Collard v Brisbane City Council

[2010] QPEC 39

[2010] QPEC 39

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 778 of 2010

CHRIS JOHN COLLARD	Applicant
and
BRISBANE CITY COUNCIL	Respondent
and
NGA KIM VU	Co-Respondent by election

BRISBANE

..DATE 29/04/2010

..ORDER AND REASONS

CATCHWORDS

Sustainable Planning Act 2009 s 367, s 369, s 374

Application to change development approval constituted by a court order which envisaged a maximum height above natural ground level of 9.5 metres - sloping site where a stepped roof was envisaged in original plans - applicant's private certifier and draftsperson produced plans used in construction incorporating a flat roof with exceedences along the eastern wall from 0.2 metre to 0.5 metre - Council (and the more affected downhill neighbours) supportive of applicant who was considered blameless - whether "permissibile change" - court required to consider putative submissions - uphill neighbour already a submitter, who filed affidavit material in opposition to the application but decided not to participate in the hearing

HIS HONOUR:  The Court will order that the Development
Approval for the subject premises constituted by its order of
the 10th July 2009 in BD 1487 of 2009 be changed to permit
development in accordance with those plans from Exhibit CJC01
to the applicant's affidavit filed on the 12th of March 2010,
copies of which are annexed to this order, to the intent that
on the eastern side of the building a height above natural
ground level of 9.71 metres is permitted in the south
and at the northern end, a height of 10 metres.

...

HIS HONOUR:  The applicant, Mr Collard, has been
self-represented throughout this saga, in which he is attempting, with his partner, to acquire a new home in Denman Street, Greenslopes.  The property was acquired with plans for a residence.  The approval which had been obtained was successfully challenged in an appeal brought by Nga Vu.

Before Mr Collard became involved, he discovered that the blunt instrument of reducing heights in the way that was done in Miss Vu's appeal committed him to a building which was not going to be suitable. In Collard v. Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, he succeeded in depriving Miss Vu of the advantage which she had gained in the compromise of her appeal. Effectively, what the Council had approved was reinstated. Her concern is based on the height of the structure which, coupled with other considerations such as the size and dimensions of the site, rendered the relevant development application impact assessable.

Unfortunately, the plans which were available at that stage
were not suitable to permit construction.  Things have gone
wrong in the process of attending to that deficiency.  As the
story was presented to the Court, that's not Mr Collard's
doing but a consequence of deficiency in the combined
performance of the private certifier and the draftsperson he
engaged.

The land falls away steeply from Denman Street.  The original
proposal for a stepped roof, which would follow the contours
of the site, got lost.  The consequence is that, as
constructed - and the Court is told construction has occurred
essentially in accordance with the final plans - the flat
continuous roof, which has a slope away from the street,
exceeds the benchmark set in the Court's approval of 9.5
metres above natural ground level.  That's the case at the
southern end of the eastern side of the building to the extent
of .21 metre and at the northern end that each side to the
extent of half a metre.

Ms Vu, concerned about what she observed occurring, engaged surveyors, whose work has confirmed the exceedences mentioned above.  It does Mr Collard no credit that he exhibited the hostility he did to the surveyor when the latter was in the course of carrying out his commission, which, it seems to me, was for a reasonable purpose.  In justification, Mr Collard describes his frustration at the unsatisfactory course of discussions he was having with the Vus, who are his
uphill neighbours.

Ms Vu became a party in this proceeding, the purpose of
which is to regularise the construction and to respond to an
enforcement notice, which the Council, very likely acting on
complaint from the Vus, issued, dated the 6th of January 2010.
That notice ordered that further construction, which was
plainly well advanced already, cease.  By appealing to this
Court, in another proceeding Mr Collard obtained a stay of the
enforcement notice and took advantage of that to get
construction effectively completed.  He accepts that he
took that step at his own risk.

Although protesting that non-compliance with the development
conditions set by the Court is attributable to mistakes of
others, Mr Collard accepts that he's gained some advantage
from that mistake in the availability of the additional space
in the roof to house air-conditioning and the like.  As I
understand things, what's inside the dwelling for the family's
comfort doesn't change.  There may have been savings in the
cost of construction from a simpler roof.

The Court proceeds on the basis that Mr Collard is innocent in

relevant respects.

The Court is as reluctant as anyone in the community would be

to require the demolition of constructed works which, to an

extent, exceed what is authorised under the law.  Necessarily

there's a waste of trouble, resources and money.  Nonetheless

there are circumstances where demolition has been ordered. 

See Brisbane City Council v Wang [2009] QPELR 144 and cases

cited there.  It's something that, in my observation, the

Council is loath to seek.

The Court's had the advantage of some comments from Mr Adams,

a principal urban planner with the Council, over and above

what he says in his affidavit.

I apologise for putting him in the embarrassing position of

being invited to say what difference it would make to the

assessment of a new development application of the kind

referred to in section 374(1)(b) of the Sustainable Planning

Act 2010 if Mr Collard were compelled to make a new

development application which would necessarily be a costly

impact-assessable one.

Mr Adams I took to suggest that an officer undertaking

the assessment would be concerned about the integrity of the

planning arrangements and the impacts on neighbours but would

have in the back of his or her mind that the development had

already been done and the aspect of avoiding waste.

He certainly accepted as a realistic possibility that the

further application contemplated not might be approved.  That

would leave for the long term an unfortunate situation in

which the lawfulness of improvements on the site was under a

cloud.  It would bode to cause confusion and uncertainty

whenever the property changed hands or was offered for sale

and perpetuate a risk of challenges, even proceedings, brought

by neighbours.

It seems to me there is a public interest in reaching some

sort of finality so that the lawfulness of existing

improvements or the unlawfulness of them is clearly

established one way or the other once an entity like the Court

is faced with the issue.  What Mr Collard is about is

establishing a situation in which the cloud I referred to can

be removed.

Mr Lyons appeared for the Council today.  Its attitude is

supportive of Mr Collard – which may have implications for the

fate of a new development application by him, should he fail

here.

Mr Lyons referred the Court to various provisions of the Act,

including section 374(1)(b) and section 367(1)(c) over and

above the sections mentioned in the outline of submissions he

was given leave to read and file.

Regarding section 367(1)(c), which is reflected also in

section 374(1)(c), in the original application there was a

submission from the Vus, reproduced in Mr Adams’ affidavit, so

their attitude was made known.

The original planning report foreshadowed or envisaged a

structure rising to 11 metres above natural ground level.

That concerned the Vus, who have the uphill property at the

corner of Denman Street and Peach Street.  They objected to

the impact on their generous existing views.

The Court contemplates putative submitters acting reasonably. 

Cf. Blazen Pty ltd v Brisbane City Council [2010] QPEC 28.

It can't be said that when the Vus made their original

submission, which may have borne some fruit, they weren't

acting reasonably.  As it happens, that submission covers the

present situation, and I have taken it with account, as the

Council formerly did.  There's an affidavit on file from Ms

Vu, which I read in preparation for today's hearing, which she

chose not to attend.  It's clear that her objection to the

restriction of her view and outlook continued.

What is threatened by today's proceeding is the Court's

endorsement of the loss of what would be no more than a tiny

sliver of outlook by the inclusion in the Vus' view of a sight

of part of the flat roof, should their gaze be directed

downwards, rather than to the horizon.

The wall of the Collard house on their side remains at the

approved height.  Nothing that might happen pursuant to the

Council's enforcement notice, issued under section 590 of the

Act, would produce any appreciable advantage to them, in my

assessment.

There is the further consideration that, having taken an

active part in this proceeding, to protect her rights as she

saw them, Ms Vu then chose to withdraw, even before provision of recent email communications to the court printed out as Exhibit 1.  If I recall correctly she may even have told me on a mention of the matter on 24 March 2010 that she didn't wish to play any further part.

The Court ought to take a commonsense, practical approach to

these things.  The withdrawal of Ms Vu, already a submitter,

who was the only potential one under section 367(1)(c),

may I think be taken as at today's date as an indication that

she is a person unlikely to make a properly made submission. 

Exhibit 1 in terms indicates that she is no longer looking to

the Court to protect her interests.  Notwithstanding that,

regard has been had to her affidavit and the exhibits.

Thus far I haven't mentioned the other requirements of a

“permissible change”, as defined in section 367 for purposes

of an application like the present one, under section 369.

There's no real difficulty for Mr Collard.  The change he seeks to the development approval does not result in a substantially different development or trigger involvement

of additional concurrence agencies or the like.

The development application was impact-assessable all along.

It doesn't include any prohibited development.

I'm grateful to Mr Lyons for assisting the Court (in

circumstances where Mr Collard could not be expected to have

the experience to do so) by reference to other considerations

such as the guidelines as to what may be a “substantially

different development” which the Minister has promulgated

under section 759 of the Act.  As the Court held in Heritage

Properties Pty Ltd v. Redland City Council [2010] QPEC 19,

while it may be useful for the Court to refer to guidelines in

matters such as the present, they ought not be regarded as

covering the field.  As it happens, there's nothing

particularly relevant in them for today’s purposes.

The Court's obligation as the entity making the decision to

notify it appears in sections 375 and 376 of the Act.

I agree with Mr Lyons that communication of the Court's order

would constitute compliance with the Court's obligation as

responsible entity approached under section 369.

Differences between neighbours are regrettable but perhaps to be expected where people's outlook, amenity and views are in issue.  One significant consideration here is that the downhill owner is agreeable to what Mr Collard wishes to

achieve or preserve.  It's the downhill owner, as Mr Adams

said, who suffers the main impact of the excessive height of

the roof line on the eastern side of Mr Collard's house.

Given the fall in terrain in that part of Greenslopes and the

dominating nature of the Vu residence on the highest site in

the west, what exists as established by the photographs, for

the moment, is a visually-acceptable, even pleasing fall in

roof lines.  The future will show whether that will survive

the development now threatened on the downhill site according

to Mr Collard.  Across Denman Street are the relatively

mammoth structures of the Greenslopes Hospital.

Ms Vu sought to devalue the concession made by the lady who –

is the next door, downhill neighbour, Bridget Evans, in light

of information that she appeared to have her property on the market.  As things stand, she was the owner at the relevant times and the person to express an attitude in respect of the neighbouring site on the east, which is the one most affected.

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