Davis v Miriam Vale Shire Council

[2006] QPEC 64

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Davis & Anor v Miriam Vale Shire Council [2006] QPEC 064

PARTIES:

ROSS THOMAS DAVIS and
ELIZABETH GAIL DAVIS

Applicants

and

MIRIAM VALE SHIRE COUNCIL

Respondent

FILE NO/S:

No 699 of 2006

DIVISION:

PROCEEDING:

Originating Application for declaration development application was a “properly made application”

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2006, followed by additional affidavits and submissions to 16 June 2006

JUDGE:

Robin QC DCJ

ORDER:

Declare that, to the extent that relief under s 4.1.5A of the Integrated Planning Act 1997 may be needed because the application as lodged did not include common property or written consents of the body corporate or of lot owners, such relief should be granted, and that the application should be treated as a properly made application and processed accordingly

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.1, s 3.2.3(1), s 4.1.5A,
s 4.1.21, s 4.1.22, s 4.1.23(6) – Body Corporate and Community Management Act 1997 s 11, s 35, s 36, s 45, s 112, s 318 – Planning and Environment Court Rules 1999, rule 8(1) – whether development application stated all of “the land” the subject of it – only applicant’s lots referred to – common property to be used for access – whether consent of body corporate and/or lot owners was required – whether they should
have been respondents – whether applicants should have relief
under s 4.1.5A, if necessary – even if declaratory relief were granted, no order that the Council issue an acknowledgement notice should be made – accordingly no requirement or jurisdiction to award costs against the Council arose

COUNSEL:

Mr Fahl (solicitor) for the Applicants

Mr Job for the Respondent

SOLICITORS:

p&e Law for the Applicants

MRH Lawyers for the Respondent

1. This is the latest in a series of cases about whether the consent of a body corporate or of the members of a body corporate is required to be included in a development application for purposes of s 3.2.1 of the Integrated Planning Act 1997 (IPA). The applicants seek to establish that the respondent Council came under an obligation, under s 3.2.3(1) of the IPA, to give an acknowledgment notice in respect of what they contend was a “properly made application”. The relevant application, lodged towards the end of the October 2005, is for a material change of use to existing “catering premises and accommodation building” on Lot 1 and Lot 12 on SP 120844, by development of a new “accommodation building (backpacker premises)” to contain eight bedrooms on two levels, leading on to a large veranda with under-storey car parking, with other facilities such as lounge and TV room, kitchen/laundry and new toilets; two new motel units will be added to those already existing, apparently four; there will be some enlargement and improvement of an existing restaurant.

1. What exists in relation to the restaurant on Lot 12 RP 849149 was approved by a decision notice of 22 March 2000.  The change in real property description will be noted.  That decision notice preceded the recorded date of 10 May 2002 in respect of the community titles scheme, which replaced the original Lot 12 with “Lots 1 to 12 and common property”.  The common property is 5898m² in area (apparently including 16 exclusive use areas for parking), Lots 1, 2, 3 and 12 are 1121m², 289m², 318m² and 587m² respectively.  All other lots are 82m².  In respect of Lots 3 and 12, a later development application decision notice of 29 October 2001, addressed to Mr Davis alone, approved a material change of use for “six single apartments”.  It does not appear whether the body corporate played any role in that application.

1. The Council has written to the applicants in respect of the October 2005 application:

“The application involves development within common property, being a new driveway (extension), proposed use of common property to gain access to the new development, plus impact on the areas of common property through significantly increased traffic and other activity.  It is also noted that eaves are proposed to overhang common property, although this is not critical to this situation.

Accordingly, the application requires the signatures of all owners of all lots with an interest in common property. The application will not be deemed by the Assessment Manager to be properly made until all signatures are provided and are correct in accordance with the requirements of the Integrated Planning Act.”

1. Until the Council issues an acknowledgement notice, the applicants are unable to proceed with their development application, which is an impact assessable one, by embarking on the public notification stage. The applicants have organised a meeting of the proprietors “Agnes Palms” Community Titles Scheme 28028, on 18 March this year, at which only the proprietor of Lot 8 was recorded as opposed to, rather than supporting the material change of use application. The list of persons attending does not show anyone representing Lot 7. The applicants are recorded as owning Lots 1, 2, 3 and 12. There is nothing resembling a formal written consent from the body corporate of the kind required by s 3.2.1(3)(a)(ii). The owners’ expression of their attitudes is complicated by the “support” being included in a package of matters, some apparently related, others not necessarily related. Before the meeting, Council had been provided with the signatures as requested giving “approval” to its continuing the operation by owners of all lots, save 8 and 11. The latter may or may not represent an inadvertent omission, as there is duplication for Lot 5. It seems that no signature will be forthcoming in respect of Lot 8.

1. The applicants’ planner, Mr Oliaro, responded to the Council on 9 December 2005:

“Please find attached a letter and amended plans from Brown Evans & Associates clarifying the issues of building overhangs into ‘common property’ and new car parking arrangements.

To reiterate, no new building overhang will occur over common property.  No new works are proposed in the ‘common property’ driveway.”

In support of the proposition that every requisite consent had been forthcoming, reference was made to Bartlett v Brisbane City Council [2003] QPEC 001, affirmed (2003) 133 LGERA 341. Jones J, with the agreement of McPherson JA and Holmes J said at 346-48:

“The purpose of s 3.2.1 of the IPA is limited. It simply identifies the requirements for the first stage in the IDAS process referred to in Chapter 3 of the Act. The relevance of these requirements and the need for property identification of the relevant land and its owner is explained in the remarks of Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; 44 LGRA 456 where his Honour said:-

‘In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use?  The intending user of land will, in his application for consent, have to specify these two integers, but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application.  This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose.  The land is merely the passive object which is being used; the active integer, use, will determine its extent.

The respondents’ proposal is very significant to the use of Lot 28 but has no significance whatsoever to the use of the other lots.  Each owner of the other lots will continue to have the same interest in the land constituted by the lot, and the same interest in the common property as that owner had prior to the application.  Any concern on the part of another lot owner about the change in amenity or the integrity or aesthetics of the building are simply matters to be agitated in the decision process.  They are not, in my view, factors of use which determine the identification of the land.”

In Bartlett, there was a development application to enclose a balcony. This would have had the effect of increasing the “gross floor area” (as defined) of the applicant’s unit and of the whole building. This had been noted by Judge Brabazon at [2003] QPEC 001, para [17].

1. Bartlett may be seen as special in that, subject to the refinement just noted, there would be no (or no significant) impact on the body corporate or fellow owners.  As a practical matter, that observation cannot be made where, as here, common property is used as a means of access to some particular lot, the use of which is proposed to be changed in a way likely to produce increased use of common property for that purpose.  In Australian International Language College Pty Ltd v Gold Coast City Council [1994] QPELR 102, the subject lot was on the second floor. The Council contended that the consent of all co-owners of the common property was required. His Honour said at 103:

“The complaint made is that the description omitted any reference to the common property over which rights of access would have to be exercised by those resorting to the particular unit which is on the second floor of a ‘multi-storied strata titled office building’.

While it is quite true to say that the proposed use of the land necessarily involves the exercising of rights such as that of access over the common property, to argue that the application is defective because it lacks any specific reference to ‘common property’ as such involves, in my view, an attempt to take the ‘Pioneer’ principle too far.”

The Council here adopted a neutral approach to the application at the hearing, contending that its interest was simply one of ensuring that it processed the development application correctly. Its counsel, Mr Job, suggested an analogy with the statutory treatment of the position of the owner of land over which an easement intended to be used as access to a development proposal, whose consent is not required: IPA s 3.2.1(12), which does away with the difficulty underlying Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 QdR 539.

1. Section 3.2.1(2) requires that the approved form of development application as completed:

“(a)must contain a mandatory requirements part including a requirement for an accurate description of the land.”

Subsection (3) begins:

“Subject to subsection (12), each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for –

(a)         a material change of use of premises ...”

The concept of a “properly made application” in subsection (7) demands that “the mandatory requirements part ... be correctly completed.”  What follows is:

“(8)The assessment manager may refuse to receive an application that is not a properly made application.

(9)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.

(10)       Subsection (9) does not apply to an application –

(a)unless the application contains –

(i)    the written consent of the owner of any land to which the application applies.”

1. Oakden Investments confirmed that the Council could accept an application not “properly made”:

“Subsection (9) of s 3.2.1 does not prevent receipt of an application which is not a properly made application, and does not prevent acceptance of an application. Subsection (9) strikes down the operative portion of subs. (8) of s 3.2.1, thereby preventing the deeming of an application as a properly made application in circumstances where the written consent of the owner of any land to which the application applies does not form part of that application.

There is no prohibition in s 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application under subs. (8) of s 3.2.1.”

(per Mullins J at 5.42)

In any event, it was open to this court under the repealed s 4.1.53 (now replaced by the much wider s 4.1.5A) to entertain the appeal despite deficiencies in compliance with the IPA.

1. Ownership of common property by the lot owners is established by s 35 of the Body Corporate and Community Management Act 1997 (BCCMA):

“Ownership of common property

(1)Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots.

(2)Subsection (1) applies even though, under the Land Title Act, the registrar creates an indefeasible title for the common property for a community titles scheme.

(3)An owner’s interest in a lot is inseparable from the owner’s interest in the common property.

(4)If the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.

(5)The way the body corporate for a community titles scheme (scheme A) may enjoy the occupation and use of the common property for a community titles scheme for which scheme A is a subsidiary scheme is subject to the community management statement for each scheme for which scheme A is a subsidiary scheme.

(6)If a body corporate is authorised under this Act to enter into a transaction affecting common property, it may enter into the transaction, and execute documents related to the transaction, in its own name, as if it were the owner of an estate of fee simple in the common property.”

It does not appear whether the body corporate here has authority to bypass the owners.  Mr Job, for the Council here, submits that for IPA purposes, the body corporate is the owner of the common property being, within the schedule 10 definition, “the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent”.

1. Section 35(5) of the BCCMA may provide some support for that approach. Mr Job suggested that s 36 does as well:

“(1)The body corporate for a community titles scheme may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner of the common property.

(2)For a common property other than common property for which an entity other than the body corporate is the occupier, the body corporate may sue and be sued as if the body corporate were the occupier.

Whether entitlement to sue for the rent is the same thing as the right to receive it may be open to debate. Mr Job also referred to s 45, about ownership and enjoyment of “body corporate assets” which appear to be distinguished from “common property” by the definition in s 11 of the BCCMA.

1. Examination of these provisions explains why there has been uncertainty in local governments as to whether lot owners or the body corporate speak for common property.  Here it does not appear whether the body corporate has any authority to bypass owners, if authority be needed.

1. Another section of the BCCMA referred to was s 313:

“(1)The body corporate for a community titles scheme may represent the owners of lots included in the scheme in a proceeding under the Planning Act.

(2)However, this section does not prevent a lot owner who wants to be separately represented in the proceeding from exercising a right to be separately represented.”

Section 112 might be noted as well:

“Easements over common property – Act, s 155

(1)This section sets out the way in which, and the extent to which, the body corporate is authorised to grant, accept the grant of, surrender and accept the surrender of easements relating to common property.

(2)The body corporate may, if authorised by a resolution without dissent –

(a)grant an easement over the common property, or accept the grant of an easement for the benefit of the common property; or

(b)surrender an easement for the benefit of the common property, or accept the surrender of an easement over the common property.

(3)An instrument lodged for registration under the Land Title Act 1994 to give effect to the grant or surrender of an easement over or affecting the common property must be accompanied by –

(a)a copy of the resolution (or resolutions) certified under the seal of the body corporate; and

(b)other documents required by the registrar (including, if considered appropriate, a request to record a new community management statement in the place of the existing statement for the scheme).”

The use rights of lot owners and occupiers (and presumably their licensees) are not conceptualised as easements, rather as rights flowing from ownership.

1. In Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348, any issue to do with inclusion, in a development application, of “internal driveways” in a shopping centre with five disparate tenancies was avoided by identifying the land as the overall parcel – attracting the complaint that those parts of it intended to be used in association with the tavern and the restaurant should have been specifically nominated. In the leading judgment at 355, Jones J said:

“Conclusion

The reason for having a description of the land in the application form is to meet the purposes of the IDAS provisions. I take the view these are the matters referred to in the appellant’s argument as detailed in [21] hereof. It is these matters which guide the proper construction of s 3.2.1(3). The identification of the consenting owner and of the land to which the approval and conditions will attach are the significant matters which lead me to the view that the required description of the land is the whole of the parcel of the land on which the proposed development is to occur and not the various parts of the parcel which the development and the ancillary services are likely to affect.

Accordingly, it is my view that the application does comply with the provisions of s 3.2.1(3)(a)(i).”

- the dot points in [21] being:

“·         To identify the landowner who must give written consent to the proposal (s 3.2.1(3)(a)(ii));

·To identify the land on which the public notice is to be erected and to identify the adjoining landowners (s 3.4.4); and

·To identify the land to which will be attached the approval and any conditions (s 3.5.28).”

Rathera does not assist the applicants here; they are charged with nominating less than all of “the land”.  It may be said that the description they gave, in referring to SP 120844, by necessary implication includes the common property.  The Council’s written submissions helpfully summarise the proposal:

“5.The development application in its ‘updated’ form was lodged under cover of a letter dated 26 October 2005⁵.  It reveals that the site currently contains a small motel together with self-contained duplex units and 2 dwelling houses⁶.  The proposal incorporates:

(a)a new backpackers’ premises containing 8 bedrooms on 2 levels with understorey carparking, for both backpackers’ and restaurant staff⁷;

(b)2 new motel rooms attached to the existing motel building together with 2 additional carparking spaces within the understorey;

(c)a new office and kiosk providing services for guests of the motel and the backpackers’ premises⁸;

(d)‘associated operational works’ include landscaping, driveways and carparking⁹; and

(e)the reconfiguration of the carpark, to provide a better entrance and exit for patrons, is proposed¹⁰.”

6.Whilst the development application refers only to Lots 1 and 12, it confirms that ‘Lots 1 and 12 enjoy access rights over the common property forming part of the Community Management Titles Scheme over the larger site’¹¹.  Vehicular access to the proposed backpackers’ facility may only be obtained via the body corporate internal road depicted in the proposal plan which also depicts an extension of the driveway to the north¹².”

⁵Olario Affidavit, page 20, 3^rd para

⁶Olario Affidavit, page 39, 7^th para; ground floor area, page 60

⁷Olario Affidavit, page 35, 2^nd, 3^rd and 6^th paras; and proposal plans, pages 60-63

⁸Olario Affidavit, page 35, 4^th para; proposal plans, pages 60-63

⁹Olario Affidavit, page 23, item 14

¹⁰Olario Affidavit, page 48, 1^st bullet point

¹¹Olario Affidavit, page 35, last para

¹²Drawing 4132 – MCU 2- C, page 60”

(No attention was paid to 5(e) as a possible source of difficulty.)

1. The parties have referred to some decisions of mine, not including the Council’s recent matter about an alleged omission from a development application of a road reserve in Woodrow v Miriam Vale Shire Council [2006] QPEC 048. In Joseph B Pty Ltd v Brisbane City Council [2005] QPEC 086, a request under s 3.5.22 of IPA for extension of a currency period clearly required (by subsection (3)) consent of the owner of the land where construction was to occur, taken to be the body corporate. The lack of a timely consent was overcome retrospectively, leading to exercise of the discretion in s 4.1.5A. Here, it has been clarified that there will be no new construction on common property. The reasons refer to Falconer v Brisbane City Council [2005] QPEC 058; [2006] QPELR 123, decided consistently with Bartlett and Australian International Language College.  It was an adverse submitter appeal by a lot owner against the Council’s granting a material change of use and reconfiguration (into two) of another lot in the same community titles scheme.  This would introduce at least one new owner and household enjoying not only access and other use rights over common property, but other advantages, including the way in which water was provided.  Mr Falconer contended that adjustments to the community management statement should have been agreed to within the body corporate before the Council granted any approval.  He did not point to any statutory requirement of consent of the owners or of the body corporate.  The Council had reacted to the development application by holding it in “abeyance” – “as the common property was not included ... nor was resolution of the body corporate consenting ... submitted”.  I held that no such consent, nor that of the owners, was required.

1. It is only when the land the subject of the application is identified that it is known what consents are required.  Identification of the land can be controversial.  The Pioneer case has frequently been distinguished in Queensland, for example by the Full Court in Gibway Pty Ltd v Caboolture Shire Council [1987] 2 QdR 65. I do not think there is room for any blanket rule that the common property need not be included where a development application, on its face, relates to some particular lot(s). It may be that associated use of facilities on common property, such as a garden, barbeque area, swimming pool or toilets will be an important part of the proposed use, in which case they are part of the land the subject of the application. Use of common property for its established function of providing access has been held not to require its inclusion as part of the land. It would seem undesirable to depart from decisions in the court to that effect. It is not a concern in the present proceeding, but it could well be that even use of common property as access amounted to a use on its own, if the proposal were to run a fleet of taxis or rental vehicles from a lot, for example. I do not think the likely heavy use of driveways in common property during construction, being temporary, would be put in that category: it would be part of the burdens the common property is expected to bear. Reference to the cases discussed in Fogg, Meurling and Hodgetts, Planning Law in Queensland 3041ff shows that the extent to which the judges have tried to apply a practical, commonsense approach to “Pioneer” issues.

1. The unusual facts in Pioneer, in which the High Court affirmed by majority the Full Court’s reversal of a decision in the Local Government Court, appear from the following extract from the leading judgment (of Stephen J) at 502-03:

“…just as permission granted for a particular use will extend to permit of all incidental and necessarily associated uses, so too land devoted only to the latter will be as much land to which the application relates or applies as will be the land which is to be devoted to the principal use. …the applicant’s proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products: it included the construction and use of an access road. The land the subject of the use accordingly included the route of that access road. … The intimate connexion between the use of land and access to it requires little elaboration. Use of land in any active sense, as distinct from such passive use as was considered in Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 requires that there be access to the land. Especially is this so in the case of a commercial or industrial use, where access for the free flow of raw materials, of finished goods and perhaps, of customers will be essential. Since in this case access to and from the public highway is only to be gained by the traversing of other land in private ownership lying between the site and the public highway, this use of that other land appears to me to be an integral part of the use to which the site itself is to be put. … the use for which consent was applied for was one which included the construction and use of an access road over land beyond the boundaries of what the applicant described as the subject land. The land beyond those boundaries was land to which “the application relates or applies”: … Although the site of the quarry and processing area had an extensive frontage to what appeared, on paper, to be a public road, there was in fact no made road there, nor any prospect of its construction. The terrain over which plans showed this road as intended to run, steep hill country, made its route quite unsuitable, at all events for heavily loaded gravel trucks; hence the applicant’s proposal to provide its site, for all practical purposes a land-locked site, with a new route of access. Neither the application … did little to convey to interested members of the public any clear picture of what effect the working of the quarry would have upon local amenity and traffic. The position was further obscured by the fact that the “road” to which the quarry site was shown as having an extensive frontage was shown on plans as connecting with existing public road systems to the north and east of the site whereas the proposed new access route would in fact carry quarry traffic off in a quite different direction, south through private land and a State Forest, to link up with quite different existing public road systems.
I am not, however, directly concerned with such misleading features as the application, or the advertising of it, may have contained. They were very much a by-product of the failure of the application to seek consent in respect of the site of the access road, an important part of the proposed use. This failure necessarily involved the omission from the application of what was a significant part of the land which was in fact to be devoted to the proposed use.”

1. As a matter of logic, whether an application is misleading (something that could not be contended here) is a matter quite separate and distinct from the accuracy of the “description of the land” for purposes of section 3.2.1(2) of the IPA, land whose “owner” should provide a consent under section 3.2.1(3) where there is a material change of use. Here, it is doubtful whether the driveways on common property, already used as access for the twelve lots, will be the subject of a material change of use. By the definition in section 1.3.5, that would have to depend on “(iii) a material change in the intensity or scale of the use of the premises”(italics added). An alternative approach adopted in Pioneer appears in the judgment of Gibbs J (dissenting) at 499:

“The question then arises whether the fact that part of lot 1, which was not the subject of the application, was intended to be used to provide access to the subject land meant that that part of lot 1 was land to which the application related or applied. In my opinion once it is held that the words in question refer to the land the subject of the application, it follows that this question must be answered in the negative. Since the application was for consent to use only the subject land the result is that the appellant has received no consent to use the remaining part of lot 1 for the purpose of gaining access to the subject land. To obtain that consent, it must make a separate application and must then of course notify any owners of land abutting the land subject of that application. The fact that a separate application has to be made in these circumstances may be inconvenient but it does not mean that the Local Government Court lacked jurisdiction to determine the application made to it.
In my opinion it was not necessary for the appellant, in describing, in the application, “the use desired to be made of the land” or, in the advertisement, “the nature of the proposed use”, to refer to the use of either the subject land, or of other land, as a route over which the extracted material was to be transported. It is true that “use” is defined in s. 3 to include “any use which is incidental to and necessarily associated with the lawful use of the land in question”. However, it would be extremely inconvenient if it were necessary to give details of every incidental of ancillary use that might be made of the land the subject of the application. That is not in my opinion required; a general description is sufficient. There is no requirement to state, either in the application or in the advertisement, any use proposed to be made of land which is not itself the subject of the application; …”

1. This approach of receptivity to separate applications (which may involve different levels of assessment) was favoured by the Court of Appeal in Brisbane City Council v Cunningham [2001] QCA 294; (see [11]), per Thomas JA. If my view that common property did not have to be included in the “land” and that consent of the lot owners or of the body corporate was not required is wrong, it may eventuate that by steps taken by any person or entity enjoying the right to withhold consent, so as to frustrate the proposed development, the applicants are forced to respond by some further development application of their own or by doing what they can to overcome the consent difficulty in some way.

1. In North Sydney Council v Ligon 302 Pty Ltd – (1996) 185 CLR 470 (decided upon New South Wales provisions) the High Court said at 479:

“… Factually, the development for which consent was sought in the Pioneer case was used for the one purpose: the carrying out of quarry operations. In this case, the development for which consent is sought is the erection of a building. The use of the Century Plaza land as a carriageway and footway to the Club site is a different use that will be made either after the building development is commenced or, more significantly, after it is complete.

In the Act there are some other indicia suggesting (though not compelling) the conclusion that the land to which a development application “relates” is solely the land on which it is proposed that the development the subject of the application is to be carried out.

…

The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development of the Century Plaza land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by Ligon invalid for want of the consent of Century Plaza. The prospect of intensification of use is capable of affecting the discretion to grant or refuse Ligon’s application, but that is a different problem.”

1. The conclusion here is that, once the applicants clarified their misleading plans by supplying new ones establishing that no construction on common property was involved, the development application could be seen as sufficiently identifying the subject land and as accompanied by the requisite consents.

1. Against the possibility of the court holding the other way, Mr Fahl sought relief under s 4.1.5A of IPA. There are instances of the section’s being invoked to excuse omission of land (Ciancio v Redcliffe City Council [2004] QPEC 094) or lack of requisite consent: Oakden Investments. The consent issue has arisen in contexts other than s 3.2.1. See, under s 3.5.33(3), Tom Dooley Investments Pty Ltd v Brisbane City Council [2005] QPELR 645 and Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council [2001] QPELR 96 at [5] (not referring in terms to s 4.1.5A), and under s 3.5.22 Joseph B. This would be a case for the granting of similar relief, if needed; on the evidence, only the owner of Lot 8 could possibly feel aggrieved. Given that a public notification process will now occur, there is no cause for concern under s 4.1.5A(1)(b).

1. The Council raised the question of whether the body corporate and/or lot owners should have been served with the application.  Rule 8(1) of the Planning and Environment Court Rules 1999 provides that “an originating process, other than an appeal under the Act, must name as respondents the persons directly affected by the relief sought in it.”  A similar issue arose in Australian Conservation Foundation v Gold Coast City Council. It is easy enough to appreciate that lot owners or the body corporate might welcome an opportunity to be heard as to whether the Council must or should accept and then process the development application. The evidence effectively shows that the body corporate would not be going to argue the negative. The owner of Lot 8 may wish to do so. That is not to say that that owner (or the body corporate) is “directly affected by the relief sought”. There is no doubt that the court may decline to hear a matter until notice has been given to one or more non-parties it considers should have an opportunity to be heard. Such a course is not appropriate here. The applicants seek a declaration that their development application was a “properly made” one. The purpose being pursued is to compel the Council to issue an acknowledgment notice under s 3.2.3(1) so that the assessment process may advance. Should the court determine that any additional owner consent is required, and not exercise any dispensing power under s 4.1.5A, any owner is protected by the right to withhold consent: Evans v Gold Coast City Council [2004] QPELR 588.

1. I think Mr Fahl is correct that the determination of the requirement for consents does not go directly to the interests of the person whose consent might be needed; the concern is with the procedural requirements of the IPA, a matter for the applicants and the Council at this stage.  If the development application is allowed to advance to the notification stage, the lot owners will have the opportunity to make submissions, and participate in any appeal to this court.  The submissions might canvass the “properly made application” issue, any determination made in proceedings in which the submitter was not a party not being binding upon such a submitter.

1. The applicants say that, depending on the outcome, they may be entitled to costs under s 4.1.23(6) of the IPA.

“(6)If a person brings a proceeding in the court for a declaration and order requiring an assessment manager to give, under section 3.2.3, an acknowledgment notice and the court makes the order, the court must award costs against the assessment manager.”

The above command is very different from the discretion in the cases listed in subsection (2) to depart from the general “no costs” regime enacted in subsection (1). I agree with Mr Job’s submission that the intention of subsection (6) is to deal with cases where a council without any justification refuses to issue an acknowledgment notice. As noted, the development application got off to a bad start, when it included plans showing new construction proposed on common property. There are awkward issues where a community titles scheme, body corporate or common property are involved in a development application. Cases cited confirm that a number of local governments are in genuine confusion or uncertainty as to how to proceed. Ordering costs against the Council here is not an attractive course. The court is entitled to refrain from creating the jurisdiction conferred under s 4.1.23(6) by making a declaration under s 4.1.22, but no “order” under s 4.1.23. That is a common scenario. It may be taken that the Council would act consistently with a declaration; it is far from the position of obdurately refusing to issue an acknowledgment notice. Section 4.1.23(5) is express that an “order” over and above a declaration must be made before costs have to be ordered against a “designator”. In my opinion, subsection (6) works in the same way: “order”, where it secondly appears, refers to “order” where it first appears, and not to “declaration”.

1. A declaration should be made in terms of para 1 of the originating application, but no order as sought by para 2, nor any order as to costs.

1. Following preparation of the foregoing, the court received additional affidavit material from the parties; they had indicated they would attempt to resolve whether or not further roadway construction on common property was involved in the development application.  The Council may have been particularly concerned to avoid facing what might appear to be a capricious costs order.  Mr Perfect, a Development Control – Local Laws Officer, exhibits a plan showing the limit of existing driveway works, which do not extend to the boundary of Lot 1.  Mr Davis has responded with his own affidavit:

“2I have been informed by my solicitor, Mr Fahl, of certain submissions made by the Respondent through its Counsel at the hearing of these proceedings on 26 May 2006.  I understand that those submissions are to the effect that the development proposed by me and my wife (which is the subject of these proceedings), will necessitate further driveway works in the common property of the Agnes Palms development.

3I have also been informed by my solicitor of the affidavit of Mr  Garry Perfect concerning the finished line of existing works of the internal road, showing that the Body Corporate driveway does not continue to the boundary of Lot 1.

4I was in fact contracted by the Body Corporate approximately 2 years ago to carry out the construction of pavement works in the Body Corporate internal road.  It consisted of pavement works in the Body Corporate internal road.  It consisted of pavement works of approximately 150 square metres in area.  I carried out all of these works except the final area of approximately 10 square metres abutting Lot 1.

5I deliberately did not proceed to finalise these works because I was aware that I would be making a development application in respect of Lot 1 and that the further pavement works in the driveway would have to be consistent with the ground level of “finished works” in Lot 1.  Accordingly, I left this area to ensure that it was done correctly at the time that any development approval was obtained over Lot 1.  However, the full works were approved by the Body Corporate approximately 2 years ago and I have been paid for all of the works, but for a retention of money to complete the work in the final area of approximately 10 square metres.

6Therefore, the additional works do not arise from our development application.  They have already been planned for and have been delayed because of the matters I have set out above in this affidavit.  No other works are needed in the driveway as a consequence of the proposed development.”

1. Regrettably, this serves to confuse the situation after it seemed the court could proceed on the basis that no new construction on common property was necessary. Mr Davis may well be right that necessary new work can be treated for all purposes, factual, contractual and legal, as having been authorised and even carried out already. In the absence of fuller information or documentary evidence, I cannot feel comfortable about proceeding on that basis. The applicants bear the onus of proof. At the conclusion of the hearing, indicating that I intended to consider the matter and prepare some reasons, I offered Mr Fahl a direction then and there to the effect that the Council should process the development application of his clients and permit it to proceed towards assessment either because it was a properly made application or because it should be treated as one, by use of s 4.1.5A. I wished to avoid delay flowing from imminent circuit commitments. It was indicated that there was no great urgency. In all the circumstances, the outcome is more or less what was offered at the hearing. At bottom, the court is taking the view that one

   
   

   stand-out lot owner who is aware of the development application, and, along with the general public, may make an adverse submission which the Council will have to consider, should not be allowed to stymie this particular development application in the circumstances by withholding “owner’s consent” in respect of common property.