Cox v Maroochy Shire Council
[2006] QPEC 51
•22 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Cox & Ors v Maroochy Shire Council & Ors [2006] QPEC 051
PARTIES:
ELIZABETH COX, JORG HERRMAN, LLOYD LAITY
Applicants
v
MAROOCHY SHIRE COUNCIL
First Respondent
and
KATE DILLON
Second Respondent
and
RONALD FREDERICK MILLER and MARSHA DARLENE MILLER
Third Respondents
and
SUNCOAST BUILDING APPROVALS (a firm)
Fourth RespondentFILE NO/S:
Appeal No 127 of 2005
DIVISION:
Planning & Environment
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:
22 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
13-17 March 2006; submissions 18 May 2006
JUDGE:
Skoien SJDC
ORDER:
Application dismissed.
CATCHWORDS:
Code assessable, very large house. Assessment of slope; whether certain rooms and spaces constitute a storey; encroachment within side boundary set back; performance criteria and acceptable measures; amenity; bulk, streetscape; jurisdictional error; Wednesbury principle.
COUNSEL: Mr S Keim for applicants
Mr M Williamson for first respondentSOLICITORS:
Mr P Lyons QC with Mr W Cochrane for second and third respondents
No appearance for fourth respondent
P&E Law for applicant
Maroochy Shire Legal Services for first respondent
Crilly Lawyers for second and third respondents
The applicants, by their originating application, seek declarations under s.4.1.21 of the Integrated Planning Act 1997 (“IPA”), challenging the validity of a preliminary approval for building works granted by the Council on land owned by the Millers at 3-5 Riverview Avenue, Buderim (“the site”). The application also seeks injunctive relief, under s.4.3.26 of IPA, in respect of the building which is now largely constructed on the site. The planning instrument for the area is Maroochydore Plan 2000 (“MP2K”)
Background
The Millers are the registered proprietors of the site (Lots 3 and 4 on RP 124292. At the date of the hearing of this application an existing dwelling on Lot 4 was being extended into and over Lot 3. Thus the development which is the subject of these proceedings is the extension which stands partly on Lot 3 and substantially on Lot 4.
Mrs Dillon, the previous owner of the existing house on Lot 3, is the project manager for the Millers. On 27 October 2003 she submitted an application to the Council for a preliminary approval for code assessable building works for the extension. The application was required because the extension (which would otherwise have been self-assessable development) did not comply with Acceptable Measure A1.6.1 of Code 2.1.4 (Element 2) of the MP2K – setback requirements for building envelope. In that circumstance s.4(9) of MP2K provides that the application becomes Code assessable but only against the code the development does not comply with. The application was assessed by the Council as a code assessable application.
On 19 November 2003, the Council issued an information request seeking details of survey data of existing ground levels and confirmation that the existing dwelling and extension was to be used as a single detached dwelling. This was supplied by Suncoast, on behalf of Mrs Dillon and the Millers on 24 November 2003.
On 27 November 2003, the Council approved the application for a preliminary approval for building works. That approval was granted subject to conditions, one of which required the amalgamation of Lots 3 and 4 before commencement of residential use of the land.
On 28 November 2003 the Millers obtained a building approval (by way of private certification) to construct the extension to the existing dwelling generally in accordance with the approved plans. The ensuing construction of that extension has been undertaken in reliance upon the approval granted by the Council and the approval granted by the private certifier. The maximum height of the building is to be 9.9m.
The Site and the Locality
Riverview Avenue runs more or less east/west and the land both to its north and south slopes quite steeply downhill from south to north. This affords residents of houses on both sides of the Avenue good views of a very attractive panorama encompassing the Maroochy River, agricultural areas (traditionally cane land), Mount Coolum (and other mountains), the urban development of Mooloolaba and Maroochydore, and, of course, the ocean.
The site is made up of Lot 3 (the existing house) and Lot 4 abutting it to the west with a combined area of 2755m². It is on the northern side of Riverview Avenue. Immediately to the west of Lot 4 is the house of Mrs Cox. More or less directly across the Avenue from the site, that is, to the south, are the houses of Mr Herrmann and Mr Laity.
The Issues
There are four broad issues before me:
(a) Whether the Council had power to assess and decide the application, that is whether there was a jurisdictional error in purporting to do so;
(b) Whether the decision of the Council was one which no reasonable Council could have made (the Wednesbury principle);
(c) Whether a condition relating to the western wall of the proposed building is uncertain; and
(d) The exercise of the Court’s discretion.
Jurisdictional Error – the law
Not every error, even a serious error, made by a Council in its consideration of a development application qualifies for the description of jurisdictional error. It may be a jurisdictional error, or it may be any error which will fall to be considered under the Wednesbury test, that is the principle discussed in Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1K.B.223. One of the particular difficulties is, as was noted by the High Court in Minister for Immigration and Multicultural Affairs v Yusef (2000) 75 ALJR 1105 at para [82], that these principles may overlap.
What, then, is jurisdictional error and what is not? A passage which is frequently cited from the judgment of five Justices of the High Court in Craig v South Australia (1994-1995) 184 CLR 163 at 179 is:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
In Buck v Bavone (1975-76) 135 CLR 110 at 118-9, Gibbs J said:
“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account.”
This I take to be an example of jurisdictional error. His Honour continued:
“Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.”
This I take to be an example of the Wednesbury principle. His Honour continued:
“However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”
This I take to be an example of an unimpeachable decision. His Honour continued:
“Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.”
This I take to be an example of jurisdictional error.
There are occasions in which the legislation makes it clear that the assessing authority is to decide whether the facts on which jurisdiction is founded are established, in which case its decision cannot be a jurisdictional error. See Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297 at 304 where the High Court adopted (see at 303) the dissenting judgment of Black CJ in the Court below:
“Black CJ concluded that the power of the Commission to enter a place upon the Register depended upon the Commission’s own view of the matter rather than the “objective” ascertainment of a “jurisdictional fact”, namely the identity of the place in question as part of the national estate. His Honour concluded (36):
“In determining, according to law, whether or not a place is part of the national estate, the Commission will of course need to make a proper assessment to determine whether a place is, in fact, within the definition of the national estate in s.4. In doing so it will need to make assessments and value judgments but its ultimate task is to determine whether, in fact, a place is within the definition. The final determination of that question is however one that is committed by the Act to the Commission. It is not, in my view, a jurisdictional fact.”
I refer to the discussion of these matters by McLauchlan DCJ in Clayton v Miriam Vale Shire Council & Anor [2000] QPELR 320 at paras [16] and [17] with which I agree. I refer also to the helpful analysis of relevant considerations made by Brabazon DCJ in Westfield Management v BCC [2003] QPELR at para [64].
Alleged Jurisdictional Error
The first alleged error relates to the slope of the site, and it is said that the slope should have been assessed at less than 15%. If that were the case the proposed house would not be code assessable but would be impact assessable because the house was to exceed 8.5m in height.
As this is an application for declarations and consequential relief, the function of this Court is not the same as if it were hearing a “merits” appeal. In this case, the Court is not concerned with the merits of the decision to approve the application for a preliminary approval, but rather whether the approval was validly given by the Council. In this regard, Newton DCJ in Eschenko v Cummins, [2000] QPELR 386 at 389, relevantly observed:
“… The proceedings with respect to the relief claimed under s.4.1.21 and s.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 directly concerned with the merits of the approval in question, but rather must consider whether the approval given by the Second Respondent under s.48 of the Standard Building Regulation was validly given.The onus of establishing invalidity falls upon the applicant (Parramatta City Council v Hale (1982) 47 LGRA 319 at 335, 393).”(my emphasis)
Slope
In s.3.3. of MP2K the following relevant definition appears for residential uses:-
“Detached house means the use of premises as a single dwelling unit on one site and may be in the form of:
· a hillslope house (i.e. a house where on a lot having an area of not less than 600m² and with a predominant slope of greater than 15%);
· a traditional house (i.e. a house where on a lot having an area of not less than 600m² and land with a predominant slope of less than 15%”
On the other hand, the relevant Table 6.1 of Assessable Building Work has this provision (relevant to self assessment):
“Hillslope House Where on a site having an area of not less than 800m² and having a slope between 16-20% and any part of the building has a height of not more than 10.0 metres (and 2 storeys).”
It is obvious, and accepted by the parties, that the provision should read “no part of the building has a height of more than 10 metres (and 2 storeys).”
Immediately, there is an apparent conflict in the critical percentage figure by which slope is measured. Is it 15% or 16%?
It may be possible to reconcile the two provisions. The definition of “slope in s.3.2 of MP2K provides that “the slope shall be determined to the nearest whole number”. So, ignoring minutiae, a slope of 15.01% to 15.5% would be taken as 15% and a slope of 15.51% to 15.99% would be taken as 16%. The former would not be a hillslope house, under the definition cited in para [17] above but the latter would. The former would not fit within the table cited in para [18] but the latter would as long as one reads (as I think is correct) “16-20%” as inclusive of 16%.
The material definition of “slope” in s.3.2 of MP2K contains this:-
“(b) for any building works … the slope of the building area is that determined as follows:
(i) where the building area has one predominant slope, that slope,
(ii) where the building area has more than one predominant slope, the average of all predominant slopes.
· where there is any question about the determination of slope, the slope shall be as determined by the Assessment Manager, and
· the predominant slope shall be measured perpendicular to the contours of the building area and calculated as follows…
The calculation examples exemplify the application of the ordinary applicable mathematics to land of different characteristics.”
The term “building area” is also defined in s.3.2 thus:
“(a) for determining the slope or assessment level for a detached house… of any size a rectangle measuring 15 metres by 20 metres located on the site outside the required road frontage setbacks.”
The definition of “slope” in para [21] above make it clear that the initial slope calculation is to be done by the developer. Should some difficulty be encountered the provision gives the final say to the assessment manager.
The first step is to select the building area. The definition allows considerable latitude in that and in this appeal the choice of the area was seriously debated. But it seems to me that where, as in this case, the area selected by the developer was roughly within the perimeter of the proposed extension to the existing house no valid criticism can be levelled against the selection.
In this instance the selection of the building area and the calculation of slope was done by Mr Russell, the private certifier based on surveys carried out by professional surveyors. It lies within the proposed building perimeter and is clear of the road frontage setbacks. The calculation of slope was 17.75%. This was provided to the Council.
Council officers carried out a site inspection so that the lay of the land (which was not in its pristine state, having previously supported a house, demolished in 2003) could be assessed by them. Obviously they saw that the contour plan supplied to the Council did not reflect the existing situation, because the Council wrote to Mrs Dillon raising that point and asking for advice on RL details of the building platform relative to the proposed floor levels. These were provided and it is clear that the Council accepted this information because the preliminary approval which issued was obviously based upon a slope of greater than 16%, Code assessment being allowed.
Can it be said, applying the quotation from Craig in para [11] above, that the Council identified a wrong issue (here, slope), asked itself a wrong question (here it enquired about levels when considering Mr Russell’s slope calculations), ignored relevant material or relied on irrelevant material (none is identified). The “common material” (defined in IPA, Schedule 10) included the letter of Suncoast dated 9 October 2000 which said that the site had been assessed with a building area slope greater than 15% and that assessment was by a qualified building certifier. The assessment manager made handwritten notes (a plan OPW-01 of the common material) which related to registered levels and higher differentials. Plans forwarded with the response to the information report contained contour lines and many spot heights. Section 3.2 (see para [21] above) reposed the final determination of slope in the assessment manager.
It is not for the Council (or the other respondents) to prove that the Council did not fall into jurisdictional error, or indeed any error. It is for the applicants. Indeed on the facts recited in para [24]-[27] it positively appears that none of the Craig criteria of errors can be sheeted home to the Council.
Although, as has been noted, this is not a merits appeal, it is surely relevant to consider, if evidence on the point is available, what the relevant slope in fact was. If it was greater than 15% (or 16%) then it seems to me that even if a Council on a Code assessment allowed a development application without ever turning its mind to slope, it could be argued that the Council made no error at all, let alone jurisdictional error. It would seem rather pointless to set aside a decision just so the Council could do its job properly and find that no error at all had been made. That circumstance may be rather far-fetched and on the evidence certainly did not occur here. As a more likely scenario, if it is clear that the Council gave only scant attention to slope but if it can be established that the slope in fact exceeded 16%, again it could be argued that no error was made on the basis that a correct answer, even if arrived at by default or by a guess, is nonetheless a correct answer. In any event, if it came to the exercise of discretion, the fact that the slope in fact exceeded the critical percentage would obviously be highly relevant.
Mr McDowall and Mr Pozzi, surveyors, each carried out an exercise to determine the slope of the site. Each gave temperate and considered evidence but in the upshot I preferred the methodology of Mr Pozzi. I consider that the “building areas” Mr McDowall selected were not indicative of the site, at least in the area to be covered by the extension. He considered some areas where the existing building stands, an endeavour I think to be quite unhelpful. Even when he considered areas on lot 3, predominantly within the envelope of the extension, he concentrated on areas which were considerably more level than others. On the other hand Mr Pozzi’s selected building areas were all relevant to the extension and the slopes ranged from 16% to 18%. This was based on his own survey. When he did the same exercise based on another firm’s survey work he concluded that the predominant slope was 16% which, as I have said in para [20] brings the proposed extension into the code assessable criteria of Table 6.1.
Thus, irrespective of the enquiry carried out by the Council, the objective fact is that the relevant slope was 16% or higher, that is, within the Code assessable criterion for a hillslope house.
Being unable to discern a jurisdictional error in relation to slope, I turn to the alternative, whether the decision to allow code assessment, so far as it related to slope, was one which no reasonable Council could have reached (the Wednesbury principle).
Wednesbury Principle – the Law
In Lyons v Misty Morn Developments Pty Ltd & Anor 1998 [QPELR 268 at 272], in relation to the unreasonableness test, I said:-
“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 where the authority to do that thing is expressed by the Act to be dependant on that person reaching a specified state of satisfaction. This is such a case. The decision was made by Veal as the Council’s delegate that he was satisfied that –
‘No reasonable objection, whether or not it would ultimately be upheld, may be expected where an application to rezone the land to Residential A is made.’
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 an irrelevant consideration or that in some other way it was unjustifiable. If it is justifiable, it stands whether or not others may disagree with it. (See Parramatta City Council v Pestell (1972) 128 CLR 305 at 323, per Menzies J) where he said:
‘There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man, the latter is one that is not merely defensible – it is right. The validity of a local rule does not depend on the soundness of a Council’s opinion; it is sufficient if the opinion expressed be one reasonably open to a Council. Whether it is sound or not, is not a question for decision by the court.’”
If the unreasonableness test is relied upon, it should be –
“Confined to extreme cases, its application should not involve the Courts in trawling through the fine details of the administrations work, looking for errors. Rather, it amounts to the sort of low level quality control which most management systems should maintain in any event … there would be serious credibility costs to the system if demonstratively absurd decisions were allowed to go unchecked …” (Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707).
My discussion in relation to jurisdictional error leads to the obvious conclusion that it cannot be said that no reasonable Council could have assessed the slope at greater than 15% (or 16%) so as to treat the application as code assessable.
Number of Storeys – Jurisdictional Error or Wednesbury
The argument on behalf of the applicants is that a part or parts of the building comprises more than two storeys so that under Table 6.1 (see para [18]) the development could not be a hillslope house and thus would be neither self assessable or code assessable but would require impact assessment. The alleged third storeys are:
(a) basement under the home theatre
(b) alleged kitchen area under existing building.
Basement Under Home Theatre
The proposed building is designed to contain, at the western end and on its ground level, a large home theatre. It is to be equipped with very expensive and highly technical mechanical and electronic equipment. In a space below the theatre is to be housed equipment such as rows of seats and the speakers which, when the theatre is to be operated, will be raised into position by hydraulic lifts. This space is above ground level which is material because in the definitions contained in s.3.2, “height” (whether referring to height in metres or in storeys) is measured from ground level up.
The definition given to “storey” in s.3.2 is:
“storey” means a space within a building which is situated between one floor level and the floor level next above, including a mezzanine level, or if there is no floor level above, the ceiling or roof above, but not:
(a)(i) a lift shaft, stairway or meter room; or
(ii) a bathroom, shower room, laundry, water closest, or other sanitary compartment; or
(iii) lift motor room, air conditioning or other mechanical or electrical plant at roof top level; or
(iv) accommodation intended for not more than 3 vehicles;
(v) a basement carpark where any part of the ceiling is not higher than 1.0 metres above ground level; or
(vi) a combination of the above; or
(b) a roof top terrace.”
The argument for the applicants is that the space is a separate storey because it does not qualify under any of the listed exclusions. It is true that none of those exclusions describe it. But before one turns to exclusions one ordinarily looks at the inclusive definition. And in doing that one takes note of the principles that have been laid down by the courts for the interpretation of statutes, for example Project Blue Sky Inc v Australian Broadcasting Commission (1998) 153 ALR 490 and perhaps more relevantly, of planning schemes. Many of the decisions of this court on the latter have been usefully collected by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 at 342.
I repeat only a few of those:
(a) They should be construed broadly, rather than pedantically or narrowly with a sensible, practical approach;
(b) They should be construed in a way which best achieves their apparent purpose and objects;
(c) Although they have the force of law they are not drawn with the precision of an Act of Parliament.
The restrictive provisions of a planning scheme relating to numbers of storeys are no doubt aimed at controlling, primarily, building height and also (perhaps not always) density of use. On the primary question of building height it is immediately apparent that this particular space does not have the effect of increasing it above the maximum permitted height for self assessment or code assessment, of 10m. It cannot be said to increase the density of development as it is only 1.5m in height, will contain machinery and be accessible only by use of an external door or hatch. It could not be described as a habitable space.
The submissions of the Council and the developer are that the space could in no sensible way be called a storey because of its shallow height and restricted entry, because its sole purpose is to house equipment to be used in the theatre and when not in that use is merely a storage area and because it is in fact an integral part of the theatre and serves no other purpose whatsoever. I must say that it does seem, at first blush, odd to call this space a storey and if necessary I would reject the notion by accepting these submissions.
However in my opinion the oddity involved in considering this space as a storey because it does not fit into any of the exclusions is avoided because in my opinion it does not, to begin with, fit into the inclusive words of the definition of “storey”. While it is situated below “the floor level next above” (the theatre floor level), I do not see it as being (in the ordinary use of the English language) between that floor level and another floor level. In the context of a habitable building such as a detached house, a floor level must surely mean a floor which is available to be used, to be walked on normally by adult human beings. The floor of the space with which I am dealing could not be walked on by adult human beings. Quite clearly it can only be used to support machinery and equipment and, periodically, to allow mechanics or technicians to get access to the machinery and equipment, and when they do that they could not do so by walking normally, that is walking erect.
So far as I can see the evidence is silent on the attention actually given to this space by the assessment manager but the plans which accompanied the application and indeed also the approved plans had a clear and accurate notation of the proposed space under the theatre, its height and purpose. I cannot accept that it was overlooked or misinterpreted or that the possibility that it created a third storey was not considered and rejected. In any event the applicants have not persuaded me of the existence of any of those, or any other matters, to establish jurisdictional error. Nor am I persuaded that no reasonable Council could decide that no third storey was created by it.
Alleged Kitchen Area
The argument here was whether a jurisdictional error (or Wednesbury error) was made by the Council in failing to conclude that a room at the back, or north east side, of the existing house created a third storey. The applicants argued that it is in fact a kitchen and thus caught by the definition of storey. The Council and the developers contend that it is a bathroom/shower room/lavatory, and thus excluded by s.9(a)(ii) of the definition.
The evidence was that a swimming pool used to be located just outside the room. The room was fitted out with a shower and lavatory for the use of bathers. There was also a washing machine. The pool has now been removed and replaced with a spa. The room was modified – an outside door was provided, the washing machine removed but the shower and lavatory were left there. Unsurprisingly, each of those is contained in a cubicle to give privacy to the user. Mrs Dillon’s evidence was that it is intended to be used as a lavatory/shower for people using the spa. There is a stainless steel hand basin and cupboards in which towels are stored. She denied that there was or is any intention to cook in the room which she described as “rather stuffy”. I rather doubt that the presence of a lavatory in the room would encourage the room to be used for the preparation of food. The room is quite large but I am of the opinion that it was, and is, merely an adjunct to the shower and lavatory to permit hand washing after use of the lavatory and drying and dressing after use of the shower and spa.
I accept that the room falls within para (a)(ii) of the exclusions from the definition of storey. In the letter that went to the Council with the application the room was expressly referred to as “powder room (bathroom)”. That was the fact as I find it and the Council’s assessment officer accepted it as the fact as the file notes show. No mistake of any kind has been demonstrated by the applicant on this aspect of the application.
Further Wednesbury Grounds
The applicants allege that there was no reasonable basis on which a properly directed assessment manager (i.e. the Council) could properly be satisfied that the application made by Mrs Dillon on behalf of the Millers satisfied various provisions of Code 2.1.4 of MP2K (Code for Development on Steep or Unstable Land) and of Code 4.1 of MP2K (Code for the Development of Detached Houses and Display Homes).
In the Introduction to Volume 4, Part 1 of MP2K, s.1.1 (Application of Code Provision) contains this provision:
“(5)For the assessment of development under this Planning Scheme by Council as Assessment Manager, where there is any question about whether or not a code or part of a code applies to a particular development, subject to the relevant parts of the Act “[i.e. IPA]” the applicability of the code or part of the code shall be as determined by Council.”
As usual, the Codes in this volume set out various Performance Criteria of which s.1.2(4)(a) says:
“(a)Performance Criteria are statements of the outcomes to be achieved in satisfying the stated purpose. They provide an opportunity for a variety of responses to the design of assessable development.”
Again as usual, where the Codes set out Performance Criteria, each Criterion (generally) has at least one Acceptable Measure allocated to it, as to which s.1.2(5)(a) says:
“(a)Acceptable Measures are presented as Council’s preferred means of meeting the relevant Performance Criteria. For assessable development, they are not to be interpreted as prescriptive nor do they preclude other ways of meeting the criteria. They do however offer a degree of certainty to applicants, Council and the community.” (emphasis added)
Section 2.2.(3)(c) of Volume 1 of MP2K relevantly provides in cases where acceptable measures do not apply:
“Where other measures are proposed, the Council must be satisfied that they effectively meet the performance criteria and statement of purpose. In such cases the applicant needs to demonstrate the acceptability of the proposed measures to Council’s satisfaction.”
Section 3.5.13 of IPA is (relevantly):
“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 enough grounds to justify the decision having regard to –
(a) the purpose of the code;
(b) …(4) However –
(a) …
(b) 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.”
Alleged Defaults by the Council
I now turn to each of the currently alleged defaults of the Council in considering the application, as set out in para 28 of the applicants’ points of claim.
Section 2.1.4 of Volume 4 provides the Code for Development on Steep or Unstable Land and in subsection (1) the purpose of the code is expressed to be (relevantly):
“for the avoidance or minimisation of undesirable consequences by ensuring development on steep or unstable land, and involving;
the erection of buildings … is consistent with the desirable physical environmental and visual characteristics of such land …”The applicants rely on Element 2 (Building Design and Site Layout) Performance criterion P1 of the Code which is:
“P1 Development must be designed, sited and erected to respect and be visually integrated with the streetscape and the natural surroundings whilst ensuring:
·development is not visually intrusive, particularly from ridge lines, public open spaces and other vantage points outside the site,
·development occurs on less steep parts of the site that do not unacceptably increase the visibility of the buildings from adjacent areas and in a form that allows natural land forms and vegetation to be maintained as much as possible.”
Performance Criterion P2 is (relevantly):
“P2 Buildings … must be designed and sited to minimise adverse impacts on amenity of neighbouring sites with regard to ensuring acceptable:
·views and outlook, and
·privacy.”
Acceptable measure A1.1 to P1 and P2 is:
“A1 For assessable development, development occurs in accordance with an approved Site Analysis Report which addresses all issues raised in the Performance Criterion.”
Acceptable measure A1.6.1 deals with side boundary building setback and it is undisputed that the building as planned (indeed as now constructed) offends the setback. The north western corner of the ceiling of the home theatre is within the setback area. The offending portion is a three sided pyramid in shape with each side (horizontal from the apex towards the south, horizontal from the apex towards the east and vertical from the apex downwards) measuring about 3m, 1.5m and 1.5m respectively.
The Council file indicates that the Code in which acceptable measure A1.6.1 appears was considered to be applicable, and indeed the information request and the decision notice expressly refers to the encroachment of the western wall.
The respects in which it is alleged that the purpose of Code 2.1.4, Performance Criteria P1 and P2 and the acceptable measures were transgressed are many, but can be summarised. It is said that no reasonable Council could have permitted the development on their proper application because of the physical size and bulk of the building, as extended, its appearance, its adverse effect on the streetscape, the diminution of views to residents to the south, the reduction on the amenity of the neighbourhood and, of course, the encroachment on the side boundary set-back to the detriment of Mrs Cox. Mr Keim of counsel, for the applicants, frankly conceded the strictness of the approach of courts when matters such as this are resided by statute in the judgment of bodies such as the Council. In fact he very properly referred me to authorities on the point, particularly the judgment of Mason J in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 21 at 41-2. But he submitted that in this case the combined effect of the separate parts leads to the inevitable conclusion that the decision reached by the Council was one which no reasonable Council could reach. He relied on evidence to that effect by Mr Brown a consultant town planner.
On the other hand the evidence of other consultant town planners, Mr Ryter and Mr Buckley was to the contrary. On the architectural aspects of the matter the evidence of Mr Cox of the unacceptability of the design was contradicted by the evidence of Mr Mack.
The rationale behind the principles applying to the approach adopted by courts to the decisions of administrative authorities, as it seems to me, depends not just on the fact that the legislature reposed in the administrative authority the power and the duty to make the decision. It must also have been, at least in part, based on pragmatism. These administrative decisions are made on many occasions. It would be intolerable if each of them could be reversed by litigation after microscopic examination by experts and advice by lawyers. The orderly progression of a council’s duties could grind to a halt if each administrative decision were delayed while each possible error was considered minutely before the next step was undertaken. Some authorities might decline to make, or defer making, a decision which had any possibility of challenge, perhaps fearing the cost and inconvenience of that challenge. So, to paraphrase, perhaps inexactly, the approach adopted by the law, so long as the authority’s decision was legally and factually defensible the courts decided that it should stand.
I have not forgotten that this is not a merits appeal, but in deference to the undoubtedly genuinely held views of the applicants I should point out some matters which I consider are not able to be challenged. In the absence of an unmistakable and unqualified statutory provision no-one owns a particular view. The erection of any structure will to some extent impede another’s view. While the right to panoramic views are never (in my experience) protected the right to vistas (that is, “avenue views”, for example between buildings) often are. Unless extraordinary reasons are demonstrated I consider that provisions which say baldly “views must not be adversely affected by a development” must be interpreted as qualified by an adverb such as “unreasonably”. Otherwise the provision would prohibit any building at all.
Adapting that to this appeal, those applicants whose houses are to the south (uphill) of this extended house will lose some views. They could not have expected that they would retain them forever. Even if the existing house on lot 4 had not been extended a very large detached house could have been built on lot 3, covering all but a few metres of the lot at each end of the building and at least up to 8.5m (or more likely up to 10m) in height. That would have restricted those views almost to the extent that this extended house does.
As to Mrs Cox’s house, it is obvious that because of the encroachment to the extent described in para [59] her view from one point only of her house, is reduced by a very minor angle of degree and that view is down upon a small portion of a nearby tree canopy. Very many buildings, when built completely lawfully next door to an existing house, produce a much greater loss of view for the occupants of the existing house.
Next, Performance Criterion P2 requires that amenity not be adversely affected. In considering amenity it must be remembered that each of lots 3 and 4 could have been built upon “to the maximum” without straying beyond self assessment. A very large house could have been built on each with almost the same view impairment to nearby residents and with little to nothing being done by the builder to make them attractive to view from any direction.
While no house of this large size has been built in the past on Riverview Avenue, it is an area in which, if the applicants had turned their mind to it, it must have seemed at least likely that one day a very large house would be built on lot 3 or lot 4 (or any of the lots in the area) to take advantage of the splendid views. Further, it might well have been expected that one day a person might amalgamate two lots and build what might be termed a mansion. That is what has occurred in Riverview Avenue on the site.
Local residents would have had a severe amenity loss if what was built was an unimaginative house of maximum permitted site coverage and maximum permitted height. That is not the case here. Opinions may differ on questions such as amenity and preservation of the streetscape but I could not conclude that it would be unreasonable for any council to accept that the integrated design of the existing house and the extension complemented the streetscape.
In view of what had been done in landscaping to the north of the existing building and accepting that a condition would make it likely to be emulated on the street frontage and to the north of the extension (and the evidence of Mrs Dillon and Mr Sayers is that it will), a reasonable council could accept that the landscaping to Riverview Terrace and to the north will be attractive. It could also reasonably accept that the building itself will not detract from the visual amenity of the street but that it will quite likely add to it because the design of the existing house is sympathetically carried on in the extension.
As to amenity of the areas to the east, west and south, no serious argument was advanced but I cannot see that no reasonable council would accept that the treatment of the house and its extensive grounds would be attractive to view from these areas.
The discussion in paras [64]-[71] contains matters which I consider to be so obvious that I cannot conceive they would not have been considered by the assessment manager. That officer visited the site (on which the existing building stood in, effectively, its finished state including landscaping), received and reviewed the plans, requested further information, identified as applicable Code 2.1.4, identified a failure to comply with acceptable measure A1.6.1 and decided to approve the applications subject to conditions. He obviously came to the conclusion that the encroachment did not offend the performance criterion as more than a minor adverse impact on the amenity generally and in particular the three matters specified in that acceptable measure. And he must obviously have decided that the application generally did not offend P1 and P2. In my view, he cannot be said to have acted in a way which no reasonable Council could have. I leave aside for the moment the question whether the assessment manager also considered the application of Code 4.1
A specific allegation was that the assessment manager failed to ask for a site analysis report as envisaged by acceptable measure A1.1 (see para [58] above). It must be remembered that an acceptable measure is not essential (see para [51] above). The assessment manager is primarily concerned with the performance criteria (here P1 and P2). So, Mr Buckley said, one obvious way of assessing compliance with P1 and P2 would be to assess the application and visit the site. It was his view, as an experienced town planning consultant, that a site analysis report would have added nothing to the information thus obtained by the assessment manager, and I accept that.
Counsel for the applicants was critical of the failure of the developers or the Council to call the officer who carried out the assessment and referred me to Jones v Dunkel (1959) 101 CLR 289. But Jones v Dunkel was concerned with the situation where an inference is open on the evidence and a witness who has the ability to challenge the inference is not called. In such a case the inference may more readily be drawn.
As is apparent from these reasons I have drawn inferences about what the assessment manager did or did not do. Those inferences are drawn from established facts, primarily his receipt of the application documents, his visit to the site, his file notations and the decision. The failure to call him does not cast doubt on the inferences. It is not a Jones v Dunkel situation.
Section 4.1 Code
The applicants also rely on the alleged unreasonable failure of the Council to apply Volume 4 s.4.1 “Code of the Development of Detached Houses and Display Homes”. The Council notes indicate that the assessing officer regarded this Code as applicable as well as the Code under s.2.1.4, discussed previously.
The massive size and complexity of IPA planning schemes has greatly added to the complexity of interpreting them. It is possible to find in them a statement which would, if read literally, support the most extraordinary propositions and it is equally possible to find statements which, if read literally, conflict with each other.
In this case there is agreement that the s.2.1.4 Code for Development on Steep or Unstable Land applies. It was applied by the assessment manager and I have discussed it. However there was no such agreement that the s.4.1 Code for the Development of Detached Houses and Display Homes applies.
Section 1.3 (2) Guide to the Applicability of the Codes states that:
“(2) The following is a guide to the codes which are likely to be applicable to self assessable and assessable development.”
The table which follows that provision identifies the Steep or Unstable Land Code which, for building work (as here) is identified as “on land with slopes greater than 15%”, and that, clearly enough is the s.2.1.4 Code. It also identifies the Development of Detached Houses Code which for building work simply identifies “where detached house”, and that clearly enough is the s.4.1 Code. In the s.4.1 Code, under the heading “Applicability” at subsection (4) it identifies the s.2.1.4 Development on Steep or Unstable Land Code as one which “may also be applicable depending on the nature of the development and the location of the site”. Those two cross-references suggest that both codes are applicable and the assessment manager’s notes show that he regarded them that way.
In Element (1) of s.4.1 Code, which is stated to be applicable to building work for all types of detached houses, the stated objective (1) is:
“that the height, siting and design of detached houses … achieves an acceptable level of privacy, daylight, casual surveillance and amenity for residents of the premises and of adjoining premises”
and I note that “adjoining premises” suggests abutting allotments.
Performance Criterion P1 is:
“P1 Buildings and structures must not cause significant loss of amenity to adjacent land and dwellings having regard to:
·overshadowing,
·privacy and overlooking,
·views and vistas,
·building character and appearance, and
·building massing and scale as seen from neighbouring premises.”
and I note the expression “significant loss”, this time to “adjacent land”, (that is, merely “nearby”) with a later reference to “neighbouring premises”, (“neighbouring”, in relation to premises, suggesting those which abut).
Performance Criterion P2.1 is:
“P2.1 Buildings and structures must be sited to contribute positively to the streetscape, maximise community safety, and preserve the amenity of adjacent land/dwellings by having regard to the following:
·views and vistas,
·building character and appearance, and …”
and I note the requirement that a building “must … contribute positively”, which suggests the creation of an actual improvement. I note that it must also “preserve the amenity of adjacent land/dwellings by having regard to views and vistas”. That, literally, means no loss to nearby land/dwelling, which is not what P1 demands (no “significant” loss”).
Then, without setting it out in full, P3 requires buildings to be sited so that no significant loss of amenity results to views and vistas. A similar reference appears in P4.
If this s.4.1. Code requires precise interpretation then the use of expressions which have different meanings obviously creates difficulties.
Then comes P5, which the argument of the applicants emphasised, which is:
“P5 Extensions to existing buildings must be sited such that no greater loss of amenity of adjacent land and dwellings occurs than the existing building, having regard to:
·views and vistas,
·building character and appearance,
·building massing and scale as seen from neighbouring premises, …”
That is a blanket prohibition on any degradation of amenity in those identified respects. It is a much more stringent provision than the other performance criteria I have cited and cannot stand with them. Indeed I wonder if a blanket prohibition on an extension which degrades the amenity would be likely, in practice, to be achievable. It must, in order to be interpreted along the established guidelines referred to in para [40] be read down by the substitution of a qualifying adjective such as “significant” (to pick up the favoured word) to replace “greater”.
To add to the puzzle created by P5, the two acceptable measures cited are:
“A5.1 Extensions to existing buildings are sited within the existing lawful enclosed building envelope, defined by the height, width and length of the existing enclosed building (for example, filling in underneath a high set house).
OR
A5.2 Extensions to existing lawful buildings have a minimum front setback of the existing building on the site and the extension does not exceed 50m2.”If they are used to interpret P5, as I think must have been intended, then P5 applies only to very minor extensions. I cannot accept that P5 suggests that only such minor extensions to detached dwellings are permitted.
Once it is seen that this s.4.1 Code should be read as designed to prevent unreasonable, or significant, or substantial degradation to amenity, then it can stand beside the s.2.1.4 Code for Development on Steep or Unstable Land, which uses similar qualifications. It seems to me to be an obvious inference that the assessment manager approached his task this way.
Accepting that the s.4.1 Code applies to this development, for the reasons I have expressed in relation to the s.2.1.4 Code I conclude that it cannot be said that no reasonable Council could have assessed the application as complying with the s.4.1 Code.
Finality
The decision notice of 27 November 2003 approved the development:
“in full with conditions as specified in the Conditions Section herein.”
and the type of approval issued was:
“Preliminary Approval”
Building Works (Code Assessment)
and the following was one of the conditions:
“Treatment of Western Wall
To reduce the impact of the 23m long western wall of the dwelling alternative treatments AND some indentations due to be submitted to and approved by Council before any part of the western wall are (sic) constructed. Due to the encroachment of the first floor wall into the prohibited area of Figure 2.1.4(a), then some set back modifications will be required to the north-west corner of the study to reduce the extent of the encroachment.”
Questions of finality have been discussed in a number of cases. In McBain v Clifton Shire Council (1994) 2 Qd.R. 493 at 496 this appears:
“Under the Act, it is a Council which must decide whether or not to approve an application and, if it approves the application, what, if any, conditions are to apply. Further, there is a statutory process to be followed, including advertising the application and consideration of objections. Decisions which the statute requires the Council to make cannot be delegated or deferred, at least if deferral would circumvent or subvert the statutory scheme.
On the other hand, conditions are specifically authorised by the Act and, obviously, many approvals routinely include conditions which operate prospectively; i.e., require to be performed or fulfilled following the grant of the approval. Further, prior satisfaction of a condition imposed by an approval will frequently be a prerequisite to the utilisation of the approval …”
It should be noted that McBain involved an application which required public notification (under IPA that would be impact assessment), a matter which the Court regarded as relevant as the approval of the Council effectively excluded public notification of applications for future extensions of the development. It should also be noted that McBain recognised the validity of a condition for prospective reconsideration by the Council of some matters.
Such conditions are routinely applied and are lawful as long as they do not block the rights of submitters (McBain) or relate to an important matter, the future decision on which could alter the development in a fundamental way (McBain; Mison v Randwick Municipal Council (1991) 23NSWLR 734; Mr Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1996) 1 Qd.R. 347).
Given that this development was code assessable so that the Council always had the power to decide it and its associated matters of detail (it was not impact assessable) it is difficult to see how the principle of finality applied. It was in all respects a matter between the developer and the Council. When the approval (a preliminary approval it should be remembered) was granted the position between the developer and the Council could still, on matters of detail, be the proper subject of negotiation and indeed in this case lengthy negotiations led to the production of a plan which reduced the size of the study, the stepping of the western wall and alterations to its planned height. Nothing further (other than such minor and uncontested matters as the colour of the paint finish) remained to be done.
I reject the submission that the decision offended the principle of finality.
Building and Development Tribunal Determination
On 4 February 2005 an application to the Tribunal by Mrs Dillon challenging the Council’s decision was determined, the Tribunal making certain findings and orders in relation to the building relating to Mrs Cox’s sight lines. The application before me seeks orders in relation to those findings and orders. However the final submissions to me by the applicants contain no argument on the point. In these circumstances I do not propose to enter upon the question.
Discretion
My conclusion on the substantive issues in dispute concludes this matter. However I think it is proper for me briefly to indicate what I would regard as relevant to the exercise of my discretion had the applicants succeeded on the substantive issues:-
(a) The steps taken by and on behalf of the developers for the determination of ground levels and of slope were according to acceptable practice;
(b) The Council’s preliminary approval was given on 22 November 2003 and work commenced on the building at least by 23 December 2003. The applicants were obviously aware of this.
(c) The letter of Mrs Cox’s solicitors of 23 December 2003 shows that by that date she and her architect son, were aware of the bulk and scale of the proposed building.
(d) This originating application was not filed until 22 April 2005 by which time the building construction was well advanced.
(e) Questions about slope were not raised by the applicants until the amended points of claim were delivered on 20 September 2005 at which time most of the building had been erected and equipment purchased, at very great expense.
(f) The encroachment of the western wall is very small and the effect on Mrs Cox’s view very small.
(g) The effect of the space under the home theatre and the ground floor shower/lavatory (if they were third storeys) is very small.
(h) The effect on the views of the other applicants is minor, taking into account what could have been built, self assessably, on the combined lots 3 and 4 or even on them separately.
(i) I do not find that the developers intended to flout the law.
(j) The cost of remedying the encroachment of the western wall would be very great and out of proportion to the nuisance it creates.
(k) The overall effect of the building and its landscaping, when completed, is one on which minds are likely to differ, some people being likely to admire the finished proposal.
Suffice it to say that I consider it to be very unlikely that I would have exercised my discretion in favour of the applicants.
Conclusion
I find that the applicants have failed to discharge their onus in that they have failed to prove:
(a) that the Council did not have power to assess and decide the application for a preliminary approval for building works on the subject land;
(b) that the Council’s decision to approve the application was a decision which no reasonable Council would or could have made.
The application is dismissed.
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