Cooloola Shire Council v Suncoast Buildings Approvals

[2008] QPEC 36

[2008] QPEC 36

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E No 3111 of 2007

COOLOOLA SHIRE COUNCIL	Applicant
and
SUNCOAST BUILDINGS APPROVALS	Respondent

BRISBANE

..DATE 12/06/2008

ORDER

HIS HONOUR:  This is an appeal by the Cooloola Shire Council from a decision of the Building and Development Tribunal which was given on the 3rd of October 2007. 

The subject matter of the proceedings concerns a development application which was made to the respondent, Suncoast Building Approvals, which is a private certifier.  That application was made by Ausmar Homes which sought an approval in respect of a dwelling. 

Suncoast Building Approvals referred the application to the council under cover of an undated letter which, it would appear from the index to the agreed bundle of documents, was sent on or about 31st of July 2007.  The letter said that it was a referral to the council as a concurrence agency for the approval of siting requirements.

The council responded under cover of a letter of the 3rd of August 2007 purporting to make two decisions.  One was the granting of a development permit for a material change of use and one was a preliminary approval for building work.

Suncoast Building Approvals, which apparently has had some previous disputes with the council about the proper process for such applications, contended that the council had no power to grant an approval for a material change of use.  It sought to ventilate that issue by an appeal to the Tribunal.

The notice of appeal stated that the name of the appellant was John Hill of Suncoast Building Approvals.  The grounds of the appeal made it clear that the appeal was not about the siting component, but rather about the council's purported granting of a material change of use approval.  That was the issue that was considered by the Tribunal, which decided as follows:

"The decision of the Cooloola Shire Council dated 3 August 2007 is set aside and is to be replaced with the following:

Under section 3.3.16(1) of the Integrated Planning Act 1997 the concurrence agency's response to the building certifier as assessment manager is to require that the following condition be placed on the development permit for building work;

'A side boundary setback of 14.5 meters to the outermost projection on drawing number PLNB sheet 1 of 9 (for the eastern side boundary) as required'."

The council appeals against that decision, essentially on the grounds that it involved an error or mistake in law or an excess of jurisdiction, those being the grounds upon which an appeal may be brought to this Court from a decision of the Tribunal, pursuant to section 4.1.37.

The parties came to Court prepared to argue various issues in relation to the correct procedure for the processing of a development application and, indeed, issues about the validity of provisions of the planning scheme, however I consider that there is a much more fundamental problem with the proceedings, including with the proceedings below.  That difficulty is that Suncoast Building Approvals, which was the appellant before the Tribunal, simply had no standing to appeal to the Tribunal in respect of the council's response.

The right of appeal to the Tribunal, in relation to development applications, is dealt with in Division 3 of part 2 of Chapter 4 of the Integrated Planning Act. That makes it plain that appeals may be brought by someone who is an applicant for a development application or an advice agency or a person to whom a notice of the kind referred to in section 4.2.11 has been given. As counsel for both parties readily acknowledge, Suncoast Building Approvals does not fall within the description of someone who may appeal under any of the provisions in Division 3.

Other appeals are provided for under Division 4 of the Integrated Planning Act, but it was not suggested that any of the provisions contained therein provide a basis for the appeal from Suncoast Building Approvals to the Tribunal. No other provision was able to be pointed to, as providing standing for Suncoast Building Approvals' appeal to the Tribunal. Indeed, counsel for Suncoast Building Approvals conceded that the point was fatal.

Accordingly the appeal must be allowed and the decision of the Tribunal set aside and the appeal to it dismissed on the basis that the Tribunal had no jurisdiction to entertain the appeal by Suncoast Building Approvals.

Counsel for Suncoast Building Approvals raised the prospect of an instanter application for declarations, so that the substantive arguments could be ventilated and the subject of a determination by the Court.  The difficulty with that however, is that such declaratory proceedings would relate to the validity of an approval process and the lawfulness of land use for someone who is not a party to these proceedings.  Upon reflection, counsel for Suncoast Building Approvals acknowledged that that presented a difficulty with proceeding as he had first suggested.

While I am conscious that a deal of work has been put into preparing the arguments, I do not see a proper basis upon which I should embark upon a consideration of those, at this stage, in the context of these proceedings, given the difficulties to which I have referred.

Accordingly, the appeal is allowed; the decision of the Tribunal is set aside; and the appeal to it is dismissed.

-----