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

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.

What exists in relation to the restaurant on Lot 12 RP 849149 was approved by a decision notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] QPEC 64
Decision Date: 28 June 2006

CaseChat Overview and Summary

In the case of Davis v Miriam Vale Shire Council, the applicants, the Davises, sought relief under section 4.1.5A of the Integrated Planning Act 1997, asserting that their development application, which was initially deemed incomplete, should be treated as properly made and processed. The dispute centred around the requirement for the applicants to reference all land included in their application and the necessity of obtaining consent from the body corporate and lot owners for the use of common property for access. The Court was tasked with determining whether the application sufficiently referenced all land, whether the consent of the body corporate and lot owners was required, and if they should have been named respondents. Additionally, the Court had to consider whether the applicants should receive relief under section 4.1.5A of the Act.

The legal issues at hand revolved around the interpretation and application of several statutory provisions, including sections 4.1.21, 4.1.22, and 4.1.23(6) of the Body Corporate and Community Management Act 1997, as well as sections 11, 35, 36, 45, 112, and 318 of the Planning and Environment Court Rules 1999. The key question was whether the applicants' development application adequately identified all land included within it, particularly in relation to the common property. Furthermore, the Court had to determine whether the applicants needed to obtain the consent of the body corporate and lot owners for the use of common property as access, and if these parties should have been respondents in the proceedings. Lastly, the Court had to decide if the applicants were entitled to relief under section 4.1.5A of the Act, even if declaratory relief were granted.

In its reasoning, the Court found that the applicants' development application did not reference all the land, specifically omitting the common property that was to be used for access. However, the Court concluded that despite this omission, the application should still be treated as a properly made application and processed accordingly. The Court held that the applicants did not need to obtain the consent of the body corporate and lot owners for the use of common property as access, and therefore, these parties should not have been named respondents. The Court granted declaratory relief under section 4.1.5A of the Act, stating that the application should be treated as properly made and processed. The Court further clarified that even if declaratory relief were granted, no order that the Council issue an acknowledgement notice should be made, and accordingly, no requirement or jurisdiction to award costs against the Council arose.

The final orders of the Court declared that, to the extent that relief under section 4.1.5A of the Act may be needed because the application as lodged did not include the common property or written consents of the body corporate or of lot owners, such relief should be granted. The Court ordered that the application should be treated as a properly made application and processed accordingly.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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