Eschenko v Cummins

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND P&E-APPEAL NO. 359/1999

Before NEWTON, D.C.J.

[RE: LEONID ESCHENKO – V – MARY ELIZABETH CUMMINS & ANOR] [2000] QPE 037

BETWEEN LEONID ESCHENKO

Applicant

AND MARY ELIZABETH CUMMINS

First Respondent

AND GOLD COAST CITY COUNCIL

Second Respondent

AND STEWART PAYNE AND STEWART PAYNE
ARCHITECTS PTY LTD

Third Respondents

REASONS FOR JUDGMENT

Judgment delivered: 13 June 2000

Catchwords: Town Planning – relaxation of setback requirements – clause 36 Standard Building Regulation – whether approval of relaxation application was granted
a)without reference to applicant;
b)without consideration of impact on applicant’s property;
c)as a result of travel on part of third respondents.

Requirement that buildings in proximity to ocean beach have footings resistant to erosion. Whether dwelling constructed in non-compliance with s.13.19.2.1(I) of Planning Scheme

Counsel:  Mr P J Lyons Q.C. for the Applicant
  Mr M D Hinson S.C. for the First Respondent
  Mr R S Litster for the Second Respondent
  Mr B Cronin for the Third Respondent

Solicitors:                  Michael Podmore & Associates for the Applicant
  Holyoake & Associates for the First Respondent
  McDonald Balanda & Arcuri for the Second Respondent
  Primrose Couper Cronin Rudkin for the Third Respondents

Hearing Dates: 7 and 8 June, 8-11 and 19 November 1999, 24 and 25 February 2000

IN THE PLANNING & ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND P&E APPEAL NO. 359/1999

BETWEEN LEONID ESCHENKO

Applicant

AND MARY ELIZABETH CUMMINS

First Respondent

AND GOLD COAST CITY COUNCIL

Second Respondent

AND

STEWART PAYNE AND STEWART PAYNE
ARCHITECTS PTY LTD

Third Respondents

REASONS FOR JUDGMENT – NEWTON D.C.J.

(Delivered on the 13^th day of June 2000)

REASONS FOR JUDGMENT - NEWTON D.C.J.

INTRODUCTION

The applicant owns property at 219-221 Hedges Avenue, Mermaid Beach. The first respondent owns the property adjacent to and to the south of the applicant’s property. Both properties enjoy absolute beachfront positions on an exceptionally beautiful part of the Gold Coast. The second respondent is the local government responsible for administering the relevant planning scheme which was gazetted in February, 1994. The third respondents have been joined in these proceedings in respect of a claim that a development approval obtained in respect of the first respondent’s property was obtained by fraud.

On 7 April, 1998 the third respondents, on behalf of the first respondent, made an application for approval of building works involving alterations and extensions to the dwelling then existing on the first respondent’s land (Lot 168). The works were particularised in drawings numbered 1 to 8 (inclusive) prepared by the third respondents.

On 13 May, 1998 the third respondents applied for preliminary approval of boundary relaxations in relation to the proposed works. This application was accompanied by a letter dated 12 May, 1998 from the third respondents confirming a request for boundary relaxation made on behalf of the first respondent.

On 20 May, 1998 a number of officers of the second respondent, and others, undertook a site inspection for the purpose of considering the relaxation application. On the same date the second respondent’s assessment officer, Mr Lavender, inspected Lot 168 and the applicant’s property (Lot 66). Photographs were taken as part of the inspection.

On 26 May, 1998 the third respondents made written application on behalf of the first respondent to relax the six metre setback from the ocean front boundary of Lot 168 to all new extended parts of the dwelling then existing on that lot.

A Decision Notice, in the form of a preliminary approval under the Integrated Planning Act 1997, was issued by the second respondent on 9 June, 1998 which approved relaxations of boundary clearances for the proposed works in respect of:
· the construction of balconies up to 2.2 metres from the eastern (oceanfront) boundary of Lot 168;
·the construction of columns up to 750 millimetres from the southern boundary of Lot 168;
·the construction of columns up to 1.97 metres from the northern boundary of Lot 168.

A Decision Notice was issued by the second respondent on 5 October, 1998 which authorised the first respondent to carry out the proposed works in accordance with the conditions of approval notified therein and the preliminary approval.

On 3 November, 1998 application was made to the second respondent for approval of amendments to the engineering drawings for the proposed works as approved by the notice of 5 October, 1998. A Decision Notice was issued in November, 1998 which amended the engineering drawings for the proposed works as approved on 5 October, 1998 and authorised the first respondent to carry out the proposed works by construction of concrete columns in lieu of portal frames.

On 21 December, 1998 the second respondent issued an enforcement notice under s.22 of the Building Act requiring the cessation of building work on Lot 168 because of the failure of the first respondent to comply with clause 13.19.2.1(i) of the Planning Scheme in providing scour resistant footings and appropriate superstructure to withstand wave attack. This enforcement notice was withdrawn in January, 1999 when appropriate undertakings were offered on behalf of the first respondent to:
·provide certification from the first respondent’s engineer that the footings required as part of the proposed works are scour resistant; or if that were not possible –
·undertake remedial work to ensure certification to that effect could be provided.

THE RELIEF CLAIMED

By its originating application the applicant challenges the approvals granted by the second respondent in relation to alterations and extensions designed by the third respondents to the dwelling house on Lot 168. The applicant seeks declaration that:-
·the approvals given by the second respondent in relation to the construction of the dwelling house on Lot 168 are invalid;
·the dwelling house on Lot 168 has been constructed in breach of the provisions of clause 13.19.2 of the Planning Scheme; and
·the dwelling house on Lot 168 has been constructed contrary to the requirements of clause 38 of the Standard Building Regulation 1998;
and claims an order cancelling approvals given by the second respondent in relation to the construction of the said dwelling.

By its further amended points of claim the applicant substitutes a reference to clause 36 of the Standard Building Regulation 1998 for the reference to clause 38 thereof, and otherwise repeats its claims for relief and seeks a further order directed to cancellation of the approvals granted by the second respondent in relation to the dwelling on Lot 168.

The applicant also claims an order requiring the first respondent to demolish the dwelling house on Lot 168.

THE ISSUES

The matter which is of primary concern is the decision of the second respondent relaxing the requirement of clause 36 of the Standard Building Regulation 1998 relating to the setback or clearance required between the dwelling house and the eastern or beach front boundary of the first respondent’s property. It is accepted that the required clearance is six metres and that the existing clearance between the eastern boundary and the dwelling constructed on Lot 168, is approximately 2.2 metres.

The applicant contends that the second respondent’s approval of the relaxation application was granted:-
·           without reference to the applicant;
·           without consideration of the impact upon the applicant’s property; and
·           as a result of fraud on the part of the third respondents.

By reason of these matters the applicant contends that the approval is invalid.

The applicant’s second complaint in respect of the dwelling constructed on Lot 168 relates to alleged non-compliance with section 13.19.2.1(i) of the Planning Scheme.

The first respondent in disputing these contentions says that:-
·the dwelling house on Lot 168 was lawfully constructed in accordance with a valid approval of a relaxation application;
·the dwelling house was not required to comply with section 13.19.2.1.(i) of the Planning Scheme; and
·if the applicant has made out a case for the relief claimed, such relief ought to be refused on discretionary grounds.

Arising out of the allegations of the applicant’s compliance by the first respondent with the requirements of clause 13.19.2.1(i) of the Planning Scheme has become a matter of conflict between the first and second respondents.

The third respondents were joined in these proceedings by the applicant’s further amended points of claim (paragraphs 7A – 7J) which seeks relief pursuant to section 4.1.22 of the Integrated Planning Act 1997. This claim is dependent upon a finding that there was a development approval obtained by the third respondents (or one of them) and that such approval was obtained by fraud. In essence the applicant contends that the third respondents represented that:-
· the existing building on Lot 168 was to be substantially retained;
·there were reasonable grounds for asserting that the existing building on Lot 168 was to be substantially retained;
·there were reasonable grounds for asserting that there would not be, from the first and second floor of the applicant’s dwelling house, any loss of outlook to the south;
·the dominant feature in terms of assessing the impact on view was “the glass line of the balcony”;
·the sentimental value attached by the first respondent and her family to the existing dwelling house on Lot 168 was the substantial reason for the relaxation application; and
·there would be no effect on the privacy of the applicant’s property (Lot 168) as a consequence of the approval being granted.

This proceeding therefore, is one for declarations under s.4.1.21 of the Integrated Planning Act, an order cancelling a development approval under s.4.1.22 of that Act, and an order requiring that a dwelling house be demolished. This Court is not in this proceeding hearing an appeal against a decision of the Council by way of hearing anew under s.4.1.52(1) of the Integrated Planning Act, in which the onus of proof would fall upon the first respondent. The proceedings with respect to the relief claimed under ss4.1.21 and 4.1.22 are analagous 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).

The validity of the Council’s approval must be upheld if it was reasonably open to the Council to grant it. Whether the Council’s decision was sound or unsound is not a matter that properly falls for consideration by this Court. The relevant principle of law was correctly stated, in my respectful opinion, by Skoien SJDC in Lyons v. Misty Morn Developments Pty Ltd and Anor [1998] QPELR 268 at 272:
“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 dependent on that person reaching a specified state of satisfaction. This is such a case . . . . 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 irrelevant considerations, or that in some other way it was unjustifiable. If it is justifiable it stands whether or not others may disagree with it.”

In these circumstances it is not open to this Court to substitute its own opinion for that of the second respondent unless its approval is shown to have been unjustifiable, based on irrelevant considerations or one that no reasonable Council could have granted: MLC Properties and Anor v. Camden Council and Orsu (1997) 96 LGERA 52 at 56 per Lloyd J. Thus, this Court is not entitled to disregard the fact that the legislature has vested the power to exercise a discretion in the Council. The role of the Court when reviewing the exercise of an administrative decision was considered by Mason J (as he then was) in Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1985-6) 162 CLR 24 at 40-42:
“Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 K.B., at p.228.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v. MacKellar (1981) 38 A.L.R. at p.375: Reg v. Anderson: Ex Parte Ipec-Air Pty Ltd (1965) 113 C.L.R. 177, at p.205: Elliott v. Southwark London Borough Council (1976) 2 All E.R. 781, at p.788: Pickwell v. Camden London Borough Council (1983) Q.B. 962, at p.990. I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. The ground of review was considered by Lord Greene M.R. in Wednesday Corporation (46) in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.

The jurisdiction of this Court to make a demolition order is derived from s.4.3.26 of the Integrated Planning Act:

“Effects of orders
4.3.26.(1) An enforcement order or an interim enforcement order may direct the respondent –
(a)to stop an activity that constitutes, or will constitute, a development offence; or
(b)not to start an activity that will constitute a development offence; or
(c)to do anything required to stop committing a development offence; or

(d) to do anything about a development or use to comply with this Act.
(2)Without limiting the court’s powers, the court may make an order requiring the repairing, demolition or removal of a building.

(3) An enforcement order of an interim enforcement order –

(a)may be in terms the court considers appropriate to secure compliance with this Act: and

(b) must state the time by which the order is to be complied with.

However, under s.4.3.22(2) of the Act a proceeding for such an order may only be brought by the Council as the “assessing authority” pursuant to the definition in Schedule 10 of the Act. As no application seeking a demolition order has been made by the second respondent this relief must be refused.

ALLEGED FAILURE TO ALLOW APPLICANT TO BE HEARD

The applicant acknowledges that no statutory obligation exists requiring the Council to give the applicant an opportunity to be heard in relation to the relaxation application. Notwithstanding this the applicant submits that on common law principles he was entitled to that opportunity. The relevant principles were considered by Mason J (as he then was) in Kioav. West(1985) CLR550 at 584-585:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to “fairly listen to both sides” being a “duty lying upon every one who decides anything”. Board of Education v. Rice 998). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
“. . . which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.”

(Salemi [No.2] (1977) 137 C.L.R. at 452 per Jacobs J.)

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v. Federal Commission of Taxation (1963) 113 C.L.R.475, at pp.503-504, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “the particular statutory framework”. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546, at pp.552-553; National Companies and Securities Commission v. News Corportion Ltd (1984) 156 C.L.R. 296 at pp.311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No. 2](1977) 137 C.L.R., at p.451, per Jacobs J.
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.”

[26] It is apparent from the passage quoted that no absolute common law duty exists requiring that someone in the position of the applicant be afforded an opportunity to be heard before a decision is made by Council which may affect the applicant’s rights, interests or legitimate expectations. The rules under which the decision-maker is acting must be considered when assessing what is appropriate in terms of natural justice. I do not intend to analyse closely the relevant statutory provisions regulating the exercise of the Council’s power under s.48 of the Standard Building Regulation. Although the applicant’s case, as opened, claimed an entitlement in the applicant to an opportunity to be heard in relation to the relaxation application based on common law principles, this part of the applicant’s case received little emphasis during evidence and was not really pursued at all by the end of the hearing. It may be noted, however, that exempt development, self-assessable development and assessable development requiring code assessment are not required under the Integrated Planning Act to be notified. Notification is required only in respect of assessable development requiring impact assessment. Thus an application for the relaxation of a development standard in the planning scheme is not subject to any notification requirement. It would in the circumstances, in my opinion, be difficult to identify under the common law a requirement to refer the relaxation application to the applicant.

ALLEGATION OF NO CONSIDERATION OF IMPACT

[27] The applicant alleges that the relaxation of approval was granted by the second respondent without consideration of the impacts upon the applicant’s property. In assessing the relaxation application the Council was obliged by s.48(3) of the Standard Building Regulation to consider the following –
(a)the levels, depth, shape or conditions of the allotment and adjoining allotments;
(b)the nature of any proposed building or structure on the allotment;
(c)the nature of any existing or proposed buildings or structures on adjoining allotments;

(d)     whether the allotment is a corner allotment;
(e)     whether the allotment has two road frontages;
(f)      any other matter is considers relevant.

[28] S.48(4) states that:
“the local government must be satisfied that a building or structure, built on the allotment in the way proposed would not unduly –
(a) obstruct the natural light or ventilation of an adjoining allotment; or

(b) interfere with the privacy of an adjoining allotment; or

(c) restrict the areas of the allotment suitable for landscaping; or

(d) obstruct the outlook from adjoining allotments; or

(e) overcrowd the allotment; or

(f) restrict off-street parking for the allotment; or

(g) obstruct access for normal building maintenance.

The substantive matters of complaint by the applicant relate to the issues of privacy and outlook.

[30] There can be no doubt at all that appropriate officers of the second respondent did give consideration to the matters referred to in s.48 of the Standard Building Regulation. Exhibit 20 comprises a checklist of the matters set out in the legislation and each matter has been ticked or, in one case, circled on the form. The form has been signed at the foot by the Building Surveyor, by the Technical Officer Development Compliance and by the Manager Statutory Planning. Again, this Court cannot substitute its own decision as to whether to approve the relaxation application for that of the Council. The legislature has imposed a discretion upon the Council to approve or not approve such an application and has provided in s.48 those matters which the Council is obliged to consider in exercising its discretion. Provided Council’s decision was reached after properly taking into account the relevant statutory considerations, its decision cannot be set aside. Section 48 does not indicate what relative weight is to be given to any of the matters required to be considered by Council. The weight to be attached to each consideration is a matter for those officers entrusted with the task of evaluation the application. This Court may not set aside Council’s decision because it has a preference for a different result, (see Peko-Wallsend at 41-42). Only if Council’s decision could not be justified on any reasonable ground would the interference of this Court be warranted. It is important to distinguish between a justifiable decision and a sound decision. As Menzies J explained in Parramatta City Councilv. Pestell (1972) 128 CLR 305 at 323:
“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 upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.”
In the instant case there is obviously a difference of opinion between two bodies of expert witnesses. On the one hand Mr Thomas and Ms Tchernev hold the view that the building constructed pursuant to the permitted relaxation of boundary setback does unduly interfere with the privacy of the applicant’s adjoining allotment and that the outlook from that allotment has been unduly obstructed. On the other hand Mr Witty, Mr Payne and Mr Forgan-Smith have expressed a view of these matters which supports the reasonableness of Council’s decision. In my opinion Council’s decision is one in regard to which reasonable minds might come to different conclusions. I am unable to conclude, on the evidence before me, that the second respondent came to a conclusion so unreasonable that no reasonable council could have come to it. (see ULV Pty Ltd v. Scott and Ors (1990) 69 LGRA 212 at 229, 230 per Priestly JA).

The validity, or reasonableness, of the decision made by the second respondent is to be judged as at the date of the decision, that is as at 3 June, 1998. (Thorne and Ors v. Doug Wade Consultants Pty Ltd and Ors (1985) 57 LGRA 41 at 77 per O’Bryan J). The circumstances that were in existence at that time are shown in the photographic exhibits nos. 19 and 28. The exhibits depict the duplex residence on the applicant’s allotment (Lot 66) at a stage prior to completion and the residence on the first respondent’s allotment (Lot 168) at a stage prior to the commencement of any significant renovation. Both Mr Witty and Mr Payne undertook the exercise of assessing interference with privacy and outlook by a sight line analysis. By contrast Ms Tchernev and Mr McCarthy relied upon circumstances that existed after the construction of both residences had been completed in forming their opinions.

[32}The applicant has no common law right to have a view preserved (Cromar Pty Ltd and Croninv. Brisbane City Council & Anor [1996] QPELR 84 at 90 per Skoien SJDC) Interference with a view may, of course, result in the outlook from an adjoining allotment being unduly obstructed and this will be considered shortly. But to some extent, at least, interference with views and overlooking are inevitable in an urban environment (The Proprietors “Park Lane Apartments” & Orsv. Gold Coast City Council & Anor [1997] QPELR 178 at 182, 187 per Newton DCJ). A council may, in an appropriate case when exercising its discretionary power to grant approval of a proposed building, seek to balance the interests of one owner of land against those of another. Where it does so endeavour, a council undertakes a difficult and delicate task. Care must be taken not to give undue emphasis and importance to the interests of an owner who happens to have built first in an area where views are attractive and where people naturally do not wish to have those views obstructed. (Commonwealth Oil Refineries Ltdv. North Sydney Municipal Council (1957) 2 LGRA 217 at 223 per Hardie J).

The approach of Mr Thomas and Ms Tchernev seemed to be that there would be an undue obstruction of outlook if anything were to be constructed forward (eastward) of the 6 metre line. This approach should, in my opinion, be rejected as it would never permit a relaxation and the s.48 power would be illusory. Again, what is undue obstruction of outlook is a matter upon which reasonable minds might reasonably differ. Although the applicant may disagree with the decision taken by the second respondent, the decision is one which was reasonably open and therefore valid. I am not persuaded that the Council, or its officers, disregarded or ignored relevant considerations.

ALLEGED FRAUD

The Court derives its jurisdiction to make an order amending or cancelling a development approval where the Court is satisfied the approval was obtained by fraud by the applicant from s.4.1.22(2) of the Integrated Planning Act.

S.36 of the Standard Building Regulation requires a set back or clearance between the first respondent’s residence and the eastern or beachfront boundary of the first respondent’s property. The required set back is 6 metres. In fact the clearance between the eastern boundary and the construction work is approximately 2.2 metres. S.36 applies to single detached class 1 buildings (s.34(a)). It is not in dispute that the building on the first respondent’s property is a class 1 building. There is no definition in the Standard Building Regulation of the expression “single detached”, but there has been no suggestion that the expression does not include the dwelling house in question. As noted previously, s.48 of the Standard Building Regulation enables a local government to vary the operation of certain provisions, including s.36. Before a relaxation may be granted, the Council must be satisfied that a building, built on the allotment in the way proposed, would not unduly interfere with the privacy of an adjoining allotment, and would not unduly obstruct the outlook from an adjoining allotment.

An application for relaxation was made by Stewart Payne Architects Pty Ltd. It is not disputed that the application was made on behalf of the first respondent. The application contained representations about three matters of particular relevance for the present proceedings, viz:-
(a)retention of the existing building;
(b)the effect of the proposed development on the outlook from the applicant’s property;
(c)the effect of the proposed development on the privacy of the applicant’s property.
The applicant contends that the application for relaxation was made fraudulently in that it contained fraudulent representations in respect of each of the three matters identified. The applicant’s case is that Mr Payne knew that certain representations contained in his letter of 26 May, 1998 (which formed part of the application for relaxation) were false, or that he made those representations with reckless indifference as to their truth or falsity, and that the first respondent knew the representations to be false.

The burden of proof of fraud lies on the applicant and while the standard is the civil standard, the proof of fraud must be “clear and cogent such as to induce, on a balance of probabilities, an actual persuasion of the mind as to the existence of fraud”. (Rejfekv. McElroy (1965) 112 CLR 517 at 521).

In assessing the truth or falsity of those representations, regard must be had to the circumstances prevailing on 26 May, 1998, rather than the circumstances now prevailing (Thorn at 77). Thus, the assessment is to be made not by reference to the first respondent’s dwelling as it now exists, but by reference to the plans for its renovation and extension then in existence and to Mr Payne’s professional judgment as to what effects the renovated house built in accordance with those plans would have.

The first allegedly false representations relate to the extent to which the existing house was to be retained. Mr Payne wrote to the first respondent on 7 August, 1998 confirming that her brief to him included a requirement to:
“retain the existing building for concessions in setbacks.” (Ex 27).

The first respondent agreed in her oral evidence that this accurately set out (in this regard) her brief to Mr Payne. I accept therefore that Mr Payne and the first respondent believed that the extent to which the existing building was to be retained was of significance to their prospect of being granted a concession in respect of the set back which would otherwise be required from the beach front boundary. Mr Payne’s letter of 26 May, 1998 to the second respondent (which formed part of the relaxation application) contained the following passage:
“2. Existing Building
The site has an existing house constructed on it and of 1911 vintage. This house is located 2.2 metres from the ocean front boundary for the face of its deck which is 1.1 metres above ground. Our client has owned this property for 27 years and it has much sentimental value to her and her family. She does not want it demolished or moved. Our architectural proposal is to leave it intact as best possible and build over it with a new structure to accommodate her growing family . . .”

The accompanying plans referred to what was to be retained. Thus the Site Plan on drawing no.1 was labelled “Existing Beach House (Retain)”. The Site Plan on drawing no.2 also stated “Existing Beach House to Remain”. It referred to “Existing Deck”. The Diagramatic Section included the words “Retain Existing Stumps”, Retain Existing Floor and Floor Structure”, “Retain Existing Walls”, and “New Steel Portal Frame Spanning Over Existing House to Structural Engineer’s Details”.

There can be little doubt, in my opinion, that Section 2 of the letter of 26 May, 1998 and the accompanying plans created, as they were intended, an impression that the existing building was to be substantially retained. The representations as to the retention of the existing building were, I accept, representations as to the state of mind of Mr Payne as the architect for the project, and that there was basis for that state of mind (James and Orsv. Australia and New Zealand Banking Group Ltd and Ors (1986) 64 ALR 347 at 372 per Toohey J). Whether these representations were made honestly or dishonestly depends upon the state of mind of the third respondent at the time when they were made.

The evidence before me shows that not all of the existing building on the first respondent’s allotment has been retained. For example, the deck, which was the most easterly structure, has been replaced, as has the fibro sheeting on the walls and the timber framing for the walls. The ceilings have been removed and replaced, as has the roof. A series of beams has been constructed under the floor. The plans submitted to the Council for building approval, it should be noted, did show the removal of the roof and of those walls which defined bedrooms 1 and 2. However, the existing deck was represented as being retained. The applicant contends that the degree of rotting present in the front part of the existing deck, including the posts and joists, and in the timber framing for the walls (which was visible even without removing the fibro sheeting) must have been obvious to Mr Payne at the time the relaxation application was made. The applicant submits that Mr Payne must have known that in the circumstances the existing building could not have been substantially retained and that the representations accordingly were not honestly made. They were made, says the applicant, with at least a reckless indifference to the true position. The applicant submits that the representations contained in the letter of 26 May, 1998 about the first respondent’s attitude to the building sought to create the impression that the motive for retaining the existing building was the owner’s sentimental attachment to it. That is not a frank representation, it is contended, of the true position because the brief to Mr Payne was to retain the existing building for set back concessions. The applicant suggests that what was said about the owner’s attachment to the existing building does not sit comfortably with her attitude to the work generally in that no attempt was made to retain the “feel” of the existing building. In my opinion, however, despite the obvious differences between the existing and former buildings the “feel” of a family beach house has been preserved. Notwithstanding this I accept that significantly less of the original house has been retained than was indicated in the letter of 26 May, 1998 and the accompanying plans.

In considering the submissions of the applicant, it is appropriate to assess the state of mind of Mr Payne as at the date of application for relaxation of boundary set backs by referring to his own evidence, both oral and written. In his affidavit filed on 28 October, 1999 Mr Payne stated:
“I am unsure whether it was the first or second meeting that I had with Mrs Cummins [the first respondent] at which I said words to her to the effect that by virtue of the zoning of the property under the town plan she could construct a duplex on the site but that to do so she would incur heavy cost penalties in construction because of fire ratings and the protection of openings. I also said to her that one of her options was to demolish the existing building but that she may not, after demolition, obtain a relaxation of the setback requirements for the eastern boundary. Mrs Cummins indicated to me quite clearly that she was not interested in any of these proposals as she had her mind set on preserving as much of the existing house as possible. Her instructions were simply that she wanted to preserve the existing house and I worked from that basis. When she told me that she wanted to erect a storey on top of the existing structure, I told her of the need to erect a steel structure outside the existing building in order to retain the existing building as much as possible and to support the additional storey.”

Later in his affidavit Mr Payne deposes to arranging a meeting, at the request of the first respondent, of various parties including Mr Oakes and Mr Vansleve who were both officers of the Council. The meeting took place on 20 May, 1998 at the first respondent’s property. Mr Payne has a recollection that there was a discussion at the meeting about how the first respondent wanted to retain the existing building and that the new structure would be built outside and over the existing structure. Mr Payne further recalls Mr Vansleve saying that the boundary requirements could be relaxed under “the Building Regulations”. The meeting lasted approximately 20 minutes. After the meeting Mr Payne arranged for the first respondent’s solicitor (who had been present at the meeting) to send him a copy of the relevant Part of the Standard Building Regulation. This was used by Mr Payne when his letter to the Council of 26 May, 1998 was written. Mr Payne stated in his affidavit that at the time of the meeting (20 May, 1998) he was unaware of the basis upon which the Council could relax setback requirements or how this was to occur. He continued:
“In my experience the Council officers always know the Regulations that are appropriate and I took the lead indicated to me by writing the letter generally following the thrust or requirements in Part 9.
I believe that the letter of 26 May 1998 was correct. I do not believe that it was false or that it was written recklessly.”
It is of some significance, in my opinion, that no officer from the second respondent has refuted the evidence of Mr Payne as to the meeting of 20 May, 1998. I am satisfied that Mr Payne’s brief from the first respondent was to retain as much as he could of the existing structure, and that his design achieved this. The desire of the first respondent to retain the existing structure was, I find, a genuine desire on her part and was not merely a ploy to improve the chances of obtaining setback relaxation from the second respondent. It is true that less has been retained of the original house than had been proposed by the third respondents. However, it should be remembered that a falling out occurred between the first and third respondents over costings and that as from 12 August, 1998 Mr Payne had his services terminated except in relation to obtaining an outstanding seawall approval from the second respondent. The changes that came about to Mr Payne’s design which resulted in less of the existing building being retained than had been indicated in the plans that accompanied the application for relaxation of boundary setback occurred after Mr Payne had left the project and were brought about by the engineers and the builder, Mr Baker. The tender documents dated 20 July, 1998 put out by the third respondents contain the following specification:
“2.3     Building Works
This project is regarded by Gold Coast City Council as a renovation and extension of an existing house. The building approval obtained allows for reduced setbacks to the building from the site boundaries for this reason. Therefore the existing house must not be demolished.
The following existing building parts may be removed carefully and dumped:
-          concrete car tracks
-          roof material (by others)
-          roof framing
-          internal and external asbestos cement cladding
-          external stud walls
-various underfloor stumps and piers where located that conflict with new structure
-          garage doors

The following existing building parts shall remain and be protected while new building works proceed:

-          external deck and stair
-          internal timber stud walls
-          suspended timber framed floor and floor boards
-under floor structures, walls, piers, stumps, toilet, laundry, plumbing and -drainage etc.”

This specification, in my view, supports the conclusion that the representations as to the retention of the existing building were honestly made. Furthermore, I formed a favourable impression of Mr Payne as a truthful witness who did his best to provide a frank and reliable account of his dealings with Council on behalf of his erstwhile client.

EFFECT ON THE APPLICANT’S OUTLOOK

The letter of 26 May, 1998 makes three statements, in respect of which complaint is made, about the effect of the proposed construction work on the outlook from the applicant’s property.

The first statement is:-
“The first floor of the neighbouring building to the north will be able to see to the south through the balcony of the proposed building and therefore will not suffer any loss of outlook.”

The applicant contends that the photographs in exhibit 8 demonstrate that, at the very least, there is some loss of outlook to the south from the applicant’s building. This is undoubtedly so, and the loss of outlook was better able to be appreciated during the two inspections that were carried out at the behest of the parties. As in most, if not all, cases involving impact on views, it must be accepted that views and perspectives change within a short distance of movement by the observer, or even with the movement of the observer’s head. (The Proprietors “Park Lane Apartments” at 189).

For the representation to be honestly made, it would be necessary to compare, submits the applicant, the floor level of the first floor of the building on the applicant’s property, with the balcony of the proposed building. There is a difference of approximately 2 metres in floor levels because ground level on the first respondent’s property is about 1 metre higher than ground level on the applicant’s property, and because the ground floor of the building of the first respondent’s property is raised about 1 metre above ground level whereas the ground floor of the applicant’s property is at about ground level. This, contends the applicant, inevitably means that the floor of the upper balcony on the first respondent’s property, is well above the floor of the first level of the applicant’s property. Thus, it is submitted, even the most casual consideration would show there was a risk that the upper balcony floor on the first respondent’s property would (impede the outlook from the first level of the applicant’s building. The third respondent (Mr Payne) testified that he drew sight lines to establish the effect of the proposed building on the view from the applicant’s building. He was not surprised at the extent to which the views had been obscured from the applicant’s balconies. Indeed, it was what he expected. In these circumstances, the applicant contends, Mr Payne could not have honestly represented that the applicant’s building would not suffer any loss of outlook.

The falsity of this representation is alleged to be the absence of reasonable grounds for asserting that there would be no loss of outlook to the south, based on the contention that, to some degree at least, the outlook to the south is diminished by the proposed construction. However, the representation should not be considered in a vacuum. It must be remembered that the letter of 26 May, 1998 refers to the dimensions and location of the proposed building, and that this letter was written by Mr Payne after a site meeting with Council officers on 20 May, 1998 and after drawings of the proposed building had been lodged with the second respondent. The representation, when considered in this context, cannot be said, in my opinion, to inevitably lead to a construction that there would not be any loss of outlook whatsoever as a result of the construction of the first respondent’s building from the applicant’s balconies. Indeed, there is no evidence before me to suggest that the Council construed the letter in the way the applicant contends for, or that the Council was misled about the dimensions or location of the proposed building. I accept the submission made on behalf of the first respondent that ultimately the case for the applicant demonstrates nothing more than his witnesses disagree with the Council’s conclusion that the proposed building would not unduly obstruct the outlook from the applicant’s allotment.

The second statement in respect of which complaint is made is:-
“The second floor of the neighbouring building will be able to see to the south over the proposed balcony of this property because that new building is located so high above the ground.”

The applicant submits that in view of the third respondent’s statement that he expected the extent of obscuring of views to the south, the statement could not have been made honestly. It is not necessary to deal with this submission beyond indicating that the remarks made with respect to the first statement have equal application to the second.

The third statement is:-
“Therefore generally the neighbouring building to the north will still retain extensive undiminished views of ocean and sky.”

The applicant submits in relation to this statement that, if taken literally, the sentence is deliberately misleading, for it recognises that a view of Coolangatta has been lost but is seeking to create the impression that no loss has been suffered. If it is taken to mean, contends the applicant, that no significant view to the south has been lost, whether of land, ocean or sky, it could not have honestly been made.

There is no doubt, in my opinion, that the view of Coolangatta across the water is particularly attractive in that it adds variety in both colour and form to what otherwise would an unrelieved vista of ocean and sky. The view has, I am satisfied, been diminished from the upper and lower balcony of each unit of the applicant’s residence, by the construction work on the first respondent’s dwelling. Views from the bedrooms on each level of the applicant’s residence have also been affected. Were I asked to determine whether the construction work on the first respondent’s dwelling had unduly obstructed the outlook from the applicant’s allotment I would find that it had done so. However, that is not my task. The question for present purposes is whether the statement under consideration has been shown not to have been honestly made.

The use of the word “generally” to qualify the retention of views indicates, in my opinion, that Mr Payne was conceding that some loss of outlook would result from the proposed construction. The statement may legitimately be criticised for focusing on what views are to be retained rather than than acknowledging the extent to which outlook would be diminished. However, I am unable to conclude that the statement is untrue or deliberately misleading. If one attributes to the words used by Mr Payne their natural meaning, one is left with a statement that is correct in that, generally, the applicant’s residence does retain extensive undiminished views of ocean and sky.
The reduction in value of each of the units on the applicant’s property as a result of the relaxation of setback and consequent construction on the first respondent’s property was assessed by Mr McCarthy, a certified practising valuer. He estimated the value of each unit be adding the land value and the cost of improvements to conclude that each unit is valued at $2,780,000.00. An alternative method of estimation was also adopted involving a valuation by direct comparison with prices achieved in respect of recent sales of beachfront homes, beachfront units in small buildings and a beachfront duplex in Mermaid Beach. By this method Mr McCarthy valued each unit at $2,500,000.00. Due to the relatively small number of sales and lack of a recent beachfront duplex sale, Mr McCarthy considered that the direct comparison approach is, in this instance, less reliable than the summation approach. Mr McCarthy therefore concluded that a fair market value for each unit was $2,780,000.00.

Mr McCarthy then considered sales evidence in two developments each containing twin towers to establish the reduction in values between mirror reversed or almost identical units, one affected by loss of views and one unaffected. It should be noted that each of the units on the applicant’s property offers identical accommodation, mirror reversed, split along an east-west centre line. Mr McCarthy concluded that the value of the southern unit (that is, the unit immediately adjacent to the first respondent’s property0 had been reduced by 15% because of the construction of the first respondent’s dwelling, and that the value of the northern unit had been reduced by 5%. The reduction values were expressed in monetary terms as $140,000.00 for the northern unit and $420,000.00 for the southern unit. It should be noted that these values were calculated on the basis that the reductions relate to both reduces views and loss of privacy. Mr McCarthy has not attempted to analyse the reduction in values caused by reduced views alone, and having regard to the evidence of most of the expert witnesses that privacy has not been affected, his conclusions must be treated with caution. Nor does Mr McCarthy attempt to quantify the extent of the loss of views and compare that extent with properties used in his comparison. Furthermore, Mr McCarthy has failed to take into account the decision taken by the developers of the applicant’s property not to construct the property to the 6 metre line on the eastern boundary. In my opinion at least some part of the reduction in value of the applicant’s units has been brought about by the applicant’s decision to construct his units on a set back line that significantly exceeds the requirements of the Standard Building Regulation. I cannot, in the circumstances, use the evidence of Mr McCarthy as providing anything other than a general, but imprecise, indication of the reduction in values of the applicant’s units.

PRIVACY

Mr Payne’s letter of 26 May, 1998 represented that privacy would not be affected by the new extension of the balcony/bedroom at first floor level as the upstairs is open balcony 3 metres deep. The applicant submits that it is inevitable that providing an upper level balcony immediately adjacent to the pool area would have some effect on privacy. The falsity of the representation should, in my opinion, be assessed against the situation which would exist if the first respondent’s upper balcony were to be moved back (westwards) some 4 metres. In this situation, there is again a difference of opinion amongst the expert witnesses. The preponderance of the evidence in this regard, however, strongly suggests that there would be no difference so far as privacy is concerned between the existing situation and that which would exist if the first respondent’s upper balcony is moved back 4 metres. Although Ms Tchernev disagreed with this proposition, I prefer the evidence of Mr Thomas, Mr Witty and Mr Forgan-Smith on this point, all of whom accepted the proposition. In the circumstances, the representation was not false.

There is no evidence before me to establish that any of the officers of the second respondent were misled by any representation in Mr Payne’s letter of 26 May 1998. The applicant, it should be noted, did not call any Council officer who had been involved in the assessment of the application. The officers who were called (Mr Gobie and Mr Thomas) were not able to explain why they considered that the relaxation appeared to have been obtained by misrepresentation or that incorrect information had been given to the Council.

In the result, then, the applicant has, in respect of each of the allegations of fraud, failed to persuade me that the representations are in fact untrue, and that Mr Payne was not merely mistaken or careless about the untruth of the representations but he either did not believe them to be true or was recklessly indifferent to their truth. I do not consider, therefore, that the approval should be set aside on the ground that it was obtained by fraud.

Clause 13.19.2

The applicant seeks a declaration that the first respondent’s building has been constructed in breach of the provisions of clause 13.19.2 of the Planning Scheme. That clause provides as follows:-
“13.19.2.         Building Footings
Purpose:
To ensure that buildings in proximity to an ocean beach have footings that are resistant to erosion.
Provisions
13.19.2.1
Where all or part of a building is located within 75 metres of a foreshore seawall line, the following provisions shall apply to the satisfaction of the Chief Engineer:
(i) for buildings with a height of two (2), three (3), four (4) or five (5) storeys, except for Class 1 buildings under the Building Act with a height of two (2) storeys, constructions shall include:
(a)footings to resist scour to R.L. 0.0 metres A.H.D. within 40 metres of the foreshore seawall line; and
(b)footings to resist scour to R.L. + 1.0 metres A.H.D. between 40   metres and 75 metres of the foreshore seawall line; and
(c) superstructure capable of resisting wave attach to R.L. + 6.0 metres A.H.D.; and
(ii) for buildings in excess of five (5) storeys, construction shall include –
(a) footings to resist scour to R.L. –3.0 metres A.H.D. within 40 metres of the foreshore seawall line; and
(b) footings to resist scour to R.L. 0.0 metres A.H.D. between 40 metres and 75 metres of the foreshore seawall line; and
(c) superstructure capable of resisting wave attach to R.L. + 6.0 metres A.H.D.

[66]The first development permit by condition 21 requires the footings of the first respondent’s dwelling to be constructed to withstand scour to R.L. 0.0 metres. This requirement is imposed on all class 1 buildings of 3 storeys or more. The building in question is, I find, a class 1 building of 3 storeys. The planning scheme contains no provision for relaxation or waiver of this requirement.

The first respondent submits that, other than the terms of clause 13.19.2.1 itself, no engineering reason has been advanced for requiring compliance with that provision in the circumstances of this case. It is submitted that on the basis of Mr Smith’s evidence it should be concluded that compliance with clause 13.19.2.1(i) is an unreasonable imposition and not reasonably required in this particular case. Mr Smith, an engineer, pointed to the following circumstances in support of this contention:
(a) the existence of a boulder wall;
(b) this part of the Gold Coast not being a “hot spot”;
(c) before erosion effects on the footings can occur the boulder wall has to be breached which is highly unlikely;
(d) with a boulder wall in place it is “overkill” to require compliance with clause 13.19.2.1.

Section 3.5.30 of the Integrated Planning Act requires that a condition be relevant to but not an unreasonable imposition on a development, or reasonably required in respect of the development “despite the laws administered by an assessment manager”. (see Queensland Fencing Supplies Pty Ltdv. Logan City Council [1996] QPELR 233 at 235-236 per Quirk DCJ). The first respondent submits that, other than the terms of the clause itself, no engineering reason has been advanced for requiring compliance with that provision in the circumstances of this case. I cannot accept this proposition, however, as there is no evidence before me that the boulder wall is in place to the south of the first respondent’s residence, either for the dwelling immediately to the south or at the access point to the beach, or further south. Furthermore, there is no evidence before me that the boulder wall has been constructed in front of the residence to the north of the applicant’s property. In these circumstances there may well be a legitimate reason to require compliance with clause 13.19.2 of the Planning Scheme. It is not in dispute that footings to resist scour to R.L. 0.0 metres A.A.D. have not been included in the first respondent’s dwelling. Accordingly, in my opinion, it is appropriate to make the declaration sought by the applicant.

CONCLUSIONS
1. The approval by the second respondent of the application for relaxation of the 6 metre road boundary clearance specified in s.36 of Standard Building Regulation

was granted without reference to the applicant but there was no legal obligation to refer the application to the applicant.
was not granted without consideration of the impact upon the applicant’s property;
was not obtained by fraud;
was validly granted.

2. The first respondent’s dwelling house has not been constructed contrary to s.36 of the Standard Building Regulation.
3. The first respondent’s dwelling house has not been constructed in accordance with clause 13.19.2.1 of the Planning Scheme.

ORDERS

Dismiss the application for a declaration of invalidity, with respect to the second respondent’s relaxation pursuant to s.48 of the Standard Building Regulation of the 6 metre road boundary clearance specified in s.36 of the Standard Building Regulation.

Dismiss the application for a declaration that the first respondent’s dwelling house has been constructed contrary to s.36 of the Standard Building Regulation.

Dismiss the application for an order cancelling the approval granted to the first respondent.

Dismiss the application for a demolition order in respect of the First Respondent’s dwelling house.

Uphold the application for a declaration that the first respondent’s dwelling house has been constructed in breach of s13.19.2.1 of the Planning Scheme.

Actions

Download as PDF Download as Word Document

Citations

Eschenko v Cummins [2000] QPEC 37

Most Recent Citation

Brutone Pty Ltd v Townsville City Council [2009] QPEC 143

Cases Citing This Decision

3

Friends of Buddina Ltd v Sunshine Coast Regional Council [2021] QPEC 57

Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46

Brutone Pty Ltd v Townsville City Council [2009] QPEC 143

Cases Cited

2

Statutory Material Cited

0

Rejfek v McElroy [1965] HCA 46

Rogers v Kabriel [1999] NSWSC 368

[2000] QPEC 37

13/06/2000