount St Michael's has now lodged new plans and other material.  These revised plans include the keeping of the house at 20 Aloomba Street, the extension of that house for school activities and a reconfiguration of the courts.  Full details are available on the Council website.

These modifications do not require a readvertising of the proposal.  Council will therefore be making a decision on the application shortly.  We anticipate that the application will go to the Urban Planning and Economic Development Committee on Tuesday 29th July." (It is apparent that the date was a slip and obviously should have been 29th August.)

Then followed a flurry of activity.  As it happened, the new plans were too complex to be downloaded from the Council website.  By the 25th of August access to the actual plans had been obtained by some of the submitters.

On 27th August there was a meeting of about a dozen of the submitters.  That group composed a written submission which was sent to the Council.  The new proposal was criticised for its impacts on the neighbours.  The submission also asserted that the changes were not amendments but amounted to an entirely new submission.  There was an objection to the material change of use of the residence at 20 Aloomba Road. 

In conclusion the submission said this:

"The residents will pursue every possible legal avenue to prevent the application in its current form proceeding...There is a need for a compromise..."

On 29th of August Mr Chapman, who is an appellant here, attended the Urban Planning Committee meeting.  Then, on the 16th September, a decision notice issued approving the revised plans.

Of the submitters 41 have now become appellants in this court.  There are 32 separate notices of appeal.

It is necessary to deal first with the notification point.  It is common ground with regard to the conditions in section 3.2.10 of IPA that impact assessment of the proposals were required and that the notification stage had been completed when the final changes to the plans was made.

The key part of that section to be considered is this:

"The notification stage does not apply to a changed application if...the assessment manager is satisfied the change to the application, if notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change."

There is no evidence here of any actual consideration by the assessment manager of the changes.  There was simply the assertion in the email that there would be no readvertising.  It was accepted by counsel for the school and Council that the appropriate test was that found in Kangaroo Point Residents' Association and Ors v. Brisbane City Council and Ors (2001) QPELR 321. There Judge Quirk, following some earlier statements of principle by Judge Skoien in this court, said that the relevant principle, in effect, was this:

"The opinion of the Council must be accepted unless it could be shown to have been one that no reasonable Council would have formed or that it was based on irrelevant considerations, or that in some other way it was unjustifiable."

It is not entirely clear if that statement of principle has survived the decision of the Court of Appeal in Ramsgrove Pty Ltd v. Beaudesert Shire Council and Ors (2005) QCA 434. In any event, if the principle does apply, no reasonable Council could have formed the view on the facts before it, that no one would object. At least by the end of August 2006 the changes were certain to attract submissions against them. The number and determination of the submitters made that certain. So it is clear that there should have been a further notification of the amended plans. If that were all, the usual result would follow; that is to say the approval would be declared to be void. That would be the position unless there is another provision of the Integrated Planning Act which might save it.

It was for that reason that the submissions on behalf of the school and the Council concentrated on section 4.1.5(A) of IPA:

"(1)  Subsection (2) applies if in a proceeding before the court, the court -

(a) finds a requirement of this Act...has not been complied with or has not been fully complied with, but;

(b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act;

(2) The court may deal with the matter in the way the court considers appropriate."

That general power has recently been considered in the Court of Appeal and applied by judges of this court.  It is considered by the Court of Appeal in Ramsgrove and Metrostar Pty Ltd v. Gold Coast City Council (2006) QCA 410. A recent decision of this court can be seen in Lamb v. Brisbane City Council and Anor (2006) QPEC 124.

The effect of those decisions, and, in particular, the effect of the decision in Ramsgrove, is that in appropriate circumstances the court will have an additional power to consider the effect of any non-compliance with section 3.2.10. 

The school and the Council submitted here that it was inevitable that there would be an appeal on the merits.  It was suggested that all issues would be ventilated at that appeal, and that anyone could be a witness, even if not a submitter or an appellant.  Therefore it was said any further notification would simply be a waste of time and money. Mention was made of the decision in Kangaroo Point Residents' Association v. Brisbane City Council.  In that case Judge Quirk went on to say that in the event that there was a need for further notification that there was no basis for making the declaration sought;  that is to say that the assessment manager's conclusion under section 3.2.10 was wrong.  He said there were good reasons for a discretionary refusal to make that declaration.  He went on to say:

"All of the matters raised before me on this occasion can be thoroughly explored in evidence at the hearing of the appeal.  Little practical advantage, other than delay, would be served in remitting the matter for further consideration by the assessment manager under section 3.2.10(c) or, for that matter, to the notification stage.  It is true that Mr Duncan is not a party to the appeal, but if he wishes to put his views before the court he may be called to give evidence, as he did on this occasion.  One of the stated purposes of the Act is that the decision making process should be co-ordinated and efficient.  That objective would not, in my view, be advanced by granting the relief sought on this occasion."

The amount of time that has passed between the submission of the original plans and notification and the present approval should be noted.  It is a period of about nine months.  It was submitted on behalf of the appellants that the planned demolition of 20 Aloomba Avenue has been transformed into the renovation and extension of the house for school uses.  The plans show that it is to be used for a spiritual centre, a chapel, offices, a multi purpose room of about 60 square metres and a store room.  The plans show that the house will be about doubled in area when the extensions are complete.
The submissions also pointed to the new location of the tennis courts next to the former number 30 Amarina Avenue.  That was an old house which was demolished some time ago by the school. On that occasion, in November 1996, the school pointed out that the result would be space next to the buildings.  As it is put in the school's letter of 22nd November 1996 in proposing the demolition of the house,

"The purpose of the rezoning application seems to have been missed by Council where a beautiful landscaped green buffer zone between our multi-purpose centre and the residential zone would only enhance the streetscape and overall perspective."

It is on that land that the residents point out that the courts would now be constructed.  The courts will also be next to a residence (which is owned by the school).  There will be some retaining walls on the two sides of the court because the land slopes. 

On any view of the matter the changes made by the school are substantial.  They would probably generate new and different objections.  It is also pointed out by the submitters in their submissions that the affidavits of the Longs, Ms Fitzgerald, the Boyces and Mr Chapman wish to object to the changes if they have an opportunity to do so.

An appeal on the merits would not allow the residents to exercise a right to make new submissions under IPA. In my opinion, it is not appropriate in this case to say that this appeal will give them everything that they should have by an opportunity to complain about the proposals. A right to make a submission is not just a formality. Its value is recognised, for example, in Scurr's case, [1973] 133 CLR 242 at 252. The Council may change its view of the revised application if submissions are made. All or part of the appeal may be avoided. The status of a submitter and appellant can be a significant one and persuasive, especially as here where there are a large number of submitters and appellants.

It may be that the decision in Kangaroo Point was perfectly appropriate, on the facts of that case.  However there is a danger in not paying sufficient attention to the submitters' rights to make their objections.  It is not enough, in a case like this, to say that the matter will be completely ventilated in this Court.  Impatience with the submitters' rights to object should not, of itself, persuade the court to proceed directly to the hearing of the merits.

In the exercise of the discretion, the application to excuse the lack of compliance according to section 4.1.5A should be refused and that will have the consequence that the decision of the Council will be set aside. 

I have made no mention of the Main Roads Department.  It is a referral agency.  Because of its minor role here, it would have no impact either way on this conclusion. 

Before making a formal order I should say that the residents were capably represented by two of their number and that the court is indebted to counsel who, as well as their useful submissions, pointed out all the relevant authorities both for and against the present approval.

The order of the court, subject to any further submissions, is:  declare that the decision notice of 5th September 2006 is invalid and of no effect.

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